The Quapaw Tribe of Oklahoma v. Blue Tee Corp.

• Decision Date: 02 September 2009
• Docket Number: Case No. 03-CV-0846-CVE-PJC.
• Citation: 653 F.Supp.2d 1166
• Parties: The QUAPAW TRIBE OF OKLAHOMA, et al., Plaintiffs, v. BLUE TEE CORP., et al., Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

653 F.Supp.2d 1166

The QUAPAW TRIBE OF OKLAHOMA, et al., Plaintiffs, v.BLUE TEE CORP., et al., Defendants.

Case No. 03-CV-0846-CVE-PJC.

United States District Court, N.D. Oklahoma.

September 2, 2009.

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Joseph H. Bates, III, Carney Williams Bates Bozeman & Pulliam PLLC, Little

Rock, AR, Bill Robins, III, Heard Robins Cloud Lubel & Greenwood LLP, Santa Fe, NM, Andrew Sher, Sher Law Firm PLLC, Cynthia B. Chapman, George Y. Nino, Michael A. Caddell, Caddell & Chapman, Houston, TX, Stephen Richard Ward, Conner & Winters, Tulsa, OK, for Plaintiffs.

Donald E. Scott, Bartlit Beck Herman Palenchar & Scott LLP, Denver, CO, Phil E. Pinnell, Loretta Finiece Radford, United States Attorney's Office, Paul David Kingsolver, Johnson Jones Dornblaser Coffman & Shorb, Jon M. Payne, Newton O'Connor Turner & Ketchum PC, Karissa K. Cottom, Hall Estill Hardwick Gable Golden & Nelson, Christopher David Wolek, George Eldon Gibbs, George R. Mullican, January Windrix, Kevin Scott Hoskins, Lauren Nicole Donald, Gibbs Armstrong Borochoff Mullican & Hart, Chris A. Paul, Robert Joseph Joyce, Andrea Treiber Cutter, Joyce & Paul PLLC, Andrea Treiber Cutter, Joyce & Paul PLLC, Tulsa, OK, Heather Elizabeth Gange, Michael D. Rowe, Washington, DC, Rebecca Joy Schwartz, Stanley D. Davis, John K. Sherk, III, Kimberly Sandner Goff, Kirk Forbes Marty, Mark Douglas Anstoetter, Shook Hardy & Bacon LLP, Kansas City, MO, Carlye Jimerson, Colin Hampton Tucker, Denelda Richardson, John H. Tucker, Theresa Noble Hill, Rhodes Hieronymus Jones Tucker & Gable, Donald E. Scott, Bartlit Beck Herman Palenchar & Scott LLP, Denver, CO, Charles David Goerisch, Daniel L. Massey, Richard A. Ahrens, Robert J. Will, Lewis Rice & Fingersh LC, St. Louis, MO, Christopher R. Gibson, John R Powers, III, Archer & Greiner, Haddonfield, NJ, for Defendants.

OPINION AND ORDER

CLAIRE V. EAGAN, Chief Judge.

Now before the Court are DefendantBurlington Northern Santa Fe Railway Company's Motion for Summary Judgment(Dkt. ## 616, 628) and the Motion for Summary Judgment on Phase I Issues and Brief in Support on Behalf of DefendantsBlue Tee Corp., The Doe Run Resources Corporation, Gold Fields Mining, LLC, and NL Industries, Inc.(Dkt.# 618).Defendants collectively assert that the Quapaw Tribe of Oklahoma (the Tribe) lacks standing to pursue any claim on behalf of its members because the claims asserted in the fifth amended complaint and any respective damages belong exclusively to the individual Tribal members.The Tribe responds that it has parens patriae standing to assert claims to protect its quasi-sovereign interest in the health and well-being of Tribal members, without interfering with the rights of its members to pursue their own claims.

I.Background

In 1818, the Tribe entered a treaty with the United States "acknowledging themselves to be under the protection of the United States, and of no other state, power, or sovereignty, whatsoever."Treaty with the Quapaw, 1818 art. 1, August24, 1818, 7 Stat. 176.The United States and the Tribe entered a new treaty in 1833 in which the Tribe agreed to cede its existing reservation to the United States in exchange for land now located within the State of Oklahoma.Treaty with the Quapaw, 1833, May 13, 1833, 7 Stat. 424.During the Civil War, the Tribe aligned with the Confederacy and temporarily terminated its relationship with the United States.However, the Tribe entered a new treaty in 1865 reestablishing its relationship with the United States.Dkt. # 620, Ex. 2.

As early as 1889, Tribal leaders discussed the possibility of allotting land to individual Tribal members in 200 acre allotments.The Tribe favored 200 acre allotments instead of the more common 160 acre allotments, because approximately 18,000 acres would be left for settlement by non-Quapaws if each Tribal member received only 160 acres.On March 23, 1893, the Tribe passed a resolution approving 200 acre allotments to each Tribal member.In 1894, the Tribe realized that approximately 12,000 acres were not allotted, and an 40 additional acres were allotted to each Tribal member.Congress passed the Quapaw Allotment Act in 1895 and "ratified and confirmed" the allotments issued to Tribal members.Congress also imposed a 25 year restriction on alienation of land within the former Quapaw Reservation,¹ and subsequent acts of Congress extended the restrictions on alienation until 1971.

