Alabama-Quassarte Tribal Town v. United States of America et al

Filing 193

ORDER by Judge Ronald A. White granting Motion to Dismiss of Defendant Muscogee (Creek) Nation ( 181 Motion to Dismiss ) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
ALABAMA-QUASSARTE TRIBAL TOWN,
Plaintiff,
v.

Case No. CIV-06-558-RAW

(1) UNITED STATES OF AMERICA,
(2) SALLY JEWELL, Secretary of the United
States Department of the Interior,
(3) KEVIN K. WASHBURN, Associate
Deputy of the Department of the Interior,
(4) JACK LEW, Secretary of the Treasury, and
(5) MUSCOGEE (CREEK) NATION,
Defendants.

ORDER & OPINION
Before the court is the motion to dismiss the First Amended Complaint by the Muscogee
Creek Nation (hereinafter “Creek Nation”) [Docket No. 181]. The Federal Defendants filed a
response, requesting that the Creek Nation’s motion be granted. For the reasons set forth below,
the motion is hereby granted.
Brief History of this Action
The Alabama-Quassarte Tribal Town (hereinafter “Plaintiff” or AQTT”) filed this case
on December 29, 2006 against the United States, the Secretary and the Associate Deputy
Secretary of the U.S. Department of the Interior (hereinafter “DOI”), and the Secretary of the
U.S. Department of the Treasury. The AQTT alleged that certain lands known as the Wetumka

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Project lands were purchased under OIWA for the benefit of Plaintiff. The AQTT 1 requested a
declaratory judgment that the Defendants failed to fulfill their legal obligations and duties as
trustees and an order compelling Defendants: (1) to assign the Wetumka Project lands to the
AQTT, and (2) to provide the AQTT with a full and complete accounting of all the AQTT’s trust
funds and assets.
On November 17, 2008, in ruling on the Defendants’ motion for partial judgment on the
pleadings, the court entered an Order & Opinion dismissing all claims related to the Wetumka
Project lands. The court found that the Wetumka Project lands were never placed in trust for the
AQTT, the AQTT’s claims related to the Wetumka Project lands accrued on or before April 29,
1942, and thus those claims were time barred. Docket No. 50, pp. 9-14. The court further found
that the Creek Nation is a necessary party to any claim regarding the Wetumka Project lands and
could not be joined. Id. at 13-14. Plaintiff’s claims related to the alleged tribal trust account, the
“Surface Lease Income Trust,” remained. 2 Id.
On September 21, 2010, the court denied Defendants’ motion to dismiss and the parties’
cross motions for summary judgment. In that Order & Opinion, the court noted that from 1961
to 1976 income from surface leases on the Wetumka Project lands was deposited into IIM
account number xxxx0008 in the AQTT’s name. 3 At some point, the funds in that account were

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The AQTT is a federally-recognized Indian tribe based in Wetumka, Oklahoma. The
AQTT ratified its constitution and bylaws on May 24, 1939, and subsequently received federal
recognition from the DOI for the purposes of organizing under the Oklahoma Indian Welfare Act
(“hereinafter OIWA”). The AQTT is one of three Creek Nation tribal towns organized and
charged under OIWA pursuant to the provisions of 25 U.S.C. § 503.
2
According to the AQTT, between 1961 and 1976, income from surface leases derived
from the Wetumka Project lands was deposited into an Individual Indian Money (hereinafter
“IIM”) account in the AQTT’s name and was later transferred to a tribal trust account in its
name. The court termed this the “Surface Lease Income Trust.”
3
A letter from an Oklahoma Agency Field Representative indicated that as of August 31,
1989, the AQTT’s IIM account balance was $32,364,31.
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moved into Proceeds of Labor (hereinafter “PL”) account number xxxx7067. The court
continued to refer to those funds as the “Surface Lease Income Trust.” The court found that
Defendants ignored substantial evidence demonstrating that the Surface Lease Income Trust was
created for the benefit of the AQTT and that Defendants’ conclusion on the ownership of the
Surface Lease Income Trust was arbitrary and capricious.
The court remanded this action to Defendants for additional investigation and
explanation. The court directed Defendants to assemble a full administrative record to include
all of the evidence they possess with regard to the Surface Lease Income Trust and to reconsider
their decision on the matter of ownership of that Trust.
On remand, this action was referred to the Interior Board of Indian Appeals (hereinafter
“IBIA”). The Creek Nation entered an appearance in the matter and submitted a brief on the
issues, “request[ing] the Interior Board of Indian Appeals to find and order that the Surface
Lease Income Trust is the beneficial property of [the Creek Nation] and not AQTT.” Docket No.
185, Exh. 4, p. 4. On October 23, 2014, the IBIA issued its final reconsidered decision on
referral from the Assistant Secretary of Indian Affairs. The IBIA determined that the Surface
Lease Income Trust was not held for the AQTT.
On March 3, 2015, Plaintiff filed its First Amended Complaint, adding the Creek Nation
as a Defendant and adding a claim for appeal of the IBIA’s decision as again being arbitrary and
capricious. Plaintiff also added a claim for assignment of the Wetumka Project lands, stating
that on remand it discovered that the Creek Nation had passed a resolution assigning the
Wetumka Project lands to the AQTT.
Now before the court is the Creek Nation’s motion to dismiss the First Amended
Complaint. The Creek Nation argues that this court has no jurisdiction over Plaintiff’s claims

