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case number 22-5302.

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Liatrice Tanner-Brown, personal representative of the estate of George W. Curl Sr.

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and of the class of similarly situated individuals and the Harvest Institute Freedmen Federation LLC on behalf of itself and all persons similarly situated at balance, versus Deborah A. Hillens, Secretary of the Interior, and Terry McLean Sweeney, Assistant Secretary in the Affairs.

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Mr. Squire for the balance, Mr. Richmond for the appellees.

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Mr. Squire, good morning.

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Good morning, your honor.

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May it please the court, counsel.

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Your honor, I would like to begin by, number one, thanking this panel for according the opportunity to my clients to have their cause heard by this court, given the long standing and historic nature of the deprivation that they are seeking to remedy through this appeal.

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The background to this appeal, I'm sure, is well known to the court.

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And I don't want to waste time going over things that the court already is conversant with.

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But I'd like to start by saying that the basic concern that is raised by this appeal is the disparate treatment that's been accorded to my clients, who are the descendants of Cherokee Freedmen.

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from their tribesmen who are referred to historically as native or blood Cherokees.

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And that distinction is so relevant here because the district court concluded in this case that despite the request for identical relief,

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that was raised by the blood Cherokees in connection with their claim of breach of fiduciary duty by the secretary has been met with the argument in this case that my clients lack standing because of their inability to point to a concrete

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and particularized injury capable of redress by the government or their lack of the requisite personal stake in the outcome to confer standing and to make this justiciable.

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These claims have been pursued for some time by my clients, but have always been thwarted at the threshold level based upon the allegation that the dispute as presented by them is not justiciable.

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This derives and begins with an 1866 treaty under which relationships between the Cherokee Nation and other members of tribes referred to historically as the Five Civilized Tribes were normalized following the Civil War.

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Following the 1866 treaty, which stated that any right of citizenship

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for native Cherokees must be extended equally to Freedmen resulted following the General Allotment Act of 1887, the Dawes Act and the 1898 Curtis Act, which allotted the land of Cherokee Freedmen took place.

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The ancestors of my client, George Curls and his siblings

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were enrolled members of the Cherokee Tribe.

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In 1902, when Mr. Curls was five years old, he became an enrolled member of the Cherokee Tribe.

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And in 1910, after the allotment of the Cherokee Freedmen lands and Mr. Curls was 13 years old, he received a 60-acre allotment.

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That allotment was subject

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to the act, which really is the focus of this appeal, which is the act of May 27th, 1908.

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Before you get to that, can I ask a question?

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So in your prior appeal, we held that there was a lack of standing because Ms.

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Tanner Brown didn't have any

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or sure, at least at that time, identify any legal capacity in which she was connected with Mr. Curl's estate.

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And on this complaint, it alleges that she's bearing the action as the representative of the estate, correct?

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That is correct, Your Honor.

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How is she the, is there a legal document, a will, a court ruling?

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What does it mean that she's the representative?

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I didn't mean to interfere.

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I'm sorry.

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Subsequent to the initial attempt to bring the act in her own right as a descendant of George Curls, and the court concluded that if there was a cause of action at all, that it accrued to Mr. Curls himself, Ms.

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Tanner Brown went back to the appropriate probate court and was appointed the personal representative of the estate of her grandfather.

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So she now has the legal interest that was missing in the prior appeal.

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Yes, Your Honor, that is correct.

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And the district court acknowledged that.

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The district court basically said, well, you're a little closer this time, but no cigar.

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And the reason for that is because you have not alleged a concrete particularized injury.

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My concern with that conclusion

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is that the court did not focus upon the relief that Miss Tanner Brown actually was pursuing.

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The court required it to be shown that in order to bring this claim, there must be some evidence of some wrongdoing or damage to the actual allotment of Mr. Curls.

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And that was not the claim here.

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The claim here

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is the same nature of the claim that was raised and recognized by this honorable court in the case of Eloise Cobell.

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And that is that the Native Americans here at the Freedmen are entitled to an accounting concerning the treatment according to their allotments by the government.

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But even to get that accounting, what are you deriving that from in terms of either the May Act or some statutory provision?

