Kialegee Tribal Town v. Zinke

• Decision Date: 07 September 2018
• Docket Number: Civil Action No. 17-cv-1670 (CKK)
• Parties: KIALEGEE TRIBAL TOWN, Plaintiff v. Ryan K. ZINKE, in his official capacity as Secretary of the Department of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

330 F.Supp.3d 255

KIALEGEE TRIBAL TOWN, Plaintiff

v.Ryan K. ZINKE, in his official capacity as Secretary of the Department of the Interior, et al., Defendants.

Civil Action No. 17-cv-1670 (CKK)

United States District Court, District of Columbia.

Filed September 7, 2018

Moises T. Grayson, Pro Hac Vice, Tyler A. Mamone, Pro Hac Vice, Blaxberg, Grayson, Kukoff & Forteza, P.A., Miami, FL, Dennis Jeffrey Whittlesey, Law Office Of Dennis Whittlesey, Washington, DC, for Plaintiff.

Dedra Seibel Curteman, Jody Helen Schwarz, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

This suit arises from Plaintiff Kialegee Tribal Town's request that this Court grant declaratory and injunctive relief in its favor in connection with its claims that Plaintiff is a successor to the Creek Nation, and as such, has treaty-protected rights of shared jurisdiction over land within the boundaries of the historic Creek Nation reservation. Pending before this Court is Federal Defendants' Motion to Dismiss Plaintiff's Amended Complaint, brought by Ryan K. Zinke, in his official capacity as Secretary of the United States Department of the Interior; John Tahsuda, III, in his official capacity as Acting Assistant Secretary for Indian Affairs; and the United States Department of the Interior ("Interior") (collectively, the "Federal Defendants"). Federal Defendants have moved to dismiss Plaintiff's Amended Complaint pursuant to Federal Rules of Civil Procedure Rule 12(b)(1), for lack of subject matter jurisdiction, and Rule 12(b)(6), for failure to state a claim.

After reviewing the parties' submissions,¹ relevant case law and applicable statutory authority, the Court GRANTS Defendants' Motion to Dismiss on grounds that Plaintiff's Amended Complaint fails to state a claim. A separate Order accompanies this Memorandum Opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. History of the Creek Nation and Kialegee Trial Town

Plaintiff Kialegee Tribal Town ("Plaintiff" or "Kialegee") is "an Indian Tribe that is federally-recognized pursuant to the provisions of the Oklahoma Indian Welfare Act of June 26, 1936, 49 Stat. 1967." Am. Compl., ECF No. 27, ¶ 3.² This case centers on the issue of whether Plaintiff, a member of the historic Creek [N]ation, is included under the treaties signed by the historic Creek Nation. Plaintiff's position is that, "as a federally-recognized Indian Tribe and member of the historic Creek Nation, [it] has jurisdiction over all lands within the Creek Reservation as land owned in common with two other federally-recognized Creek Tribal Towns and the federally recognized Muskogee Creek Nation ("MCN") in accordance with treaties entered into between Kialegee and the United States and as read in context with the Indian Canon of Construction." Id. Defendant's position is that, "since the removal of the Creeks in 1832 to what is now Oklahoma, federal treaties and federal legislation pertaining to the Creek Reservation in Oklahoma have been exclusively with the Muscogee (Creek) Nation, not the tribal towns." Fed. Defs.' Mem. at 8.³

To put this argument in historic context, the Court looks briefly at the history of the Creek Nation. The Creek Nation, "historically and traditionally, is actually a confederacy of autonomous tribal towns, or Talwa, each with its own political organization and leadership." Harjo v. Andrus , 581 F.2d 949, 951 n.7 (D.C. Cir. 1978). "Between 1790 and 1866, the Creek Confederacy, as a collection of talwas, entered into several treaties with the United States[,]" and those treaties, which "collectively referred to a ‘Creek Nation’, the ‘Creek Tribe’ and ‘the Creeks’ " reserved lands to the "talwas and their larger use and subsistence areas held in common with other Creeks." Am. Compl. ¶ 44.⁴

After the ratification of the United States Constitution in 1788, the United States entered into a treaty with the Creeks on June 29, 1796 (the "1796 Treaty"), and one of the signatories to the 1796 Treaty is the Kialegee. See Am. Compl., Ex. A [1796 Treaty]. In March 1814, General Andrew Jackson led a force that killed more than 1,000 Creeks in Alabama during the Red Stick War, and that controversy was concluded by the Treaty of Fort Jackson (also known as the "Treaty With The Creeks, 1814"), which involved the Creeks' ceding 22 million acres of land in the Southeast United States to the United States. Am. Compl. ¶¶ 21-22; see also Am. Compl. Ex. B [Treaty With The Creeks, 1814]. Two signatories to the Treaty of Fort Jackson are identified as "Kialijee," designating the Kialegee people from the Kialijee Creek, "which was part of the Creek Confederacy as it existed in Alabama prior to removal." Am. Compl. ¶¶ 22-23.

