UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LEATRICE TANNER-BROWN, et al., : : Plaintiffs, : Civil Action No.: 21-565 (RC) : v. : Re Document No.: 46 : DOUG BURGUM, : Secretary of the Interior, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

Plaintiffs Leatrice Tanner-Brown and the Harvest Institute Freedman Federation, LLC

(“HIFF”) filed this putative class action against the Secretary of the United States Department of

the Interior and the Assistant Secretary for Indian Affairs at the Interior Department, in their

official capacities (“Defendants”), 1 seeking accountings related to land that was allotted to the

minor children of emancipated slaves of Native American tribes. Plaintiffs allege breaches of

trust and fiduciary duties, and seek various remedies, including declaratory and injunctive relief.

This Court previously dismissed Plaintiffs’ claims for lack of standing. The D.C. Circuit

affirmed that decision as to HIFF, but reversed as to Tanner-Brown. On remand, Plaintiffs

amended their Complaint, and Defendants have moved to dismiss under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6). This Court concludes, once again, that HIFF lacks

1 Pursuant to Federal Rule of Civil Procedure 25(d), these officials have been substituted for their successors. associational standing. And on the merits, the Court finds that Tanner-Brown failed to plead a

plausible claim that Defendants owed the alleged trust or fiduciary duties. Accordingly, the

Court grants Defendants’ motion to dismiss.

II. BACKGROUND

As this is the Court’s third opinion in this case, it draws from the historical background

described in its previous opinions because these alleged facts have not changed. During the Civil

War, the so-called “Five Civilized Tribes” (i.e., the Seminole, Cherokee, Choctaw, Creek, and

Chickasaw Tribes) kept slaves and allied with the Confederacy. Tanner-Brown v. Haaland

(“Tanner-Brown I”), No. 21-cv-565,

, at *1 (D.D.C. July 8, 2022); First Am.

Compl. (“FAC”) ¶ 19 n.1, ECF No. 43-2. Beginning in 1866, following the defeat of the

Confederacy, the United States entered into a series of treaties and agreements with the Five

Civilized Tribes that, among other things, emancipated the Tribes’ slaves (known as the

“Freedmen”) and provided them with certain rights. See Tanner-Brown I,

,

at *1. In 1898, Congress enacted the Curtis Act,

, which allotted the land of the Five

Tribes with certain restrictions to groups of individuals who had historically been enslaved.

Tanner-Brown v. Haaland (“Tanner-Brown III”),

(D.C. Cir. 2024).

The present lawsuit “is based on the provisions of Section 6 of the Act of May 27, 1908,

3[5] Stat. 312,” which the Court refers to as the “1908 Act.” FAC ¶ 19. Section 2 of the 1908

Act “provides that lands ‘from which restrictions have not been removed may be leased’ by the

adult allottee or, if the allottee is a ‘minor or incompetent,’ by a ‘guardian or curator’ on the

allottee’s behalf.” Tanner-Brown III,

(quoting 1908 Act § 2). Section 6 of the

1908 Act provides in relevant part:

That the persons and property of minor allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of

2 the probate courts of the State of Oklahoma. The Secretary of the Interior is hereby empowered, under rules and regulations to be prescribed by him, to appoint such local representatives within the State of Oklahoma who shall be citizens of that State or now domiciled therein as he may deem necessary to inquire into and investigate the conduct of guardians or curators having in charge the estate of such minors, and whenever such representative or representatives of the Secretary of the Interior shall be of [the] opinion that the estate of any minor is not being properly cared for by the guardian or curator, or that the same is in any manner being dissipated or wasted or being permitted to deteriorate in value by reason of negligence or carelessness or incompetency of the guardian or curator, said representative or representatives of the Secretary of the Interior shall have power and it shall be their duty to report said matter in full to the proper probate court and take the necessary steps to have such matter fully investigated, and go to the further extent of prosecuting any necessary remedy, either civil or criminal, or both, to preserve the property and protect the interests of said minor allottees; and it shall be the further duty of such representative or representatives to make full and complete reports to the Secretary of the Interior. All such reports, either to the Secretary of the Interior or to the proper probate court, shall become public records and subject to the inspection and examination of the public, and the necessary court fees shall be allowed against the estates of said minors. The probate courts may, in their discretion appoint any such representative of the Secretary of the Interior as guardian or curator for such minors, without fee or charge.