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You're bringing a cause of action generally for this accounting, but under what basis that there's some duty to give it to you?

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Your Honor, we're basing it on the authority of the Eloise Cobell case.

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This court stated in the Eloise Cobell case that the Cherokee

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natives were entitled to an accounting for the treatment by the government of their individual Indian money accounts.

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In the case of the Tanner Brown plaintiffs, there were no individual Indian money accounts because those freedmen were treated differently than the so-called blood Cherokees.

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What you have here is a situation in 1898, the Curtis Act allotted the lands of the five civilized tribes.

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To the extent land was allotted to blood Cherokees, the revenue and so forth derived from those allotments, despite the act of May 27, 1908, continued to

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obtained the protection of the United States government.

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So the revenue from royalties, from those allotments and so forth were placed in the individual Indian money accounts.

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In the case of Freedmen, who the treaty had said are entitled to the same status, that revenue was never put into individual Indian money accounts.

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That they's payment and their interests were basically ignored.

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When the government concluded in Cobell,

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that the United States had a duty to provide an accounting, there was no finding that an equivalent duty was owed to the freedman because the freedman's position was never recognized as being equivalent.

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It's our position.

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Your argument is that it should be.

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It should have been equivalent.

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That's your legal argument on the merits.

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That is our legal argument on the merits.

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To get over the standing barrier

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We have to assume you're right on the merits.

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At this stage, we assume you're right on your legal merits in analyzing your standing, whether or not you are is to be decided later.

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That is correct, Your Honor.

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We have to assume you're right that either statutorily or through

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unfair or unequal treatment, you were entitled to an accounting just like the other Cherokee members.

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Assuming that, then you have asked for an accounting and that's your injury as a deprivation of accounting?

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That is correct, Your Honor.

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The injury is the deprivation of the accounting, which could not be justified on any reasonable basis because it was said

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Whatever duties were owed to the so-called blood Cherokees were also owed to the free.

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And to further aggravate this, to deny the blood Cherokees or to exalt their interests,

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To those of the Freedmen just exacerbates the whole historical context of what happened here.

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Here you have a sect or an element so-called blood Cherokees who basically aligned themselves with the Confederacy had their

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position in relation to the United States normalized and then was given very paternalistic treatment by the United States.

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Whereas the persons held in bondage

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by the individuals who rebelled, who were less sophisticated and more capable of being exploited because of their lack of sophistication and education were then told, but your land can basically be governed by the state courts of Oklahoma.

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And to the extent that you are not a minor, we're going to remove any restrictions at all.

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or deprive you of any protection.

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So what we have here is under the Act of May 27 of 1908, at least as a minimum.

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because restrictions against alienation were retained as to Friedman miners at a minimum.

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Those miners should benefit from the same type of protection and paternalism that the so-called blood Cherokees received.

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And that has never happened.

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And that points out the dichotomy here and this disparity that we're asking this honorable court

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to, in referring to Cobell, accord the same protection and treatment to these Cherokee freedmen that has been accorded to the so-called blood Indians, based upon the authority that was articulated very clearly over and over again by this court in Cobell concerning the nature of the relationship between these tribes and the federal government.

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I've asked the reserve two minutes, your honor, and I'd like to take advantage of that unless the court has further questions at this point.

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Thank you.

[00:12:43] Speaker 01:
Good morning, your honors.

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May it please the court and Richmond for the federal defendants.

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The court previously affirmed the dismissed law of the nearly identical suit in 2017, which affirmed the district court's dismissal here for primarily three reasons.

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First, the federal defendants here have never held nor have they ever been required to hold George Krull's allotments in trust.

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Second, the Act of 1908 here- That sounds like a merits argument.

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They've got an argument that you did still have trust obligations.

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You argue they did not, but the district court here dismissed for standing.

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A claim for an accounting is a long recognized form of injury, Article III injury.

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And so whether they're right or wrong on the merits is not something we decide at the standing stage.

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So your honor, it might help for me to explain a bit about how we got to this purported accounting duty argument here, if that came before the court.

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And I'd also like you to

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Add into that discussion, what do you perceive are your duties?

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Because it does say make reports, et cetera.

