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Kialegee Tribal Town v. Zinke

United States District Court, District of Columbia

September 7, 2018

RYAN K. ZINKE, in his official capacity as SECRETARY of the DEPARTMENT OF THE INTERIOR, et al., Defendants.



         This suit arises from Plaintiff Kialegee Tribal Town's request that this Court grant declaratory and injunctive relief in its favor in connection with its claims that Plaintiff is a successor to the Creek Nation, and as such, has treaty-protected rights of shared jurisdiction over land within the boundaries of the historic Creek Nation reservation. Pending before this Court is Federal Defendants' Motion to Dismiss Plaintiff's Amended Complaint, brought by Ryan K. Zinke, in his official capacity as Secretary of the United States Department of the Interior; John Tahsuda, III, in his official capacity as Acting Assistant Secretary for Indian Affairs; and the United States Department of the Interior (“Interior”) (collectively, the “Federal Defendants”). Federal Defendants have moved to dismiss Plaintiff's Amended Complaint pursuant to Federal Rules of Civil Procedure Rule 12(b)(1), for lack of subject matter jurisdiction, and Rule 12(b)(6), for failure to state a claim.

         After reviewing the parties' submissions, [1] relevant case law and applicable statutory authority, the Court GRANTS Defendants' Motion to Dismiss on grounds that Plaintiff's Amended Complaint fails to state a claim. A separate Order accompanies this Memorandum Opinion.


         A. History of the Creek Nation and Kialegee Trial Town

         Plaintiff Kialegee Tribal Town (“Plaintiff” or “Kialegee”) is “an Indian Tribe that is federally-recognized pursuant to the provisions of the Oklahoma Indian Welfare Act of June 26, 1936, 49 Stat. 1967.” Am. Compl., ECF No. 27, ¶ 3.[2] This case centers on the issue of whether Plaintiff, a member of the historic Creek [N]ation, is included under the treaties signed by the historic Creek Nation. Plaintiff's position is that, “as a federally-recognized Indian Tribe and member of the historic Creek Nation, [it] has jurisdiction over all lands within the Creek Reservation as land owned in common with two other federally-recognized Creek Tribal Towns and the federally recognized Muskogee Creek Nation (“MCN”) in accordance with treaties entered into between Kialegee and the United States and as read in context with the Indian Canon of Construction.” Id. Defendant's position is that, “since the removal of the Creeks in 1832 to what is now Oklahoma, federal treaties and federal legislation pertaining to the Creek Reservation in Oklahoma have been exclusively with the Muscogee (Creek) Nation, not the tribal towns.” Fed. Defs.' Mem. at 8.[3]

         To put this argument in historic context, the Court looks briefly at the history of the Creek Nation. The Creek Nation, “historically and traditionally, is actually a confederacy of autonomous tribal towns, or Talwa, each with its own political organization and leadership.” Harjo v. Andrus, 581 F.2d 949, 951 n.7 (D.C. Cir. 1978). “Between 1790 and 1866, the Creek Confederacy, as a collection of talwas, entered into several treaties with the United States[, ]” and those treaties, which “collectively referred to a ‘Creek Nation', the ‘Creek Tribe' and ‘the Creeks'” reserved lands to the “talwas and their larger use and subsistence areas held in common with other Creeks.” Am. Compl. ¶ 44.[4]

         After the ratification of the United States Constitution in 1788, the United States entered into a treaty with the Creeks on June 29, 1796 (the “1796 Treaty”), and one of the signatories to the 1796 Treaty is the Kialegee. See Am. Compl., Ex. A [1796 Treaty]. In March 1814, General Andrew Jackson led a force that killed more than 1, 000 Creeks in Alabama during the Red Stick War, and that controversy was concluded by the Treaty of Fort Jackson (also known as the “Treaty With The Creeks, 1814”), which involved the Creeks' ceding 22 million acres of land in the Southeast United States to the United States. Am. Compl. ¶¶ 21-22; see also Am. Compl. Ex. B [Treaty With The Creeks, 1814]. Two signatories to the Treaty of Fort Jackson are identified as “Kialijee, ” designating the Kialegee people from the Kialijee Creek, “which was part of the Creek Confederacy as it existed in Alabama prior to removal.” Am. Compl. ¶¶ 22-23.

