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No. l6-594L
Filed: December 9, 2016
NOT FOR PUBLICATION FILED
DEC - I 2016
CHAKCHIUMA NATION,
U.S. COURT OF
FEDERAL CLAIMS
Plaintiff,
Pro Se; Rule 83.1; Rule l2(bX1), Subject-
Matter Jurisdiction; Rule 12(b)(6), Failure
to State a Claim: In Forma Pauperis.
THE LTNITED STATES,
Defendant.
Sakima lban Salih El Bey on behalf of the Chakchiuma Nation, Memphis, TN, plaintiff
pfo se.
Adam M. Bean,Trial Attorney, John C. Cruden, Assistant Attorney General, United
States Department of Justice, Environment & Natural Resources Division, Washinglon, DC,
Dondrae Maiden, Of Counsel, United States Department of the Interior, Washington, DC, for
defendant.
MEMORANDUM OPINION AND ORDER
GRIGGSBY. Judse
I. INTRODUCTION
Sakima Iban Salih El Bey brought this action on behalfofthe plaintiffin this matter, the
Chakchiuma Nation ("the Chakchiuma"), seeking various declaratory, injunctive and monetary
reliefin connection with an alleged violation ofthe United States' Treaty with the Choctaw and
Chickasaw ("Treaty of 1866"). The govemment has moved to dismiss this matter for lack of
subject-matter jurisdiction, pusuart to Rule 12(b)(l) ofthe Rules ofthe United States Court of
Federal Claims ('RCFC), and for failure to state a claim upon which relief can be granted,
pursuant to RCFC l2(b)(6). In addition, plaintiff has filed a motion to proceed in this matter in
forma pauperis, pursuant to 27 U.S.C. $ 1915. For the reasons set forth below, the Court: (1)
GRANTS the govemment's motion to dismiss and (2) GRANTS plaintiffls motion to proceed
in forma pauperis.
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IL FACTUAL AND PROCEDURAL BACKGROUNDI
A. Factual Background
The Chakchiuma commenced this action on May 20,2016. See generally Compl. The
complaint states that "[t]he Chakchiuma were a [Moorish-American Indian with modern
connotation for today's 'African-American'] tribe" ofthe upper Yazoo River region ofthe State
of Mississippi. .Id. at 1.
Mr. El Bey, a non-attomey, seeks to represent the Chakchiuma in this action. See
generally Compl; see Pl. Resp. at 3. The complaint states that Mr. El Bey is the "Consul
General" for the Chakchiuma. Compl. at 10. Mr. El Bey acknowledges, however, that he is not
seeking any relief, or asserting any claims, in this matter on his own behalf. Pl. Resp. at 3.
In this action, the Chakchiuma allege that the United States has violated the Treaty of
1866 by failing to pay certain monies promised under this treaty to members of the Chakchiuma.
Compl. at 8- 10. As relief, the Chakchiuma seek the "flnancial benefits" due under the Treaty of
1866 and certain other monetary relief. Id. at 10. In addition, plaintiff also seeks a "public
declaration from the U.S. Department of Interior that the Chakchiuma Nation are Black . . .
Indians who must be included in the mandated benefits that non-More-ish Indians have been
receiving for over i50 years" and a declaratory judgment directing the government to "retro-
actively distribute invested benefits to eligible Chakchiuma Nation . . . Indians." 1d. at 7.
As background, the Choctaw and Chickasaw Nations entered into a Reconstruction
Treaty at the conclusion of the Civil War with the United States, which is known as the Treaty
with the Choctaw and Chickasaw, 1866.2 Pursuant to the terms ofthis treaty, these tribes sold
certain lands to the United States in exchange for $300,000, and the proceeds ofthis transaction
were to be held in trust and ultimately paid to certain persons of African descent who resided
with, and had been enslaved by, the Choctaw or Chickasaw Nations and elected to leave either
I The facts recited in this Memorandum Opinion and Order are taken from the complaint (..Compl.,'), the
government's motion to dismiss ("Def. Mot."), and the plaintiff s response to the govemment,s motion to
dismiss ("P1. Resp.").
2
The Treaty of 1866 was ratified on June 28, 1866 and proclaimed on July 10, 1866. See generally
Treaty with the Choctaw and Chickasaw, April 28, 1866, l4 Stat. 769 (ratified June 28, 1866)
(proclaimed July 10, 1866).
tribe. ,See Treaty with the Choctaw and Chickasaw, art. 3, April 28, 1866, 14 Stat. 769 (ratified
June 28, I 866) (proclaimed July 10, I 866) (providing for payment to persons of African descent
after the Choctaw and Chickasaw Nations' passage of laws putting such persons on equal legal
footing with the Choctaw and the Chickasaw, or, if such laws were not established). The
Chakchiuma allege in the complaint that they are the descendants of the persons of African
descent described in the Treaty of 1866. Compl. at 8-9.
