Mohn v. County of Craig
Filing
6
OPINION AND ORDER by Judge Terence Kern ; dismissing/terminating case (terminates case) ; denying 3 Motion for Leave to Proceed in Forma Pauperis; finding as moot 4 Motion to Amend; finding as moot 5 Motion to Consolidate Cases (lmc, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
AYINDE MOHN,
)
)
Plaintiff,
)
)
v.
)
)
SALLY JEWELL, Secretary of the Interior )
1849 C. Street N.W.
)
Washington, D.C. 20240,
)
)
MIKE CONNER, Assistant Secretary of
)
the Interior – Indian Affairs
)
1849 C Street N.W.
)
Washington, D.C. 20240, and
)
)
JACOB J. LEW, Secretary of the Treasury )
1800 Pennsylvania Avenue N.W.
)
Washington, D.C. 20220,
)
)
Defendants.
)
Case No. 16-CV-460-TCK-TLW
OPINION AND ORDER
Before the Court is Plaintiff’s Complaint (Doc. 2); Plaintiff’s Motion for Leave to Proceed
In Forma Pauperis and Supporting Affidavit (Doc. 3); and Plaintiff’s Motion for Leave to Amend
Complaint, which includes Plaintiff’s proposed Amended Complaint as an attachment (Doc. 4).1
I.
Motion for Leave to Proceed IFP
A.
Standard
Plaintiff seeks to commence this action without prepayment of fees pursuant to 28 U.S.C.
§ 1915(a)(1), which provides that “any court of the United States may authorize the commencement,
1
In addition to this action, Plaintiff has filed numerous other pro se cases in the Eastern
District of Oklahoma. (See, e.g., 16-CV-291-RAW, 16-CV-292-RAW, 16-CV-293-RAW, 16CV-310-RAW.)
prosecution or defense of any suit . . . without prepayment of fees . . . by a person who submits an
affidavit that includes a statement of all assets such prisoner possesses that the person is unable to
pay such fees. . . .” Despite use of the word “prisoner,” this statute applies to all persons applying
for in forma pauperis status. Brown v. Eppler, 725 F.3d 1221, 1229 n.6 (10th Cir. 2013).
This statute “is designed to ensure that indigent litigants have meaningful access to the
federal courts.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). “Congress recognized, however,
that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant,
lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Id.
In order to prevent such abusive or captious litigation, the statute authorizes federal courts to sua
sponte dismiss a case filed in forma pauperis if: (1) the allegation of poverty is untrue, (2) the action
is frivolous or malicious, (3) the action fails to state a claim upon which relief may be granted, or
(4) the action seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2); see also Stafford v. United States, 208 F.3d 1177, 1179 n.4 (10th Cir. 2000)
(describing § 1915(e)(2) as a “screening procedure” for dismissing IFP claims that are frivolous, that
fail to state a claim, that seek monetary relief from immune defendants, or that rest on false
allegations of poverty). Dismissals based on § 1915(e)(2) are often made sua sponte prior to the
issuance of process “so as to spare prospective defendants the inconvenience and expense of
answering such complaints.” Neitzke, 490 U.S. at 324.2
2
The Court in Neitzke addressed the precursor to 28 U.S.C. § 1915(e)(2), which was 28
U.S.C. § 1915(d). However, the Tenth Circuit has cited Neitzke as setting forth the policy
considerations underlying § 1915(e)(2). See Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir.
2006).
2
B.
Facts
Plaintiff is proceeding pro se, and the Court therefore construes his pleadings liberally.
Haines v. Kerner, 404 U.S. 519, 520 (1972); Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir.
2002). Plaintiff’s original complaint named only Craig County as a Defendant. Plaintiff then filed
a Motion for Leave to Amend requesting to substitute an Amended Complaint naming three new
defendants and omitting Craig County as a defendant. Were the case to proceed, the Court would
grant leave to amend. Accordingly, for purposes of its § 1915(e)(2) analysis, the Court examines
the allegations in the proposed Amended Complaint and its attachments appearing at pages 4-85 of
the Motion for Leave to Amend Complaint (Doc. 4). The following facts are either set forth in
Plaintiff’s proposed Amended Complaint and attachments thereto, or set forth in court documents
of which the Court takes judicial notice.