         “In the 1820's, the federal government adopted a policy to forcibly remove the Five Civilized Tribes [which included the Creek Nation] from the southeastern United States and relocate them west of the Mississippi River, in what is today Oklahoma.”[5] Indian Country, U.S.A., Inc. v. State of Oklahoma, 829 F.2d 967, 971 (10th Cir. 1987) (citation omitted); see Am. Compl. Paragraphs 25-27. This policy became formal law on May 28, 1830, when then-President Andrew Jackson signed into law the “Indian Removal Act.” Am. Compl. ¶ 26. This policy of removal “ultimately resulted in the forcible relocation of the Creek, Cherokee, Seminole, Choctaw and Chickasaw tribes to what is presently the state of Oklahoma.” Am. Compl. ¶ 31. Plaintiff claims that Kialegee's “place as a Creek treaty tribe was established well before [this] removal period” because it was “a signatory to the 1796 Treaty.” Id.

         By means of the Treaty With The Creeks, 1832 (“Treaty of 1832”), the Creeks ceded their homelands in the eastern United States in exchange for lands in the western United States. See 7 Stat. 366 (1832) (stating that “The Creek country west of the Mississippi shall be solemnly guarantied [sic] to the Creek Indians[.]”) (art. 14); Am. Compl. ¶ 27. The Creek Treaty of February 14, 1833, between the Creeks and the United States, was supposed to “establish boundary lines which [would] secure a country and permanent home to the whole Creek nation of Indians[.]” Am. Compl. ¶ 44(f) (emphasis omitted). By its terms, the Treaty of 1833 establishes that land assigned to the Creek Indians “shall be taken and considered the property of the whole Muscogee or Creek Nation, as well as those now residing upon the land.” Am. Compl Paragraph 48. On June 14, 1866, a treaty was signed between the Creeks and the United States whereby the Creeks were to cede a western portion of their territory to the United States for payment in a certain amount. Am. Compl. ¶ 34 (citing Treaty of 1866, Art. III).

         On October 12, 1867, the Creeks adopted a constitution and a code of laws for the “Muskogee Nation” (which differs from the present Muskogee Nation). Am. Compl. ¶ 36. “In 1893, Congress created the Dawes Commission to negotiate with the Five Civilized Tribes” to extinguish tribal land title and develop an allotment plan.” Indian Country, 829 F.2d at 977 (citation omitted). In 1898, Congress enacted the Curtis Act, whereby “all land was taken from the entire Creek people, and allotments were given to tribe members of no more than 160 acres per tract.” Am. Compl. ¶ 38.

         B. The Kialegee Tribal Town

         In 1934, Congress passed the Indian Reorganization Act (“IRA”) of 1934, ch. 576, 48 Stat. 984 (codified as amended at 25 U.S.C. §§ 5101, et seq.), which was “designed to improve the economic status of Indians by ending the alienation of tribal land and facilitating tribes' acquisition of additional acreage and repurchase of former tribal domains.” Fed. Defs.' Mem. at 11 (citing Cohen's Handbook of Federal Indian Law, Section 1.05 at 81 (Nell Jessup ed., 2012)). That Act provided for tribal self-government pursuant to tribally adopted constitutions. 25 U.S.C. § 5123. Pursuant to Section 5108, the Secretary of the Interior was authorized “to acquire . . . any interest in lands . . . for the purpose of providing land for Indians.” 25 U.S.C. § 5108; Match-E-Be-Nash-She Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 226 (2012) (recognizing that “[l]and forms the basis of [tribal] economic life, providing the foundation for tourism, manufacturing, mining, logging, . . . and gaming”) (internal quotation marks and citations omitted)). Certain sections of the IRA are inapplicable to tribes in Oklahoma. See 25 U.S.C. § 5118.