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I've looked up 10 Westlaw cases or so that even refer to the statute, and it doesn't ever give anything very explicit about that.

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So to the extent that you can add on kind of that history about why this act comes into being, because it is an act of protection in regard to these lands.

[00:14:07] Speaker 01:
Yeah, our position is the Act of 1908.

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It's purely discretionary authority for the secretary to investigate conduct of Oklahoma state probate courts.

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And so just getting into how the accounting duty argument, the purported accounting to the argument came before the court, the district court originally dismissed based on plaintiff's failure to demonstrate mismanagement.

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That was how plaintiffs originally pleaded standing in their complaint that said JA4 talking about losses in mismanagement established standing.

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The district court dismissed on that basis because plaintiffs had failed to demonstrate mismanagement.

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And then in the Rule 59 motion, plaintiffs then argued that there was a purported accounting duty

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and that the denial of an accounting was... That's the relief requested in the complaint.

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It's all over the complaint that we want an accounting.

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So this isn't something that just appeared in Rule 59.

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This is what the complaint seeks.

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It's an accounting full stop.

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And that's an Article 3 injure.

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So whether the court frames this as a standing inquiry or an inquiry on the merits, the analysis and the results should be the same.

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They're very, very different things.

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They're very different questions.

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And the district court here dismissed on standing.

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Merits could be very complicated given the statutory scheme and the fact that federal courts were initially involved in handling the curls of states, at least according to some of the documents, public record documents attached to the motion to dismiss.

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And the secretary had the capacity.

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We don't know if the secretary had appointed a representative in George Curl's.

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Plaintiffs had not pleaded that there's a representative.

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They don't know if one was appointed.

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Do you know whether one was appointed?

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I know, no, there's no, we can't assign this merits question now.

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That seems like a pretty relevant fact question because of his federal representative had been appointed than the argument as to a duty.

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Some sort of fiduciary protective duty would be very different, but that's just an open.

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I think the denial of the rule 59 motion when the court addresses the purported accounting duty here, whether the court frames what the district court did in denying that rule 59 motion as a merits inquiry or an inquiry into standing.

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Again, the analysis is the same.

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I'm sorry.

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I think it's really dangerous and I'm surprised the government would be asking us

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to confuse standing analysis with merits analysis, because the government quite often tells us not to.

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So the question as to standing, she has the legal interest now, which she says you guys agree she does as the representative of the estate.

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She has a cognizable Article III injury, the request for an accounting as to the estate.

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And there's no doubt that it would be redressed by order of a court

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directing such an accounting.

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That's standing full stop.

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And I don't hear you saying why it's not.

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I hear you saying why we don't think the law entitles her to an accounting, which is an emerits question.

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But the district court ruled here on standing.

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Am I wrong?

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What about what about what I just said is incorrect?

[00:17:26] Speaker 01:
Nothing that you said is incorrect, Your Honor.

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I think it's the unique nature of this case that the injury... Do you think about this case that we should collapse standing and merits like we don't do in other cases?

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I mean, I would... We treat them differently.

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Here, Your Honor, just I think because of the nature of the proportion, the assertion of injury, the

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You think you have a very strong argument on the merits, I think, right?

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And lots of people think they have very strong arguments on the merits, but that's not the same as the, we don't then say the party doesn't have standing.

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Do you agree with, that's the government, it's gotta be the government's position.

[00:18:09] Speaker 01:
So the government's position is certainly that standing and the merits are distinct inquiries.

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And if the court feels that we have a... And the fact that there's a really... I mean, there is... You are right, to be fair.

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There is an extremely narrow exception where a claim is so fanciful, frivolous, nonsensical, numerical.

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that it doesn't even state a federal claim of law, that we're not in that area here.

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So they have standing, which is all the district court ruled.

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And then you have your arguments on the merits, but it seems to me that this is actually looking at the fact that there are actually documents in the record, public record documents in the record about where there is a federal court in the Indian territory

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making decisions about the Curl's children, including George, by names.

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A state court, Your Honor.

[00:19:04] Speaker 04:
Yes.

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Oklahoma State Court.

[00:19:06] Speaker 04:
No, no, no, no.

[00:19:06] Speaker 04:
There are federal court ones.

