The Shoshone Indian Tribe of the Wind River Reservation, Wyoming v. United States ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
THE SHOSHONE INDIAN TRIBE OF THE
WIND RIVER RESERVATION, WYOMING,
Plaintiff-Appellant,
and
THE ARAPAHO INDIAN TRIBE OF THE
WIND RIVER RESERVATION, WYOMING,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-5150
__________________________
Appeal from the United States Court of Federal
Claims in consolidated case nos. 79-CV-4582 and 79-CV-
4592, Chief Judge Emily C. Hewitt.
_________________________
Decided: January 9, 2012
_________________________
HARRY R. SACHSE, Sonosky, Chambers, Sachse, En-
dreson & Perry, LLP, of Washington, DC, argued for
plaintiff-appellant The Shoshone Indian Tribe of the Wind
River Reservation, Wyoming. With him on the brief was
WILLIAM F. STEPHENS.
SHOSHONE INDIAN TRIBE v. US 2
RICHARD M. BERLEY, Ziontz, Chestnut, Varnell, Berley
& Slonim, of Seattle, Washington, argued for plaintiff-
appellant The Arapaho Indian Tribe of the Wind River
Reservation, Wyoming. With him on the brief was BRIAN
W. CHESTNUT.
JOAN M. PEPIN, Environment & Natural Resources
Division, Appellate Section, United States Department of
Justice, of Washington, DC, argued for defendant-
appellee. With her on the brief was IGNACIA S. MORENO,
Assistant Attorney General.
__________________________
Before PROST, MAYER, and O’MALLEY, Circuit Judges.
O’MALLEY, Circuit Judge.
The Shoshone Indian Tribe of the Wind River Reser-
vation and the Arapaho Indian Tribe of the Wind River
Reservation (collectively “the Tribes”) appeal the United
States Court of Federal Claims’ dismissal of Claim II as
time-barred by 28 U.S.C. § 2501 (2006), which bars all
suits filed against the United States in the Court of
Federal Claims unless filed within six years after the
claim accrues. Because we conclude that the Tribes have
alleged a continuing trespass, the Court of Federal Claims
improperly determined that Claim II is time-barred in its
entirety. Accordingly, as explained below, we vacate and
remand for further proceedings.
BACKGROUND
This dispute between the Tribes and the United
States (“the Government”) is a portion of two larger suits
filed in 1979, which were consolidated. See Shoshone
Indian Tribe of the Wind River Reservation v. United
States, 364 F.3d 1339, 1343 (Fed. Cir. 2004) (“Shoshone
3 SHOSHONE INDIAN TRIBE v. US
II”); Shoshone Indian Tribe of the Wind River Reservation
v. United States, 93 Fed. Cl. 449, 452 (2010) (“Shoshone
III”). This consolidated suit alleges that the Government
breached fiduciary and statutory duties owed to the
Tribes by mismanaging the Wind River Reservation’s (the
“Reservation”) natural resources and the incomes derived
from the exploitation of these resources. Shoshone II, 364
F.3d at 1343. The Court of Federal Claims divided the
Tribes’ suit into three different phases. One phase ad-
dressed sand and gravel and has been resolved via set-
tlement. The other two phases were devoted to oil and
gas issues. Oil and Gas Phase I, which has been fully
resolved, involved the Government’s failure to collect
royalties for the period after October 10, 1973. Oil and
Gas Phase II, on the other hand, addresses pre-1973 oil
and gas royalty collection and a series of discrete oil-and-
gas issues. Except for the second claim of this phase of
the litigation – at issue here – all other aspects of the
Phase II litigation have been resolved. Shoshone III, 93
Fed. Cl. at 452. In Claim II, the Tribes alleged that:
[S]even oil and gas leases were allegedly unlaw-
fully converted from Act of August 21, 1916 (the
“1916 Act”) leases, Pub. L. No. 64-218, 39 Stat.
519 (1916), to Indian Mineral Leasing Act (the
“1938 Act”) leases, Pub. L. No. 75-506, 52 Stat.
347 (1938) (codified at 25 U.S.C. §§ 396a-396g
(2006)). [The Tribes] claim damages based on the
theory that they would have obtained better roy-
alty and renewal terms if the leases had remained
1916 Act leases instead of being converted to 1938
Act Leases.
Shoshone III, 93 Fed. Cl. at 451 (internal citation omit-
ted). Resolution of the statute of limitations issue raised
in this appeal requires a discussion of the history of the
Tribes’ relationship with the Government.
SHOSHONE INDIAN TRIBE v. US 4
A. Factual Background
1. History of the Reservation and Mineral Leasing
The Tribes share an undivided interest in the Reser-
vation in Wyoming. 1 Shoshone Indian Tribe of the Wind
River Reservation v. United States, 51 Fed. Cl. 60, 61
(2001) (“Shoshone I”). On March 3, 1905, Congress rati-
fied an agreement between the Government and the
Tribes, whereby the Tribes ceded, granted, and relin-
quished to the Government all of their rights, title, and
interest in approximately 1,480,000 acres of the Reserva-
tion. Shoshone III, 93 Fed. Cl. at 452; see also Pub. L. No.
58-185, 33 Stat. 1016, Art. I (1905). These so-called
“ceded lands” were to be “disposed of by the United States
under the provisions of the homestead, town-site, coal,
and mineral land laws or by sale for cash—with proceeds
to be paid to [the Tribes].” Shoshone III, 93 Fed. Cl. at
452 (citing 33 Stat. 1016, Art. II). The Government,
moreover, agreed to act as trustee for the Tribes; it would
dispose of the ceded lands and deliver the proceeds to the
Tribes. Shoshone III, 93 Fed. Cl. at 452 (citing 33 Stat.
1016, Art. IX).
At some point around 1910, it became apparent that
some of the ceded lands contained potentially valuable oil
and gas resources. Shoshone III, 93 Fed. Cl. at 452. This
discovery prompted Congress to enact the Act of August
21, 1916, Pub. L. No. 64-218, 39 Stat. 519-20 (1916) (the
“1916 Act”), which authorized “the Secretary of the Inte-
rior to lease, for production of oil and gas, ceded lands of
the [Reservation].” Id. Proceeds from these leases would
be for the use and benefit of the Tribes. Id. Under the
1916 Act, leases: (1) were for a period of twenty years; (2)
1 For a detailed discussion of the history of the Res-
ervation, see Shoshone II, 364 F.3d at 1342–43.
5 SHOSHONE INDIAN TRIBE v. US
could be renewed for successive periods of ten years “upon
such reasonable terms and conditions as may be pre-
scribed by the Secretary of the Interior”; (3) had a mini-
mum royalty rate of ten percent; and (4) if there was no
oil or gas production, the leases had a rental rate of not
less than one dollar per acre per year. Id.
Unlike the 1916 Act, which applied to the ceded lands
of the Reservation, the Indian Mineral Leasing Act, Pub.
L. No. 75-506, 52 Stat. 347 (1938) (codified at 25 U.S.C.
§§ 396a–396g (2006)) (the “1938 Act”), does not apply to
ceded lands. Id. at § 396f. While the 1916 Act leases
were for fixed periods and did not require oil or gas pro-
duction, leases under the 1938 Act were “for terms not to
exceed ten years and as long thereafter as minerals are
produced in paying quantities.” Id. at § 396a. In addi-
tion, leases under the 1938 Act are between the lessee
and the Tribes. Id. The 1938 Act, moreover, requires
competitive bidding for new leases. Id. at § 396b.
