ROBERT SWIFT ARROW DANIEL ROSE DIGADATLADV AYANULI v. USA

Filing 6

UNREPORTED OPINION and ORDER granting 5 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Senior Judge Charles F. Lettow. (dls) Service on parties made. (Plaintiff served via certified mail; Article No. 7016 3010 0000 4308 4768)

ORIGINAL
3Jn tbe Wniteb ~tates Qeourt of jfeberal Qelaims
No. 18-569L
(Filed: July 19, 2018)
(NOT TO BE PUBLISHED)

FILED
JUL 19 2018
U.S. COURT OF

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ROBERT SWIFT ARROW DANIEL
ROSE DIGADATLADV A Y ANULI,

Plaintiff,

v.
UNITED STA TES,

Defendant.

FEDERAL CLAIMS

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Robe1t Swift AlTow Daniel Rose Digadatladv Ayanuli, pro se, Tellico Plains, Tennessee.
Antonia R. Soares, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Depaitment of Justice, Washington, D.C., for defendant. With her on the motion were
Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Robe1t E. Kirschman,
Jr., Director, and Elizabeth M. Hosford, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C.
OPINION AND ORDER
LETTOW, Senior Judge.
Plaintiff, Robert Swift Arrow Daniel Rose Digadatladv Ayanuli, asserts claims on behalf
of himself, his son, and other individuals, as well as an entity called the Cherokee Nation of
Indians. He alleges takings of land, identity theft, "bad men" claims, tmt and criminal claims,
and human and religious rights violations stemming from the actions of various local, state, and
federal officials. Pending before the court is the government's motion to dismiss for lack of
subject matter jurisdiction, Def.' s Mot. to Dismiss Pl.' s ... Compl. ("Def. ' s Mot. "), ECF No. 5,
which motion the court grants for the reasons stated.

7016 3010 DODO 4308 4768

BACKGROUND
Mr. Rose' identifies himself as the traditionally appointed chief of the Cherokee Nation
of Indians, which entity he concedes is not recognized by the Bureau of Indian Affairs. Comp!.
at 11-13. He does maintain, however, that the Cherokee Nation of Indians is "on the list of
Treaty Nations at the [United States Department of State)." Comp!. at 11. He also claims that
the Cherokee Nation of Indians is a treaty successor to the Treaty of 1730, which is a treaty
entered into between the "nation of the Cherrokees" and Great Britain, 46 years before the
Declaration oflndependence. Comp!. at 2-3 (emphasis omitted). As such, Mr. Rose claims the
Cherokee Nation oflndians has "[o]riginal [s]overeignty" as a result of the "preexisting and
super[s]eding [t]reaty agreement." Comp!. at 3. Accordingly, Mr. Rose seeks to assert claims on
behalf of himself, his son, the Cherokee Nation of Indians, and various "Cherokee Treaty
Indians." Comp!. at I, 5, 13. Mr. Rose makes reference to an attorney of record, but he is
appearingpro se. Comp!. at 14 & Attach. I at 1. Only Mr. Rose's signature appears on the
complaint. Comp!. at 13.
Mr. Rose asserts various human and religious rights violations as well as treaty violations
under assorted bad men clauses. Comp!. at 4-9. 2 His claims rely on three treaties: the "Treaty of
1730," the "Treaty of 1791," and the "Treaty of 1819." Comp!. at 1, 2, 20-26. 3 The numerous
allegations stem from what appear to be incidents with local, state, and federal law enforcement
and courts. One such incident stemmed from court proceedings in North Carolina where Mr.
Rose alleges that human and religious rights violations occurred when his eagle feathers were
crnshed, his religious medicine bag was dumped out, and he was unlawfully imprisoned when
held in contempt of court for speaking his native Cherokee language. Comp!. at 4. Another such
1

The court refers to the plaintiff as "Mr. Rose." "Digadatladv Ayanuli" appears to be a
title or honorific held by Mr. Rose. See Comp!. at 14, 15.
2

