In the United States Court of Federal Claims

No. 18-1174C

(Filed: January 29, 2019)

(NOT TO BE PUBLISHED)
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KENDALL LOCKLEAR, et al., )

)

Plaintiff, )

)

v. )

)

UNITED STATES, )
)

Defendant. )

)

****sa***********************$***$

Kendall Locklear, pro se, Maxton, North Carolina and Christopher Hardison, pro se,
Windsor, North Carolina.

Sara E. Costello, Trial Attorney, Environmental & Natural Resources Division, Natural
Resources Section, United States Departrnent of Justice, Washington, D.C., for defendant. With
her on the motion and brief Were Jean Williams, Deputy Assistant Attorney General,
Environmental & Natural Resources Division, United States Department of Justice, Washington,
D.C., and J ames W. Porter, Attorney Advisor, Office of the Solicitor, Department of the Interior,
Washington, D.C.

OPINION AND OR])ER

LETTOW, Senior Judge.

Plaintiffs Kendall Locklear and Christopher Hardison assert claims on behalf of
themselves, other unidentified individuals, and an entity called the “Six Nations of hidians.”
'l`hey allege land and property takings, identity theft, treaty Violations (including “bad men
clauses”), improper arrest and ticketing, and human and religious rights violations stemming
from the actions of various local, state, and federal officials Compl. at 2-3, 'f-9.l Pending
before the court is the government’s motion to dismiss pursuant to Rules lZ(b)(l) and lZ(b)(6)
of the Rules of the Court of F ederal Claims (“RCFC”) for lack of subject-matter jurisdiction and
for failure to state a claim upon Which relief can be grantedl See United States’ Mot. to Dismiss
. . . (“Def.’s Mot.”), ECF No. 9. Because the court lacks subject-matter jurisdiction and the

 

lCitations to the complaint Will refer to the assigned ECF page numbers

rcra nnlm_£nal LBElE L?Lf=__ rata nasa omni mass ives

 

plaintiffs have failed to state a claim for which relief can be granted, the government’s motion to
dismiss the complaint is GRANTED.

BACKGROUND

l\/Ir. Locklear and Mr. Hardison identify themselves as “[t]reaty lndians” who are
members of the “Six Nations of Indians.” Compi. at 3, 7, 12~13. The plaintiffs concede that the
“Six Nations of Indians” is not a registered tribe with the Bureau of Indian Affairs. Compl. at 6.2
They claim instead that the “Six Nations of Indians” is a “separate sovereign [n]ation[]
possessing powers of authority to enact their own laws Without needing to get permission from
any other foreign governmental entity.” Compl. at 4 (ernphasis removed). The “Six Nations of
Indians” appears to be a reference to the “Six Nations” of tribes that composed the Iroquois
Confederacy after 1720. See Federal Power Comm ’n v. Tuscarora ladian Natton, 362 U.S. 99,
121 n. l 8 (1960) (The Six Nations consisted of the Oneidas, the Mohawks, the Onondagas, the
Cayugas, the Senecas, and the 'i`uscaroras.). Although plaintiffs make passing references to the
recognized tribes Which comprised the Six Nations, they do not claim to be actual members of
any of those tribes See Cornpl. at 5-6, 7-8, 8-9. Rather, they aver they are “Treaty Indians.”
Cornpi. at 5-6, 7-8, 3~9.

In their complaint, the two plaintiffs assert “attempt[s] to strip a [t]reaty lndian of their
[t]reaty frights],” which resulted in “a form of [r]ape[] and molestation, as well as [f]raud, and
possible attempted genocide, intimidation, coercion, theft by deception, identify theft, [t]reaty
[v]iolations, [r]eligious [r]ights violations, and other types of [h]uman [r]ights violations.”
Compl. at 3 (emphasis removed). These “attempts” arise from a variety of interactions between
the plaintiffs and local, state, and federal officials They include an unnamed plaintiff being
charged With possession of marijuana, the use of the name “Onondaga” by New York State
without permission, 15 “Onondaga [t]reaty lndians” being harassed and beaten by state highway
patrol officers, state game wardens giving Mr. Locklear “18 years” of tickets for illegal hunting,
the closing of a state court on Mernorial Day and the subsequent holding of Mr. Locklear in
contempt, and an issue With an unidentified individual at the United States border With Canada.
Compl. at 5-9.

