 

In the United States Court of Federal Claims

No. 14-58 C
(Fi1ed May 30, 20l4)

FlLED
SOLOMON UPSHAW, § MAY 3_ 0. 2014
Plaintiff, ) U.S. COURT OF
va ) FEDEHAL CLA|MS
)
THE UNITED STATES, )
Defendant. )
ORDER

Plaintiff, Solomon Upshaw, filed a Complaint against the United States,
attaching a letter dated January 10, 20l4, addressed to him from the Enrollment
Clerk, Eastern Band of Cherokee Indians. The letter notified plaintiff that the Eastem
Band of Cherokee Indians declined to enroll plaintiff. Plaintiff`s Complaint seeks
damages for the enrollment fai1ure.

On March 28, 2014, defendant filed a Motion to Dismiss Plaintiff’ s Complaint
pursuant to RCFC 12(b)(1) and RCFC 12(b)(6).

Plaintiff` s Response to the Motion to Dismiss includes considerable
documentation extraneous to his pleaded claim against the United States, such as his
dispute with a private party over ownership of a 1992 Kenworth truck. The April 17,
2014 submission, Doc. 6-1, does add documents showing that in 1907 Georgeana
Upshaw’s application for a share of the money appropriated for the Eastern Cherokee
Indians by Act of Congress approved June 30, 1906, in accordance with the decrees
ofthe Court of Claims of May 18, 1905 and May 28, 1906, was rejected. Doc. 6-1
at 1, 8. See Cherokee Natz`on v. United States, 270 U.S. 476 (1926). Plaintiff asserts
the 1907 rejection of Georgeana Upshaw’s application to be "fraud." Plaintiff
considers that he is a descendant of Georgeana Upshaw and asserts he has suffered
injury by reason of this 1907 application rejection, namely, his recent enrollment
failure with the Eastern Band of Cherokee Indians.

Defendant’s dismissal motion argues that plaintiff has not pleaded a claim
within the jurisdiction of this court to grant relief. Upon analysis it is concluded that
defendant’s position is correct.

In general, federal courts lack jurisdiction to intervene in tribal membership
disputes such as the enrollment failure on which plaintiff rests his claim. Santa Clara
Pueblo v. Martz`nez, 436 U.S. 49, 58-72 (1978); Lewis v. Norton, 424 F.3d 959, 960
(9"‘ Cir. 2005); Apodaca v. Silvas, 19 F.3d l0l5, 1016 (5"“ Cir. 1994). Plaintiff cites
no treaty, statute or tribal law requiring that the federal government act in Cherokee
enrollment issues and granting a right to recovery in damages in the event of a breach
of any of fiduciary duties so created. Absent such a provision, plaintiff has not
pleaded a matter within this court’s jurisdiction. Wopsock v. Natchees, 454 F.3d
1327, 1331-33 (Fed. Cir. 2006).

Finally, to the extent plaintiff’ s reliance on a 1907 rejection of Georgeana
Upshaw’s application for a share of an appropriated fund were construed as an
attempt by plaintiff to overturn the 1907 rejection and to receive the appropriate

share, the matter would be beyond the jurisdiction of this court pursuant to 28 U.S.C.
§ 2501.

Accordingly, it is ORDERED that Defendant’s Motion to Dismiss is
GRANTED and plaintiff’ s Complaint shall be DISMISSED pursuant to RCFC

12(b)( 1 ).
ames F. Merow

Senior Judge

