Shinnecock Indian Nation v. United States ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
SHINNECOCK INDIAN NATION,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-5015
______________________
Appeal from the United States Court of Federal
Claims in No. 1:12-cv-00836-ECH, Chief Judge Emily C.
Hewitt.
______________________
Decided: April 7, 2015
______________________
STEVEN J. BLOXHAM, Fredericks Peebles & Morgan
LLP, Sacramento, CA, argued for plaintiff-appellant. Also
represented by TIM HENNESSY, JOHN M. PEEBLES, DARCIE
LYNN HOUCK.
JENNIFER SCHELLER NEUMANN, Environment and
Natural Resources Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee.
Also represented by SAM HIRSCH.
______________________
Before DYK, MAYER, and CLEVENGER, Circuit Judges.
2 SHINNECOCK INDIAN NATION v. US
MAYER, Circuit Judge.
The Shinnecock Indian Nation (the “Nation”) appeals
a final judgment of the United States Court of Federal
Claims dismissing its suit for lack of jurisdiction. See
Shinnecock Indian Nation v. United States, 112 Fed. Cl.
369 (2013) (“Court of Federal Claims Decision”). We
affirm in part, vacate in part, and remand.
BACKGROUND
In June 2005, the Nation filed suit in the United
States District Court for the Eastern District of New York
“seek[ing] to vindicate its rights to certain lands located
in the Town of Southampton in Suffolk County, New
York.” Shinnecock Indian Nation v. New York, No. 05-
CV-2887, 2006 WL 3501099, at *1 (E.D.N.Y. Nov. 28,
2006) (“Land Reclamation Suit”). The Nation asserted
that in 1859 the State of New York enacted legislation
allowing thousands of acres of the Nation’s land to be
wrongfully conveyed to the government of the Town of
Southampton. Id. at *2. The Nation sought “broad re-
lief,” including damages and possessory rights in the
disputed lands. Id. at *1.
In November 2006, the district court dismissed the
Nation’s suit. Id. at *6. Relying on City of Sherrill v.
Oneida Indian Nation, 544 U.S. 197, 217–21 (2005), and
Cayuga Indian Nation v. Pataki, 413 F.3d 266, 273–78 (2d
Cir. 2005), the court held that laches barred the Nation’s
claims. See Land Reclamation Suit, 2006 WL 3501099, at
*3–5. Although the court acknowledged that the “wrongs”
alleged by the Nation were “grave,” it emphasized that
the Nation had not occupied the disputed lands since
1859. Id. at *6. In the court’s view, the “disruptive
nature” of the Nation’s land claims was sufficient to “tip[]
the equity scale in favor of dismissal.” Id. The Nation
then appealed to the United States Court of Appeals for
the Second Circuit (“Second Circuit”). That appeal re-
mains pending.
SHINNECOCK INDIAN NATION v. US 3
On December 5, 2012, the Nation filed an action in
the Court of Federal Claims, seeking $1,105,000,000 in
money damages, as well as costs, attorney’s fees, and
“[s]uch other and further relief” as the court “deem[ed]
just and proper.” Court of Federal Claims Decision, 112
Fed. Cl. at 375. The Nation alleged that the United
States, “acting through the federal court system . . .
denied any and all judicial means of effective redress for
the unlawful taking of lands from [the Nation] and its
members.” Id. at 372 (citations and internal quotation
marks omitted). In its complaint, the Nation asserted
that in failing to provide it with a remedy for the misap-
propriation of its tribal lands, the United States violated
trust obligations arising under both the Non-Intercourse
Act, 25 U.S.C. § 177, and the “federal common law (in-
formed by international law norms).” 112 Fed. Cl. at 378.
The government moved to dismiss for lack of jurisdic-
tion, arguing both that the Nation’s claims were not ripe
for review and that they fell outside the waiver of sover-
eign immunity provided by the Indian Tucker Act. 1 Id.
The Nation thereafter sought to amend its complaint to
add a “judicial takings” claim alleging that the district
court’s decision to dismiss its Land Reclamation Suit was
a compensable taking of a vested property right. Id.