The “treaty rights” claimed by the plaintiffs allegedly arise from the Treaty of 1794
between the United States and the Six Nations Iroquois Confederacy, 7 Stat. 44 (Nov. 11, 1794).
Also known as the Treaty of Canandaigua or the Pickering Treaty, the Treaty of 1794
“recognized the land rights of certain members of the lroquois Confederacy . . . and was one of
the first federal treaties executed between the United States and any Native Arnerican tribe under
the authority of the United States Constitution.” Banner v. United States, 238 F.3d 1348, 1350
(Fed. Cir. 2001). The Treaty of 1794 was in many ways a reaffirmation of an earlier treaty
signed under the Articles of Confederation, the Treaty of Fort Stanwix in 1784. Id. Both treaties
sought peace between the young American nation and the Iroquois Confederacy (rnany of whose
members fought alongside the British during the Revolutionary War), and to recognize certain

 

2See lndian Entities Recognized and Eligible to Receive Services from the United States
Bureau of indian Affairs, 83 Fed. Reg. 34863-68 (July 23, 2018).

2

 

lroquois land holdings See id.; see also Sl`x Nations v. United States, l73 Ct. Cl. 899, 902
(1965).

The plaintiffs request a wide variety of relief based on the alleged violation of the Treaty
of 1794. 'l`hey seek the return of 20,000 acres of land, Compl. at 8, “$20,000,000 [] to be
extracted from the Treaty Account-War Bonds at the State Department” for Mr. Locl<lear,
Compl. at 8 (capitaiization removed), and 20 live eagles, Compi. at 8. Also in the complaint is a
demand for the “[r]eturn of [a]ncestral [h]omelands,” “$332,700,000 [from] [tjreaty [a]nnuities,”
the “return of all property seized” due to treaty violations, and “$l'f,OO0,00[sic]” per day for lost
revenue related to “economic development enterprises being destroyed.” Compl. at 1 1.3

STANDARDS FOR DECISION
Rule ]2(13)(1) a Lack of Subject-Matter Jurisdiction

As a threshold matter, jurisdiction must be established before the court may proceed to
the merits of a case. Steel Co. v. Citizensfor a Berter Env ’t, 523 U.S. 83, 94 (1998). When
jurisdiction is challenged, the plaintiff bears the burden of proving subject matter jurisdiction
M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010). While a
pro se litigant is afforded some leniency as to legal formalities, this does not relieve him or her
from meeting his or her jurisdictional burden. Kelley v. Secretary, United Srates Dep ’t ofLabor,
812 F.2d 1378, 1380 (Fed. Cir. 1987).

The Tucl;er Act provides this court with jurisdiction to entertain “any claim against the
United States founded either upon the Constitution, or any Act of Congress or any regulation of
an 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. § l49l(a)(l). The
Tucker Act, however, is a jurisdictional statute that creates no substantive right to money
damages fn re United State.s', 463 F.3d 1328, 1333 (Fed. Cir. 2006). Thus, to establish
jurisdiction, a plaintiff is required to “point to a substantive right to money damages against the
United States.” Hamlet v. United Stares, 63 F.3d i097, 1101 (Fed. Cir. 1995) (citing United
States v. Testan, 424 U.S. 392, 398 (1976)).

Similarly, the lndian Tucker Act confers jurisdiction upon this court to hear claims
accruing after August 13, 1946, that Would otherwise be cognizable in this court if the claimant
Were not an indian tribe or group. See 28 U.S.C. § 1505; United States v. Navajo Nafion, 556
U.S. 287, 289-90 (2009). 'l`he lndian Tucl<er Act applies to “tribe[s], band{s], or other
identifiable group[sj of American lndians,” and not individual tribal members See 28 U.S.C.
§1505', see also Tsosie v. United States, 825 F.2d 393, 401 (Fed. Cir. 1987) (“[A]n Indian tribe

 

3A letter from an attorney, a Mr. Gary J. Silversmith, is attached to the front of the
complaint Cornpl. at l. The letter states that Mr. Silversmith will represent Mr. Locklear
regarding the recognition of his “status in Indian Country.” Compl. at 1. But Mr. Locl<lear and
Mr. Hardison are appearing pro se, as only their signatures appear on the complaint and there are
no other mentions of Mr. Silversmith or any appearance by him as counsel of record. Compl. at

12,13.

