                                                                                    FILED
                                                                        United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                  TENTH CIRCUIT                                July 30, 2013

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
CHARLES A. GREENE,

             Plaintiff - Appellant,
v.                                                           No. 12-7068
                                                   (D.C. No. 6:12-CV-00259-RAW )
ROBERT IMPSON, Acting Eastern                                (E. D. Okla.)
Regional Director of Oklahoma Bureau of
Indian Affairs- Department of Interior;
RAMONA L. ELLIS, Superintendent of
Bureau of Indian Affairs- Department of
the Interior, Talihina Agency,

             Defendants – Appellees.



                             ORDER AND JUDGMENT*


Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.


      The question in this appeal is whether officials from the Bureau of Indian Affairs

(BIA) violated Charles Greene’s constitutional rights by failing to provide him an


      *
         The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
application form to allow descendants of Choctaw Indian Freedman1 to apply for federal

recognition as an Indian.

       Greene is the great grandson of Bennie Vinson, a Choctaw Indian Freedman listed

on the Index and Final Rolls of the Citizens and Freedmen of the Choctaw and

Chickasaw Tribes approved June 21, 1906.2 Sometime prior to April 2009, Greene

requested a “Certificate of Degree of Indian Blood” (CDIB) (a prerequisite for him to

receive certain government assistance) from the BIA. See Davis v. United States (Davis

I), 192 F.3d 951, 956 (10th Cir. 1999); see also Underwood v. Deputy Assistant Sec’y—

       1
         The Choctaws are one of the “Five Civilized Tribes.” See Indian Country, USA,
Inc. v. State of Okla. ex rel. Okla. Tax Comm’n, 829 F.2d 967, 970 n.2 (10th Cir. 1987).
In the 1830s, the United Sates seized the Choctaw’s ancestral territory and relocated the
Tribe to Oklahoma. See Harjo v. Kleppe, 420 F. Supp. 1110, 1119 (D.C. D.C. 1976); see
also http://www.choctawnation.com/history/. Included in the relocation were African
slaves owned by many tribe members. See
http://digital.library.okstate.edu/encyclopedia/entries/f/fr016.html; see also Choctaw
Nation of Indians v. United States, 318 U.S. 423, 424 (1943). In 1866, a treaty between
the United States and the Tribe abolished slavery within the Tribe. See Treaty with the
Choctaw and Chickasaw, U.S.-Choctaw and Chickasaw Nations of Indians, art. II, Apr.
28, 1866, 14 Stat. 769; see also Choctaw Nation of Indians, 318 U.S. at 424. These
former slaves became known as Freedmen. See Groundhog v. Keeler, 442 F.2d 674, 677
(10th Cir. 1971) (describing Cherokee Freedmen).
       2
         The Index and Final Rolls of the Citizens and Freedmen of the Choctaw and
Chickasaw Tribes approved June 21, 1906, is derived from the rolls created by the Dawes
Commission, whose task was to negotiate with the Five Civilized Tribes for
relinquishment of their lands to either the United States or to individual members of the
Tribe. See Winton v. Amos, 255 U.S. 373, 379 (1921); United States v. Ferguson, 247
U.S. 175, 177 (1918); United States v. City of McAlester, Okla., 604 F.2d 42, 48 (10th
Cir. 1979). After negotiations with the Tribes failed, Congress passed the Curtis Act
which required allotment of the Tribes’ land to their members. To determine who was
eligible for such allotment, the Curtis Act tasked the Dawes Commission with creating
“rolls” of the Tribes’ members. See Ferguson, 247 U.S. at 176-77; Muscogee (Creek)
Nation v. Hodel, 851 F.2d 1439, 1441 (D.C. Cir. 1988); Witt v. United States, 681 F.2d
1144, 1147-48 & n.8 (9th Cir. 1982).


                                          -2-
Indian Affairs (Operations), 14 IBIA 3, 14-16 (IBIA 1986). The BIA denied his request

because he could not “verify direct lineage to a Choctaw enrollee who is listed with an

Indian blood degree on the Index and Final Rolls of the Citizens and Freedmen of the

Choctaw and Chickasaw Tribes approved June 21, 1906 (34 Stat. 325).” (R. at 135.) In

2010, he asked the Superintendent of the BIA to provide a form with which he could

apply for federal recognition as a descendant of a Choctaw Indian Freedman. The

Superintendent forwarded the letter to the Regional Director of the Eastern Oklahoma

BIA, who denied the request because no such form existed.

       Greene filed a pro se complaint against the Regional Director of the Eastern

Oklahoma BIA and the Superintendent of the BIA (Officials), alleging constitutional

violations based on their refusal to provide him with an application form allowing

descendants of Indian Freedman to be federally recognized as an Indian.3 Officials



       3
         Greene alleges Officials violated his right to equal protection under the
Fourteenth Amendment. But that Amendment applies only to state actors. Bolling v.
Sharpe, 347 U.S. 497, 499 (1954). We therefore construe his claims as arising under the
Due Process Clause of the Fifth Amendment, which applies to federal officials and
which, although not containing an equal protection clause, encompasses equal protection
principles. Johnson v. Califano, 656 F.2d 569, 573 n.4 (10th Cir. 1981); see also
Washington v. Davis, 426 U.S. 229, 239 (1976); Bolling, 347 U.S. at 499; Smith v.
Kitchen, 156 F.3d 1025, 1028 (10th Cir. 1997). He also cites 42 U.S.C. § 1983 as the
basis for bringing his constitutional claims. However, § 1983 also applies only to state
actors. See 42 U.S.C. § 1983. Because Officials are federal employees, his complaint
sounds in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), where the
Supreme Court “recognized for the first time an implied private right of damages against
federal officers alleged to have violated a citizen’s constitutional rights.” Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 66 (2001). While courts should be reluctant to extend
Bivens beyond its context and category of defendants (Fourth Amendment claim against
federal law enforcement officers), the Supreme Court has allowed a Bivens action to
                                                                               (continued. . .)