The Court of Federal Claims dismissed the Nation’s
complaint on two alternative grounds. First, the court
held that the Nation’s claims were not ripe for adjudica-
tion because they were predicated upon the district court’s
judgment in the Land Reclamation Suit and that judg-
ment was on appeal. Id. at 378–79. Second, the court
1 The Indian Tucker Act provides a waiver of sover-
eign immunity for Indian tribal claims that “otherwise
would be cognizable in the Court of Federal Claims if the
claimant were not an Indian tribe, band or group.” 28
U.S.C. § 1505.
4 SHINNECOCK INDIAN NATION v. US
held that even if the Nation’s claims were ripe for review,
it had no jurisdiction to consider them because they did
not fall within the Indian Tucker Act’s waiver of sovereign
immunity. Id. at 380–82. The court refused, moreover, to
allow the Nation to amend its complaint to add a judicial
takings claim, concluding that such an amendment would
be “futile.” Id. at 387. According to the court, because the
Nation had not yet “secured a final unreviewable judg-
ment in its favor on its [Non-Intercourse] Act claim,” its
interest in that claim had not vested and was therefore
“not protected by the Takings Clause.” Id. at 384–85.
The court further noted that the Nation had been unable
to cite to any “case in which a property owner prevailed on
a judicial takings claim . . . .” Id. at 386.
The Nation then filed a timely appeal with this court.
We have jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
A. Standard of Review
We review de novo a determination that a claim is not
ripe for adjudication. Morris v. United States, 392 F.3d
1372, 1375 (Fed. Cir. 2004); see also Howard W. Heck &
Assoc., Inc. v. United States, 134 F.3d 1468, 1471 (Fed.
Cir. 1998). Subject matter jurisdiction is a question of
law, which we likewise review de novo. Rick’s Mushroom
Serv., Inc. v. United States, 521 F.3d 1338, 1342 (Fed. Cir.
2008); Emery Worldwide Airlines, Inc. v. United States,
264 F.3d 1071, 1078 (Fed. Cir. 2001). We review the
denial of a motion to amend a complaint for abuse of
discretion. Tamerlane, Ltd. v. United States, 550 F.3d
1135, 1147 (Fed. Cir. 2008).
B. Ripeness
Ripeness is a justiciability doctrine that “prevent[s]
the courts, through avoidance of premature adjudication,
from entangling themselves in abstract disagreements
. . . .” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967),
SHINNECOCK INDIAN NATION v. US 5
abrogated on other grounds by Califano v. Sanders, 430
U.S. 99 (1977). Determining whether a dispute is ripe for
review requires evaluation of: (1) the “fitness” of the
disputed issues for judicial resolution; and (2) “the hard-
ship to the parties of withholding court consideration.”
Id. at 149; see Sys. Application & Techs., Inc. v. United
States, 691 F.3d 1374, 1383–84 (Fed. Cir. 2012).
As the Court of Federal Claims correctly determined,
the Nation’s breach of trust claims are not ripe for adjudi-
cation. See 112 Fed. Cl. at 378–79. The Nation asserts
that the United States breached trust obligations, arising
under both the Non-Intercourse Act 2 and the federal
common law, 3 to protect the Nation’s lands and to provide
it with effective redress for the misappropriation of those
lands by the State of New York. 4 The Nation’s breach of
trust claims, however, rest on the district court’s judg-
ment dismissing its land claims against the State of New
York and an appeal of that judgment is pending before
2 In relevant part, the Non-Intercourse Act pro-
vides: “No purchase, grant, lease, or other conveyance of
lands, or of any title or claim thereto, from any Indian
nation or tribe of Indians, shall be of any validity in law
or equity, unless the same be made by treaty or conven-
tion entered into pursuant to the Constitution.” 25 U.S.C.
§ 177.
3 The Nation asserts that the “federal common law,
which has always recognized Indian tribal rights and
which incorporates customary international human rights
law” guarantees the “right to redress for the unlawful
taking and forced dispossession of the Nation and its
members from their lands.”
4 The defendants in the Land Reclamation Suit in-
clude the State of New York, the County of Suffolk, New
York, and the Town of Southampton, New York. See
Land Reclamation Suit, 2006 WL 3501099, at *2.