         In 1936, Congress passed the Oklahoma Indian Welfare Act of 1936 (“OIWA”), which allowed “any recognized tribe or band of Indians residing in Oklahoma . . . . to organize for its common welfare and to adopt a constitution and bylaws, under such rules and regulations as the Secretary of the Interior may prescribe.” Am. Compl. ¶ 40, n. 7. Plaintiff Kialegee is a federally recognized Indian tribe, organized under Section 3 of the OIWA, which first received federal recognition in 1936, and is governed in accordance with a constitution and bylaws that were approved by the Assistant Secretary of the Interior, on April 14, 1941, and ratified by the town members on June 12, 1941. Am. Compl. ¶ 41; see Oklahoma v. Hobia, 775 F.3d 1204, 1205 (10th Cir. 2014), cert den., 136 S.Ct. 33 (2015). Kialegee also has a corporate charter that was approved by the Assistant Secretary of the Interior on July 23, 1942, and ratified by town members on September 17, 1942, which states that “[n]o property rights or claims of the Kialegee Tribal Town existing prior to the ratification of this Charter shall be in any way impaired by anything contained in this Charter [and further, ] [t] the Tribal Town ownership of unallotted lands, whether or not occupied by any particular individuals, is hereby expressly recognized.” Am. Compl. ¶¶ 41, 43 (referencing the Kialegee Corporate Charter at 6) (emphasis omitted).

         C. The Lawsuit

         Plaintiff filed its initial Complaint on August 17, 2017, against the Federal Defendants and the Chairman of the National Indian Gaming Commission (“NIGC”). Plaintiff sought a declaratory judgment that it exercises concurrent jurisdiction over the Creek Reservation in Oklahoma with all Creek tribes, and an injunction that all lands within the Creek Reservation are Plaintiff's “Indian lands” for purposes of the Indian Gaming Regulatory Act (“IGRA”). Compl., ECF No. 1, ¶¶ 38, 40, 42, 44. More specifically, Plaintiff referred to the construction of a restaurant facility known as the Red Creek Dance Hall and Restaurant, located on an Indian allotment within the Creek Reservation in Broken Arrow, Oklahoma, where the allotment was owned by Bim Stephen Bruner, an enrolled member of Kialegee (the “Bruner Allotment”). Compl., ECF No. 1, ¶ 8. Plaintiff indicated further that “Defendant [had] publicly declared their intention to take administrative and legal steps to oppose the Kialegee development of the Bruner allotment.” Compl., ECF No. 1, ¶ 17.

         In its Amended Complaint, for which a motion to amend was filed, unopposed, and leave to file was granted, Plaintiff deliberately removed the Chairman of the NIGC as a defendant and deleted several of the specific references to the Bruner allotment, seeming to focus instead on a more general request that this Court enforce Plaintiff's “rights” under historical treaties.[6]Plaintiff alleges that because Kialegee is a signatory to the Treaty of 1833 establishing the Creek Reservation, the Creek Reservation is also considered Plaintiff's Reservation and accordingly, Kialegee may exercise jurisdiction over lands within the boundaries of the historic Creek Reservation. Am. Compl., ECF No. 27, ¶¶ 2, 46-48, 56. Plaintiff alleges further that the “[Federal] Defendants' position is that the Muskogee Tribe alone exercises jurisdiction over the entirety of those lands that were explicitly reserved for the ‘whole Creek Nation, '” Am. Compl. ¶¶ 51 (emphasis omitted), 64-65, and Defendants have “repeatedly violated 25 U.S.C. §[5123](f) by blocking [Plaintiff] from jurisdiction on lands located within the Creek Reservation.” Am.

         Compl. ¶ 68.[7] In the instant case, Kialegee mentions its construction of a restaurant facility located on an Indian allotment within the Creek Reservation (the aforementioned “Bruner allotment”), and Kialegee claims jurisdiction over the land on which it is constructing the restaurant facility as well as all lands within the Creek Reservation, in common with other recognized Creek tribes in Oklahoma, based upon “various Creek Treaties with the United States read in context with the Indian Canon of Construction.“ Am. Compl. ¶¶ 56-57.


         A. Subject Matter Jurisdiction under Rule 12(b)(1)

         A court must dismiss a case pursuant to Federal Rule 12(b)(1) when it lacks subject matter jurisdiction. In determining whether there is jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted); see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.”)

         In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be drawn from the facts alleged. See Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Koutny v. Martin, 530 F.Supp.2d 84, 87 (D.D.C. 2007) (“[A] court accepts as true all of the factual allegations contained in the complaint and may also consider ‘undisputed facts evidenced in the record'”) (internal citations omitted). Despite the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff's burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F.Supp.2d 84, 90 (D.D.C. 2000). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff[‘s] factual allegations in the complaint. . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007) (internal ...

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