Bad men clauses appeared in nine treaties executed between the United States and
Native American tribes in 1868. See Note, A Bad Man Is Hard to Find, 127 Harv. L. Rev. 2521,
2525 (2014). Bad men clauses typically contained language to the following effect: "If bad men
among the whites ... shall commit any wrong upon the person or property of the Indians, the
United States will ... proceed at once to ... reimburse the injured person for the loss sustained."
Id. at 2525-26. Although bad men claims have been infrequently litigated, this court has
exercised jurisdiction over such claims. See id at 2528-29; see also Elk v. United States, 87 Fed.
Cl. 70, 72, 96 (2009); Hebah v. United States, 192 Ct. Cl. 785, 792 (1970).
3

The "Treaty of 1730" appears to refer to a treaty made between Great Britain and the
Cherokees regarding trade and relations between the English Colonies and the Cherokee tribe.
See Cherokee Treaty of Alliance and Commerce, Sept. 30, 1730, 33 Consol. T.S. 277. The
"Treaty of 1791" refers to a treaty between the United States and the Cherokee tribe regarding
"Peace and Friendship." See Treaty with the Cherokee, July 2, 1791, 7 Stat. 39. Mr. Rose refers
specifically to Article IX of the "Treaty of 1791," which is titled "No citizen to settle on Indian
lands." Id The "Treaty of 1819" refers to a treaty concerning the cession of Cherokee lands to
the United States. See Treaty with the Cherokee, Feb. 27, 1819, 7 Stat. 195.
2

incident involved North Carolina law enforcement officers who allegedly trespassed, imprisoned
three "Treaty Indians," and seized gaming equipment. Comp!. at 5. Mr. Rose similarly claims
that an encounter with Tennessee law enforcement officers resulted in unlawful imprisonment
and the theft of several items, including a Cherokee passport, driver's license, license plate, and
vehicle. Comp!. at 6. He also alleges that park rangers in the Great Smoky Mountains National
Park threatened five "Treaty Indians." Comp!. at 8. Further, Mr. Rose asserts that an unnamed
party threatened him, racially profiled and traumatized his son, and forced a "Treaty Indian" to
pay a fine. Comp!. at 5, 6. Mr. Rose raises comparable claims on behalf of other "Treaty
Indian[ s]" who were held in contempt of court and fined, again claiming trespass, unlawful
imprisonment, judicial misconduct, and unlawful seizure of money. Comp!. at 4-5, 7.
In addition to the various allegations of treaty violations, Mr. Rose raises assorted Fifth
Amendment takings claims. He contends that the Treaty of 1834, which conveyed land from the
Cherokees to the United States, is invalid because the "Cherokee 'Tribe' of Indians ... never got
the consent of[the] Cherokee [N]ation oflndians to sign the Treaty." Comp!. at I (emphasis
omitted); see Treaty with the Cherokee, Dec. 19, 1834, arts. 1-2, 7 Stat. 478. He alleges thatthe
Cherokee Nation oflndians is owed the "[r]eturn of lands ... within the lawful jurisdiction of
Cherokee Country by the Treaty of 1791 Article IX" and the "Treaty of 1819." Comp!. at 2. He
also seeks the "return of 1000 acres stolen from [the] Cherokee Nation of Indians." Comp!. at 2.
Fmther, he asserts that land in the Great Smoky Mountains National Park was taken in an "act of
eminent domain" in violation of several treaties. Comp!. at 12. Finally, he claims that the States
of Georgia and Tennessee owe the Cherokee Nation oflndians payments for the use of highways
and roads constrncted in "Cherokee Country," which payments were allegedly due twenty years
after the completion of said highways and roads. Comp!. at 2. Finally, Mr. Rose alleges identity
theft by the State of Tennessee for its use of the "Royal Crown title Cherokee name
'Tennessee,'" Comp!. at 3, and by the United States for its use of the name "America." Comp!.
at 1, 11. This latter use allegedly violates the Treaty of 1730 between the "Cherrokees in
America" and Great Britain. Comp!. at 11.
As a remedy, Mr. Rose requests $600,000 in damages for each of the 29 alleged treaty
violations, as well as "29 live eagles of [his] choosing from various aviaries or ZOOs" for use in
traditional religious ceremonies. Comp!. at 10-11. He also seeks transfer of 1000 acres of land
to the Cherokee Nation of Indians and "surrender and transfer of operations ofTDOT and GDOT
to Cherokee Nation oflndians." Comp!. at 10 (emphasis omitted). He seeks additional damages
of $90,000,000 to remedy the alleged identity theft occurring from use of the name "Tennessee,"
as well as a 10% annual royalty payment to the Cherokee Nation oflndians for the State's
continued use of the name. Comp!. at 10. He seeks the same amount from the United States for
the use of the name "America." Comp!. at 11. Finally, as a remedy for the alleged payments
owed to the Cherokee Nation of Indians for the use of roads, highways, and turnpikes, Mr. Rose
seeks "all [park ranger offices] and [national forest lands] from Great Tellico to S[ugarland]"4 be
transferred to the Cherokee Nation oflndians. Comp!. at 10.
4