Shortly after passage of the 1938 Act, Congress or-
dered the Secretary of the Interior to restore ownership of
“all undisposed-of surplus or ceded lands within” the
Reservation to the Tribes. Act of July 27, 1939, Pub. L.
No. 76-238, 53 Stat. 1128 (1939). On May 17, 1940, and
August 10, 1944, the Secretary of the Interior restored all
seven Claim II parcels to the Tribes, subject to any valid
existing rights. Shoshone III, 93 Fed. Cl. at 453 (citations
omitted). While the seven Claim II parcels were no longer
ceded lands, the 1916 Act leases for these parcels re-
mained in force. Of course, any new leases for restored
portions of the Reservation, which were not previously
leased, would have to be made pursuant to the 1938 Act
because such lands were no longer ceded.
SHOSHONE INDIAN TRIBE v. US 6
2. Conversion of the Seven Claim II Leases
After the 1940 and 1944 restoration of ceded lands, in
1948, the British-American Oil Producing Company
(“British-American”) asked the superintendent of the
Wind River Agency to convert two of the seven existing
1916 Act leases into 1938 Act leases. Joint Appendix
(“J.A.”) 156. Both of these leases were productive and in
their initial twenty-year term. Id. In response to this
request, in May of 1948, the Government and British-
American presented the proposal to the Tribes’ Joint
Business Council (“the Council”). 2 J.A. 159; Appellants’
Br. 11. After the Government’s representative discussed
British-American’s proposal and some of the differences
between 1916 Act leases and 1938 Act leases, the Council
unanimously voted to approve the conversion of the
leases. J.A. 159–60. Following this meeting, the Council
adopted Resolution No. 152, which resolved “that the
Commissioner of Indian Affairs be requested to . . . con-
vert the two said leases . . . .” J.A. 161. These leases were
prepared and signed by the two Council chairmen on
February 11, 1949. J.A. 165, 169.
In 1949, the Husky Refining Company (“Husky”) re-
quested that five of its 1916 Act leases be converted into
1938 Act leases. Unlike the converted British-American
leases, these leases’ initial twenty-year term had expired,
so the leases were up for renewal. As with the British-
American leases, the Council voted to approve the conver-
sion of the five Husky leases. J.A. 172. Resolution 153
issued in response to this approval, directing “new leases
be prepared in favor of the Husky Refining Company,
covering the restored tribal lands described in the said
2 The Joint Business Council consists of the Sho-
shone Business Council and the Arapaho Business Coun-
cil, but not the United States.” Appellants’ Br. 11.
7 SHOSHONE INDIAN TRIBE v. US
contracts on the current tribal lease form, as provided for
in the Act of May 11, 1938.” J.A. 173. Four of these
leases were executed by the Tribes on August 10, 1949,
while the fifth was executed on July 21, 1950.
Despite the conversion of these seven leases, when
British-American requested conversion of another lease in
1957, the Government stated that “[i]t is deemed inadvis-
able to issue a renewal lease under the [1938 Act] as it
requires that the leases be advertised for competitive
bids.” J.A. 202. Accordingly, this lease was never con-
verted.
B. Procedural History
In 2005, after the Court of Federal Claims consoli-
dated the two suits and divided the Tribes’ suit into
phases, it ordered the Tribes to submit “a statement
identifying the issues to be resolved” in the Oil and Gas
Phase II portion of the litigation. Court of Federal Claims
Order of June 6, 2005 at 1–2, 1:79-cv-4582, ECF No. 12.
In response, the Tribes identified Claim II: “Failure to
collect amounts due under 1916 act leases by illegally
converting to 1938 Act leases.” Tribes’ Statement Identi-
fying Oil and Gas Phase Two Issues at i, Jan. 13, 2006,
1:79-cv-4582, ECF No. 20. Specifically, the Tribes alleged
that “[t]hese conversions were illegal, costing the Tribes
the difference in royalty that they could have obtained if
these leases had remained 1916 Act leases.” Id. at 11.
The Tribes sought damages beginning on the date upon
which each conversion occurred through December 31,
2000. Id.
The relevant facts associated with Claim II of Phase
II were developed jointly by the Government and the
Tribes “in lieu of an accounting by the [Government].”
Shoshone III, 93 Fed. Cl. at 452 (citation omitted). In
accordance with this joint development, in 2007, “the
SHOSHONE INDIAN TRIBE v. US 8
parties shared documents including leases, letters, and
similar materials [that] have been supplemented by
additional discovery. Also in 2007, the parties shared
expert reports that discussed, inter alia, Claim II and
damage calculations.” Id. (internal quotation marks and
citations omitted). In response to this discovery, the
Government moved for judgment on the pleadings. 3 Id. at
451.
In its motion, the Government argued that the Tribes’
claim was time-barred by 28 U.S.C. § 2501 because it was
not filed within six years of the date on which it first
accrued. Shoshone III, 93 Fed. Cl. at 451. In opposition,
the Tribes argued that Claim II is timely because: (1) the
claim did not accrue until after the Tribes’ suit was filed;
(2) the Interior Appropriations Act deferred accrual of the
claim; and (3) the claim is for a continuing trespass. 4 Id.
at 454–63.
In support of its contention that Claim II did not ac-
crue until after the Tribes filed their complaints in 1979,
the Tribes argued that they did not have actual or inquiry
notice of the conversions. A claim premised upon a breach
of trust accrues only when the trust beneficiary knows the
trustee has repudiated the trust. Shoshone II, 364 F.3d at
1348 (citations omitted). The Tribes asserted that, be-
cause they lacked this knowledge, Claim II did not accrue
3 In addition, the Tribes moved for summary judg-
ment. Id. at 451. Because it granted the Government’s
motion, the Court of Federal Claims found the Tribes’
motion moot. Id. This judgment has not been appealed.
4 The Tribes also made an argument in support of
Claim II’s timeliness premised upon survival of the 1916
Act leases. Pls.’ Resp. to Def.’s Mot. J. on the Pleadings at
20–21, October 29, 2009, 1:79-cv-4582, ECF No. 74. The
Court of Federal Claims rejected this argument. Sho-
shone III, 93 Fed. Cl. at 463–64. The Tribes are not
appealing this determination.
9 SHOSHONE INDIAN TRIBE v. US
until after their complaints were filed. The Court of
Federal Claims, however, concluded that, because the
Tribes approved and executed the leases in question, the
Tribes had actual knowledge of the lease conversions. Id.
at 456.
