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Muscogee Creek Indian Freedmen Band, Inc. v. Bernhardt

United States District Court, District of Columbia

May 6, 2019

MUSCOGEE CREEK INDIAN FREEDMEN BAND, INC., et al., Plaintiffs
v.
DAVID BERNHARDT[1], et al., Defendants

          MEMORANDUM OPINION

          Colleen Kollar-Kotelly, United States District Judge.

         Plaintiffs are individuals and a collection of persons whose lineal ancestors were Creek Nation Freedmen and citizens of the Muscogee Creek Nation (“MCN”). Plaintiffs contend that under the Creek Treaty of 1866, they should have the rights and privileges of MCN citizens, regardless of their “blood status.” Plaintiffs further contend that, despite the Creek Treaty of 1866, they have been wrongfully denied MCN citizenship. Accordingly, Plaintiffs brought this lawsuit requesting declaratory and injunctive relief to secure the rights and privileges of MCN citizenship. In response to Plaintiffs' suit, Defendants David Bernhardt and the United States Department of the Interior (“federal Defendants”) filed a Motion to Dismiss, contending that dismissal is appropriate because the statute of limitations has run on Plaintiffs' claims. Additionally, Defendant James Floyd, the Principal Chief of the MCN, filed a Motion to Dismiss, raising various grounds for dismissal.

         Upon consideration of the pleadings, [2] the relevant legal authorities, and the record as a whole, the Court will GRANT Defendant Floyd's Motion to Dismiss and DENY WITHOUT PREJUDICE federal Defendants' Motion to Dismiss. The Court finds that Plaintiffs have failed to exhaust their tribal remedies. Plaintiffs do not allege that they ever applied for citizenship and were denied citizenship by the MCN. Accordingly, the Court will DISMISS WITHOUT PREJUDICE Plaintiffs' Complaint in order to allow Plaintiffs to exhaust their tribal remedies.

         I. BACKGROUND

         The Court concludes that Plaintiffs' Complaint should be dismissed without prejudice based on Plaintiffs' failure to exhaust their tribal remedies by applying for citizenship and appealing any adverse determinations. Accordingly, the Court's explanation of the factual background will focus on the details relevant to the discussion of this issue.

         In 1866, the MCN and the United States executed a treaty which provided that:

[I]nasmuch as there are among the Creek many persons of African descent…it is stipulated that hereafter these persons, lawfully residing in said Creek country, under their laws and usages, or who have been thus residing in said country, and may return within one year from the ratification of this treaty, and their descendants and such others of the same race as may be permitted by the laws of said Nation to settle within the limits of the jurisdiction of the Creek Nation as citizens [thereof], shall have and enjoy all the rights and privileges of native citizens, including an equal interest in the soil and national funds; and the laws of said Nation shall be equally binding upon and give equal protection to all such persons

Am. Compl., ECF No. 12, ¶ 38 (quoting Treaty of 1988, Art. 2). In 1887, Congress passed the Dawes Act of 1887. Pursuant to the Dawes Act as well as other acts of Congress, the MCN created the “Dawes Rolls, ” which were citizenship lists dividing members into the “Creek Nation Creek Roll, ” allegedly comprised of Creek citizens with Creek blood and the “Creek Nation Freedmen Roll, ” allegedly comprised of Creek citizens who were formerly enslaved and devoid of Creek blood. Id. at ¶¶ 44-50. The Dawes Rolls closed in 1907. Id. at ¶ 51.

         In 1975, the MCN submitted a draft constitution to the United States Department of the Interior (“DOI”) which “(1) stripped individuals on the 1906 Creek Freedmen Rolls and their then-living lineal descendants of their MCN citizenship; and (2) prevented the unborn lineal descendants of individuals who were enrolled on the 1906 Creek Freedmen Rolls from becoming citizens of MCN.” Id. at ¶ 52. In 1979, the DOI approved the MCN constitution, and the MCN held an election formally adopting the new constitution. Id. at ¶¶ 56-57. Under the new constitution, ratified by the DOI, Freedmen descendants were not entitled to MCN citizenship and were not recognized as citizens of the MCN. Id. at ¶ 60.

