CHEROKEE NATION, Plaintiff, v. RAYMOND NASH, et al., Defendants ...

Case 1:10-cv-01169-HHK Document 83

Filed 09/30/11 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHEROKEE NATION, Plaintiff, v. Civil Action 10-1169 (HHK) RAYMOND NASH, et al., Defendants.

ORDER The Cherokee Nation filed this suit in the Northern District of Oklahoma against Raymond Nash, Larry Wasson, Robert Allen, Kathy Washington, and Lisa Duke (collectively, “Freedmen”). The Cherokee Nation seeks a declaratory judgment “that the Five Tribes Act and federal statutes modified the Treaty of 1866 thereby resulting in non-Indian Freedmen descendants, including the individual defendants, no longer, as a matter of federal law, having rights to citizenship of the Cherokee Nation and benefits derived from such citizenship.” Compl. [Dkt. # 2] ¶ 18. The Cherokee Nation also sued the Department of the Interior and the Secretary of the Department of the Interior (collectively, “Federal Defendants”), but later dismissed those claims without prejudice. [Dkt. ## 65, 71]. The Freedmen brought counterclaims against the Cherokee Nation [Dkt. # 32] and cross-claims against the Federal Defendants [Dkt. # 32]. Upon the motions of the Freedmen and the Federal Defendants to transfer venue to this Court or in the alternative to stay, Judge Terence C. Kern of the Northern District of Oklahoma transferred the case to this Court as the first-filed court, finding that this Court “is in the best position to determine where this second-filed action (1) legally must proceed, and/or (2) in the



interests of justice should proceed.” Cherokee Nation v. Nash, 724 F. Supp. 2d 1159, 1172 (N.D. Okla. 2010). Before the Court is “Motion of the Plaintiff, Cherokee Nation, To Dismiss Or Transfer Case Or In The Alternative To Dismiss Amended Counterclaim With Prejudice Pursuant to 12(b)(1) and (6)”) [Dkt. # 51]. Upon consideration of the motion, the opposition thereto, and the entire record of this case, the Court concludes that the motion should be granted to the extent that it requests transfer back to the Northern District of Oklahoma.1 Judge Kern transferred the case to this Court under the first to file rule2 because the related case of Vann v. Salazar, Civil Action 03-1711, was pending here. That case has since been dismissed. See Civil Action, 03-1711 [Dkt. ## 155, 156]. The Court finds that it would be inappropriate to retain a suit transferred under the first to file rule now that the first-filed case is no longer before the Court. Relatedly, in the absence of the first-filed case, the policies and considerations underlying the first-filed rule no longer obtain. As Judge Kern explained, the purpose of the first to file rule “is to avoid the waste of duplication, to avoid rulings which may trench upon the authority of sister courts, and to avoid piecemeal resolution of issues that call for a uniform result.” 724 F.

1

The Cherokee Nation moves to dismiss this action or transfer it back to the Northern District of Oklahoma on the grounds that although it waived its sovereign immunity by bringing suit in that district, “sovereign forum immunity” prevents the Nation from being a party in this Court. The Court does not reach the Nation’s sovereign forum immunity argument, but nevertheless determines that the case should proceed in the Northern District of Oklahoma. 2

The “first to file” rule is the “‘general rule that when two courts have concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case.’” Nash, 724 F. Supp. 2d at 1165 (quoting Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982)). 2



Supp. 2d at 1166 (quoting Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 603 (5th Cir. 1999)). The rule allows courts “to maximize judicial economy and minimize embarrassing inconsistencies by prophylactically refusing to hear a case raising issues that might substantially duplicate those raised by a case pending in another court.” Id. (quoting Cadle, 174 F.3d at 603). Now that this is the sole case, there is no risk of duplication, inconsistent rulings, or piecemeal resolution of the legal issues. In conclusion, in the absence of the first-filed case of Vann v. Salazar, the first to file rule and its underlying rationale no longer apply. At this juncture, there is no reason that this case should not be before the court in which it was filed. Accordingly, it is this 30th day of September 2011, ORDERED that the Cherokee Nation’s motion to transfer [Dkt. # 51] is GRANTED; and it is further ORDERED that the Cherokee Nation’s alternative motion to dismiss [Dkt. # 51] is DENIED AS MOOT; and it is further ORDERED that the Freedmen Defendants’ Motion to Consolidate Case with Vann v. Salazar [Dkt. # 68] is DENIED AS MOOT;3 and it is further ORDERED that the above-captioned case is transferred to the Northern District of Oklahoma. Henry H. Kennedy, Jr. United States District Judge 3

Also pending are the motion to intervene as defendants by the Cherokee Freedmen class representatives in consolidated tribal class action appeal, Nash et. al v. Cherokee Nation Registrar [Dkt. # 8] and the Federal Defendants’ motion to dismiss the Freedmen’s cross-claims [Dkt. # 58]. Because the suit will be transferred to the Northern District of Oklahoma, these motions should be addressed by that court. 3