Chemehuevi Indian Tribe v. United States ( 2020 )

CORRECTED
In the United States Court of Federal Claims
No. 16-492L
(Filed: September 29, 2020)
)
CHEMEHUEVI INDIAN TRIBE, ) RCFC 12(b)(1); RCFC 12(b)(6);
) Tucker Act jurisdiction; Indian
Plaintiff, ) Tucker Act; statute of limitations;
) 28 U.S.C. § 2501; claim accrual;
v. ) tolling; meaningful accounting;
) Indian Trust Accounting Statute;
THE UNITED STATES, ) American Indian Trust Fund
) Management Reform Act;
Defendant. ) usufructuary water rights.
)
Roger J. Marzulla, Marzulla Law, LLC, Washington, D.C., for Plaintiff. With him on the
briefs was Nancie G. Marzulla, Marzulla Law, LLC, Washington, D.C. Of counsel was
Mario Gonzalez, Gonzalez Law Office, Rapid City, SD.
Davene D. Walker, United States Department of Justice, Environment and Natural
Resources Division, Washington, D.C., for Defendant. With her on the briefs were
Prerak Shah, Deputy Assistant Attorney General, United States Department of Justice,
Environment and Natural Resources Division, and Peter Dykema, United States
Department of Justice, Environment and Natural Resources Division. Of counsel were
Dondrae Maiden and Karen Boyd, Office of the Solicitor, United States Department of the
Interior, Washington, D.C., and Thomas Kearns, Office of the Chief Counsel, United
States Department of the Treasury, Washington, D.C.
OPINION AND ORDER
SOLOMSON, Judge.
Around the time of the establishment of this Court’s predecessor tribunal — the
United States Court of Claims — Albert Bierstadt became a renowned painter of our
country’s storied westward expansion. Depicting sweeping landscapes on immense
canvases, Bierstadt “offered a war-torn nation a golden image of their own Promised
Land.”1 The paintings are visually arresting, but have been “criticized [as] overly
1 National Gallery of Art, Albert Bierstadt, https://www.nga.gov/collection/artist-
info.6707.html (last visited Sept. 22, 2020).
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romanticized.”2 Bierstadt’s paintings thus are a metaphor for the expansion of our
Great Nation itself: its rise was a marvel, but the idealized version of that history, as we
now recognize, does not present the full picture. Indeed, a heavy cost was imposed —
often unjustly — on the Native American Indian tribes that inhabited the continent long
before the formation of the United States.
Over the course of the next century and continuing into this one, Congress
sought — as our country always does — to remedy past wrongs, 3 a process in which
our Court has played no small part, dating back to the Indian Claims Commission Act, 4
and thereafter pursuant to the Indian Tucker Act, 28 U.S.C. § 1505. The latter statute
serves as the basis for this Court’s jurisdiction over “any claim against the United States
accruing after August 13, 1946, in favor of any [American Indian] tribe . . . whenever
such claim is one arising under the Constitution, laws or treaties of the United States, or
Executive orders of the President, or is one which otherwise would be cognizable in the
Court of Federal Claims if the claimant were not an Indian tribe, band or group.” Id.
In exercising such jurisdiction, however, Congress has empowered us to
adjudicate monetary claims — and enter judgment against the United States — only
where consistent with the laws it has duly enacted, binding precedent, this Court’s
Rules, and with the recent pronouncement of the United States Supreme Court firmly in
mind: “‘[C]ourts are essentially passive instruments of government’” that “‘do not, or
should not, sally forth each day looking for wrongs to right.’” United States v. Sineneng-
Smith, 140 S. Ct. 1575, 1579 (2020) (quoting United States v. Samuels, 808 F.2d 1298, 1301
(8th Cir. 1987) (Arnold, J., concurring in denial of reh’g en banc)).
Accordingly, but with abundant sympathy for the Plaintiff — the Chemehuevi
Indian Tribe (the “Chemehuevi” or the “Tribe”) — this Court is compelled to grant the
government’s motion to dismiss the Tribe’s Second Amended Complaint (the
“Complaint”). At bottom, the Complaint is long on history and legal conclusions but
almost entirely devoid of operative facts. And although the history is often troubling,
to say the least, the Tribe’s claims are barred by the statute of limitations, erroneous as a
matter of law, so equivocal as to fail to state a claim, or plainly outside of this Court’s
jurisdiction. Indeed, even after more than two years of exhaustive jurisdictional
discovery, the Tribe’s Complaint is a jumbled puzzle that once properly arranged and
2Google Arts & Culture, Who was Albert Bierstadt?, https://artsandculture.google.com/theme/
who-was-albert-bierstadt/4QIyO2vqqR5LKg?hl=en (last visited Sept. 22, 2020).
3 “Congress recognized its duty to clean the Augean stables of past generations and correct, in
part, wrongs accorded the Indians by giving them a fair day in court to seek redress of their
legitimate grievances.” Klamath & Modoc Tribes & Yahooskin Band of Snake Indians v. United
States, 174 Ct. Cl. 483, 487 (1966).
4Indian Claims Commission Act, Pub. L. No. 79-726, 60 Stat. 1049 (Aug. 13, 1946) [hereinafter
“the ICCA”].
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viewed even in the light most favorable to the Tribe, reveals that it has backed itself into
a corner from which it cannot proceed further.
I. Background
A. Factual Background5
Prior to the westward migration of American settlers, the Chemehuevi “used and
occupied the Mojave Desert’s mountains and canyons and the Colorado River
shoreline.” ECF No. 45 [hereinafter “Compl.”] ¶ 7. By the mid-nineteenth century, the
Chemehuevi “were living with the Mojave Indians near the present-day Fort Mojave
Indian Reservation.” Id. ¶ 8. In 1865, the Chemehuevi and the Mojave Indians moved
“to the newly established Colorado River Indian Reservation in Arizona.” Id. In 1875,
however, many Chemehuevi “moved back to the Chemehuevi Valley.” Id. ¶ 10. The
Chemehuevi subsequently requested that the Federal Government set aside land for the
Tribe in the Chemehuevi Valley. Id.
On February 2, 1907, the Secretary of the Interior “withdrew certain lands for the
Chemehuevi on the California side of the Colorado River with the Colorado River as the
eastern boundary.” Compl. ¶ 11. The Secretary’s order thus “established the 36,000-
acre Chemehuevi Indian Reservation.” Id.
On February 10, 1933, the Department of the Interior's Bureau of Reclamation
entered into a cooperative agreement with the Metropolitan Water District (“MWD”) of
Southern California to construct and operate a dam on the Colorado River. Compl.
¶ 14. On August 25, 1934, pursuant to the terms of the agreement, MWD advanced
5 The government’s motion to dismiss challenges the factual basis for the Court’s subject-matter
jurisdiction (i.e., regarding the statute of limitations). Accordingly, for the purposes of resolving
that motion, “the allegations in the complaint are not controlling.” Cedars-Sinai Med. Ctr. v.
Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993) (citing KVOS, Inc. v. Associated Press, 299 U.S. 269,
277–79 (1936)). Rather, the Court has accepted as true “only uncontroverted factual allegations”
and has made factual findings regarding the “controverted jurisdictional allegations.” Id.
at 1583–84. The government also moves to dismiss the Complaint for failure to state a claim.
For the purposes of resolving that motion, this Court assumes, as it must, that the factual
allegations contained in the Tribe’s Complaint are true. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“[F]or the purposes of a motion to dismiss we must take all of the factual allegations in
the complaint as true.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court
also has considered “matters incorporated by reference or integral to the claim, items subject to
judicial notice, [and] matters of public record,” which the Court properly may consider without
converting the motion to dismiss into a motion for summary judgment. Dimare Fresh, Inc. v.
United States, 808 F.3d 1301, 1306 (Fed. Cir. 2015) (quoting 5B Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1357 (3d ed. 2004)). Nonetheless, the Court has derived
this factual background section from the allegations in the Complaint.
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funds to the Bureau of Reclamation, which then entered into a contract with a company
to construct the Parker Dam on the Colorado River. Id. ¶ 15.
Approximately five years into construction of the Parker Dam, on December 15,
1939, the Department of the Interior’s Solicitor concluded that the Tribe was entitled to
compensation for damage to certain tribal lands that the Parker Dam would eventually
flood. Compl. ¶ 21. In the Act of July 8, 1940, Congress authorized the taking of the
Tribe’s land “in aid of construction of the Parker Dam Project” and provided that “[t]he
Secretary shall determine the amount of money to be paid to the [Tribe] as just and
equitable compensation.” Id. ¶ 23. Further, Congress noted that “[s]uch amount of
money shall be paid to the Secretary by the [MWD], in accordance with the terms of the
contract made and entered into on February 10, 1933 between the Interior, and the
[MWD]” and that the Secretary then shall deposit such funds “in the Treasury of the
United States” for the benefit of the Tribe. Id. ¶ 23.
On October 9, 1940, the Acting Secretary of the Department of the Interior
“approved payment to the Chemehuevi[] of $108,104.95” as just compensation for the
land taken as a result of the Parker Dam Project. Compl. ¶ 26. Subsequently, MWD
paid the government $108,104.95, and the government placed the funds in an account in
the Treasury of the United States. Id. ¶ 30. The Tribe alleges that the government
deposited the funds in account number “14X7344” and that the government
subsequently breached its fiduciary duties to the Tribe with respect to those funds. Id.
¶¶ 33, 73(a)–(q).6
6 In Paragraphs 73(a) through (q), the Tribe — without factual support — generally alleges that
the government breached its fiduciary duties with respect to all the funds and assets that the
government has held in trust for the Chemehuevi. In particular, the Tribe claims that the
government (a) “[f]ail[ed] to invest, or under-invest[ed], funds,” (b) “[f]ail[ed] to properly
manage and/or invest congressionally appropriated funds, and other trust monies, in a manner
that obtains the maximum return,” (c) “[f]ail[ed] to obtain the highest available rates of interest
and earnings,” (d) “[f]ail[ed] to deposit and/or properly invest trust monies in interest bearing
accounts,” (e) “[f]ail[ed] to obtain the highest and best price for the use and/or taking of trust
land and assets,” (f) “[f]ail[ed] to charge, or collect rents, royalties or other proceeds,”
(g) “[f]ail[ed] to administer and manage trust lands, funds and assets with the greatest skill and
care,” (h) “[f]ail[ed] to maximize the productive use of trust land and natural resources,”
(i) “[f]ail[ed] to provide the consideration it agreed to provide, or was required to provide,”
(j) “[f]ail[ed] to charge, enforce and collect . . . penalties,” (k) “[f]ail[ed] to require lessors and
others users of trust assets to procure bonds, insurance or surety arrangements,” (l) “fail[ed] to
pay the Tribe the interest, or compound interest, on certain liquidated amounts and
judgments,” (m) “[e]nter[ed] into or authoriz[ed] below market value contracts, leases, permits,
rights- of-way and other similar arrangements,” (n) “convey[ed] or allow[ed] the conveyance of
trust assets and/or resources to third parties without adequate compensation and protections,”
(o) “[e]ngag[ed] in self-dealing,” (p) “[a]llow[ed] government agencies and/or third parties to
use, remove, encumber, commit waste, damage, spoil and otherwise take possession of the
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On August 11, 1951, the Tribe filed a petition with the Indian Claims
Commission (“ICC”), which the ICC designated as Docket No. 351, concerning a
separate taking, unrelated to the Parker Dam Project. Compl. ¶ 40. On January 11,
1951, the ICC separated Docket No. 351 into two claims: (1) “a claim for a taking of
Chemehuevi aboriginal title land in the present states of California, Arizona and
Nevada” and (2) “a claim for the accounting and other relief.” Id. ¶ 41.