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If you look at their attachments, exhibit F to the response to the motion to dismiss, there are a number that are the, I just told you which court it was, in the United States Court for the Indian Territory.

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So this started

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They're started in this case.

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I don't know how this shakes out on the merits, because this was briefed to us as a standing case and decided by the District Court as a standing case.

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But it started with federal courts.

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And these are about Mr. Curl's father asking for appointments, asking his children, listing George as one of them.

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And then the 1908 Act comes along, and then there's a couple in here that are probate court.

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But the question of what happens, two questions of what happens to the federal duty if they start dealing with an estate, does something continue, is a question that we don't have any information about in this case.

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And the separate question, which you said we just don't have any facts on yet at this stage, which is just standing, of whether or not

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a representative was appointed by the secretary, which would change the account, could, I won't say would, could change the accounting or the fiduciary duties is an unknown fact.

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So we just- So I would just say the government- I think there's a lot to go back to the district court, maybe on the merits.

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The government adequately pleaded here failure to state a claim.

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There are multiple bases that if this court feels that it would like to- You can't answer these.

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You can't answer the factual question of whether or not

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It's actually three questions, I guess.

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You can't answer the factual question of whether or not a representative was ever appointed for Mr. Curl's children, including George Curl's.

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I don't understand.

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I haven't seen any law here about what happens if originally the federal government

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is issuing orders and making decisions through its federal courts about this territory.

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And then there's supposed to be a transition to the probate court.

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What is the status of the government?

[00:21:20] Speaker 04:
That's very unique.

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What is the status of the governments, if any?

[00:21:25] Speaker 04:
Sounds like your argument would be none.

[00:21:27] Speaker 04:
And that could be right, but that's much more complicated once you see that federal courts were involved in these states.

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And third, they have an argument, essentially, it sounds like sort of an equal treatment, equal protection.

[00:21:41] Speaker 01:
So they never, they never pled an equal protection claim here.

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And I would just say that

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was a fee simple transfer to george curls because right now all they want is an accounting it's once they get there is no trust there was no trust here to begin so there you can't even get to the question of an accounting that's a merits argument as to why that's why and then the merits argument and standing here is one of the same because of how the district court denied the rule 59 motion whether there's any trust

[00:22:07] Speaker 04:
may depend on whether a special representative was appointed.

[00:22:09] Speaker 01:
It may depend on... There's no trust duty in the Act of 1908 whatsoever.

[00:22:14] Speaker 04:
It may not be... Wait, hang on.

[00:22:19] Speaker 04:
There may be an argument.

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It would be different than what you're arguing now if a representative had been appointed and hadn't fulfilled its duties, which we don't know that.

[00:22:28] Speaker 01:
And plaintiffs failed to plead those facts.

[00:22:30] Speaker 01:
And we briefed that he failed to state a claim.

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None of the predicates were ever.

[00:22:34] Speaker 04:
That is a 12b6 motion.

[00:22:36] Speaker 04:
We're here for a denial of standing.

[00:22:38] Speaker 01:
And so if this court would like to look to other authority where courts have found that a failure to allege an enforceable fiduciary duty is relevant to a standing inquiry,

[00:22:48] Speaker 01:
can look to Fletcher versus United States.

[00:22:50] Speaker 01:
That's a federal circuit case, 26F41314.

[00:22:55] Speaker 01:
So courts, because of the unique nature of enforceable fiduciary obligations and whether that constitutes an injury in fact, courts have looked to the inquiry of whether there is an enforceable fiduciary duty or not.

[00:23:07] Speaker 04:
As a standing inquiry?

[00:23:08] Speaker 01:
As a standing inquiry.

[00:23:09] Speaker 04:
OK, well, that doesn't mean I'm going to agree with the federal circuit on that.

[00:23:12] Speaker 01:
Understood, Your Honor.

[00:23:15] Speaker 01:
I just want to also briefly speak to the section six of the Act of 1908 in response to Judge Child's question.

[00:23:23] Speaker 01:
So again, to maintain a breach of trust claim, plaintiffs would have to establish a federal government accepted enforceable fiduciary duties based on specific rights creating duty imposing language in a treaty statute or regulation.

[00:23:37] Speaker 01:
Here, Section 6, which is relied on by the plaintiffs, provides at most discretionary authority for the secretary to investigate Oklahoma probate court's treatment of minor law tees.

[00:23:47] Speaker 01:
The secretary is empowered to appoint a federal representative as they may deem necessary to investigate conduct of state court appointed guardians.

[00:23:57] Speaker 01:
And the federal representative then can form an opinion

[00:24:00] Speaker 01:
about that guardian's management.

[00:24:01] Speaker 01:
And only if a federal representative is appointed, and only if that federal representative makes findings about mismanagement, then there would be certain obligations for the federal representative to, for example, make reports to the secretary.

[00:24:14] Speaker 01:
So that discretionary language, it's not rights creating, it's not duty imposing.

[00:24:18] Speaker 01:
And the act of 1908, section six does not mention an accounting whatsoever.

[00:24:25] Speaker 03:
And- And are you saying that the accounting right only derives from that act, if at all?

[00:24:29] Speaker 01:
It can only it can only derive from specific rights creating duty imposing obligations and statute treaty regulation and there's no statute treaty regulation here that provides such an accounting reported accounting.

[00:24:43] Speaker 03:
And even if the reports that are supposed to come from that act.

[00:24:48] Speaker 01:
The reports would be if the federal representative made a finding about mismanagement.

[00:24:55] Speaker 01:
So that that discretionary language, it does not create any rights and again there's there's no mention of a specific reported accounting duty in the actual act.

[00:25:05] Speaker 01:
And so I just want to come back to this basic point though your honors, beyond the language of the act of 1908.

[00:25:11] Speaker 01:
that the secretary here can't own accounting duty when nothing has ever been held in trust on behalf of George Curls.

[00:25:18] Speaker 01:
So Curls received his allotments as a minor by deed.

[00:25:22] Speaker 01:
This was a fee simple transfer directly from the Cherokee Nation to George Curls.

[00:25:28] Speaker 01:
And so the 1908 Act clarifies that jurisdiction is vested in the Oklahoma probate courts, where the state court would, for example, appoint a guardian

[00:25:39] Speaker 01:
to oversee minors affairs, but the Act of 1908 itself, it does not create any trust.

[00:25:45] Speaker 01:
There is no trust corpus.

[00:25:47] Speaker 01:
There's no mention of a fiduciary, a beneficiary, a trustee.

[00:25:50] Speaker 01:
There's no mention of accounts.

[00:25:52] Speaker 01:
And that total absence of a trust corpus is why the Cobell case does not apply here.

[00:25:57] Speaker 04:
And Cobell... Orders.

[00:25:59] Speaker 04:
I'm sorry.

[00:25:59] Speaker ?:
Finish, go ahead.

[00:26:01] Speaker 01:
In in cobell that was a claim brought on behalf of plaintiffs when the government held individual Indian money accounts trust accounts on their behalf here the government does not hold anything on behalf of curls so.

[00:26:15] Speaker 01:
Again, that comparison to Cobell, it's just inapplicable here.

[00:26:20] Speaker 04:
So in the record, we have these federal court orders pertaining to these estates and appointing guardians.

[00:26:26] Speaker 04:
And it's just not, this is not the progate, and this is actually- But the appointment- Excuse me, this is pre-1908 act, but it involves a very estate at issue here, or the George Curls land, which becomes the estate at issue here.

[00:26:42] Speaker 04:
So if the federal government was entering orders as to that land, is there anything that tells us one way or the other, whether a trust could have attached even before the 1908 act?

[00:26:56] Speaker 01:
And so a trust duty, an enforceable fiduciary duty would only attach based on specific rights, creating duty, imposing language.

[00:27:03] Speaker 01:
And, you know, a single I'm not familiar with that specific order about the appointment of a guardian here, your honor.

[00:27:09] Speaker 04:
But these are all the documents attached to their motion to dismiss and their public record documents.

[00:27:19] Speaker 04:
Can a court order impose a trust?

[00:27:24] Speaker 01:
Not unless it's a rights creating duty imposing.

[00:27:29] Speaker 01:
Excuse me.

