Davis ex rel. Davis v. U.S.

Decision Date10 September 2003
Docket NumberNo. 02-6198.,02-6198.
Citation343 F.3d 1282
PartiesSylvia Davis, as Guardian and Next Friend for Donnell E. Davis; Dosar-Barkus Band of the Seminole Nation of Oklahoma; Bruner Band of the Seminole Nation of Oklahoma, Plaintiffs-Appellants, v. UNITED STATES of America; Department of Interior; Bureau of Indian Affairs; Gale Norton, Secretary of the Interior, her agents, employees and successors; Neal A. McCaleb, Assistant Secretary of the Interior for Indian Affairs, his agents, employees and successors; Gloria Spybuck, Superintendent, Bureau of Indian Affairs, Wewoka Agency; and Jeanette Hanna, Regional Director, Bureau of Indian Affairs, Eastern Oklahoma Regional Officer, her agents, employees and successors, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Franklin B. Velie of Salans Hertzfeld Heilbronn Christy & Viener, New York, N.Y. (Mark H. Goldey of Salans Hertzfeld Heilbronn Christy & Viener, New York, NY; Jonathan T. Velie and William B. Velie of Velie & Velie, Norman, OK, with him on the briefs), for Plaintiffs-Appellants.

Aaron P. Avila, Attorney, United States Department of Justice, Environment & Natural Resources Division, Washington, DC (Thomas L. Sansonetti, Assistant Attorney General; Robert G. McCambell, United States Attorney, Arvo Q. Mikkanen, Assistant United States Attorney, Oklahoma City, OK; John A. Bryson, Attorney, United States Department of Justice, Environment & Natural Resources Division, Washington, DC; Susan K. Ehlen, Charles R. Babst Jr., United States Department of the Interior, Office of the Solicitor, Tulsa, OK, of counsel, with him on the brief), for Defendants-Appellees.

Before MURPHY, BALDOCK and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Plaintiffs are two bands of the Seminole Nation of Oklahoma (the Tribe) — the Dosar Barkus and Bruner Bands — and Sylvia Davis as the guardian and next friend of Donnell E. Davis, a member of the Dosar Barkus Band. They claim that because of their African ancestry, they have been systematically denied benefits routinely provided to other members of the Tribe. Plaintiffs did not sue the Tribe itself but instead brought suit against the United States and various federal agencies and officials. Plaintiffs contend that (1) the federal officials wrongfully allowed the Tribe to exclude them from participation in some of its assistance programs, and (2) the Bureau of Indian Affairs (BIA) improperly refused to issue Certificates of Degree of Indian Blood (CDIBs) to members of the Plaintiff-bands. They seek declaratory and injunctive relief.

The district court initially dismissed the case for failure to join an indispensable party, the Tribe. Davis v. United States, No. CIV-96-1988-M, slip op. at 10 (W.D.Okla. Mar.20, 1998). On appeal we affirmed in part, reversed in part, and remanded to the district court for further consideration. Davis v. United States, 192 F.3d 951 (10th Cir.1999) (Davis I). On remand the district court again dismissed Plaintiffs' claims. Davis v. United States, 199 F.Supp.2d 1164 (W.D.Okla.2002) (Davis II). We now hold that (1) the district court did not abuse its discretion in determining that the Tribe is an indispensable party with respect to the wrongful-exclusion claim, and (2) the district court correctly ruled that it lacked jurisdiction to hear the CDIB claim because Plaintiffs failed to show that they had exhausted their administrative remedies. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

Our discussion of the historical background can be brief because of the thorough treatment in Davis I and Davis II. The Seminole Nation was formed after the European conquest of America. In addition to members of Native American ancestry, it also includes members of African ancestry, descendants of escaped slaves who began living among Native American groups in the then-foreign territory that became Florida. In 1823 the Seminole Nation's Florida lands were ceded to the United States by the Treaty of Camp Moultrie. Thereafter, most of the Seminole Nation's people, including those of African ancestry, were forcibly removed to what is now Oklahoma.

After removal the Tribe entered into a treaty with the United States addressing the rights of its members of African descent, the "Estelusti." That treaty, which we will refer to as the Treaty of 1866, contains the following language:

[I]nasmuch as there are among the Seminoles many persons of African descent and blood, who have no interest or property in the soil, and no recognized civil rights, it is stipulated that hereafter these persons and their descendants, and such other of the same race as shall be permitted by said nation to settle there, shall have and enjoy all the rights of native citizens, and the laws of said nation shall be equally binding upon all persons of whatever race or color who may be adopted as citizens or members of said tribe.