On July 6, 1964, the Tribe’s attorneys in the ICC matters submitted a settlement
offer to the government. Compl. ¶ 45. On December 17, 1964, the parties entered into a
“Final Stipulation For Entry Of Final Judgment,” in which “Dockets 351 and 351-A were
settled, after deductions, credits and offsets, for a net judgment of $996,834.81.” Id. ¶ 47.
By the Act of June 30, 1965, Congress appropriated the requisite funds to pay the
judgment to the Tribe, and, by the Act of September 25, 1970, Congress “authorized for
distribution [the ICC judgment funds] in per capita payments” to Tribe members. Id.
¶ 48. The Tribe is unsure whether the government distributed all of the funds in per
capita payments to the Tribe’s members, but the Tribe now alleges that it is entitled to
claim any undistributed payments if such payments exist. Id. ¶ 50.
On March 9, 1964, the United States Supreme Court issued a decree in Arizona v.
California, 376 U.S. 340 (1964) (“1964 Arizona Decree”). Compl. ¶ 103. The 1964 Arizona
Decree explained that the Tribe had certain water rights in the Colorado River. Id. In
particular, the 1964 Arizona Decree specified that the Tribe was entitled to “annual
quantities not to exceed (i) 11,340 acre-feet of diversions from the mainstream or (ii) the
quantity of mainstream water necessary to supply the consumptive use required for
irrigation of 1,900 acres and for the satisfaction of related uses, whichever of (i) or (ii) is
less, with a priority date of February 2, 1907.” Id. The Tribe alleges that the
Chemehuevi have used “only a small portion of the Tribe’s annual allocation of water
from the Colorado River” since the Supreme Court issued the 1964 Arizona Decree and
that the government “has made that water available to other junior users, such as the
MWD, without any compensation to the Tribe” and in breach of the fiduciary duties the
government owes the Tribe. Id. ¶¶ 107–08.
In 1970, the Tribe adopted a federally recognized constitution and “was
reinstated under the Indian Reorganization Act of 1934.” Compl. ¶¶ 30, 85.
On November 1, 1974, the Secretary of the Interior issued an order, returning to
the Tribe twenty-one miles of shoreline along the Colorado River, which the
government had previously taken from the Tribe — and for which the Tribe was
Tribe’s trust lands and assets,” and (q) “never provided the Chemehuevi Tribe with a complete,
meaningful accounting of its trust funds and assets.” Compl. ¶¶ 73(a)–(q). Those are all
conclusory legal assertions, and the Tribe’s Complaint does not contain a single factual
allegation to support any of the legal conclusions in the laundry list of breaches that the
government purportedly committed.
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compensated — in connection with the Parker Dam Project. Compl. ¶ 125. The order
purported to “correct[] the designation by Secretary Ickes of November 25, 1941, that
certain lands of the Chemehuevi Indian Reservation should be taken for use in the
construction of Parker Dam pursuant to the Act of July 8, 1940.” Id. The Tribe
implicitly recognizes that the government previously had compensated the
Chemehuevi for this taking as a permanent one. Id. ¶ 128. Nevertheless, the Tribe
alleges that the government owes the Tribe yet additional compensation for the twenty-
one miles of shoreline that the government returned to the Tribe. Id.
On October 25, 1994, Congress enacted the American Indian Trust Fund
Management Reform Act of 1994 (“ITFMRA”). Pub. L. No. 103–412, 108 Stat 4239 (Oct.
25, 1994), codified at 25 U.S.C. § 4001 et seq. The ITFMRA requires the Secretary of the
Interior to provide timely and accurate reconciliations of tribal trust funds, audit all
tribal trust funds annually, and provide periodic statements of performance for the
tribal trust fund assets beginning in 1995 on a prospective basis. Id. The government
contracted with Arthur Andersen LLP (“Arthur Andersen”) to audit and reconcile the
Tribe’s trust fund accounts for the time period from July 1, 1972 to September 30, 1992.
On March 1, 1996, the Tribe received its report (the “1996 Arthur Andersen Report”),
along with approximately 6,000 images, which included “about 400 Deposit Tickets,
about 60 Vouchers and Schedules of Payment, about 40 Reconciliation Checklists, about
15 Notices for Missing Deposit Tickets, two decisions of the Indian Claims Commission,
a cover letter from the Bureau of Indian Affairs [(“BIA”)], a report summary [], a report
for fiscal years 1993-1995, correspondence regarding the Coopers & Lybrand closeout
letter, and miscellaneous documents concerning the preparation of the report.” ECF
No. 91 [hereinafter “Pl. Supp. Br.”] at 1 (internal citations omitted). The Tribe alleges
that the 1996 Arthur Andersen Report was not a meaningful accounting and that it
“severely limited the Chemehuevi Tribe’s ability to determine the full extent of its losses
as a result of the Federal Government’s breaches of its fiduciary duties.” Compl. ¶ 143.
The Tribe’s Complaint does not contain any factual allegations that support any
of the Tribe’s claims and which occurred between March 1, 1996, and the filing of the
Tribe’s complaint in this Court on April 20, 2016.
B. Procedural History
On April 20, 2016, the Tribe filed its original complaint in this Court. ECF No. 1.
The Tribe’s original complaint did not contain any specifically enumerated counts but
sought “monetary damages against the United States . . . for breaches and continuing
breaches of the United States’ constitutional, statutory and common law fiduciary
duties owed to [the] Tribe.” Id. at 1. In particular, the Tribe’s original complaint alleged
fiduciary breaches by the United States in connection with the Tribe’s Parker Dam
compensation funds, ICC judgment funds, and other unspecified “funds currently or
previously held in trust for the Tribe.” Id. at 5–9. The Tribe sought “monetary damages
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in an amount to be determined,” an “accounting in aid of jurisdiction to render the
monetary judgment,” and attorney fees. Id. at 20.
On August 19, 2016, the government moved to dismiss the Tribe’s original
complaint pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal
Claims (“RCFC”). ECF No. 7. The government primarily asserted that the statute of
limitations, 28 U.S.C. § 2501, barred the Tribe’s claims. Id. at 1. On October 19, 2016, the
Tribe filed its response in opposition to the government’s motion to dismiss. ECF
No. 10. On November 22, 2016, the government filed its reply brief. ECF No. 13.
On February 23, 2017, then-Chief Judge Campbell-Smith issued an order denying
the government’s motion to dismiss. ECF No. 14. The decision explained that the
Tribe’s original complaint “include[d] a wide range of allegations,” which were “so
expansive . . . that the court . . . had a difficult time enumerating the specific claims
under which plaintiff seeks relief.” Id. at 4. As a result, the Court could not
“confidently determine which of plaintiff’s claims might survive defendant’s motion to
dismiss, and which might not.” Id. Rather than dismiss the Tribe’s original complaint,
however, the Court determined that a “middle path . . . between . . . outright
dismissal . . . and proceeding to full discovery” was appropriate. Id. The Court directed
the Tribe “to file an amended complaint that includes specifically enumerated claims”
which “clearly identify the legal basis for the claim and the relevant allegations,” paying
“special attention to identifying relevant dates, given the complexity of the statute of
limitations issues.” Id. The Court also believed that “limited jurisdictional discovery”
might be necessary and ordered the “deadline for answering or otherwise responding
to the amended complaint . . . stayed” so that the parties could confer regarding
whether such discovery was necessary. Id. On April 3, 2017, the Tribe filed its first
amended complaint. ECF No. 15.
The “limited jurisdictional discovery” ordered by this Court lasted more than
two years, however, and included a half-dozen motions for extensions of time. ECF
No. 23; ECF No. 27 (noting that the government had “transmitted 369 documents (4,191
images) to Plaintiff’s counsel,” with plans to produce additional documents “every
week or every other week”); ECF No. 29 (government representing that it had
“produced 3,139 non-privileged documents (10,568 images or pages) to Plaintiff”); ECF
No. 34 (Tribe explaining that the government had completed its production —
producing “well over 12000 images” — approximately five weeks prior to the Tribe’s
filing the motion); ECF No. 39 (Tribe explaining that the “government ha[d] produced
11,401 non-privileged documents (48,774 images or pages)”); ECF No. 41; ECF No. 43
(noting that Tribe needed “additional time to consider the [additional] 1,594 documents
(6,975 images) the Defendant produced to Plaintiff”).
On April 15, 2019, the Tribe filed its second amended complaint in this Court.
ECF No. 45 (the “Complaint,” as defined supra). On June 24, 2019, the government filed
its motion to dismiss the Tribe’s Complaint pursuant to RCFC 12(b)(1) and RCFC
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12(b)(6). ECF No. 56-1 [hereinafter “Def. Mot.”]. On August 12, 2019, the Tribe filed its
response in opposition to the government’s motion to dismiss. ECF No. 61 [hereinafter
“Pl. Resp.”]. On September 23, 2019, the government filed its reply to the Tribe’s
response to the motion to dismiss. ECF No. 64 [hereinafter “Def. Rep.”].
On October 7, 2019, the Tribe filed a motion for leave to file a sur-reply in
opposition to the government’s motion to dismiss. ECF No. 67. On October 9, 2019, the
government filed a response opposing the Tribe’s motion for leave to file a sur-reply.
ECF No. 68. On October 22, 2019, the Court granted the Tribe’s motion for leave to file
a sur-reply and ordered the Tribe to file its sur-reply by October 29, 2019. ECF No. 69.
On October 25, 2019, the Tribe filed its sur-reply in opposition to the government’s
motion to dismiss. ECF No. 70 [hereinafter “Pl. Sur.”]. On November 8, 2019, the
government filed its supplemental response to the Tribe’s sur-reply. ECF No. 71
[hereinafter “Def. Sur.”].
