Plaintiffs have standing to assert a claim that the BIA has withheld their property.
The Plaintiffs argue that they have standing to challenge the reassumption of the law enforcement based on three grounds. First, they claim that their rights of tribal self-government and tribal self-determination have been compromised by the BIA's non-compliance with the statutory and regulatory requirements of reassumption. Second, they claim that the fact that the BIA has failed to enforce the orders and warrants issued by the Tribunal has removed their authority to ensure that there is compliance with tribal constitutional law. Finally, the Plaintiffs allege that the BIA has prevented them from entering the Courthouse to recover their personal property. The Plaintiffs seek review of the BIA's actions pursuant to 5 U.S.C. § 702. This Court has jurisdiction to entertain this federal questions pursuant to 28 U.S.C. § 1331 (1994).
The Plaintiffs bear the burden of establishing that they have standing to bring the instant cause of action. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992); Warth v. Seldin, 422 U.S. 490, 508, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). In deciding whether to dismiss the case based on a lack of standing, the Court is required to "'construe the complaint in favor of the complaining party.'" Albuquerque Indian Rights v. Lujan, 289 U.S. App. D.C. 164, 930 F.2d 49, 55 (D.C. Cir. 1991) (quoting Worth, 422 U.S. at 501). The requirements of standing, however, are not simply pleading requirements but are "an indispensable part of the plaintiff's case [and] each must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. with the manner and degree of evidence required at the successive stages of litigation." Lujan, 504 U.S. at 561.
Standing is an "essential and unchanging part of the case-or-controversy requirement of Article III." Id. at 560. The Plaintiffs have standing only if they allege that (1) they have suffered a personal injury that is concrete and particularized, and not conjectural or hypothetical, but actual and imminent, id ; (2) that this injury is traceable to the Defendants' allegedly unlawful conduct, see Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984); and (3) that the injury is likely to be redressed by the requested relief. Id.; see also Animal Legal Defense Fund, Inc. v. Espy, 306 U.S. App. D.C. 188, 23 F.3d 496, 498 (D.C. Cir. 1994). Upon considering the three bases of standing proffered by the Plaintiffs, the Court concludes that they have no standing to assert this cause of action against the Defendants.
1. The Plaintiffs do not have standing based on an injury to the rights of self-determination or self-governance.
The letter from Assistant Secretary Deer clearly establishes that the BIA proceeded to reassume the law enforcement functions based on the emergency provisions of 25 U.S.C. § 450m. This provision requires that the Secretary of the Interior, when making an emergency reassumption of a program, must give notice thereof to "the tribal organization, and the tribe served by the tribal organization." 25 U.S.C. § 450m. The statute also provides that "the Secretary shall provide the tribal organization with a hearing on the record within ten days or such later date as the tribal organization may approve." Id.
The Plaintiffs attempt to establish standing to challenge the BIA's compliance with this statute by arguing that the BIA, in failing to conduct a hearing before the tribal organization,
has deprived the Cherokee Nation and them personally of the right of self-governance and self-determination. The Plaintiffs claim only that the BIA had a duty to hold a hearing,
and that in failing to hold the hearing,
the Nation as well as themselves have been deprived of the right to self-governance and self-determination. The Plaintiffs do not argue that they personally were entitled to a hearing, nor can they make such a claim.
Thus to the extent that they ground their claim of injury solely in the government's failure to comply with the statute, standing cannot exist because simply claiming a right to "to have the Government act in accordance with the law is not sufficient, standing alone, to confer jurisdiction on a federal court." Allen, 468 U.S. at 754.
The injury claimed by the Plaintiffs is abstract, and could be raised by any member of the Cherokee nation on their own behalf or on behalf of the Nation. The alleged denial of the abstract right of self-determination or self-governance cannot support the standing to sue. See id. (finding no standing where plaintiffs alleged abstract claim that they had suffered a "stigmatizing injury often caused by racial discrimination"); Valley Forge v. Americans United, 454 U.S. 464, 486-87, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (finding no standing where the injury alleged was only that the Establishment Clause had been violated by the government's transfer of land to a church-related college); Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975)(finding no standing for plaintiffs alleging that Reserve membership of Members of Congress violated the Incompatibility Clause because such claim amounted to no more than a "a generalized interest of all citizens in constitutional governance," and such an injury was abstract, not concrete and particular). Without finding that the Plaintiffs have suffered a concrete or particularized injury, the Court is precluded from finding standing. Lujan, 504 U.S. at 561.
