                 IN THE UNITED STATES DISTRICT COURT FOR THE
                       NORTHERN DISTRICT OF OKLAHOMA

THE CHEROKEE NATION,                            )
                                                )
                       Plaintiff,               )
                                                )
v.                                              )   Case No. 11-CV-648-TCK-TLW
                                                )
RAYMOND NASH, et al.                            )
                                                )
                       Defendants.              )

                                     OPINION AND ORDER

       Before the Court is the Motion of the Cherokee Freedmen (“Freedmen Defendants”) to

Transfer Or, In the Alternative, To Stay (Doc. 178).

I.     Background

       A.      Procedural History

       On July 2, 2010, the Court transferred Cherokee Nation v. Nash, et. al., 09-CV-52-TCK

(“Oklahoma action”), to the United States District Court for the District of Columbia (“D.C. Court”)

pursuant to the “first to file” rule. See Cherokee Nation v. Nash, 724 F. Supp. 2d 1159, 1168-72

(N.D. Okla. 2010) (holding that, due to similarity of parties and issues between the Oklahoma action

and Vann v. Salazar, et al., 03-1711-HHK (“D.C. action”), the D.C. Court should determine the

proper forum for the Oklahoma action).1 The Court transferred the Oklahoma action because the




       1
          Nash provides extensive background information and is incorporated herein by
reference. In short, the D.C. action was filed by six individual descendants of persons listed on
the “Freedmen Roll” of the Cherokee Nation (“Freedmen Plaintiffs”) against the United States
Department of the Interior. In 2008, on interlocutory appeal, the United States Court of Appeals
for the District of Columbia Circuit (“D.C. Circuit”) held that the Cherokee Nation was immune
from suit and remanded for the district court to decide if, in equity and good conscience, the D.C.
action could proceed in the Cherokee Nation’s absence. While this question was being decided
by the D.C. Court upon remand, the Cherokee Nation filed this action.
D.C. Court’s resolution of certain legal questions already pending before it would inform, if not

control, the decision of where the Oklahoma action should proceed.

       On September 30, 2011, the D.C. Court resolved those legal questions. Specifically, the

court held that dismissal of the D.C. action was proper under Federal Rule of Civil Procedure 19(b)

because the court could not, in equity and good conscience, proceed without the Cherokee Nation

as a party. See Vann v. Salazar, 883 F. Supp. 2d 44, 48-53 (D.D.C. 2011) (“Vann III”), overruled

by Vann v. United States Dep’t of Interior (“Vann IV ”), 701 F.3d 927, 929-30 (D.C. Cir. 2012). The

district court reasoned that any judgment rendered in absence of the Cherokee Nation would be

inadequate because “only the Chief . . . would be bound by the judgment” and that the Northern

District of Oklahoma was not only an “adequate alternative forum, but a superior one” based on the

Cherokee Nation’s presence in the lawsuit. Id. at 51-52. The D.C. Court denied as futile the

Freedmen Plaintiffs’ motion for leave to add the Cherokee Nation as a party, rejecting the argument

that the Cherokee Nation waived immunity in the D.C. action by filing the Oklahoma action. See

id. at 53-55 (“The [Cherokee Nation] is free to litigate these questions in the federal action of its

choosing, or not at all.”). Because the first-filed case was no longer pending, the court transferred

the Oklahoma action back to this Court. The Freedmen Plaintiffs appealed dismissal of their claims

to the D.C. Circuit.

       Upon transfer, the Oklahoma action was reassigned Case No. 11-CV-468-TCK-TLW. On

December 21, 2011, the Freedmen Defendants filed their first motion to stay, arguing that this Court

should issue a stay for the same reasons it initially transferred the action. On February 1, 2012, the

Court denied the motion to stay:




                                                  2
       The Court declines to stay these proceedings pursuant to the first to file rule or
       general discretionary principles authorizing a stay. In initially transferring this case,
       the Court desired to avoid taking any action in this litigation until the D.C. Court
       decided certain essential questions – namely, whether filing the Oklahoma action
       waived the Cherokee Nation’s immunity in the D.C. action and whether the D.C.
       action would be dismissed due to the absence of the Cherokee Nation. The D.C.
       Court has decided such questions by declining to permit amendment and ultimately
       dismissing the case. While there exists some possibility that the D.C. Circuit Court
       of Appeals will reverse these rulings, this possibility is wholly speculative. In
       addition, this Court will not be entrenching upon the appellate court’s decisions or
       duplicating its efforts. The appellate court will only be reaching jurisdictional issues,
       and this Court will be reaching the merits of the dispute. In short, the D.C. Court has
       now issued the rulings that this Court sought to avoid encroaching upon, and the
       Court finds that the Freedmen Defendants have failed to present a sufficient
       justification for any further stay of these proceedings.