The class action lawsuit of Cobell v. Salazar, 96-CV-1285 (D.D.C.), settled in 2009 pursuant
to a court-approved settlement known as the Indian Trust Settlement (“ITS”). The ITS website
explains that it settles class claims alleging the federal government violated trust duties to individual
Indian trust beneficiaries by failing to provide proper accountings, mismanaging Individual Indian
Money
(“IIM”)
accounts,
and
mismanaging
land
and
other
resources.
http://www.indiantrust.com/faq. Class members include Indians who had an IIM account anytime
from January 1985-September 30, 2009 or who had an individual interest in land held in trust or
restricted status by the U.S. Government as of September 30, 2009. Id. The class also includes the
estate of a deceased Indian with these interests. Id. The class notice provides that a person may be
part of the settlement if he is (1) an IIM account holder, (2) an Individual Indian who has or had an
3
ownership interest in land held in restricted status, or (3) an heir to a deceased IIM account holder
or individual Indian land owner. See http://www.indiantrust.com/docs/notice.pdf.
By the deadline of March 30, 2013, Plaintiff submitted an ITS claim form asserting that he
was the third type of class member - an heir to a deceased IIM account holder or individual Indian
who owned restricted lands. Plaintiff’s submission was assigned Claim Number 00332330. By
letter dated May 1, 2013, Plaintiff was informed that his claim was not eligible and that he had until
July 1, 2013 to submit proof of a deceased individual’s qualification as a class member and proof
of Plaintiff’s inheritance of these rights. (Doc. 4 at 52.)
Quickly thereafter, Plaintiff applied for a Certificate of Degree of Indian Blood (“CDIB”)
with the Bureau of Indian Affairs (“BIA”). On August 16, 2013, a Deputy Tribal Governance
Officer of the BIA denied the application because the four maternal ancestors Plaintiff identified
– Anderson Reese, James Reese, Besty Reese, and Jessie Reese (“Reese relatives”) – were listed
on the Cherokee Freedmen Roll “without a blood degree.” Thus, Plaintiff was “unable to verify
direct lineage to an enrollee who is listed with a blood degree . . . .” (Doc. 4 at 50.)
Plaintiff appealed this decision to the BIA Regional Director, as directed by the denial letter.
By a lengthier letter incorrectly date-stamped January 6, 2013,3 the BIA Regional Director affirmed
the denial for the same reasons, concluding that the Reese relatives “are listed on the Final Rolls
without an Indian blood degree.” (Doc. 4 at 48.) The Regional Director further explained:
3
The “background” section of this letter setting forth the sequence of events makes clear
that the letter could not have been sent on January 6, 2013. It appears the letter should have
been dated January 6, 2014.
4
When the Final Rolls of [the Five Civilized Tribes] were prepared in 1906, separate
rolls were made of the Freedmen and Intermarried Whites and both groups are
shown with no blood degree. CDIBs are not issued to these groups because they
possess no Indian blood degree.
(Doc. 4 at 4.) Plaintiff did not become an ITS class member or a representative of an ITS class
member and has not received any payments from the ITS.
On June 1, 2014, Plaintiff entered into a contract with Curia Document Solutions, LLC
(“Curia”) for “litigation support services to [Plaintiff] in preparation for the attached Complaint and
all indirectly related complaints.” (Doc. 4 at 56.) Plaintiff attached a declaration from a Curia
representative stating that Curia “designed, implemented and continues to maintain a Federal Indian
law and Cherokee ancestry database of the full blood Cherokee relatives of Abiodun Mohn,
conclusively confirmed by the following National Archives materials . . . .” (Doc. 4 at 56.) Curia
provided Plaintiff with Cherokee Nation archived records ranging in date from 1880 to 1908
(“Records”). These Records appear to form the basis for Plaintiffs’ claims in this lawsuit and
several others pending in the United States District Court for the Eastern District of Oklahoma.