Furthermore, the rights of self-determination and self-governance, of which the Plaintiffs claim they have been deprived, are held generally by the people of the Cherokee Nation. This fact also prevents the Court from finding that the Plaintiffs have alleged a particularized and concrete injury because "where the asserted harm is a generalized grievance shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction." Worth, 422 U.S. at 499. "The term 'generalized grievance' does not just refer to the number of persons who are allegedly injured; it refers to the diffuse and abstract nature of the injury." Akins v. Federal Election Comm., 322 U.S. App. D.C. 58, 101 F.3d 731, 737 (1997); see Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220, 41 L. Ed. 2d 706, 94 S. Ct. 2925 (1974) (finding that plaintiffs who sought to have the judiciary compel the executive to comply with the Incompatibility Clause had alleged only a "generalized interest of all citizens in constitutional governance [which is] an abstract injury" insufficient to support standing). The Court concludes that the Plaintiffs' first basis for standing is insufficient because they have alleged an abstract injury and have no more than a generalized grievance.
2. The Plaintiffs do not have standing based on the BIA's alleged failure to serve the Tribunal's arrest warrants, or comply with its other orders.
The Plaintiffs argue that by failing to serve the arrest warrants, and failing to acknowledge their Orders which declared as invalid the acts of the April 15, 1997 Tribal Council, the BIA has abrogated their authority to act as a tribunal. At the hearing, the Plaintiffs relied on Raines v. Byrd, 138 L. Ed. 2d 849, 65 U.S.L.W. 4705, 117 S. Ct. 2312 (June 26, 1997), in support of this argument.
Raines, however, is inapposite. In Raines, the Plaintiffs filed a complaint against the Secretary of the Treasury and the Director of the Office of Management and Budget. See 65 U.S.L.W. at 4706. The Plaintiffs were Senators and Congressmen who voted against the Line Item Veto Act (Act). See id. They challenged the constitutionality of the Act as an unconstitutional expansion of the President's power. See id. They also alleged that the Act granted the President the authority to cancel a provision of a federal law, which had the effect of allowing the President to repeal a law without meeting the requirements of bicameral passage and presentment. See id.
In considering the issue of legislative standing, the Supreme Court held that the plaintiffs did not have standing to challenge the Act. In so holding, the Court rejected the plaintiffs' argument that the Act injured them "'directly and concretely . . . in their official capacities'" by nullifying their votes. Id.
The Raines plaintiffs, relying on Coleman v. Miller, 307 U.S. 433, 83 L. Ed. 1385, 59 S. Ct. 972 (1939), argued that the Act had the effect of nullifying their votes. The Court found that the plaintiffs alleged neither that they had been treated differently from other members of the legislature, nor that they had been deprived of a personal entitlement. Raines, 65 U.S.L.W. at 4706. Rather, the plaintiffs' claim amounted to only a loss of their political power. The Supreme Court held that the plaintiffs' votes "were given full effect [but] they simply lost that vote." Id. at 4709.
The Plaintiffs in the instant case argue that the Raines case supports their position because they, unlike the Raines plaintiffs, can show that the governmental act at issue nullifies their power. The Court finds that Raines in fact supports a finding that the Plaintiffs do not have standing to challenge the BIA's alleged decision not to serve the warrants. The Plaintiffs, like those in Raines, have not been deprived of their authority to issue orders or pass on the legality of executive action. They assert an injury to their interest in having the BIA execute their orders, but not in their right or ability to issue those orders. The former is an interest that is shared by all in the Cherokee nation, and thus is nothing more than "a generalized grievance about the conduct of government." American Federation of Government Employees v. Pierce, 225 U.S. App. D.C. 61, 697 F.2d 303, 305 (D.C. Cir. 1982) (holding that a congressman did not have standing to challenge the execution of the law because such a claim is a generalized grievance). Rather than being denied the right to act as a member of the tribunal, the Plaintiffs simply have lost their political power. Thus, the Plaintiffs, as in Raines, have not articulated a particular and concrete injury upon which standing may be grounded.