And said representatives of the Secretary of the Interior are further authorized, and it is made their duty, to counsel and advise all allottees, adult or minor, having restricted lands of all of their legal rights with reference to their restricted lands, without charge, and to advise them in the preparation of all leases authorized by law to be made, and at the request of any allottee having restricted land he shall, without charge, except the necessary court and recording fees and expenses, if any, in the name of the allottee, take such steps as may be necessary, including bringing any such suit or suits and the prosecution and appeal thereof, to cancel and annul any deed, conveyance, mortgage, lease, contract to sell, power of attorney, or any other encumbrance of any kind or character, made or attempted to be made or executed in violation of this Act or any other Act of Congress, and to take all steps necessary to assist said allottees in acquiring and retaining possession of their restricted lands.

1908 Act § 6 (emphases added). 2

2 “The Supreme Court has held that Sections 2 and 6 of the 1908 Act apply to the allotments of minors, notwithstanding the language in Section 1 removing restrictions from the allotments held by minor Freedmen.” Tanner-Brown III,

(citing Truskett v. Closser,

(1915)).

3 Tanner-Brown alleges that she is the personal representative of the estate of her

grandfather, George Curls, a Cherokee Freedman Allottee who was born to former Cherokee

slave parents in Indian Country, Oklahoma, in 1897. FAC ¶ 33. Curls received 60 acres of

allotments from the Cherokee Tribe under the Curtis Act on December 5, 1910. Id. ¶ 35. At that

time, Curls was a 13-year-old minor. Id.

HIFF is an Ohio limited liability company formed for the purpose of vindicating the

rights of the estates of Freedmen minors owed fiduciary duties by Defendants under the 1908

Act. Id. ¶ 37. HIFF alleges that its “membership is comprised of persons with African and

Native American ancestry,” including “several representatives of Freedmen minor estates.” Id.

“Tanner-Brown and HIFF have filed multiple lawsuits over the past decade on behalf of

Freedmen and minor Freedmen.” Tanner-Brown III,

. “In 2014, they filed a

putative class action on behalf of descendants of Freedmen minor allottees of the Five Tribes,

alleging that the Interior Secretary breached his fiduciary duty as to the allotments.”

There,

Tanner-Brown brought suit only “in her personal capacity as a descendant” of Curls. See

Tanner-Brown v. Jewell,

(D.D.C. 2016). This Court dismissed the case

after finding that Tanner-Brown’s hereditary relationship with Curls was insufficient to establish

standing and that HIFF failed to plead associational standing. See

at 109–13. The D.C.

Circuit affirmed. Tanner-Brown v. Zinke,

(D.C. Cir. 2017) (per curiam), cert.

denied

(2018).

In March 2021, Plaintiffs brought this similar putative class action seeking an accounting

to the estate of George Curls and other minor Freedmen based on alleged duties owed under

Section 6 of the 1908 Act. See Compl. ¶ 36–39, ECF No. 1. This time, Tanner-Brown brought

suit as a personal representative of Curls’ estate. Id. ¶ 8. Defendants moved to dismiss, ECF

4 No. 15, and the Court granted the motion after concluding that Plaintiffs lacked standing, ECF

No. 21; Tanner-Brown I,

, at *1.

Plaintiffs moved to alter or amend the judgment under Rule 59(e), ECF No. 24, and to

certify a class action, ECF No. 22. The Court denied the motion for reconsideration, reasoning

that Section 6 of the 1908 Act did not create a trust relationship between Plaintiffs and the

Interior Secretary, and because any duties the 1908 Act created were discretionary. See Tanner-

Brown v. Haaland (“Tanner-Brown II”),

, 6–7 (D.D.C. 2022). The Court also

denied Plaintiffs’ motion for leave to file a class action motion as moot. Id. at 7.

