UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KIALEGEE TRIBAL TOWN, Plaintiff v. RYAN K. ZINKE, in his official capacity as Civil Action No. 17-cv-1670 (CKK) SECRETARY of the DEPARTMENT OF THE INTERIOR, et al., Defendants.

MEMORANDUM OPINION (September 7, 2018)

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.

1 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,

.” 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.”

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

1 The Court’s consideration focused on the following documents: • Fed. Defs.’ Mot. to Dismiss Pl.’s Am. Compl. (“Fed. Defs.’ Mot.”), ECF No. 28, and the Mem. of Points and Auth. in support thereof (“Fed. Defs.’ Mem.”), ECF No. 28-1 • Pl.’s Opp’n to Fed. Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 30 • Fed. Defs.’ Reply in Support of Mot. to Dismiss (“Fed. Defs.’ Reply”), ECF No. 31.

In an exercise of discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). 2 While much of the historical background in this Memorandum Opinion derives from the Plaintiff’s Amended Complaint, the Court has also referenced legislation and caselaw. 2 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,

, 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

3 The page numbers cited herein reference the page numbers assigned by the Court’s Electronic Case Filing (“ECF”) system. 4 Plaintiff references: (1) The Creek Treaty of August 7, 1790; (2) The Creek Treaty of August 9, 1814; (3) The Creek Treaty of January 8, 1821; (4) The Creek Treaty of March 24, 1832; and (5) The Creek Treaty of February 14, 1833. Some of these treaties are discussed in more detail in this Memorandum Opinion. 3 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,

, 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

(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

5 Plaintiff notes that “[t]he term “Five Civilized Tribes” was used by the United States during the mid-nineteenth century to refer to the Cherokee, Choctaw, Chickasaw, Creek, and Seminole nations,” but the word “Civilized” was disrespectful because it “meant a qualification to exist for entire races based solely on their willingness to adopt norms and values unilaterally imposed on them by non-native peoples.” Am. Compl. at 10, n. 6. 4 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,

(codified as amended at

, 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.

. 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.”

; Match-

E-Be-Nash-She Wish Band of Pottawatomi Indians v. Patchak,

(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

5 citations omitted)). Certain sections of the IRA are inapplicable to tribes in Oklahoma. See

.

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,

(10th Cir. 2014), cert den.,

(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. The Lawsuit

Plaintiff filed its initial Complaint on August 17, 2017, against the Federal Defendants

and the Chairman of the National Indian Gaming Commission (“NIGC”). Plaintiff sought a

declaratory judgment that it exercises concurrent jurisdiction over the Creek Reservation in

Oklahoma with all Creek tribes, and an injunction that all lands within the Creek Reservation are

Plaintiff’s “Indian lands” for purposes of the Indian Gaming Regulatory Act (“IGRA”). Compl.,

6 ECF No. 1, ¶¶ 38, 40, 42, 44. More specifically, Plaintiff referred to the construction of a

restaurant facility known as the Red Creek Dance Hall and Restaurant, located on an Indian

allotment within the Creek Reservation in Broken Arrow, Oklahoma, where the allotment was

owned by Bim Stephen Bruner, an enrolled member of Kialegee (the “Bruner Allotment”).

Compl., ECF No. 1, ¶ 8. Plaintiff indicated further that “Defendant [had] publicly declared their

intention to take administrative and legal steps to oppose the Kialegee development of the Bruner

allotment.” Compl., ECF No. 1, ¶ 17.

In its Amended Complaint, for which a motion to amend was filed, unopposed, and leave

to file was granted, Plaintiff deliberately removed the Chairman of the NIGC as a defendant and

deleted several of the specific references to the Bruner allotment, seeming to focus instead on a

more general request that this Court enforce Plaintiff’s “rights” under historical treaties. 6

Plaintiff alleges that because Kialegee is a signatory to the Treaty of 1833 establishing the Creek

Reservation, the Creek Reservation is also considered Plaintiff’s Reservation and accordingly,

Kialegee may exercise jurisdiction over lands within the boundaries of the historic Creek

Reservation. Am. Compl., ECF No. 27, ¶¶ 2, 46-48, 56. Plaintiff alleges further that the

“[Federal] Defendants’ position is that the Muskogee Tribe alone exercises jurisdiction over the

entirety of those lands that were explicitly reserved for the ‘whole Creek Nation,’” Am. Compl.