3. The Plaintiffs lack standing based on an the allegation that the BIA has deprived them of their personal property.
The Plaintiffs claim that the BIA denied other persons access to the Courthouse during a discrete period of time in which there was a potential armed conflict, to which the BIA responded at the request of the County Sheriff's Office. The Plaintiffs argue that from these facts, the Court can conclude that they have been locked out of the Courthouse as a result of the BIA's actions. Yet the Plaintiffs conceded that when they attempted to enter the Courthouse on June 23, 1997, the BIA was not present, and the BIA took no action to prevent them from entering the Courthouse that day. Apparently, it was Principal Chief Byrd's personal security force who prohibited their access on June 23, 1997.
The Plaintiffs' argument that the BIA is the cause of their inability to obtain their property is undercut greatly by the fact that the BIA did not participate in the take over of the Courthouse; that the BIA was present at the scene only at the request of the County Sheriff's office; that the BIA was part of a joint law enforcement action to prevent an armed conflict; that the BIA was present at the courthouse only for as long as it took to diffuse the potential for an armed conflict; that the BIA left the building on June 20, 1997; that the BIA did not lock the building upon its departure; and that the BIA has not returned to the Courthouse since June 20, 1997.
Traceability does not exist if the injury is the "'result [of] the independent action of some third party not before the court.'" Defenders of Wildlife, 504 U.S. at 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (quoting Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976)); see also Bennett v. Spear, 137 L. Ed. 2d 281, 117 S. Ct. 1154, 1164 (1997). Causation may exist, however, where "the injury [is] produced by [the] determinative or coercive effect upon the action of someone else. Bennet 117 S. Ct. at 1164.
The facts of this case do not support a finding that the current lock-out of the Courthouse by the security force of the Principal Chief is fairly traceable to the BIA. The BIA assisted the Sheriff in diffusing a conflict between two members of the Marshal's Service and the security forces of Principal Chief Byrd. The Plaintiffs have been deprived of their property by the independent actions of the personal security forces of Principal Chief Byrd. The BIA's assistance to the County Sheriff cannot be considered as having "the determinative or coercive effect" upon the decision of the personal security force of Principal Byrd to lock the Courthouse and deny them access to their personal property. In this case, the Plaintiffs argument on causation fails because "the links in the chain of causation between the challenged Government conduct and the asserted injury are far too weak for the chain as a whole to sustain [the Plaintiffs'] standing." See Allen, 468 U.S. at 757-58.
Not only do the Plaintiffs fail to meet the traceability element of standing as to this ground for standing, they also fail to meet the redressability requirement. Redressability "examines the causal connection between the alleged injury and the judicial relief requested." Allen, 468 U.S. at 753 n. 19. As relief, the Plaintiffs seek to have the BIA withdraw. The Plaintiffs have failed to show how the withdrawal of the BIA will provide them with their property. The persons in actual control of the Plaintiffs' property are not parties to this action, and thus would not be obligated to observe the Court's ruling in this case. See Defenders of Wildlife, 504 U.S. at 570. The relief requested in this case, namely the return of property held by persons not party to this action, goes "well beyond the violation of the law alleged" by the Plaintiffs. Allen, 468 U.S. at 753 n. 19.
For the foregoing reasons, the Court concludes that the Plaintiffs have failed to meet their burden of establishing standing to challenge the BIA's decision to reassume the law enforcement program. Accordingly, the Court shall dismiss the above-captioned case. The Court shall issue an Order consistent with the foregoing Memorandum Opinion.
UNITED STATES DISTRICT JUDGE