 

can sue on a treaty under 28 U.S.C. § 1505 and an individual lndian can sue under 28 U.S.C. §
1491 and base the claim in either case on an lndian treaty . . . .”). Substantive rights are not
created by the Indian Tucker Act, so plaintiffs must identify a separate source of law that
establishes specific duties and allege that the government has failed to perform those duties
Hopi Tribe v. United Stares, 782 F.3d 662, 666 (Fed. Cir. 2015) (citing Navojo Norion, 556 U.S.
at 290).

A complaint raising claims that are outside this court’s jurisdiction must be dismissed, for
the court has no adjudicative power over it. RCFC 12(h)(3) (“lf the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss the action.”); see also Groy v.
United Stotes, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868) (“Without jurisdiction the court cannot proceed at all in any cause.”)', Thoen v. United
States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)).

Rule l2(b)(6) - Foilure to Stote a Claimfor which Reliefccm be Granteo’

Under Rule 12(b)(6), a complaint that “fail[s] to state a claim upon which relief can be
granted” must be dismissed To survive a motion invoking Rule 12(b)(6), a plaintiff"s 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) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The court is bound “to take the well~pleaded factual
allegations in the complaint as true.” Paposan v. Alloin, 478 U.S. 265, 283 (1986)', see also
Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009). “However, regardless of
whether the plaintiff is proceeding pro Se or is represented by counsel, ‘conclusory allegations or
legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to
dismiss”’ McZeal v. Sprinl Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007) (quoting Taylor
v. Books A Million, Inc., 296 F.3d 376, 378 (Sth Cir. 2002)); see olso, e.g., Willioms v. United
States, 100 Fed. Cl. 263, 275 (2011) (citing Gcmr v. United Stotes, 4l7 F.3d 1328, 1331 (Fed.
Cir. 2005)).

ANALYSIS

Plaintiffs are not, and do not claim to be, members of any federally recognized tribe, but
rather assert they are “treaty Indians,” Compl. at 2-3, a nebulous term that carries no intrinsic
legal rights In the circumstances the government contends that this court lacks jurisdiction
because the plaintiffs were not a party to the Treaty of l794, cannot represent the “Six Nations of
Indians” or other plaintiffs, fail to identify a money-mandating duty, seek equitable relief outside
this court’s jurisdiction, and fail to state sufficient facts to sustain their complaint See Def.’s
Mot. at 6-17. For the following reasons, the court agrees

A. Rule 12(b)(1) - Lack of Subject-Matter Jurisdiction

As a preliminary matter, Mr. Locklear and Mr. Hardison fail to provide “a short and plain
statement of the grounds for the court’s jurisdiction,” RCFC 8(a), based on the Tucker Act or
otherwise, See Ruther v. United States, No. 18-1110C, 2018 WL 5095451, at *3 (Fed. Cl. Oct.
17, 2018). Although the plaintiffs provide a litany of grievances including the alleged theft of

 

land, nowhere does the complaint set out a rationale for why this court has jurisdiction over their
claims nor can one be readily inferred from their claims 'l`heir complaint is unavailing on this
failure alone.

1. Mr. Locklear ana’ Mr. Hardison may not represent others as pro se litigants

This court does not have jurisdiction over the claims Mr. Locklear and Mr. Hardison, as
pro se litigants, bring on behalf of the “Six Nations of lndians” and its other members The
Rules of this court provide that “[a]n individual who is not an attorney may represent oneself or a
member of one’s immediate family, but may not represent a corporation, an entity, or any other
person in any proceeding before this court.” RCFC 83.1(a)(3). The term “immediate family
members” is defined as “parents, spouse, children, and siblings.” Fast Horse v. United Stales,
101 Fed. Cl. 544, 548 (2011) (quoting Black’s Law Dicrionary 273 (8th ed. 2004)) (internai
citations omitted). Representation by pro se litigants of a non-acknowledged tribe is not
permitted See Williams v. United States, 482 Fed. Appx. 580, 582 (Fed. Cir. 2012) (holding that
a pro se litigant was barred from asserting claims on behalf of an lndian tribe that was not
federally recognized.); Ayanuli v. United States, No. l8-569L, 2018 WL 3486110, at *3 (Fed. Cl.
July 19, 2018) (same); Michael v. United States, No. 14-757L, 2014 WL 5395877, at *2 (Fed.
Cl. Oct. 23, 2014) (“Pro se representation [of an alleged lndian group] is prohibited under RCFC
83. l(a)(3) because the group has not been federally acknowledged as a sovereign lndian tribe.”).
Neither Mr. Locklear nor Mr. l~lardison are attorneys, and therefore they may not bring claims on
behalf of others, including the “Six Nations of lndians”

