Maynor v. United States of America et al

District of Columbia, dcd-1:2003-cv-01559

MEMORANDUM OPINION AND ORDER granting defendants STATE OF NORTH CAROLINA and UNITED STATES' motions to dismiss; finding as moot defendant STATE OF NORTH CAROLINA's motion for a more definite statement. Signed on 7/8/05 by Judge Suzanne B. Conlon, United States District Court for the Northern District of Illinois, sitting by designation.

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P. 0027012 JUL-11-2005(MON Case?4:03-CV-01559-SBC Document 21 Filed 07/11/05 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROY MAYNOR, ب ب Plaintiff, Civil No. 03 CV 1559 (SBC) ب ب ب ب UNITED STATES OF AMERICA, et al., ب Defendants. ب MEMORANDUM OPINION AND ORDER Pro se plaintiff Roy Maynor sucs thc United States of America and thc State of North Carolina to enforce Indian rights. Defendunls move lo dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12b). Further, North Carolina moves for a more definite statement. BACKGROUND For purposes of the motion, the court accepts all well-pleuded allegations in the complaini as true and draws all reasonablc inferences in Maynor's favor. Price v. Greenspan, No. 04-973, 2005 U.S. Dist. LEXIS 12316, * 2 (D.D.C. Junc 22, 2005), citing Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). A motion to dismiss for failurc to state a claim or for lack of subject matter jurisdiction should not be granted unless it appcars beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to rclict." Id., ciling Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Flynn v. Veazey Constr. Corp., 310 F. Supp. 20 186, 189-90 (D.D.C. 2004). Pro se filings are construed liberally. See Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999). JUL-11-2005(Mondase 9603-CV-01559-SBC Document 21 Filed 07/11/05 Page 2 of 10 P. 003/012 The following allegations are taken from the complaint. In 1938, Maynor's father was among 22 individuals recognized by the United States Department of Interior, Office of Indian Affairs, as an "Indian of onc-halfor more degrec." Compl. at p. 1 and Ex. 1. In distegard of the rights accorded to the Tuscarora people by this recognition, the United States and North Carolina governments: (1) forced the "Lumbee" name on all natives regurdless of their tribal affiliation in an effort to hide the Tuscurora lineage; (2) obtained und sold land that belonged to the Tuscarora people tlrough fraudulent land leases and unratified treaties; and (3) engaged in cultural genocide and propaganda against the Tuscaroras. Id. at pp. 1-6. Maynor seeks: (1) the return of Tuscarora ancestral remains and artifacts held by North Carolina; (2) temporary and permanent injunctive rclicfprohibiting North Carolina from conducting archcological digs on Tuscaroma sites; (3) the return of land set aside for thc Tuscarora pcoplc or, alternatively, other suitable land; (4) declaratory rclicf acknowledging the right to live as Tuscarora people; (5) $500 million to rebuild the Tuscarora intrastructure; and (6) other appropriate relief. Id. at pp. 6-7. DISCUSSION 1. Standing "It is well established... that before a federal couri can consider the merils oſa legul claim, the person sccking to invoke the jurisdiction of the court must establish the requisite standing to suc." Whirmore v, Arkansas, 495 U.Ş. 149, 154 (1990). Maynor bears the burden of establishing standing. See FW/PBS, Inc. v. Dallas, 493 U.$. 215, 231 (1990); Idaho v, Interstate Commerce Comm'n, 35 F.3d 585, 590 (D.C. Cir. 1994). Maynor must clearly and specifically show injury in fact that is fairly traceable to the defendants' action and redressablc by the relief requested. See Fhitmore, 495 U.S. at 155; Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720, 723 (D.C. Cir. JUL-11-2005TMUn0 P. 001/012 1994). Further, Maynor must suffer loss of a legally protected interest that is concrete, particularized and actual or imminent. Sec Idrogo v. United States Army, 18 F. Supp. 2d 25, 27 (D.D.C. 1998). The loss may not be conjectural or bypothetical. See id Maynor asserts he brings his claims as a "duly elected representative of the Skaroreha Katcnuaka Nation, which consists of numerous individuals who are also federally recognized and who (sic) are also pluintiffs in their own right in this case." Resp. at 2. Indeed, Maynor does not seek individual relief, rather he seeks tribal rclicf in the form of thc return of all Tuscarora remains, artifacts and land, cessation of archacological digs on Tuscarora sites, restoration of rights to the Tuscarora people and moncy for thc Tuscarora infrastructure. Maynor usserts that he and certain unidentified plaintiffs have standing to sue based on the rights conferred by: (1) their status as descendants of the 22 individuals designated as Indians of one- lialf or more degree in 1938; and (2) the decision in Maynor v. Morton, 510 F.2d 1254 (D.C. Cir. 1975). Maynor's argument lacks merit. When the Office of Indian Affairs recognized 22 individuals as