Cherokee Nation, The vs. Nash, et al

Filing 189

OPINION AND ORDER by Judge Terence Kern ; denying 178 Motion to Transfer Case to Other District; denying 178 Motion to Stay (vah, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
THE CHEROKEE NATION,

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Plaintiff,
v.
RAYMOND NASH, et al.
Defendants.

Case No. 11-CV-648-TCK-TLW

OPINION AND ORDER
Before the Court is the Motion of the Cherokee Freedmen (“Freedmen Defendants”) to
Transfer Or, In the Alternative, To Stay (Doc. 178).
I.

Background
A.

Procedural History

On July 2, 2010, the Court transferred Cherokee Nation v. Nash, et. al., 09-CV-52-TCK
(“Oklahoma action”), to the United States District Court for the District of Columbia (“D.C. Court”)
pursuant to the “first to file” rule. See Cherokee Nation v. Nash, 724 F. Supp. 2d 1159, 1168-72
(N.D. Okla. 2010) (holding that, due to similarity of parties and issues between the Oklahoma action
and Vann v. Salazar, et al., 03-1711-HHK (“D.C. action”), the D.C. Court should determine the
proper forum for the Oklahoma action).1 The Court transferred the Oklahoma action because the

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Nash provides extensive background information and is incorporated herein by
reference. In short, the D.C. action was filed by six individual descendants of persons listed on
the “Freedmen Roll” of the Cherokee Nation (“Freedmen Plaintiffs”) against the United States
Department of the Interior. In 2008, on interlocutory appeal, the United States Court of Appeals
for the District of Columbia Circuit (“D.C. Circuit”) held that the Cherokee Nation was immune
from suit and remanded for the district court to decide if, in equity and good conscience, the D.C.
action could proceed in the Cherokee Nation’s absence. While this question was being decided
by the D.C. Court upon remand, the Cherokee Nation filed this action.

D.C. Court’s resolution of certain legal questions already pending before it would inform, if not
control, the decision of where the Oklahoma action should proceed.
On September 30, 2011, the D.C. Court resolved those legal questions. Specifically, the
court held that dismissal of the D.C. action was proper under Federal Rule of Civil Procedure 19(b)
because the court could not, in equity and good conscience, proceed without the Cherokee Nation
as a party. See Vann v. Salazar, 883 F. Supp. 2d 44, 48-53 (D.D.C. 2011) (“Vann III”), overruled
by Vann v. United States Dep’t of Interior (“Vann IV ”), 701 F.3d 927, 929-30 (D.C. Cir. 2012). The
district court reasoned that any judgment rendered in absence of the Cherokee Nation would be
inadequate because “only the Chief . . . would be bound by the judgment” and that the Northern
District of Oklahoma was not only an “adequate alternative forum, but a superior one” based on the
Cherokee Nation’s presence in the lawsuit. Id. at 51-52. The D.C. Court denied as futile the
Freedmen Plaintiffs’ motion for leave to add the Cherokee Nation as a party, rejecting the argument
that the Cherokee Nation waived immunity in the D.C. action by filing the Oklahoma action. See
id. at 53-55 (“The [Cherokee Nation] is free to litigate these questions in the federal action of its
choosing, or not at all.”). Because the first-filed case was no longer pending, the court transferred
the Oklahoma action back to this Court. The Freedmen Plaintiffs appealed dismissal of their claims
to the D.C. Circuit.
Upon transfer, the Oklahoma action was reassigned Case No. 11-CV-468-TCK-TLW. On
December 21, 2011, the Freedmen Defendants filed their first motion to stay, arguing that this Court
should issue a stay for the same reasons it initially transferred the action. On February 1, 2012, the
Court denied the motion to stay:

