Tanner-Brown v. Jewell

• Decision Date: 27 January 2016
• Docket Number: Civil Action No.: 14-1065 (RC)
• Citation: 153 F.Supp.3d 102
• Parties: Leatrice Tanner-Brown, and Harvest Institute Freedman Federation, LLC, Plaintiffs, v. Sally Jewell, Secretary of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

153 F.Supp.3d 102

Leatrice Tanner-Brown, and Harvest Institute Freedman Federation, LLC, Plaintiffs,

v.Sally Jewell, Secretary of the Interior, et al., Defendants.

Civil Action No.: 14-1065 (RC)

United States District Court, District of Columbia.

Signed January 27, 2016

Paul A. Robinson, Jr., Law Office of Paul Robinson, Memphis, TN, for Plaintiffs.

Stacey Bosshardt, U.S. Department of Justice, Washington, DC, Patricia Miller, U.S. Department of Justice, Denver, CO, for Defendants.

MEMORANDUM OPINION

Granting Defendants' Motion to Dismiss

RUDOLPH CONTRERAS

, United States District Judge

I. INTRODUCTION

Plaintiffs Leatrice Tanner-Brown and the Harvest Institute Freedman Federation, LLC (“HIFF”) filed this class action against Defendants Sally Jewell, the Secretary of the United States Department of the Interior, and Kevin Washburn, the Assistant Secretary for Indian Affairs at the Department of the Interior, in their official capacities seeking an accounting relating to alleged breaches of fiduciary duties concerning land allotted to the minor children of former slaves of Native American tribes. See Compl., ECF No. 1.

Defendants have filed a motion to dismiss the Complaint in its entirety on a variety of grounds. See Defs.' Mot. Dismiss, ECF No. 12; Defs.' Mem. Supp. Mot. Dismiss (“Defs.' Mem. Supp.”), ECF No. 13. For the reasons explained below, the Court finds that Plaintiffs lack standing under Article III of the Constitution and will therefore grant Defendants' motion and dismiss the Complaint for lack of jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure

.

II. FACTUAL BACKGROUND

Plaintiffs filed this action under Rule 23 of the Federal Rules of Civil Procedure

on behalf of “all persons who are or were descendants of Freedmen minor allottees of the Five Civilized Tribes.” Compl. ¶ 13. Given the long, complex, and contentious history of the relationships between the United States, Native American Tribes, and the “Freedmen,” it is useful for the Court to begin by providing a very brief overview of the historical background in this case, as alleged by Plaintiffs, before turning to Plaintiffs' particular factual allegations and claims.

A. Historical Background and the 1908 Act

During the Civil War, the so-called “Five Civilized Tribes” (i.e., the Seminole, Cherokee, Choctaw, Creek, and Chickasaw Tribes) kept slaves and allied with the Confederacy. See Compl. ¶ 14. Beginning in 1866, following the defeat of the Confederacy, the United States entered into a series of treaties and agreements with the Five Civilized Tribes that, among other things, emancipated the Tribes' slaves and provided rights for the emancipated slaves (known as the “Freedmen”) within the Tribes. See id. ; see also, e.g., Treaty of 1866, 14 Stat. 755 (Seminole); Treaty of 1898, 30 Stat. 567 (Seminole); Treaty of 1866, 14 Stat. 785 (Creek); Treaty of 1897, 30 Stat. 496 (Creek); Treaty of 1901, 31 Stat. 861 (Creek); Treaty of 1866, 14 Stat. 799 (Cherokee); Treaty of 1866, 14 Stat. 769 (Choctaw and Chickasaw). The treaties had a general common purpose between them, but their provisions varied. See Compl. ¶ 14.

In 1898, the United States enacted The Curtis Act, 30 Stat. 495, which allotted the land of the Five Civilized Tribes. See id. ¶ 15. On May 27, 1908, the United States enacted the law that that is center to this case. See Act of May 27, 1908, 35 Stat. 312 (the “1908 Act”); Defs.' Mot. Dismiss Ex. A, ECF No. 13-1 (providing a copy of the 1908 Act). Section 1 of the 1908 Act removed all restrictions on land allotted to certain members of the tribes, including allottees enrolled “as freedmen.” 1908 Act § 1; see also Plains Commerce Bank v. Long Family Land & Cattle Co. , 554 U.S. 316, 331, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008)

(“The 1908 Act released particular Indian owners from ... restrictions ahead of schedule, vesting in them full fee ownership.”). Plaintiffs argue that the 1908 Act did not remove restrictions from land allotted to minors. See Compl. ¶ 15 (“In 1908, Congress removed restrictions from Freedmen allotments, except land allotted to minors.”). The heart of Plaintiffs' claim in this action lies with Section 6 of the 1908 Act, which provides in relevant part cited by Plaintiffs:

