Inter-Tribal Council of Az v. United States ( 2020 )

Case: 19-1758 Document: 29 Page: 1 Filed: 04/17/2020
United States Court of Appeals
for the Federal Circuit
______________________
INTER-TRIBAL COUNCIL OF ARIZONA, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-1758
______________________
Appeal from the United States Court of Federal Claims
in No. 1:15-cv-00342-NBF, Senior Judge Nancy B. Fire-
stone.
______________________
Decided: April 17, 2020
______________________
MELODY MCCOY, Native American Rights Fund, Boul-
der, CO, argued for plaintiff-appellant.
PHILLIP SELIGMAN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by JOSEPH H. HUNT, RUTH A. HARVEY, MICHAEL
JOHN QUINN; KENNETH A. DALTON, Office of the Solicitor,
Indian Trust Litigation Office, United States Department
of the Interior, Washington, DC.
______________________
Case: 19-1758 Document: 29 Page: 2 Filed: 04/17/2020
2 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES
Before O’MALLEY, MAYER, and WALLACH, Circuit Judges.
WALLACH, Circuit Judge.
Appellant Inter-Tribal Council of Arizona, Inc.
(“ITCA”) filed a lawsuit against the United States (“Gov-
ernment”) in the U.S. Court of Federal Claims, alleging
that the Government breached its fiduciary duties estab-
lished pursuant to the Arizona-Florida Land Exchange Act
(“AFLEA”), Pub. L. No. 100-696, 102 Stat. 4571, 4577–93
(1988). 1 The Government filed a motion to dismiss ITCA’s
complaint for lack of subject matter jurisdiction and for
failure to state a claim, pursuant to Rules 12(b)(1) and
12(b)(6) of the Rules of the U.S. Court of Federal Claims
(“RCFC”), respectively. The Court of Federal Claims
granted the Government’s motion in part, dismissing two
of the Complaint’s three claims. Specifically, the court
found that it lacked jurisdiction over a portion of Claim I,
and that Claim II and the remaining portion of Claim I
failed to state a claim upon which relief could be granted.
See Inter-Tribal Council of Ariz., Inc. v. United States, 140
Fed. Cl. 447, 460 (2018); see also J.A. 1 (Partial Final Judg-
ment), 2–8 (Order on Plaintiff’s Motion for Entry of Partial
Final Judgment). 2
1 ITCA “is a non-profit membership organization” of
Indian tribes located in Arizona, “provid[ing] a united voice
for tribal governments . . . with respect to issues of common
interest and concern.” J.A. 36; see J.A. 623 (“The goals of
[ITCA] include programs to benefit the member [t]ribes
and respective [t]ribal members and to improve the social
and economic life of all Indian [t]ribes and tribal members
in Arizona.”).
2 Although the Court of Federal Claims also dis-
missed “portions” of Claim III of the Complaint, Inter-
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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 3
ITCA appeals. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(3). We affirm-in-part and reverse-in-part.
BACKGROUND 3
I. Factual History
A. The Phoenix Indian School
From its inception in 1891, “an off-reservation federal
Indian elementary and secondary boarding school” (“Phoe-
nix Indian School”) was “operated by” the U.S. Department
of the Interior’s (“DOI”) Bureau of Indian Affairs, on land
owned by the Government in Phoenix, Arizona. J.A. 37–
38. The Phoenix Indian School “consisted of [thirty-four]
buildings on over [one-hundred] acres located in the heart
Tribal Council of Ariz., 140 Fed. Cl. at 460, that decision is
not before us on appeal, see generally Appellant’s Br. See
Appellee’s Br. 16 n.6 (“Claim III . . . is pending below and
is not part of the current appeal.”); see also Spectrum
Pharm., Inc. v. Sandoz Inc., 802 F.3d 1326, 1333 (Fed.
Cir. 2015) (explaining that “we will only address the issues
raised [on appeal]”).
3 Because “this case was dismissed on the pleadings,
for the purposes of this appeal, we must take the facts in
the [C]omplaint as true.” Prasco, LLC v. Medicis Pharm.
Corp., 537 F.3d 1329, 1334 (Fed. Cir. 2008). Moreover, for
purposes of its Motion to Dismiss, the Government did not
dispute the facts asserted by ITCA in the Complaint. See
Motion to Dismiss Second Amended Complaint at 3 n.1, In-
ter-Tribal Council of Ariz., Inc. v. United States, No. 1:15-
cv-00342-NBF (Fed. Cl. May 16, 2018), ECF No. 59 (“For
purposes of this brief only, the factual allegations of
the . . . [C]omplaint are assumed to be true.”). Thus, the
Complaint “sets forth the uncontested factual backdrop for
this appeal. We recite here the facts pertinent to the is-
sue[s] before us.” Fid. & Guar. Ins. Underwriters, Inc. v.
United States, 805 F.3d 1082, 1084 (Fed. Cir. 2015).
Case: 19-1758 Document: 29 Page: 4 Filed: 04/17/2020
4 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES
of central Phoenix.” J.A. 38. “While open to members of
tribes nationwide, the Phoenix Indian School primarily
served tribes located in Arizona.” J.A. 38. In 1987, as part
of a larger movement to close boarding schools for students
of Indian tribes, J.A. 38, the Government “determined that
the Phoenix Indian School was no longer required or
needed,” J.A. 40, and the school “was closed in 1990,”
J.A. 50; see AFLEA § 404(a) (requiring the U.S. Secretary
of the Interior (“Secretary”) to “close the Phoenix Indian . . .
School . . . no earlier than June 1, 1990, and no later than
September 1, 1990”); see also id. § 401(18) (“‘Secretary’
means the Secretary of the Interior.”).
B. The Arizona-Florida Land Exchange Agreement
“[S]ince at least 1984,” the Government and Barron
Collier Co. (“Collier”) “had been discussing . . . the possible
acquisition by the [Government]” of approximately 108,000
acres of wetlands owned by Collier in the Florida Ever-
glades. J.A. 38, 246. “Lacking the funds to make an out-
right purchase of Collier’s Florida lands,” the Government
“offered various surplus property that it held to Collier in
exchange for the Florida lands.” J.A. 38. “Collier ulti-
mately selected” the property on which the Phoenix Indian
School was located (“Phoenix Indian School Property”), af-
ter which the Government and Collier negotiated an ex-
change agreement that was executed in May 1988. J.A. 43.
“The Exchange Agreement provided . . . that approxi-
mately [seventy-two] acres of the Phoenix Indian School
Property would be conveyed to Collier[,]” in exchange for
Collier’s Florida lands. J.A. 43. “The Exchange Agreement
[also] provided that Collier would pay $34.9 million in cash
to the [Government] at closing,” representing the differ-
ence in estimated value between the lands exchanged.
J.A. 43–44. In November 1988, Congress enacted the
AFLEA, which ratified the Exchange Agreement. See
AFLEA § 402(b) (“The Exchange Agreement is ratified and
confirmed and sets forth the obligations, duties, and
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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 5
responsibilities of the parties to the Exchange Agree-
ment.”); see also J.A. 48.