2. The “Six Nations oflndfans ” was not a party to the Treaty of 1 794.

The “Six Nations of lndians” Was not party to the treaty cited by the plaintiffs The
signing members of the Treaty of 1794 were the several tribes that comprised the Iroquois
Confederacy, collectively known as the Six Nations. See Tuscarora lndian Natfon, 362 U.S. at
121 n.18; Six Nations, 173 Ct. Cl. at 902. As a nonparty to the treaty, neither Mr. Locklear and
Mr. Hardison as individuals nor the “Six Nations of lndians” would have a cause of action to
enforce said treaty. See Medellin v. Texas, 552 U.S. 491, 505 (2008) (“A treaty . . . ‘depends for
the enforcement of its provisions on the interest and the honor of the governments which are
parties to it.”’) (quoting Heaa’ Money Cases, 1l2 U.S. 580, 598 (1884)). “[l]nternational
agreements even those directly benefiting private persons, generally do not create private rights
or provide for a private cause of action in domestic courts.” ld. at 506 n.3 (quoting Restatemenf
(Thiral) ofForeign Relations Law ofth United States § 907, cmt. a (Am. Law lnst. 1987)).

3. Plaintiffs ’ claims are time-barred

To the extent Mr. Locklear and Mr. Hardison allege takings of land under the Fifth
Amendment, those claims are time-barred. This court has jurisdiction over takings claims
because the Takings Clause is a money-mandating constitutional provision Jan ’s Hellcopter
Ser'v., Inc. v. Federal sz'ation Admin., 525 F.3d 1299, 1309 (Fed. Cir. 2008) (“[T]he Takings
Clause of the Fifth Amendment is a money-mandating source for purposes of Tucker Act
jurisdiction.”). Nonetheless, even under a generous reading, plaintiffs’ takings claim would have
accrued in the l700s and consequently is far outside this court’s six-year statute of limitations

 

28 U.S.C. § 2501 (“Every claim of which the United States Court of Federal Claims has
jurisdiction shall be barred unless the petition thereon is filed within six years after such claim
first accrues.”); see also Ayarmll, 2018 WL 3486110, at *4.

4. The court lacks jurisdiction over plaintiffs ’ claims for other reasons

This court does not possess jurisdiction to entertain the claims of Mr. Locklear and l\/Ir.
Hardison arising out of the alleged conduct of local, state, and federal government officials The
court may exercise jurisdiction only over “clairn[s] against the United States,” not claims against
private or state-level actors 28 U.S.C. § 1491(a)(1); F allard v. United Srares, 78 Fed. Cl. 294,
300-01 (2007) (“This court does not have jurisdiction to hear claims against individual federal
government officials, prosecutors or judges . . [or] states or state officials”). Thus, the
plaintiffs’ claims involving parties other than the United States are outside this court’s
jurisdiction and must be dismissed

Claims sounding in tort are also outside the scope of this court’s jurisdiction See 28
U.S.C. §1491(a)(l); Shearln v. United Slates, 992 F.2d 1195, 1197 (Fed. Cir. 1993). l\/ir.
Locklear and Mr. l-lardison assert a myriad of claims such as identity theft, theft of property,
theft of land, denial of economic development and harassment Compl. at 5-9, 11. To the extent
these claims sound in tort, this court does not possess jurisdiction to hear them. See Cycenas v.
United States, 120 Fed Cl. 485, 498 (2015) (“To the extent plaintiffs complaint asserts claims
of . . . identity theft . . . and trespass, those claims sound in tort, or allege criminal conduct . . .
[andj this court lacks jurisdiction to adjudicate those claims”); Masfrolia v. United Srates, 91
F ed Cl. 369, 38l (2010) (“[C]lairns for pain and suffering, emotional distress, and mental
anguish sound in tort.”) (citation omitted). As such, these claims must be dismissed