"In the 1820's, the federal government adopted a policy to forcibly remove the Five Civilized Tribes [which included the Creek Nation] from the southeastern United States and relocate them west of the Mississippi River, in what is today Oklahoma."⁵ Indian Country, U.S.A., Inc. v. State of Oklahoma , 829 F.2d 967, 971 (10th Cir. 1987) (citation omitted); see Am. Compl. Paragraphs 25-27. This policy became formal law on May 28, 1830, when then-President Andrew Jackson signed into law the "Indian Removal Act." Am. Compl. ¶ 26. This policy of removal "ultimately resulted in the forcible relocation of the Creek, Cherokee, Seminole, Choctaw and Chickasaw tribes to what is presently the state of Oklahoma." Am. Compl. ¶ 31. Plaintiff claims that Kialegee's "place as a Creek treaty tribe was established well before [this] removal period" because it was "a signatory to the 1796 Treaty." Id.

By means of the Treaty With The Creeks, 1832 ("Treaty of 1832"), the Creeks ceded their homelands in the eastern United States in exchange for lands in the western United States. See 7 Stat. 366 (1832) (stating that "The Creek country west of the Mississippi shall be solemnly guarantied [sic] to the Creek Indians[.]") (art. 14); Am. Compl. ¶ 27. The Creek Treaty of February 14, 1833, between the Creeks and the United States, was supposed to "establish boundary lines which [would] secure a country and permanent home to the whole Creek nation of Indians[.]" Am. Compl. ¶ 44(f) (emphasis omitted). By its terms, the Treaty of 1833 establishes that land assigned to the Creek Indians "shall be taken and considered the property of the whole Muscogee or Creek Nation, as well as those now residing upon the land." Am. Compl Paragraph 48. On June 14, 1866, a treaty was signed between the Creeks and the United States whereby the Creeks were to cede a western portion of their territory to the United States for payment in a certain amount. Am. Compl. ¶ 34 (citing Treaty of 1866, Art. III).

On October 12, 1867, the Creeks adopted a constitution and a code of laws for the "Muskogee Nation" (which differs from the present Muskogee Nation). Am. Compl. ¶ 36. "In 1893, Congress created the Dawes Commission to negotiate with the Five Civilized Tribes" to extinguish tribal land title and develop an allotment plan." Indian Country , 829 F.2d at 977 (citation omitted). In 1898, Congress enacted the Curtis Act, whereby "all land was taken from the entire Creek people, and allotments were given to tribe members of no more than 160 acres per tract." Am. Compl. ¶ 38.

B. The Kialegee Tribal Town

In 1934, Congress passed the Indian Reorganization Act ("IRA") of 1934, ch. 576, 48 Stat. 984 (codified as amended at 25 U.S.C. §§ 5101, et seq. ), which was "designed to improve the economic status of Indians by ending the alienation of tribal land and facilitating tribes' acquisition of additional acreage and repurchase of former tribal domains." Fed. Defs.' Mem. at 11 (citing Cohen's Handbook of Federal Indian Law , Section 1.05 at 81 (Nell Jessup ed., 2012) ). That Act provided for tribal self-government pursuant to tribally adopted constitutions. 25 U.S.C. § 5123. Pursuant to Section 5108, the Secretary of the Interior was authorized "to acquire ... any interest in lands ... for the purpose of providing land for Indians." 25 U.S.C. § 5108 ; Match-E-Be-Nash-She Wish Band of Pottawatomi Indians v. Patchak , 567 U.S. 209, 226, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012) (recognizing that "[l]and forms the basis of [tribal] economic life, providing the foundation for tourism, manufacturing, mining, logging, ... and gaming") (internal quotation marks and citations omitted) ). Certain sections of the IRA are inapplicable to tribes in Oklahoma. See 25 U.S.C. § 5118.

In 1936, Congress passed the Oklahoma Indian Welfare Act of 1936 ("OIWA"), which allowed "any recognized tribe or band of Indians residing in Oklahoma .... to organize for its common welfare and to adopt a constitution and bylaws, under such rules and regulations as the Secretary of the Interior may prescribe." Am. Compl. ¶ 40, n. 7. Plaintiff Kialegee is a federally recognized Indian tribe, organized under Section 3 of the OIWA, which first received federal recognition in 1936, and is governed in accordance with a constitution and bylaws that were approved by the Assistant Secretary of the Interior, on April 14, 1941, and ratified by the town members on June 12, 1941. Am. Compl. ¶ 41; see Oklahoma v. Hobia , 775 F.3d 1204, 1205 (10th Cir. 2014), cert den. , ––– U.S. ––––, 136 S.Ct. 33, 193 L.Ed.2d 24 (2015). Kialegee also has a corporate charter that was approved by the Assistant Secretary of the Interior on July 23, 1942, and ratified by town members on September 17, 1942, which states that "[n]o property rights or claims of the Kialegee Tribal Town existing prior to the ratification of this Charter shall be in any way impaired by anything contained in this Charter [and further,] [t] the Tribal Town ownership of unallotted lands, whether or not occupied by any particular individuals, is hereby expressly recognized." Am. Compl. ¶¶ 41, 43 (referencing the Kialegee Corporate Charter at 6) (emphasis omitted).

C. ...