On February 5, 2020, this case was reassigned to the undersigned Judge. ECF
No. 72. At that point, the government had produced 17,298 documents (70,430 images)
during a Court-approved “limited jurisdictional discovery” period; the Tribe had filed
its third iteration of its complaint; and the parties had filed five separate briefings in
support of their respective positions on the government’s most recent motion to dismiss
the Complaint.
On March 11, 2020, the Court held a status conference to discuss the case.
Following the March 11, 2020, status conference, the Court ordered the parties to file a
summary table “to assist the Court in understanding the Tribe’s” Complaint. ECF
No. 76 at 3. On April 1, 2020, the government filed the summary table on behalf of both
parties. ECF No. 79 [hereinafter “Joint Sum. Table”]. On April 14, 2020, the Court held
a status conference to discuss the parties’ summary table and to schedule oral argument
on the government’s motion to dismiss the Tribe’s Complaint.
On May 11, 2020, the Court ordered the Tribe “to file a status report . . .
indicating: (1) the electronic filing docket entry that contains the full Arthur Andersen
Report referenced in the Complaint; and (2) where Plaintiff’s brief in response to the
government’s motion to dismiss . . . addresses the government’s argument regarding
the basis for the Arthur Andersen Report.” ECF No. 85 at 2. The Court explained that
the “Arthur Andersen Report is integral to both the Plaintiff’s Complaint and to this
Court’s resolution of the government’s motion to dismiss.” Id. at 1–2. On May 12, 2020,
the Tribe filed a status report, explaining that the “Tribe’s Arthur Andersen report ha[d]
not been filed in this case, and the Tribe ha[d] been unable at this time to locate the
original 1996 document.” ECF No. 86 at 1. The status report further explained,
however, that the government had provided the Tribe’s counsel with a report —
although perhaps not the entire 1996 Arthur Andersen Report — which the Tribe
attached as an exhibit to its status report. Id. at 1 n.2.
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On May 13, 2020, the Court heard oral argument on the government’s motion to
dismiss the Tribe’s Complaint. See ECF No. 89 [hereinafter “Tr.”]. On May 14, 2020, the
Court ordered the “parties to file supplemental briefing (1) describing the additional
documents that the government provided to the Plaintiff as part of the Arthur Andersen
Report, (2) identifying when the government first provided those documents to the
Plaintiff, and (3) explaining the significance of those documents with respect to whether
they collectively constitute a ‘meaningful accounting’ as the U.S. Court of Appeals for
the Federal Circuit used that phrase in Shoshone Indian Tribe v. United States, 364 F.3d
1339 (Fed. Cir. 2004).” ECF No. 87 at 2. The Court also ordered the parties “to identify
any decision of the U.S. Supreme Court, the Federal Circuit, or this Court, holding that:
both (1) the government has (or had) an independent fiduciary duty to provide Plaintiff
with an accurate accounting of its trust accounts; and (2) that duty is itself money-
mandating, such that the government’s failure to provide an accurate or complete
accounting alone may constitute a compensable breach of the government’s fiduciary
duty, which this Court has jurisdiction to resolve.” Id. (emphasis in original). On May
28, 2020, the government filed its supplemental brief, ECF No. 90 [hereinafter “Def.
Supp. Br.”], and on June 4, 2020, the Tribe filed its supplemental brief. Pl. Supp. Br.
C. The Tribe’s Complaint And The Government’s Motion To Dismiss
The Tribe’s Complaint contains five specific counts: (1) Count I is a “claim for
accounting and damages for mismanagement of Parker Dam compensation monies,”
Compl. ¶¶ 74–91 (Count I) (capitalization altered); (2) Count II is a “claim for
accounting and damages for ICC judgment funds for Dockets 351 and 351-A,” Compl.
¶¶ 92–97 (Count II) (capitalization altered); (3) Count III is a claim for “uncompensated
taking and mismanagement of tribal water rights,” Compl. ¶¶ 98–123 (Count III)
(capitalization altered); (4) Count IV is a “claim for accounting and damages for
mismanagement of shoreline and suspense accounts,” Compl. ¶¶ 124–37 (Count IV)
(capitalization altered); and (5) Count V is a claim that the “199[6] Arthur Andersen
Report failed to meet the government’s statutory obligation to provide the Chemehuevi
Tribe with an accounting of the Tribe’s trust funds.” Compl. ¶¶ 138–45 (Count V)
(capitalization altered).7
7 Then-Chief Judge Campbell-Smith’s original decision, denying the government’s motion to
dismiss, explained that the Tribe’s original complaint “include[d] a wide range of allegations,”
which were “so expansive . . . that the court . . . had a difficult time enumerating the specific
claims under which plaintiff seeks relief.” ECF No. 14 at 4. While the Tribe’s Complaint now
contains five enumerated counts, the range of allegations is still so expansive and difficult to
follow that the Court has had trouble understanding the particular factual and legal bases for
the Tribe’s various claims and the distinctions between them. See ECF No. 76 (ordering
summary table). To the extent that this opinion does not specifically address a claim that the
Tribe has included within its specifically enumerated counts, or elsewhere in the Complaint, the
Court has considered the entirety of the Complaint and dismisses the Tribe’s claims either for
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Pending before the Court is the government’s motion to dismiss the Complaint
in its entirety. In particular, the government asserts that the statute of limitations,
28 U.S.C. § 2501, bars each of the counts and that the Tribe has failed to state a claim in
Counts II–IV on which the Court may grant relief. See Def. Mot. at 13–21, 32–38.
II. Standard Of Review
The government moves to dismiss the Complaint pursuant to RCFC 12(b)(1) and
RCFC 12(b)(6) for, respectively, lack of jurisdiction and failure to state a claim upon
which relief can be granted as a matter of law.
There are two categories of jurisdictional attacks that a defendant in any court
may assert: facial and factual.
A facial jurisdictional attack “challenges whether the court’s subject-matter
jurisdiction was properly pleaded.” Steven S. Gensler & Lumen N. Mulligan, 1 Federal
Rules of Civil Procedure, Rules and Commentary, Rule 12 (Feb. 2020 Update) [hereinafter
“Federal Rules & Commentary”]; see also Crow Creek Sioux Tribe v. United States, 900 F.3d
1350, 1355 (Fed. Cir. 2018) (addressing “facial challenge”). A facial attack itself can take
two forms. A defendant either can “assert that the plaintiff has failed to plead
jurisdiction as required by Rule 8(a)(1)” or “assert that, while properly pleaded per Rule
8(a)(1), the allegations — even when assumed to be true — fail to establish jurisdiction
under the relevant statute or constitutional provision.” Federal Rules & Commentary.
Regarding facial attacks, the Federal Circuit has explained:
[W]e join the majority of our sister circuits in holding that the
Supreme Court’s “plausibility” requirement for facial
challenges to claims under Rule 12(b)(6), as set out in
[Twombly, 550 U.S. at 570], and [Iqbal, 556 U.S. at 678], also
applies to facial challenges to subject-matter jurisdiction
under Rule 12(b)(1).
Crow Creek Sioux Tribe, 900 F.3d at 1354–55. Thus, “[t]hreadbare recitals of [claim]
elements . . ., supported by mere conclusory statements, do not suffice” to confer
jurisdiction. Id. (quoting Iqbal, 556 U.S. at 678).
A factual attack, on the other hand, “challenges the truth of the jurisdictional
facts alleged in the complaint.” Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746,
747 (Fed. Cir. 1988). Once the government lodges a factual attack against a complaint
that purports to invoke the Court’s subject-matter jurisdiction, the burden shifts to the
plaintiff to “establish[] subject matter jurisdiction by a preponderance of the evidence.”
lack of subject-matter jurisdiction based on the statute of limitations or for failure to state a
claim upon which relief can be granted, pursuant to RCFC 12(b)(1) and 12(b)(6), respectively.
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Id. at 748. The Court “may consider relevant evidence in order to resolve the factual
dispute” but must afford the plaintiff an “opportunity to be heard before dismissal is
ordered[.]” Id. at 747–48.
When considering a facial jurisdictional attack or a motion to dismiss a complaint
for failure to state a claim upon which relief may be granted pursuant to RCFC 12(b)(6),
the Court accepts as true all factual allegations — but not legal conclusions — contained
in a plaintiff’s complaint. See Twombly, 550 U.S. at 555. For a plaintiff’s complaint to
survive a motion to dismiss, the Court — viewing the facts in the light most favorable to
the plaintiff — must conclude that “the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[O]f course, a well-
pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the
facts alleged] is improbable, and that a recovery is very remote and unlikely.” Twombly,
550 U.S. at 556 (citations and internal quotation marks omitted); Chapman Law Firm Co.
v. Greenleaf Constr. Co., 490 F.3d 934, 938 (Fed. Cir. 2007) (noting that the Court’s duty is
not to determine “whether the claimant will ultimately prevail” when ruling on a
12(b)(6) motion to dismiss). On the other hand, a plaintiff may not simply plead “labels
and conclusions” or “a formulaic recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555 (citations omitted). 8
To defeat a motion to dismiss based on the statute of limitations, a plaintiff must
establish “jurisdictional timeliness.” Alder Terrace, Inc. v. United States, 161 F.3d 1372,
1377 (Fed. Cir. 1998) (citing McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S.
178, 189 (1936)). A plaintiff cannot rely merely on the allegations in the complaint if the
factual basis for jurisdiction is challenged. Reynolds, 846 F.2d at 747. “Because plaintiff
8“Pursuant to RCFC 12(c), the trial court may convert a motion to dismiss into a motion for
summary judgment under RCFC 56 if it relies on evidence outside the pleadings.” Brubaker
Amusement Co. v. United States, 304 F.3d 1349, 1355 (Fed. Cir. 2002). “Whether to accept extra-
pleading matter on a motion for judgment on the pleadings and to treat the motion as one for
summary judgment is within the trial court’s discretion.” Easter v. United States, 575 F.3d 1332,
1335 (Fed. Cir. 2009) (discussing RCFC 12(b)(6)). To assess the merits of the government’s
motion to dismiss pursuant to RCFC 12(b)(6), the Court has considered “matters incorporated
by reference or integral to the claim, items subject to judicial notice, [and] matters of public
record,” which the Court properly may consider without converting the motion to dismiss into
a motion for summary judgment. Dimare Fresh, Inc., 808 F.3d at 1306 (quoting 5B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004)); see supra note 5.
