UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MUSCOGEE CREEK INDIAN FREEDMEN BAND, INC., et al., Plaintiffs Civil Action No. 18-1705 (CKK) v. DAVID BERNHARDT1, et al., Defendants

MEMORANDUM OPINION (May 6, 2019)

Plaintiffs are individuals and a collection of persons whose lineal ancestors were Creek

Nation Freedmen and citizens of the Muscogee Creek Nation (“MCN”). Plaintiffs contend that

under the Creek Treaty of 1866, they should have the rights and privileges of MCN citizens,

regardless of their “blood status.” Plaintiffs further contend that, despite the Creek Treaty of

1866, they have been wrongfully denied MCN citizenship. Accordingly, Plaintiffs brought this

lawsuit requesting declaratory and injunctive relief to secure the rights and privileges of MCN

citizenship. In response to Plaintiffs’ suit, Defendants David Bernhardt and the United States

Department of the Interior (“federal Defendants”) filed a Motion to Dismiss, contending that

dismissal is appropriate because the statute of limitations has run on Plaintiffs’ claims.

Additionally, Defendant James Floyd, the Principal Chief of the MCN, filed a Motion to

Dismiss, raising various grounds for dismissal.

Upon consideration of the pleadings,2 the relevant legal authorities, and the record as a

whole, the Court will GRANT Defendant Floyd’s Motion to Dismiss and DENY WITHOUT

1 Pursuant to Fed. R. Civ. P. 25(d), David Bernhardt is substituted in his official capacity as United States Secretary of the Interior. 2 The Court’s consideration has focused on the following documents:

1 PREJUDICE federal Defendants’ Motion to Dismiss. The Court finds that Plaintiffs have failed

to exhaust their tribal remedies. Plaintiffs do not allege that they ever applied for citizenship and

were denied citizenship by the MCN. Accordingly, the Court will DISMISS WITHOUT

PREJUDICE Plaintiffs’ Complaint in order to allow Plaintiffs to exhaust their tribal remedies.

I. BACKGROUND

The Court concludes that Plaintiffs’ Complaint should be dismissed without prejudice

based on Plaintiffs’ failure to exhaust their tribal remedies by applying for citizenship and

appealing any adverse determinations. Accordingly, the Court’s explanation of the factual

background will focus on the details relevant to the discussion of this issue.

In 1866, the MCN and the United States executed a treaty which provided that:

[I]nasmuch as there are among the Creek many persons of African descent…it is stipulated that hereafter these persons, lawfully residing in said Creek country, under their laws and usages, or who have been thus residing in said country, and may return within one year from the ratification of this treaty, and their descendants and such others of the same race as may be permitted by the laws of said Nation to settle within the limits of the jurisdiction of the Creek Nation as citizens [thereof], shall have and enjoy all the rights and privileges of native citizens, including an equal interest in the soil and national funds; and the laws of said Nation shall be equally binding upon and give equal protection to all such persons

• Mem. of Points and Authorities in Support of Fed. Defs.’ Mot. to Dismiss (“Fed. Defs.’ Mot.”), ECF No. 20-1; • Pls.’ Opp’n to the Fed. Defs.’ Mot. to Dismiss (“Pls.’ Opp’n to Fed. Defs.”), ECF No. 23; • Reply Mem. in Support of Fed. Defs.’ Mot. to Dismiss (“Fed. Defs.’ Reply”), ECF No. 26; • Def. James Floyd’s Mot. to Dismiss Pls.’ Am. Compl. (“Def. Floyd’s Mot.”), ECF No. 21; • Pls.’ Opp’n to Principal Chief Floyd’s Mot. to Dismiss (“Pls.’ Opp’n to Def. Floyd”), ECF No. 25; and • Def. James Floyd’s Reply in Support of Mot. to Dismiss Pls.’ Am. Compl. (“Def. Floyd’s Reply”), ECF No. 27. In an exercise of its 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 Am. Compl., ECF No. 12, ¶ 38 (quoting Treaty of 1988, Art. 2). In 1887, Congress passed the

Dawes Act of 1887. Pursuant to the Dawes Act as well as other acts of Congress, the MCN

created the “Dawes Rolls,” which were citizenship lists dividing members into the “Creek Nation

Creek Roll,” allegedly comprised of Creek citizens with Creek blood and the “Creek Nation

Freedmen Roll,” allegedly comprised of Creek citizens who were formerly enslaved and devoid

of Creek blood. Id. at ¶¶ 44-50. The Dawes Rolls closed in 1907. Id. at ¶ 51.