6 SHINNECOCK INDIAN NATION v. US
the Second Circuit. Until the Second Circuit—and possi-
bly the Supreme Court—have had an opportunity to
review, and possibly reverse or revise, the district court’s
judgment, it would be premature to determine whether
the United States breached any trust obligation to provide
the Nation with effective redress for the loss of its lands.
See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S.
568, 580–81 (1985) (emphasizing that a claim is not ripe
for adjudication if it rests upon “contingent future events
that may not occur as anticipated, or indeed may not
occur at all” (citations and internal quotation marks
omitted)); Rothe Dev. Corp. v. Dep’t of Def., 413 F.3d 1327,
1335 (Fed. Cir. 2005) (explaining that “a case is not ripe if
further factual development is required” (citations and
internal quotation marks omitted)).
On appeal, the Nation argues that it will be irrepara-
bly harmed if adjudication of its breach of trust claims is
postponed. It contends that if its claims are not heard
now, it “will forever be barred” from asserting those
claims by the six-year statute of limitations applicable to
suits filed in the Court of Federal Claims. We disagree.
“A claim under the Tucker Act . . . first accrues only when
all the events which fix the government’s alleged liability
have occurred . . . .” Casitas Mun. Water Dist. v. United
States, 708 F.3d 1340, 1359 (Fed. Cir. 2013) (citations and
internal quotation marks omitted). As the government
acknowledges, “[b]ecause the Nation alleges that the
United States harmed it through the federal court system,
the Nation’s claims (if any) will not accrue and the six
year statute of limitations prescribed by 28 U.S.C. § 2501will not begin to run until the federal court system, not
merely the district court, has arrived at a final decision
regarding the Nation’s claims against the State of New
York.”
The Nation further contends that its breach of trust
claims are now ripe for adjudication because “the poten-
tial for the Second Circuit to reverse the dismissal of the
SHINNECOCK INDIAN NATION v. US 7
Nation’s [Non-Intercourse Act] land claim is more illusory
than real.” In support, the Nation notes that the Second
Circuit has “thrice affirmed” the applicability of the
laches doctrine to bar Indian land claims. See Onondaga
Nation v. New York, 500 F. App’x 87, 89 (2d Cir. 2012);
Oneida Indian Nation v. Cnty. of Oneida, 617 F.3d 114,
135–37 (2d Cir. 2010); Cayuga, 413 F.3d at 274–77; see
also Stockbridge-Munsee Cmty. v. New York, 756 F.3d
163, 165 (2d Cir. 2014) (“[I]t is now well-established that
Indian land claims asserted generations after an alleged
dispossession are inherently disruptive of state and local
governance and the settled expectations of current land-
owners, and are subject to dismissal on the basis of lach-
es, acquiescence, and impossibility.”). Until the Nation
completes the appellate process, however, there is no way
of knowing whether its claims are distinguishable from
those at issue in earlier cases. It is possible, moreover,
that the Second Circuit will elect to reconsider its laches
jurisprudence en banc. Likewise, the Supreme Court
could grant certiorari and reverse or modify the Second
Circuit’s approach to the laches bar, particularly if, as the
Nation asserts, that approach is “contrary to longstanding
principles of equity, as well as inconsistent with applica-
ble Supreme Court precedent and [c]ongressional legisla-
tion and policy.” We reject, therefore, the Nation’s
contention that its breach of trust claims are now ripe for
review because its right to appeal the dismissal of its land
claim is only “illusory.”
C. Subject Matter Jurisdiction
If a claim is not yet ripe for judicial review, it should
generally be dismissed without prejudice. See, e.g., Ca-
sitas, 708 F.3d at 1343 (affirming the dismissal of a
takings claim without prejudice after determining that it
was unripe); Morris, 392 F.3d at 1378 (affirming the
dismissal of a takings claim without prejudice because it
was “not ripe as a matter of law”); see also Barlow &
Haun, Inc. v. United States, 118 Fed. Cl. 597, 615 n.20
8 SHINNECOCK INDIAN NATION v. US
(2014) (emphasizing that if a claim is moot or unripe it
“should be dismissed as nonjusticiable and not for lack of
subject matter jurisdiction”); Bannum, Inc. v. United
States, 56 Fed. Cl. 453, 462 (2003) (“If a claim is not ripe
. . . it must be dismissed without prejudice.”). Here,
however, the Court of Federal Claims held that the Na-
tion’s claims were not ripe for review, but nonetheless
proceeded to determine that even if those claims were
ripe, they invoked no statute or other source of substan-
tive law sufficient to bring them within the jurisdictional
reach of the Indian Tucker Act. 5 See Court of Federal
Claims Decision, 112 Fed. Cl. at 379–87.