On appeal, the D.C. Circuit affirmed this Court’s decision that HIFF lacked associational

standing. Tanner-Brown III,

. But the Circuit concluded that Tanner-Brown had

sufficiently alleged Article III standing, “assum[ing] that Tanner-Brown is correct on her legal

theory that the statute could give rise to a trust relationship with attendant fiduciary duties under

certain circumstances, including if a guardian or representative were appointed by the Secretary

or the history of the government’s control created a trust.”

at 443–46. On the merits, the

panel concluded it did “not know if the federal government owes any duty to Curls’ estate

because [it did] not know whether the Secretary appointed a representative to oversee his

allotment pursuant to Section 6.”

. The panel accordingly remanded the matter back to

this Court.

.

On remand, Plaintiffs amended their Complaint to add a claim for “breach of trust and

fiduciary duties in management of trust funds, land and resources.” FAC ¶¶ 111–14. The

operative Complaint still does not identify any HIFF members other than Tanner-Brown.

Defendants have moved to dismiss the Amended Complaint under Rule 12(b)(1) as to HIFF, and

5 Rule 12(b)(6) as to Tanner-Brown. Defs.’ Mem. P. & A. in Supp. of Mot. to Dismiss (“MTD”),

ECF No. 46-1. The motion is now fully briefed and ready for this Court’s consideration.

III. LEGAL STANDARD

When considering a motion to dismiss for lack of subject matter jurisdiction under

Rule 12(b)(1), courts “construe the complaint liberally, granting plaintiff[s] the benefit of all

inferences that can be derived from the facts alleged,” and accepting those facts as true. Am.

Nat’l Ins. Co. v. FDIC,

(D.C. Cir. 2011) (quoting Thomas v. Principi,

(D.C. Cir. 2005)). “The plaintiff bears the burden of invoking the court’s subject

matter jurisdiction, including establishing the elements of standing.” Tanner-Brown III,

(quoting Arpaio v. Obama,

(D.C. Cir. 2015)). “The ‘irreducible

constitutional minimum of standing’ requires that the plaintiff suffer an injury in fact fairly

traceable to the challenged conduct of the defendant that can likely be redressed by a favorable

judicial decision.”

(quoting Lujan v. Defs. of Wildlife,

, 560–61 (1992)). To

establish associational standing, a party must show that “(a) its members would otherwise have

standing to sue in their own right; (b) the interests it seeks to protect are germane to the

organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.”

at 447 (quoting Hunt v. Wash. State

Apple Advert. Comm’n,

(1977)). The third element is prudential and focuses

on “matters of administrative convenience and efficiency, not on elements of a case or

controversy within the meaning of the Constitution.” United Food & Com. Workers Union Loc.

751 v. Brown Grp., Inc.,

(1996). Thus, where the organization’s participation

necessarily requires “consideration of the individual circumstances of any aggrieved member of

the organization,” Ctr. for Sustainable Econ. v. Jewell,

(D.C. Cir. 2015), or is

6 redundant with another party’s participation in the suit, then the organization lacks associational

standing, Tanner-Brown III,

.

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal,

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

Twombly,

(2007)). A court must “accept all the well-pleaded factual

allegations of the complaint as true and draw all reasonable inferences from those allegations in

the plaintiff’s favor.” Banneker Ventures, LLC v. Graham,

(D.C. Cir.

2015). But a court need not accept as true conclusory allegations or legal conclusions. Iqbal,

.

IV. ANALYSIS

The Court first analyzes HIFF’s associational standing and concludes, yet again, that it

has failed to sufficiently plead its standing to sue. The Court then analyzes Tanner-Brown’s

claims of breach of trust and fiduciary duties, including failure to provide an accounting.

Because the Court concludes that Tanner-Brown has failed to plead that the Interior Secretary

took any steps that would have triggered duties under Section 6 of the 1908 Act, the Court finds

she has failed to state a claim, and grants Defendants’ motion to dismiss without addressing the

parties’ statute of limitations arguments.

