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Marilyn Vann, et al v. Ken Salazar

September 30, 2011

MARILYN VANN, ET AL., PLAINTIFFS,
v.
KEN SALAZAR, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

Marilyn Vann, Ronald Moon, Donald Moon, Charlene White, Ralph Threat, Faith Russell, Angela Sanders, Samuel E. Ford, and the Freedmen Band of the Cherokee Nation of Oklahoma bring this action against the United States Department of the Interior ("Interior"), its Secretary (collectively, "Federal Defendants"), and S. Joe Crittenden in his official capacity as the Acting Principal Chief of the Cherokee Nation of Oklahoma ("Chief Crittenden"),*fn1 seeking declaratory and injunctive relief. Plaintiffs are direct descendants of former slaves of the Cherokees, or free Blacks who intermarried with Cherokees, who were made citizens of the Cherokee Nation in the nineteenth century and are known as Cherokee Freedmen (the "Freedmen"). The Freedmen contend that the Principal Chief of the Cherokee Nation, with the approval of the Secretary, has disenfranchised the Freedmen in violation of the Thirteenth Amendment of the United States Constitution and the Treaty of 1866, and that the Federal Defendants have also violated those laws and others by failing to protect the Freedmen's citizenship and voting rights.

Before the Court are the motions to dismiss of the Federal Defendants [Dkt. # 118] and Crittenden [Dkt. # 119], the Freedmen's motion for leave to file a fifth amended complaint [Dkt. # 127], and the Freedmen's motion to consolidate the above-captioned case with Cherokee Nation v. Nash, Civil Action No. 10-1169 [Dkt #138]. Upon consideration of the motions, the oppositions thereto, and the entire record of this case, the Court concludes that Crittenden's motion to dismiss should be granted, the Freedmen's motion for leave to file a fifth amended complaint should be denied, and both the Federal Defendants' motion to dismiss and the Freedmen's motion to consolidate should be denied as moot.

I. BACKGROUND

1. Procedural History

The detailed facts of this case are set out in a previous opinion of this Court, Vann v. Kempthorne, 467 F. Supp. 2d 56 (D.D.C. 2006) ("Vann I"), and an opinion of the United States Court of Appeals for the District of Columbia Circuit, Vann v. Kempthorne, 534 F.3d 741 (D.C. Cir. 2008) ("Vann II"). In Vann I, this Court addressed a motion to dismiss by the Cherokee Nation, which was permitted to intervene for the sole purpose of challenging the Court's jurisdiction, as well as the Freedmen's motion to file a second amended complaint to add the Cherokee Nation and certain of its officials as defendants. The Court held, among other things, that sovereign immunity did not bar suit against the Cherokee Nation and the tribal officers.

Vann I, 467 F. Supp. 2d at 70, 74. The Cherokee Nation appealed the denial of its motion to dismiss on sovereign immunity grounds.

In Vann II, the D.C. Circuit held that "nothing in the Thirteenth Amendment or the 1866 Treaty amounts to an express and unequivocal abrogation of tribal sovereign immunity, [and so] the Cherokee Nation cannot be joined in the Freedmen's federal court suit without the tribe's consent." 534 F.3d at 749. The Circuit further held that under Ex parte Young, 209 U.S. 123 (1908), "tribal sovereign immunity does not bar the suit against tribal officers." Vann II, 534 F.3d at 750. The Circuit remanded the action to this Court to "determine whether 'in equity and good conscience' the suit can proceed with the Cherokee Nation's officers but without the Cherokee Nation itself." Id. at 756 (quoting FED. R. CIV. P. 19(b)).

Following the D.C. Circuit's opinion, the Freedmen filed a fourth amended complaint that raises six claims. The Freedmen allege that the Federal Defendants and Chief Crittenden have violated several constitutional and statutory provisions, including the 1970 Principal Chiefs Act, the Cherokee Constitution, the Treaty of 1866, the Indian Civil Rights Act ("ICRA"), 25 U.S.C. § 1301, and the Thirteenth and Fifteenth Amendments of the United States Constitution. They also seek judicial review of the Federal Defendants' alleged actions and inactions under the Administrative Procedure Act and assert that the Federal Defendants' conduct has denied the Freedmen equal protection under the Fifth Amendment.

The Cherokee Nation then filed suit in the United States District Court for the Northern District of Oklahoma against the Federal Defendants and five Freedmen*fn2 seeking a declaratory judgment "that the Five Tribes Act and federal statutes modified the Treaty of 1866 thereby resulting in non-Indian Freedmen descendants, including the individual defendants, no longer, as a matter of federal law, having rights to citizenship of the Cherokee Nation and benefits derived from such citizenship." Cherokee Nation v. Nash, Civil Action No. 10-1169, Compl. [Dkt. # 2] ¶ 18.*fn3 In light of the Nation's filing of its suit in Oklahoma, the Freedmen have moved for leave to file a fifth amended complaint [Dkt. #127] in this case. The proposed fifth amended complaint would add the Cherokee Nation as a defendant and the five Freedman whom the Cherokee Nation sued in the Northern District of Oklahoma as plaintiffs. The Freedmen also move to consolidate the above-captioned case with Nash [Dkt. # 138].

II. ANALYSIS

A. Crittenden's Motion To Dismiss The Fourth Amended Complaint Under Federal Rule of Civil Procedure 19(b) Crittenden moves to dismiss the Freedmen's claim under Federal Rule of Civil Procedure 19(b), arguing that the case cannot proceed in the absence of the Cherokee Nation. The Court "must determine whether, in equity and good conscience, the action should proceed among the existing parties [in the absence of the Cherokee Nation] or should be dismissed." FED. R. CIV. P. 19(b). The Supreme Court has explained that Rule 19(b)'s "general direction," guided by four non-exclusive factors "indicates that the determination whether to proceed will turn upon factors that are case specific, which is consistent with a Rule based on equitable considerations." Republic of Philippines v. Pimentel, 553 U.S. 851, 862--863 (2008) (quoting Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 119 (1968)). Id. at 863. The decision of whether to proceed without a required party "must be based on factors varying with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing interests." The D.C. Circuit "has observed that there is very little room for balancing of other factors set out in Rule 19(b) where a necessary party under Rule 19(a) is immune from suit because immunity may be viewed as one of those interests compelling by themselves." Kickapoo Tribe of Indians v. Babbitt, 43 F.3d 1491, 1496 (D.C. Cir. 1995) (internal quotation marks omitted). As a result, a court's inquiry under Rule 19(b) is "more circumscribed" when determining whether a suit can proceed in equity and good conscience without a party who is absent for reasons of sovereign immunity, as here. Id. at 1497. To this inquiry the Court now turns.

1. Prejudice

First, the Court considers "the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties." FED. R. CIV. P. 19(b)(1). As this Court previously stated in holding that the Nation was a necessary party under Federal Rule of Civil Procedure 19(a), "[t]he Nation has an interest in administering its sovereign electoral and constitutional affairs" and "the sovereign interests of a tribe clearly are affected when the validity of a tribe's elections are questioned."*fn4 Vann I, 467 F. Supp. 2d at 66; see also St. Pierre v. Norton, 498 F. Supp. 2d 214, 220--21 (D.D.C. 2007) (finding that a judgment for plaintiffs would be prejudicial to the absent tribe because it "would essentially reverse current tribal law regarding membership determinations," "could drastically alter the current makeup of the Tribe," and "would also totally undermine the Tribe's authority to make independent membership determinations without federal interference"). Moreover, one of the issues in ...

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