United States District Court, District of Columbia
F. Hogan, Senior United States District Judge.
Rhonda Leona Brown Fleming and the Harvest Institute Freedom
Federation LLC ("Harvest Institute") filed this
class action against the Secretary of the Interior and the
Assistant Secretary-Indian Affairs (the "federal
defendants"), and the Cherokee Nation, the Cherokee
Nation Election Commission, and the Principal Chief of the
Cherokee Nation Bill John Baker (the "tribal
defendants"). The plaintiffs have twice sought a
temporary restraining order to enjoin or delay the June 1,
2019 election for Principal Chief of the Cherokee Nation,
which this Court has twice denied. Pending before the Court
now are Ms. Fleming's motion for a preliminary injunction
[ECF No. 2] and motions to dismiss filed by the tribal
defendants [ECF No. 8], and the federal defendants, [ECF No.
plaintiffs are Rhonda Leona Brown Fleming, a Cherokee citizen
and descendent of Cherokee Freedmen, and the Harvest
Institute Freedman Federation, LLC, which seeks "redress
through the courts to compel the United States and the
Cherokee Nation to perform obligations" to Cherokee
Freedmen under federal law. Compl. ¶¶ 10-11. As set
forth in their complaint, Ms. Fleming would like to run for
the position of Principal Chief of the Cherokee Nation.
Compl. ¶ 10. However, the plaintiffs assert that Article
VII, Section 2 of the Cherokee Nation Constitution, which
limits eligibility for election to the office of Principal
Chief to Cherokee "citizen[s] by blood" who are
also domiciled within the boundaries of the Cherokee Nation
for at least 270 days prior to the election, is impeding Ms.
Fleming's ability to run in the election. Compl. ¶
lengthy opinion, this Court held that "the Cherokee
Freedmen have a present right to citizenship in the Cherokee
Nation that is coextensive with the rights of native
Cherokees." Cherokee Nation v. Nash, 267
F.Supp.3d 86, 140 (D.D.C. 2017). The Court concluded that
"any Cherokee Freedmen descendant who qualifies for
citizenship in the Cherokee Nation shall have all the
benefits and privileges of such citizenship on the same terms
as other citizens of the Cherokee Nation." Order and
Judgment at 2, Cherokee Nation v. Nash, No.
13-cv-1313 (D.D.C. Feb. 20, 2018) [ECF No. 257] (hereinafter
"Nash Order"). The Supreme Court of the Cherokee
Nation has adopted this Court's ruling in Cherokee
Nation v. Nash as "enforceable within and against
the Cherokee Nation," and has explicitly held that
"the 2007 amendment to the Constitution that purported
to limit citizenship within the Cherokee Nation to Cherokees
by blood, Delaware Cherokees and Shawnee Cherokees is ...
void and without effect." Fed. Defs.' Mem. Supp.
Mot. Dismiss Ex. 1, In re: Effect of Cherokee Nation v.
Nash and Vann v. Zinke, No. SC-17-07 ( S.Ct. of the
Cherokee Nation Sept. 1, 2017) [ECF No. 11-2]. It further
held that "eligible Freedmen descendants ... upon
registration as Cherokee Nation citizens shall have all the
rights and duties of any other native Cherokee, including
the right to run for office.'' Id. (emphasis
plaintiffs do not claim that the "by blood"
provision has been enforced against Ms. Fleming, or that she
has been denied the right to stand in the elections because
she is the descendent of Cherokee Freedmen. Although the
Cherokee Nation Election Commission has determined that she
is ineligible to run for Principal Chief, it did so because
she did not "meet the 270 days residency requirement
within the jurisdictional boundaries of the Cherokee
Nation"-she resides in California, outside the
boundaries of the Cherokee Nation. Tribal Defs.'
Opp'n to Pis.' Mot. Prelim. Inj. Ex. 2, In Re:
Challenge to the Eligibility of Rhonda Brown-Fleming,
Candidate for Chief for the 2019 General Election,
Eligibility Hearing No. 2019-5 (Cherokee Nation Election
Comm'n Feb. 21, 2019) [ECF No. 6-2]; see also
Compl. ¶ 10. The Cherokee Nation Election Commission
also stated that "any challenge to the candidate on the
basis that she is not Cherokee by blood has no validity and
Cherokee Freedman Citizens are eligible to run for office if
they meet all other requirements for the office, applicable
to all Cherokee Citizens." Id. The Cherokee
Supreme Court affirmed that decision. Tribal Defs.'
Opp'n to Pis.' Mot. Prelim. Inj. Ex. 3, In Re:
Challenge to the Eligibility of Rhonda Brown Fleming,
Candidate for Chief for the 2019 General Election, No.
SC-2019-02 ( S.Ct. of the Cherokee Nation Mar. 11, 2019) [ECF
6-3]; see also Compl. ¶ 10.
plaintiffs filed their original complaint on August 30, 2018.
Fleming v. Cherokee Nation, No. 18-cv-2041 (D.D.C.
May 14, 2019) [ECF No. 1]. Along with the complaint, Ms. Fleming
filed a motion for a temporary restraining order seeking to
restrain the Cherokee Nation from enforcing the "citizen
by blood" provision of the Cherokee Nation Constitution,
[ECF No. 2], which the Court denied, [ECF No. 7]. The federal
and tribal defendants moved to dismiss the plaintiffs'
complaint on December 4, 2018. [ECF Nos. 10 & 11].
Although the Court granted the plaintiffs'
belatedly-filed motion for an extension of time to file a
response, the plaintiffs did not oppose the motions to
dismiss. Minute Order, Apr. 11, 2019. Ms. Fleming did,
however, file a renewed motion for a preliminary injunction
on March 22, 2019. [ECF No. 15]. On May 14, 2019, the Court
granted the defendants' motions to dismiss as conceded,
and denied the plaintiffs motion for a preliminary injunction
as moot. [ECF No. 20]. The Court dismissed the complaint
without prejudice. Id.
same day, the plaintiffs filed a new complaint in the instant
case seeking declaratory and injunctive relief, along with a
motion for a temporary restraining order and preliminary
injunction. [ECF Nos. 1 & 2]. These filings stemmed from
the same facts, and raised identical challenges as the
previous filings. The Court held a telephonic hearing on the
motion for a temporary restraining order on May 21, 2019, and
denied the motion. Minute Order, May 21, 2019. The Court then
set an accelerated schedule for motions to dismiss.
Id. Both the tribal and federal defendants filed
motions to dismiss on May 23, 2019, arguing, inter
alia, that the Court lacks jurisdiction over the
plaintiffs' claims. [ECF Nos. 8 & 11]. They also
opposed the motion for a preliminary injunction. [ECF Nos. 6
& 12]. The plaintiffs filed their opposition to the
motions to dismiss on May 28, 2019, missing the Court-imposed
deadline by one day. [ECF No. 13].
Rule 12(b)(1) of the Federal Rules of Civil Procedure, a
district court must dismiss a complaint if it lacks
subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). When
evaluating a motion to dismiss, the court must "treat
the complaint's factual allegations as true ... and must
grant plaintiff the benefit of all inferences that can be
derived from the facts alleged." Sparrow v. United
Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)
(internal quotation marks omitted). However, courts "are
not bound to accept as true a legal conclusion couched as a
factual allegation ... or to accept inferences drawn by
plaintiffs if such inferences are unsupported by the facts
set out in the complaint." Trudeau v. Fed. Trade
Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (internal
quotation marks and citations omitted). Because Rule 12(b)(1)
motions go to a court's jurisdiction, the court "may
consider materials outside the pleadings in deciding whether
to grant a motion to dismiss for lack of jurisdiction."
Jerome Stevens Pharm., Inc. v. Food & Drug
Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005). The
plaintiff bears the burden of demonstrating subject matter
jurisdiction. Rempfer v. Sharfstein, 583 F.3d 860,
868 (D.C. Cir. 2009).
Ms. Fleming Lacks Constitutional Standing
tribal defendants argue that the plaintiffs lack
constitutional standing to bring their claims because they
have not alleged that they have suffered an injury in fact
caused by the tribal defendants' violation of the Nash
Order. Tribal Defs.' Mem. Supp. Mot. Dismiss at 10. The
federal defendants contend that Ms. Fleming lacks
constitutional standing because the alleged injury she
suffered was not caused by the federal defendants, and cannot