1. The AFLEA
The AFLEA established two trust funds: an “Arizona
InterTribal Trust Fund” (“AITF”) “for the benefit of Ari-
zona Tribes that were members of . . . [ITCA] . . . and the
members of such tribes,” AFLEA §§ 401(2), 405(a)(1); and
a “Navajo Trust Fund” (“NTF”) “for the benefit of the Nav-
ajo Tribe and its members,” id. §§ 401(11), 405(a)(2). 4 The
AFLEA required that “Monetary Proceeds,” defined as “the
cash amount required to be paid . . . by Collier upon clos-
ing,” id. § 401(10), “be paid to the [Government] for deposit
in the [AITF] and the [NTF],” id. § 403(a), with 95 percent
“of the total amount” allocated to the AITF, and the re-
maining 5 percent allocated to the NTF, id. § 405(e). “Trust
Income” from the AITF and NTF was to be used only for
“supplemental educational and child-welfare programs, ac-
tivities, and services for the benefit of” members of ITCA
and the Navajo Nation, respectively, as well as “the design,
construction, improvement, or repair of related facilities[.]”
Id. § 405(d)(2)(A), (B); see id. § 401(21) (“‘Trust Income’ . . .
means the interest earned on amounts deposited into [the
AITF and NTF] and any amounts paid into each such trust
fund in the form of annual Trust Fund Payments.”); see
also id. § 401(19) (“‘Trust Fund Payment’ means the pay-
ment . . . of the Monetary Proceeds for deposit into . . . the
[AITF or NTF], in the form of a lump sum payment or an-
nual payments[.]”). Additionally, “[a]n amount equal to
5 percent of the Trust Income” from the AITF and NTF,
was to be “paid annually” to ITCA and the Navajo Nation,
respectively, “for education, child welfare, community
4 Because the parties use the term “Navajo Nation”
to refer to the “Navajo Tribe and its members” as set forth
in the AFLEA, see, e.g., Appellant’s Br. 3 n.1; Appellee’s
Br. 6 n.2, we do as well.
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6 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES
development, and general administrative purposes[.]” Id.
§ 405(d)(4)(A), (B).
The AFLEA permitted the Secretary to “elect to re-
ceive” the Monetary Proceeds “in the form of either a lump
sum payment or [thirty] annual payments[.]” Id. § 403(b).
Relevant here, if the Secretary “elect[ed] to receive” the
Monetary Proceeds “in the form of annual payments,” Col-
lier was required to make: (1) “[thirty] annual payments
equal to the interest due on . . . the Monetary Proceeds[,]”
id. § 403(c)(2)(A); and (2) “at the time of the last annual
payment, a [principal] payment equal to . . . the Monetary
Proceeds[,]” id. § 403(c)(2)(B). Further, if the Monetary
Proceeds were to be received pursuant to the annual pay-
ment method, the Government, through the Secretary of
the Treasury, was required to “hold in trust . . . security
provided in accordance with the Trust Fund Payment
Agreement.” Id. § 405(c)(2); see id. § 401(20) (“‘Trust Fund
Payment Agreement’ means an agreement providing for
payment by the Purchaser of annual Trust Fund Payments
for deposit into the [AITF] or the [NTF][.]”).
2. The Trust Fund Payment Agreement, Deed of Trust,
and Promissory Note
“In June 1991, Collier gave preliminary notice of [its]
intent to accept [the Government’s] offer on the Phoenix
Indian School [P]roperty, but also told [the Government]
that it would not proceed with the [Exchange Agreement]
unless it could use the annual payment method[.]” J.A. 51.
In September 1991, “over objections by” ITCA and the Nav-
ajo Nation, the Secretary “agreed to Collier’s demand for
the annual payment method.” J.A. 54 (internal quotation
marks omitted). In December 1991, Collier accepted the
Government’s offer. J.A. 55. Thereafter, Collier and the
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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 7
Government proceeded to negotiate the terms of the land
exchange. J.A. 55–61. 5
In December 1992, Collier and the DOI executed a
Trust Fund Payment Agreement (“TFPA”), J.A. 62; see
J.A. 341–468 (TFPA), as well as a deed of trust, J.A. 64; see
J.A. 529–99 (Deed of Trust). Consistent with the AFLEA,
the TFPA required Collier to provide the Government with
a promissory note “for [the] payment of $34.9 million ‘with
interest thereon.’” J.A. 62; see J.A. 349; see also J.A. 469–
81 (Promissory Note). Importantly, the TFPA provided
that the Deed of Trust and Promissory Note, which were
attached as “Exhibits” to the TFPA, “constitute[d]” parts of
the “TFPA” “as such term is used in the [AFLEA][.]”
J.A. 346.
The Promissory Note—executed by Collier in Decem-
ber 1992, J.A. 62—required Collier to: (1) make thirty an-
nual interest payments of $2,966,500 (“Trust Fund
Payments”), reflecting an interest rate of “[8.5] percent . . .
per annum” “on the Principal Amount,” J.A. 63, 171; see
5 In October 1992, ITCA filed suit in the U.S. District
Court for the District of Arizona (“Arizona District Court”),
seeking to enjoin the Government from proceeding with the
land exchange. J.A. 67–68; see J.A. 620–46 (ITCA’s Octo-
ber 1992 Complaint). Among other concerns, ITCA was
worried that the Government had “inadequately collateral-
ize[d]” Collier’s payment obligations. J.A. 68. The Arizona
District Court denied ITCA’s request for a preliminary in-
junction, J.A. 662; see J.A. 68, and in June 1993, granted
the Government’s and Collier’s motion to dismiss, J.A. 663;
see J.A. 69, finding, inter alia, “that the Secretary[’s] . . .
decision regarding the . . . adequacy of the collateral [was]
precluded from judicial review,” J.A. 662–63; see J.A. 68–
69. The U.S. Court of Appeals for the Ninth Circuit af-
firmed. See Inter Tribal Council of Ariz. v. Babbitt, 51 F.3d
199, 203 (9th Cir. 1995)); see also J.A. 69.
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8 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES
J.A. 470, 473 (“Principal Amount means $34.9 million.”
(emphasis omitted)); and (2) “pay . . . the Principal
Amount,” J.A. 62; see J.A. 470. Additionally, Collier was
required to make thirty annual payments into an annuity
(“Annuity”), “sufficient . . . to pay the [Government] a lump
sum of [$34.9 million]” “on the completion” of those thirty
payments. J.A. 62; see J.A. 351–53. According to the
TFPA, the Promissory Note was “secured by the Annuity”
and a “Trust Estate” as “defined in the Deed of Trust[.]”