In addition, the Tribes argued that Claim II had not
accrued when they filed their suit because the claim’s
accrual was tolled. The Tribes asserted that Claim II’s
accrual was tolled under common law because: (1) the
injury caused by the conversions was “inherently un-
knowable”; and (2) the Government concealed information
from and affirmatively misled the Tribes. Pls.’ Resp. to
Def.’s Mot. J. on the Pleadings at 5–13, Oct. 29, 2009,
1:79-cv-4582, ECF No. 74. The Court of Federal Claims
held that, on the basis of a 1959 letter from the Tribes’
counsel to the Government, Claim II was not inherently
unknowable. Shoshone III, 93 Fed. Cl. at 457–58. The
Court of Federal Claims explained that:
While it is unclear from the content of the letter
whether plaintiffs’ attorneys understood exactly
when and how the 1916 Act leases were converted
to 1938 Act leases, the letter demonstrates a no-
ticeable level of concern as to the management of
the leases and whether the government was mak-
ing decisions in line with its duty as a trustee “to
make as good a bargain for the [Tribes] as a pru-
dent and informed oil and gas operator would
make for himself.” This letter undermines plain-
tiffs’ contentions that they neither knew of the
conversions nor had reason to question the gov-
ernment’s actions regarding the leases.
Id. at 458 (internal citation omitted).
Similarly, with respect to the Government’s alleged
concealment and misrepresentations, the Court of Federal
SHOSHONE INDIAN TRIBE v. US 10
Claims held that neither tolled the accrual of Claim II.
Id. at 459. Based on the same 1959 letter, the Court of
Federal Claims concluded that the Tribes had a “height-
ened level of concern about leasing.” Id. This heightened
level of concern “should have led to a broader inquiry as to
the status of the leases and, if appropriate, to legal ac-
tion.” Id. The Court of Federal Claims concluded there-
fore that, as of 1959, “plaintiffs had knowledge that
should have prompted an inquiry regarding the lease
conversions.” Id. Having determined that neither the
general rules that defer trust claims from accruing, nor
the general rules that suspend claim accrual were appli-
cable to Claim II, the Court of Federal Claims turned to
the Tribes’ argument that the Interior Appropriations Act
suspended Claim II from accruing.
As explained by the Court of Federal Claims, “Con-
gress has enacted within a series of appropriations acts
covering the United States Department of the Interior
provisions which suspend accrual of the statute of limita-
tions for certain tribal trust claims . . . .” Id. These
provisions apply only to a “claim . . . concerning losses to
or mismanagement of trust funds . . . .” Id. at 460 (quot-
ing the Consolidated Appropriations Act of 2005, Pub. L.
108-447, 118 Stat. 2808, 3060-61 (the “Interior Appropria-
tions Act”). 5 Despite the Tribes’ assertion that Claim II
concerned mismanagement of trust funds, the Court of
Federal Claims held that it “is more readily characterized
as mismanagement of an asset, a matter explicitly ex-
cluded . . . from the Appropriations Act.” Id. at 462 (citing
Shoshone II, 364 F.3d at 1350).
Finally, the Court of Federal Claims rejected the
Tribes’ argument that Claim II asserts a continuing
5 Congress has included this provision without
modification in all recent Interior Appropriations Acts.
11 SHOSHONE INDIAN TRIBE v. US
trespass. Shoshone III, 93 Fed. Cl. at 462. The Tribes’
argument was premised upon the fact that the converted
1938 Act leases were invalid. In light of this fact, the
Tribes argued that oil and gas operators were trespassing
when they extracted resources from the seven parcels in
question. Accordingly, the Tribes argued that each oil
and gas extraction that the Government failed to prevent
supported a separate claim against the Government. The
Court of Federal Claims found, however, that “[t]he oil
and gas operators who extracted minerals from the seven
parcels in this case were doing so under the authority of
lease agreements executed by the Tribes themselves” and,
thus, could not be characterized as trespassers. Id.
Based on this conclusion, the Court of Federal Claims
rejected the Tribes’ continuing trespass argument. Id.
In light of these determinations, the Court of Federal
Claims granted the Government’s motion, and entered
judgment for the Government. Id. at 464. The Tribes
timely appealed. We review final judgments of the Court
of Federal Claims pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
The limitations period in 28 U.S.C. § 2501 is jurisdic-
tional. John R. Sand & Gravel Co. v. United States, 552
U.S. 130, 136–39 (2008). Whether the Court of Federal
Claims possesses jurisdiction over a claim is a question of
law that is subject to de novo review. Navajo Nation v.
United States, 631 F.3d 1268, 1272 (Fed. Cir. 2011).
When reviewing a decision of the Court of Federal Claims
to grant judgment on the pleadings, we presume that the
facts alleged by the plaintiffs are true, and we draw all
reasonable inferences in the plaintiffs’ favor. Cary v.
United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009).
When a party brings a motion for judgment on the plead-
ings premised on lack of subject matter jurisdiction, the
SHOSHONE INDIAN TRIBE v. US 12
motion should be treated as if it had been brought under
Federal Rule of Civil Procedure 12(b)(1). Renewal Body
Works, Inc. v. United States, 64 Fed. Cl. 609, 612–13
(2005) (treating the defendant’s motion for judgment on
pleadings based upon plaintiff’s claim being barred by
§ 2501’s statute of limitations as a 12(b)(1) motion); 5C
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Civil Procedure § 1367, at 221 (3d ed. 2004). If a Rule
12(b)(1) motion challenges a complaint’s allegations of
jurisdiction, the factual allegations in the complaint are
not controlling and only uncontroverted factual allega-
tions are accepted as true. Cedars-Sinai Med. Ctr. v.
Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993) (citations
omitted). In resolving these disputed predicate jurisdic-
tional facts, “a court is not restricted to the face of the
pleadings, but may review evidence extrinsic to the plead-
ings . . . .” Id. at 1584 (citations omitted).
On appeal, the Tribes argue that § 2501 does not bar
Claim II because: (1) “the Tribes neither knew nor should
have known of Claim II until after they filed this suit”; (2)
the claim relates to losses to trust funds such that accrual
is statutorily deferred; and (3) “the Tribes have a continu-
ing claim against the government for allowing production
of tribal oil and gas without valid leases.” Appellants’ Br.
20, 33, 36. In response, the Government argues that the
Court of Federal Claims properly concluded that § 2501
bars Claim II. Each of the Tribes’ arguments will be
discussed below in turn.
I.
The statute of limitations provision of § 2501 places a
limit on the Government’s waiver of sovereign immunity
for claims within the jurisdiction of the Court of Federal
Claims. Shoshone II, 364 F.3d at 1346. Such claims
“shall be barred unless the petition thereon is filed within
13 SHOSHONE INDIAN TRIBE v. US
six years after such claim first accrues.” 28 U.S.C. § 2501.
Generally, under § 2501, a claim does not accrue until “all
the events which fix the government’s alleged liability
have occurred and the plaintiff was or should have been
aware of their existence.” Hopland Band of Pomo Indians
v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988); see
also Fallini v. United States, 56 F.3d 1378, 1380 (Fed. Cir.
1995) (“The question whether the pertinent events have
occurred is determined under an objective standard; a
plaintiff does not have to possess actual knowledge of all
the relevant facts in order for the cause of action to ac-
crue.”).
A cause of action for breach of trust, moreover, only
“accrues when the trustee ‘repudiates’ the trust and the
beneficiary has knowledge of that repudiation.” Shoshone
II, 364 F.3d at 1348 (emphasis added) (citing Hopland
Band of Pomo Indians, 855 F.2d at 1578; Restatement
(Second) of Trusts § 219 (1992); Cobell v. Norton, 260 F.