In 1975, the MCN submitted a draft constitution to the United States Department of the

Interior (“DOI”) which “(1) stripped individuals on the 1906 Creek Freedmen Rolls and their

then-living lineal descendants of their MCN citizenship; and (2) prevented the unborn lineal

descendants of individuals who were enrolled on the 1906 Creek Freedmen Rolls from becoming

citizens of MCN.” Id. at ¶ 52. In 1979, the DOI approved the MCN constitution, and the MCN

held an election formally adopting the new constitution. Id. at ¶¶ 56-57. Under the new

constitution, ratified by the DOI, Freedmen descendants were not entitled to MCN citizenship

and were not recognized as citizens of the MCN. Id. at ¶ 60.

Plaintiffs allege that between 1979 and today eligible Freedmen descendants have been

summarily denied citizenship. Id. at ¶ 63. Plaintiffs specifically allege that between 1983 and

2003, the MCN Citizenship Board repeatedly denied the applications of two Freedmen

descendants who are not parties in this lawsuit, Fred Johnson and Ron Graham. Id. at ¶ 64. Mr.

Johnson and Mr. Graham appealed their denials to the MCN District Court. In 2006, the MCN

District Court found that the Citizenship Board had not followed MCN law mandating that the

Board process Mr. Johnson’s and Mr. Graham’s citizenship applications. Id. at ¶ 69. Despite the

court order, Plaintiffs contend that the MCN Citizenship Board still refused to process the

applications. And, in 2007, the MCN Supreme Court reversed the MCN District Court decision

3 but did not rule on the validity of the citizenship provisions in the Treaty of 1866. Id. at ¶ 70.

Plaintiffs do not provide any other examples of Freedmen descendants who were denied

citizenship, and Plaintiffs do not allege that they have ever applied for MCN citizenship and been

denied.

Plaintiffs argue that Defendants violated the Treaty of 1866 when the DOI approved and

the MCN passed the 1979 constitution excluding Freedmen descendants from tribal citizenship.

Id. at ¶ 73. Plaintiffs further argue that Defendants have continually violated the Treaty of 1866

from 1979 until the current day. Plaintiffs contend that the MCN has violated the treaty by

excluding Plaintiffs from elections and other tribal activities. Plaintiffs further contend that

federal Defendants have violated the treaty by approving tribal elections and by providing

funding for the MCN, despite the exclusion of Plaintiffs. Id. at ¶¶ 74-76.

On July 20, 2018, Plaintiffs filed this lawsuit requesting declaratory and injunctive relief

providing Plaintiffs and other Freedmen descendants with the full rights and privileges of MCN

citizenship. Both federal Defendants and Defendant Floyd have filed Motions to Dismiss, citing

numerous grounds for dismissal.

II. LEGAL STANDARD

Defendants move to dismiss Plaintiffs’ Complaint on various grounds. For reasons

explained below, the Court finds that Defendant Floyd’s request for dismissal on exhaustion

grounds is dispositive. As such, the Court will focus on that standard for dismissal. Because the

exhaustion of tribal remedies is a matter of judicial comity rather than a jurisdictional bar to suit,

motions to dismiss for failure to exhaust trial remedies are considered under Federal Rule of

Civil Procedure 12(b)(6). Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians,

(explaining that comity requires tribal exhaustion).

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

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

complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal,

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

Twombly,

(2007)). Rather, a complaint must contain sufficient factual

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

.

III. DISCUSSION

Federal Defendants and Defendant Floyd present many arguments as to why this case

should be dismissed. However, the Court finds that Defendant Floyd’s argument as to Plaintiffs’

failure to exhaust their tribal remedies is dispositive. Accordingly, the Court’s Memorandum

Opinion will address only that issue.

Defendant Floyd argues that this case should be dismissed as Plaintiffs failed to allege

that they have exhausted their tribal remedies. In their Complaint, Plaintiffs make the conclusory

allegation that they have been denied enrollment in the tribe. Am. Compl., ECF No. 12, ¶¶ 4-6,

8-10. Plaintiffs’ denial of enrollment could be based on the mere presence of a “blood status”

requirement in the MCN constitution. And, nowhere in their Complaint do Plaintiffs allege that

they actually applied for enrollment in the tribe. In their Opposition to Defendant Floyd’s Motion

to Dismiss, Plaintiffs summarily state that “[b]etween 1979 and the present, Creek Freedmen and

their descendants, including Plaintiffs, have applied for citizenship in the MCN.” Pls.’ Opp’n to

Def. Floyd, ECF No. 25, 5. Plaintiffs cannot now amend their Complaint by way of an

5 Opposition to a Motion to Dismiss. Kingman Park Civic Ass’n v. Gray,

, 165

n.10 (D.D.C. 2014) (explaining that “it is well settled law that a plaintiff cannot amend its

complaint by the briefs in opposition to a motion to dismiss”). Moreover, even if the Court were

to consider Plaintiffs’ Opposition, Plaintiffs do not provide any details about their applications

for citizenship such as which Plaintiffs have applied and whether or not Plaintiffs appealed any

denials of citizenship. Plaintiffs’ conclusory statement, made in an Opposition to a Motion to

Dismiss, is insufficient to allege exhaustion of remedies.