Nor can this court exercise jurisdiction over alleged criminal, human rights, or religious
rights violations To the extent Mr. Locklear and Mr. Hardison allege theft or trespass as
criminal violations, see 18 U.S.C. §§ 1163, 1167, this court does not possess jurisdiction over
these claims See 28 U.S.C. 1491(a); Ferhanalez de lglesias v. United States, 96 Fed. Cl. 352,
363 (2010) (“[T]he Court of Federal Claims lacks jurisdiction over criminal claims.”) (citation
omitted). Further, this court does not have jurisdiction to hear claims of human rights or
religious rights violations that are not premised on a money-mandating provision of law.
Sar:clers v. United States, 34 Fed. Cl. 75 , 80 (1995) (“This court does not have jurisdiction to
entertain general civil rights claims that are not based upon an appropriate money-mandating
provision.”); see also Marlih v. United States, 63 Fed. Cl. 475, 476 (2005) (“[This] [c]ourt does
not have jurisdiction to consider civil rights claims brought pursuant to 42 U.S.C. §§ 1981, 1983,
or 1985.”). As the plaintiffs have failed to identify any money-mandating provisions of law that
would plausibly relate to the rights violations they allege, the court may not entertain those
claims

Finally, the court does not possess jurisdiction to award equitable relief to transfer land or
eagles to the “Six Nations of lndians.” See Wllllams v. United States, No. 10-880L, 2011 WL
389l 124 at *1, *4 (Fed. Cl. Sept. 2, 2011) (holding that requests to return ancestral lands by a
pro se lndian plaintiff were equitable in nature and thus outside this court’s jurisdiction), a]j"’a',
482 Fed. Appx. 590.

 

B. Rule 12(b)(6) - Failnre t0 State a Claim for Which Relief Can be Granted

in addition to the numerous jurisdictional flaws, the plaintiffs’ complaint also fails to
state a claim for which relief can be granted The complaint makes implausible conclusory
allegations regarding actions by various agents of the state, local, and federal governments lt
also makes unsupported claims about the rights of “[t]reaty lndians,” and the relationship
between the “Six Nations of Indians” and the United States based on an incorrect interpretation
of the Treaty of 1794. See generally Compl. Even taking into account the more lenient pleading
requirements for pro se litigants, McZeal, 50l F.3d at 1356, l\/lr. Locklear and Mr. Hardison’s
complaint fails to “state a claim to relief that is plausible on its face.” labal, 556 U.S. at 678.

Moreover, Mr. Locklear and Mr. Hardison’s vague invocation of claims based on “bad
men” clauses also fails to state a cause of action on which relief could be granted4 Although the
Federal Circuit has held that Tucker Act jurisdiction extends to certain claims under bad men
provisions, Tsosle, 825 F.2d at 399-400, the plaintiffs here fail to allege facts sufficient to state a
claim under such provisions see Twombly, 550 U.S. at 555 (“[P]laintiff‘ s obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions . . . .”)
(citing Papasarz, 478 U.S. at 286). Notably, the Treaty of 1794 does not have a money-
mandating “bad men” provision See 7 Stat. 44, 46.

CONCLUSION

F or the reasons stated, defendant’s motion to dismiss is GRANTED. The clerk shall
enter judgment in accord with this disposition

No costs

n is 30 oRDERED. &Mq/

Charles li`. Lettow
Senior Judge

 

4As Ayarmli explains:

Bad men clauses appeared in nine treaties executed between the United States and
native American tribes in 1868. See Note, A Bacl Marz is Hara’ to Firrd, 127 Harv.
L. Rev. 2521, 2525 (2014). Bad men clauses typically contained language to the
following effect: “lf bad men among the whites . . . shall commit any wrong upon
the person or property of the lndians, the United States will . . . proceed at once
to . . . reimburse the injured person for the loss sustained.” Icl. at 2525-26.
Although bad men claims have been infrequently litigated this court has
exercised jurisdiction over such claims See id. at 2528-29; see also Ellc v. United
States, 87 Fed. Cl. 70, 72, 96 (2009); Hel)ah v. United States, 192 Ct. Cl. 785, 792
(1970).

Ayanalz', 2018 WL 34861 l0, at *4 n.2.

 