Mr. Rose appears to be referring to lands within the Great Smoky Mountains National
Park, extending from Tellico Plains, Tennessee to the Sugarlands Visitor Center near Gatlinburg,
Tennessee.
3

STANDARDS FOR DECISION
Jurisdiction must be established as a threshold matter before the court may proceed to the
merits of a case. Steel Co. v. Citizens for a Better Env 't, 523 U.S. 83, 94 (1998). When
jurisdiction is challenged, the plaintiff bears the burden of proving subject matter jurisdiction.
M Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010). While a
pro se litigant is afforded some leniency as to legal formalities, this does not relieve him or her
from meeting their jurisdictional burden. Kelley v. Secretary, United States Dep 't ofLabor, 812
F.2d 1378, 1380 (Fed. Cir. 1987).
The Tucker Act provides this court with jurisdiction to entertain "any claim against the
United States founded either upon the Constitution, or any Act of Congress or any regulation of
an executive department, or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(l). The
Tucker Act, however, is a jurisdictional statute that creates no substantive right to money
damages. In re United States, 463 F.3d 1328, 1333 (Fed. Cir. 2006). Thus, to establish
jurisdiction, a plaintiff is required to "point to a substantive right to money damages against the
United States." Hamlet v. United States, 63 F.3d 1097, 1101 (Fed. Cir. 1995) (citing United
States v. Testan, 424 U.S. 392, 398 (1976)).
Similarly, the Indian Tucker Act confers jurisdiction upon this court to hear claims
presented by Native American entities or groups for claims accruing after August 13, 1946, that
would otherwise be cognizable in this comt if the claimant were not an Indian tribe. See 28
U.S.C. § 1505; United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009). The Indian Tucker
Act applies to "tribe[s], band[s], or other identifiable group[s] of American Indians," and not to
individual tribal members. See 28 U.S.C. § 1505; see also Tsosie v. United States, 825 F.2d 393,
401 (Fed. Cir. 1987) ("[A]n Indian tribe can sue on a treaty under 28 U.S.C. § 1505 and an
individual Indian can sue under 28 U.S.C. § 1491 .... "). Substantive rights are not created by
the Indian Tucker Act, so plaintiffs must identify a separate source of law that establishes
specific duties and allege that the government has failed to perform those duties. Hopi Tribe v.
United States, 782 F.3d 662, 666 (Fed. Cir. 2015) (citing Navajo Nation, 556 U.S. at 290).
A complaint raising claims that are outside this court's jurisdiction must be dismissed, for
the comt in that circumstance lacks adjudicative power. RCFC 12(h)(3) ("If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action."); see also Gray v. United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74
U.S. (7 Wall.) 506, 514 (1868) ("Without jurisdiction the court cannot proceed at all in any
cause.")); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)).
ANALYSIS
This court does not have jurisdiction over the claims Mr. Rose, as a pro se litigant, brings
on behalf of the Cherokee Nation of Indians and its members. The Rules of the Court of Federal
Claims provide that"[ a]n individual who is not an attorney may represent oneself or a member
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of one's immediate family, but may not represent a corporation, an entity, or any other person in
any proceeding before this court." RCFC 83.l(a)(3). The term "immediate family members" is
defined as "parents, spouse, children, and siblings." Fast Horse v. United States, 101 Fed. Cl.
544, 548 (2011) (quoting Black's Law Dictionary 273 (8th ed. 2004)) (internal citations
omitted).
That the Cherokee Nation of Indians is not a federally recognized tribe, see, e.g., Indian
Entities Recognized and Eligible to Receive Services from the United States Bureau oflndian
Affairs, 81 Fed. Reg. 5019-02, 5020 (Jan. 29, 2016) (listing federally recognized tribes),
engenders further jurisdictional constraints. Representation by a prose litigant of a federally
non-acknowledged tribe is not permitted. See Williams v. United States, 482 Fed. Appx. 580,
582 (Fed. Cir. 2012) (holding that a pro se litigant was barred from asserting claims on behalf of
an Indian tribe that was not federally recognized.); Michael v. United States, No. 14-757L, 2014
WL 5395877, at *2 (Fed. Cl. Oct. 23, 2014) ("Prose representation [of an alleged Indian group]
is prohibited under RCFC 83. l(a)(3) because the group has not been federally acknowledged as a
sovereign Indian tribe."). Because Mr. Rose is not an attorney, he may not bring claims on
behalf of the Cherokee Nation oflndians or its members.
Additionally, the Cherokee Nation oflndians, as such, is not party to any of the treaties
cited by Mr. Rose. As a nonparty to the treaties, neither Mr. Rose nor the Cherokee Nation of
Indians would have a cause of action to enforce said treaties. See Medellin v. Texas, 552 U.S.
491, 505 (2008) ("A treaty ... 'depends for the enforcement of its provisions on the interest and
the honor of the governments which are patiies to it."') (quoting Head Money Cases, 112 U.S.
580, 598 (1884)); Medellin, 552 U.S. at 506 & n.3 ("[I]nternational agreements, even those
directly benefiting private persons, generally do not create private rights or provide for a private
cause of action in domestic courts.") (quoting Restatement (Third) of Foreign Relations Law of
the United States§ 907, cmt. a (Am. Law Inst. 1986)).
Moreover, Mr. Rose's invocation of claims based on bad men clauses fails to state a
cause of action on which relief could be granted because the treaties he relies on either do not
involve the United States as a party or do not contain such clauses. Although the Federal Circuit
has held that Tucker Act jurisdiction extends to certain claims under bad men provisions, Tsosie,
825 F.2d at 399-400, Mr. Rose has failed to allege facts sufficient to state a claim under such
provisions, see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("[P]laintiffs
obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and
conclusions .... ") (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The United States was
not a paiiy to the Treaty of 1730-indeed, that treaty was concluded decades before the United
States Government was formed. See Cherokee Treaty of Alliance and Commerce, Sept. 30,
1730, 33 Consol. T.S. 277; Comp!. at 2-3. Additionally, neither the Treaty of 1791 nor the
Treaty of 1819 contain bad men provisions. See Treaty with the Cherokee, July 2, 1791, 7 Stat.
39, Comp!. at 20-23; Treaty with the Cherokee, Feb. 27, 1819, 7 Stat. 195, Comp!. at 24-26.
To the extent Mr. Rose alleges takings of land under the Fifth Amendment, those claims
are time-barred. This court has jurisdiction over takings claims because the Takings Clause is a
money-mandating constitutional provision. Jan's Helicopter Serv., Inc. v. Federal Aviation

