NEW YORK CITY — The D.C. Circuit on Tuesday declined to revive a proposed class action, brought by descendants of slaves held by Native American tribes, claiming the U.S. Department of the Interior owes them royalties from land granted to their ancestors, agreeing with a lower court that alleged injuries to their relatives aren’t enough to give them standing.
The three-judge panel upheld the dismissal of litigation alleging the DOI owes oil and gas revenues to the descendants of slaves freed after the Civil War by the Five Civilized Tribes — the Seminole, Cherokee, Choctaw, Creek and Chickasaw — concluding that neither Leatrice Tanner Brown nor the Harvest Institute Freedman Federation LLC have standing for the suit accusing the agency of failing to preserve their ancestors’ interests in land granted to the tribes.
With regard to Tanner- Brown, the panel said she hasn’t offered any viable theories that would transform any alleged harm to her grandfather, George Curls, who she said was the son of former Cherokee slaves and enrolled as a Cherokee Freedman, into a concrete and particularized injury to her.
“Tanner-Brown does not allege that either she or anyone else in her family still owns the land in question; indeed, the documents Tanner-Brown submitted include one apparently transferring Curls’ interest in his allotment to unrelated buyers in 1919,” the panel said. “Tanner-Brown is not suing on behalf of Curls’ estate, nor has she alleged that she inherited anything from it (or that she would have, absent the department’s mismanagement).”
As a result, the federation also lacks standing, the panel concluded. The judges noted that because the complaint identifies no other members, nor their interest, and makes only conclusory assertions about their standing, the federation’s standing “rises and falls with Tanner-Brown’s claim of injury.”
According to the plaintiffs’ June 2014 complaint, the Confederacy-aligned Five Civilized Tribes entered into treaties with the federal government following the Civil War. The treaties not only eradicated slavery but also provided that emancipated tribal slaves, known as the “freedmen,” would enjoy equal rights within the tribes and gain restricted tracts of land, among other things.
The plaintiffs sought to represent a class of potentially thousands of descendants of so-called freedmen minors who were allegedly owed a fiduciary duty by the DOI to account for royalties generated by the allotted land.
The DOI moved to nix the suit in November 2014, saying the federal government never breached a trust duty over the allotted lands. In addition to contending that the plaintiffs lacked constitutional standing, the DOI said the plaintiffs failed to state a claim and their suit was time-barred.
Ultimately, U.S. District Judge Rudolph Contreras found the standing issue dispositive in January 2016, noting that Tanner-Brown needed to show a concrete injury through more than just genealogy and that the federation hadn’t shown that the members had standing to sue in their own right, nor that the participation of individual members in the suit wasn’t required.
The present appeal followed, and after receiving the briefing, the D.C. Circuit said in November that it would decide the matter without oral argument, a determination Tanner- Brown and the federation unsuccessfully challenged.
Tanner-Brown’s primary argument on appeal is that Judge Contreras didn’t give enough weight to a letter she received acknowledging her status as a potential claimant in a separate class action called Cobell, wherein Native American tribal members landed a massive settlement based on the DOI’s alleged mismanagement of tribal trusted funds, according to the opinion.
She contended that the letter establishes her entitlement to seek relief in the present action as well, but the panel wasn’t swayed, saying the letter doesn’t show she suffered any injury that would support standing. After all, the panel noted, it doesn’t indicate why she was deemed eligible to participate as a class member, nor does it make any connections between that eligibility and her grandfather’s land.
Her other arguments are no more availing, the panel held. For instance, Tanner- Brown claims that Curls was owed an accounting and thus, she, as his heir, is entitled to the same, noting that the site of her grandfather’s allotment was “oil rich territory.” But her own submissions include mentions of there being no oil on his land, the judges noted.
The federation also lacks standing for the reasons stated by the district court, the panel held, saying it doesn’t establish that its members have standing and only offers generalized claims that individual members need not participate.
Percy Squire, who represents Tanner-Brown and the federation, told Law360 on Wednesday that they are immediately going to seek rehearing and rehearing en banc, saying the ruling flouts precedent regarding the status of freedmen.
However, he was glad that the opinion didn’t give any indication that the underlying substantive issue isn’t valid. The only question is who has the authority to pursue it, Squire said.
Representatives for the federal government didn’t immediately return request for comment.