Supp. 2d 98, 105 (D.D.C. 2003); Manchester Band of Pomo
Indians v. United States, 363 F. Supp. 1238, 1249 (N.D.
Cal. 1973)). The trustee may repudiate the trust by
taking actions inconsistent with his responsibilities as a
trustee or by express words. Jones v. United States, 801
F.2d 1334, 1336 (Fed. Cir. 1986) (citing Philippi v. Phil-
ippe, 115 U.S. 151, 157 (1885)); see also Shoshone II, 364
F.3d at 1348 (“[P]lacing the beneficiary on notice that a
breach has occurred,” is sufficient to establish the benefi-
ciary’s knowledge of the repudiation).
The Tribes argue that Claim II did not accrue until af-
ter they filed their complaint because: (1) the Government
concealed its actions, resulting in the Tribes’ being un-
aware of the claim; and (2) the Tribes had “no reasonable
way . . . to determine any of the damages caused by the
illegal ‘conversion’ until well after this suit was filed.”
Appellants Br. 21, 28. In response, the Government
SHOSHONE INDIAN TRIBE v. US 14
asserts that the Court of Federal Claims correctly held
that Claim II was untimely because the Tribes had actual
knowledge of all the facts material to Claim II at the time
the conversions took place. Appellee’s Br. 22–24. For the
reasons explained below, on this issue, we agree with the
Government.
The Tribes assert that the Government’s omissions
and misstatements with respect to critical information
prevented them from being aware of Claim II. Specifi-
cally, the Tribes assert that the Government told them
that the conversions were legal, failed to inform the
Tribes of the potential economic consequences of the
conversions, and failed to explain that the replacement
1938 Act leases would be awarded without competitive
bidding. Although it is undisputed that the “statute of
limitations can be tolled where the government fraudu-
lently or deliberately conceals material facts relevant to a
plaintiff’s claim so that the plaintiff was unaware of their
existence and could not have discovered the basis of his
claim,” Hopland Band of Pomo Indians, 855 F.2d at 1577
(emphasis added), this exception to the general rule of
claim accrual is not applicable to the facts alleged here. 6
6 As this court explained in Hopland Band of Pomo
Indians,
Although not always clearly stated or recognized
in the “tolling” case law, the distinction that must
be drawn is that between tolling the commence-
ment of the running of the statute (a tolling of the
accrual) and tolling the running of the statute
once commenced (a tolling of the statute). In suits
against the government brought under section
2501, the distinction can be critical because the
former routinely is allowed while the latter rarely
is.
15 SHOSHONE INDIAN TRIBE v. US
Here, the Government’s alleged omissions and mis-
statements did not prevent the Tribes from being aware of
the material facts that gave rise to their claim. Instead,
the alleged misstatements and omissions, at most, failed
to inform the Tribes of their legal rights. It is settled law,
however, that § 2501 “is not tolled by the Indians’ igno-
rance of their legal rights.” Menominee Tribes of Indians
v. United States, 726 F.2d 718, 720–21 (Fed. Cir. 1984)
(citing Affiliated Ute Citizens of the State of Utah v.
United States, 199 Ct. Cl. 1004 (1972) and Capoeman v.
United States, 440 F.2d 1002 (Ct. Cl. 1971)); see also
Catawba Indian Tribe of S.C. v. United States, 982 F.2d
1564, 1572 (Fed. Cir. 1993) (“But in the case before us, all
the relevant facts were known. It was the meaning of the
law that was misunderstood.”).
For example, the Tribes make much of the fact that
the Government’s representative told the Tribes that the
conversions were legal and failed to inform the Tribes
when it later determined that the lease conversions were
illegal. 7 This misinformation and omission, however, only
misled the Tribes regarding their legal rights. There is no
question that the Tribes were aware of – and in fact
approved – the conversions. As explained in both Me-
855 F.2d at 1578. Here, the Tribes argue that accrual
was tolled, i.e., the former instance referenced in Hopland
Band of Pomo Indians.
7 The Government did not actually state in 1957
that the conversions were illegal; it merely concluded that
“[i]t is deemed inadvisable to issue a renewal lease under
this act as it requires that the lease[] be advertised for
competitive bids.” J.A. 202. Before this court, the Gov-
ernment concedes that the 1938 Acts had “harmless”
procedural irregularities, but still contends they were not
“illegal.” As explained below, the Government is wrong
and cannot avoid the illegality of the leases with seman-
tics.
SHOSHONE INDIAN TRIBE v. US 16
nominee and Catawba, a trust beneficiary’s subjective
ignorance of the law giving rise to its claim, even if predi-
cated on misleading statements relating to those legal
rights, does not toll the accrual of the statute of limita-
tions. Menominee, 726 F.2d at 720–21; Catawba, 982
F.2d at 1570–71.
Indeed, as we made clear in Catawba, even an af-
firmative incorrect assertion that the conversions were
legal would not toll the accrual of Claim II. Catawba, 982
F.2d at 1570–71 (affirming the Court of Federal Claims’
dismissal of the Catawba’s suit as barred by § 2501 and
finding the Government’s inaccurate representations to
the Catawba Indian Tribe regarding the law irrelevant
because only the objective meaning of the Act effected the
tolling of the statute of limitations, and the Catawba
Tribe’s misunderstanding of the law, even if premised on
the Government’s advice, could not change the objective
meaning of the Act).
Similarly, here, the Government’s purported assur-
ances that the conversions were legal are simply not
relevant. What matters is whether the relevant Acts
would have objectively put the Tribes on notice that the
conversions were illegal. Because the explicit language in
the 1938 Act indicates that all leases under the Act must
be noticed, advertised, and competitively bid, it was clear
that any lease adopted without these formalities would be
invalid and not in accordance with law. Under the objec-
tive standard that applies to the accrual of a claim for
breach of fiduciary and statutory duties, the Tribes can-
not toll the accrual of the statute of limitations by con-
tending that they were unaware of the requirements of
the 1938 Act.
The Tribes also argue that accrual did not occur until
after they filed suit because the Government’s representa-
17 SHOSHONE INDIAN TRIBE v. US
tive told them “that the main difference [between the
1916 Act and 1938 Act leases] was that the new leases
would be ‘approved and signed by the Tribes’ rather than
the Secretary” while affirmatively misinforming the
Tribes that the conversions “would have no economic
consequences, with the leases having the ‘same rent and
royalty.’ ” Appellants’ Br. 22. The Tribes assert that
these misstatements of fact prevented them from under-
standing that they would be damaged by the conversions
and what the extent of that damage would be.
This court has, however, “ ‘soundly rejected’ the con-
tention ‘that the filing of a lawsuit can be postponed until
the full extent of the damage is known.’ ” Navajo Nation,
631 F.3d at 1277 (quoting Boling v. United States, 220
F.3d 1365, 1371 (Fed. Cir. 2000)). The failure to follow
the notice, advertisement, and competitive bidding re-
quirements of the 1938 Act when the conversions occurred
was the harm suffered by the Tribes; the economic conse-
quences of the new leases may define the scope of that
harm, but they are not the event that triggers the statute
of limitations. See id. (explaining that, for determining
when the statute of limitations begins to run, “the ‘proper
focus’ must be ‘upon the time of the [defendant’s] acts, not
upon the time at which the consequences of the acts
[become] most painful.’ ”) (quoting Del. State Coll. v.