J.A. 350; see J.A. 63. The Deed of Trust, in turn, provided
that the Trust Estate consisted of fifteen acres of the Phoe-
nix Indian School Property (“fifteen-acre Phoenix Indian
School Property”), as well as Collier’s development inter-
ests in about seven and one-half acres of land located in
downtown Phoenix (“Downtown Development Interests”),
which Collier acquired in an exchange with the City of
Phoenix. J.A. 535–37, 569–74; see J.A. 318 (“The obliga-
tions for payment will be secured by liens on Collier’s in-
terest in [fifteen] acres of the [Phoenix] Indian School
[P]roperty and on about [seven and one-half] acres of down-
town Phoenix land that Collier[] will receive as a result of
a land exchange with the City of Phoenix.”); see also
J.A. 64. 6
The Deed of Trust allowed Collier to request, and re-
quired the Government to release, portions of the Trust Es-
tate if the value of the property remaining in the Trust
Estate exceeded 130 percent of a defined “Release Level
6 Prior to execution of the TFPA, Collier agreed to
“exchange[] some of the . . . Phoenix Indian School [P]rop-
erty that it [was to] receive[] under the AFLEA with the
City of Phoenix” for the Downtown Development Interests.
J.A. 64; see J.A. 318.
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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 9
Amount.” J.A. 560–61; see J.A. 64. 7 The Deed of Trust also
included a “Maintenance of Collateral Value” provision,
which provided that if, after a partial security release, the
“fair value” of the remaining unreleased property falls be-
low 130 percent of the Release Level Amount, Collier “shall
add to the Trust Estate” U.S. Government-backed securi-
ties sufficient in value to “restore the fair value” of the un-
released property to 130 percent of the Release Level
Amount. J.A. 561; see J.A. 65. Finally, the TFPA, Promis-
sory Note, and Deed of Trust each “provide[d] that resort
for payment of the [Promissory] Note was to be solely
against the Annuity and the Trust Estate[.]” J.A. 66; see
J.A. 350 (“[R]esort for payment of the Promissory Note
shall be solely against the Annuity and the Trust Es-
tate[.]”), 471 (similar), 564 (similar).
C. Collier’s Performance and Default
In December 1997, Collier began making its required
Trust Fund Payments—95 percent of which the Govern-
ment “deposited . . . into the AITF”—as well as payments
toward the Annuity. J.A. 70. 8 In 1998, and again in 2007,
“Collier requested releases of [the] liens” on Collier’s
7 The Deed of Trust defined the “Release Level
Amount” as
(i) the unpaid principal plus accrued interest on the
Promissory Note, less (ii) the value of [U.S.] Gov-
ernment-backed Securities and Deposited Monies
held in the Trust Estate, and further less, after the
expiration of two years from the [c]losing [d]ate . . .
(iii) the fair value, at the time of the calculation, of
the Annuity.
J.A. 560.
8 Collier’s Trust Fund Payments and annuity pay-
ments were due December 18 of each year, beginning in
1997 and continuing through 2026. J.A. 508; see J.A. 175,
496, 507–08, 510.
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10 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES
Downtown Development Interests, “both of which the [Gov-
ernment] granted.” J.A. 71. After the lien release in 2007,
“only the [fifteen]-acre Phoenix Indian School [P]roperty
remained in the Trust Estate to secure [Collier’s] . . . obli-
gations.” J.A. 72. Although the Government “received ap-
praisals submitted by Collier” “[i]n connection with the two
lien releases,” the Government “did not perform or cause to
be performed its own appraisals of the security in the Trust
Estate either before or after releasing the liens.” J.A. 71.
At that time, the Government also “did not provide notice
to ITCA of its decisions to release the liens” on Collier’s
Downtown Development Interests, and “did not provide in-
formation to ITCA from which ITCA could independently
calculate the value of the existing or remaining security
that the [Government] held in the Trust Estate[.]” J.A. 72.
In December 2012, after making fifteen Trust Fund
Payments of $2,966,500, “for a total of $44,497,500[,]” and
fifteen annual payments into the Annuity for a total of
$9,662,000, J.A. 665; see J.A. 70, Collier met with the DOI
to discuss Collier’s remaining payment obligations and “to
see if [they] c[ould] find an alternative that would be bene-
ficial for all parties involved[,]” J.A. 665. Later that month,
Collier failed to make its required Trust Fund Payment to
the Government and also failed to make its annual annuity
payment. J.A. 74; see J.A. 175. In January 2013, Collier
informed the Government of its intent to “no longer make
payments,” J.A. 74; see J.A. 665 (Collier explaining that it
was “simply not in a position to continue to make payments
of such a significant magnitude”), explaining that the value
of the fifteen-acre Phoenix Indian School Property had de-
creased to a point “far below [Collier’s] remaining obliga-
tion[,]” “mak[ing] the economics of the deal untenable for
[Collier],” J.A. 665. Specifically, as of January 2013, “the
only offer [Collier] ha[d] received” for the property was for
$6 million, J.A. 665; see J.A. 74–75, whereas, Collier’s “re-
maining obligation consist[ed] of another $44,497,500 in
interest payments, and the remaining princip[al] [of]
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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 11
approximately $22 million, for a total of approximately
$66.5 million,” J.A. 665; see J.A. 76. Later that month, the
DOI sent a letter to Collier, in which the DOI “noted that
the value of the [remaining security] appeared to be less
than 130 percent of the Release Level Amount,” J.A. 74 (in-
ternal quotation marks omitted), and demanded that Col-
lier “add to the [T]rust [E]state” additional security,
J.A. 731; see J.A. 75. By March 2013, the DOI shared these
letters with ITCA, informing ITCA that Collier was in de-
fault and that Collier’s obligations were under collateral-
ized. J.A. 75. In April 2013, the DOI sent another letter to
Collier, in which the DOI “repeated its demand” that Col-
lier “supplement the value of the Trust Estate with [U.S.]
[G]overnment-backed securities.” J.A. 75.
D. The Government Sought to Require Collier to Provide
Additional Security
In January 2014, the Government filed suit against
Collier in the Arizona District Court, “s[eeking] to require
Collier to provide additional security to fulfill its contrac-
tual promises to the [Government].” J.A. 76 (internal quo-
tation marks omitted). 9 The Government alleged that
“[s]ince 2007, the value of the [fifteen]-acre [Phoenix] In-
dian School [P]roperty ha[d] dropped significantly, and
that reduction in value ha[d] left the debt owed by Collier
grossly under-collateralized.” J.A. 606; see J.A. 75. Specif-
ically, the Government alleged that “Collier [wa]s currently
below its required level for collateral by an amount equal
to $18,499,556,” and thus “Collier [wa]s required to make
additional pledges of collateral in the form of [U.S.]
9 The Government “sought to recover only four
$2.9 million [Trust Fund] [P]ayments, reflecting payments
missed for the years 2012, 2013, 2014[,] and 2015,” J.A. 76
(emphasis omitted), but “did not take into account the
$2.9 million annual [Trust Fund] [P]ayments due . . . each
year after 2015 and until 2026,” J.A. 77.