¶¶ 51 (emphasis omitted), 64-65, and Defendants have “repeatedly violated 25 U.S.C. §[5123](f)

by blocking [Plaintiff] from jurisdiction on lands located within the Creek Reservation.” Am.

6 Plaintiff’s Complaint, dated August 17, 2017, initially focused more specifically on Defendants’ opposition to the development of the Bruner allotment and Plaintiff’s jurisdiction over that land, but because that issue was the subject of an April 26, 2017 decision by the Bureau of Indian Affairs, which was appealed to the IBIA, and Plaintiff had not exhausted its administrative remedies, Plaintiff shifted the focus in its Amended Complaint to an alleged general violation of its rights under various treaties. 7 Compl. ¶ 68. 7 In the instant case, Kialegee mentions its construction of a restaurant facility

located on an Indian allotment within the Creek Reservation (the aforementioned “Bruner

allotment”), and Kialegee claims jurisdiction over the land on which it is constructing the

restaurant facility as well as all lands within the Creek Reservation, in common with other

recognized Creek tribes in Oklahoma, based upon “various Creek Treaties with the United States

read in context with the Indian Canon of Construction.“ Am. Compl. ¶¶ 56-57.

II. LEGAL STANDARD

A. Subject Matter Jurisdiction under Rule 12(b)(1)

A court must dismiss a case pursuant to Federal Rule 12(b)(1) when it lacks subject matter

jurisdiction. In determining whether there is jurisdiction, the Court may “consider the complaint

supplemented by undisputed facts evidenced in the record, or the complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts.” Coalition for Underground

Expansion v. Mineta,

(D.C. Cir. 2003) (citations omitted); see also Jerome

Stevens Pharm., Inc. v. Food & Drug Admin.,

(D.C. Cir. 2005) (“[T]he

district court may consider materials outside the pleadings in deciding whether to grant a motion

to dismiss for lack of jurisdiction.”)

In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all

7 Plaintiff references

(f) in the Amended Complaint, but that section was transferred to

(f).

Departments or agencies of the United States shall not promulgate any regulation or make any decision or determination pursuant to the Act of June 18, 1934 . . ., or any other Act of Congress, with respect to a federally recognized Indian tribe that classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally recognized tribes by virtue of their status as Indian tribes.

(f). 8 factual allegations in the complaint and construe the complaint liberally, granting plaintiff the

benefit of all inferences that can be drawn from the facts alleged. See Leatherman v. Tarrant Cty.

Narcotics Intelligence & Coordination Unit,

(1993); Koutny v. Martin,

(D.D.C. 2007) (“[A] court accepts as true all of the factual allegations contained

in the complaint and may also consider ‘undisputed facts evidenced in the record’”) (internal

citations omitted). Despite the favorable inferences that a plaintiff receives on a motion to

dismiss, it remains the plaintiff’s burden to prove subject matter jurisdiction by a preponderance

of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency,

(D.D.C. 2000).

“Although a court must accept as true all factual allegations contained in the complaint when

reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff[‘s] factual allegations in

the complaint. . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a

12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd.,

(D.D.C. 2007) (internal citations and quotation marks omitted). A court need not

accept as true “a legal conclusion couched as a factual allegation” or an inference “unsupported

by the facts set out in the complaint.” Trudeau v. Fed. Trade Comm’n,

(D.C.

Cir. 2006) (quoting Papasam v. Allain,

(1986)).

