Burley v. United States
| Decision Date | 19 June 2019 |
| Docket Number | No. 18-934L,18-934L |
| Parties | MASHICHIQUE EARL S.M. BURLEY, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
NOT FOR PUBLICATION
Takings; Claim for the Taking of Tribal Lands Brought by Pro Se Individual; Individual Claims; Claims Barred by Statute of Limitations.
Mashichique Earl S.M. Burley, Burlington, MA, pro se.
Amarveer S. Brar, Trial Attorney, with whom was Jean E. Williams, Deputy Assistant Attorney General, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, for defendant.
The court has before it defendant's motion to dismiss, which is brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC). See ECF No. 10. Plaintiff filed a response to the motion to dismiss, titled "Notice of Demandant's Memorandum and Affidavit in Response to Motion to Dismiss by United States and Motion to Set Aside Tenant's Motion." See ECF No. 11. The government has also filed a reply brief. See ECF No. 18. For the reasons stated below, defendant's motion is GRANTED.
The court acknowledges that pro se plaintiffs "are not expected to frame issues with the precision of a common law pleading." Roche v. USPS, 828 F.2d 1555, 1558 (Fed. Cir. 1987). Therefore, plaintiff's complaint has been reviewed carefully to ascertain whether, given the most favorable reading, it supports jurisdiction in this court. The complaint contains a narrative of the events underlying this suit that clearly identifies a takings claim, and it is to this claim that the court now turns.
In this suit, plaintiff Mashichique Earl S.M. Burley seeks to recover $77.7 billion for "treaty violations and illegal takings." ECF No. 7 at 3 (plaintiff's notice). This sum is based on the estimated value of approximately seven million acres in South Dakota, Nebraska and Oklahoma alleged to have been taken from The Ponca Tribe of Indians (hereinafter, Ponca Indians). Id. at 2-3; see also ECF No. 1 at 4, 15-16 (complaint); ECF No. 15 at 6 (). The complaint alleges that individual tribal members may assert the tribe's rights against the United States. ECF No. 1 at 10 (citing United States v. Dion, 476 U.S. 734 (1986)). The complaint also asserts that plaintiff is the "Sovereign Hereditary Ponca . . . Chief and U.S. Treaty Holder." Id. at 2.
The complaint also references the "fractionalization" of land now owned by the Ponca Indians, due to the "passage and implementation" of the "General [Allotment] Act of 1887, 24 Stat. 388," or "Dawes Act."1 Id. at 3. According to plaintiff, the Dawes Act was, "with respect to The Ponca Tribe of Indians, . . . illegal." Id. As alleged in the complaint, land belonging to the Ponca Indians in Oklahoma was taken due to the passage of the Dawes Act and the "failed fiduciary trust performance by the United States Government." Id.
In addition, the complaint describes some interactions plaintiff and his mother had with the Bureau of Indian Affairs (BIA). These include a request for "an inventory of land owned by Zella Pugh." Id. at 13. The response, according to plaintiff, was "grossly understated." Id. The BIA is also reputed to have "illegally" probated Zella Pugh's estate. Id. The complaint asserts that plaintiff "appealed the initial probate decisions" on a pro se basis. Part of the relief requested in the complaint is alleged to be owed to plaintiff's family. Id. at 15-16.
In sum, the court discerns three potential claims in this suit, when all of the allegations of the complaint are considered. First, plaintiff brings a takings claim against the United States regarding approximately 7,000,000 acres of land taken from the Ponca Indians. Second, plaintiff appears to challenge the allotment of land in Oklahoma that belonged to the Ponca Indians. Third, plaintiff appears tobring a claim regarding land owned by him and his family. The court will consider each of these claims in the analysis section of this opinion.
When reviewing a complaint to determine its jurisdiction over a plaintiff's claims, this court must presume all undisputed factual allegations to be true and construe all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988) (citations omitted). Plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Reynolds, 846 F.2d at 748 (citations omitted). If jurisdiction is found to be lacking, this court must dismiss the action. RCFC 12(h)(3).
It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) "when the facts asserted by the claimant do not entitle him to a legal remedy." Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). When considering a motion to dismiss brought under RCFC 12(b)(6), "the allegations of the complaint should be construed favorably to the pleader." Scheuer, 416 U.S. at 236. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The court begins its analysis with a review of this court's subject matter jurisdiction under both the Tucker Act and the Indian Tucker Act. The court next discusses the six-year statute of limitations for suits brought in this court. The court then turns to plaintiff's claims asserting the tribal rights of the Ponca Indians. Finally, the court considers plaintiff's individual land-based claims.
The Tucker Act delineates this court's jurisdiction. 28 U.S.C. § 1491 (2012). That statute "confers jurisdiction upon the Court of Federal Claims over the specified categories of actions brought against the United States." Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) (citations omitted). These include money damages claims against the federal government foundedupon the Constitution, an act of Congress, a regulation promulgated by an executive department, any express or implied contract with the United States, or any claim for liquidated or unliquidated damages in cases not sounding in tort. Id. (citing 28 U.S.C. § 1491(a)(1)).
The Indian Tucker Act, in its entirety, states as follows:
The United States Court of Federal Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group.
28 U.S.C. § 1505 (2012). Only tribal groups, not individual members of Indian tribes, may sue under this statutory provision. E.g., Fields v. United States, 423 F.2d 380, 383 (Ct. Cl. 1970) (citation omitted), Whiting v. United States, 99 Fed. Cl. 13, 16 (2011). In addition, as the plain text of section 1505 indicates, the Indian Tucker Act only provides jurisdiction in this court for claims arising after August 13, 1946. 28 U.S.C. § 1505: Ayanuli v. United States, No. 18-569L, 2018 WL 3486110, at *4 n.5 (Fed. Cl. July 19, 2018) (citations omitted).
A suit must be filed in this court within six years of the date on which the claim stated in the complaint first accrued. 28 U.S.C. § 2501 (2012). Further, the six-year statute of limitations in section 2501 is jurisdictional and cannot be equitably tolled by this court. FloorPro, Inc. v. United States, 680 F.3d 1377, 1380-81 (Fed. Cir. 2012) (citations omitted). In other words, extenuating circumstances cannot excuse the filing of a claim that arose more than six years before suit was filed in this court,
Before turning, specifically, to the two tribal claims that may be discerned in plaintiff's complaint, the court considers two general challenges to these tribal claims raised by defendant. According to the government, at least two barriers to suit prevent this court from considering claims founded on the tribal rights of the Ponca Indians in a suit brought by Mashichique Earl S.M. Burley. First, defendantnotes that individual members of an Indian tribe cannot assert claims that are founded on the tribe's rights or property, as opposed to that individual's rights or property. ECF No. 10 at 13-15. Second, defendant argues that RCFC 83.1 does not permit a pro se litigant to represent anyone except himself and members of his immediate family. Id. at 15-16. Both of these challenges have merit.
The government notes, first, that although there are two federally-recognized tribes of Ponca Indians, plaintiff is not acting in an official capacity for either tribe according to the public records for those tribes. ECF No. 10 at 9 & nn.1-2. Nor does the complaint contain any allegation that plaintiff holds office in the tribal governments of either the Ponca Tribe of Indians of Oklahoma or the Ponca Tribe of Nebraska. Although plaintiff makes numerous allegations regarding his status as a hereditary chief of the Ponca Indians and of his descent from Ponca Indian chiefs who signed treaties with the United States in the 1800s, his claim that he is the official representative of a federally-recognized Indian tribe is not supported by the record before the court. Cf. ECF No. 11 at 7 (...
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