To assess the merits of the government’s motion to dismiss pursuant to RCFC 12(b)(1), the
Court has considered matters extrinsic to the pleadings. The Court, however, has not converted
the motion to dismiss into a motion for summary judgment. “In resolving . . . disputed
predicate jurisdictional facts, ‘a court is not restricted to the face of the pleadings, but may
review evidence extrinsic to the pleadings . . . .’” Shoshone Indian Tribe of Wind River Rsrv., Wyo.
v. United States, 672 F.3d 1021, 1030 (Fed. Cir. 2012) (quoting Cedars-Sinai, 11 F.3d at 1584).
Page 11 of 51
bears the burden of proof by a preponderance of the evidence, it must offer relevant,
competent evidence to show that it filed suit within six years of the accrual of its
claims.” Osage Nation v. United States, 57 Fed. Cl. 392, 396 (2003) (citing 28 U.S.C. § 2501;
Reynolds, 846 F.2d at 748; Martinez v. United States, 48 Fed. Cl. 851, 857 (2001)).
III. The Indian Tucker Act And Breach Of Fiduciary Duty Claims — General
Background
In 1855, Congress established the United States Court of Claims to adjudicate
private claims against the United States government. While some Indian tribes filed
claims in the newly created court, “[n]one had come to judgment by 1863 when
Congress passed an amendatory law to the Court’s enabling act of 1855 which, among
other things, expressly excluded the Indian from the new court.” Indian Claims
Commission, Final Report 1 (Sept. 1, 1978), available at https://narf.org/nill/
documents/icc_final_report.pdf [hereinafter “Final Report”]; see Act of March 3, 1863,
Pub. L. No. 37-92, §9, 12 Stat. 765 (1863). In 1881, Congress finally permitted Indian
tribes to bring suit in the Court of Claims but “only by the process of a special
jurisdictional act of Congress to open this Court to the petitioning tribes.” Final Report
at 2 (emphasis in original). Even so, “[t]he process of securing a jurisdictional act from
Congress to grant access to the Court of Claims was an arduous one,” and, by 1946,
only twenty-nine out of two hundred claims that Indian Tribes had filed had received
awards. Id. at 2–3. That year was a turning point for Indian tribes with Congress
passing the ICCA, which also created the Indian Tucker Act.
The following section briefly summarizes the history of the ICCA and the Indian
Tucker Act, provides a broad overview the breach of fiduciary duty claims that Indian
Tribes now often bring before this Court, and discusses applicable statute of limitations
provisions.
A. The Indian Claims Commission Act And Indian Tucker Act
“The United States, as sovereign, is immune from suit save as it consents to be
sued . . ., and the terms of its consent to be sued in any court define that court’s
jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941).
“Until the passage of the Indian Claims Commission Act in 1946 [], tribes could not
litigate claims against the United States without specific Congressional permission.”
Shoshone Indian Tribe, 364 F.3d at 1343. As noted supra, Congress, in 1946, passed the
ICCA, which provided:
The Commission shall receive claims for a period of five years
after [August 13, 1946], and no claim existing before that date
but not presented within such period may thereafter be
submitted to any court or administrative agency for
Page 12 of 51
consideration, nor will such claim thereafter be entertained by
Congress.
ICCA § 12. The ICCA thus “provided a five-year window of time during which tribes
could submit to the Indian Claims Commission all of their claims against the
Government that accrued before August 13, 1946.” Shoshone Indian Tribe, 364 F.3d at
1343. “Indian claims existing on August 13, 1946 had to be filed by August 13, 1951 or
be barred forever.” W. Shoshone Nat. Council v. United States, 279 F. App’x 980, 982 (Fed.
Cir. 2008). “The ‘chief purpose of the [ICCA was] to dispose of the Indian claims
problem with finality.’” United States v. Dann, 470 U.S. 39, 45 (1985) (quoting H.R. Rep.
No. 1466, 79th Cong., 1st Sess., 10 (1945)).
The ICCA further provided that the Court of Claims, this Court’s predecessor,
would have jurisdiction to decide “any [Indian] claim against the United States accruing
after the date of the approval of this Act.” ICCA § 24. Section 24 of the ICCA, codified
at 28 U.S.C. § 1505, is known as the Indian Tucker Act. 9 That statute, as amended, now
provides:
The United States Court of Federal Claims shall have
jurisdiction of any claim against the United States accruing
after August 13, 1946, in favor of any tribe, band, or other
identifiable group of American Indians residing within the
territorial limits of the United States or Alaska whenever such
claim is one arising under the Constitution, laws or treaties of
the United States, or Executive orders of the President, or is
one which 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. “By enacting this statute, Congress plainly intended to give tribal
claimants the same access to the Court of Claims provided to individuals by the Tucker
Act.” United States v. Mitchell, 445 U.S. 535, 539 (1980) (“Mitchell I”). “It follows that 28
U.S.C. § 1505 no more confers a substantive right against the United States to recover
money damages than does 28 U.S.C. § 1491.” Id. at 540. “To state a claim cognizable
under the Indian Tucker Act, Mitchell I and Mitchell II thus instruct, 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 perform those duties.” United
States v. Navajo Nation, 537 U.S. 488, 506 (2003) (“Navajo I”). That allegation, in turn,
must meet the pleading standards as set forth in relevant United States Supreme Court
9See United States v. Mitchell, 463 U.S. 206, 211–12 (1983) (“Mitchell II”) (noting that the Tucker
Act’s “counterpart for claims brought by Indian tribes . . . [is] known as the Indian Tucker Act”).
Page 13 of 51
and United States Court of Appeals for the Federal Circuit precedent. See Iqbal, 556 U.S.
at 678; Twombly, 550 U.S. at 557.
B. Breach Of Fiduciary Duty Claims
At common law, a trust “is a fiduciary relationship with respect to property,
arising from a manifestation of intention to create that relationship and subjecting the
person who holds title to the property to duties to deal with it for the benefit of charity
or for one or more persons, at least one of whom is not the sole trustee.” Restatement
(Third) of Trusts § 2 (2003). Based upon the aggregation of the various statutes and
regulations implicated in Mitchell II, the Supreme Court held that the government had
fiduciary obligations to Indians based upon the government’s “full responsibility” for
the management of Indian resources. Mitchell II, 463 U.S. at 224; see United States v.
White Mountain Apache Tribe, 537 U.S. 465, 474 (2003) (discussing government’s
“‘pervasive’” role in timber sales from Indian lands in Mitchell II, under regulations
addressing “‘virtually every aspect of forest management,’” and explaining that Mitchell
II held that the relevant statutes and regulations in that case “‘define[d] . . . contours of
the United States’ fiduciary responsibilities’ beyond the ‘bare’ or minimal level, and
thus could ‘fairly be interpreted as mandating compensation’ through money damages
if the Government faltered in its responsibility” (quoting Mitchell II, 463 U.S. at 224–
226)).
The government’s fiduciary obligations to the Indians necessarily arose by virtue
of the government’s near-total control over the subject Indian property. Mitchell II, 463
U.S. at 225. Because the statutory and regulatory duties at issue in Mitchell II created
fiduciary obligations, those statutes and regulations could be fairly interpreted as
requiring the payment of money damages in the event of their breach, id. at 226, thus
vesting this Court with jurisdiction over such claims. Id. at 228; see White Mountain
Apache Tribe, 537 U.S. at 473–74 (explaining that, in Mitchell II, “statutes and regulations
specifically addressing the management of timber on allotted lands raised the fair
implication that the substantive obligations imposed on the United States by those
statutes and regulations were enforceable by damages”).
Consistent with basic Tucker Act principles, however, a plaintiff’s “claims must
be based on a separate source of law that allows recovery of money damages” and not
just on common law trust principles. Cloud v. United States, 763 F. App’x 919, 920 (Fed.
Cir. 2019) (citing Mitchell II, 463 U.S. at 216–17, and United States v. Jicarilla Apache
Nation, 564 U.S. 162, 173–74 (2011), and holding that “any trust obligations between the
Government and Native Americans are governed by statute or regulation rather than
common law”).
Our appellate court — the United States Court of Appeals for the Federal Circuit
— thus has recognized the Supreme Court’s “establish[ment] [of] a two-part test for
determining jurisdiction under the Indian Tucker Act.” Hopi Tribe v. United States, 782
Page 14 of 51
F.3d 662, 667 (Fed. Cir. 2015). First, a claimant “’must identify a substantive source of
law that establishes specific fiduciary or other duties, and allege that the Government
has failed faithfully to perform those duties.’” United States v. Navajo Nation, 556 U.S.
287, 290 (2009) (“Navajo II”) (quoting Navajo I, 537 U.S. at 506). Second, “[i]f that
threshold is passed, the court must then determine whether the substantive source of
law can be fairly interpreted as mandating compensation for damages sustained as a
result of a breach of the duties [the governing law] impose[s].” Id. at 290–91 (alterations
in original) (internal quotation marks omitted). “At the first step, a statute or regulation
that recites a general trust relationship between the United States and the Indian People
is not enough to establish any particular trust duty.” Hopi Tribe, 782 F.3d at 667 (citing
Mitchell I, 445 U.S. at 542–44). “Accordingly, the United States is only subject to those
fiduciary duties that it specifically accepts by statute or regulation.” Id. (citing Navajo I,
537 U.S. at 506 (“[T]he analysis must train on specific rights-creating or duty-imposing
statutory or regulatory prescriptions.”)). 10
On the other hand, the Federal Circuit — again, relying upon Supreme Court
precedent — has rejected “the proposition that in every case ‘express trust plus actual
government control equals enforceable trust duties’ according to common-law
principles.” Hopi Tribe, 782 F.3d at 668 (quoting El Paso Nat. Gas Co. v. United States, 750
F.3d 863, 896 (D.C. Cir. 2014)). Rather, “[t]he Supreme Court used common-law trust
principles in a more limited fashion” where “statutory language evoked them, by
combining trust language and authorization to use the land in the same provision.” Id.
(explaining that “[t]he Supreme Court thus inferred that Congress intended to accept
the common-law duty of a trustee to preserve the land that it actually administers” and
citing White Mountain Apache Tribe, 537 U.S. at 475). But, “[a]s the Supreme Court’s
subsequent decisions make clear, common-law trust duties standing alone, including
those premised on control, are not enough to establish a particular fiduciary duty of the
United States.” Id.; Navajo II, 556 U.S. at 302 (“Because the Tribe cannot identify a
specific, applicable, trust-creating statute or regulation that the Government
violated . . . .[,] neither the Government’s ‘control’ over [trust assets] nor common-law
trust principles matter.”); Jicarilla, 564 U.S. at 177 (“The government assumes Indian
10For example, in White Mountain Apache Tribe, 537 U.S. at 475, the Supreme Court inferred that
Congress accepted a fiduciary duty to preserve improvements to Indian land that the
government actually used. A statute provided that the land in question would be “held by the
United States in trust” and authorized the United States to use the land exclusively. Id. at 469.