A. HIFF’s Lack of Standing

As discussed, this Court previously dismissed HIFF’s claims for lack of standing,

Tanner-Brown I,

, at *6–7, and the D.C. Circuit affirmed, Tanner-Brown III,

. Though Plaintiffs amended their Complaint, not much has changed regarding

pleadings about HIFF. And the Court fails to see how the threshold issue of standing that two

7 courts have previously passed on would now be “premature.” But see Pls.’ Resp. & Mem. P. &

A. in Opp’n (“Pls.’ Opp’n”) at 34, ECF No. 50. The Court again finds that HIFF has failed to

plead its associational standing.

The parties dispute only the third element of the Hunt test for associational standing: that

“neither the claim asserted nor the relief requested requires the participation of individual

members in the lawsuit.” Hunt,

. The Circuit Court’s analysis on the

“administrative convenience and efficiency” regarding HIFF’s associational standing remains

equally applicable now. See Tanner-Brown III,

(quoting United Food & Com.

Workers Union,

). As the Circuit Court explained, the relief Plaintiffs request for

their accounting claim would require “making individualized findings regarding specific

allotments held in trust for specific allottees.”

The addition of Plaintiffs’ trust

mismanagement claim does not change the Court’s analysis. See FAC ¶¶ 111–14. Setting aside

that the new claim and amended prayer for relief do not mention any Freedman other than

George Curls, see FAC at 43–46, if HIFF seeks comparable relief, then directing Defendants to

“reconvey[] . . . the allotted lands and all rights and interests therein” to the estates of other

Freedmen minors would surely require additional individualized findings, see id. at 46. If

anything, the requested relief for alleged trust mismanagement would seem to require even more

individualized findings than simply providing accountings. See Tanner-Brown III,

.

Moreover, HIFF has failed to identify a single member whose interest is not already

represented, such that “HIFF’s participation in the suit would [still] be redundant with Tanner-

Brown’s.” See

Though not mentioned in the operative Complaint, see FAC ¶ 37, Plaintiffs

argue in their opposition brief that “[t]he HIFF representatives who have standing are the other

8 members of the Family of Leatrice Tanner Brown, such as her brother Ronald and sister, Vickie

and their children, all members of HIFF,” Pls.’ Opp’n at 35 n.28, 42. But Plaintiffs seem to

forget that Tanner-Brown has standing to sue not in her capacity as a descendant of a Freedman,

but as a personal representative of a Freedman’s estate; Plaintiffs fail to allege that any of

Tanner-Brown’s family members have a similar legal relationship to a Freedman. Compare

Tanner-Brown v. Jewell,

, 109–13 (D.D.C. 2016), with Tanner-Brown III,

. Further, Plaintiffs fail to identify any HIFF member who would have standing

to sue on behalf of an estate other than George Curls, so participation of Tanner-Brown’s

siblings would still be redundant with her participation. See Defs.’ Reply at 15, ECF No. 51.

Plaintiffs argue that they have identified additional members with standing by describing

them. See Pls.’ Opp’n at 34–35. That argument is foreclosed by Circuit precedent. “When a

petitioner claims associational standing, it is not enough to aver that unidentified members have

been injured.” Chamber of Com. of U.S. v. EPA,

(D.C. Cir. 2011). “Rather,

the petitioner must specifically ‘identify members who have suffered the requisite harm.’”

(quoting Summers v. Earth Island Inst.,

(2009)). Plaintiffs’ Amended

Complaint describes HIFF’s membership as “comprised of persons with African and Native

American ancestry, each of whom has standing to sue in their own right and of representatives of

the estates of minor Freedmen allottees.” FAC ¶ 37. This conclusory, general reference to

unidentified representatives is legally insufficient. For these reasons, once again, the Court

concludes that HIFF lacks associational standing, and grants Defendants’ Rule 12(b)(1) motion.