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12 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES
Government-backed securities in th[at] amount . . . to
achieve the minimum level of 130[ percent] of the Release
Level Amount anticipated as of December 31, 2015.”
J.A. 78. The Government and Collier “stipulated that the
value of the [fifteen-acre] Phoenix Indian School [P]roperty
(based on appraisals as of September 15, 2015) was
$25 million,” and that “[a]ccording to the [Government],
the value of the Annuity as of November 30, 2015[,] was
approximately $13.3 million.” J.A. 76. In August 2016, the
Arizona District Court “ordered [Collier] to render specific
performance . . . by providing to the [Government] . . .
[U.S.] [G]overnment-backed securities as added Trust Es-
tate collateral[,]” and further ordered that “[t]he fair mar-
ket value of the securities upon performance shall be the
sum of (a) $20,452,281.00 and (b) $10,565.00 multiplied by
the number of calendar days between July 22, 2016[,] and
the date of performance.” J.A. 784; see J.A. 79–80.
In September 2016, the Arizona District Court stayed
execution of its judgment, pending resolution of post-trial
motions, J.A. 973; and, in October 2016, the Arizona Dis-
trict Court stayed litigation, “except as to settlement re-
lated purposes[,]” based upon a “tentative” settlement
agreement between the parties, J.A. 974. In July 2017, the
Government and Collier “reached and executed” a settle-
ment agreement, J.A. 80, after which the Arizona District
Court “terminated [the case] in its entirety with preju-
dice[,]” J.A. 81. The Government “reported . . . that the . . .
settlement ha[d] a projected gross recovery of $54.5 million,
consisting of $16 million cash, $13.5 million in [the]
[A]nnuity, and [the fifteen-acre] Phoenix [Indian School
Property] with a 2015 appraised value of $25 million.”
J.A. 81. Pursuant to the settlement agreement, in
July 2017, Collier paid “$16 million in cash” to the Govern-
ment. J.A. 81. In 2018, the General Services Administra-
tion sold the fifteen-acre Phoenix Indian School Property
for $18.5 million. J.A. 85.
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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 13
II. Procedural History
In April 2015, ITCA filed a lawsuit against the Govern-
ment in the Court of Federal Claims, alleging that the Gov-
ernment breached its fiduciary duties established
pursuant to the AFLEA. J.A. 86–91. The Complaint con-
sisted of three claims. Relevant here, Claim I generally al-
leged “breaches of fiduciary obligations [on the part of the
Government] regarding the [AFLEA]’s Trust Fund Pay-
ments security requirements,” J.A. 86 (capitalization nor-
malized); see J.A. 86–89, and Claim II generally alleged
“breaches of fiduciary obligations [on the part of the Gov-
ernment] to collect, deposit[,] and make Trust Fund Pay-
ments required by the [AFLEA] for which earnings have
been lost,” J.A. 89 (capitalization normalized); see J.A. 89–
90. In May 2018, the Government filed its Motion to Dis-
miss the Complaint for lack of subject matter jurisdiction
and for failure to state a claim, pursuant to Rules 12(b)(1)
and 12(b)(6) of the RCFC, respectively. See Motion to Dis-
miss Second Amended Complaint, Inter-Tribal Council of
Ariz., Inc. v. United States, No. 1:15-cv-00342-NBF (Fed.
Cl. May 16, 2018), ECF No. 59. 10 In October 2018, the
Court of Federal Claims granted the Government’s motion
in part, dismissing Claim I for lack of subject matter juris-
diction and for failure to state a claim, and Claim II for
failure to state a claim. See Inter-Tribal Council of Ariz.,
140 Fed. Cl. at 460.
10 Rules 12(b)(1) and 12(b)(6) of the RCFC provide
that “a party may assert the following defenses by motion:
(1) lack of subject matter jurisdiction; . . . [and] (6) failure
to state a claim upon which relief can be granted[,]” respec-
tively.
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14 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES
DISCUSSION
I. Standard of Review and Legal Standard
“A plaintiff bears the burden of establishing subject-
matter jurisdiction by a preponderance of the evidence.”
M. Maropakis Carpentry, Inc. v. United States, 609 F.3d
1323, 1327 (Fed. Cir. 2010) (citation omitted). “We review
de novo a grant or denial of a motion to dismiss for lack of
jurisdiction.” Hopi Tribe v. United States, 782 F.3d 662,
666 (Fed. Cir. 2015). Likewise, “[w]e review the . . . grant
of a motion to dismiss for failure to state a claim de novo.”
Prairie Cty., Mont. v. United States, 782 F.3d 685, 688 (Fed.
Cir. 2015) (citation omitted) (italicization normalized). In
either case, “[w]e take all factual allegations in the com-
plaint as true and construe the facts in the light most fa-
vorable to the non-moving party.” Jones v. United States,
846 F.3d 1343, 1351 (Fed. Cir. 2017); see Pixton v. B & B
Plastics, Inc., 291 F.3d 1324, 1326 (Fed. Cir. 2002) (apply-
ing the same standard “[w]hen a party has moved to dis-
miss for lack of subject matter jurisdiction”). A complaint
should not be dismissed for failure to state a claim, “unless
the complaint fails to ‘state a claim to relief that is plausi-
ble on its face.’” K-Tech Telecomms., Inc. v. Time Warner
Cable, Inc., 714 F.3d 1277, 1282 (Fed. Cir. 2013) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“[T]he Supreme Court has established a two-part test
for determining jurisdiction under the Indian Tucker Act.”
Hopi Tribe, 782 F.3d at 667 (citing United States v. Navajo
Nation (Navajo Nation II), 556 U.S. 287, 290 (2009)); see 28
U.S.C. § 1505 (Indian Tucker Act) (providing, in relevant
part, that the Court of Federal Claims has jurisdiction over
claims against the Government by Indian tribes “whenever
such claim[s] . . . aris[e] under the . . . laws . . . of the
United States”). “First, the tribe ‘must identify a substan-
tive source of law that establishes specific fiduciary or
other duties, and allege that the Government has failed
faithfully to perform those duties.’” Navajo Nation II, 556
Case: 19-1758 Document: 29 Page: 15 Filed: 04/17/2020
INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 15
U.S. at 290 (quoting United States v. Navajo Nation (Nav-
ajo Nation I), 537 U.S. 488, 506 (2003)). “At th[is] first step,
a statute or regulation that recites a general trust relation-
ship between the [Government] and the Indian [tribes] is
not enough to establish any particular trust duty.” Hopi
Tribe, 782 F.3d at 667. “Indian [t]ribes, moreover, cannot
simply rely on common law duties imposed on a trustee;
instead, tribes must point to specific statutes [or] regula-
tions that ‘establish the fiduciary relationship and define
the contours of the [Government’s] fiduciary responsibili-
ties.’” Shoshone Indian Tribe of Wind River Reservation,
Wyo. v. United States, 672 F.3d 1021, 1039–40 (Fed.
