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COLEMAN v. U.S. BUREAU OF INDIAN AFFAIRS

September 9, 1982

JAMES COLEMAN, JR., HELEN FIGURES, B. HAMMOND, MARSHALL KELLY, IPETHA LEWIS, BRENDA PHILLIPS, EARL REAGAN, FRED REAGAN, MARY REAGAN, AND LONNIE WHITAKER, PLAINTIFFS,
v.
THE UNITED STATES OF AMERICA BUREAU OF INDIAN AFFAIRS, DEFENDANT.



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

Factual Summary

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.

Lack of Jurisdiction

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.

28 U.S.C. § 1353

Section 1353 provides

  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, 1911.

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 ยง 1353 is yet more compelling ...


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