That the persons and property of minor allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the State of Oklahoma. The Secretary of the Interior is hereby empowered, under rules and regulations to be prescribed by him, to appoint such local representatives within the State of Oklahoma who shall be citizens of that State or now domiciled therein as he may deem necessary to inquire into and investigate the conduct of guardians or curators having in charge the estate of such minors, and whenever such representative or representatives of the Secretary of the Interior shall be of [the] opinion that the estate of any minor is not being properly cared for by the guardian or curator, or that the same is in any manner being dissipated or wasted or being permitted to deteriorate in value by reason of negligence or carelessness or incompetency of the guardian or curator, said representative or representatives of the Secretary of the Interior shall have power and it shall be their duty to report said matter in full to the proper probate court and take the necessary steps to have such matter fully investigated, and go to the further extent of prosecuting any necessary remedy, either civil or criminal, or both, to preserve the property and protect the interests of said minor allottees; and it shall be the further duty of such representative or representatives to make full and complete reports to the Secretary of the Interior. All such reports, either to the Secretary of the Interior or to the proper probate court, shall become public records and subject to the inspection and examination of the public, and the necessary court fees shall be allowed against the estates of said minors. The probate courts may, in their discretion appoint any such representative of the Secretary of the Interior as guardian or curator for such minors, without fee or charge.

And said representatives of the Secretary of the Interior are further authorized, and it is made their duty, to counsel and advise all allottees, adult or minor, having restricted lands of all of their legal rights with reference to their restricted lands, without charge, and to advise them in the preparation of all leases authorized by law to be made, and at the request of any allottee having restricted land he shall, without charge, except the necessary court and recording fees and expenses, if any, in the name of the allottee, take such steps as may be necessary, including bringing any such suit or suits and the prosecution and appeal thereof, to cancel and annul any deed, conveyance, mortgage, lease, contract to sell, power of attorney, or any other encumbrance of any kind or character, made or attempted to be made or executed in violation of this Act or any other Act of Congress, and to take all steps necessary to assist said allottees in acquiring and retaining possession of their restricted lands.

1908 Act § 6. Plaintiffs' claim is premised on their argument that Section 6 imposed a specific fiduciary duty on the Secretary of the Interior to account for any royalties derived from any leases on land allotted to minor Freedmen. See, e.g., Compl. ¶ 15; id. ¶ 24; id. ¶¶ 31–33; id. ¶ 36.

Plaintiffs generally allege that there was “[a] pervasive system of corruption and racism ... in Indian Country during the period following the discovery of oil and Oklahoma statehood.” Id. ¶ 25. They claim that land was allotted to Freedmen in an attempt to overcome “protections designed to prevent illiterate and uneducated allottees from being swindled by unscrupulous persons.” Id. They claim that the Department of the Interior, through district agents presumably acting pursuant to the 1908 Act, recovered money on behalf of minor allottees.¹ See id. ¶ 30.

B. Allegations Specific to Ms. Tanner-Brown and HIFF

Plaintiff Leatrice Tanner-Brown, who seeks to represent the putative class of Freedmen descendants, alleges that her grandfather, George Curls, was the son of former Cherokee slaves and was enrolled as a Cherokee Freedman pursuant to the Dawes Act when he was five years old. See Compl. ¶ 9. She further alleges that Mr. Curls received allotment deeds of 40 acres and 20 acres located in Nowata County, Oklahoma from the Cherokee tribe on December 5, 1910 when he was 13 years old. See id. ; id. ¶¶ 25–26. She alleges that Mr. Curls's allotted land was located “in the midst of oil rich Cherokee Country,” id. ¶ 25, and “[n]orth of the lucrative Alluwe Oil Field in the vicinity of the Cherokee Shallow Sands Oil Fields where oil was located a mere thirty-six feet below the surface in 1904,” id. ¶ 26. See also id. ¶ 28 (alleging that the allotments were “located in one of the oil rich areas that according to Deboe was ripe for exploitation”). She alleges that the Department of the Interior, however, has no record of any royalties derived from any lease on Mr. Curls's allotments. See id. ¶ 24.

The only other named Plaintiff, HIFF, which also seeks to represent the putative class, describes itself as a company “formed for the specific purpose of seeking redress through the courts to compel the United States to perform obligations owed under federal law to Freedmen.” Id. ¶ 10. HIFF states that its members, none of whom it specifically identifies, are “persons with African and Native American ancestry.” Id.

In this action, Plaintiffs claim that Defendants breached the fiduciary duties purportedly imposed by Section 6 of the 1908 Act and seek: (a) certification of this action as a class action under Rule 23(b) of the Federal Rules of Civil Procedure

;² (b) a declaration that Defendants owed fiduciary duties to minor Freedmen under the ...