(Doc. 101 (footnote omitted).)

       On December 14, 2012, the D.C. Circuit reversed dismissal of the D.C. action and remanded

it for further proceedings, holding that “the Cherokee Nation and the Principal Chief in his official

capacity are one and the same in an Ex parte Young suit for declaratory and injunctive relief” and

that “the Principal Chief can adequately represent the Cherokee Nation in this suit, meaning that the

Cherokee Nation itself is not a required party for purposes of Rule 19.” Vann IV, 701 F.3d at

929-30. The court reasoned:

       By contrast, if we accepted the Cherokee Nation’s position, official-action suits
       against government officials would have to be routinely dismissed, at least absent
       some statutory exception to Rule 19, because the government entity in question
       would be a required party yet would be immune from suit and so could not be joined.
       But that is not how the Ex parte Young doctrine and Rule 19 case law has developed.
       . . . The claim here is that the Principal Chief – and through him, the sovereign tribe
       – is violating federal law. The defense is that the Principal Chief – and hence the
       sovereign tribe – is not violating federal law. This case presents a typical Ex parte
       Young scenario.

Id. at 930. In light of this disposition, the D.C. Circuit did “not reach the Freedmen’s argument that

the Cherokee Nation waived its sovereign immunity by filing a related suit in Oklahoma.” Id. On


                                                  3
January 11, 2013, the Freedmen Defendants filed the currently pending motion to transfer or stay.

On March 12, 2013, the D.C. Circuit denied the Cherokee Nation’s petition for rehearing en banc.

(See Doc. 188.)

       B.      Current Parties and Claims in the Oklahoma Action

       The pleadings raise several claims, counterclaims, and cross-claims. The Cherokee Nation,

as the Plaintiff, seeks declaratory relief that descendants of individuals listed on the “Freedmen

Roll” do not currently enjoy citizenship rights within the Cherokee Nation. Such relief is sought

against five named freedmen defendants.2 The Cherokee Nation originally also sought relief against

the Secretary of the United States Department of the Interior and the United States Department of

the Interior (“Federal Defendants”) but then voluntarily dismissed its claim. Prior to dismissal of

the claim against them, the Federal Defendants asserted a counterclaim against the Cherokee Nation

seeking declaratory relief that descendants of individuals listed on the “Freedmen Roll” do currently

enjoy citizenship rights within the Cherokee Nation. This counterclaim remains pending.

       The Freedmen Defendants asserted a counterclaim against the Cherokee Nation, Principal

Chief Bill John Baker (“Principal Chief”), Deputy Chief Principal Chief S. Joe Crittenden, Registrar

John Doe, and five Cherokee Nation election officials (collectively “Cherokee Counter-

Defendants”). This counterclaim is similar to claims asserted by the Freedmen Plaintiffs in the D.C.

action. The Freedmen Defendants allege that deprivation of their citizenship rights violates the U.S.

Constitution, the Cherokee Constitution, the Treaty of 1866, and various federal laws. The



       2
           The Court permitted the Freedmen Plaintiffs in the D.C. action to intervene as
freedmen defendants in this case (“Intervening Freedmen Defendants”). Unless necessary for
clarification, the named Freedmen Defendants and Intervening Freedmen Defendants are
collectively referred to as “Freedmen Defendants.”

                                                 4
Cherokee Counter-Defendants filed a motion to dismiss, arguing that (1) certain claims are barred

by prior orders in the D.C. action, (2) the Cherokee Nation enjoys sovereign immunity,3 and (3)

certain laws relied upon by the Freedmen Defendants do not provide a private right of action.

       The Freedmen Defendants have also asserted cross-claims against the Federal Defendants,

which are similar to those asserted in the D.C. action. The Freedmen Defendants allege that the

Federal Defendants’ actions and failures to act in relation to the Freedmens’ citizenship violated the

U.S. Constitution, violated various federal laws, and constituted a breach of fiduciary duty. The

Federal Defendants filed a partial motion to dismiss, arguing that certain laws relied upon by the

Freedmen Defendants do not provide a private right of action, that it has no fiduciary duty to the

Freedmen Defendants, and that the Freedmen Defendants lack standing to bring any Equal

Protection Clause challenge. Upon joint motion of the parties, the Court delayed entering a

scheduling order pending ruling on the Cherokee Counter Defendants’ Motion to Dismiss and the

Federal Defendants’ Partial Motion to Dismiss.