Ricks, 449 U.S. 250, 258 (1980)); Catawba, 982 F.2d at
1571 (concluding that, “[w]hether the harm was caused to
the [Catawba Indian] Tribe by the Act itself or by Gov-
ernment misrepresentations about what the effect of the
Act might be, the ‘damage’ was done when the Act became
effective in 1962”).
We reach this conclusion despite the Tribes’ argument
that the damages they suffered were unknowable. While
they assert that, because of the complexity and opacity of
the oil and gas leasing system employed at Wind River
SHOSHONE INDIAN TRIBE v. US 18
and the manner in which they were paid royalties, “there
was no reasonable way for the Tribes to determine any of
the damages caused by the illegal ‘conversions’ until well
after this suit was filed,” Appellants’ Br. 28–29, this
argument misses the point. As Navajo Nation makes
clear, the Government’s misstatements and omissions
about the economic consequences of the conversions, at
most, prevented the Tribes from being aware of the full
extent of their injury. But lack of this knowledge is not
sufficient to toll the accrual of § 2501’s statute of limita-
tions for Claim II. And, as we have explained, the clear
language of the 1938 Act establishes that the Tribes
should have known that creating a 1938 Act lease without
competitive bidding was not legal.
The only question that remains regarding the Tribes’
common law tolling arguments is whether the Tribes were
or should have been aware that the seven leases in ques-
tion were not competitively bid. Although the Govern-
ment admits “to date that it has not uncovered
information which confirms that the Tribes were advised
by the United States prior to Conversion of any Converted
Lease that the Conversion would be carried out without
Competitive Bidding,” J.A. 246, this admission does not
resolve the question in favor of the Tribes. As we have
previously noted, the court’s inquiry is an objective one.
Whether the Tribes actually knew that the seven leases
were not competitively bid is irrelevant if they objectively
should have known this fact. We conclude that the Tribes
should have known that the leases were not competitively
bid.
With respect to the two British-American leases, Brit-
ish-American sent a letter asking for the 1916 Act leases
to be “exchange[d]” for 1938 Act leases. J.A. 156. This
letter was read to the Joint Business Council before it
voted to approve the new leases. J.A. 159. In addition, at
19 SHOSHONE INDIAN TRIBE v. US
the meeting, the Government’s representative stated that
“British-American is asking for your consideration to
convert these two ceded leases into new leases under the
existing regulations.” J.A. 159. Significantly, a member
of the council acknowledged the ability to put the leases
up for bids, but he expressed his preference to have the
leases converted. J.A. 160 (“We could put the new lease
up for bids. I move that permission be granted to change
the old lease forms to the new.”). The transcript of this
meeting makes clear that the Tribes should have known
the leases were not being competitively bid. British-
American’s proposal was to convert the 1916 Act leases
into 1938 Act leases. This intent was made clear. Al-
though competitive bidding was mentioned, it was only
mentioned as an option that was immediately rejected in
favor of converting the leases. Finally, the resolution
approving British-American’s proposal states that the
leases were being converted. Based on these facts, the
Tribes appear to have actually been aware that the leases
were not being competitively bid. Even if they lacked this
subjective knowledge, based on the facts recited above,
objectively, they should have known.
We reach the same conclusion with respect to the five
Husky leases. The transcript of this Joint Business
Council meeting reveals that it was very similar to the
meeting held to approve the conversion of the British-
American leases. The only real difference was that
Husky’s letter requesting the conversion was not read to
the council. The key facts remain unchanged: the council
was told that Husky wanted to convert its 1916 Act leases
into 1938 Act leases, and there was no mention of com-
petitive bidding. As with the British-American leases, the
Tribes approved the conversions of the five Husky leases.
The resolution approving Husky’s proposal stated that it
was approving Husky’s written request “to convert its
SHOSHONE INDIAN TRIBE v. US 20
ceded leases . . . to the leasing terms as provided for in
Section 6 of the [1938 Act.]” J.A. 173. These facts estab-
lish that the Tribes should have known that the five
Husky leases were not competitively bid.
Despite the alleged misstatements and omissions by
the Government, the Tribes were not prevented from
knowing all of the material facts that established the
Government’s liability for Claim II. The Tribes actually
approved the conversion of the leases. They had actual
knowledge of all the relevant facts related to the conver-
sions. The Tribes’ injury was having the leases approved
without following the notice, advertisement, and competi-
tive bidding requirements of the 1938 Act. Because of
their involvement in the approval of the leases, the Tribes
should have known that the leases were not competitively
bid. And, thus, that the repudiation of the trust upon
which their claim is premised had occurred. Accordingly,
the Court of Federal Claims correctly concluded that
accrual of their claim was not tolled. 8
II.
Before we can conclude that Claim II is untimely, we
also must determine whether the tolling provision in the
Interior Appropriations Act is applicable to Claim II. In
relevant part, the Interior Appropriations Act provides
that:
8 In reaching its conclusion that Claim II accrued
more than six years before the Tribes filed their suit, the
Court of Federal Claims emphasized a letter from the
Tribes’ attorney to the Government. Shoshone III, 93
Fed. Cl. at 457–59. The Tribes assert that this was error.
Because we conclude that the Tribes knew or should have
known all of the material facts necessary for Claim II to
accrue before this letter was drafted, the Tribes’ argu-
ment is moot.
21 SHOSHONE INDIAN TRIBE v. US
[N]otwithstanding any other provision of law, the
statute of limitations shall not commence to run
on any claim . . . concerning losses to or misman-
agement of trust funds, until the affected tribe . . .
has been furnished with an accounting of such
funds from which the beneficiary can determine
whether there has been a loss.
Department of the Interior Appropriations Act of 2009,
Pub. L. No. 111, 123 Stat. 2904 (2009) (“Interior Appro-
priations Act”). In Shoshone II, this court drew a distinc-
tion between losses to and mismanagement of trust funds,
and losses to and mismanagement of trust assets. 364
F.3d at 1351. We explained that the Interior Appropria-
tions Act applies to losses or mismanagement of trust
funds only. On the basis of this distinction, we concluded
that “the [Interior Appropriations] Act covers any claims
that allege the Government mismanaged funds after they
were collected, as well as any claims that allege the
Government failed to timely collect amounts due.” Id.
Explaining the distinction, we stated that “[w]hile it is
true that a failure to obtain a maximum benefit from a
mineral asset is an example of an action that will result
in a loss to the trust, the Act’s language does not on its
face apply to claims involving trust assets.” Id. at 1350.
In other words, claims related to trust funds involve
losses “resulting from the Government’s failure to timely
collect amounts due and owing to the Tribes” under
relevant contracts, while claims related to trust assets
involve losses resulting from the terms of a contract being
suboptimal. Id. at 1350–51.
The Tribes argue that Claim II relates to losses of
trust funds because the converted leases were inconsis-
tent with the requirements of the 1938 Act. In addition,
the Tribes argue that this claim relates to trust funds
because the 1916 Act leases should have remained in
SHOSHONE INDIAN TRIBE v. US 22
effect, and the Government’s failure to collect royalties
under those leases caused losses to trust funds. As dis-
cussed below, these arguments are not well-taken.