B. Failure to State a Claim under Rule 12(b)(6)

Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on grounds that it

“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint

is not sufficient if it “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain

sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on

9 its face.” Twombly,

. “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal,

. “In evaluating a motion to dismiss, the

Court must accept the factual allegations in the complaint as true and draw all reasonable

inferences in favor of plaintiff.” Nat’l Postal Prof’l Nurses v. U.S. Postal Serv.,

(D.D.C. 2006).

When considering a Rule 12(b)(6) motion, courts may consider “the facts alleged in the

complaint, documents attached as exhibits or incorporated by reference in the complaint” or

“documents upon which the plaintiff’s complaint necessarily relies even if the document is

produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward

v. District of Columbia Dep’t of Youth Rehab. Servs.,

(D.D.C. 2011)

(internal quotation marks and citations omitted). The court may also consider documents in the

public record of which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao,

(D.C. Cir. 2007).

III. ANALYSIS

When bringing a lawsuit against the United States, a plaintiff must identify: (1) a source of

subject matter jurisdiction; (2) a waiver of sovereign immunity; and (3) a cause of action. United

American, Inc. v. N.B.C.-U.S.A. Housing, Inc. Twenty-Seven,

(D.D.C.

2005); see also Am. Rd. & Transp. Builders Ass’n v. Envtl. Prot. Agency,

, 80

(D.D.C. 2012), (where the court noted with approval the Government’s argument that neither

statute relied upon by the plaintiff waived sovereign immunity nor provided a cause of action, and

indicated further that the plaintiff needed to identify a source of jurisdiction), aff’d per curiam,

(D.C. Cir. Jan. 28, 2013)

10 A. Subject Matter Jurisdiction

There is no disagreement among the parties in this case that Plaintiff relies upon 28 § 1331,

the federal question jurisdictional statute, and

, governing actions brought by

tribes, to provide a source for this Court’s subject matter jurisdiction. Am. Compl. ¶ 6. Pursuant

to

, district courts are granted “original jurisdiction of all civil actions, brought

by any Indian tribe or band with a government body duly recognized by the Secretary to the

Interior, wherein the matter in controversy arises under the Constitution, laws or treaties of the

United States.”

.

Plaintiff relies further on

of the IRA as a source for subject matter

jurisdiction. Am. Compl. ¶ 6; see

(d)(2) (“Actions to enforce the

provisions of this section may be brought in the appropriate Federal district court.) This Court

notes however that “[t]he Act merely provides the authority and procedures whereby an Indian

tribe may organize itself and adopt a tribal constitution and bylaws, [and it] makes no mention of

jurisdiction in any sense and such is not within its purview.” Twin Cities Chippewa Tribal

Council v. Minnesota Chippewa Tribe,

(8th Cir. 1967).

Accordingly, Plaintiff has established a source for this Court’s subject matter jurisdiction,

pursuant to

and 1362, which is uncontested by the Federal Defendants.

The Court now turns to the issue of Federal Defendants’ immunity from suit and whether

Plaintiff has demonstrated a basis for waiving that immunity.

B. Waiver of Sovereign Immunity

There is no dispute that the United States is immune from suit unless it consents to be

sued. United States v. Sherwood,

(1941). Nor is there any dispute that, in

suits against the government, a court must consider first, whether Congress provided an

11 affirmative grant of subject matter jurisdiction, and second, whether Congress waived the United

States’ immunity to being sued. Yee v. Jewell,

(D.D.C. 2017). In its

Opposition to Federal Defendants’ Motion, Plaintiff acknowledges that “§ 5123, § 1331 and §

1362 have been determined not to waive sovereign immunity on their own.” Pl.’s Opp’n at 14;

see Mackinac Tribe v. Jewell,

(D.D.C. 2015) (“[T]he IRA does not itself

contain language that amounts to a waiver of sovereign immunity.”), aff’d,

(D.C.

Cir. 2016), cert denied,

(2017). Accordingly, in the absence of an express

sovereign immunity waiver, Kialegee “must look beyond [its] jurisdictional statute[s] for a

waiver of sovereign immunity with respect to [its] claim.” United States v. Mitchell,

(1980).

