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Evans v. Bureau of Indian Affairs

United States District Court, D. Kansas

December 11, 2018

DELARICK EVANS, Plaintiff,
v.
BUREAU OF INDIAN AFFAIRS, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE.

         This case comes before the court on Defendant Bureau of Indian Affairs' motion to dismiss for lack of subject matter jurisdiction. (Doc. 12.) Plaintiff has not filed a response and the time for doing so has now passed. For the reasons stated herein, Defendant's motion is GRANTED.

         I. Facts and Procedural History

         Plaintiff Delarick Evans is the grandson of Helen Elenore Williams (“Williams”). Williams died testate on August 6, 2011. Williams was an Athabaskan Indian and owned interests in real property that is under the jurisdiction of the Secretary of the Interior. The Office of Hearing and Appeals (OHA), under the Department of the Interior, opened a probate matter to determine the validity of Williams' will and settle her estate. (Doc. 13, Exh. A at USA-00009.)[1]

         The OHA provided notice of the initial hearing to various interested parties. The record indicates that Evans was provided notice on November 9, 2017. (Ex. A, USA-00165-167.) On November 17, Evans filed a notice in the probate action, stating that he was an interested party and that he was a direct descendant of Williams. Plaintiff also gave notice of his correct address. (Ex. A, USA-00147-149.)

         The probate hearing was held on December 12, 2017. Plaintiff appeared by telephone. (Ex. A, USA-00163.) On March 9, 2018, U.S. Indian Probate Judge Stancampiano issued a decision. As a result of the decision, Plaintiff did not receive a distribution from Williams' property. (Ex. A, USA-00009-15.) A Notice regarding the decision was mailed to Plaintiff at his address of record. (Ex. A, USA-00006-7.) The Notice advised Evans that a decision was entered and that it would become final in thirty days unless a written petition for rehearing was filed with the OHA. The Notice also attached the decision by the probate judge. The decision also stated that it was a final decision unless a petition for rehearing was filed in accordance with 43 C.F.R. § 30.238.

         The administrative record indicates that Plaintiff did not file a petition for rehearing. Plaintiff also did not file an appeal to the Interior Board of Indian Appeals (IBIA). On July 13, 2018, Plaintiff filed this action against the Bureau of Indian Affairs (BIA). (Doc. 1.) Plaintiff states that he seeks “an order of relief that all probate matters of said native be decided weighing native blood.” (Doc. 1 at 4.) Plaintiff alleges that this court has jurisdiction over this action based on 28 U.S.C. § 1343 and 43 U.S.C. § 1602(b). Plaintiff also indicates that these claims have been presented to the BIA. (Doc. 1 at 5.)

         The BIA now moves to dismiss on the basis that the United States has not waived its sovereign immunity and therefore this court lacks subject matter jurisdiction over this action.

         II. Motion to Dismiss Standards

         Because federal courts are courts of limited jurisdiction, a presumption exists against jurisdiction, and “the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “Motions to dismiss for lack of subject matter jurisdiction generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” City of Albuquerque v. U.S. Dep't of Interior, 379 F.3d 901, 906 (10th Cir. 2004) (internal citations omitted). In this case, the BIA presents both a facial and factual attack on Plaintiff's complaint.

         Plaintiff has failed to respond to the motion. Under Local Rule 7.4, the court will ordinarily consider the motion as uncontested and it will be granted. Additionally, as the motion challenges this court's jurisdiction and the burden to establish jurisdiction falls on Plaintiff, the motion can be granted on the basis that Plaintiff failed to meet his burden. The court further finds that the motion to dismiss can be granted on the merits for the reasons stated herein.

         III. Analysis

         The BIA moves for dismissal on the basis that the United States has not waived its sovereign immunity in this matter. “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Any waiver of “sovereign immunity must be unequivocally expressed in statutory text.” Lane v. Pena, 518 U.S. 187, 192 (1996). The Administrative Procedures Act (“APA”) contains a limited waiver and permits a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute” to seek judicial review. 5 U.S.C. § 702.

         A. Challenge ...


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