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against the Creek Nation absent an express waiver of the Creek Nation’s sovereign immunity.
The Creek Nation further argues that Plaintiff’s claims regarding the Wetumka Project lands are
untimely and barred by doctrines of estoppel and preclusion.
Creek Nation’s Sovereign Immunity
The AQTT argues that when the Creek Nation filed its brief in this matter before the
IBIA requesting that the IBIA find that the Surface Lease Income Trust belongs to the Creek
Nation, the Creek Nation waived its sovereign immunity. The Creek Nation argues that it did
not waive its sovereign immunity and thus this court does not have jurisdiction over it.
“Suits against Indian tribes are . . . barred by sovereign immunity absent a clear waiver
by the tribe or congressional abrogation.” Oklahoma Tax Comm’n v. Citizen Band Potawatomi
Indian Tribe of Okla., 498 U.S. 505, 509. (1991) (emphasis added). In Citizen Band
Potawatomi, after the tribe sued the state to enjoin the assessment of taxes, the state
counterclaimed requesting enforcement of the tax claim and that the tribe be enjoined from
further sales without collecting and remitting those taxes. The Court held that the tribe had not
waived its sovereign immunity. It reasoned that as they have immunity from direct suit, Indian
tribes are similarly immune from cross-suits. Id. In that case, the cross-suit involved the very
same subject matter as the suit brought by the tribe.
Following the rule of law stated in Citizen Band Potawatomi, it is clear that the Creek
Nation has not waived its sovereign immunity here. The Creek Nation has not even brought a
cross-suit. It simply filed a brief before the IBIA, as was requested. Such action is not a waiver
and certainly not a clear one. Accordingly, this court has no jurisdiction over the Creek Nation.

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Wetumka Project lands
This court previously dismissed all claims related to the Wetumka Project lands. The
court found that the Wetumka Project lands were never placed in trust for the AQTT, the
AQTT’s claims related to the Wetumka Project lands accrued on or before April 29, 1942, and
thus those claims were time barred. Docket No. 50, pp. 9-14. The claims were barred both by
the Indian Claims Commission Act of 1946 and the six year statute of limitations set forth in 28
U.S.C. §2401(a).
The AQTT filed its First Amended Complaint to resurrect its claim for declaratory relief
requiring the assignment of the Wetumka Project lands. The AQTT states it discovered new
evidence while this action was on remand. The evidence is a Creek Nation tribal resolution
requesting that the Wetumka Project lands be assigned to the AQTT. The resolution was drafted,
signed, and filed with the United States in 1980. Docket No. 185, Exh. 2; Docket No. 185, Exh.
3, p. 316. This was a public document. Any possible claim here accrued in 1980. Again, the six
year statute of limitations has passed. Accordingly, the Wetumka Project land claim is again
dismissed.
Conclusion
The Creek Nation’s motion to dismiss the First Amended Complaint is hereby
GRANTED. 4
IT IS SO ORDERED this 7th day of January, 2016.
______________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA

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The court notes that the AQTT’s claims against the remaining Defendants with regard
to review of the IBIA’s decision as to the Surface Lease Income Trust remain.
5