The Indian Claims Commission Act ("ICCA") is also relevant to the claim in this matter.
Indian Claims Commission Act, Pub. L.No.79-726,60 Stat. 1049 (1946). Congress enacted the
ICCA on August 13,1946, to, among other things, establish the Indian Claims Commission to
"hear and determine . . . certain claims against the United States on behalf of any Indian tribe,
band or other identifiable group of American Indians residing within the tenitorial limits of the
United States or Alaska." Id. at1050. The ICCA also places certain limitations upon the type of
claims that the Indian Claims Commission could consider and on the time period during which
the Commission may consider such claims. Id. at 1052. Specifically relevant to this case, the
ICCA provides that "[n]o claim accruing after the date ofthe approval of [the] Act shall be
considered by the Commission." Id. at 1050. The ICCA further provides that "[t]he
Commission shall receive claims for a period offive years after the date ofthe approval ofthis
Act and no claim existing before such date but not presented within such period may thereafter
be submitted to any court or administrative agency for consideration, nor will such claim
thereafter be entertained by the Congress." Id. at 1052.
B. Procedural History
The Chakchiuma commenced this action on May 20, 2016. See generally Compl On
May 20,2016, plaintiff also filed a motion for leave to proceed in this matter informa paupens,
pursuant to 28 U.S.C. $ 1915. See generallyPl. Mot. to Proceed In Forma Pauperis.
On July 20, 2016, the government filed an opposition to the plaintiff s motion to proceed
informa pouperis. Dei Opp. to PI. In Forma Pauperis MoI. On July 20, 2016, the govemment
also filed a motion to dismiss this action for lack of subject-matter jurisdiction and for failure to
state a claim upon which relief can be granted, pursuant to RCFC l2(bxl) and l2(b)(6). See
generally Def . Mot.
Plaintiff filed a response to the govemment's motion to dismiss on August 15,2016. See
generally Pl. Resp. The govemment filed its reply brief on September 1,2016. See generally
Def. Reply. Thereafter, plaintiff filed a sur-reply by leave of the Court on September 30,2016.
See generally PL Sur-Reply.
These matters having been fully briefed, the Cou( addresses the pending motions.
III. LEGAL STANDARDS
A. Pro Se Litigants
Plaintiff is proceeding in this matter pro se, without the benefit ofcounsel. And so,
plaintiff is "not expected to frame issues with the precision of a common law pleading." Roche
v. U.S. Postal Serv-,828 F.2d 1555, 1558(Fed.Cir. 1987). When determining whether a
complaint lied by apro se plaintiffis sufficient to invoke review by a court, such plaintiffs are
entitled to a liberal consfuction oftheir pleadings. Matthews v. United States,750 F.3d 1320,
1322 (Fed. Cir.2014). But, there "'is no duty on the part ofthe trial court to create a claim
which [the plaintiffl has not spelled out in his [or her] pleading ."' Lengen v. United States, 100
Fed. Cl. 3 I 7, 328 (2011) (citations omitted) (first set of brackets existing). In addition, although
"a pro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an
attorney, . . . the pro se plaintiff, nevertheless, bears the burden of establishing the Court's
jurisdiction by a preponderance ofthe evidence . . . ." Riles v. United States,93 Fed. Cl. 163,
165 (2010) (citations omitted). And so, while the Court may excuse ambiguities in the plaintiffs
complaint, the Court does not excuse the complaint's failures. See Henke v. United States,60
F.3d 795, 799 (Fed. Cir. 1995); see also Demes v. United States,52 Fed. Cl. 365,368 (2002)
("[T]he leniency afforded pro se litigalts with respect to mere formalities does not relieve them
ofjurisdictional requirements.") (citation omitted).
B. Rule 12(b)(r)
When deciding a motion to dismiss based upon a lack of subject-matter jurisdiction,
pursuant to RCFC l2(bXl), this Court must assume that all undisputed facts alleged in the
complaint are true and must draw all reasonable inferences in the non-movant's favor. See
Erickson v. Pardus,55l U.S. 89,94 (2007). But, plaintiffbears the burden of establishing
subject-matter jurisdiction, Alder Terrace, Inc. v. United Stares, l6l F.3d 1372,1377 (Fed. Cir.