Seemingly acknowledging their failure to allege exhaustion, in making their arguments

against dismissal, Plaintiffs also do not contend that they actually applied for enrollment in the

tribe and were denied. Instead, Plaintiffs make two arguments as to why this case should not be

dismissed for failure to exhaust. First, Plaintiffs contend that they were not required to exhaust

their tribal remedies because the tribal court does not have jurisdiction over federal Defendants.

Second, Plaintiffs contend that exhaustion should be excused because exhaustion of tribal

remedies would be futile. The Court will address each argument in turn.

When a tribal court has jurisdiction over a claim, a plaintiff must exhaust tribal remedies

prior to bringing suit in federal court. See Nat’l Farmers Union,

(holding that

“[u]ntil petitioners have exhausted the remedies available to them in the Tribal Court system, it

would be premature for a federal court to consider any relief” (internal citation omitted)). There

are multiple reasons that courts require tribal exhaustion. First, tribal exhaustion promotes the

“orderly administration of justice.”

. Second, tribal exhaustion allows federal courts

to obtain tribal “expertise” in tribal matters.

Third, requiring that plaintiffs first seek remedies

through the tribal system furthers the congressional “policy of supporting tribal self-government

and self-determination.”

6 The Court finds that these first two factors weigh in favor of requiring tribal exhaustion

in this case. The orderly administration of justice in the federal court will be served by permitting

a full factual record to be developed through the tribal administrative and judicial processes.

Moreover, Plaintiffs’ pursuit of citizenship through the tribal process will provide the Court with

valuable information. On the one hand, exhaustion will provide the tribal administration and

courts the opportunity to accept Plaintiffs’ citizenship applications, thereby avoiding the need for

federal courts to wade into the murky issue of tribal citizenship. On the other hand, if Plaintiffs

are denied citizenship, tribal exhaustion will provide the tribal administration and courts with the

opportunity to explain precisely why they refuse to grant citizenship. The benefit of tribal

expertise in matters of tribal citizenship will assist the federal court in making its subsequent

citizenship determination. Additionally, by providing a ground or grounds for denying

citizenship, the federal court will better be able to narrow the issues and target its ruling.

The Court similarly finds that the third factor weighs in favor of requiring tribal

exhaustion. Requiring tribal exhaustion to promote tribal self-governance is particularly

appropriate here, where the issue before the Court concerns tribal membership. A tribe’s

authority to determine its own membership is an important component of tribal self-governance

and independent sovereignty. See Iowa Mutual Ins. Co. v. LaPlante,

(1987)

(“encouraging tribal self-government ... reflects the fact that Indian tribes retain attributes of

sovereignty over both their members and their territory” (internal quotation marks omitted));

Santa Clara Pueblo v. Martinez,

, 72 n.32 (1978) (“A tribe's right to define its own

membership for tribal purposes has long been recognized as central to its existence as an

independent political community.”). Because the composition of a tribe’s membership is

fundamental to its self-governance and sovereignty, federal courts have recognized that questions

7 of tribal membership should be exhausted before they are brought in federal court. See, e.g.,

Jeffredo v. Macarro,

(9th Cir. 2010) (refusing to consider the plaintiffs’ claims

for exclusion and eviction from the reservation because the plaintiffs had not exhausted their

tribal remedies); Smith v. Babbitt, 875 F. supp. 1353, 1366-67 (D. Minn. 1995), aff’d,

(8th Cir. 1996) (explaining that, even if the court had jurisdiction over the plaintiffs’ claims

pertaining to membership, it would not hear them because the plaintiffs had not exhausted their

tribal remedies). Because the Court finds that decisions on tribal membership are an important

part of self-governance, the Court concludes that Plaintiffs should exhaust their tribal remedies

before bringing citizenship claims in federal court.