                                             -3-
moved to dismiss. The district judge granted the motion. He determined that to the

extent Greene was seeking tribal membership, the court lacked jurisdiction; to the extent

Greene alleged constitutional violations based on Officials failing to provide him an

application form, the judge concluded the allegations, even if true, did not state a claim—

Greene had not established a constitutional violation and, even if he had, it was not

clearly established.4 Because Greene is not seeking tribal membership, only the latter

ruling is before us.5

       Greene says Officials violated the Due Process Clause of the Fifth Amendment by

denying him an application form which would allow descendants of Indian Freedmen to

redress the equal protection component of the Fifth Amendment Due Process Clause. See
Aschcroft v. Iqbal, 556 U.S. 662, 675 (2009); Davis v. Passman, 442 U.S. 228, 229-30,
234-35, 245-48 (1979). But, as we explain, Greene was not denied equal protection of
the laws.
       4
         The district judge’s analysis regarding whether the constitutional right was
clearly established relates to a government officer’s qualified immunity. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). This defense and its analysis applies to both §
1983 and Bivens actions. Butz v. Economou, 438 U.S. 478, 499-500 (1978); DeVargas v.
Mason & Hanger-Silas Mason Co., 844 F.2d 714, 720 n.6 (10th Cir. 1988). But Officials
did not raise a qualified immunity defense. See Harlow, 457 U.S. at 815 (qualified
immunity is an affirmative defense which must be pled by the defendant). Nevertheless,
we agree with the judge that Greene did not establish a constitutional violation and
therefore his complaint does not state a claim for relief.
       5
         Despite Greene’s repeated statements he is not seeking tribal membership,
Officials defend the district judge’s decision based on a court’s lack of jurisdiction over
tribal membership issues. Membership is a tribal function over which we lack
jurisdiction. Ordinance 59 Ass’n v. U.S. Dep’t of the Interior Sec’y, 163 F.3d 1150,
1155, 1157, 1160 (10th Cir. 1998). However, eligibility to participate in government
assistance programs via a CDIB is a BIA function, which we may review. See Harrison
v. Dep’t of Interior, Bureau of Indian Affairs, 229 F.3d 1163, No. 99-7108, 2000 WL
1217841, at *2 (10th Cir. Aug. 28, 2000) (unpublished). Officials also argue Indian
Tribes cannot be sued for constitutional violations. Greene is not suing the Choctaw
Nation; he is suing BIA officials. Officials’ brief is not helpful.


                                            -4-
be federally recognized as Indians for certain government assistance programs.

According to Greene, the BIA’s refusal to recognize this class is based on “racial

animus.”6 (R. at 11.) We review de novo a dismissal for failure to state a claim.7 See

Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 806 (10th Cir. 1999). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quotations omitted). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id.

       To be federally recognized as an Indian for purposes of participating in certain

government assistance programs, a CDIB is required. Davis I, 192 F.3d at 956. The BIA

only issues CDIBs to individuals possessing a specific quantum of Indian blood which is

determined by reference to the rolls established by the Dawes Commission. See Davis

ex. rel. Davis v. United States (Davis II), 343 F.3d 1282, 1286 (10th Cir. 2003); Davis I,

192 F.3d at 956; Underwood, 14 IBIA at 14-16. Thus there is no application form which


       6
         Greene does not specifically identify what he seeks to gain from being federally
recognized as an Indian. Indeed, his request is limited to wanting an application form—
one that does not exist. Applying a most liberal construction to his complaint, see
Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003), based on his
request for a CDIB from the BIA, we assume he is seeking Indian status to participate in
certain government assistance programs.
       7
         The judge did not clarify whether it was dismissing under 28 U.S.C. §
1915(e)(2)(B)(ii) or Rule 12(b)(6) of the Federal Rules of Civil Procedure. In any event,
the standard of review is the same. See Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803,
806 (10th Cir. 1999).


                                             -5-
allows an individual to seek federal recognition as an Indian without proof of Indian

blood. To the extent Greene argues this distinction is discriminatory because descendants

of African Freedman are excluded, descendants of Citizens by Marriage—those

individuals who were married to a Choctaw Indian at the time of enrollment but who

possess no Indian blood—are also on the rolls but excluded from receiving a CDIB. See

http://www.archives.gov/research/arc/native-americans-final-rolls.html. Therefore, any

discrimination is between blood and non-blood Choctaw Indians; the distinction is not

based on Greene’s race. And classifications based on Indians and non-Indians do not

offend the Due Process Clause because such classifications “[are] not based upon

impermissible racial classifications” but instead are “rooted in the unique status of

Indians as . . . once-sovereign political communities.” See United States v. Antelope, 430

U.S. 641, 645-46 (1977) (holding statutes allowing federal prosecution of Indians did not

violate Fifth Amendment Due Process Clause); see also Morton v. Mancari, 417 U.S.

535, 552-54 (1974) (upholding limited employment preference for Indians by the BIA

because “preference . . . is granted to Indians not as a discrete racial group, but, rather, as

members of quasi-sovereign tribal entities”). Because Greene has neither alleged nor

presented evidence of a racially discriminatory purpose by Officials, his Fifth

Amendment claim fails. See Washington v. Davis, 426 U.S. 229, 239-40 (1976).

       AFFIRMED.

                                            Entered by the Court:

                                            Terrence L. O’Brien
                                            United States Circuit Judge


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