1998), and must do so by a preponderance of the evidence. Reynolds v. Army & Air Force Exch.
Serv.,846F.2d746,748 (Fed. Cir. 1988) (citations omitted). And so, should the Court
determine that *it lacks jurisdiction over the subject matter, it must dismiss the claim."
Matt hew s v. Unite d St at e s, 72 F ed. Cl. 27 4, 27 I (Fed. Cl. 2006).
In this regard, the United States Court of Federal Claims is a court of limited jurisdiction
and the Court "possess[es] only that power authorized by Constitution and statute. . . ."
Kokkonen v. Guardian Life Ins. Co. of Am.,5l l U.S.375,377 (1994). Under the Tucker Act,
the Court hasjurisdiction to adjudicate "any claim against the United States founded either upon
the Constitution, or any Act ofCongress or any regulation ofan executive department, or upon
any express or implied contract with the United States, or for liquidated or unliquidated damages
in cases not sounding in tort." 28 U.S.C. $ 1a91(a)(1) (2011). The Tucker Act, however, is "a
jurisdictional statute; it does not create any substantive right enforceable against the United
States for money damages. . . . [T]he Act merely confers jurisdiction upon [the United States
Court ofFederal Claims] whenever the substantive right exists." United States v. Testan,424
u.s. 392, 398 (1976).
Given this, to pursue a claim under the Tucker Act, a plaintiff must identifu and plead a
claim founded upon an independent contractual relationship, Constitutional provision, federal
statute, and/or executive agency regulation that provides a substantive right to money damages.
See Todd v. United States,386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the
Tucker Act requires the litigant to identifu a substantive right for money damages against the
United States separate from the Tucker Act itself.") (citation omitted); see also Fisher v. United
States, 402 F.3d 1 167, I 1 72 (Fed. Cir. 2005) (en banc) ("The Tucker Act irself does not create a
substantive cause ofaction; . . . a plaintiff must identif a separate source of substantive law that
creates the right to money damages."). And so, a plaintiff must demonstrate that the source of
substantive law upon which the plaintiffrelies "can fairly be interpreted as mandating
compensation by the Federal Govemment[.]" Testan, 424 U.S. at 400 (citation omitted).
C. Standing and Rule 83.1(a)(3)
The standing requirements that apply to Article III courts also apply to the United States
Court of Federal Claims. Iteeks Marine, Inc. v. United States,575 F.3d 1352 (Fed. Cir.2009)
(citing Anderson v. United States,344F.3d 1343, l350n.l (Fed.Cir.2003)). And so, standing
"is a threshold jurisdictional question and must be established by the party seeking to invoke this
court's jurisdiction." Saladino v. United States,62 Fed. Cl. 782,793 (2004) (citation omitted);
see also Lujan v. Defenders of llildlife,504 U.S. 555, 561 (1992) (citations omiued) (holding
that it is the burden of the party invoking federal jurisdiction to establish the three elements of
standing).
To establish standing a party must show: (1) that it has "suffered an 'injury in fact;"' (2)
"a causal cormection between the injury and the conduct complained of;" and (3) that it is
"'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable
decision."' Lujan,504 U.S. at 560-61 (citations omitted). This Court has also recognized that,
in limited circumstances, third-party standing may be appropri ate. Saladino v. United States, 62
Fed. Cl. at 793. But, to have third-party standing:
[t]he litigant must have suffered an injury in fact, thus giving him or her a sufficiently
concrete interest in the outcome of the issue in dispute, the litigant must have a close
relation to the third party, and there must exist some hindrance to the third party's ability
to protect his or her own interests.
1d (quoting Powers v. Ohio, 499 U.S. 400, 4l I (1991) (citation omitted)) (intemal quotations
omitted).
In addition, the Rules ofthe United States Court of Federal Claims address the eligibility
of attomeys and pro se litigants to practice before this Court. In this regard, RCFC 83.1(a)(3)
provides, in relevant part, that "[a]n individual who is not an attorney may represent oneselfor
one's immediate iamily, but may not represent a corporation, an entity, or any other person in
any proceeding before this court." RCFC 83.1(a)(3). And so, the Court has held thal a pro se
plaintiff may represent only himself and "immediate family" members under Rule S3.1(a)(3).
See Fast Horse v. United States,l0l Fed. Cl. 544,547-48 (2011).
D. Rule 12(b)(6)
When deciding a motion to dismiss based upon failure to state a claim upon which relief
can be granted, pursuant to RCFC 12(bX6), this Court must also assume that all undisputed facts
alleged in the complaint are true and must draw all reasonable inferences in the non-movant's
favor. See Ericl