         Plaintiffs allege that between 1979 and today eligible Freedmen descendants have been summarily denied citizenship. Id. at ¶ 63. Plaintiffs specifically allege that between 1983 and 2003, the MCN Citizenship Board repeatedly denied the applications of two Freedmen descendants who are not parties in this lawsuit, Fred Johnson and Ron Graham. Id. at ¶ 64. Mr. Johnson and Mr. Graham appealed their denials to the MCN District Court. In 2006, the MCN District Court found that the Citizenship Board had not followed MCN law mandating that the Board process Mr. Johnson's and Mr. Graham's citizenship applications. Id. at ¶ 69. Despite the court order, Plaintiffs contend that the MCN Citizenship Board still refused to process the applications. And, in 2007, the MCN Supreme Court reversed the MCN District Court decision but did not rule on the validity of the citizenship provisions in the Treaty of 1866. Id. at ¶ 70. Plaintiffs do not provide any other examples of Freedmen descendants who were denied citizenship, and Plaintiffs do not allege that they have ever applied for MCN citizenship and been denied.

         Plaintiffs argue that Defendants violated the Treaty of 1866 when the DOI approved and the MCN passed the 1979 constitution excluding Freedmen descendants from tribal citizenship. Id. at ¶ 73. Plaintiffs further argue that Defendants have continually violated the Treaty of 1866 from 1979 until the current day. Plaintiffs contend that the MCN has violated the treaty by excluding Plaintiffs from elections and other tribal activities. Plaintiffs further contend that federal Defendants have violated the treaty by approving tribal elections and by providing funding for the MCN, despite the exclusion of Plaintiffs. Id. at ¶¶ 74-76.

         On July 20, 2018, Plaintiffs filed this lawsuit requesting declaratory and injunctive relief providing Plaintiffs and other Freedmen descendants with the full rights and privileges of MCN citizenship. Both federal Defendants and Defendant Floyd have filed Motions to Dismiss, citing numerous grounds for dismissal.

         II. LEGAL STANDARD

         Defendants move to dismiss Plaintiffs' Complaint on various grounds. For reasons explained below, the Court finds that Defendant Floyd's request for dismissal on exhaustion grounds is dispositive. As such, the Court will focus on that standard for dismissal. Because the exhaustion of tribal remedies is a matter of judicial comity rather than a jurisdictional bar to suit, motions to dismiss for failure to exhaust trial remedies are considered under Federal Rule of Civil Procedure 12(b)(6). Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856 (explaining that comity requires tribal exhaustion).

         Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

         III. DISCUSSION

         Federal Defendants and Defendant Floyd present many arguments as to why this case should be dismissed. However, the Court finds that Defendant Floyd's argument as to Plaintiffs' failure to exhaust their tribal remedies is dispositive. Accordingly, the Court's Memorandum Opinion will address only that issue.

         Defendant Floyd argues that this case should be dismissed as Plaintiffs failed to allege that they have exhausted their tribal remedies. In their Complaint, Plaintiffs make the conclusory allegation that they have been denied enrollment in the tribe. Am. Compl., ECF No. 12, ¶¶ 4-6, 8-10. Plaintiffs' denial of enrollment could be based on the mere presence of a “blood status” requirement in the MCN constitution. And, nowhere in their Complaint do Plaintiffs allege that they actually applied for enrollment in the tribe. In their Opposition to Defendant Floyd's Motion to Dismiss, Plaintiffs summarily state that “[b]etween 1979 and the present, Creek Freedmen and their descendants, including Plaintiffs, have applied for citizenship in the MCN.” Pls.' Opp'n to Def. Floyd, ECF No. 25, 5. Plaintiffs cannot now amend their Complaint by way of an Opposition to a Motion to Dismiss. Kingman Park Civic Ass'n v. Gray, 27 F.Supp.3d 142, 165 n.10 (D.D.C. 2014) (explaining that “it is well settled law that a plaintiff cannot amend its complaint by the briefs in opposition to a motion to dismiss”). Moreover, even if the Court were to consider Plaintiffs' Opposition, Plaintiffs do not provide any details about their applications for citizenship such as which Plaintiffs have applied and whether or not Plaintiffs appealed any denials of citizenship. Plaintiffs' conclusory statement, made in an Opposition to a Motion to Dismiss, is insufficient to allege exhaustion of remedies.

         Seemingly acknowledging their failure to allege exhaustion, in making their arguments against dismissal, Plaintiffs also do not contend that they actually applied for enrollment in the tribe and were denied. Instead, Plaintiffs make two arguments as to why this case should not be dismissed for failure to exhaust. First, Plaintiffs contend that they were not required to exhaust their tribal remedies because the tribal court does not have jurisdiction over federal Defendants. Second, Plaintiffs ...


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