Cir. 2012) (quoting United States v. Jicarilla Apache Na-
tion, 564 U.S. 162, 177 (2011)).
Second, “the [trial] court must . . . determine whether
the relevant source of substantive law can fairly be inter-
preted as mandating compensation for damages sustained
as a result of a breach of the duties the governing law im-
poses.” Navajo Nation II, 556 U.S. at 291 (internal quota-
tion marks, alterations, and citation omitted). “At th[is]
second step . . . , common-law trust principles come into
play.” Hopi Tribe, 782 F.3d at 668. Specifically, “principles
of trust law might be relevant ‘in drawing the inference
that Congress intended damages to remedy a breach.’”
Navajo Nation II, 556 U.S. at 291 (quoting United States v.
White Mountain Apache Tribe, 537 U.S. 465, 477 (2003)).
Indeed, the Supreme Court “ha[s] consistently recognized
that the existence of a trust relationship between the [Gov-
ernment] and an . . . Indian tribe includes as a fundamen-
tal incident the right of an injured beneficiary to sue the
trustee for damages resulting from a breach of the trust.”
United States v. Mitchell, 463 U.S. 206, 226 (1983); see id.
(“Given the existence of a trust relationship, it naturally
follows that the Government should be liable in damages
for the breach of its fiduciary duties.”).
Finally, “[t]he jurisdiction of the Court of Federal
Claims is limited by the six-year statute of limitations of
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16 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES
28 U.S.C. § 2501.” Rocky Mountain Helium, LLC v. United
States, 841 F.3d 1320, 1325 (Fed. Cir. 2016); see 28 U.S.C.
§ 2501 (“Every claim of which the . . . Court of Federal
Claims has jurisdiction shall be barred unless the petition
thereon is filed within six years after such claim first ac-
crues.”); see also Martinez v. United States, 333 F.3d 1295,
1316 (Fed. Cir. 2003) (“It is well established that statutes
of limitations for causes of action against the United
States, being conditions of the waiver of sovereign immun-
ity, are jurisdictional in nature.”). Relevant here, “[a]
cause of action for breach of trust traditionally accrues
when the trustee ‘repudiates’ the trust and the beneficiary
has knowledge of that repudiation.” Shoshone Indian
Tribe, 364 F.3d at 1348 (citation omitted). “A trustee may
repudiate the trust by express words or by taking actions
inconsistent with his responsibilities as trustee.” Id. (cita-
tion omitted). While “[t]he beneficiary . . . may bring [an]
action as soon as he learns that the trustee has failed to
fulfill his responsibilities,” “[i]t is often the case . . . that the
trustee can breach his fiduciary responsibilities of manag-
ing trust property without placing the beneficiary on notice
that a breach has occurred.” Id. “It is therefore common
for the statute of limitations to not commence to run
against the beneficiaries until a final accounting has oc-
curred that establishes the deficit of the trust.” Id. (cita-
tion omitted).
II. The Court of Federal Claims Improperly Dismissed a
Portion of Claim I of the Complaint
The Court of Federal Claims dismissed Claim I of the
Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the
RCFC. See Inter-Tribal Council of Ariz., 140 Fed. Cl.
at 455–57, 460. Specifically, as to Claim I’s allegation that
the Government “failed to ensure . . . adequate security for
the entire amount of the trust fund obligations . . . , when
it negotiated the TFPA in 1992[,]” id. at 455, the Court of
Federal Claims concluded that, “[b]ecause ITCA clearly
knew about the terms of the TFPA and the amount of
Case: 19-1758 Document: 29 Page: 17 Filed: 04/17/2020
INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 17
security that Collier was required to hold more than six
years before [ITCA] filed [its] lawsuit,” that portion of
Claim I “is barred by the six-year statute of limitations,”
id. at 457; see 28 U.S.C. § 2501. As to the remaining alle-
gations of Claim I, viz., that the Government failed to
maintain “sufficient” or “adequate” security in the Trust
Estate over time, id. at 455, the Court of Federal Claims
concluded that the Government was not “required . . . to do
anything more than it did in filing suit . . . to obtain the
additional security from Collier. . . . Therefore, ITCA has
not stated a claim for relief in [Claim] I[,]” Id. at 457.
ITCA contends that the Court of Federal Claims erred
on both grounds of dismissal. First, ITCA argues that the
Court of Federal Claims erred by “fail[ing] to interpret cor-
rectly the express and unambiguous terms and structure of
the [AFLEA],” as well as ignoring and misinterpreting “key
terms in the TFPA and related documents,” which “led the
[Court of Federal Claims] to conclude” that the Govern-
ment was “authorized . . . to hold less security than was
needed to secure all the Trust Fund Payments required by
the [AFLEA].” Appellant’s Br. 9. Second, the Court of Fed-
eral Claims also erred, ITCA argues, in concluding that
ITCA failed to file its lawsuit within the six-year statute of
limitations period following “the execution of the
TFPA . . . , despite the continuing nature of the security ob-
ligations imposed under the [AFLEA], and the fact that
ITCA had no means by which to know the dollar value of
the security[.]” Id. at 9–10.
As discussed below, we agree with ITCA, and find that
the Court of Federal Claims erred in dismissing the failure-
to-maintain-sufficient-security portion of Claim I at this
stage of the proceedings. As to the remainder of Claim I,
however, we agree with the Court of Federal Claims that
it should be dismissed.
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18 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES
A. The Government’s Alleged Failure to Maintain
Sufficient Security in the Trust Estate
Beginning with the first step of the Supreme Court’s
two-part jurisdictional test, we must initially consider
whether ITCA has identified a “‘substantive source of law’”
that establishes a specific fiduciary duty. Navajo Na-
tion II, 556 U.S. at 290 (quoting Navajo Nation I, 537 U.S.