Treaty with the Seminole Indians, Mar. 21, 1866, U.S.-Seminole Nation of Indians, Art. II, 14 Stat. 755, 756. Notwithstanding this sweeping language, the United States itself continued to distinguish the Estelusti from tribal members of Native American ancestry.

For instance, when the Dawes Commission in 1906 created official membership rolls for the Seminole Nation of Oklahoma, it created two rolls, one for those of Native American ancestry (the "Seminole Blood Roll") and one for the Estelusti (the "Freedmen Roll"). A member of mixed ancestry was classified in accordance with maternal ancestry. Today, these membership rolls, often referred to as the "Dawes Rolls," are authoritative evidence of tribal membership. Any person who can show descent from a person listed on either of the two rolls is recognized as a member of the Tribe.

The Tribe's members are divided among 14 bands. The two Plaintiff-bands consist entirely of descendants of those listed on the Freedmen Roll. Even as tribal members, however, the Estelusti do not receive full membership benefits. Participation in some of the Tribe's programs requires a CDIB card, "the BIA's certification that an individual possesses a specific quantum of Indian blood." Davis I, 192 F.3d at 956.

A member of the Tribe can obtain a CDIB card by proving a specified relationship to a person listed on the Seminole Blood Roll. A person who proves the same relationship with respect to a person listed on the Seminole Freedmen Roll, however, is not entitled to a CDIB. In a letter dated October 4, 1995, the Superintendent of the Wewoka Agency of the Bureau of Indian Affairs explained this differential treatment:

The Certificate of Degree of Indian Blood makes or infers no mention of Tribal Membership. The policy states that my responsibility is to certify one[']s Indian blood when acceptable proof of relationship to an individual enrolled on specific rolls of particular tribes [is presented].... [T]here are persons listed on the Freedman roll who were part Indian. As you know, the Seminole Nation follows maternal lineage, for example, if the person's mother was [F]reedman and the father was Indian by blood, the person was enrolled in the [F]reedman roll. This person was still part Indian and he/she and his/her descendants would be eligible to receive a [CDIB].... Our policy is not to deny [Freedmen CDIBs], but to state that adequate proof of relationship to a person with Indian blood has been provided by them.... Stated simply, if a Freedman band member or anyone else applies for a [CDIB] that cannot provide acceptable proof of relationship to a Seminole Indian by blood, they will be denied a [CDIB].

Aple. Supp.App. at 168-69. According to Plaintiffs, many members of the Dosar Barkus and Bruner Bands of the Seminole Nation of Oklahoma have been denied CDIBs under the BIA's policy. Consequently, members of the Plaintiff-bands have been excluded from participation in programs for which CDIB cards are required.

Among the programs to which members of the Plaintiff-bands have been denied access are what the parties refer to as judgment-fund programs. These programs are supported by a $56 million judgment awarded to "the Seminole Nation as it existed in Florida on September 18, 1823," Davis I, 192 F.3d at 955-56 (internal quotation marks omitted; emphasis added), as compensation for the 1823 taking of its Florida lands. Before Congress released the judgment funds for the use of the Tribe, the BIA recommended that it exclude the Estelusti from participation because the Estelusti were not officially recognized as members of the Tribe until the Treaty of 1866.

Congress did not, however, specifically exclude the Estelusti; it simply allocated the Tribe's share of the judgment to the "Seminole Nation of Oklahoma." Act of April 30, 1990, Pub.L. No. 101-277, § 2(a)(1), 104 Stat. 143, 143 ("Distribution Act"). (The remainder of the funds were awarded to "the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida and the independent Seminole Indians of Florida." Distribution Act, § 2(a)(2), 104 Stat. at 143.) Instead of creating its own detailed distribution plan for use of the funds, Congress allowed the Tribe, in conjunction with the Secretary of the Interior, to propose its own plan so long as that plan "provide[d] that not less than 80 per centum [of the Tribe's judgment fund] ... be set aside and programmed to serve common tribal needs, educational requirements and such other purposes as the circumstances of the Seminole Nation of Oklahoma may determine." Distribution Act, § 3(a) & § 4(a), 104 Stat. at 143-44.

Thereafter, the Tribe's General Council adopted a proposed distribution plan. The plan submitted to Congress generally provided that the Tribe's judgment funds would be used to support programs in such areas as "[h]ealth, education, [and] social services"; but it did not describe any programs specifically. Plan for the Use of the Seminole Nation of Oklahoma Indian Judgment...

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