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The Court declines to stay these proceedings pursuant to the first to file rule or
general discretionary principles authorizing a stay. In initially transferring this case,
the Court desired to avoid taking any action in this litigation until the D.C. Court
decided certain essential questions – namely, whether filing the Oklahoma action
waived the Cherokee Nation’s immunity in the D.C. action and whether the D.C.
action would be dismissed due to the absence of the Cherokee Nation. The D.C.
Court has decided such questions by declining to permit amendment and ultimately
dismissing the case. While there exists some possibility that the D.C. Circuit Court
of Appeals will reverse these rulings, this possibility is wholly speculative. In
addition, this Court will not be entrenching upon the appellate court’s decisions or
duplicating its efforts. The appellate court will only be reaching jurisdictional issues,
and this Court will be reaching the merits of the dispute. In short, the D.C. Court has
now issued the rulings that this Court sought to avoid encroaching upon, and the
Court finds that the Freedmen Defendants have failed to present a sufficient
justification for any further stay of these proceedings.
(Doc. 101 (footnote omitted).)
On December 14, 2012, the D.C. Circuit reversed dismissal of the D.C. action and remanded
it for further proceedings, holding that “the Cherokee Nation and the Principal Chief in his official
capacity are one and the same in an Ex parte Young suit for declaratory and injunctive relief” and
that “the Principal Chief can adequately represent the Cherokee Nation in this suit, meaning that the
Cherokee Nation itself is not a required party for purposes of Rule 19.” Vann IV, 701 F.3d at
929-30. The court reasoned:
By contrast, if we accepted the Cherokee Nation’s position, official-action suits
against government officials would have to be routinely dismissed, at least absent
some statutory exception to Rule 19, because the government entity in question
would be a required party yet would be immune from suit and so could not be joined.
But that is not how the Ex parte Young doctrine and Rule 19 case law has developed.
. . . The claim here is that the Principal Chief – and through him, the sovereign tribe
– is violating federal law. The defense is that the Principal Chief – and hence the
sovereign tribe – is not violating federal law. This case presents a typical Ex parte
Young scenario.
Id. at 930. In light of this disposition, the D.C. Circuit did “not reach the Freedmen’s argument that
the Cherokee Nation waived its sovereign immunity by filing a related suit in Oklahoma.” Id. On

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January 11, 2013, the Freedmen Defendants filed the currently pending motion to transfer or stay.
On March 12, 2013, the D.C. Circuit denied the Cherokee Nation’s petition for rehearing en banc.
(See Doc. 188.)
B.

Current Parties and Claims in the Oklahoma Action

The pleadings raise several claims, counterclaims, and cross-claims. The Cherokee Nation,
as the Plaintiff, seeks declaratory relief that descendants of individuals listed on the “Freedmen
Roll” do not currently enjoy citizenship rights within the Cherokee Nation. Such relief is sought
against five named freedmen defendants.2 The Cherokee Nation originally also sought relief against
the Secretary of the United States Department of the Interior and the United States Department of
the Interior (“Federal Defendants”) but then voluntarily dismissed its claim. Prior to dismissal of
the claim against them, the Federal Defendants asserted a counterclaim against the Cherokee Nation
seeking declaratory relief that descendants of individuals listed on the “Freedmen Roll” do currently
enjoy citizenship rights within the Cherokee Nation. This counterclaim remains pending.
The Freedmen Defendants asserted a counterclaim against the Cherokee Nation, Principal
Chief Bill John Baker (“Principal Chief”), Deputy Chief Principal Chief S. Joe Crittenden, Registrar
John Doe, and five Cherokee Nation election officials (collectively “Cherokee CounterDefendants”). This counterclaim is similar to claims asserted by the Freedmen Plaintiffs in the D.C.
action. The Freedmen Defendants allege that deprivation of their citizenship rights violates the U.S.
Constitution, the Cherokee Constitution, the Treaty of 1866, and various federal laws. The

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The Court permitted the Freedmen Plaintiffs in the D.C. action to intervene as
freedmen defendants in this case (“Intervening Freedmen Defendants”). Unless necessary for
clarification, the named Freedmen Defendants and Intervening Freedmen Defendants are
collectively referred to as “Freedmen Defendants.”
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Cherokee Counter-Defendants filed a motion to dismiss, arguing that (1) certain claims are barred
by prior orders in the D.C. action, (2) the Cherokee Nation enjoys sovereign immunity,3 and (3)
certain laws relied upon by the Freedmen Defendants do not provide a private right of action.
The Freedmen Defendants have also asserted cross-claims against the Federal Defendants,
which are similar to those asserted in the D.C. action. The Freedmen Defendants allege that the
Federal Defendants’ actions and failures to act in relation to the Freedmens’ citizenship violated the
U.S. Constitution, violated various federal laws, and constituted a breach of fiduciary duty. The
Federal Defendants filed a partial motion to dismiss, arguing that certain laws relied upon by the
Freedmen Defendants do not provide a private right of action, that it has no fiduciary duty to the
Freedmen Defendants, and that the Freedmen Defendants lack standing to bring any Equal
Protection Clause challenge. Upon joint motion of the parties, the Court delayed entering a
scheduling order pending ruling on the Cherokee Counter Defendants’ Motion to Dismiss and the
Federal Defendants’ Partial Motion to Dismiss.
II.