In the early twentieth century, lead and zinc were discovered in southeastern Kansas and northeastern Oklahoma.The region became known as the Tri-State Mining District.Most of the large-scale mining operations occurred in the 1920s and 1930s, but some mining operations continued in the region into the 1970s.DefendantBlue Tee Corp.(Blue Tee) was formerly known, inter alia, as American Zinc Company, and plaintiffs allege that Blue Tee or its successor entities engaged in mining activity from 1925 to 1973 in this region.²The Doe Run Resources Corp.(Doe Run) was formerly known as Kansas Explorations, Inc.Gold Fields Mining, LLC(Gold Fields) conducted mining operations as Tri-State Zinc, Inc., and NL Industries, Inc.(NL Industries) operated under the name St. Louis Smelting and Refining Company.These entities are referred to herein as the "mining defendants."There is no dispute that predecessor entities of the mining defendants conducted mining operations in the Tri-State Mining District.

As early as 1897, Congress allowed Tribal members to lease allotted land to mining companies, subject to oversight by the Department of the Interior for the protection of "incompetent" Tribal members.In 1909, Congress authorized the Secretary of the Interior to promulgate regulations for mining activity on allotted land.The parties agree that the Tribe was not involved with the lease or regulation of allotted land for mining purposes.In 1921, Congress extended the restriction on alienation of certain allotted lands and authorized the Secretary of the Interior to determine the terms and conditions for mineral leases on all allotted lands.However, the Secretary was also authorized to remove any restriction on alienation for land held by a Tribal member deemed "incompetent," and the Secretary could decide whether to grant a mining lease without consent of the Tribal member.The Secretary promulgated comprehensive regulations governing mining on restricted land in 1929.The regulations did not give the Tribe any role in the leasing process or permit the Tribe to regulate mining activity.The United States government had authority to review a mining company's request to remove underground support pillars, but a study released by the United States Army Corp of Engineers in January 2006 suggests that this authority was rarely exercised.Dkt. # 652, Ex. 9, at 36.Mining leases on unrestricted fee land were not subject oversight by the Department of the Interior.

Individual Tribal members are currently free to use their own land subject to some minimal oversight by the Tribe but, in recent years, the Tribe has taken a greater role in regulating the use of natural resources on restricted land and monitoring perceived environmental hazards.The record also supports the Tribe's assertion that it has used Tribal land and resources to preserve Tribal traditions and culture.However, individual Tribal members have authority to decide how their own land is used and individual Tribal members receive revenue from beneficial uses of their land.Dkt. # 620, Ex. 17, at 2-3;id., Ex. 18, at 3.For example, plaintiffFlorence Mathews testified at her deposition that she could give hunting or fishing leases or use natural resources on her land without approval of the Tribe.Id.,Ex. 14, at 3-7.The Tribe disputes that a significant number of Tribal members have benefitted from mining leases, but does not dispute that income from mining leases has gone to individual Tribal members rather than the Tribe itself.Dkt. # 620, Ex. 5, at 12, 17.Concerning the historical use of allotted lands, the Tribe disputes defendants' assertion that Tribal members voluntarily entered mining leases on allotted lands, and suggests that pressure from external sources or an involuntary declaration of a Tribal member's incompetence by the Secretary of the Interior were behind many of the mining leases, especially after 1921. Dkt. # 620, Ex. 7, at 5-7.

The parties do not dispute that the Tribe is economically stronger than it was in past years, and the Chairman of the Tribal Business Committee, John Berrey, states that the Tribe has "taken advantage of the opportunities that have arisen to us, either in the Indian Gaming Regulatory Act or Indian Consolidation Act or other legislation that's been passed."Dkt. # 652, Ex. 11, at 12.However, the Tribe disputes defendants' implication that the Tribe was weaker in terms of maintaining its cultural heritage in past years.With its strengthened economic condition, the Tribe has been able to purchase additional fee lands.The Tribe currently owns five parcels of land within Tar Creek.One of those parcels was purchased after 2001 and the remaining four parcels of land were purchased after 2005.The lands are treated as fee land subject to Tribal jurisdiction, but the mining defendants claim that their predecessor entities used the land for mining long before the Tribe had an ownership interest in the property.The parties have identified property used by the mining defendants for historical mining activity, and the Tribe acknowledges that it owns in fee simple only one parcel of land actually used for mining activity.³However, the Tribe states that much of the property historically used for mining is Tribal trust land or restricted fee land.The Tribe does not dispute that neither it nor Tribal members have any ownership interest in property formerly used for mining by NL Industries, but the Tribe states that it owns two...