First, the Tribes’ complaint about the lease conver-
sions is that they have lower royalty rates under the 1938
Act leases than they would now be earning under the
1916 Act leases. In Shoshone II, however, we expressly
concluded that losses associated with this type of claim
are losses to trust assets, not trust funds. 364 F.3d at
1350 (“Even if a claim for a breach of the fiduciary duty to
obtain a maximum return from the mineral assets had
been available, however, the plain language of the [Inte-
rior Appropriations] Act excludes such a claim.”). A claim
premised upon the terms of a lease being suboptimal is a
claim related to trust assets, and, therefore, outside of the
scope of the Interior Appropriations Act’s tolling provi-
sion.
Second, a claim premised upon the Government’s fail-
ure to collect royalties in accordance with a hypothetical
lease is a claim for mismanagement of trust assets. As we
explained in Shoshone II, a claim premised upon a failure
to collect royalties due under an existing contract or lease
is a claim based upon losses to trust funds. Id. A claim
based on a non-existing lease or contract is, therefore,
outside the scope of the Interior Appropriation Act’s
tolling provision. Because Claim II is for mismanagement
of trust assets, the Court of Federal Claims properly
concluded that the Interior Appropriations Act does not
toll the running of the six-year statute of limitations for
Claim II.
III.
Finally, the Tribes argue that, even if Claim II is
barred by § 2501, because the claim is based upon a
continuing trespass, the Tribes can still bring suit for
23 SHOSHONE INDIAN TRIBE v. US
injuries occurring within six years of their filing suit and
all injuries that occurred thereafter. In support of this
argument, the Tribes assert that the seven converted
leases are void because no competitive bidding occurred.
Because the leases are void, the oil companies extracting
oil under these leases are trespassers. As trustee, the
Tribes assert, the Government had a duty to eject the oil
companies. The Tribes argue that, under the continuing
trespass theory, each trespass is its own cause of action
with its own six-year statute of limitations. 9 See, e.g.,
9 To the extent that the Court of Federal Claims
held that Brown Park Estates-Fairfield Dev. Co. v. United
States, 127 F.3d 1449 (Fed. Cir. 1997), precluded the
Tribes from asserting that Claim II represented a con-
tinuing trespass, it was incorrect. In Brown Park, we
concluded that, because the plaintiffs sought damages for
the cumulative effect of alleged breaches by the Govern-
ment that were outside of the six-year statute of limita-
tions period, the plaintiffs’ suit did not represent a
continuing claim. Id. at 1457–58. Explaining the basis of
the plaintiffs’ claim, we stated:
They argue that on account of HUD’s breaches
outside the period of the statute of limitations,
HUD started from the wrong base when making
rent adjustments during the six years prior to the
filing of suit. Thus, the alleged improper base for
these latter years relates directly to, and is com-
pletely dependent on, whether HUD failed to
make rent adjustments in earlier years in viola-
tion of the HAP contracts.
Id. We explicitly distinguished this claim from one in
which a plaintiff sought damages for the Government’s
failure to make rent adjustments within the six-year
period. Id. at 1457. Here, the Tribes’ claim is akin to this
hypothetical discussed in Brown Park. Under the Tribes’
trespass theory, this is not a case in which the Tribes are
asserting that the cumulative effects of an act which
occurred outside of the six-year statute of limitations
period caused them harm; instead, the Tribes premise
SHOSHONE INDIAN TRIBE v. US 24
United States v. Hess, 194 F.3d 1164, 1177 (10th Cir.
1999) (“In trespass cases, where the statute of limitations
has expired with respect to the original trespass, but the
trespass is continuing, we and other courts have calcu-
lated the limitation period back from the time the com-
plaint was filed, rather than forward from the date of the
original trespass, or where applicable, back to the reason-
able discovery date.”); Cherokee Nation of Okla. v. United
States, 21 Cl. Ct. 565, 571 (Fed. Cl. 1990) (explaining that
plaintiff’s claims for trespasses that occurred more than
six-years before the suit was filed were barred by the
statute of limitations, but that claims for trespasses that
occurred less than six-years from the filing of suit were
not barred by the statute of limitations); cf. Oenga v.
United States, 83 Fed. Cl. 594, 597–98, 616–19 (2008)
(allowing the plaintiffs to proceed on a theory that every
time the defendant used their property for oil and gas
development a separate trespass occurred).
In response, the Government argues that: (1) the
Tribes’ trespass claims are not within the scope of Claim
II; (2) the seven converted leases are not void; (3) even if
the leases are void, the lessees were not trespassers; and
(4) the Government had no duty to remove the alleged
trespassers. For the reasons explained below, we agree
with the Tribes as to the first three points and conclude
that the Court of Federal Claims incorrectly determined
that the Tribes’ continuing trespass theory was inapplica-
ble. With respect to the fourth argument, we conclude
that this case must be remanded to the Court of Federal
Claims for further development of the record.
their breach of fiduciary duty claim on the Government’s
failure to remove trespassers from the seven parcels.
Assuming the Government had a duty to eject the tres-
passers, every time the Government failed to remove the
trespassers a new cause of action arose.
25 SHOSHONE INDIAN TRIBE v. US
We first address the Government’s argument that the
Tribes’ trespass claims are not within the scope of Claim
II. The Tribes’ original petitions asserted that the Gov-
ernment “failed to oversee, monitor, and administer . . .
oil and gas leases . . . .” J.A. 31 (Shoshone Indian Tribe’s
Petition). Twenty-six years after the Tribes filed their
petitions, the Court of Federal Claims ordered the Tribes
to provide a detailed statement of the issues to be re-
solved in Phase Two of this litigation. In response, the
Tribes described eleven claims related to Phase Two. The
Tribes stated that Claim II was based upon the Govern-
ment’s “Failure to Collect Amounts Due Under 1916 Act
Leases by Illegal Conversion to 1938 Act Leases.” Tribes’
Statement Identifying Oil and Gas Phase Two Issues at i,
Jan. 13, 2006, 1:79-cv-4582, ECF No. 20. The Tribes
specifically alleged that “[t]hese conversions were illegal,
costing the Tribes the difference in royalty that they could
have obtained if these leases had remained 1916 Act
leases.” Id. at 11.
Though the Government raised this same scope of
Claim II argument before the Court of Federal Claims,
the Court of Federal Claims addressed the merits of the
Tribes’ continuing trespass claim without discussing this
point. In doing so, the Court of Federal Claims implicitly
rejected the Government’s “scope” argument. Given that
court’s familiarity with this long-standing case, we defer
to its decision regarding the proper scope of Claim II,
absent clear error, which we do not discern. See Skinner
v. Switzer, 131 S. Ct. 1289, 1296 (2010) (“[U]nder the
Federal Rules of Civil Procedure, a complaint need not
pin plaintiff’s claim for relief to a precise legal theory.
Rule 8(a)(2) of the Federal Rules of Civil Procedure gen-
erally requires only a plausible ‘short and plain’ state-
ment of the plaintiff’s claim, not an exposition of his legal
argument.”) (citation omitted). We note, moreover, that
SHOSHONE INDIAN TRIBE v. US 26
the Tribes expressly asserted an “illegal conversion” of the
leases; a claim which the Court of Federal Claims could
reasonably conclude encompassed the concept of trespass.