Motion to Transfer
The Freedmen Defendants move the Court to transfer this action to the D.C. Court. The

Federal Defendants support the motion, while the Cherokee Nation and Cherokee CounterDefendants oppose transfer. For reasons explained below, the Court declines to transfer this action
pursuant to either “first to file” principles or 28 U.S.C. § 1404(a).

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The Cherokee Nation argues that its waiver of immunity in this action is limited to the
precise declaratory relief sought and does not extend to Freedmen Defendants’ counterclaims.
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A.

First to File Rule

In Nash, the Court summarized general first to file principles:
(1) [A] second-filed court presented with a motion to transfer or stay pursuant to the
first to file rule must make the initial determination of whether the first to file rule
generally applies, i.e., whether there is sufficient overlap of parties and issues
between the two cases; (2) if the second filer argues for application of an equitable
exception to the first to file rule, a second-filed court within the Tenth Circuit has
discretion to either (a) allow the first-filed court to decide whether an exception
applies, or (b) decide for itself whether an exception applies; and (3) there is a
preference for allowing the first-filed court to decide whether an exception applies.
Nash, 724 F. Supp. 2d at 1167.4 At that time, the Court (1) concluded that the rule generally applied
due to the similarity of parties and issues; and (2) permitted the D.C. Court to decide whether any
exception applied and where the Oklahoma action should proceed. See id. at 1168-73. However,
the Court was careful to observe that it was “not refusing to hear the merits, declining to hear the
merits, or in any way indicating that it should not ultimately decide the merits” or “making any
rulings as to which forum is legally proper and/or will better serve the interests of justice.” Id. at
1172. Instead, the Court was “simply deferring to the first-filed forum to determine whether the
related actions must and/or should proceed in the [“D.C. Court”], must and/or should proceed
simultaneously in two different forums, must and/or should proceed in this Court, or some other
formulation.” Id.
Faced with this question a second time, the Court will no longer defer to the first-filed court
for deciding whether the “special circumstances” exception applies or for deciding the proper venue
for the Oklahoma action. Based on the D.C. Circuit’s ruling and denial of rehearing, it is now
settled that the D.C. action will proceed without the Cherokee Nation. There is no longer any risk

4

For a more comprehensive explanation of this rule and its exceptions, see Nash, 724 F.
Supp. 2d at 1164-67.
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of this Court entrenching on the decision of whether the Cherokee Nation waived its immunity in
the D.C. action by filing this action. Because the D.C. Circuit disposed of the appeal on Ex parte
Young grounds, this question will not be reached by the district court in the D.C. action. A crucial
reason this Court permitted the D.C. Court to act as the “traffic regulator” of the Oklahoma action
was to allow that court to decide the immunity waiver question in the first instance. See Nash, 724
F. Supp. 2d at 1171 (explaining that “the ‘special circumstances’ argued by the Cherokee Nation .
. . – its immunity in the first-filed forum – may become non-existent if [the D.C. Court] decides that
filing of this action functions as a waiver of immunity in the D.C. Action” and declining to “resolve
that question prior to the [D.C. Court]”). Now, this concern is moot, and there is no longer any
reason to “allow[] the first-filed court . . . to decide the consequences of the Cherokee Nation’s
decision to file this case while the D.C. Action was still pending.” See id. at 1172.
Applying the test explained in Nash, the Court again concludes that the first to file rule
generally applies because (1) the D.C. action was filed first, and (2) there is a similarity of parties
and issues. However, the Court now exercises its discretion to reach the “special circumstances”
exception and indeed finds that special circumstances trump the first to file rule in this case. The
special circumstances are the Cherokee Nation’s waiver of immunity in the second-filed lawsuit and
successful assertion of immunity in the first-filed lawsuit. The Cherokee Nation has made clear that
it intends to waive immunity and seek declaratory relief exclusively in this venue. Thus, upon
transfer, it would presumably cease to seek declaratory relief and would re-assert immunity for any
pending counterclaims. There would ultimately be no judgment for or against the Cherokee Nation
itself, despite the Cherokee Nation’s consent to suit in this venue.