II.    Motion to Transfer

       The Freedmen Defendants move the Court to transfer this action to the D.C. Court. The

Federal Defendants support the motion, while the Cherokee Nation and Cherokee Counter-

Defendants oppose transfer. For reasons explained below, the Court declines to transfer this action

pursuant to either “first to file” principles or 28 U.S.C. § 1404(a).




       3
         The Cherokee Nation argues that its waiver of immunity in this action is limited to the
precise declaratory relief sought and does not extend to Freedmen Defendants’ counterclaims.

                                                  5
       A.      First to File Rule

       In Nash, the Court summarized general first to file principles:

       (1) [A] second-filed court presented with a motion to transfer or stay pursuant to the
       first to file rule must make the initial determination of whether the first to file rule
       generally applies, i.e., whether there is sufficient overlap of parties and issues
       between the two cases; (2) if the second filer argues for application of an equitable
       exception to the first to file rule, a second-filed court within the Tenth Circuit has
       discretion to either (a) allow the first-filed court to decide whether an exception
       applies, or (b) decide for itself whether an exception applies; and (3) there is a
       preference for allowing the first-filed court to decide whether an exception applies.

Nash, 724 F. Supp. 2d at 1167.4 At that time, the Court (1) concluded that the rule generally applied

due to the similarity of parties and issues; and (2) permitted the D.C. Court to decide whether any

exception applied and where the Oklahoma action should proceed. See id. at 1168-73. However,

the Court was careful to observe that it was “not refusing to hear the merits, declining to hear the

merits, or in any way indicating that it should not ultimately decide the merits” or “making any

rulings as to which forum is legally proper and/or will better serve the interests of justice.” Id. at

1172. Instead, the Court was “simply deferring to the first-filed forum to determine whether the

related actions must and/or should proceed in the [“D.C. Court”], must and/or should proceed

simultaneously in two different forums, must and/or should proceed in this Court, or some other

formulation.” Id.

       Faced with this question a second time, the Court will no longer defer to the first-filed court

for deciding whether the “special circumstances” exception applies or for deciding the proper venue

for the Oklahoma action. Based on the D.C. Circuit’s ruling and denial of rehearing, it is now

settled that the D.C. action will proceed without the Cherokee Nation. There is no longer any risk


       4
         For a more comprehensive explanation of this rule and its exceptions, see Nash, 724 F.
Supp. 2d at 1164-67.

                                                  6
of this Court entrenching on the decision of whether the Cherokee Nation waived its immunity in

the D.C. action by filing this action. Because the D.C. Circuit disposed of the appeal on Ex parte

Young grounds, this question will not be reached by the district court in the D.C. action. A crucial

reason this Court permitted the D.C. Court to act as the “traffic regulator” of the Oklahoma action

was to allow that court to decide the immunity waiver question in the first instance. See Nash, 724

F. Supp. 2d at 1171 (explaining that “the ‘special circumstances’ argued by the Cherokee Nation .

. . – its immunity in the first-filed forum – may become non-existent if [the D.C. Court] decides that

filing of this action functions as a waiver of immunity in the D.C. Action” and declining to “resolve

that question prior to the [D.C. Court]”). Now, this concern is moot, and there is no longer any

reason to “allow[] the first-filed court . . . to decide the consequences of the Cherokee Nation’s

decision to file this case while the D.C. Action was still pending.” See id. at 1172.

       Applying the test explained in Nash, the Court again concludes that the first to file rule

generally applies because (1) the D.C. action was filed first, and (2) there is a similarity of parties

and issues. However, the Court now exercises its discretion to reach the “special circumstances”

exception and indeed finds that special circumstances trump the first to file rule in this case. The

special circumstances are the Cherokee Nation’s waiver of immunity in the second-filed lawsuit and

successful assertion of immunity in the first-filed lawsuit. The Cherokee Nation has made clear that

it intends to waive immunity and seek declaratory relief exclusively in this venue. Thus, upon

transfer, it would presumably cease to seek declaratory relief and would re-assert immunity for any

pending counterclaims. There would ultimately be no judgment for or against the Cherokee Nation

itself, despite the Cherokee Nation’s consent to suit in this venue.            Under these unique




                                                  7
circumstances, the Court finds that immunity in the transferee forum is a special circumstance that

overrides the general first to file rule.5

        The Freedmen Defendants argue that the Cherokee Nation is not actually immune in the

transferee forum because it waived immunity as to the “subject matter” by filing this action.