The Court has spent considerable time examining the Records. For purposes of this analysis,
the Court assumes the Records are authentic and construes them favorably to Plaintiff. The Records
show that an individual named “Seely Rowe” appeared on page 169 of an 1880 “Census.” The
column labeled “native or adopted” designates that Seely Rowe was “native.” The column marked
“Race or Prior Nationality” designates that Seely Rowe was “Cherokee.” The column marked “age”
indicates that Seely Rowe was four.
5
By May 6, 1901, the girl named Seely Rowe was 25 years of age, had married Silas Hardrick
(“Silas”), and went by the name of Celia Hardrick (“Celia”). On May 6, 1901, Celia appeared and
testified before the Department of the Interior (“DOI”), along with her step-grandfather Peter
Williams, regarding her application for enrollment of herself, her husband, and five children as
Cherokee Freedmen. (See Doc. 4 at 66.)4 During this questioning, Celia stated:
Commission: You are put down on the roll of 1880 as a native Cherokee?
A: Yes, sir, down Williams on the 1880 roll, in the Cooweescoowee district.
Q: But you state you are a daughter of this Rosa Williams and your mother is a
colored woman?
A. Yes, sir.
Q: You don’t claim therefore as a Cherokee?
A: No, sir, as a Freedmen.
(Doc. 4 at 67.) The Commissioner concluded:
Commissioner: The applicant applies for the enrollment of herself, her husband and
five children. She is duly identified on the roll of 1880, but not upon the KernsClifton roll or upon the census roll of 1896. It appears, however, that she has lived
in the Cherokee Nation all her life, and no significant reason is seen why she is
omitted from the two rolls last named. Her change of name arising from marriage
is established in a satisfactory manner by her own and her step-grandfather's
testimony. She will now be listed for enrollment as a Cherokee Freedmen. She is
identified on the roll of 1880 as a native Cherokee, but she states that her
classification as to nationality is wrong. Her mother has just been enrolled and is
identified on the roll of 1880 as a Cherokee Freedman.
The five children named in the testimony are not upon any roll, but are said
to be all living at this time. The applicant is desired to supply the Commission with
certificates of their birth, and these five children will be listed for enrollment as
Cherokee Freedmen. It is shown by satisfactory testimony that the marriage between
the applicant and her husband is a legal marriage.
4
The transcript of these proceedings is set forth at pages 64, 66, and 67 of Document 4
in this Court’s record. Page 65 of Document 4 is an extra page.
6
As for her husband, Silas Hodrick, he is identified on the Kerns-Clifton roll,
but not upon the roll of 1896 or upon that of 1986??. He did not marry his wife under
Cherokee license and hence no claim is made for him as an intermarried citizen.
Neither his father nor mother are identified on the roll of 1880, though his father at
least was living at the time that roll was made. To await further evidence in regard
to the rights of the applicant’s husband, under the treaty of 1866, if such evidence
can be presented, he will now be listed for enrollment as Cherokee Freedman on a
doubtful card.
(Doc. 4 at 67 (emphases added).) On May 6, 1901, Celia and her five children – Perry, James, Julia,
Rosa, and Lewis (“Children”) – were issued Dawes Roll Nos. 1751-1756 on a document entitled
“Cherokee Nation. Freedmen Roll.” (Doc. 4 at 62.) Celia and the children are collectively referred
to as the Hardricks.
On March 10 and April 19, 1903, Silas submitted Applications for Allotment and Homestead
for Celia and the Children. (Doc. 4 at 81, 82.) On March 20 and 28 and 31, 1908, the U.S.
Department of the Interior (“DOI”) granted allotments to James, Perry, Julia, and Rosa. (Doc. 4 at
81, 82.) Plaintiff also provided as exhibits certain “Registry Return Receipts,” the significance of
which is not clear to the Court. (Doc. 4 at 68-79.) Construed favorably, neither the allegations in
Plaintiff’s proposed Amended Complaint nor the Records attached thereto provide a link from
Plaintiff to the Hardricks. Plaintiff, in fact, crossed out an averment that he was an heir to the
Hardricks. (Doc. 4 at 24, ¶ 26.)
C.
