Davis v. U.S.

• Decision Date: 25 April 2002
• Docket Number: No. CIV-96-1988-M.,CIV-96-1988-M.
• Citation: 199 F.Supp.2d 1164
• Parties: Sylvia DAVIS, et al., Plaintiffs, v. THE UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

199 F.Supp.2d 1164

Sylvia DAVIS, et al., Plaintiffs, v. THE UNITED STATES of America, et al., Defendants.

No. CIV-96-1988-M.

United States District Court, W.D. Oklahoma.

April 25, 2002.

COPYRIGHT MATERIAL OMITTED

Jonathan T Velie, William Velie, Velie & Velie PC, Norman, OK, Mark A Strauss, Franklin B Velie, Mark H Goldey, Salans Hertzfeld Heilbronn, Christy & Viener, New York, NY, for plaintiffs.

Arvo Q Mikkanen, U.S. Attorney's Office, Oklahoma City, OK, Margaret M Sweeney, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Linda A Epperley, Muskogee, OK, for U.S., defendant.

Arvo Q Mikkanen, U.S. Attorney's Office, Oklahoma City, OK, Margaret M Sweeney, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Charles R Babst, Jr, U.S. Department of Interior, Tulsa Field Solicitors Office, Tulsa, OK, Dept. of Interior, defendant.

Arvo Q Mikkanen, U.S. Attorney's Office, Oklahoma City, OK, Margaret M Sweeney, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Bureau of Indian Affairs, Bruce Babbitt, ADA Deere, Roy Willis, Jim Fields, defendants.

ORDER

MILES-LaGRANGE, District Judge.

Before the Court is defendants' "Post-Remand Motion to Dismiss or, in the Alternative, for Summary Judgment," filed February 15, 2000 [docket no. 73]. On February 15, 2000, plaintiffs filed their "Memorandum of Law in Opposition to Defendants' Motion for Failure to Join an Indispensable Party" [docket no. 71], and on March 15, 2000, plaintiffs filed their "Memorandum of Law in Opposition to Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment" [docket no. 82]. On January 15, 2002, the Court ordered plaintiffs to file a brief explaining the bases of jurisdiction, including the requisite waiver of sovereign immunity, for each of their causes of action [docket no. 85]. On January 18, 2002, plaintiffs filed their "Supplemental Memorandum of Law Addressing the Jurisdictional Question Raised by the Court by Order Dated January 15, 2002" [docket no. 86]. On January 24, 2002, defendants filed their "Response to Plaintiffs' Supplemental Memorandum of Law Addressing the Jurisdictional Question Raised by the Court Order Dated January 15, 2002" [docket no. 88]. The Court, having thoroughly reviewed the parties' briefs, the extensive evidentiary record, relevant cases and governing law, makes its determination herein.

I. NATURE OF THE CASE

This cause of action was filed by the Dosar Barkus Band and the Bruner Band (the "Bands," "Freedmen," "Black Seminoles," or "Freedmen Bands"), two subsections of the Seminole Nation of Oklahoma (the "Seminole Nation," the "Tribe," or "Seminole Tribe"), and Sylvia Davis as Guardian and Next Friend for Donnell E. Davis, who is a member of the Dosar Barkus Band (collectively "plaintiffs") against the United States, the Department of the Interior, the Bureau of Indian Affairs ("BIA") and numerous administrators and employees of the Department of the Interior and the BIA (collectively "defendants"). Members of these Bands are members of the Seminole Nation who are of African or mixed African/Native American ancestry. Plaintiffs did not name the Seminole Nation of Oklahoma as a defendant.

Plaintiffs allege they are entitled to receive benefits from a $56 million judgment awarded to the Seminole Tribe in 1976. The money represents reparations awarded to the Seminole Tribe arising out of a claim filed by the Seminole Tribe against the United States for tribal lands taken in 1823 ("Judgment Fund" or "Judgment Fund Award"). Plaintiffs assert they are victims of racial discrimination and have been illegally excluded from participating in the Judgment Fund Award and programs funded by the same. Plaintiffs further assert they are entitled to receive Certificate of Indian Blood cards ("CDIB cards"), which entitle the cardholder to receive various benefits provided by the Seminole Nation. Plaintiffs allege the BIA has denied issuance of CDIB cards to members of the Seminole Nation who are of African descent. Plaintiffs seek both declaratory and injunctive relief. Plaintiffs request the Court order defendants to require the Seminole Nation to allow them to participate in the Judgment Fund Award and to provide plaintiffs benefits deriving from the Judgment Fund Award in a nondiscriminatory manner on the same basis that such benefits are provided to other members of the Seminole Nation. Plaintiffs further request the Court order defendants to deem them eligible for CDIB cards.