“This combination evoked the ‘commonsense assumption,’ confirmed by principles of trust law,
that ‘a fiduciary actually administering trust property may not allow it to fall into ruin on his
watch.’” Hopi Tribe, 782 F.3d at 668 (quoting White Mountain Apache Tribe, 537 U.S. at 475).
“Thus, by using trust language in conjunction with an authorization of plenary control of the
land, Congress clearly accepted a fiduciary duty to exercise that authority with the care charged
to a trustee at common law.” Id.
Page 15 of 51
trust responsibilities only to the extent it expressly accepts those responsibilities by
statute.”).
In the second step of the jurisdictional analysis, common-law trust principles are
applicable. Hopi Tribe, 782 F.3d at 668. If the Indian tribe identifies a specific duty, and
that duty “’bears the hallmarks of a conventional fiduciary relationship . . . then trust
principles (including any such principles premised on control) could play a role in
inferring that the trust obligation [is] enforceable by damages.’” Id. (quoting Navajo II,
556 U.S. at 301) (internal quotations omitted) (alteration in original)). That is
presumably what the Supreme Court meant when it held that “when a statute
establishes specific fiduciary obligations, ‘it naturally follows that the Government
should be liable in damages for the breach of its fiduciary duties.’” Hopi Tribe, 782 F.3d
at 668 (quoting Mitchell II, 463 U.S. at 226); see Confederated Tribes of Warm Springs Rsrv. of
Or. v. United States, 248 F.3d 1365, 1371 (Fed. Cir. 2001) (“Under trust law generally, a
beneficiary is entitled to recover damages for the improper management of the trust’s
investment assets.”). 11
C. Statute Of Limitations Principles: Claim Accrual, Tolling, And
Suspension
The applicable statute of limitations provides that “[e]very claim of which the
United States Court of Federal Claims has jurisdiction shall be barred unless the petition
thereon is filed within six years after such claim first accrues.” 28 U.S.C. § 2501. “The
6–year statute of limitations on actions against the United States is a jurisdictional
requirement attached by Congress as a condition of the government’s waiver of
sovereign immunity and, as such, must be strictly construed.” Hopland Band of Pomo
Indians v. United States, 855 F.2d 1573, 1576–77 (Fed. Cir. 1988) (citing cases). In that
regard, “statutes of limitations are to be applied against the claims of Indian tribes in
the same manner as against any other litigant seeking legal redress or relief from the
government.” Id. at 1576 (citing United States v. Mottaz, 476 U.S. 834 (1986); Capoeman v.
United States, 440 F.2d 1002, 1007–08 (Ct. Cl. 1971)).
When does a plaintiff’s claim “first accrue”? In general, a “claim ‘first accrues’
when all the events have occurred which fix the alleged liability of the defendant and
entitle the plaintiff to institute an action.” Id. at 1577 (citing Japanese War Notes Claimants
Ass’n of the Philippines, Inc. v. United States, 373 F.2d 356, 358 (Ct. Cl. 1967), cert. denied,
389 U.S. 971 (1967)); see Catawba Indian Tribe of S.C. v. United States, 982 F.2d 1564, 1570
(Fed. Cir. 1993) (describing as “hornbook law” the principle “that a claim does not
accrue until all events necessary to fix the liability of the defendant have occurred—
11Although the parties dispute whether various statutes and regulations at issue in this case
create money-mandating trust duties, see, e.g., Def. Mot. at 21; Pl. Resp. at 36, the Court, with
but one exception, assumes (without deciding), for the purposes of resolving the government’s
motion, that the Tribe is correct.
Page 16 of 51
when ‘the plaintiff has a legal right to maintain his or her action’” (quoting Corman,
Limitation of Actions, § 6.1, p. 374 (1991))). The Federal Circuit has clarified, however,
that “for the purposes of section 2501, it would appear more accurate to state that a
cause of action against the government has ‘first accrued’ only when 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, 855 F.2d at
1577 (emphasis in original) (citing Kinsey v. United States, 852 F.2d 556, 557 n. * (Fed.
Cir. 1988)); see Nager Electric Co. v. United States, 368 F.2d 847, 851 (Ct. Cl. 1966) (“‘First
accrual’ has usually been put, in broad formulation, as the time when all events have
occurred to fix the Government’s alleged liability, entitling the claimant to demand
payment and sue here for his money.”).
For breach of trust claims, the Federal Circuit has recognized two different
accrual rules. “The general rule is that the statute of limitations ‘does not run against a
beneficiary in favor of a trustee until the trust is repudiated and the fiduciary
relationship is terminated.’” Hopland Band of Pomo Indians, 855 F.2d at 1578 (quoting
Manchester Band of Pomo Indians, Inc. v. United States, 363 F. Supp. 1238, 1249 (N.D. Cal.
1973)). While that rule applies to claims for recovery of a trust corpus, it is “not
applicable to claims for misfeasance or nonfeasance.” Id. (discussing Jones v. United
States, 9 Cl. Ct. 292, 295 (1985), aff’d on other grounds, 801 F.2d 1334 (Fed. Cir. 1986), cert.
denied, 481 U.S. 1013 (1987)); see Cherokee Nation of Oklahoma v. United States, 21 Cl. Ct.
565, 571–72 (1990) (citing Menominee Tribe of Indians v. United States, 726 F.2d 718, 721–22
(Fed. Cir. 1984), cert. denied, 469 U.S. 826 (1984), and holding that where “allegations
involve misfeasance or nonfeasance, the existence of a trust relationship does not act to
toll the statute of limitations”).12 Even where the general rule governs, however, “[a]
trustee may repudiate an express trust by words or . . . by actions inconsistent with his
obligations under the trust.” Jones v. United States, 801 F.2d 1334, 1336 (Fed. Cir. 1986)
(citing Philippi v. Philippe, 115 U.S. 151, 157 (1984), and G. Bogert & G. Bogert, The Law of
Trusts and Trustees § 951 (rev. 2d ed. 1982)).13
The Federal Circuit further has distinguished between two types of “tolling”:
[T]he distinction that must be drawn is that between tolling
the commencement 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
12Catawba Indian Tribe of S.C. v. United States, 24 Cl. Ct. 24, 31 (1991) (“While plaintiff has
repeatedly alleged Government nonfeasance, nonfeasance by a trustee, as distinguished from
repudiation of the trust by the trustee, does not present an exception to tolling.”), aff’d, 982 F.2d
1564 (Fed. Cir. 1993).
13Shoshone Indian Tribe of Wind River Rsrv., Wyo., 672 F.3d at 1030–31 (discussing claim accrual
rules in Indian Tucker Act cases and for breach of trust actions, in particular).
Page 17 of 51
government brought under section 2501, the distinction can
be critical because the former routinely is allowed while the
latter rarely is.
Hopland Band of Pomo Indians, 855 F.2d at 1578; see also Shoshone Indian Tribe of Wind River
Rsrv., Wyo., 672 F.3d at 1031 n.6 (quoting Hopland Band of Pomo Indians, 855 F.2d at 1578).
Where the facts giving rise to a cause of action were known to a plaintiff more
than six years prior to the filing of a suit, but the law was not clear until later, the
Federal Circuit has rejected tolling to delay a claim’s accrual. Catawba Indian Tribe, 982
F.2d at 1572 (“[A]ll the relevant facts were known. It was the meaning of the law that
was misunderstood.” (emphasis in original)). 14 Moreover, the Federal Circuit has
“‘soundly rejected’ the contention ‘that the filing of a lawsuit can be postponed until the
full extent of the damage is known.’” Navajo Nation v. United States, 631 F.3d 1268, 1277
(Fed. Cir. 2011) (quoting Boling v. United States, 220 F.3d 1365, 1371 (Fed. Cir. 2000));
Shoshone Indian Tribe of Wind River Rsrv., Wyo., 672 F.3d at 1032–33 (“The [government’s]
failure to follow the notice, advertisement, and competitive bidding requirements of the
1938 Act when the conversions occurred was the harm suffered by the Tribes; the
economic consequences of the new leases may define the scope of that harm, but they
are not the event that triggers the statute of limitations.”).
In this case, several statutory provisions potentially impact when the Tribe’s
claims accrued so as to preclude the application of the statute of limitations to bar the
Tribe’s claims. See Shoshone Indian Tribe, 364 F.3d at 1346. (explaining that “[s]tatutes
that toll the statute of limitations, resurrect an untimely claim, defer the accrual of a
cause of action, or otherwise affect the time during which a claimant may sue the
Government also are considered a waiver of sovereign immunity”). For example, in a
series of provisions enacted as part of the United States Department of the Interior’s
annual appropriations, 15 Congress provided:
[N]otwithstanding any other provision of law, the statute of
limitations shall not commence to run on any claim, including
any claim in litigation pending on the date of the enactment
of this Act, concerning losses to or mismanagement of trust
14“It is settled law . . . that § 2501 ‘is not tolled by the Indians’ ignorance of their legal rights.’”
Shoshone Indian Tribe of Wind River Rsrv., Wyo., 672 F.3d at 1031 (quoting Menominee Tribe, 726
F.2d at 720–21); id. at 1032 (“As explained in both Menominee [Tribe] and Catawba [Indian Tribe],
a trust beneficiary’s subjective ignorance of the law giving rise to its claim, even if predicated on
misleading statements relating to those legal rights, does not toll the accrual of the statute of
limitations.” (citing Menominee Tribe, 726 F.2d at 720–21, and Catawba Indian Tribe, 982 F.2d at
1570–71)).
15
These statutory provisions have been referred to as the Indian Trust Accounting Statute
(“ITAS”). Simmons v. United States, 71 Fed. Cl. 188, 193 (2006); Def. Mot. at 19; Pl. Resp. at 22.
Page 18 of 51
funds, until the affected Indian tribe or individual Indian has
been furnished with an accounting of such funds from which
the beneficiary can determine whether there has been a loss[.]
Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, 128 Stat 5, 305 (Jan. 17,
2014). 16 Reviewing the “the plain language of the Act,” the Federal Circuit held that
“Congress has expressly waived its sovereign immunity and deferred the accrual of the
Tribes’ cause of action until an accounting is provided.” Shoshone Indian Tribe, 364 F.3d
at 1346–47 (explaining that “[t]he introductory phrase ‘[n]otwithstanding any other
provision of law’ connotes a legislative intent to displace any other provision of law that
is contrary to the Act, including 28 U.S.C. § 2501” while “[t]he next important phrase of
16 Congress also enacted this (or nearly identical) language in 1993–1994, 1996–2001, 2003–2005,
2007, 2009, and 2011. Department of the Interior and Related Agencies Appropriations Act,
1994, Pub. L. No. 103-138, 107 Stat. 1379 (Nov. 11, 1993); Department of the Interior and Related
Agencies Appropriations Act, 1995, Pub. L. No. 103-332, 108 Stat. 2499 (Sept. 30, 1994); Omnibus
Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321
(Apr. 26, 1996); Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat.