“[T]here is no unyielding jurisdictional hierarchy,”
and no prohibition precluding a court from dismissing a
claim on alternative grounds. Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 578 (1999) (explaining that in
appropriate cases a district court can dismiss for lack of
personal jurisdiction without first establishing that it has
subject matter jurisdiction); see Sinochem Int’l Co. v.
Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007)
(emphasizing “that a federal court has leeway to choose
among threshold grounds for denying audience to a case
on the merits” (citations and internal quotation marks
omitted)); McGuire v. United States, 707 F.3d 1351, 1362
(Fed. Cir. 2013) (reversing a determination that a takings
claim was ripe for review, but affirming the trial court’s
5 “Although the Indian Tucker Act confers jurisdic-
tion upon the Court of Federal Claims, it is not itself a
source of substantive rights. To state a litigable claim, a
tribal plaintiff must invoke a rights-creating source of
substantive law that can fairly be interpreted as mandat-
ing compensation by the Federal Government for the
damages sustained.” United States v. Navajo Nation, 537
U.S. 488, 503 (2003) (citations and internal quotation
marks omitted).
SHINNECOCK INDIAN NATION v. US 9
judgment in favor of the government because it was clear
that the plaintiff lacked the requisite property interest to
support a viable takings claim). The present case, howev-
er, involves the unusual situation in which the claims
asserted against the United States rest upon the outcome
of litigation still pending in another forum. At the cur-
rent juncture, the Nation’s claims against the United
States are merely hypothetical—contingent on the ulti-
mate resolution of its land suit against the State of New
York—and we think it is premature as to these claims to
make any binding determination as to whether they
invoke a money-mandating source of substantive law. See
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937)
(explaining that “[a] justiciable controversy [must be]
distinguished from a difference or dispute of a hypothet-
ical or abstract character”).
In assessing jurisdiction under the Tucker Act, “a sin-
gle determination controls whether the plaintiff has
identified a money-mandating source for purposes of
Tucker Act jurisdiction and whether the statute on its
merits provides a money-mandating remedy on which the
plaintiff can base a cause of action . . . .” Adair v. United
States, 497 F.3d 1244, 1251 (Fed. Cir. 2007). Thus, in a
“single step,” the Court of Federal Claims “determines
both the question of whether [a] statute provides the
predicate for its jurisdiction, and lays to rest for purposes
of the case before it the question of whether the statute on
its merits provides a money-mandating remedy.” Fisher
v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (en
banc in relevant part). Accordingly, when the Court of
Federal Claims addressed the question of whether the
Nation’s breach of trust claims fell within the Indian
Tucker Act’s waiver of sovereign immunity, it necessarily
made a determination, on the merits, that the Non-
Intercourse Act failed to provide a money-mandating
10 SHINNECOCK INDIAN NATION v. US
remedy upon which the Nation could base its cause of
action. 6
“The operation of [a] statute is better grasped when
viewed in light of a particular application.” Texas v.
United States, 523 U.S. 296, 301 (1998). Until the litiga-
tion now pending in the Second Circuit is finally re-
solved—and the metes and bounds of the Nation’s breach
of trust claims against the United States are certain—we
think it is premature in the circumstances of this case to
make any determination as to whether the Non-
Intercourse Act can be construed to provide a predicate
for the exercise of jurisdiction over those claims. The role
of the federal courts is to provide redress for injuries that
are “concrete in both a qualitative and temporal sense.”
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). Because
the precise contours of the Nation’s breach of trust claims
against the United States are at present only conjectural,
any ruling on the merits of those claims is “patently
advisory” in the circumstances of this case. Babbitt v.
United Farm Workers Nat. Union, 442 U.S. 289, 304
(1979); see Elec. Bond & Share Co. v. Sec. & Exch.