“There are four recognized exceptions to the general rule that exhaustion of tribal

remedies is required: (1) when assertion of tribal jurisdiction is to harass or is in bad faith; (2)

when ‘the action is patently violative of express jurisdictional prohibitions;’ (3) ‘where

exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's

jurisdiction;’ and, (4) when tribal jurisdiction serves no other purpose than delay.” LECG, LLC v.

Seneca Nation of Indians,

(D.D.C. 2007) (citing Strate v. A-1

Contractors,

, 459 n.14 (1997) (formulating the fourth exception) and Nat'l

Farmers Union,

n.21 (setting out the first three exceptions)). Plaintiffs argue that

tribal exhaustion should not be required in this case under exceptions two and four. First,

Plaintiffs contend that tribal exhaustion should not be required because the tribal courts cannot

exercise jurisdiction over the two federal Defendants. Second, Plaintiffs contend that tribal

exhaustion should not be required because seeking relief through the MCN’s administrative and

judicial systems would be futile. The Court disagrees.

8 A. Tribal Jurisdiction Over Federal Defendants

First, Plaintiffs argue that they were not required to exhaust their tribal remedies because

the tribal court does not have jurisdiction over federal Defendants. Plaintiffs are correct that

federal Defendants could not be sued in tribal court. However, Plaintiffs have also sued

Defendant Floyd, over whom the tribal court does have jurisdiction. And, under the doctrine of

tribal exhaustion, the presence of federal Defendants in this lawsuit does not obviate Plaintiffs’

obligation to first seek administrative and judicial remedies in tribal forums for redress of their

alleged injuries—denial of enrollment in the tribe.

Plaintiffs cite two cases in which courts did not require the exhaustion of tribal remedies

due to the presence of federal defendants in the lawsuit. Both are distinguishable.

First, Plaintiffs cite Vann v. Kempthorne.

(D.D.C. 2006), overturned

on other grounds,

(D.C. Cir. 2008). In Vann, the court was deciding whether or not

to allow the plaintiffs leave to amend their complaint in order to add the Cherokee Nation and its

officials as defendants. The Cherokee Nation argued that amendment would be futile because the

plaintiffs had failed to exhaust their tribal remedies.

. The court

acknowledged that “a federal court may not entertain a civil action within the jurisdiction of

tribal forums until the plaintiff has exhausted his or her available remedies in tribal courts.”

But, the court went on to conclude that because the plaintiffs “asserted a cause of action against

the Secretary under the APA which is only cognizable in federal courts” exhaustion was not

required as the plaintiffs’ “claim against the Secretary [could not] be heard in tribal courts.”

The Court finds that Vann is distinguishable from the case currently before the Court. In

Vann, at the time that the court was deciding whether or not tribal exhaustion was necessary, the

lawsuit was against only a federal defendant. The Cherokee Nation had been granted limited

9 intervention for the purposes of challenging jurisdiction but was not yet included as a defendant.

. As such, at the time of the decision, there were no defendants in the lawsuit against

whom tribal courts could exercise jurisdiction. Here, Plaintiffs have sued the chief of the tribe,

against whom tribal courts exercise jurisdiction, in addition to federal Defendants. Accordingly,

unlike in Vann, in this case, there are Defendants against whom Plaintiffs could bring suit in a

tribal court.

Additionally, Vann is distinguishable from the Court’s case based on the nature of relief

sought. In Vann, the plaintiffs were descendants of Cherokee Freedmen who had been prevented

from participating in a 2003 election. The plaintiffs requested a court order declaring the 2003

election invalid and enjoining the Secretary from recognizing the results of elections until the

plaintiffs were permitted to vote.

. Accordingly, the nature of relief requested by the

plaintiffs, as set out by the court, was the sort that could be given only by the Secretary, not by a

tribal court. Conversely, here, Plaintiffs request, in part, an order declaring that “Creek Freedmen

Descendants are Creek citizens.” Am. Compl., ECF No. 12, Prayer for Relief. This relief could

potentially be granted through the tribal administrative and judicial process if plaintiffs applied

for tribal citizenship. Accordingly, unlike in Vann, a tribal court would have jurisdiction over

Plaintiff’s request for relief. For these reasons, the Court is not persuaded that Vann is applicable.

Finally, the Court notes that Vann was decided by a district court and is thus not controlling on

this Court.

Plaintiffs also cite United States v. Yakima Tribal Court,

(9th Cir. 1986). In

Yakima Tribal Court, Native American plaintiffs won a restraining order in tribal court

preventing federal officials from relocating an irrigation canal on their land.

. The

United States then sued in federal court. The district court voided the tribal court’s order, finding

10 that the tribal court lacked jurisdiction to enjoin federal officials from performing their duties.