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Under these unique

circumstances, the Court finds that immunity in the transferee forum is a special circumstance that
overrides the general first to file rule.5
The Freedmen Defendants argue that the Cherokee Nation is not actually immune in the
transferee forum because it waived immunity as to the “subject matter” by filing this action.
However, for the same reasons expressed by United States District Judge Henry H. Kennedy in Vann
III, the Court concludes that “the principles of tribal sovereign immunity allow [the Cherokee
Nation] to bring the Oklahoma action while maintaining its immunity from this suit” and that “a
sovereign’s interest in immunity encompasses not merely whether it may be sued, but where it may
be sued.” Vann III, 883 F. Supp. 2d at 53-54 (internal quotations omitted), overruled on other
grounds by Vann IV, 701 F.3d at 930 (declining to reach waiver issue due to its disposition on Ex
parte Young grounds).6 In practical effect, the lack of any “subject matter” waiver means that the
Cherokee Nation permissibly chose a second federal venue in which to seek declaratory relief, even
though similar questions are at issue in the first-filed venue. Whether viewed as a “special
circumstances” exception to the first to file rule or a lack of sufficient similarity between the parties,
the Cherokee Nation’s immunity in the first-filed case renders transfer imprudent. See generally

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The Tenth Circuit has stated that the first court to “obtain jurisdiction” has priority.
See Cessna Aircraft Co. v. Brown, 348 F.2d 689, 692 (10th Cir.1965) (“The rule is that the first
federal district court which obtains jurisdiction of parties and issues should have priority and the
second court should decline consideration of the action until the proceedings before the first
court are terminated.”). The Cherokee Nation continues to argue that this Court was the first to
“obtain jurisdiction.” As explained in Nash, however, identical overlap of parties is not required
for application of the first to file rule, and the D.C. Court was the first to obtain jurisdiction over
the Principal Chief. Thus, transfer would be permissible under the first to file rule. However,
this Court simply finds that the Cherokee Nation’s absence from that case constitutes special
circumstances weighing against transfer.
6

With respect to the issue of “subject matter” waiver, the Court adopts the reasoning in
Vann III in its entirety. See Vann III, 883 F. Supp. 2d at 53-56.
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Sotheby’s Inc. v. Garcia, 802 F. Supp. 1058, 1065-66 (S.D.N.Y. 1992) (finding “special
circumstances” warranted giving priority to the second-filed suit because, inter alia, first-filed suit
did not include one of the defendants in the second-filed action and such defendant was not
amenable to suit in first-filed court). Cf. O’Hare Int’l Bank v. Lambert, 459 F.3d 328, 330-31 (10th
Cir. 1972) (bank filed first action in Illinois, district court dismissed for lack of personal jurisdiction
over defendant, bank appealed, and bank then filed actions in Oklahoma, Texas, and Arkansas
during pendency of appeal in order to toll application of state statues of limitations) (holding that
Oklahoma court abused its discretion by denying the bank’s motion to stay because the bank first
elected to proceed in Illinois and was not engaging in vexatious behavior by filing the Oklahoma
suit). Here, in contrast to O’Hare, there are differences in the actual parties, the alignment of the
parties, and the presentation of issues that trump the general rule of deference to the first-filed court.
The Court further observes that, although this case was filed second, this venue is more
appropriately suited for reaching a final resolution of the issues. In the D.C. action, the Cherokee
Nation will likely seek further appellate review of any declaratory relief entered solely against the
Principal Chief. (See Cherokee Nation’s Resp. to Mot. to Transfer at 5 (“The Chief has no power
to change the Nation’s Constitution, which now contains a blood requirement. . . . The Chief cannot
unilaterally change the Cherokee Constitution, nor can he ignore the holdings of the Cherokee
Nation court. It is only a judgment in a court wherein the Nation has inserted itself, and agreed to
be bound by the decision, that relief can be afforded.”).) Further, there is the possibility of
additional litigation regarding enforcement of any judgment, resulting in further delay of final

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resolution of the issues. In contrast, in this forum, the Cherokee Nation has consented to a
declaration of the Freedmen Defendants’ citizenship status.7
In sum, the Court (1) exercises its discretion to decide, in the first instance, whether special
circumstances trump the first to file rule; (2) concludes that the Cherokee Nation’s waiver of
immunity in this action and successful assertion of immunity in the D.C. action constitute special
circumstances; and (3) declines to transfer under the first to file rule.
B.

28 U.S.C. § 1404(a)

The Freedmen Defendants and Federal Defendants also move the Court to transfer the action
pursuant to 28 U.S.C. § 1404(a), which provides: “For the convenience of parties and witnesses, in
the interest of justice, a district court may transfer any civil action to any other district or division
where it might have been brought.” This statute is a “federal housekeeping measure, allowing easy
change of venue within a unified federal system.” Chrysler Credit Corp. v. Country Chrysler, Inc.,
928 F.2d 1509, 1515 (10th Cir. 1991) (internal quotation omitted). District courts have discretion
to adjudicate motions for transfer according to an individualized, case-by-case consideration of
convenience and fairness. Id.