Tribes’ Statement Identifying Oil and Gas Phase Two
Issues at i, Jan. 13, 2006, 1:79-cv-4582, ECF No. 20.
Turning to the Government’s second and third argu-
ments — i.e., that the leases are not void, or in the alter-
native that, even if the leases are void, the lessees are not
trespassers — we disagree with the Government on both
points. With respect to the validity of the leases, the
Government asserts that the seven leases are not void
because the Tribes authorized the leases knowing they
had not been competitively bid and that the failure to put
the leases out to bid was “harmless.” 10
There is no dispute that the 1938 Act requires leases
to be competitively bid. 25 U.S.C. § 396(b) (“Leases for
oil-and/or gas-mining purposes . . . shall be offered for sale
to the highest responsible qualified bidder, at public
action or on sealed bids . . . .”). All conveyances of Indian
lands must occur, moreover, in accordance with the Non-
intercourse Act, providing that “[n]o 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 convention entered into pursuant to the
Constitution.” 25 U.S.C. § 177. Such conveyances must,
therefore, be made in accordance with a federal treaty or
statute. See United States v. S. Pac. Transp. Co., 543
F.2d 676, 697 (9th Cir. 1976) (concluding that an agree-
10 The Government also argues that, even if the
1938 Act leases are void, its cancellation of the 1916 Act
leases was valid and noncompensable; this argument
merits little discussion. We reject it both because it is
improperly made in the procedural posture of this case
and is inconsistent with all facts in the record before us.
27 SHOSHONE INDIAN TRIBE v. US
ment between an Indian Tribe and Southern Pacific’s
predecessors did not grant an easement over unceded
lands because no treaty or statute authorized the convey-
ance); Sangre de Cristo Dev. Co. v. United States, 932 F.2d
891, 894–95 (10th Cir. 1991) (concluding that a lease with
an Indian Tribe was invalid because the Department of
the Interior did not comply with the requirements of the
statute authorizing the conveyance). Although there is no
Federal Circuit precedent addressing this matter, we
agree with the reasoning in Southern Pacific that the
statutory requirements regarding the transfer of Indian
lands may not be waived or ignored.
In Southern Pacific, the railroad operated a railway
through an Indian Reservation. 543 F.2d at 680. Al-
though the railway had been in place for ninety years and
the Indian Tribe made agreements with the railroad’s
predecessor authorizing the easements, the United States
Court of Appeals for the Ninth Circuit concluded that,
with respect to the lands the Tribe did not cede to the
United States, the easements were void. Id. at 699.
Reaching this conclusion, the court determined that,
although the Department of the Interior approved the
easements, because no statute or treaty authorized the
conveyances, the easements were void. Id. at 692–93,
697–99. As in Southern Pacific, here, the fact that both
the Department of the Interior and the Tribes approved
the leases is irrelevant. See also Sangre, 932 F.2d at 895
(“Because we read [the statute authorizing the convey-
ance] as requiring a valid approval from the Department
in order for the lease contract to have legal effect, the
invalid lease contract between Sangre and the Pueblo
vested no property interest in Sangre.”). What is relevant
is the fact that the leases were not entered into in compli-
ance with the requirements of the 1938 Act.
SHOSHONE INDIAN TRIBE v. US 28
While the Government argues that its failure to com-
petitively bid the seven leases was harmless, and, there-
fore, should not void the leases in question, the Supreme
Court has rejected a similar argument. See Smith v.
McCullough, 270 U.S. 456, 463–65 (1926) (holding a lease
void in its entirety because the Indian allottee leased a
portion of his federally granted allotment for a period of
more than ten years in violation of the provision granting
the allotment, which capped the length of such a lease at
ten years). Because the Nonintercourse Act requires a
federal statute or treaty to authorize conveyances be-
tween an Indian Tribe and a third party, failure to strictly
comply with the requirements of such a statute renders
any resulting conveyance void. See S. Pac. Transp. Co.,
543 F.2d at 697; Sangre, 932 F.2d at 894–95.
Anticipating this conclusion, the Government next ar-
gues that, even if the leases are void, the lessees would be
tenants at sufferance or tenants at will, i.e., the lessees
would have a license, and would, thus, not be trespassers.
In support of this argument, the Government relies on
principles of Landlord and Tennant law. This reliance is
misplaced.
In a closely analogous case, the Supreme Court sug-
gested that conveyances between an Indian Tribe and a
third party that are not in compliance with relevant
statutes create no implied rights. Bunch v. Cole, 263 U.S.
250, 253–54 (1923) (“The Supreme Court of the State . . .
construed and applied a statute of the state as in effect
requiring that the leases be regarded as creating a ten-
ancy at will . . . . [W]e think the conclusion is unavoidable
that [the state statute] gives force and effect to leases
which a valid enactment of Congress declares shall be of
no force or effect, and that in this respect [the state stat-
ute] must be held invalid . . . .”); see also McCullough, 270
U.S. at 465 (holding that, instead of allowing the lease to
29 SHOSHONE INDIAN TRIBE v. US
remain in effect for the ten year period authorized by
statute, the lease was completely void because “where an
allottee undertakes to negotiate a lease for a forbidden
term he enters a field in which he must be regarded as
without capacity or authority to negotiate or act and that
the resulting lease is void”). As the Ninth Circuit rea-
soned in Southern Pacific, “[t]o give effect to an invalid
attempt to convey an interest in tribal lands in violation
of the statute by holding that it creates a license would
undermine [the] purpose” of the Nonintercourse Act. 543
F.2d at 698. That purpose has been described by the
Supreme Court as “prevent[ing] unfair, improvident or
improper disposition by Indians of lands owned or pos-
sessed by them to other parties . . . .” Fed. Power Comm’n
v. Tuscarora Indian Nation, 362 U.S. 99, 119 (1960).
Treating these leases as creating a tenancy at sufferance
or at will would run counter to this very purpose.
Contrary to this guidance, the Court of Federal
Claims distinguished the cases cited by the Tribes on
grounds that the Government was not making use of the
Tribes’ land outside the scope of the seven leases. Sho-
shone III, 93 Fed. Cl. at 462 (“The oil and gas operators
who extracted minerals from the seven parcels in this
case were doing so under the authority of lease agree-
ments executed by the Tribes themselves.”). This fact is
not relevant, however. The leases are void, and because
granting an implied right to extract resources from the
parcels would run afoul of the Nonintercourse Act, the
Court of Federal Claims erred when it concluded that the
lessees were not trespassers. In light of the guidance
provided by the Supreme Court, we decline to treat the
leases as creating an implied right for the lessees to
extract oil and gas from the seven parcels.
In its final argument, the Government asserts that it
has no duty to remove the trespassers from the seven
SHOSHONE INDIAN TRIBE v. US 30
parcels. In other words, the Government argues that, if
the Court of Federal Claims possesses subject matter
jurisdiction over Claim II under the Indian Tucker Act, 28
U.S.C. § 1505, the Tribes do not have a cognizable claim
under the Act because the Government had no duty to
remove the trespassers.