3009 (Sept. 30, 1996); Department of the Interior and Related Agencies Appropriations Act,
1998, Pub. L. No. 105-83, 111 Stat. 1543 (Nov. 14, 1997); Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, 112 Stat. 2681 (Oct. 21, 1998);
Consolidated Appropriations Act, 2000, Pub. L. No. 106-113, 113 Stat. 1501 (Nov. 29, 1999);
Department of the Interior and Related Agencies Appropriations Act, 2001, Pub. L. No. 106-291,
114 Stat. 922 (Oct. 11, 2000); Consolidated Appropriations Resolution, 2003, Pub. L. No. 108–7,
117 Stat. 11, 236 (Feb. 20, 2003); Department of the Interior and Related Agencies
Appropriations Act, 2004, Pub. L. No. 108–108, 117 Stat. 1241, 1263 (Nov. 10, 2003);
Consolidated Appropriations Act, 2005, Pub. L. No. 108–447, 118 Stat. 2809, 3060–61 (Dec. 8,
2004); Department of the Interior, Environment, and Related Agencies Appropriations Act,
2006, Pub. L. No. 109–54, 119 Stat. 499, 519 (Aug. 2, 2005); Consolidated Appropriations Act,
2008, Pub. L. No. 110–161, 121 Stat. 1844, 2115 (Dec. 26, 2007); Omnibus Appropriations Act,
2009, Pub. L. No. 111–8, 123 Stat. 524, 718–19 (Mar. 11, 2009); Department of the Interior—
Appropriation, 2010, Pub. L. No. 111–88, 123 Stat. 2904, 2922 (Oct. 30, 2009); Consolidated
Appropriations Act, 2012, Pub. L. No. 112-74, 125 Stat. 786 (Dec. 23, 2011); see also Round Valley
Indian Tribes v. United States, 97 Fed. Cl. 500, 506 n.6 (2011). Previous versions of this provision
omitted the phrase “including any claim in litigation pending on the date of the enactment of
this Act” and/or the phrase “from which the beneficiary can determine whether there has been
a loss.” See Department of the Interior and Related Agencies Appropriations Act, 1991, Pub. L.
No. 101-512, 104 Stat. 1915 (Nov. 5, 1990) (“notwithstanding any other provision of law, the
statute of limitations shall not commence to run on any claim concerning losses to or
mismanagement of trust funds, until the affected tribe or individual Indian has been furnished
with the accounting of such funds”). Congress enacted such earlier versions in 1990–1992. Id.;
Department of the Interior and Related Agencies Appropriations Act, 1992, Pub. L. No. 102-154,
105 Stat. 990 (Nov. 13, 1991); Department of the Interior and Related Agencies Appropriations
Act, 1993, Pub. L. No. 102-381, 106 Stat. 1374 (Oct. 5, 1992); see also Wolfchild v. United States, 731
F.3d 1280, 1290 (Fed. Cir. 2013) (noting that “[t]he ITAS . . . has been included in appropriations
acts since 1990”).
Page 19 of 51
the Act, ‘shall not commence to run,’ unambiguously delays the commencement of the
limitations period until an accounting has been completed that reveals whether a loss
has been suffered”).
Accordingly, “[t]he clear intent of the Act is that the statute of limitations will not
begin to run on a tribe’s claims until an accounting is completed.” Shoshone Indian Tribe,
364 F.3d at 1347. 17 In particular, according to the Federal Circuit, “the Act provides that
claims falling within its ambit shall not accrue, i.e., ‘shall not commence to run,’ until
the claimant is provided with a meaningful accounting.” Id. (emphasis added)
(commenting “[t]his is simple logic—how can a beneficiary be aware of any claims
unless and until an accounting has been rendered?”); see also Oenga v. United States, 83
Fed. Cl. 594, 609 (2008) (“For ‘claims falling within [the] ambit’ of the ITAS, therefore,
the statute of limitations does not begin to run—meaning the claims do not accrue—
until the plaintiffs receive a meaningful accounting.” (quoting Shoshone Indian Tribe, 364
F.3d at 1347) (alteration in original)).
Several of this Court’s decisions appear to have read the Federal Circuit’s
interpretation of the ITAS provisions as reflecting a heightened standard for triggering
the start of the statute of limitations clock. See, e.g., Osage Tribe of Indians of Okla. v.
United States, 68 Fed. Cl. 322, 334 (2005) (“Whether the plaintiff knew or should have
known of the alleged failures to enforce the contractual obligations of lessees is not the
pertinent issue, according to the Federal Circuit’s analysis in Shoshone [Indian Tribe, 364
F.3d 1339]. . . . The Appropriations Act requires more than simply a suspicion of
malfeasance to commence the running of the statute of limitations.”); Chippewa Cree
Tribe of the Rocky Boy’s Rsrv. v. United States, 69 Fed. Cl. 639, 664 (2006) (“The Federal
Circuit construed the Appropriations Acts enacted in 1991 and subsequent years to
require that a meaningful accounting be completed and provided to the beneficiary that
will allow the beneficiary to determine whether any losses to or mismanagement of
trust funds have occurred. The Federal Circuit specifically distinguished the
‘meaningful accounting’ standard from the simple notice standard advanced by
defendant . . . .” (internal citation omitted)); Oenga, 83 Fed. Cl. at 609 n.48 (“[T]he
‘meaningful accounting’ standard has been found to require more than simple notice, in
that the information in the accounting must be sufficient to raise suspicion of possible
losses. Accordingly, the ITAS comports with the ‘lesser duty to discover malfeasance’
on the part of trust beneficiaries.” (quoting Shoshone Indian Tribe, 364 F.3d at 1347)
(internal citation omitted)).18
17Simmons, 71 Fed. Cl. at 193 (“The Federal Circuit has held that the [ITAS] ‘displaces’ Section
2501 and can resurrect otherwise barred claims.” (quoting Shoshone Indian Tribe, 364 F.3d at
1345–48)).
18Chippewa Cree Tribe of the Rocky Boy’s Rsrv., 69 Fed. Cl. at 664 (“The Shoshone [Indian Tribe]
opinion underscored the dependence that a trust beneficiary has on the proper conduct and
expertise of the trustee, concluding that ‘because of this reliance, beneficiaries are under a lesser
Page 20 of 51
On the other hand, the Federal Circuit itself does not appear to have viewed the
ITAS accrual-tolling statutory language as inconsistent with the general claim accrual
principles applicable to Indian breach of trust claims outlined supra. Shoshone Indian
Tribe, 364 F.3d at 1347–48 (“The interpretation of the Act provided by this court also
comports with fundamental trust law principles. . . . It is therefore common for the
statute of limitations to not commence to run against the beneficiaries until a final
accounting has occurred that establishes the deficit of the trust.”).
The ITAS accrual-tolling language “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 and owing to the Tribes[.]”
Id. at 1351; see also Oenga, 83 Fed. Cl. at 609–10. The ITAS language, however, does not
cover mineral (or other similar) trust assets themselves. Shoshone Indian Tribe, 364 F.3d
at 1350 (“While 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.” (emphasis in original)); see also
Simmons, 71 Fed. Cl. at 193 (“[T]he Court is bound by the determination that the ITAS
does not apply to this case. Because none of the Plaintiff’s claims accrued within six
years and there is no ground to toll or displace the running of Section 2501, the Court
must conclude that this complaint is time barred.”). 19
IV. The Tribe’s Complaint Must Be Dismissed Pursuant To RCFC 12(b)(1) And
RCFC 12(b)(6) For Lack Of Jurisdiction And For Failure To State A Claim
In general, there are only a few possibilities here:
1) The Tribe does not know whether the government has breached its
fiduciary duties, or is otherwise liable to the Tribe for money damages;
2) The Tribe has alleged facts, which, if proven, 20 demonstrate that the
government has breached its fiduciary duties, or is otherwise liable to the
Tribe for money damages, but the Tribe does not know the quantum of such
damages; and/or
duty to discover malfeasance relating to their trust assets.’” (quoting Shoshone Indian Tribe, 364
F.3d at 1347 (citations omitted))).
19The Federal Circuit rejected the trial court’s view that the ITAS could be extended to “claims
that the Government did not receive the best possible price for the leases negotiated,” reasoning
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 [ITAS] language does not on its
face apply to claims involving trust assets.” Shoshone Indian Tribe, 364 F.3d at 1349–50.
20For the purposes of resolving the government’s motion to dismiss for failure to state a claim,
the Court assumes the Tribe’s allegations in its Complaint are true. See supra note 5.
Page 21 of 51
3) The Tribe has alleged facts, which, if proven, demonstrate that the
government is liable to the Tribe, and the Tribe does know enough to allege
a quantum of damages.
If the Tribe’s Complaint — or any of the claims contained therein — are
analogous to the first scenario supra, the Tribe has not stated a claim as a matter of law.
To avoid dismissal under RCFC 12(b)(6) for failure to state a claim, “’a complaint must
allege facts plausibly suggesting (not merely consistent with) a showing of entitlement
to relief.’” Matthews v. United States, 750 F.3d 1320, 1322 (Fed. Cir. 2014) (quoting Kam–
Almaz v. United States, 682 F.3d 1364, 1367 (Fed. Cir. 2012) (internal quotations omitted));
see also Todd Const., L.P. v. United States, 656 F.3d 1306, 1316–17 (Fed. Cir. 2011);
Sachsenberg v. IRSA Inversiones y Representaciones Sociedad Anonima, 339 F. Supp. 3d 169,
181 (S.D.N.Y. 2018) (“equivocal allegations are insufficient to state a claim”); Inter-Tribal
Council of Ariz., Inc. v. United States, 125 Fed. Cl. 493, 502 (2016) (holding Indian Tucker
Act “complaint fails to ‘allege facts plausibly suggesting (not merely consistent with) a
showing of entitlement to relief’” (quoting Matthews, 750 F.3d at 1322 (citation
omitted))); Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” (quoting Twombly, 550 U.S. at 557 (brackets
omitted in original))).