The tribal defendants appealed, arguing that the United States should have appealed the tribal

court’s order to the tribal appellate court prior to bringing suit in federal court. The Ninth Circuit

disagreed, finding that “exhaustion was pointless because the tribal court jurisdiction was clearly

foreclosed by the sovereign immunity of the United States.”

.

The Court finds that Yakima Tribal Court is not persuasive here. In Yakima Tribal Court,

the Ninth Circuit found that tribal exhaustion was not necessary because the tribal courts could

not provide the Native American plaintiffs with the relief they requested as, under the doctrine of

sovereign immunity, the tribal courts did not have jurisdiction to order the United States to

relocate the irrigation canal. As this was the only relief requested by the plaintiffs, tribal

exhaustion could not have provided the plaintiffs with their requested relief. Conversely, here,

Plaintiffs request, in part, an order declaring that “Creek Freedmen Descendants are Creek

citizens.” Am. Compl., ECF No. 12, Prayer for Relief. Tribal courts have jurisdiction over

matters of tribal citizenship. As such, tribal exhaustion through the proper administrative and

judicial channels has the potential to afford Plaintiffs their requested relief. Accordingly, Yakima

Tribal Court is not persuasive.

The parties did not cite, and the Court could not find, any decision within this Circuit

which directly addressed the question of whether or not a plaintiff must exhaust tribal remedies

when the plaintiff sues both tribal and federal defendants. However, the Court is persuaded by

cases in other circuits concluding that exhaustion is required.

In Smith v. Moffett,

(10th Cir. 1991), the Native American plaintiff sued

various federal officials, tribal officials, and private individuals for violations of his civil rights.

The district court dismissed the case. But, the Tenth Circuit vacated and remanded because “the

11 record fail[ed] to disclose whether [the plaintiff] exhausted his tribal remedies.”

.

The court explained that, based on concerns of comity and tribal sovereignty, the tribal courts

should have had the opportunity “to make an initial determination of tribal jurisdiction over

matters arising on Indian reservations.” Id. at 144. The court went on to state that “the fact that

some of the parties in [the plaintiff’s] case are non-Indians is immaterial to this analysis.” Id.

Plaintiffs contend that this case is not instructive as “the federal officers sued were

determined to be subject to tribal jurisdiction and thus exhaustion was appropriate.” Pls.’ Opp’n

to Def. Floyd, ECF No. 25, 20. But, the focus of the court’s analysis was not on whether the

tribal court had jurisdiction over the specific defendants named in the plaintiff’s federal court

lawsuit. Instead, the court’s focus was on whether or not the tribal court had jurisdiction over the

plaintiff’s claims brought in federal court. See Id. at 443 (“[b]ecause the claims not necessarily

barred by these immunities may have arisen on the reservation…”) (emphasis added), (“…the

events underlying [the plaintiff’s] claims occurred almost exclusively on a Navajo reservation.”)

(emphasis added), 444 (“… federal courts have acknowledged the need to allow tribal courts to

make an initial determination of tribal jurisdiction over matters arising on Indian reservations.”)

(emphasis added).

In the case currently before the Court, the crux of Plaintiff’s Complaint is the issue of

tribal citizenship. Focusing on the nature of Plaintiffs’ claims in this case, the Court concludes

that issues of tribal citizenship are of the type which should first be decided through the tribal

administrative and judicial process, regardless of whom Plaintiff has sued in federal court.

The Court is also persuaded by Middlemist v. Secretary of the United States Department

of the Interior,

(D. Mont. 1993), aff’d,

(9th Cir. 1994). In

Middlemist, the plaintiffs filed suit against tribal officials alleging the invalidity of a tribal

12 ordinance which allowed the tribe to exercise regulatory jurisdiction over activities of non-

members within the reservation though the requirement of certain permits. Plaintiffs also sued

federal officials for their role in approving and funding the tribal ordinance.

.

The plaintiffs had not applied for a permit, or otherwise been rejected for a permit, as was

required under the ordinance. The court dismissed the case without prejudice pending exhaustion

of tribal remedies.

.

The Middlemist plaintiffs argued that exhaustion of tribal remedies was impossible

because the tribal court lacked jurisdiction over the federal defendants.

. The

plaintiffs went on to explain that they could not comply with the exhaustion requirement because

they could not file an identical case in tribal court.

But, the court determined that the plaintiffs

had “misconstrued the exhaustion requirement.”