Indians of one-half or morc degrcc, thosc specific individuals became eligible for benefits under the Indian Reorganization Act of 1934 ("IRA"), 25 U.S.C. & 461 et seq. See Compl. Ex. 1. The recognicon, however, explicitly provided "lhis enrollment does not entitle you to membership in any Indian tribe, nor does it establish any tribal rights in your name.... [f]urthermore, this cnrollment would not apply to any children you may have, unless they were born of a mother who had likewise been determined to be onc-half or more lodian." Ich Thc Maynor decision did not affect entitlement to benefits under the IRA or determine appropriate benefils under the IRA. Rather, Maynor merely 'Skaroreh Katenuaka Nation is apparently another name for the Tuscarora Nation. See Compl. at p. 6. 3 JUL-11-2005(MON) 11:26 P. 005/012 JUSTMON 0 declared that the Lumbee Act of 1956 did not intervenc to preclude the 22 recognized individuals from receiving benefits under the IRA as previously determined. See Merynor, 510 F.2d at 1259. Maynor did not confer any additional bcncfits on the 22 individuals or grant benefits to other persons. It merely affirmed the 22 individuals' status as Indians entitled to benefits conferred by the RA. For standing purposes, Maynor must suffer the loss of a legally protected interest that is actual or imminent, not conjectural or hypotietical. See Idrogo v. United States Army, 18 F. Supp. 2d 25, 27 (D.D.C. 1998). He may not assert legal rights or interests of third partics. Scc Valley Forge Christian College v. Ams. United for Separation of Church and State, 454 U.Ş. 464, 474 (1982) (a purly "must assert his own legal rights and interests, and cannot rest his claim to relieſ on the legal rights or interests of third parties"), quoring Warth v. Seldin, 422 U.S. 490, 499 (1975). Here, Maynor seeks tribal relief based on bcncfits bestowed upon ancestors. He has not alleged that bc or the other unspecificd plaintiffs arc themsclves recognized Indians who personally suffered any losses. Neither their stanıs as ancestors of the 22 recognized Indians nor the Maynor decision give Maynor or the other plaintiffs any rights or relief. Indeed, the evidence Maynor submits specifically demonstrates the rights bestowed on ancestors were not automatically conferred on futuro generations. Accordingly, Maynor las not established that he, or the other plaintiffs, have any rights as Indians or have suffered any losses. The Lumbee Act provides that the Indians now residing in Robeson and adjoining counties of North Carolina... be known as 'Lumbee Indians.'... [the Lumbee lodians arc) not eligible for any services performed by the United States for ladians because of their status as Indians, and none of the statutes of the United States which affect lodians because of thcir status as Indians sball be applicable to the Lumbee Indians." Pub. L. No. 84-570, 70 Stat. 254. JUL-11-2005(MON) 11:27 '0 P. 006/012 Moreover, Maynor and the other unidentified plaintiffs lack standing to sue as a tribc. "An American Indian tribe does not exist as a legal entity unless the federal government decides that it exists." Kaliawaiolaa v. Norton, 386 F.3d 1271, 1273 (9th Cir. 2004). "Absent federal recognition, tribes do not enjoy the same status, rights, and privileges accorded federally recognized tribes." See id; see also 25 C.F.R 9 83.2. "[W]bether a group constitutes a 'tribe' is a matter that is ordinarily committed to the discretion of Congress and the Executive Branch, and courts will deſer 10 their judgment." Cherokee Nation of Okla. v. Babbitt, 117 F.3d 1489, 1496 (D.C. Cir. 1997). The Department of llie Interior has promulgated regulations establishing procedures for federal recognition of American Indian groups as Indian tribes." See Jumes v. United Stales Dep'r of Health & Human Servs., 824 F.2d 1132, 1137 (D.C. Cir. 1987); 25 C.F.R. $ 83.2 (1986). Federally recognized tribal status is required for a tribc to bring land or cullurul claims. See 25 U.S.C. $$ 3001,3004, 3005; U.$. v. 43.47 Acres of Land More or less, 855 F. Supp. 549,551 (D. Conn. 1994) (absent certification by the Bureau of Indian Affairs, plaintiff could not maintain action to protect tribal land rights); Epps v. Andrus, 611 F.2d 915,918 (1st Cir. 1979) (groups of Indians that possess no tribal stalus have no standing to sue for tribal land). Maynor docs not allcgc that the Tuscarora Nation is a federally recognized tribe. Nor does thc Tuscarora Nation of North Carolina uppeur on the Federal Register's list of tribcs entitled to rcccivc services from the Department of the Interior. * The regulations permit any Indian group that is not currently acknowledged by the Department of the Interior to apply for federal recognition, thereby qualifying for federal protection, services and benefits. See James v. United States Dep'r of Health & Human Servs., 824 F.2d 1132, 1137 (D.C. Cir. 1987); 25 C.F.R. 6 83.2 (1986). A petition for federal recognition is required as a prerequisite to acknowledgment Id.; 25 C.F.R. 59 83.5, 83.7. Upon acknowledgment, Indian tribes receive certain rights and protections, including limited sovereign immunity, powers of self-government, the right to control thc lands held in trust for them by the federal government, and the right to apply for a number of federal services. See Kahawaiolaa v. Norton, 386 F.3d 1271, 1273 (9th Cir. 2004). JUL-11-2005(MON) 11:27 0 P. 007/012 Sec 67 Fed. Reg. 46328, 46331 (July 12, 2002); see also 25 C.F.R. $ 83.5(a); 25 U.S.C. $ 479(a). Maynor's burden of establishing standing has not been satisfied. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). II. Sovereign Immunity Even if standing exists, the complaint must be dismissed bccausc ocither the Uniled Sluies nor the State of North Carolina have waived sovercign immunity. A. United States "The basic rule of federal sovercign immunity is that thc United States cannot be sued at all without the consent of Congress." Block v. North Dakola, 461 U.S. 273, 287 (1983); see also Tri- State Blosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003). The federal government is "immune from suil suve as it consents to be sued," United States v. Sherwood, 312 U.S. 584, 586 (1941), and "waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text," Lane v. Pena, 518 U.Ş. 187, 192 (1996). Maynor, the parly suing the United States, bears the burden of identifying a congressional act that gives consent. See Tri-Stare, 341 F.3d at 575. The complaint docs not allcgc a statute cvincing a waiver of the United States' sovereign immunity. In his response to the motion to dismiss, Maynor cites two statutes that allegedly waive sovereign immunity, neither of which applies to his claims. First, the Administrative Procedure Act ("APA") provides a waiver of sovereign immunity for judicial review of "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court." 5 U.S.C. & 704. Maynor does not allcgc any Agency action, let alone final agency action, bas been taken regarding his claims. See United Tribe of Shawnee Indians v. U.S., 253 F.3d 543, 549 (10th Cir. 2001). Scction 702 of the APA provides a P. 008/012 JUL-11-2005(MON) 11:27 0 general waiver of immunity to causes of action secking cquitablc relief, however even $ 702 only applies to legal wrongs allegedly committed by govcrament agencics. Id. While Maynor generally asserts complaints regarding the Burcau of Indian Affairs' treatment of his father's rights under the Indian Rcorganization Act, he does not specifically assert any agency action that pertains to his claims. Indeed, the complaint only refers to the United Slates generally: "[u]ltimately, the Federal Government is responsible for everything that has happened to date." Compl. at p. 4. Because Maynor fails to identify uny agency action, the APA's waiver of sovereign immunity is inapplicablc. Second, the Federal Tort Claims Act ("FTCA"), 28 U.$.C. § 1346(b), is also inapplicable, The FTCA grants federal district courts jurisdiction over specific claims for which thc United States has waived sovereign immunity. See Richards v. United States, 369 U.S. 1, 6(1962). Specifically: the FTCA confers jurisdiction over claims: [A]gainst the United States... for moncy damages... for injury or loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of any cmploycc of the Government while acting within the scope of his office or cmployment under circumstances where the United Stutes, ifa private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. $ 1346(b); F.D.T.C. v. Meyer, 510 U.S. 471, 477 (1994). The FTCA only applies to torts committed by an agent or employee of the United States. Seec.g., Wells v. United States, 851 F.2d 1471,1474-75 (D.C. Cir. 1988); Doufjas v. Johnson, 83 F. Supp. 644, 645 (D.D.C. 1949). Maynor docs not allcgc that an employcc of the United States government, acting in the scope of employment committed a ncgligent or wrongful act or omission that resulted in loss of property, personal injury or death. While Maynor generally mises claims involving land and Tuscarora artifacts, there are no allegations linking employees of the United Slates government to those losses, P. 009/012 JUL-11-2005(MON) 11:27 0 and no allegations that the losses were duc to negligence or failure lo ach. In liis response, Maynor contends the United States has been negligent in carrying out fiduciary and administrative responsibilities that were established in Maynor v. Morion. Resp. at 7. As previously discussed, Maynor does not have standing to coforce Maynor or the rights Maynor declared remained intact to thc 22 individuals under the IRA. Further, negligent performance of, or failure to perform, dutics embodied in ſederal statules and regulations only give rise to a claim under the FTCA if there are analogous duties under local tort law. See Art Metal-U.S.A., Inc. v. United States, 753 F.2d 1151, 1157 (D.C. Cir. 1985). The FTCA does not support recovery mcrcly on the state law doclrine of negligence per se without a showing that