at 506). Section 405(c)(2) of the AFLEA, which ITCA iden-
tified in the Complaint as imposing a fiduciary duty upon
the Government, see, e.g., J.A. 50, 64, provides that if, as
was the case, the Monetary Proceeds were to be received
“in the form of annual payments[,]” the Government “shall
hold in trust the security provided in accordance with the
[TFPA][.]” The TFPA, in turn, defines the security to be
held, as well as the security’s intended purpose. Specifi-
cally, the TFPA required Collier to pay both the Principal
Amount and “interest thereon[,]” J.A. 349, 470 (Promissory
Note) (“Collier . . . promises to pay . . . the Principal
Amount . . . with interest thereon[.]”), and the Government
was required to hold the Annuity and Trust Estate as se-
curity against those payment obligations, J.A. 350 (“The
parties acknowledge that the Promissory Note . . . is se-
cured by the Annuity, and the ‘Trust Estate[.]’”). 11 The
11 The parties dispute whether the security to be held
by the Government was intended to secure all thirty years
of required annual interest payments, i.e., Trust Fund Pay-
ments, or only accrued interest. ITCA contends, for exam-
ple, that “all of the unpaid annual payments” were to be
secured to “ensur[e] that all annual payments and the final
payment were fully secured throughout the [thirty]-year
period.” Appellant’s Br. 18. To support its position, ITCA
relies on the Government’s purported admission before the
Arizona District Court that the security was intended to
secure “any and all unpaid annual payments for the entire
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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 19
[thirty]-year period[,]” id. at 18 n.7, and on DOI statements
that “ma[k]e clear [that the DOI] understood the [Govern-
ment] had to secure both the $34.9 million final payment
at the end of the [thirty]-year period and the annual pay-
ments[,]” id. at 13 (citing J.A. 202 (a DOI attorney explain-
ing that “we’re not only securing the $35 million at the end
of the [thirty-]year period but we also want to secure pay-
ments of those annual interest payments”)); see J.A. 246
(the Assistant Secretary for Fish and Wildlife and Parks
explaining that the DOI and Collier “must execute” an
agreement “to secure [thirty] years of interest payments
and a final payment of $34.9 million for the Indian trust
funds”). The Government contends, however, that “such
individual opinions cannot, as a matter of law, create a
duty for the [Government][,]” Appellee’s Br. 26, and that
“ITCA falsely claims that the [Government] took a position
in its litigation with Collier that the Deed of Trust’s ac-
crued interest provision covers all [thirty] years of pay-
ments[,]” id. at 27 n.7. While we acknowledge that Collier,
as part of its payment obligations under the TFPA, under-
took to pay “thirty . . . consecutive annual interest pay-
ments[,]” J.A. 470; see also AFLEA § 403(c)(2)(A) (requiring
Collier to make “[thirty] annual payments equal to the in-
terest due on . . . the Monetary Proceeds”), we take no po-
sition on the issue of whether the security to be held by the
Government was intended to secure all thirty years of re-
quired annual interest payments, as this issue is not mate-
rial to our present determination, and also because the
Court of Federal Claims did not pass on this issue below,
see generally Inter-Tribal Council of Ariz., 140 Fed. Cl.
at 454–60. See Singleton v. Wulff, 428 U.S. 106, 120 (1976)
(“It is the general rule, of course, that a federal appellate
court does not consider an issue not passed upon below.”).
Although we expect this issue will ultimately need to be
resolved, for purposes of this appeal, it is enough that the
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20 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES
AFLEA confirms this purpose, and demonstrates Con-
gress’s expectation that the security was to be maintained
at a level sufficient to secure Collier’s payment obligations.
See, e.g., AFLEA § 402(h)(3)(D)(ii) (requiring “[a]ny [other]
person seeking to acquire” the Phoenix Indian School Prop-
erty to provide “evidence” of “collateral . . . adequate to se-
cure the payment obligations . . . under the [TFPA]”),
(5)(B)(iii) (requiring the Secretary to “exclude from consid-
eration any [other] offer . . . fail[ing] to identify collateral
that is adequate to secure the [payment] obligations under
the [TFPA]”). The Deed of Trust—which was expressly
made part of the TFPA, J.A. 346—makes this expectation
explicit by requiring the “fair value” of the Trust Estate to
be maintained at or above 130 percent of the Release Level
Amount, J.A. 561. Finally, the AFLEA provides that Col-
lier’s payments, and interest earned thereon, were to be
“used” exclusively “for the benefit of,” or paid directly to,
ITCA and the Navajo Nation. Id. § 405(d)(2), (4). Thus,
the AFLEA, in combination with the TFPA, “defines a fidu-
ciary relationship” by providing that the Government was
to “hold in trust” security, at a level adequate to secure Col-
lier’s payment obligations, for the benefit of ITCA and the
Navajo Nation. White Mountain Apache Tribe, 537 U.S.
at 474. 12
Government has acknowledged that Collier’s debt had be-
come “grossly under-collateralized.” J.A. 606.
12 The Assistant Secretary for Indian Affairs
acknowledged this fiduciary relationship when, in Septem-
ber 1991, he explained to the Secretary that one of the
“most important factors to be considered in analyzing [Col-
lier’s payment] options,” was the “degree of security pro-
vided [to] the [DOI] in fulfilling its trust responsibilities to
the beneficiaries of the trust,” J.A. 224, and again in
March 1992, when, in discussing a “collateral agreement to
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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 21
Moreover, the Deed of Trust invested the Government
with discretionary control over the level of security held in
trust, by, for example, granting the Government exclusive
authority to “release or reconvey” all or any portion of the
Trust Estate “at any time at [its] option[.]” J.A. 547; see
J.A. 547 (granting the Government authority to “take or
release any other or additional security”); see also White
Mountain Apache Tribe, 537 U.S. at 466 (explaining that
because “[t]he statute expressly defines a fiduciary rela-
tionship . . . , then proceeds to invest the [Government]
with discretionary authority” over “the trust corpus[,]” it
“permits a fair inference that the Government is subject to
duties as a trustee”); Hopi Tribe, 782 F.3d at 668 (“[B]y us-
ing trust language in conjunction with an authorization of
plenary control of the [property], Congress clearly accepted
a fiduciary duty to exercise that authority with the care
charged to a trustee at common law.”). While the Deed of
Trust also provided Collier with the “right to require” the
Government to release portions of the Trust Estate, Col-
lier’s right was expressly limited, J.A. 561, and the Govern-
ment otherwise maintained “full responsibility to manage
[the level of security held in trust] for the benefit of the In-
dians[,]” Mitchell, 463 U.S. at 224. Accordingly, ITCA iden-
tified a “substantive source of law”—AFLEA § 405(c)(2)—
secure the Indian’s interest” with Collier, the Assistant
Secretary explained that ITCA and the Navajo Nation,
“[a]s the beneficiaries of the[] proceeds, . . . ha[d] a major
concern regarding the security of th[e] anticipated flow of
income over the next thirty years[,]” and that while the Sec-
retary had tried to “accommodate Collier” in negotiating
acceptable collateral, the Secretary was required to “fully
meet[] . . . his trust responsibilities to the Indian tribes,”
including the “obligation to protect the Indian tribes’ finan-
cial interest[,]” J.A. 263.
Case: 19-1758 Document: 29 Page: 22 Filed: 04/17/2020
22 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES
in the Complaint that establishes a specific fiduciary duty.
Navajo Nation II, 556 U.S. at 290.
Next, as part of the first step of the Supreme Court’s
jurisdictional test, we must also consider whether ITCA al-
leged that the Government has “failed to faithfully per-
form” its fiduciary duty. Id. Claim I of the Complaint does
exactly this, alleging that the Government breached its fi-
duciary obligations by failing to maintain “sufficient secu-
rity in the Trust Estate[.]” J.A. 87; see J.A. 87–88. The
Government’s representations to the Arizona District
Court support this allegation, as the Government acknowl-
edged that the value of the Trust Estate fell below the Re-
lease Level Amount “sometime after” the Government
released liens on Collier’s Downtown Development Inter-
ests in 2007, J.A. 72, and that by January 2014, “the debt
owed by Collier [had become] grossly under-collateralized,”
J.A. 606; see J.A. 74–75. In fact, by as early as March 2012,
the value of the Trust Estate had decreased to a point “far
below” the value of Collier’s “remaining obligation[s].”