[00:27:29] Speaker 01:
No, it could not because it's not from a statute.

[00:27:32] Speaker 01:
It's not from a treaty.

[00:27:33] Speaker 01:
It's not from a regulation.

[00:27:34] Speaker 01:
It's the sovereign authority of the executive and for 1908.

[00:27:37] Speaker 04:
If you're if you're in the in a non state in the in a federal territory.

[00:27:41] Speaker 01:
Again, I'm not aware of any legal precedent that allows a court order to create a trust to be.

[00:27:50] Speaker 01:
Even if we're in a federal territory, we just don't know.

[00:27:51] Speaker 04:
It's would have been that in that in that time.

[00:27:53] Speaker 04:
That was it.

[00:27:55] Speaker 01:
And again, I think if there were such a rule, it would it would controvert Supreme Court president president.

[00:28:00] Speaker 01:
I mean, Arizona versus Navajo nation.

[00:28:02] Speaker 01:
The court is very clear.

[00:28:04] Speaker 01:
You can only create an enforceable trust duty based on Your rights creating duty imposing duty imposing language in a treaty statute or regulation.

[00:28:16] Speaker 01:
I'll also just add that

[00:28:18] Speaker 01:
The court has an alternative basis here to to affirm and that's based on the failure to lead mismanagement associated with the allotments here, there were no pleadings in the complaint about specific leases executed on behalf of curls there were no allegations about specific mismanagement by a guardian or curator.

[00:28:36] Speaker 01:
And again, we would argue that plaintiff hasn't pleaded traceability either because they haven't shown how George Carlson received more or a different amount of royalties had the federal defendants fulfilled their purported statutory duties.

[00:28:51] Speaker 01:
So unless there are any questions from the panel, Your Honor.

[00:28:54] Speaker 01:
Thank you.

[00:28:55] Speaker 01:
For these reasons, I should affirm the judgment of the district court.

[00:29:05] Speaker 04:
All right.

[00:29:07] Speaker 04:
Why don't you take two minutes?

[00:29:09] Speaker 00:
Thank you, Your Honor.

[00:29:10] Speaker 00:
Your Honor, I would just say in response to a couple of points raised by our opposing counsel in relation to the trust corpus

[00:29:24] Speaker 00:
The leases and the treatment of the leases in this case are something that we have no information because we've never gotten beyond the threshold point where we could begin to do some discovery.

[00:29:35] Speaker 00:
The other thing is the act of May 19, of May 27, 1908, if you really look at the impact and its intent,

[00:29:44] Speaker 00:
The thing that accomplished was it opened up land that had been allotted to freedmen for settlement in Oklahoma.

[00:29:56] Speaker 00:
This act occurred.

[00:30:00] Speaker 00:
at approximately the same time as Oklahoma statehood.

[00:30:04] Speaker 00:
And basically what occurred was that by removing these restrictions on alienation, it gave settlers in the Oklahoma territory the opportunity to basically exploit the freedmen, whereas the protections were retained for the land that had been allotted to the native Cherokees and to freedmen miners.

[00:30:25] Speaker 00:
The other point, Judge, is that

[00:30:29] Speaker 00:
This court stated in Corbell versus Norton that the Trust Fund Management Reform Act required the secretary to prepare periodic statements that account for the performance of balances to account holders.

[00:30:44] Speaker 00:
This only goes to the point I raised earlier about the fact that Cherokee freedmen were never given individual Indian money in accounts because they were basically, for lack of a better term, thrown to the wolves, whereas their

[00:30:57] Speaker 00:
Cherokee natives were the same land was the basis for their individual Indian money accounts.

[00:31:04] Speaker 00:
And in 1994, Congress passed legislation that acknowledged fiduciary duties of the secretary owed to beneficiaries of individual Indian money accounts.

[00:31:15] Speaker 00:
So at a minimum, the treatment accorded to

[00:31:19] Speaker 00:
the Cherokee Freedmen here perpetuated past discrimination.

[00:31:23] Speaker 00:
There was no reason for restrictions on alienation against their allotments to even be removed in 1908, and they were removed in order to make it easier for them to be exploited.

[00:31:37] Speaker 00:
Thank you very much, Your Honor.