The opinion of the court was delivered by: Hart, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs James Coleman, Jr., Helen Figures, B. Hammond,
Marshall Kelly, Ipetha Lewis, Brenda Phillips, Earl Reagan, Fred
Reagan, Mary Reagan, and Lonnie Whitaker ("Plaintiffs"), heirs
and descendants of Creek Indians, brought this action against the
United States of America Bureau of Indian Affairs ("United
States"), alleging that the United States, as trustee over lands
which were allotted to the plaintiffs' ancestors, has breached
its fiduciary duty by failing to sell the plaintiffs' land
advantageously or selling it at artificially low prices.
Plaintiffs request an accounting and damages and interest
allegedly accumulated since 1906.
This matter is presently before the Court on the United States'
motion to dismiss for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b). Plaintiffs allege jurisdiction
pursuant to 28 U.S.C. § 1331, 1346 and 1353 and that the amount
in controversy is more than $10,000.00. For the reasons set forth
below, the Court finds that jurisdiction is lacking and,
therefore, the defendant's motion to dismiss is granted.*fn1
Plaintiffs allege that they are heirs and descendants of
members of the Creek Indian Nation. The Creek Indians are one of
the "Five Civilized Tribes."*fn2 See Act of April 26, 1906. 34 Stat.
137, § 1. The Five Civilized Tribes entered into numerous
agreements with the United States, thereby relinquishing control
over large tracts of land situated in what is now the eastern
half of the State of Oklahoma. Two of those agreements are at
issue in this case. Act of March 1, 1901, 31 Stat. 861; Act of
April 26, 1906, 34 Stat. 137. According to those agreements, each
properly enrolled Creek would receive a portion of the ceded land
or its corresponding dollar value.
It is undisputed that plaintiffs' ancestors received title to
their respective allotments. Plaintiffs, however, allege that in
1906, and without due process of law or an accounting, the
Territorial Government of Oklahoma took over certain of the
allotted property, then valued at approximately $30.00 per acre.
Consequently, plaintiffs allege that the Territory of Oklahoma
became with the United States co-trustee*fn3 of the disputed
land for the benefit of the allottees.*fn4 Plaintiffs further allege
that between 1907 and 1920, the United States either sold the
disputed land at below market price or failed to sell to the
disadvantage of the plaintiffs and that the United States
permitted dissipation of the plaintiffs' property by improperly
enlarging the membership rolls of the Creek Nation. The
plaintiffs state, by supplementing their Amended Complaint, that
they only discovered the details of these alleged improprieties
in 1978 and 1979 while engaging in library research. They also
allege that their several written requests for accountings of
trust assets, commencing in the late 1930's and continuing
through 1979, have been denied by the United States.
In support of its motion to dismiss, the United States argues
that the plaintiffs' claims must be pursued in the Court of
Claims and not in a district court. This is because the
plaintiffs are members of one of the Five Civilized Tribes, which
tribes arguably are denied access to the district courts by the
terms of several acts of Congress.
The district courts shall have original jurisdiction
of any civil action involving the request of any
person, in whole or in part of Indian blood or
descent, to any allotment of land under any Act of
Congress or treaty.
but the provision shall not apply to any lands held
or on before December 21, 1911, by either of the Five
Civilized Tribes. . . .
Section 1353 is a recodification of 25 U.S.C. § 345, the latter
title dealing exclusively with Indian affairs. Thus § 345 also
prohibits to the Civilized Tribes access to the district courts
for claims relating to land allotted on or before December 21,
The parties have not cited any cases in which the proviso in §§
1353 or 345 regarding the Five Civilized Tribes has been
construed and we could find none.*fn5 However, the statute seems
clear: where, as here, claims relate to lands allotted before
1911, a member of one of the Five Civilized Tribes may not sue on
that claim in a district court. This apparent plain reading of §
1353 is yet more compelling ...