B. Tanner-Brown’s Failure to State a Claim

Both of Tanner-Brown’s accounting and trust mismanagement claims depend on the

existence of trust or fiduciary duties owed by the Interior Secretary to Curls. See Pls.’ Opp’n

9 at 10–22 (addressing the FAC’s two claims together). For reasons similar to those articulated in

Tanner-Brown II, the Court concludes Tanner-Brown has failed to plead or otherwise support

that the Interior Secretary took steps that would have triggered any duty under Section 6 of the

1908 Act, and that in the absence of any duty, Tanner-Brown’s claims fail.

“Although there is a ‘general trust relationship between the United States and the Indian

People,’ the Supreme Court has explained that this relationship in itself does not give rise to any

fiduciary obligation of the federal government.” Tanner-Brown III,

(quoting

United States v. Mitchell,

(1983)). “The Federal Government owes judicially

enforceable duties to a tribe ‘only to the extent it expressly accepts those responsibilities.’”

Arizona v. Navajo Nation,

(2023) (quoting United States v. Jicarilla Apache

Nation,

(2011)). “Whether the Government has expressly accepted such

obligations ‘must train on specific rights-creating or duty-imposing’ language in a treaty, statute,

or regulation.” 3

(quoting United States v. Navajo Nation,

(2003)). The

Supreme Court has described this requirement as rooted in “separation of powers principles.”

3 At times, Plaintiffs appear to challenge this authority based on older Supreme Court precedents—namely, Mitchell II and White Mountain Apache Tribe—to argue that Defendants breached a “trust relationship between the Freedmen minors and Defendants . . . rooted in and derived from a federal treaty, as well as a body of law that endorses the trust principals expressed in that treaty.” See Pls.’ Opp’n at 13–14 (citing United States v. Mitchell,

(1983), and United States v. White Mountain Apache Tribe,

(2003)). Notably the Supreme Court’s majority opinion in Arizona v. Navajo Nation did not discuss either of those cases. See

(2023). But see id. at 597–98 (Gorsuch, J., dissenting) (comparing the Navajo’s complaint to the claims in Mitchell II and White Mountain Apache Tribe). Regardless, the Supreme Court’s majority opinion and the Circuit’s opinion in this case reaffirm that any duty must derive from the text of a treaty, statute, or regulation. See id. at 564; Tanner-Brown III,

. Thus, Defendants are correct that “[u]nder now-settled law, Plaintiffs cannot simply rely on the existence of a trust relationship or general trust principles to state a claim for an accounting or for trust mismanagement.” See Defs.’ Reply at 4–6.

10 Here, Tanner-Brown derives the Interior Secretary’s alleged duties from Section 6 of the

1908 Act. 4 See, e.g., Pls.’ Opp’n at 17–19. As the Circuit Court explained in this case:

Section 6 details the extent of the Secretary’s duties owed to minor allottees. The Secretary is “empowered” to appoint “local representatives” “as he may deem necessary to inquire into and investigate the conduct of guardians or curators having in charge the estates of such minors.” 1908 Act § 6. The statute thus initially confers a discretionary power: the Secretary may choose, but is not obligated, to appoint a representative if she deems it necessary. If the representative then concludes that a minor’s allotment is not being properly cared for, he “shall have power and it shall be [his] duty” to report the matter to the probate court, have the matter fully investigated, prosecute any remedy necessary to protect the minor allottee’s interests and “make full and complete reports to the Secretary.” Id. Once the Secretary takes the discretionary step of appointing a representative and the representative forms the opinion that the allotment is not being properly cared for, then, there are certain statutory duties owed to the minor allottees.

Tanner-Brown III,

(alteration in original) (emphases added). Thus, the

Secretary’s duties are conditioned on the Secretary first appointing a representative. See

Plaintiffs resist this interpretation. See Pls.’ Opp’n at 19 (“Defendants’ current excuse is that the

Secretary was not required to appoint representatives, that this duty was only discretionary, and

thus the Secretary could in his discretion ignore Section 6 and be totally off the hook.”). But this

Court is bound by the Circuit Court’s interpretation of the 1908 Act.