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The Freedmen Defendants are correct that the Cherokee Nation has asserted sovereign
immunity as to the Freedmen Defendants’ counterclaims and that this Court will have to address
certain immunity issues. Nevertheless, the Cherokee Nation has waived immunity as to at least
one central question underlying the parties’ dispute, and the Court finds this to be a significant
legal difference between the two cases.
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The Court declines to transfer pursuant to § 1404(a).8 The Court finds that this forum is not
inconvenient for any party. The Freedmen Defendants argue that the Cherokee Nation’s selected
forum should not be entitled to any deference because the Cherokee Nation’s headquarters are
located in the Eastern District of Oklahoma. This argument is dubious, given that much of the
Cherokee Nation’s land and citizens are located in this district. This district qualifies as a “home
forum” for the Cherokee Nation, and it is certainly more of a home forum than the District of
Columbia. More importantly, this case will likely be decided on the briefs and exhibits, rather than
on the basis of a trial. Thus, the convenience of witnesses is not an important factor.
In arguing for a § 1404(a) transfer, the Freedmen Defendants and Federal Defendants focus
on the “interest of justice” prong, arguing that transfer serves the interest of justice because it avoids
a duplication of resources and inconsistent judgments. Ordinarily, the interest of justice is served
by transferring a similar case to a first-filed venue in order to avoid duplication, preserve resources,
and prevent inconsistent judgments. See generally 15 Charles Alan Wright, Arthur R. Miller,
Edward H. Cooper, Federal Practice & Procedure § 3584 (3d ed. 2007) (collecting cases).
However, as explained above, this is a unique case in which the plaintiff seeking declaratory relief
in the second-filed forum is immune from suit in the first-filed forum. Further, this Court has held
that immunity in the first forum was not waived upon filing of the second suit. Under these
circumstances, the Court finds that a § 1404(a) transfer is not in the interest of justice,
notwithstanding any duplication of resources that may occur.

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The Court assumes without deciding that this action “might have been brought” by the
Cherokee Nation in the D.C. Court, as argued by the Federal Defendants and Freedmen
Defendants. However, the Court declines to transfer for the discretionary reasons explained
below.
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III.

Motion to Stay
In the event transfer is denied, the Freedmen Defendants and Federal Defendants

alternatively move the Court to stay this action pending the outcome of the D.C. action.

The

Cherokee Nation and Cherokee Counter-Defendants oppose a stay.
A court’s power to stay proceedings is “‘incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for itself, for
counsel, and for litigants.’” United Steelworkers of Am. v. Oregon Steel Mills, Inc., 322 F.3d 1222,
1227 (10th Cir. 2003) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). “In assessing the
propriety of a stay, a district court should consider: whether the defendants are likely to prevail in
the related proceeding; whether, absent a stay, the defendants will suffer irreparable harm; whether
the issuance of a stay will cause substantial harm to the other parties to the proceeding; and the
public interests at stake.” United Steelworkers of Am., 322 F.3d at 1227.
The Court declines to stay these proceedings for several reasons. First, the Court has no
indication as to whether the Freedmen Defendants and Federal Defendants are likely to prevail in
the D.C. court, and this factor is neutral. Second, these defendants will not suffer irreperable harm
if this Court proceeds. They may duplicate resources in simultaneously litigating the claims, but this
is not irreperable harm. Third, the public interest at stake in this case is a resolution between the
Cherokee Nation, the Federal Defendants, and the Freedmen Defendants regarding Freedmens’
citizenship rights within the Cherokee Nation. The Cherokee Nation is willing to submit to this
Court’s jurisdiction to answer this important question, while it will continue to resist enforcement
of any judgment rendered in the first-filed forum. Under these circumstances, the Court finds that
the public interest is best served by proceeding in this venue. Finally, in the event of simultaneous

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litigation, litigating in two forums should not be overly burdensome because the issues will likely
be decided based on briefing. Any concerns regarding waste of resources or the risk of inconsistent
judgments is outweighed by the Cherokee Nation’s waiver of immunity and election to proceed in
this forum.
IV.

Conclusion
This Court cannot in good conscience transfer or stay the only action in which the Cherokee

Nation has consented to resolution of these important issues. Freedmen Defendants’ Motion to
Transfer, Or in the Alternative, to Stay (Doc. 178) is DENIED.
SO ORDERED this 15th day of March, 2013.

______________________________________
TERENCE C. KERN
United States District Judge

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