The Tribe cannot survive a motion to dismiss by pointing to mere conclusory
allegations of law or by alleging that the government may have breached its trust
duties. 21 Thus, there is a difference between, on the one hand, alleging facts
demonstrating that the government in fact did breach its trust duties, thereby causing
injury to the Tribe — and obtaining discovery to prove that case — and the Tribe’s
21See Compl. ¶¶ 73(a)–(q) (listing legal conclusions and admitting that the Tribe is unable “to
determine whether, and to what extent, it has suffered a loss” (emphasis added)); 91 (“The
Tribe is further entitled to recover damages for any and all mismanagement by the Federal
Government of the Parker Dam Compensation Monies.” (emphasis added)); 97 (“The Tribe is
further entitled to recover damages for any and all mismanagement by the Federal Government
of the ICC Judgment Funds, including any and all such mismanagement disclosed by any
accounting ordered by the Court.” (emphasis added)); 118(a)–(i) (listing legal conclusions);
129(a)–(e) (same); 130 (“The Tribe is further entitled to request an accounting of and to recover
compensation and damages for any and all takings and/or mismanagement of the Tribe's
shoreline lands and related assets, improvements, and riparian rights, from 1946 until the
present.” (emphasis added)); 137 (“[T]he Tribe is entitled to an accounting of and to recover
compensation and damages for any and all mismanagement of the Tribe's BIA suspense and/or
special deposit accounts that were maintained from time to time for the Tribe by the BIA during
the time period from 1946 until the present.” (emphasis added)). None of the foregoing
statements are factual allegations demonstrating the Tribe’s entitlement to money damages.
Instead, they are the type of statements that are insufficient to state a claim under Twombly 550
U.S. at 557 and Iqbal, 556 U.S. at 678.
Page 22 of 51
merely asserting that it does not know whether it has been injured, and requiring
discovery to learn whether it has a claim at all. 22 In the latter case, the Tribe cannot
proceed before this Court, but may be able to seek an accounting from the district court
and, depending upon the results of that action, then proceed in a case before this Court,
perhaps without having to worry about the statute of limitations. That is because, in
the absence of the government’s having provided the Tribe with a meaningful
accounting, the ITAS tolling provision may protect the Tribe from (at least some of) its
claims being barred by the statute of limitations. The Supreme Court has recognized
this sequence of actions as proper. United States v. Tohono O’Odham Nation, 563 U.S. 307,
316–17 (2011) (“It also seems likely that Indian tribes in the Nation’s position could go
to district court first without losing the chance to later file in the CFC, for Congress has
provided in every appropriations Act for the Department of the Interior since 1990 that
the statute of limitations on Indian trust mismanagement claims shall not run until the
affected tribe has been given an appropriate accounting.”). But, as demonstrated infra
— and as the Tribe acknowledged23 — it cannot obtain an accounting from this Court
for the purposes of obtaining facts prior to stating a claim (or in order to state claim)
within this Court’s jurisdiction.
If the second or third scenarios supra describe the Complaint (or its claims) at
issue, the Tribe, by definition, can state a claim as a matter of law, but there is a
corollary to that axiom: having a ripe claim necessarily means that it accrued prior to
the filing of the Complaint. If so, the question for the Court is how long ago did the
claim accrue, thereby triggering the running of the statute of limitations? If the answer
is “more than six years ago,” the claim presumptively is barred. The only caveat to that
rule is that certain claims24 will not have accrued, and the statute of limitations will not
have begun to run, unless the government had provided the Tribe with a “meaningful
22Beaulieu v. Bd. of Trustees of Univ. of W. Fla., 2007 WL 9734887, at *6 (N.D. Fla. Nov. 7, 2007)
(“Plaintiff’s allegations, all predicated on the use of the word ‘may,’ are clearly speculative, and
they are unsupported by any facts . . .”); Dunbar v. Wells Fargo Bank, N.A., 853 F. Supp. 2d 839,
848 (D. Minn. 2012) (“Mere speculation about what may have happened does not allow a
plausible inference . . .”), aff’d, 709 F.3d 1254 (8th Cir. 2013); Bednar v. Pierce & Assocs., P.C., 220
F. Supp. 3d 860, 866–67 (N.D. Ill. 2016) (“Plaintiff uses the word ‘may’ because he has not made
any allegation that the judgment was in fact reported, much less any allegation of calculable
harm flowing from such reporting. The alleged injury thus falls short of the calculable,
measured loss that Plaintiff must plead[.]”).
23See Pl. Supp. Br. at 3 (conceding that “this Court lacks jurisdiction to order the Government to
perform an accounting”).
24See Wolfchild, 731 F.3d at 1291 (explaining that the ITAS tolling provisions only apply to claims
that involve “trust funds,” i.e., funds that are “subject to a trust duty”); Shoshone Indian Tribe,
364 F.3d at 1350 (“While 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.” (emphasis in original)).
Page 23 of 51
accounting” 25 — i.e., one “from which the beneficiary [Tribe] can determine whether
there has been a loss.” Wolfchild, 731 F.3d at 1291 (quoting Pub. L. No. 108–108, 117 Stat.
1241, 1263 (2003)) (emphasis added); see supra note 16. The key point is in the
emphasized statutory phrase: a claim’s accrual — at least with respect to trust funds —
is not dependent upon the Tribe’s ability to calculate a precise damages sum. Put
differently, a claim accrues whenever the Tribe has been placed on notice of “a loss” —
not the precise quantum of loss. Wolfchild, 731 F.3d at 1291 (quoting Pub. L. No. 108–
108, 117 Stat. 1241, 1263 (2003) (emphasis added). But if the Tribe is on notice of a
breach of the government’s trust obligations sufficient to state a claim — and simply is
uncertain of the quantum of damages26 — the claim already has accrued and the statute
of limitations has begun to run. 27
The Tribe has placed itself between a rock and a hard place, insofar as the
Complaint toils not to commit to any of the scenarios outlined supra. 28 On the one
25 Wolfchild, 731 F.3d at 1291.
26To calculate damages, the Tribe may pursue discovery or, if the Tribe ultimately succeeds on
the merits, obtain an accounting.
27That is why the Federal Circuit held that the ITAS provisions are consistent with claim accrual
law for breach of trust claims. Id. (“When a claim concerns an open repudiation of an alleged
trust duty, ‘a final accounting [i]s unnecessary to put the [claimants] on notice of the accrual of
[their] claim.’” (quoting San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1355 (Fed. Cir.
2011) (internal quotation omitted))).
28 Consider this self-defeating allegation:
To date, the Federal Government has failed to provide that
accounting or other sufficient information, that would afford the
Tribe the ability to determine whether, and to what extent, it has
suffered a loss as a result of the Federal Government’s breaches of
its fiduciary duties and obligations. The Tribe is, therefore,
uncertain of the exact amount of damages it has sustained as a result
of the Federal Government’s breach of its fiduciary duty as alleged
in this complaint[.]
Compl. ¶ 73(q) (emphasis added). So, which is it? Is the Tribe unable even “to determine
whether . . . it has suffered a loss” due to the government’s alleged breach of fiduciary duties? If
so, the Tribe has no claim. Or is the Tribe merely “uncertain of the exact amount of damages”?
In that case, the Tribe can state a claim, but then must answer difficult questions about when
such claim(s) accrued and whether they may be barred by the statute of limitations. See Def.
Mot. at 20 (correctly observing that “[o]ne can reasonably infer from this statement that Plaintiff
knows of some estimate of damage from the public and known events that underlie its claims”).
In that regard, this Court has “‘soundly rejected’ the contention ‘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, 220 F.3d at 1371). In either case, the Tribe’s “vague and contradictory”
allegations in this case present an unsurmountable hurdle. Day v. Nakamura, 59 F.3d 164, *2 (1st
Cir. 1995) (unpublished table opinion) (failure to state a claim); Jackson v. Conner Collins, Inc.,
Page 24 of 51
hand, as demonstrated infra (see Section IV.B.), the counts of the Tribe’s Complaint
focused on alleged trust fund mismanagement entirely fail to recite anything more than
legal conclusions, and thus must be dismissed pursuant to RCFC 12(b)(6). On the other
hand, to the extent the Complaint recites factual allegations, there is not one set of them
that could not have been alleged long ago, at the very latest when the Tribe received the
1996 Arthur Andersen Report.29 Indeed, the government is correct: “[t]he only dates or
time periods identified by Plaintiff for the United States’ alleged breaches of trust duties
are from the last century.” Def. Mot. at 20. Put differently, to the extent the Tribe
complains that it lacks sufficient facts — and that the 1996 Arthur Andersen Report
does not constitute a “meaningful accounting” — the Tribe’s remedy lies in district
court (assuming the Tribe still has a timely claim there). And, to the extent the Tribe
maintains that its Complaint does contain sufficient facts, the Tribe implicitly admits
that it was on notice at least since the 1996 Arthur Andersen Report, in which case the
statute of limitations bars Plaintiff’s claims. Either way, the Tribe’s Complaint must be
dismissed.
The Tribe appears to recognize its dilemma, at one point employing different
tenses in the same sentence, in what appears to be a deliberate attempt to muddy the
waters. For example, the Tribe alleges that its “breach-of-fiduciary duty claims did not,
does not, begin to ‘accrue’ until the following occurs . . .” Compl. ¶ 66 (emphasis
added). One part of the sentence is in the past tense (“did not . . . begin to ‘accrue’”),
while the other is in the present tense and references future events (the phrase “does
not[] begin to ‘accrue’ until” and the word “occurs”). So, which is it? Did the claim
accrue at some time in the past or has it not accrued yet at all? In the very next
paragraph of the Complaint, the Tribe surprisingly asserts that the statute of limitations
“has not yet begun to run in this civil action” and therefore “[t]his civil action was . . .
timely filed.” Id. ¶ 67 (emphasis added). But if the statute of limitations has not yet
begun to run, it is axiomatic that the Tribe did not have a claim. See Reiter v. Cooper, 507
U.S. 258, 267 (1993) (“While it is theoretically possible for a statute to create a cause of
action that accrues at one time for the purpose of calculating when the statute of
limitations begins to run, but at another time for the purpose of bringing suit, we will
not infer such an odd result in the absence of any such indication in the statute.”).30
2009 WL 500858, at *1 (M.D. Ga. Feb. 27, 2009) (“Based on the lack of factual detail and the
confusing, contradictory nature of the allegations in his Complaint, the Court concludes
Plaintiff’s Complaint fails to give Defendants fair notice of Plaintiff’s claims and the grounds on
which they rest. The Complaint also lacks enough factual detail to raise a right to relief above
the speculative level.”); Bonham v. Orden, 1991 WL 229950, at *1 (D.D.C. Oct. 25, 1991) (“The
contradictory allegations in plaintiff’s complaint render it patently frivolous.”).