To state a cognizable claim under the Indian Tucker
Act, “a Tribe must identify a substantive source of law
that establishes specific fiduciary or other duties, and
allege that the Government has failed faithfully to per-
form those duties.” United States v. Navajo Nation, 537
U.S. 488, 506 (2003) (“Navajo Nation I”) (citing United
States v. Mitchell, 463 U.S. 206, 216–17, 219 (1983)
(“Mitchell II”). Elaborating on this requirement, the
Court stated:
Although “the undisputed existence of a general
trust relationship between the United States and
the Indian people” can “reinforc[e]” the conclusion
that the relevant statute or regulation imposes fi-
duciary duties that relationship alone is insuffi-
cient to support jurisdiction under the Indian
Tucker Act. Instead, the analysis must train on
specific rights-creating or duty-imposing statutory
or regulatory prescriptions. Those prescriptions
need not, however, expressly provide for money
damages; the availability of such damages may be
inferred.
Navajo Nation I, 537 U.S. at 506 (quoting Mitchell II, 463
U.S. at 219). The Supreme Court recently reiterated that,
though the relationship between the Government and
Indian Tribes has been described as a trust, “Congress
may style its relations with the Indians a ‘trust’ without
assuming all the fiduciary duties of a private trustee,
creating a trust relationship that is ‘limited’ or ‘bare’
31 SHOSHONE INDIAN TRIBE v. US
compared to a trust relationship between private parties
at common law.” United States v. Jicarilla Apache Na-
tion, 131 S. Ct. 2313, 2323 (2011) (citing United States v.
Mitchell, 445 U.S. 535, 542 (1980) (“Mitchell I”) and
Mitchell II, 463 U.S. at 224).
Indian Tribes, moreover, cannot simply rely on com-
mon law duties imposed on a trustee; instead, tribes must
point to specific statutes and regulations that “establish
[the] fiduciary relationship and define the contours of the
United States’ fiduciary responsibilities.” Jicarilla, 131 S.
Ct. at 2325 (quoting Mitchell II, 463 U.S. at 224). Accord-
ingly, “[w]hen ‘the Tribe cannot identify a specific, appli-
cable, trust-creating statute or regulation that the
Government violated, . . . neither the Government’s
‘control’ over [Indian assets] nor common-law trust prin-
ciples matter.’ ” Jicarilla, 131 S. Ct. at 2325 (quoting
United States v. Navajo Nation, 129 S. Ct. 1547, 1558
(2009) (“Navajo Nation II”)). 11
In light of this requirement, the Tribes argue that
both the 1916 Act and the 1938 Act impose a specific duty
upon the Government to eject trespassers from Indian
lands, citing Cherokee Nation, 21 Cl. Ct. at 576, and
Oenga, 83 Fed. Cl. at 617–23. Neither of these cases,
however, clearly establishes that the 1916 Act or the 1938
Act creates such a duty. 12
11 Yet, if a specific, trust-creating statute is identi-
fied as imposing a duty, common law trust principles can
help inform the scope of liability encompassed within such
a duty. See Jicarilla, 131 S. Ct. at 2325; White Mountain
Apache Tribe v. United States, 537 U.S. 465, 477 (2003).
12 In Navajo Nation I, the Supreme Court did not
address the scope of the duties created by the 1938 Act
with respect to oil and gas leases. 537 U.S. at 507 n.11
(“[B]oth the [1938 Act] and its implementing regulations
address oil and gas leases in considerably more detail
SHOSHONE INDIAN TRIBE v. US 32
In Cherokee Nation, the court simply held that, for the
purposes of a motion to dismiss for a failure to state a
claim, the Cherokee Tribe had stated a claim. The Court
of Federal Claims concluded that “the language of plain-
tiff’s complaint and the general language of the statutes
in question,” including the 1938 Act, “might satisfy the
requirement[] of” specifically identifying statutes and
regulations that create the duty. 21 Cl. Ct. at 576. The
Court of Federal Claims explained that “[a]t trial . . .
plaintiffs must show with particularity the statutes and
regulations applicable to its claim for failure to remove
trespassers from the mineral estate and how defendant
failed to comply with those requirements.” Id. at 577.
This case does not, therefore, establish that the 1938 Act
creates a duty to remove trespassers from Indian lands.
Cherokee Nation, moreover, predates Navajo Nation I.
Navajo Nation I made clear that, to state a claim under
the Indian Tucker Act, an Indian tribe “must identify a
substantive source of law that establishes specific fiduci-
ary or other duties, and allege that the Government has
failed faithfully to perform those duties.” 537 U.S. at 490.
Accordingly, Cherokee Nation merely leaves open the
possibility that the Tribes could establish that the Gov-
ernment had a duty to eject trespassers pursuant to the
1938 Act.
The Tribes’ reliance on Oenga, similarly, does not es-
tablish that the Government had a duty to eject trespass-
ers from the seven parcels. The Tribes are correct that in
Oenga the Court of Federal Claims found that allotted
landholders had established that the Government had a
than coal leases. Whether the Secretary has fiduciary or
other obligations, enforceable in an action for money
damages, with respect to oil and gas leases is not before
us.”).
33 SHOSHONE INDIAN TRIBE v. US
duty to remove trespassers from their property. 83 Fed.
Cl. at 623. This conclusion was not based on the 1916 Act
or the 1938 Act, however. Instead, the Court of Federal
Claims concluded that 25 C.F.R. § 162.617 (2001) creates
a duty to take action against trespassers. Oenga, 83 Fed.
Cl. at 620–23. Here, however, the Tribes have not so far
relied on this regulation, which was implemented in 2001,
to establish that the Government had a duty to remove
the trespassers. Oenga does not hold that, on the basis of
the 1916 Act or the 1938 Act, the Government had a duty
to eject the trespassers from the seven parcels; it does not
consider those Acts or the duties arising thereunder.
While the Tribes have failed to prove that precedent
dictates that the Government has, and had, a continuing
duty to remove trespassers from the seven parcels under
the statutes and regulations referenced to date, the
Government has not convinced us that the contrary
proposition is true. And, given its incorrect conclusion
that no continuing trespass had been asserted as a matter
of law, the Court of Federal Claims has never addressed
this issue. 13
For these reasons, we remand this case to the Court of
Federal Claims so that it can, in the first instance, hear
argument on and determine whether the 1916 and 1938
Acts, or any other relevant statute or regulation create
such a duty.
CONCLUSION
We conclude that the Court of Federal Claims im-
properly determined that Claim II did not assert a con-
13 Indeed, the Government never disputed its obliga-
tion to remove trespassers, to the extent the lessees could
be characterized as such, until its final reply brief before
the Court of Federal Claims. When it did so, moreover, it
only did so briefly.
SHOSHONE INDIAN TRIBE v. US 34
tinuing trespass. Because Claim II asserts a continuing
trespass, the Tribes can seek damages for trespasses
which occurred within six years of the filing of this suit
and all trespasses that occurred after the filing of this
suit. Before this suit can move forward, however, the
Tribes must establish that the Government had a duty to
eject trespassers from the seven parcels. The Court of
Federal Claims’ judgment that Claim II is time-barred by
§ 2501 is, therefore, vacated; the case is remanded to the
Court of Federal Claims to determine whether the Gov-
ernment had a duty to remove trespassers from the seven
parcels.
VACATED AND REMANDED
COSTS
Each party shall bear its own costs.