Although Plaintiff affirmatively states that its cause of action is not based upon the

Administrative Procedure Act (the “APA”), Plaintiff relies upon Section 702 of the APA to

support a waiver of sovereign immunity. That Section provides that:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.

(emphasis added). Kialegee contends that because it seeks declaratory and

injunctive relief, as opposed to monetary damages, it may rely upon the APA for a waiver of

sovereign immunity. See Bowen v. Massachusetts,

(1988) (stating that “insofar

12 as the complaints sought declaratory and injunctive relief, they were certainly not actions for

money damages”); McKoy v. Spencer,

(D.D.C. 2017) (Kollar-Kotelly, J.)

(finding that section 702 of the APA waived sovereign immunity as to plaintiff’s claims for

declaratory and injunctive relief). Nor does Kialegee need to allege the APA as a cause of action

to benefit from waiver under Section 702. Jack’s Canoes & Kayaks v. Natl. Park Serv.,

(D.D.C. 2013) (citing Trudeau v. Federal Trade Comm’n,

(D.C. Cir. 2006)); see also McKoy,

(to benefit from an APA waiver of

sovereign immunity, a plaintiff need not even mention the APA in its complaint, but instead “[i]t

is sufficient that Plaintiff correctly argued that the APA provides the requisite waiver of immunity

in [its] opposition to Defendant’s motion to dismiss.”)

Federal Defendants concede that “a suit need not have been brought pursuant to the APA

to receive the benefit of that statute’s sovereign immunity waiver; indeed, the ‘APA’s waiver of

sovereign immunity applies to any suit whether under the APA or not.’” Z Street, Inc. v.

Koskinen,

(D.D.C. 2014) (quoting Chamber of Commerce v. Reich,

(D.C. Cir. 1996) (emphasis omitted)), aff’d,

(D.C. Cir. 2015).

Federal Defendants contest however whether Kialegee has fulfilled the requirement of Section

702 in terms of stating a claim that “an agency or an officer or employee thereof acted or failed

to act in an official capacity or under color of legal authority.” Fed. Defs’ Mem. at 17-18 (citing

Section 702); see Mackinac Tribe,

(noting that a Section 702 waiver applies

when the two requirements therein — an agency, officer or employee acts or fails to act in an

official capacity or under color of authority, and the relief sought is in a form other than money

damages — have been met).

Federal Defendants interpret Section 702 as requiring a “final agency action,” but the

13 Mackinac Tribe case makes it clear that a “final agency action” is not required. In that case,

“although Defendant argue[d] that Plaintiff need[ed] to fulfill an additional requirement in order

to be able to rely on the APA’s sovereign immunity waiver — namely, that the agency action that

Plaintiff s[ought] to challenge must be a “final” agency action . . . [the Court found that] the D.C.

Circuit rejected this very argument in Trudeau v. Federal Trade Comm’n,

(D.C.

Cir. 2006).” Mackinac,

(internal citations and quotation marks omitted).

Plaintiff cites Trudeau for the proposition that “even though what plaintiff had complained of

was not even “agency action” at all as defined in the APA, let alone “final,” it made no difference”

because two of the plaintiff’s causes of action therein did not involve judicial review under the

APA. Pl.’s Opp’n at 16; see Trudeau,

. In Trudeau, the Court of Appeals

concluded that there was jurisdiction pursuant to

, and a waiver of

sovereign immunity pursuant to Section 702 of the APA because the plaintiff sought a declaratory

judgment and injunction, and he stated a claim based on an FTC press release. Id. at 185-87.