However, for the same reasons expressed by United States District Judge Henry H. Kennedy in Vann

III, the Court concludes that “the principles of tribal sovereign immunity allow [the Cherokee

Nation] to bring the Oklahoma action while maintaining its immunity from this suit” and that “a

sovereign’s interest in immunity encompasses not merely whether it may be sued, but where it may

be sued.” Vann III, 883 F. Supp. 2d at 53-54 (internal quotations omitted), overruled on other

grounds by Vann IV, 701 F.3d at 930 (declining to reach waiver issue due to its disposition on Ex

parte Young grounds).6 In practical effect, the lack of any “subject matter” waiver means that the

Cherokee Nation permissibly chose a second federal venue in which to seek declaratory relief, even

though similar questions are at issue in the first-filed venue. Whether viewed as a “special

circumstances” exception to the first to file rule or a lack of sufficient similarity between the parties,

the Cherokee Nation’s immunity in the first-filed case renders transfer imprudent. See generally


        5
          The Tenth Circuit has stated that the first court to “obtain jurisdiction” has priority.
See Cessna Aircraft Co. v. Brown, 348 F.2d 689, 692 (10th Cir.1965) (“The rule is that the first
federal district court which obtains jurisdiction of parties and issues should have priority and the
second court should decline consideration of the action until the proceedings before the first
court are terminated.”). The Cherokee Nation continues to argue that this Court was the first to
“obtain jurisdiction.” As explained in Nash, however, identical overlap of parties is not required
for application of the first to file rule, and the D.C. Court was the first to obtain jurisdiction over
the Principal Chief. Thus, transfer would be permissible under the first to file rule. However,
this Court simply finds that the Cherokee Nation’s absence from that case constitutes special
circumstances weighing against transfer.
        6
          With respect to the issue of “subject matter” waiver, the Court adopts the reasoning in
Vann III in its entirety. See Vann III, 883 F. Supp. 2d at 53-56.

                                                    8
Sotheby’s Inc. v. Garcia, 802 F. Supp. 1058, 1065-66 (S.D.N.Y. 1992) (finding “special

circumstances” warranted giving priority to the second-filed suit because, inter alia, first-filed suit

did not include one of the defendants in the second-filed action and such defendant was not

amenable to suit in first-filed court). Cf. O’Hare Int’l Bank v. Lambert, 459 F.3d 328, 330-31 (10th

Cir. 1972) (bank filed first action in Illinois, district court dismissed for lack of personal jurisdiction

over defendant, bank appealed, and bank then filed actions in Oklahoma, Texas, and Arkansas

during pendency of appeal in order to toll application of state statues of limitations) (holding that

Oklahoma court abused its discretion by denying the bank’s motion to stay because the bank first

elected to proceed in Illinois and was not engaging in vexatious behavior by filing the Oklahoma

suit). Here, in contrast to O’Hare, there are differences in the actual parties, the alignment of the

parties, and the presentation of issues that trump the general rule of deference to the first-filed court.

        The Court further observes that, although this case was filed second, this venue is more

appropriately suited for reaching a final resolution of the issues. In the D.C. action, the Cherokee

Nation will likely seek further appellate review of any declaratory relief entered solely against the

Principal Chief. (See Cherokee Nation’s Resp. to Mot. to Transfer at 5 (“The Chief has no power

to change the Nation’s Constitution, which now contains a blood requirement. . . . The Chief cannot

unilaterally change the Cherokee Constitution, nor can he ignore the holdings of the Cherokee

Nation court. It is only a judgment in a court wherein the Nation has inserted itself, and agreed to

be bound by the decision, that relief can be afforded.”).) Further, there is the possibility of

additional litigation regarding enforcement of any judgment, resulting in further delay of final




                                                    9
resolution of the issues. In contrast, in this forum, the Cherokee Nation has consented to a

declaration of the Freedmen Defendants’ citizenship status.7

        In sum, the Court (1) exercises its discretion to decide, in the first instance, whether special

circumstances trump the first to file rule; (2) concludes that the Cherokee Nation’s waiver of

immunity in this action and successful assertion of immunity in the D.C. action constitute special

circumstances; and (3) declines to transfer under the first to file rule.

        B.      28 U.S.C. § 1404(a)

        The Freedmen Defendants and Federal Defendants also move the Court to transfer the action

pursuant to 28 U.S.C. § 1404(a), which provides: “For the convenience of parties and witnesses, in

the interest of justice, a district court may transfer any civil action to any other district or division

where it might have been brought.” This statute is a “federal housekeeping measure, allowing easy

change of venue within a unified federal system.” Chrysler Credit Corp. v. Country Chrysler, Inc.,

928 F.2d 1509, 1515 (10th Cir. 1991) (internal quotation omitted). District courts have discretion

to adjudicate motions for transfer according to an individualized, case-by-case consideration of

convenience and fairness. Id.




