This order and judgment is not binding precedent, except under the doctrines of *

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R.

32.1 (eff. Jan. 1, 2007).

F I LED

United States Court of Appeals

Tenth Circuit

December 28, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JERRY P. McNEIL,

Plaintiff-Appellant,

v. No. 06-5117

MELISSA ANDERSON, Rogers County

Tax Assessor,

Defendant-Appellee.

(D.C. No. 06-CV-073-CVE-SAJ)

(N. D. Oklahoma)

ORDER AND JUDGMENT

*

Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

ordered submitted without oral argument. 

Plaintiff Jerry P. McNeil, an Oklahoma resident appearing pro se, appeals from the

district court’s dismissal of his complaint asserting a slander of title claim against the Tax
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Assessor for Rogers County, Oklahoma. We exercise jurisdiction pursuant to 28 U.S.C. §

1291 and affirm.

I.

McNeil and his wife are the owners of a parcel of land located in Rogers County,

Oklahoma, having purchased the parcel in October 1985 from Wylie Construction,

Incorporated. In the fall of 2005, defendant Melissa Anderson, the Tax Assessor for

Rogers County, notified McNeil and his wife that they owed $1,252.00 in ad valorem

property taxes on the parcel. McNeil sent Anderson a letter asking that the parcel be

removed from the tax rolls because, in pertinent part, the parcel had originally been part

of a larger piece of property owned by the Cherokee Nation of Indians and, in 1906,

conveyed by homestead deed to Jessie Beatrice Beck, a tribal member. McNeil asserted

that it was “firmly established that Indian lands [we]re not within the taxing authority of

the state,” and thus, in his view, any tax assessments made by Anderson against his

property were “not lawfully due.” Anderson, after consulting with an assistant district

attorney for Rogers County, as well as the Oklahoma Tax Commission, sent McNeil a

letter back stating: “It is our decision that your property is taxable and [she] w[ould] not

be removing it from the tax roll.” 

McNeil paid the tax assessment and then, on February 6, 2006, filed this action

against Anderson in federal district court. McNeil’s complaint, similar to his letter to

Anderson, traced the ownership of his property back to the Cherokee Nation, asserted that

the land “was never incorporated within the territory of the Republican state of
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Oklahoma,” and alleged that the land was “now and forever, entirely without the reach of

[the] taxing authority” of Oklahoma or Rogers County. ROA, Vol. I, Doc. 1 at 8 (italics

and underlining in original). The complaint ultimately asserted a slander of title claim

against Anderson, alleging that she had uttered and published slanderous words (in the

form of the tax statement she sent to McNeil), that those words were false and

maliciously made, and that McNeil had sustained special damages as a result of

Anderson’s actions (i.e., “paying the fraudulent claim under duress”).

Anderson moved to dismiss McNeil’s complaint for lack of subject matter

jurisdiction, for failure to state a claim upon which relief could be granted, and on the

basis of immunity from liability under the Oklahoma Governmental Tort Claims Act,

Okla. Stat. tit. 51, §§ 151-200. On May 22, 2006, the district court issued an opinion and

order granting Anderson’s motion to dismiss. In doing so, the district court concluded

that it lacked federal subject matter jurisdiction over McNeil’s slander of title claim. 

Although McNeil’s complaint expressly stated that the district court had admiralty and

maritime jurisdiction over the case, the district court rejected that assertion, noting that

“[t]he assessment of ad valorem property taxes by the Oklahoma Tax Commission and

Rogers County do not in any way relate to the protection of maritime commerce or the

regulation of navigable waters . . . .” ROA, Vol. I, Doc. 19 at 2. The district court also

concluded that “[a]ny exemption [McNeil] may seek from property taxes assessed by the

Oklahoma Tax Commission or Rogers County would arise under the laws of Oklahoma,

not federal law,” and thus it lacked “jurisdiction under 28 U.S.C. § 1331.” Id. Although
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McNeil moved for reconsideration, the district court denied that motion. McNeil has

since filed a notice of appeal.

II.

We review de novo the district court’s dismissal of McNeil’s complaint for lack of

subject matter jurisdiction. High Country Citizens Alliance v. Clarke, 454 F.3d 1177,

1180 (10th Cir. 2006). After reviewing McNeil’s complaint, we agree with the district

court that none of the allegations therein demonstrate a connection between the alleged

wrongful conduct of Anderson and maritime commerce, activity, and/or navigation. See

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock, 513 U.S. 527, 538-40 (1995). 

Thus, it is clear that the district court lacked admiralty or maritime jurisdiction over

McNeil’s complaint. We likewise agree with the district court that McNeil’s cause of

action is not one that “aris[es] under the Constitution, laws, or treaties of the United

States,” as would be required for the district court to assert subject matter jurisdiction

over the cause of action pursuant to 28 U.S.C. § 1331. Although the materials submitted

by McNeil in connection with his complaint indicate that his parcel was originally owned

by the United States and then conveyed by patent to the Cherokee Nation, those facts are

insufficient, standing alone, to establish that his claim against Anderson involves issues of

federal law. See Oneida Indian Nation v. Oneida County, 414 U.S. 661, 676-77 (1974)

(“Once patent issues, the incidents of ownership are, for the most part, matters of local

property law to be vindicated in local courts, and in such situations it is normally

insufficient for ‘arising under’ jurisdiction merely to allege that ownership or possession
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is claimed under a United States patent.”). Finally, even assuming, for purposes of

argument, that the district court did have jurisdiction over McNeil’s complaint pursuant to

§ 1331, we conclude that McNeil failed to state a claim upon which relief could be

granted. As Anderson noted in her motion to dismiss, the materials submitted by McNeil

in connection with his complaint clearly establish that the property at issue has been sold

numerous times to private persons (including at least one private entity), and thus is

clearly “subject to ad valorem property taxation as part of the general mass of property in

the state.” Robberts v. Northville Township, 22 Fed. Appx. 527, 528 (6th Cir. 2001)

(citing Oklahoma Tax Comm’n v. Texas Co., 336 U.S. 342, 353 (1949)). In other words,

the fact that the property at issue was at one time conveyed to and owned by the Cherokee

Nation and one of its members does not, at this point in time, render the property exempt

from state or local taxes.

AFFIRMED. 

Entered for the Court

Mary Beck Briscoe

Circuit Judge