J.A. 665; see J.A. 74–75. While the Government has at-
tributed this to a “decline in [property] value[s]” caused by
the economic downturn of 2008, J.A. 72; see J.A. 75, it ap-
pears to be the result of much more. ITCA alleged, for ex-
ample, that the Government released the liens on Collier’s
Downtown Development Interests without “per-
form[ing] . . . its own appraisals of the security in the Trust
Estate[,]” or otherwise “determin[ing] whether sufficient
security would remain . . . in the Trust Estate to secure
[Collier’s] obligations.” J.A. 71; see J.A. 72. 13 ITCA further
13 The Government contends, and ITCA agrees, that
“under the [TFPA]” Collier had an “obligation . . . to moni-
tor the level of security” remaining in the Trust Estate.
Oral Arg. at 24:18–24:23, 30:53–31:05, http://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=2019-1758.mp3.
Case: 19-1758 Document: 29 Page: 23 Filed: 04/17/2020
INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 23
alleged that, despite Collier’s obligation to “restore the fair
value” of the Trust Estate to 130 percent of the Release
Level Amount, J.A. 561, the Government “did not demand
that Collier substitute security at any time up to and before
the lien releases . . . or even after the economic downturn,”
J.A. 73. Instead, the Government “only demanded that
Collier provide substitute security after Collier defaulted,”
J.A. 73, at which point Collier’s obligations had already be-
come substantially—if not “grossly,” J.A. 606—under col-
lateralized, and “economic[ally] . . . untenable,” J.A. 665.
Finally, ITCA alleged that the Government “did not pro-
vide notice to ITCA of its decisions to release the liens[,]”
and “did not provide information to ITCA from which ITCA
could independently calculate the value of the existing or
remaining security that the [Government] held in the
Trust Estate, either before or after releasing the liens.”
J.A. 72. In fact, it was not until March 2013, that the Gov-
ernment disclosed to ITCA that Collier had defaulted and
that Collier’s obligations were under collateralized.
J.A. 75; see Oral Arg. at 7:37–8:00.
If proven, ITCA’s allegations would demonstrate a
breach of the Government’s fiduciary duty to “hold in trust
the security” against Collier’s payment obligations, includ-
ing the duty to preserve the property held in trust, see
White Mountain Apache Tribe v. United States, 249 F.3d
Even assuming that such an obligation exists, a matter
about which the TFPA is silent, see generally J.A. 341–468,
any such obligation is separate and distinct from those im-
posed on the Government pursuant to the AFLEA, and
does not, and indeed cannot, relieve the Government of ob-
ligations arising from its statutory fiduciary duty, see Con-
nolly v. Pension Ben. Guar. Corp., 475 U.S. 211, 224 (1986)
(“If the . . . statute is otherwise within the powers of Con-
gress, . . . its application may not be defeated by private
contractual provisions.”).
Case: 19-1758 Document: 29 Page: 24 Filed: 04/17/2020
24 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES
1364, 1378 (Fed. Cir. 2001) (“Under the common law of
trusts, it is indisputable that a trustee has an affirmative
duty to act reasonably to preserve the trust property.”); see
also Restatement (Third) of Trusts § 77 (2007) (“The trus-
tee has a duty to administer the trust as a prudent person
would, in light of the purposes, terms, and other circum-
stances of the trust.”), as well as the duty to provide ITCA
with pertinent information, see In re United States, 590
F.3d 1305, 1312 (Fed. Cir. 2009) (“[T]he fiduciary has a
duty to disclose all information related to trust manage-
ment to the beneficiary.”); see also Restatement (Third) of
Trusts § 82 cmt. d (2007) (A trustee has an “affirmative”
duty to “inform . . . beneficiaries of important develop-
ments and information that appear reasonably necessary
for the beneficiaries to be aware of in order to protect their
interests.”). This is especially so, in light of the “most ex-
acting fiduciary standards” by which the Government is to
conduct itself “in its relationship with . . . Indian benefi-
ciaries.” Shoshone Indian Tribe, 364 F.3d at 1348 (internal
quotation marks and citation omitted).
Two particular allegations make the Government’s
purported conduct in this case particularly troubling.
First, after the lien release in 2007, only real property, viz.,
the fifteen-acre Phoenix Indian School Property, remained
in the Trust Estate, J.A. 72, a practice which the Govern-
ment, in September 1991, cautioned against, J.A. 203–204
(DOI officials advising against “real estate as part of the
security” because “[n]obody knows what [real] property is
going to be worth [ten]–[fifteen] years from now. It[’]s
tough to get rid of [real] property in a bad market” and
“even in a good market [it] isn’t all that liquid”), 211 (a DOI
attorney explaining that “[b]ased upon my experience . . . ,
I become concerned about a portfolio that proposes exclu-
sively in real estate”). Indeed, as the Assistant Secretary
for Indian Affairs explained to the Secretary that same
month, “because of the uncertain value of the [Phoenix In-
dian School] [P]roperty . . . , securing the full amount of the
Case: 19-1758 Document: 29 Page: 25 Filed: 04/17/2020
INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 25
Indian trust funds with the property would not be adequate
in meeting our trust responsibilities.” J.A. 226. Second,
“Collier’s debt was ‘nonrecourse,’” J.A. 66, such that when
Collier defaulted, the Government was required to “solely
resort to, and proceed in rem against” the security held by
the Government, J.A. 471; see J.A. 350 (similar), 564 (sim-
ilar). Accordingly, ITCA alleged that the Government has
“failed to faithfully perform” its fiduciary duty. Navajo Na-
tion II, 556 U.S. at 290.
Turning to the second step of the Supreme Court’s ju-
risdictional test, we must determine whether the AFLEA
“can be fairly interpreted as mandating compensation for
the [G]overnment’s fiduciary wrongs[.]” Id. at 292 (inter-
nal quotation marks and citation omitted). Here, because
the AFLEA “clearly establish[es] fiduciary obligations of
the Government in the management” of the security to be
held in trust, “[it] can fairly be interpreted as mandating
compensation by the . . . Government for damages sus-
tained” by ITCA. Mitchell, 463 U.S. at 226. Moreover, if
ITCA is precluded from recovery for the Government’s
breach of its fiduciary duty, the Government’s failure to
timely provide information to ITCA has rendered “prospec-
tive equitable remedies . . . totally inadequate.” Id. at 227;
see id. (“In addition, by the time government mismanage-
ment becomes apparent, the damage to Indian resources
may be so severe that a prospective remedy may be next to
worthless.”); see also id. (“A trusteeship would mean little
if the beneficiaries were required to supervise the day-to-
day management of their estate by their trustee or else be
precluded from recovery for mismanagement.”). Accord-
ingly, the AFLEA “can be fairly interpreted as mandating
compensation for the [G]overnment’s fiduciary wrongs[.]”