Comm’n, 303 U.S. 419, 443 (1938); Tokyo Kikai Seisa-
kusho, Ltd. v. United States, 529 F.3d 1352, 1363 (Fed.
Cir. 2008).
Adherence to ripeness standards prevents courts from
making determinations on the merits of a case before all
6 The Court of Federal Claims further determined
that nothing in the federal common law provided a basis
for the exercise of jurisdiction over the Nation’s claims.
See Court of Federal Claims Decision, 112 Fed. Cl. at 382
(“Common law causes of action . . . are not included in
[the Tucker Act’s] jurisdictional grant.” (citations and
internal quotation marks omitted)).
SHINNECOCK INDIAN NATION v. US 11
the essential facts are in. 7 See Williamson Cnty. Reg’l
Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 191
(1985). Here, multiple possible litigation outcomes and
factual developments could impact the Court of Federal
Claims’ adjudication of the Nation’s breach of trust
claims. The Second Circuit could reverse the district
court’s judgment and afford the Nation some, or all, of the
relief it seeks for the alleged misappropriation of its land.
Alternatively, the appeals court could affirm the decision
to deny the Nation compensation, but do so on grounds
materially different than those relied upon by the district
court. It is also possible that the Nation and the State of
New York will reach a settlement, potentially obviating
any need for the Court of Federal Claims to adjudicate the
Nation’s breach of trust claims. Because the Nation’s
claims against the United States cannot be fully and
accurately assessed until its Land Reclamation Suit
against the State of New York is finally resolved, those
claims must be dismissed without prejudice. See Mac-
Donald, Sommer & Frates v. Yolo Cnty., 477 U.S. 340, 350
(1986) (“[A] court cannot determine whether a municipali-
ty has failed to provide ‘just compensation’ until it knows
what, if any, compensation the responsible administrative
body intends to provide.”); Williamson Cnty., 473 U.S. at
191 (concluding that the plaintiff’s takings claim “simply
7 Although the Court of Federal Claims is an Arti-
cle I tribunal, it generally adheres to traditional justicia-
bility standards applicable to courts established under
Article III. See, e.g., Weeks Marine, Inc. v. United States,
575 F.3d 1352, 1359 (Fed. Cir. 2009); Anderson v. United
States, 344 F.3d 1343, 1350 n.1 (Fed. Cir. 2003); see also
Mass. Bay Transp. Auth. v. United States, 21 Cl. Ct. 252,
257–58 (1990) (“Although established under Article I, the
Claims Court traditionally has applied the case or contro-
versy requirement unless jurisdiction conferred by Con-
gress demands otherwise.”).
12 SHINNECOCK INDIAN NATION v. US
[could not] be evaluated until the administrative agency
ha[d] arrived at a final, definitive position regarding how
it [would] apply the regulations at issue to the particular
land in question”).
D. Leave to Amend
Finally, we turn to the Nation’s argument that the
Court of Federal Claims abused its discretion in refusing
to allow it to amend its complaint to add a “judicial tak-
ings” claim alleging that the district court’s judgment
effectuated a compensable taking of the Nation’s vested
property rights. 8 Binding precedent establishes that the
Court of Federal Claims has no jurisdiction to review the
merits of a decision rendered by a federal district court.
See Allustiarte v. United States, 256 F.3d 1349, 1352 (Fed.
Cir. 2001); Joshua v. United States, 17 F.3d 378, 380 (Fed.
Cir. 1994); see also Innovair Aviation Ltd. v. United
States, 632 F.3d 1336, 1343 (Fed. Cir. 2011); Vereda,
Ltda. v. United States, 271 F.3d 1367, 1375 (Fed. Cir.
2001). Adjudication of the Nation’s proposed judicial
takings claim would require the Court of Federal Claims
to scrutinize the merits of the district court’s judgment, a
task it is without authority to undertake.
8 Our review of whether the Court of Federal
Claims correctly declined to allow the Nation to amend its
complaint to add a judicial takings claim need not be
postponed until litigation on the Land Reclamation Suit
is finally resolved. Regardless of whether the district
court’s judgment dismissing the Nation’s land claim is
reversed or otherwise modified on appeal, “Article III
forbids the Court of Federal Claims, an Article I tribunal,
from reviewing the actions of an Article III court . . . .”