. The court explained that

“[c]ompliance with the exhaustion requirement … does not demand the impossible of Plaintiffs

as they suggest. Plaintiffs are not required to file a case in Tribal Court which includes the

Federal Defendants. Plaintiffs may seek such relief in Tribal Court as is possible under the law

and, once that is accomplished, may seek further relief in this court.”

The court found that the

issues concerning the federal defendants in the federal court case “[were] the same basic issues

underlying the rest of the action and could be presented in Tribal Court without the Federal

Defendants.”

As such, the plaintiffs could sue the tribal defendants in tribal court, arguing

that the ordinance was invalid. The tribal court’s decision on the validity of the ordinance would

be dispositive of the plaintiffs’ claims against the federal defendants for approving and funding

the ordinance. “Therefore, the necessary record could be developed in Tribal Court without the

presence of the Federal Defendants.”

.

13 As in Middlemist, Plaintiffs’ claims in this case can be brought in tribal court without

federal Defendants. The crux of Plaintiffs’ Complaint is that they should be granted tribal

citizenship. Plaintiffs can apply for citizenship, and if denied, sue the non-federal defendants in

tribal court. The validity of the citizenship decision would be dispositive of Plaintiffs’ claims

against federal Defendants for approving elections and providing funds for the tribe, to the

exclusion of Plaintiffs. Even absent the presence of federal Defendants, the tribal court would be

able to fully develop the necessary record which would aid the federal court in its subsequent

decision.

Similarly, the Court finds instructive Hall v. Babbitt,

(8th Cir. 2000) (per

curiam). In Hall, a Native American plaintiff sued tribal and federal officials, arguing that the

tribal chairman had misappropriated money set aside by federal statute to compensate Native

Americans for the taking of their land. 208 F.3d at 218. The district court dismissed the action

without prejudice to allow the tribal court to decide the plaintiff’s claims in the first instance. Id.

The Eighth Circuit affirmed. The court noted that, while the plaintiff had sued a federal

defendant, the “complaint centers on an intra-tribal dispute.” Id. As such, the court explained that

the plaintiff “should be required to exhaust her tribal court remedies and that the tribal court

should have a full opportunity to determine its own jurisdiction” Id.

Here, as in Hall, Plaintiffs have named federal Defendants in their district court lawsuit.

But, Plaintiffs’ Complaint “centers on an intra-tribal dispute”—whether or not the decedents of

Freedmen should be granted tribal citizenship. Id. Because the dispute is intra-tribal in nature,

and the role of the federal Defendants is ancillary in providing approval and funding for tribal

actions, the Court finds that the tribal administration and judiciary should have a full opportunity

to consider Plaintiffs’ claims prior to the federal court.

14 A similar result occurred in Smith v. Babbitt,

(D. Minn. 1995),

aff’d,

(8th Cir. 1996). In Smith, Native American plaintiffs sued tribal and federal

officials, alleging that proceeds from tribal gaming had been given to unqualified “members” of

the tribe and withheld from qualified members of the tribe.

. The court

dismissed the plaintiffs’ claims and explained that the plaintiffs had failed to exhaust their tribal

court remedies. The plaintiffs had filed suit in tribal court, but that suit was still pending when

the plaintiffs also brought suit in federal court. The court explained that, even though the federal

defendants in the district court suit were not party to the plaintiffs’ tribal court suit, the plaintiffs’

“tribal court action [was] premised on the same conduct and membership determinations as the

underlying claims in [the federal court] proceeding.”

. As such, the court required

dismissal of the plaintiffs’ federal lawsuit pending exhaustion of tribal remedies.

Plaintiffs argue that Smith is unhelpful because exhaustion was discussed only in dicta,

the plaintiffs had already filed a suit in tribal court seeking similar relief, and the court did not

discuss the possible lack of jurisdiction against the federal defendants. Pls.’ Opp’n to Def. Floyd,

ECF No. 25, 20 n.4. Even though the issue of exhaustion was discussed in dicta, the Court still

finds the discussion in Smith to be instructive. The Smith court made clear that even if it had

found that it had subject matter, the defendants’ motion to dismiss “would nonetheless be

granted because the Plaintiffs have failed to exhaust their tribal court remedies.”

. Additionally, while the plaintiffs in Smith had a pending tribal court suit, unlike Plaintiffs

here, Plaintiffs fail to explain why the presence of a pending suit in tribal court would be

anything but a distinction without a difference. See Crawford v. Genuine Parts Co., Inc.,

(9th Cir. 1991) (explaining that “[w]hether proceedings are actually pending in

the appropriate tribal court is irrelevant”). Finally, while the Smith court did not directly address

15 the lack of jurisdiction against the federal defendants, the decision remains applicable to the facts

currently before the Court. In Smith, what mattered was that, even if the parties differed, the

issue before the tribal court was “premised on the same conduct and membership determinations

as the underlying claims in [the federal court] proceeding.”

. Similarly, here,

Plaintiffs’ request for citizenship through the tribal administrative and judicial process would be

premised on the same conduct and membership determinations as the claims in this proceeding.

Accordingly, Smith is instructive as to why tribal exhaustion should be required in this case.

Plaintiffs appear to misunderstand the nature of the tribal exhaustion requirement. The

question is not whether Plaintiffs would be able to file this exact lawsuit in tribal court. Instead,

the question is whether the tribal administrative and judicial process would be able to grant

Plaintiffs the relief which they request. As Plaintiffs request citizenship, the exhaustion of tribal

remedies has the potential to provide Plaintiffs with the requested relief. Exhibit 3, ECF No. 21-

4, Tit. 7 (providing a written procedure for applying for citizenship and appealing adverse

determinations through the tribal court). If Plaintiffs fail to secure their requested relief, they may

refile their lawsuit in federal court against both the tribal and federal Defendants. See Tillett v.

Lujan,

(10th Cir. 1991) (requiring exhaustion in a case against tribal and

federal defendants and noting that tribal exhaustion “does not preclude [the plaintiff] from

thereafter bringing a suit in federal court”). In reviewing Plaintiffs’ renewed claims, the federal

court will have the benefit of a developed factual record and the expertise of tribal bodies on

issues of tribal membership. Accordingly, the Court concludes that Plaintiffs are required to

exhaustion their tribal remedies despite the tribal court’s lack of jurisdiction over federal

Defendants.

16 B. Futility of Tribal Exhaustion

Second, Plaintiffs argue that, even if tribal exhaustion were required, exhaustion should

be excused as it would be futile. According to Plaintiffs, even if they had applied for citizenship

through the tribal administrative and judicial process, they would have been denied. However,

the Court finds that Plaintiffs have not alleged sufficient facts to establish that their applications

for citizenship would be futile. Accordingly, the exhaustion requirement is not excused.

Exhaustion of tribal remedies is not required where exhaustion would be futile. See

Norton v. Ute Indian Tribe of Uintah and Ouray Reservation,

(10th Cir.

2017). In order to invoke an exception to the tribal exhaustion doctrine, the party seeking the

exception must make a “substantial showing of eligibility.”

(internal quotations omitted). The

United States Circuit Court for the District of Columbia Circuit (“D.C. Circuit”) has not

interpreted the futility exception in the context of tribal exhaustion. But, the D.C. Circuit has

interpreted the futility exception in the context of various other exhaustion requirements. “The

general rule in this circuit is that the exhaustion requirement ‘may be waived in only the most

exceptional circumstances.’” Commc’ns Workers of America v. American Tel. and Tel. Co.,

(D.C. Cir. 1994) (quoting Peter Kiewit Sons' Co. v. United States Army Corps of

Eng'rs,

(D.C. Cir. 1983)). The D.C. Circuit has gone on to explain that

“‘[t]he futility exception is … quite restricted’” and is applied only when exhaustion “is ‘clearly

useless.’”

(quoting Randolph-Sheppard Vendors of America v. Weinberger,

(D.C. Cir. 1986)).

Plaintiffs contend that exhaustion would be futile based on the experiences of two

Freedmen descendants, Fred Johnson and Ron Graham. Am. Compl., ECF No. 12, ¶¶ 64-71.

Between 1983 and 2003, Plaintiffs contend that the MCN Citizenship Board repeatedly denied

17 Mr. Johnson’s and Mr. Graham’s citizenship applications. Id. at ¶ 65. In 2004, Mr. Johnson and

Mr. Graham litigated the issue of citizenship before the MCN District Court. Id. at ¶ 64; see also

Exhibit B, ECF No. 25-1 (MCN District Court decision). In tribal court, Mr. Johnson and Mr.

Graham argued that the MCN Citizenship Board acted arbitrarily and capriciously and that all

Freedmen descendants were eligible for citizenship pursuant to the Treaty of 1866, the MCN

Constitution, and the MCN Citizenship Code. Id. at ¶¶ 66-67. In 2006, the MCN District Court

issued a decision. The court did not reach the plaintiffs’ substantive claims, instead finding that

the Citizenship Board had not followed MCN law which required the Citizenship Board to

process the plaintiffs’ citizenship applications and the applications of other Freedmen

descendants. Id. at ¶ 69. However, Plaintiffs allege that the Citizenship Board refused to comply

with the district court order to process Mr. Johnson’s and Mr. Graham’s citizenship applications.