similar conduct by private partics would be actionable under state law. See c.8., Johnson v. Sawyer, 47 F.3d 716, 728-29 (5th Cir. 1995) (en banc). Finally, cvcn if Maynor had a viable FTCA claim, it is likely barred by the two-year statute of limitations. Sec 28 U.S.C. § 2401(b); Mitlleman v. United States, 104 F.3d 410,413 (D.C. Cir. 1997). Maynor's complaint contains allegations regarding colonial and state government actions, and his father's actions in 1938 and in the 1970's. He has not established his claims arose within the two year statutory period. The FTCA waiver of sovereign immunity does not apply." The burden of establishing waiver of soverciga immunity by the United States has not been satisfied. * In a different section of liis response brief, Maynor mentions the Indian Allotment Act 28 U.S.C. § 1353. While thar Act contains a narrow sovercign immunity waiver, it narrowly applies to "allotmcats," a term of art mcaning "a selection of specific land awarded to an individual allottcc from a common holding." Afiliated Ute Citizens of Urah v. U.S., 406 U.S. 128, 142 (1972); Reynolds v. United States, 174 F. 212 (8th Cir. 1909). Maynor docs not raise claims involving government allotments bestowed pursuant to the lodian Allotment Act and the waiver docs not apply. JUL-11-2005(MON) 11:27 P.010/012 '0 B. North Carolina States arc immune from suit absent waiver of immunity. See Barbour v. Wash. Metro. Areu Transil Auth, 374 F.3d 1161, 1163 (D.C. Cir. 2004); Evans v. Housing Auth. of City of Raleigh, 602 S.E.2d 668, 670 (N.C. 2004). Stute sovereign immunity is constitutionally protccted and a federal court is not compétent to render judgment against a nonconsenting state. See Employees of the Dep'l. of Public Health and Welfare v. Dep't. of Public Health and Welfarc, 411 U.S. 279, 284 (1973); Genentech v. Eli Lilly & Co., 998 F.2d 931, 939 (Fcd. Cir. 1993). A state that does not consent to suit is immune from suits brought in federal courts by her own citizens. See Bd. of Trustees v. Garreti, 521 U.S. 356, 362 (2001); Barbour, 374 F.3d at 1163. The conclusion that a statc has waived its immunity will not be lightly inferred, and courts indulge every reasonable presumption against the waiver of a state's Eleventh Amendment rights. See Coll. Sav. Bank v. Floridu Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999); Barbour, 374 F.3d at 1163. Gencrally, the court will find a waiver if the state voluntarily invokes the court's jurisdiction, or if the state makes a "clear declaration" that it intends to submit to the court's jurisdiction. Scc id. States enjoy sovereign immunity from suits brought by Indian tribes. See e.g, Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.$. 261, 268-69 (1997). Maynor contends the State of North Carolina waived its soverciga immunity by filing motions to dismiss and for a more definite statement. In support, Maynor primarily relies on Clark v. Barnard, 108 U.S. 436, 448 (1883) and Smith v. State, 222 S.E.2d 412 (N.C. 1976). Maynor's reliance on Clark is misplaced. In Clark, the State of Rhode Island filed a counterclaim and prosecuted its claim to the particular fund in controversy. Id. Accordingly, the court determined sovercign immunity was waived because the state voluntarily appeared to fully pursue its rights. The P. 011/012 JUL-11-2005(MON) 11:27 Čase 1:03-cv-01559-SBC Document 21 Filed 07/11/05 Page 10 of 10 Clark court specifically distinguished Rhode Island's appearance from that in Georgia v. Jesup, 106 U.S. 462 (1882), where the state did not waive immunity by appearing solely to protest jurisdiction and to establish sovereign immunity. Id. Here, thc Statc of North Carolina does not voluntarily assert claims or submit claims for judicial determination. Rather, it appears solely to contest jurisdiction and to establish immunity. Moreover, Maynor mistakenly conlends Smith establishes North Carolina's waiver of sovereign immunity regurding land transactions. In Smith, a medical doctor sued the Statc of North Carolina for wrongful discharge. Because the doctor's cause of action was based on an employment contract fully authorized by the legislature, the court determined the state implicitly conscnted to suit for breach of contract and the doctrine of sovereign immunity was unavailable. Id at 423-24. This narrow holding applics only to valid contracts entered into by the State of North Carolina. Maynor's cause of action is non-contractual. The burden of establishing waiver of sovereign immunity by the Statc of North Carolina has not bcca satisfied. CONCLUSION For the foregoing reasons, defendants' motions to dismiss are granted. The State of North Carolina's motion for more definite statement is moot. July 8, 2005 ENTER: Susanne B. Conlon Suzanne B. Conlon United States District Judges s On March 11, 2005, tliis case was reassigned by the Chief Justice of the United States to the Honorable Suzanne B. Conlon, District Judge for the Northern District of Illinois. See Dkt. No. 20. 10