Claims
In the proposed Amended Complaint, Plaintiff seeks to sue Sally Jewell, Secretary of the
Interior; Mike Conner, Assistant Secretary of the Interior; and Jacob Lew, Secretary of the Treasury
(“Defendants”). Plaintiff’s complaint is entitled “Complaint to Compel Performance of Trust
7
Obligations.” Plaintiff seeks to “redress gross breaches of trust” by the United States, acting through
Defendants, with respect to IIM accounts of Plaintiff, Celia, and the Children. Plaintiff avers Celia
and the Children “were all full blood enrolled citizens of the Cherokee Nation of Oklahoma” and
that Plaintiff himself is also an “enrolled member of the Cherokee Nation of Oklahoma.” (Doc. 4
at 11.) He alleges that Defendants have mismanaged funds and breached trust obligations related
to their IIM accounts, which contain “income derived from their respective land allotments.” (Doc.
4 at 16.) (Doc. 4 at 17)
In “Count One,” Plaintiff seeks a mandamus order to compel Defendants to perform their
trust duties. In “Count Two,” Plaintiff alleges that he has suffered legal wrong and is aggrieved.
(Doc. 4 at 31-32.) As specific relief, Plaintiff seeks (1) a decree construing the trust obligations to
Plaintiff, Celia, and the Children; (2) a decree restraining Defendants from interfering with the
“Special Trustee:” (3) a decree ordering an accounting of the IIM accounts of Celia, the Children
and himself; (4) a decree ordering Defendants to issue “full-blood Certificates of Degree of Indian
Blood” in the name of Celia, the Children, and himself; and (6) an award of his costs of obtaining
Curia’s litigation support services. (Doc. 4 at 32-33.)
D.
Analysis
Sua sponte dismissal is proper in this case because Plaintiff lacks standing and/or fails to
state a claim upon which relief can be granted. Defendants, all federal actors, should be spared the
inconvenience and expense of answering the proposed Amended Complaint.
First, Plaintiff has failed to adequately allege facts demonstrating that he would be entitled
to any compensation or relief as an heir of the Hardricks and has therefore failed to allege a personal
8
stake in the controversy. Plaintiff crossed through the averment in his Complaint that he was “an
eligible heir” to the Hardricks, indicating Plaintiff knows this to be untrue. Plaintiff sought CDIB
cards based on the Reese relatives, which the BIA rejected. Plaintiff has failed to allege any
connection between Plaintiff and the Hardricks, or the Reese relatives and the Hardricks. The Court
is perplexed by Paragraphs 49(a) and 50 in conjunction with Paragraph 51 of the proposed Amended
Complaint, which provide:
49. Plaintiff Mohn declares he submitted the following documents in response to the
above correspondence:
a.
2013-2014 BIA correspondence mailed to Plaintiff Mohn confirming
Plaintiff Mohn’s direct lineal grandparents as Anderson Reese, James
Reese, Betsy Reese, and Jesse Reese as Cherokee Freedmen. See
Exhibit 1.
50.
Plaintiff Mohn avers he telephoned Indian Trust Settlement in October of
2013, to check the status of his application, and was told, “he was denied,
because the allotments of his direct lineal grandparents were not restricted.”
51.
Plaintiff Mohn avers the congressional authorities listed below confirm Celia
Hardrick, Perry Hardrick, James Hardrick, Rosa Hardrick, Julia Hardrick,
Lewis Hardrick’s allotments were, in fact, decreed to be restricted . . . .
(Doc. 4 at 33-34.) There is a complete disconnect between the BIA correspondence regarding the
Reese relatives and the land allotments to the Hardricks. If there is a connection, that connection
is not adequately alleged or shown in the documents attached to the proposed Amended Complaint.