The Circuit Court did “not know if the federal government owes any duty to Curls’ estate

because [it did] not know whether the Secretary appointed a representative to oversee his

allotment pursuant to Section 6.” Tanner-Brown III,

. That problem persists.

As the Circuit court explained, “Tanner-Brown seeks an accounting because she lacks

information that is likely to be in Interior’s possession regarding Curls’ estate—including

whether a representative was appointed.”

But Tanner-Brown has failed to plead her

4 Though Tanner-Brown also refers to Section 2 of the 1908 Act, she provides no explanation for why that Section would establish any duty independent of Section 6. See, e.g., FAC ¶ 56; Pls.’ Opp’n at 19.

11 entitlement to an accounting, as she does not even plead that the Secretary appointed a

representative to oversee Curls’ estate. See FAC.

The arguments in Plaintiffs’ opposition brief are similarly deficient. Tanner-Brown

argues that “there is record proof that such representatives were actually appointed, including for

the Curl[s] Freedmen minors.” Pls.’ Opp’n at 19. But she does not provide any citation to

support that assertion. See

In fact, she argues that the “Interior Department has no records of

management of George Curls’ allotments.” Id. at 9.

Moreover, Tanner-Brown has failed to explain how any of the documents attached to her

Complaint plausibly support that the Interior Secretary appointed a representative for Curls’

estate either. The Circuit Court acknowledged that “federal courts were involved with Curls to

some extent” and cited filings from the U.S. Court for the Indian Territory in a case captioned In

the matter of the Guardianship of Willie Curls, Edward Curls, James Curls, George Curls,

Stephenia Curls, Beatrice Curls and Julius Curls. Tanner-Brown III,

. The

cited documents all involve Rathburn Alden, who served as the guardian of Curls and his

siblings before Curls received his allotments in 1910. Ex. F to FAC (“Ex. F”) at 2, 20, 69, ECF

Nos. 43-8, 43-11. These documents appear to be related to the same documents this Court

addressed in its decisions in Tanner-Brown v. Jewell,

, 112 n.7 (D.D.C.

2016), and Tanner-Brown I,

, at *5 n.5. Though the Court previously noted

“some limited evidence of mismanagement or impropriety on the part of a man named Rathburn

Alden, who served as the guardian of George Curls and his siblings for a short period,” Plaintiffs

do not explain how these documents support the proposition that the Interior Secretary appointed

a representative for Curls’ estate. See Tanner-Brown v. Jewell,

, 112 n.7

(D.D.C. 2016). In fact, Plaintiffs do not even discuss these documents in their opposition brief.

12 The Court finds that these documents are insufficient to support Plaintiffs’ claims. First,

as the Court previously noted, Alden was no longer the guardian of George Curls’ estate in 1910,

when he received his allotments, as Riley Curls was appointed guardian of George Curls’ estate

in August 1908.

Second, Plaintiffs do not allege that either of these guardians were

representatives appointed by the Secretary. And third, the fact that these documents were filed in

a federal court does not indicate that the Secretary appointed a representative. For instance,

some of the documents concerned “Oil and Gas Mining Lease[s].” See, e.g., Ex. F at 3. Under

Section 2 of the 1908 Act, “leases of restricted lands for oil, gas or other mining purposes”

required approval by the Secretary. But this authority does not mean that the Secretary

appointed representatives “to inquire into and investigate the conduct of guardians or curators

having in charge the estates of . . . minors” by virtue of regulating oil and gas leasing. See 1908

Act § 6. In the absence of factual allegations, or any meaningful explanation, to support that a

representative had been appointed to investigate the guardian of Curls’ estate, the Court sees no

fact from which to infer this key event occurred and triggered specific duties. As a result,

Tanner-Brown has failed to plead a plausible trust or fiduciary duty that Defendants could have

breached, so her claims for an accounting and trust mismanagement must both be dismissed.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 46) is GRANTED.

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: September 24, 2025 RUDOLPH CONTRERAS United States District Judge

13