Navajo Nation II, 556 U.S. at 292.
Finally, because the Government failed to disclose to
ITCA that Collier had defaulted and that Collier’s obliga-
tions were under collateralized until March 2013, J.A. 75;
see Oral Arg. at 7:37–8:00, the statute of limitations did not
Case: 19-1758 Document: 29 Page: 26 Filed: 04/17/2020
26 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES
commence to run against ITCA before that time, see Sho-
shone Indian Tribe, 364 F.3d at 1348. 14 Thus, Claim I,
originally filed in April 2015, J.A. 86, was brought well
within the six-year statute of limitations on claims brought
against the Government in the Court of Federal Claims, see
28 U.S.C. § 2501. Indeed, the Court of Federal Claims
agreed that “this portion of Claim I is not time barred.” In-
ter-Tribal Council of Ariz., 140 Fed. Cl. at 457; see id. (“As
to th[at] portion of Claim I, that is ITCA’s claim that the
[G]overnment breached its trust obligation by failing to en-
sure that Collier maintained sufficient collateral as re-
quired by the Deed of Trust when the collateral amount fell
below 130[ percent] of the Release Level Amount when it
released liens in 1998 and 2007 as well as when Collier de-
faulted in 2013, the [C]ourt [of Federal Claims] finds this
portion of Claim I is not time barred[.]”). Accordingly, the
portion of Claim I that arises from the Government’s al-
leged breach of its fiduciary duty to “hold in trust the secu-
rity” against Collier’s payment obligations, see, e.g.,
J.A. 87–88, states a claim over which the Court of Federal
Claims has jurisdiction, and upon which relief can be
granted. We therefore find that the Court of Federal
Claims erred in dismissing the failure-to-maintain-suffi-
cient-security portion of Claim I of the Complaint.
14 It is unclear from the record whether the letters
provided to ITCA in March 2013, were sufficient to permit
ITCA to “establish[] the deficit of the trust.” See Shoshone
Indian Tribe, 364 F.3d at 1348. Thus, ITCA’s claim for
breach of the Government’s fiduciary duty may have ac-
crued at an even later date. Either way, ITCA filed the
Complaint well within the statutory limitations period.
J.A. 86.
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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 27
B. The Government’s Alleged Failure to Ensure Adequate
Security When it Negotiated the TFPA
ITCA did not cite, and we have not found, support in
the AFLEA, case law, or otherwise, for the proposition that
the Government’s fiduciary duty to “hold in trust” the se-
curity against Collier’s payment obligations, imposes a con-
current duty on the Government to “negotiate terms in the
TFPA and related documents to ensure adequate security”
as ITCA alleged. J.A. 87. See generally Appellant’s Br. Re-
gardless, the TFPA was executed, and ITCA was made
aware of the TFPA’s terms, well before the six-year statute
of limitations on claims brought against the Government
in the Court of Federal Claims. J.A. 62, 67–68; see 28
U.S.C. § 2501; see also Hopeland Band of Pomo Indians v.
United States, 855 F.2d 1573, 1576 (Fed. Cir. 1988) (ex-
plaining that § 2501 applies to “Indian tribes in the same
manner as against any other litigant seeking legal redress
or relief from the [G]overnment”). Accordingly, to the ex-
tent Claim I arises from the Government’s alleged failure
to ensure adequate security when it negotiated the TFPA,
the Court of Federal Claims properly dismissed Claim I of
the Complaint.
III. The Court of Federal Claims Properly Dismissed
Claim II of the Complaint
The Court of Federal Claims dismissed Claim II of the
Complaint pursuant to Rule 12(b)(6) of the RCFC. See In-
ter-Tribal Council of Ariz., 140 Fed. Cl. at 457–58, 460.
Specifically, the Court of Federal Claims found that the
AFLEA “does not impose any obligation on the [G]overn-
ment to make payments if Collier fails to make pay-
ments. . . . Therefore, [Claim II] must be dismissed for
failure to state a claim upon which relief can be granted.”
Id. at 458 (internal quotation marks, alterations, and cita-
tion omitted). ITCA contends, however, that the Court of
Federal Claims “ignored the [AFLEA]’s mandates and
erred under applicable case law . . . when it dismissed
Case: 19-1758 Document: 29 Page: 28 Filed: 04/17/2020
28 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES
ITCA’s claim for damages based upon the [Government’s]
failure under the [AFLEA] to collect and pay all of the
[AFLEA]’s required remaining annual payments and the
full final payment after Collier’s default.” Appellant’s
Br. 10. We disagree with ITCA.
Claim II fails to state a claim upon which relief can be
granted. Relevant to Claim II, ITCA contends that the
AFLEA “required the [Government] to collect from Collier
all Trust Fund Payments required under the [AFLEA], and
that the [Government’s] failure to collect all of the pay-
ments is a breach of trust for which the [Government] is
liable.” Appellant’s Br. 26 (emphasis omitted). Specifi-
cally, ITCA alleged in the Complaint, that the Government
“has not collected [or made] . . . any Trust Fund Pay-
ments—annual or final—from Collier since 2011.” J.A. 74;
see J.A. 89. However, ITCA did not cite, and we have not
found, support in the AFLEA, case law, or otherwise, for
the imposition of a duty consistent with this allegation. In-
stead, those portions of the AFLEA cited by ITCA for sup-
port, requiring, for example, that “[t]he Monetary Proceeds
shall be paid to the [Government],” AFLEA § 403(a), im-
pose, at most, a duty upon Collier, not the Government. In
fact, § 403(c)(2) explicitly provides that the “Purchaser,” de-
fined as “Collier,” id. § 401(16), “shall make” the requisite
payments under the annual payment method. 15 Moreover,
ITCA’s reliance on Shoshone Indian Tribe to argue that de-
spite “the lack of express collection duties,” “provisions
mandating payments from third parties imply the
[G]overnment’s collection duties,” Appellant’s Br. 28, is
misplaced. Shoshone Indian Tribe concerned regulations
15 During oral argument, ITCA acknowledged the
lack of any explicit duty of the Government to collect Col-
lier’s Trust Fund Payments in the AFLEA, arguing in-
stead, that any such duty “would be . . . implicit.” Oral Arg.
at 2:58–3:14.
Case: 19-1758 Document: 29 Page: 29 Filed: 04/17/2020
INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 29
that required the “Government [to] collect[] . . . all pay-
ments[.]” 364 F.3d at 1350. No such requirement or obli-
gation is present in this case. Accordingly, because
Claim II fails to state a claim upon which relief can be
granted, the Court of Federal Claims properly dismissed
Claim II of the Complaint.
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. Accordingly, the Partial Fi-
nal Judgment of the U.S. Court of Federal Claims is
AFFIRMED-IN-PART AND REVERSED-IN-PART