United States District Court, District of Columbia
Colleen Kollar-Kotelly, United States District Judge.
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
consideration of the pleadings,  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.
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.
1866, the MCN and the United States executed a treaty which
[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.
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.
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.
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
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.
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).
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.
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.
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.
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 ...