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Admin., 525 F.3d 1299, 1309 (Fed. Cir. 2008) ("[T]he Takings Clause of the Fifth Amendment is
a money-mandating source for purposes of Tucker Act jurisdiction"). Nonetheless, Mr. Rose's
takings claim, even under a charitable reading, would have accrued in the 1700s or 1800s and
consequently are far outside this court's six-year statute oflimitations. 28 U.S.C. § 2501
("Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred
unless the petition thereon is filed within six years after such claim first accrues."). Further, even
if Mr. Rose were permitted as a pro se litigant to bring claims on behalf of the Cherokee Nation
oflndians, those claims too would be untimely under the Indian Tucker Act's coextensive
limitations period. 5 Additionally, this court does not possess jurisdiction to award equitable
relief in the form of transferring land to the Cherokee Nation oflndians. See Williams, 2011 WL
3891124, at *1, *4 (holding that requests to return ancestral lands by a prose Indian plaintiff
were equitable in nature and thus outside this court's jurisdiction).
Further, this court does not have jurisdiction to entertain Mr. Rose's claims arising out of
the alleged conduct of local, state, and federal government officials. This court may exercise
jurisdiction only over "claim[s] against the United States," not claims against private or state
actors. 28 U.S.C. § 149l(a)(l); Moore v. Public Defender's Office, 76 Fed. Cl. 617, 620 (2007)
("When a plaintiffs complaint names private parties, or local, county, or state agencies, rather
than federal agencies, this comi has no jurisdiction to hear those allegations."); see also Fullard
v. United States, 78 Fed. Cl. 294, 300 (2007) ("This court does not have jurisdiction to hear
claims against individual federal government officials, prosecutors, or judges."). Thus, Mr.
Rose's claims involving pmiies other than the United States are outside this court's jurisdiction
and must be dismissed.
Co1Tespondingly, claims sounding in tort m·e outside the scope of this court's jurisdiction.
See 28 U.S.C. § 149l(a)(l); Shearin v. United States, 992 F.2d 1195, 1197 (Fed. Cir. 1993). Mr.
Rose asserts claims of identity theft, trespass, and the infliction of emotional distress upon his
son. Comp!. at 4-8, 10-11. To the extent these claims sound in tmi, this court does not possess
jurisdiction to hear them. See Cycenas v. United States, 120 Fed. Cl. 485, 498 (2015) ("To the
extent plaintiffs complaint asserts claims of ... identity theft ... and trespass, those claims
sound in tort, or allege criminal conduct ... [and] this court lacks jurisdiction to adjudicate those
claims."); Mastrolia v. United States, 91 Fed. CL 369, 381 (2010) ("[C]laims for pain and
suffering, emotional distress, and mental anguish sound in tort.") (citation omitted). As such,
these claims must be dismissed.