        7
          The Freedmen Defendants are correct that the Cherokee Nation has asserted sovereign
immunity as to the Freedmen Defendants’ counterclaims and that this Court will have to address
certain immunity issues. Nevertheless, the Cherokee Nation has waived immunity as to at least
one central question underlying the parties’ dispute, and the Court finds this to be a significant
legal difference between the two cases.

                                                   10
        The Court declines to transfer pursuant to § 1404(a).8 The Court finds that this forum is not

inconvenient for any party. The Freedmen Defendants argue that the Cherokee Nation’s selected

forum should not be entitled to any deference because the Cherokee Nation’s headquarters are

located in the Eastern District of Oklahoma. This argument is dubious, given that much of the

Cherokee Nation’s land and citizens are located in this district. This district qualifies as a “home

forum” for the Cherokee Nation, and it is certainly more of a home forum than the District of

Columbia. More importantly, this case will likely be decided on the briefs and exhibits, rather than

on the basis of a trial. Thus, the convenience of witnesses is not an important factor.

        In arguing for a § 1404(a) transfer, the Freedmen Defendants and Federal Defendants focus

on the “interest of justice” prong, arguing that transfer serves the interest of justice because it avoids

a duplication of resources and inconsistent judgments. Ordinarily, the interest of justice is served

by transferring a similar case to a first-filed venue in order to avoid duplication, preserve resources,

and prevent inconsistent judgments. See generally 15 Charles Alan Wright, Arthur R. Miller,

Edward H. Cooper, Federal Practice & Procedure § 3584 (3d ed. 2007) (collecting cases).

However, as explained above, this is a unique case in which the plaintiff seeking declaratory relief

in the second-filed forum is immune from suit in the first-filed forum. Further, this Court has held

that immunity in the first forum was not waived upon filing of the second suit. Under these

circumstances, the Court finds that a § 1404(a) transfer is not in the interest of justice,

notwithstanding any duplication of resources that may occur.



        8
        The Court assumes without deciding that this action “might have been brought” by the
Cherokee Nation in the D.C. Court, as argued by the Federal Defendants and Freedmen
Defendants. However, the Court declines to transfer for the discretionary reasons explained
below.

                                                   11
III.   Motion to Stay

       In the event transfer is denied, the Freedmen Defendants and Federal Defendants

alternatively move the Court to stay this action pending the outcome of the D.C. action.         The

Cherokee Nation and Cherokee Counter-Defendants oppose a stay.

       A court’s power to stay proceedings is “‘incidental to the power inherent in every court to

control the disposition of the causes on its docket with economy of time and effort for itself, for

counsel, and for litigants.’” United Steelworkers of Am. v. Oregon Steel Mills, Inc., 322 F.3d 1222,

1227 (10th Cir. 2003) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). “In assessing the

propriety of a stay, a district court should consider: whether the defendants are likely to prevail in

the related proceeding; whether, absent a stay, the defendants will suffer irreparable harm; whether

the issuance of a stay will cause substantial harm to the other parties to the proceeding; and the

public interests at stake.” United Steelworkers of Am., 322 F.3d at 1227.

       The Court declines to stay these proceedings for several reasons. First, the Court has no

indication as to whether the Freedmen Defendants and Federal Defendants are likely to prevail in

the D.C. court, and this factor is neutral. Second, these defendants will not suffer irreperable harm

if this Court proceeds. They may duplicate resources in simultaneously litigating the claims, but this

is not irreperable harm. Third, the public interest at stake in this case is a resolution between the

Cherokee Nation, the Federal Defendants, and the Freedmen Defendants regarding Freedmens’

citizenship rights within the Cherokee Nation. The Cherokee Nation is willing to submit to this

Court’s jurisdiction to answer this important question, while it will continue to resist enforcement

of any judgment rendered in the first-filed forum. Under these circumstances, the Court finds that

the public interest is best served by proceeding in this venue. Finally, in the event of simultaneous


                                                 12
litigation, litigating in two forums should not be overly burdensome because the issues will likely

be decided based on briefing. Any concerns regarding waste of resources or the risk of inconsistent

judgments is outweighed by the Cherokee Nation’s waiver of immunity and election to proceed in

this forum.

IV.    Conclusion

       This Court cannot in good conscience transfer or stay the only action in which the Cherokee

Nation has consented to resolution of these important issues. Freedmen Defendants’ Motion to

Transfer, Or in the Alternative, to Stay (Doc. 178) is DENIED.

       SO ORDERED this 15th day of March, 2013.




                                             ______________________________________
                                             TERENCE C. KERN
                                             United States District Judge




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