Boise Cascade Corp. v. United States, 296 F.3d 1339, 1344
(Fed. Cir. 2002).
SHINNECOCK INDIAN NATION v. US 13
The situation presented here parallels that presented
in Allustiarte, 256 F.3d at 1351–53. There the plaintiffs
brought suit in the Court of Federal Claims alleging that
bankruptcy courts in the Ninth Circuit took their property
without just compensation when they allowed the plain-
tiffs’ assets to be sold at less than fair value. Id. at 1350–
51. The Court of Federal Claims dismissed the plaintiffs’
suit for lack of jurisdiction and this court affirmed. We
explained that the Court of Federal Claims was without
authority to scrutinize the decisions of the bankruptcy
courts (which are subordinate to Article III courts) and “to
determine whether [the plaintiffs] suffered a categorical
taking of their property at the hands of the . . . courts.”
Id. at 1352.
A similar analysis applies here. The Nation alleges
that in applying the doctrine of laches to bar its land
claim, the district court improperly “took away the Na-
tion’s legal right to sue for compensation for its stolen
land.” The Court of Federal Claims, however, is without
authority to adjudicate the Nation’s claim that it suffered
a compensable taking at the hands of the district court.
See Allustiarte, 256 F.3d at 1352; Joshua, 17 F.3d at 380.
The court has no jurisdiction to review the decisions “of
district courts and cannot entertain a taking[s] claim that
requires the court to scrutinize the actions of another
tribunal.” Innovair, 632 F.3d at 1344 (alteration in origi-
nal) (citations and internal quotation marks omitted). As
the government correctly notes, “[d]eciding whether the
district court’s judgment resulted in an unconstitutional
taking of the Nation’s property would require the Court of
Federal Claims to review the judgment and pass on its
correctness.” Just as the plaintiffs’ takings claim in
Allustiarte was an improper collateral attack on the
judgment of the bankruptcy courts, the Nation’s proposed
14 SHINNECOCK INDIAN NATION v. US
judicial takings claim is an attempt to mount an improper
collateral attack on the judgment of the district court. 9
Permitting parties aggrieved by the decisions of Arti-
cle III tribunals to challenge the merits of those decisions
in the Court of Federal Claims would circumvent the
statutorily defined appellate process and severely under-
cut the orderly resolution of claims. See 28 U.S.C. § 1291(“The court of appeals . . . shall have jurisdiction of ap-
peals from all final decisions of the district courts of the
United States.”); Plaut v. Spendthrift Farm, Inc., 514 U.S.
211, 218–19 (1995) (explaining that Article III “gives the
Federal Judiciary the power, not merely to rule on cases,
but to decide them, subject to review only by superior
courts in the Article III hierarchy”).
9 Boise, 296 F.3d at 1344–45, upon which the Na-
tion relies, is inapposite. There the government obtained
an injunction against Boise Cascade Corp. (“Boise”) which
prevented it from logging on its property without a per-
mit. Boise thereafter filed suit in the Court of Federal
Claims, alleging that the government’s decision to seek
and obtain the injunction effectuated a taking of a com-
pensable property interest. We concluded that the Court
of Federal Claims had jurisdiction to consider Boise’s
takings claim, as the issue of whether the government’s
actions in “seeking and obtaining the injunction” effectu-
ated a taking of Boise’s property rights “was not before
the district court, nor could it have been.” Id. at 1344.
We emphasized, moreover, that “the sole forum available
to hear Boise’s claim” was the Court of Federal Claims.
Id. Here, by contrast, the question of whether the Nation
has the right to bring an action for the loss of its tribal
lands was squarely before the district court, and the
Nation’s pending appeal to the Second Circuit provides it
with a forum to challenge any errors in the district court’s
judgment.
SHINNECOCK INDIAN NATION v. US 15
CONCLUSION
Accordingly, we affirm the United States Court of
Federal Claims’ determination that the Nation’s breach of
trust claims are not yet ripe for review, vacate its ruling
that it lacked jurisdiction over those claims, and remand
the case with instructions to dismiss the breach of trust
claims without prejudice.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED