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Brown Fleming v. The Cherokee Nation

United States District Court, District of Columbia

May 31, 2019

RHONDA LEONA BROWN FLEMING, et al., Plaintiffs,
v.
THE CHEROKEE NATION, et al. Defendants.

          MEMORANDUM OPINION

          Thomas F. Hogan, Senior United States District Judge.

         Plaintiffs 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. 11].

         I. FACTUAL BACKGROUND

         The 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. ¶ 2.

         In a 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 added).

         The 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.[1] 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.

         II. PROCEDURAL BACKGROUND

         The 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].[2] 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.

         That 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.[3] 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].

         III. LEGAL STANDARD

         Under 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).

         IV. DISCUSSION

         A. Ms. Fleming Lacks Constitutional Standing

         The 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 be ...


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