Id. at ¶ 70. And in 2007, the MCN Supreme Court reversed the district court’s decision and

refused to rule on the applicability of the citizenship provisions of the Treaty of 1866. Id.

Instead, the MCN Supreme Court cursorily concluded that there was “no evidence that the

Citizenship Board acted arbitrarily and capriciously.” Exhibit C, ECF No. 25-1 (MCN Supreme

Court decision).

Based on Mr. Johnson’s and Mr. Graham’s experiences with the tribal administrative and

judicial citizenship process, Plaintiffs argue that it would be futile for them to apply for

citizenship. Plaintiffs contend that it is clear from the face of their pleadings that relief from the

MCN Citizenship Board or the tribal courts is at best “hypothetical.” Pls.’ Opp’n to Def. Floyd,

ECF No. 25, 22.

The Court finds that Plaintiffs’ anecdotal evidence of two other Freedmen descendants,

not parties to this lawsuit, who applied for and were denied citizenship over a decade ago is

18 insufficient to establish futility. The MCN Citizenship Board, created by the tribal constitution, is

tasked with making citizenship determinations. Exhibit 2, ECF No. 21-3, Art. III, §§ 1-4.

Additionally, the tribal code contains an explicit, written procedure for applying for citizenship

and appealing adverse determinations through the tribal courts. Exhibit 3, ECF No. 21-4, Tit. 7.

The Court finds the presence of a detailed written procedure for applying for citizenship and for

appealing adverse determinations to be evidence that a tribal remedy exists and is more than

hypothetical.

Failed attempts to obtain a grant of citizenship from the MCN Citizenship Board as well

as refusals by the tribal courts to reconsider adverse determinations may show that tribal

exhaustion would be futile. But, Plaintiffs have failed to produce sufficient evidence that a

remedy through the tribal process would be illusory in this case. Plaintiffs have cited only two

other Freedmen descendants who were denied citizenship. These two Freedmen descendants are

not parties in this case, and it is not clear how similarly situated the two men are to Plaintiffs.

Additionally, the two Freedmen descendants were denied citizenship through the tribal process

over a decade ago. Plaintiffs present no evidence that the same result would occur if they applied

for citizenship today. Moreover, in assessing the claims of the two Freedmen descendants, the

tribal courts never actually considered their substantive claims. Accordingly, the past decisions

of the tribal District Court and the tribal Supreme Court cited by Plaintiff are not dispositive of

Plaintiffs’ citizenship claims. For these reasons, Plaintiffs have presented insufficient evidence to

establish that the exhaustion of tribal remedies would be futile if Plaintiffs applied for citizenship

today. See Suarez v. Colvin,

(D.D.C. 2015) (explaining that the D.C.

Circuit has erected an “extraordinarily high hurdle … for plaintiffs who wish to have the

exhaustion requirement excused” based on futility).

19 The Court has already determined that Plaintiffs were required to exhaust their tribal

remedies. Plaintiffs argue that, if exhaustion is required, it should be excused as exhaustion

would be futile. However, Plaintiffs have failed to produce sufficient evidence that applying for

citizenship through the MCN Board of Citizenship, and appealing any adverse decisions through

the tribal courts, would be futile. Accordingly, Plaintiffs’ failure to exhaust is not excused. And,

the Court will DISMISS WITHOUT PRJUDICE Plaintiffs’ Complaint, pending exhaustion of

tribal remedies. See Hall, 208 F.3d at 219 (affirming dismissal without prejudice of the

plaintiff’s action against tribal and federal officials pending exhaustion of tribal remedies); see

also Middlemist,

, aff’d,

(dismissing without prejudice the

plaintiff’s action against tribal and federal officials pending the exhaustion of tribal remedies).

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant Floyd’s [21] Motion to

Dismiss and DENIES WITHOUT PREJUDICE federal Defendants’ [21-1] Motion to Dismiss.

Plaintiffs were required to exhaustion their tribal remedies prior to bringing suit in this Court.

Plaintiffs have not established that exhaustion should be excused due to the presence of federal

Defendants in this lawsuit or due to futility. Accordingly, the Court DISMISSES WITHOUT

PREJUDICE Plaintiff’s Complaint pending the exhaustion of tribal remedies. Because the Court

grants dismissal on exhaustion grounds, it need not consider at this time the other arguments

made in Defendant Floyd’s Motion or the arguments made in federal Defendants’ Motion.

An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

20