Federal Defendants challenge whether Plaintiff has “stat[ed] a claim” regarding any

specific agency action or inaction, which is sufficient to comply with Section 702. Federal

Defendants argue that “[a]lthough Plaintiff asserts that Federal Defendants have not recognized

it as part of the “whole Creek Nation,” Am. Compl. ¶ 2, Plaintiff fails to cite to any discrete [ ]

decision made by Federal Defendants. [and] instead cites to positions it believes Federal

Defendants will take or arguments Federal Defendants may assert.” Fed. Defs.’ Mem. at 20; see

Am. Comp. ¶¶ 19, 39, 49, 50, 51, 64, 65, 68, 73. Plaintiff asserts however that “Kialegee [ ]

“need not identify any “agency” action or inaction, as made clear under Trudeau.” Pl.’s Opp’n

at 18. (emphasis added). In Trudeau, the Court of Appeals noted that “[w]hile the [second]

sentence [of Section 702] does refer to a claim against an “agency” and hence waives immunity

14 only when the defendant falls within that category, it does not use either the term “final agency

action” or the term “agency action.””

. Accordingly, this Court’s interpretation

of Trudeau does require that Plaintiff state a claim that an agency or an officer or employee

thereof acted or failed to act in an official capacity or under color of legal authority. See, e.g.,

Mackinac Tribe v. Jewell, 87 F. Supp. at 143, finding that:

To the extent that Plaintiff Mackinac Tribe is here seeking to proceed under the IRA, it is sufficient that its complaint alleges that the agency has failed to act where the law provides it must, and Plaintiff need not identify a final agency action in order to avail itself of APA’s sovereign immunity waiver, despite Defendant’s assertions to the contrary. The Court is mindful, however, that “other limitations on judicial review or the power or duty of the court to dismiss any action or deny any relief on any other appropriate legal or equitable ground” may nevertheless preclude this action.

.

Assuming arguendo that Kialegee’s claim in Paragraph 68 of its Amended Complaint that

Federal Defendants have “repeatedly violated 25 U.S.C. § [5123](f) by blocking the Kialegee

from jurisdiction on lands located within the Creek Reservation” is enough to satisfy “stating a

claim” for purposes of applying Section 702 to effect a waiver of sovereign immunity, the Court

next turns to whether Kialegee has identified a cause of action and stated a claim upon which

relief can be granted.

C. Cause of Action

The Court of Appeals in Trudeau explained that whether Plaintiff states a claim upon

which relief can be granted:

depends in part on whether there is a cause of action that permits plaintiff to invoke the power of the court to redress the violations of law that he claims that FTC has committed. See generally Davis v Passman,

, 239-40 & n. 18,

,

(1979). It also depends on whether the allegations of [plaintiff’s] complaint are legally sufficient to state the violations he claims. We consider the cause of action question [first] and the sufficiency of [plaintiff’s] claims [next].

15 Trudeau,

. 8

As a preliminary matter, Federal Defendants assert that Plaintiff’s seeming reliance on

either

or Section 1362 as a cause of action is misplaced. See Fed. Defs.’

Mem. at 15-16; see also McGuirl v. United States,

(D.D.C. 2004)

(“[S]ection 1331 requires that the plaintiff[ ] allege another basis for jurisdiction in addition to

section 1331, i.e., a cause of action created by a substantive federal statute.”), aff’d per curiam,

167 Fed. App’x 808 (D.C. Cir. 2005); Little River Band of Ottawa Indians v. Nat’l Labor Relations

Bd.,

(W.D. Mich. 2010) ( noting that “invoking § 1362 does not change

a plaintiff-tribe’s duty to show that its complaint raises a substantial federal question”).

Furthermore, Federal Defendants dispute Plaintiff’s presumed reliance on the Creek Nation

treaties as a cause of action, on grounds that Plaintiff makes no attempt to show whether such

treaties provide it with a private right of action. See McKesson Corp. v. Islamic Republic of Iran,

(D.C. Cir. 2008) (Treaties, “even those directly benefiting private persons,

generally do not create private rights or provide for a private cause of action in domestic courts.”)

Plaintiff affirmatively states that its cause of action is not based upon the Administrative

Procedure Act. Pl.’s Opp’n at 15. Plaintiff relies instead upon the Indian Reorganization Act,

, and asserts that, under that Act, “Kialegee specifically has a cause of

action against the government of the United States if it enhances, or diminishes the privileges and

immunities available to an Indian tribe relative to other federally recognized tribes.” Pl.’s Opp’n

at 17. Pursuant to Section 5123(f),

Departments or agencies of the United States shall not promulgate any regulation or make any decision or determination pursuant to the Act of June 18, 1934 . . ., or any other Act of Congress, with respect to a federally recognized Indian tribe that classifies,

8 Ultimately, the Court of Appeals affirmed the judgment of the district court dismissing plaintiff’s complaint for failure to state a claim upon which relief could be granted. 16 enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally recognized tribes by virtue of their status as Indian tribes.

(f).

Federal Defendants acknowledge that “detailed factual allegations” are not necessary to

withstand a 12(b)(6) motion, Twombly,

, but assert that Plaintiff must set forth

“factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal,

(citations omitted). Plaintiff contends that

Kialegee “has set forth the actions of Defendants, explained why it violates that law and how this

has deprived and harmed Kialegee — that is, Defendants expressly refuse to acknowledge that

Kialegee has jurisdiction over its lands as a successor to the historic Creek Nation.” Pl.’s Opp’n

at 18-19. Plaintiff argues further that it “need not plead this with specificity, as under Rule 9(b),

rather, Kialegee’s Amended Complaint need only comport with the notice-pleading requirements

of Rule 8” and it has done this by putting “Defendants on notice of what Kialegee alleges to be

wrong and its recourse sought for the same[,]” in part by referencing a letter in which the rights of

other Creek successors are acknowledged, where such letter includes “findings from Defendant

the Department of Interior.” 9 Pl.’s Opp’n at 19.

Plaintiff indicates that it has constructed a restaurant facility known as the Embers Grill,

which is located on an Indian allotment within the Creek Reservation and within the city limits of

Broken Arrow, Oklahoma, and Plaintiff claims jurisdiction over this land, in common with the

9 Attached as Exhibit E to the Amended Complaint, ECF No. 27-1, is a lengthy letter from the Chairman of the National Indian Gaming Commission to the Tribal Chairman of the Poarch Band of Creek Indians. The letter begins by indicating that a review has been conducted and the NIGC “continue[s] to consider the Tribe’s Tallapoosa site to be Indian lands on which the Tribe may conduct gaming.” Ex. E at 1. This letter is discussed in detail in Paragraph 60 of the Amended Complaint, but the Court notes that when Plaintiff amended its Complaint in this case, it no longer named The Chairman of the National Indian Gaming Commission as a defendant. 17 other recognized Creek tribes in Oklahoma and pursuant to “various Creek Treaties with the

United States read in context with the Indian Canon of Construction.” Am. Compl. ¶¶ 56-57.

Plaintiff asserts also that “Defendants have repeatedly violated 25 U.S.C. Section [5123](f) by

blocking the Kialegee from jurisdiction on lands located within the Creek Reservation,” but this

general assertion fails to state a claim that supports Plaintiff’s request for declaratory and

injunctive relief. What is missing from the Amended Complaint is any connection between

Plaintiff’s claim to jurisdiction over the land where the restaurant facility is located, and any

actions taken by Defendant in response to such claim of jurisdiction, which violate Section 5123,

or alternatively, any other actions taken by the Defendant that violate Section 5123, which are

actionable by the Plaintiff. More succinctly, Plaintiff’s Amended Complaint fails to provide this

Court with any information about how and when the Defendants have “block[ed] the Kialegee

from jurisdiction” over land with the effect that the Kialegee’s privileges and immunities have

been diminished relative to other federally recognized tribes. Plaintiff’s allegations against

Defendants — presumably relating to its cause of action pursuant to

—

are fleshed out in somewhat more detail in the context of the briefing on Defendants’ Motion to

Dismiss.

In its Opposition, Plaintiff refers to three specific instances where Defendants have failed

to recognize Kialegee as a Creek successor having jurisdiction over its lands: (1) a pending appeal

before the Indian Board of Indian Appeals (“IBIA”) of an April 26, 2017 decision by the Bureau

of Indian Affairs, Eastern Oklahoma Regional Director, declining to approve a resolution of the

Kialegee Tribal Town Business Committee on grounds that Kialegee lacks jurisdiction over any

area of Indian Country over which it could enact and apply a liquor ordinance; (2) a 1991 IBIA

decision captioned Kialegee Tribal Town of Oklahoma v. Muskogee Area Dir., Bureau of Indian

18 Affairs, 19 IBIA 296, 303 (1991), upholding a decision by the Regional Director that Plaintiff did

not exercise jurisdiction over the Muscogee (Creek) Nation lands; and (3) a May 24, 2012

Memorandum regarding review by the National Indian Gaming Commission (“NIGC”) of a

proposed gaming facility in Broken Arrow, Oklahoma (the “proposed Site”), which concludes that

the facility “does not qualify as Kialegee’s Indian lands eligible for gaming because Kialegee has

not established that it has legal jurisdiction over the Proposed Site for purposes of [the Indian

Gaming Regulatory Act],” and expressly stating that “the Department of the Interior (DOI), Office

of the Solicitor, concurs with this opinion.” 10 See Pl.’s Opp’n at 19-21; see also May 24, 2012

Memorandum.

In their Reply, Defendants explain why none of these three instances is currently actionable

by the Plaintiff, for the following reasons: (1) the Regional Director’s April 26, 2017 decision is

on appeal before the IBIA, and Plaintiff must exhaust its administrative remedies before seeking a

judicial review of that decision; 11 (2) any challenge to the 1991 decision is untimely because,

pursuant to

(a), a civil action against the United States is barred if not filed

within six years after the right of action accrues; and (3) the May 24, 2012 Memorandum is not an

agency action for which Plaintiff may seek judicial review as it does not constitute a “final agency

action” pursuant to

, nor has Plaintiff demonstrated how the 2012

Memorandum “violates the IRA in any way.” See Fed. Defs.’ Reply at 5-7.

This Court agrees with the Federal Defendants’ analysis of these three “instances,” and as

10 Plaintiff indicates that this Memorandum is part of the public record and provides a website address for the NIGC website, which contains the May 24, 2012 Memorandum. Pl.’s Opp’n at 21, n. 9. 11 Federal Defendants indicate that “[i]t may be that in the future, after the IBIA issues its final decision on Plaintiff’s challenge to the Regional Director’s April 26, 2017 decision, Plaintiff will have an action for which it may want to seek judicial review[.]” Fed. Defs’ Reply at 8. 19 such, finds that while the Plaintiff has alleged that it has a cause of action pursuant to

, Plaintiff has not indicated any conduct by Federal Defendants that is actionable

under this cause of action. A claim is facially plausible when the plaintiff pleads factual content

that is more than “’merely consistent with’ a defendant’s liability,” which “allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

(citing Twombly,

,

); see also Rudder v. Williams,

(D.C. Cir. 2012) (same). In the instant case, Plaintiff alleged initially a more

specific claim against the Federal Defendants (and then-defendant NIGC), based on the

development of the Bruner allotment and its jurisdiction over that land, but because that claim was

not yet ripe, Plaintiff amended its Complaint, with the effect that its claim against the Federal

Defendants was made more general. It is not enough for Plaintiff to simply claim that a statute

has been violated, which affects Plaintiff in a negative way, and to make conclusory statements

regarding Federal Defendants’ position. Instead, Plaintiff needs to allege with some specificity

the actions allegedly taken by Federal Defendants, which give rise to Plaintiff’s cause of action.

Accordingly, because this Court finds that Plaintiff fails to state a claim, its Amended Complaint

shall be dismissed without prejudice

DATED: September 7, 2018 ________/s/______________________ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

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