5The

Indian Tucker Act only grants this court jurisdiction to hear claims "against the
United States accruing after August 13, 1946." 28 U.S.C. § 1505 (emphasis added). Claims
which accrued before that date were required to be brought before the now no-longer-extant
Indian Claims Commission within five years of its formation. See Fast Horse, 101 Fed. Cl. at
547; Williams v. United States, 2011 WL 3891124 at *3 (Fed. Cl. Sept. 2, 2011) ("[J]urisdiction
over treaty disputes between the United States and Indians is expressly limited only to those
disputes that have accrued after 1946 ... [and plaintiffs claims] are based upon treaties signed
between 1786 and 1837"). Thus, independent of the untimeliness of the claims, Mr. Rose's
treaty claims would be outside this court's jurisdiction under the Indian Tucker Act.
6

Nor can this court exercise jurisdiction over alleged criminal, human rights, or religious
rights violations. To the extent Mr. Rose alleges theft or trespass as criminal violations, see 18
U.S.C. §§ 1163, 1167, this court does not possess jurisdiction over these claims. See 28 U.S.C.
1491(a); Fernandez de Iglesias v. United States, 96 Fed. Cl. 352, 363 (2010) ("[T]he Court of
Federal Claims lacks jurisdiction over criminal claims.") (citation omitted). Further, this court
does not have jurisdiction to hear claims of human or religious rights violations that are not
premised on a money-mandating provision of law. Sanders v. United States, 34 Fed. Cl. 75, 80
( 1995) ("This court does not have jurisdiction to entertain general civil rights claims that are not
based upon an appropriate money-mandating provision."); cf Marlin v. United States, 63 Fed.
Cl. 475, 476 (2005) ("[This] [c]ourt does not have jurisdiction to consider civil rights claims
brought pursuant to 42 U.S.C. §§ 1981, 1983, or 1985."). Mr. Rose has not identified any
money-mandating provisions of law that would plausibly relate to the rights violations he
alleges, therefore, this court may not entertain those claims.
In short, Mr. Rose's complaint alleges a variety of claims over which this court does not
have jurisdiction. As a prose litigant, Mr. Rose may not bring claims on behalf of the Cherokee
Nation of Indians or others outside his immediate family. While this court has jurisdiction over
claims based on bad men clauses, the treaties Mr. Rose cites either do not contain such clauses or
the United States is not a party to them. Additionally, the alleged takings ofland based on
treaties from the 1700s and 1800s are outside the statute oflimitations for such claims. Further,
this court does not possess jurisdiction to entertain claims against local, state, or federal
govermnent officials, or claims sounding in tort or criminal law. Finally, Mr. Rose has failed to
cite any money-mandating provision of law that would cover the human and religious rights
violations he alleges. Because Mr. Rose has failed to plead any facts that would give rise to
jurisdiction in this court, his complaint must be dismissed.
CONCLUSION
For the reasons stated, defendant's motion to dismiss is GRANTED. The clerk shall
enter judgment in accord with this disposition.
No costs.

It is so ORDERED.

Charles F. Letlow
Senior Judge

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