United States Court of Appeals for the Federal Circuit ______________________

TONY LAMONTE GREENE, BILLIE WAYNE BYRD, Plaintiffs-Appellants

ANTHONY MICHAEL JACKSON, WILLIAM GEORGE COODEY, II, GARRY WAYNE WILSON, LARRY DOAK, ROBERT LEE SMALLEN, CHAVIS LENARD DAY, DANIEL CODY WATKINS, Plaintiffs

v.

UNITED STATES, Defendant-Appellee ______________________

2023-1898, 2023-1954 ______________________

Appeals from the United States Court of Federal Claims in Nos. 1:22-cv-01064-KCD, 1:22-cv-01185-KCD, Judge Kathryn C. Davis. ______________________

Decided: April 29, 2024 ______________________

TONY LAMONTE GREENE, Helena, OK, pro se.

BILLIE WAYNE BYRD, Helena, OK, pro se.

RAFIQUE OMAR ANDERSON, Commercial Litigation Branch, Civil Division, United States Department of Case: 23-1898 Document: 28 Page: 2 Filed: 04/29/2024

2 GREENE v. US

Justice, Washington, DC, for defendant-appellee. Also rep- resented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, FRANKLIN E. WHITE, JR. ______________________

Before DYK, BRYSON, and STOLL, Circuit Judges. BRYSON, Circuit Judge. The appellants, Tony Lamonte Greene and Billie Wayne Byrd, are incarcerated in a state prison in Okla- homa. They and their seven co-plaintiffs filed actions in the Court of Federal Claims (“the Claims Court”) contend- ing that their imprisonment is unlawful and seeking relief in the form of monetary compensation from the United States. The Claims Court dismissed the plaintiffs’ actions for lack of jurisdiction, and the two appellants brought this appeal. We affirm. I The plaintiffs allege that they are members of the Cherokee Nation and that under certain treaties between the Cherokee Nation and the United States, the State of Oklahoma lacked jurisdiction to prosecute and incarcerate them. As a remedy, they each seek $100 per day for unau- thorized detention and more than $1,000,000 in compensa- tory and punitive damages. The appellants base their lawsuits on the Supreme Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). In McGirt, the Court held that Oklahoma state courts lack jurisdiction over Indians who commit crimes in areas designated as “Indian Country.” For that reason, the appellants contend, their convictions are invalid. They each assert that the federal government is liable for the in- juries they have suffered and should be required to com- pensate them through monetary awards. As the basis for their theory that the federal govern- ment is liable for their unlawful incarcerations, the Case: 23-1898 Document: 28 Page: 3 Filed: 04/29/2024

GREENE v. US 3

appellants’ complaints relied on certain provisions of two nineteenth century treaties between the United States and the Cherokee Nation: article 5 of the Treaty with the Cher- okees, 7 Stat. 478, 481 (Dec. 29, 1835), and articles 26 and 27 of the Treaty with the Cherokee Indians, 14 Stat. 799, 806 (July 19, 1866). Article 5 of the 1835 treaty provides that the Cherokee Nation shall have the right to enact laws for the protection of its people. 7 Stat. at 481. Articles 26 and 27 of the 1866 treaty provide that the United States shall remove citizens who unlawfully settle on Cherokee land. 14 Stat. at 806. In their response to the government’s motion to dismiss in the Claims Court, the appellants added references to ar- ticle 3 of the 1835 treaty and article 13 of the 1866 treaty. Article 3 of the 1835 treaty secures, for the United States, the right to use Cherokee natural resources so long as in- dividuals are compens