II. HISTORICAL BACKGROUND¹

A. Seminole Nation

The Seminole Nation is an Indian tribe comprised of people of both Native American and African descent. The Seminole Nation was formed after the European conquest of America. The members of the Seminole Nation who are of African descent are the descendants of African slaves who escaped the bondage of slavery and who resided among several Native American groups living in what is now known as Florida. The Seminoles are unique among Indian tribes in that they were not aboriginal. Instead, they are an entirely post-European phenomenon. The Seminoles were comprised of various separatists, secessionists and runaways from a variety of ethnic, political and linguistic Native American and African groups.

B. Black Seminoles

The Black Seminoles are descendants of African slaves. The African slaves, attempting to gain their freedom, escaped from Southern and Carribean slave masters in the 18th and 19th Centuries to present-day Florida. These escaped slaves became a part of the Native American culture, assimilating with the Native Americans that were inhabiting the area. The Black Seminoles contributed to the Native American culture acting as warriors, interpreters, negotiators and spies for them. They even dressed in Native American fashion. While some of the escaped slaves lived nominally as slaves of the Native Americans, many lived as free men and women. The Black Seminoles lived in their own villages, tilled their own fields, carried guns, were entrepreneurs and were homeowners.

It was in the 18th Century that this diverse group of Native American and African people, speaking several Native American and African languages, became known as "Seminoles." The People of African descent became known in the Seminole tongue as "Estelusti," which translates to "Black Seminoles."

Following the Civil War, the Black Seminoles were emancipated by the Thirteenth Amendment of the United States Constitution. Thereafter, all Black Seminoles (both those who had been slaves and those who had not) became known as "Freedmen."

C. Seminole Tribe Removal

Florida became a United States territory in 1821. Two years later, in the 1823 Camp Moultrie Treaty, Seminole lands in Florida were ceded to the United States. As a result of this transfer, the Seminoles, including the Black Seminoles, were forcibly removed from their home in Florida to what is present-day eastern Oklahoma. This forced removal, which occurred from 1838-1842, has come to be known as the "Trail of Tears." A small number of Seminoles continue to reside in Florida.

D. The 1866 Treaty

In 1866, the Seminoles and the United States entered into the Treaty of March 21, 1866, 14 Stat. 755 ("1866 Treaty"). The 1866 Treaty contains the following provision:

inasmuch 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.

The 1866 Treaty is the genesis of the formal recognition of plaintiffs' ancestral membership in the Seminole Nation.

Although the 1866 Treaty formally recognized plaintiffs' ancestors as members in the Seminole Nation who were to "have all the rights of native citizens," the Dawes Commission created two separate rolls for the Seminole Nation (the "Dawes Rolls").² The Dawes Rolls separated the Seminoles into two categories. The Seminoles of African descent were included in the "1906 Seminole Freedmen Roll," while the non-African descent Seminoles were included in the "1906 Seminole Blood Roll." A Seminole who was half Native American and half African was counted as a Freedman, while a Seminole who was merely one quarter Native American (but three quarters white) was included on the Blood Roll. The Dawes Commission made no effort to quantify and record the percentage of Native American blood of those listed on the Freedmen Roll, though many historians agree that many of those listed on the Freedmen Roll had mixed Native American ancestry. The Dawes Rolls are still considered the authoritative benchmark for determination of membership in the Seminole Nation.

E. Judgment Fund Award

In 1950 and 1951, the Seminole Nation and the Florida Seminoles filed separate claims with the Indian Claims Commission, seeking compensation for tribal lands in Florida ceded to the United States in 1823. On April 27, 1976, twenty-six years later, the Indian Claims Commission ruled in favor of the Seminoles and awarded $16 million to the "Seminole Nation as it existed in Florida on September 18, 1823." Seminole Nation of the State of Florida and Seminole Nation of Oklahoma v. United States, 387 Ind. Cl. Comm. 91 (Dockets 73 and 151). With interest, the judgment funds totaled approximately $56 million and were appropriated by Congress in the Act of June 1, 1976, 90 Stat. 597, 629.

Following the favorable Judgment Fund ruling, the BIA issued its "Research Report on the Seminole Judgment in Dockets 73 and 151 before the Indian Claims Commission" ("Results of Research Report"), in which...