Plaintiff does not allege to be a legal representative of the Hardricks’ estate, has not stated a
plausible claim that he is a descendant or heir of the Hardricks, and therefore lacks standing to
pursue the alleged claims. See Tanner-Brown v. Jewell, 153 F. Supp. 3d 102, 110 (D.D.C. 2016)
(holding that descendant of former slave held by Cherokee Nation lacked Article III standing
because (1) plaintiff did not claim to be suing as legal representative of estate, (2) plaintiff could not
9
show ancestry based merely on being a descendant, and (3) the records she submitted did not
provide a clear connection to plaintiff or “indicate the existence of any property interest in allotted
land.”).5
Second, Plaintiff’s proposed Amended Complaint is patterned after the Cobell class-action
complaint and raises the same claims related to mismanagement of IIM accounts and trust lands.
However, Plaintiff was deemed ineligible to be a class member. This further indicates that he lacks
standing to pursue claims in this lawsuit and lacks any personal financial interest in the outcome.
Further, even if and to the extent Plaintiff would have qualified as a class member based on the
Hardricks’ land ownership, which appears to be a new basis for his entitlement to relief, Plaintiff
did
not
“opt
out”
of
the
settlement
and
preserve
his
claims.
See
http://www.cobellsettlement.com/important (opt-out date of April 20, 2011 for Trust Administration
Class).
Third, assuming Plaintiff had adequately alleged he was heir to the Hardricks and that he
could make claims on behalf of their estates that are identical to claims already settled in the Cobell
class action, Plaintiff’s claims still fail on the merits. Plaintiff’s attachments to his proposed
Amended Complaint - namely, the Records - demonstrate that the Hardricks appear only on the
Cherokee Freedmen roll and lack a degree of Indian blood. In her testimony before the DOI, Celia
clarified that she and her children sought only to be included on the rolls as Freedmen. Thus, like
5
The only possible link is the Curia representative’s statement that she prepared a
database of Plaintiff’s Cherokee ancestors. However, there is no averment or statement
anywhere in Plaintiff’s documents as to how he is related to the Hardricks, and Plaintiff crossed
through a former allegation that he was an heir to the Hardricks.
10
the Reese relatives, the Hardricks’ appearance on the Cherokee Freedmen roll does not entitle
Plaintiff to a CDIB or to the relief he seeks here. Assuming Plaintiff is attempting to argue
Freedmen were wrongfully excluded from the ITS, similar claims have been rejected. See Harvest
Freedmen Federation, LLC v. United States, 478 F. App’x 322, at *1 (6th Cir. July 3, 2012)
(dismissing claim that congressional act implementing ITS was unconstitutional because it
perpetuated racial discrimination against Freedmen by excluding them as class members).
Finally, although Plaintiff alleges to have an IIM account in his own name, this is
implausible and belied by Plaintiff’s submissions. After his claim was denied in the Cobell action,
Plaintiff attempted to get the necessary proof to resubmit a claim. However, the BIA twice
concluded Plaintiff’s maternal Reese relatives lacked the necessary Indian blood to qualify him for
a CDIB because they were on the Freedmen rolls. If Plaintiff had his own IIM account, he could
have submitted a claim on that basis without regard to his ancestors.
In sum, Plaintiff failed to allege an adequate financial interest or personal stake in the
controversy based on his relation to the Hardricks. Based on the sequence of events, it is entirely
implausible that Plaintiff has an IIM account in his name or that he has a stake in the controversy
based on such account. Therefore, Plaintiff lacks Article III standing, and his claims are subject to
dismissal pursuant to Rule 12(b)(2). Even assuming standing could be shown, Plaintiff cannot state
any claim for relief under Rule 12(b)(6) because the Hardricks are Cherokee Freedmen lacking an
Indian blood degree. Further, courts have rejected claims that similar trust duties were owed to
Freedmen and/or that the ITS settlement was discriminatory.
11
II.
Conclusion
Construing the allegations and evidence attached to Plaintiff’s proposed Amended
Complaint, the Court finds that the proposed Amended Complaint fails to state a claim for relief and
therefore sua sponte dismisses the matter with prejudice. Therefore, Plaintiffs’ Motion for Leave
to Proceed In Forma Pauperis (Doc. 3) is denied, and the matter is dismissed with prejudice.
Because the Court will not permit the case to proceed, any other pending motions are denied as
moot.
SO ORDERED this 13th day of December, 2016.
___________________________________
TERENCE C. KERN
United States District Judge
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