29Or when it was deemed received by the Tribe on December 31, 2000, pursuant to statute.
Settlement of Tribal Claims—Amendment, Pub. L. No. 109-158 § 1, 119 Stat. 2954 (Dec. 30, 2005).
30See also Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192,
201 (1997) (holding that “[u]nless Congress has told us otherwise in the legislation at issue, a
Page 25 of 51
Contrary to the Tribe’s assertion, Compl. ¶¶ 66–67, there is no evidence that its claims
accrued or that the Tribe became aware of its claims only on the date it filed its suit.
A. This Court Lacks Jurisdiction Over The Tribe’s Complaint
1. The Tribe’s Independent Claims For An Accounting Belong In
District Court
There is no doubt that this Court has the power to order an accounting in
support and aid of a judgment on liability in favor of a plaintiff seeking damages from
the United States pursuant to the Tucker Act. 28 U.S.C. § 1491(a)(2) (“To provide an
entire remedy and to complete the relief afforded by the judgment, the court may, as an
incident of and collateral to any such judgment, issue orders directing . . . correction of
applicable records, and such orders may be issued to any appropriate official of the
United States. In any case within its jurisdiction, the court shall have the power to
remand appropriate matters to any administrative or executive body or official with
such direction as it may deem proper and just.”); Klamath & Modoc Tribes, 174 Ct. Cl. at
490 (“We agree with plaintiffs that the court has the power to require an accounting in
aid of its jurisdiction to render a money judgment on that claim, but we disagree with
plaintiffs on the applicable procedure.”). What this Court cannot do, however, is order
an accounting so that the Tribe can figure out whether it has any claim at all. See
Klamath & Modoc Tribes, 174 Ct. Cl. at 485–88 (“It is fundamental that an action for
cause of action does not become ‘complete and present’ for limitations purposes until the
plaintiff can file suit and obtain relief” (citing Reiter, 507 U.S. at 267)); Martin v. Constr. Laborer’s
Pension Tr. for S. Cal., 947 F.2d 1381, 1385, n.7 (9th Cir. 1991) (explaining that where plaintiff
“argues that the statute of limitations has not begun to run on his claim[,]” the court’s
“[a]cceptance of [that] argument would require dismissal of his action” because “[i]f [plaintiff’s]
cause of action has not accrued, then his claim is not yet ripe for review”); Arnold ex rel. Arnold
v. Sec’y of Health & Human Servs., 2008 WL 4054354, at *3 (Fed. Cl. Aug. 19, 2008) (holding that
where petitioners “argue that their claim has not accrued (meaning the statute of limitations has
not started to run),” that is contradicted by the filing of a petition, and explaining that “[i]f the
[petitioners] were correct that the statute of limitations has not begun to run, then it would
appear that the [petitioners] have filed their case prematurely in the sense that all the elements
are not present”); Fallini v. United States, 56 F.3d 1378, 1380 (Fed. Cir. 1995) (“a cause of action
accrues when all the events have occurred that fix the defendant’s alleged liability and entitle
the plaintiff to institute an action”); A. Stucki Co. v. Buckeye Steel Castings Co., 795 F. Supp. 847,
855 (S.D. Ohio 1991) (“[I]n the usual case a statute of limitations commences to run when the
cause of action accrues, that is, when the plaintiff is first able to assert that cause of action, and
thus it seems somewhat anomalous for plaintiff herein to bring an action . . . and at the same
time argue that the applicable statute of limitations period has not begun to run.”), aff’d, 963
F.2d 360 (Fed. Cir. 1992); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990)
(“Accrual is the date on which the statute of limitations begins to run. It is not the date on
which the wrong that injures the plaintiff occurs, but the date—often the same, but sometimes
later—on which the plaintiff discovers that he has been injured.”).
Page 26 of 51
accounting is an equitable claim and that courts of equity have original jurisdiction to
compel an accounting. . . . Our general jurisdiction under the Tucker Act does not
include actions in equity.” (citing cases)); Ft. Mojave Tribe v. United States, 546 F.2d 429,
728 (Ct. Cl. 1976) (“A suit for an accounting is a suit in equity and we have no equity
jurisdiction except in aid of a judgment of liability against the Government.
. . . Accordingly, we have no jurisdiction over plaintiff’s suit for an accounting.”).
In other words, “[t]o require the Government ab initio to render a general
accounting on the basis of unproved allegations and before its liability is determined
would convert this proceeding from a suit for money damages to an independent
equitable action for a general accounting.” Klamath & Modoc Tribes, 174 Ct. Cl. at 491.
Indeed, such “claims must be developed independently and not as the result of an
accounting ordered by this court. Unlike the Indian Claims Commission, this court has
no equity jurisdiction to entertain a suit for an accounting except in aid of a judgment of
liability against the Government.” Am. Indians Residing On Maricopa-Ak Chin Rsrv. v.
United States, 667 F.2d 980, 983 (Ct. Cl. 1981).
The Tribe’s “Prayer for Relief” contains a request for an award of “an accounting
in aid of jurisdiction to render the compensation award and monetary judgment.”
Compl. at 56. The Court has no trouble with that request per se, provided that the Tribe
can prevail on a substantive monetary claim within this Court’s jurisdiction. Count V,
however, is an independent claim for an accounting based on the government’s alleged
statutory obligations to complete an accounting, something the Tribe alleges the
government has not done (or has not done adequately). Compl. ¶¶ 138–45. The Tribe
nowhere contends that the statutory provisions on which it relies are themselves
money-mandating or independently support Tucker Act jurisdiction. Again, as
explained supra, the Court has no jurisdiction to order an accounting except as a means
of determining the quantum of damages resulting from a successful claim over which
this Court possesses jurisdiction. Confidential Informant 59-05071 v. United States, 134
Fed. Cl. 698, 720–21 (2017) (“The Court has power to require an accounting in
connection with its jurisdiction over a money claim under the Tucker Act. . . . It does
not have such authority, however, where the plaintiff is not entitled to money
damages.”), aff’d, 745 F. App’x 166 (Fed. Cir. 2018). At oral argument, the Tribe’s
counsel repeatedly conceded this point. Tr. at 43:9–11 (“An accounting claim is
properly brought in District Court and not in this Court.”); id. at 43:23–25 (“standing
alone were the fifth cause of action the only one cited, that that would belong in District
Court and not in this Court”).31
31“’[A] lawyer’s statements may constitute a binding admission of a party[ ]’ if the statements
are ‘deliberate, clear, and unambiguous[.]’” Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 347
(4th Cir. 2014) (quoting Fraternal Order of Police Lodge No. 89 v. Prince George’s Cty., Md., 608 F.3d
183, 190 (4th Cir. 2010)); see Checo v. Shinseki, 748 F.3d 1373, 1378 n.5 (Fed. Cir. 2014)
Page 27 of 51
In sum, this Court cannot order an accounting merely for the Tribe to determine
whether it “has one or more additional monetary claims against the United States.”
Compl. ¶ 144. To the extent that the Tribe seeks a “declaration that the 199[6] Arthur
Anderson [sic] Report does not meet the Federal Government’s obligations[,]”id. ¶ 145,
the Court addresses the issue as part of statute limitations question infra. Ultimately,
however, if the Tribe has insufficient information to plead facts demonstrating the
government’s breach of fiduciary or trust duties, the Tribe “may seek an accounting in
federal district court to identify any breach of the government’s investment and
accounting duties and proceed with an action if it discovers any financial impropriety”
— assuming, of course, that such a cause of action would itself still be timely. Inter-
Tribal Council of Ariz., 125 Fed. Cl. at 505 n.16.
Accordingly, Count V’s independent claim for an accounting is DISMISSED for
lack of jurisdiction. Confidential Informant 59-05071, 134 Fed. Cl. at 720 (holding that
“absent liability on the part of the defendant on a claim over which the Court has
subject matter jurisdiction, the Court lacks jurisdiction over any independent equitable
action for an accounting”), aff’d, 745 F. App’x 166 (Fed. Cir. 2018). Similarly, to the
extent that Counts I-IV seek an accounting for the purposes of determining whether the
Tribe has claims for breach of fiduciary duties, such Counts are DISMISSSED for lack
of jurisdiction. 32 In that regard, the Tribe cites no authority for the proposition that the
government’s failure to render a proper accounting in and of itself — assuming for the
sake of argument that is the case here — may breach the government’s fiduciary duties
in a manner that gives rise to a claim for money damages within this Court’s
(questioning the Veterans Court’s “reluctance to accept [a] concession” made at oral argument
and citing case law for the proposition that admissions are generally binding on the parties).
32See Compl. ¶ 91 (Count I) (“The Tribe is further entitled to recover damages for any and all
mismanagement by the Federal Government of the Parker Dam Compensation Monies
occurring on or after 1946, including any and all such mismanagement disclosed by any
accounting ordered by the Court of the Federal Government’s long-term retention and/or
ultimate disbursement and/or disposition of the Parker Dam Compensation Monies.”
(emphasis added)); id. ¶ 97 (Count II) (“The Tribe is further entitled to recover damages for any
and all mismanagement by the Federal Government of the ICC Judgment Funds, including any
and all such mismanagement disclosed by any accounting ordered by the Court of the Federal
Government’s retention and ultimate disbursement and/or disposition of the ICC Judgment
Funds.” (emphasis added)); id. ¶ 122 (Count III) (“The Tribe is entitled to an audit and full
accounting by the Government of the total amount or amounts of ‘surplus’ water rights of the
Tribe that have been expropriated and given free of charge to the MWD and other junior users
since the final adjudication of the Tribe’s quantified water rights in Arizona v. California, in
1964.”); id. ¶ 137 (Count V) (“Accordingly, the Tribe is entitled to an accounting of and to
recover compensation and damages for any and all mismanagement of the Tribe’s BIA suspense
and/or special deposit accounts that were maintained from time to time for the Tribe by the
BIA during the time period from 1946 until the present.”).
Page 28 of 51
jurisdiction.33 Rosebud Sioux Tribe v. United States, 102 Fed. Cl. 429, 436 (2011)
(explaining that “the accounting sought in the district court suit (required incident to
fiduciary responsibilities as well as by statute) may be a predicate for at least proof of
damages or identification of additional breaches in the CFC action”); Muscogee (Creek)
Nation of Okla. v. United States, 103 Fed. Cl. 210, 218 (2011) (distinguishing, in the context
of addressing a motion to dismiss pursuant to 28 U.S.C. § 1500, “a request for an
accounting (or a better accounting)” — which belongs in district court — from a claim
seeking “a determination of compensatory damages[,]” where jurisdiction is proper in
the Court of Federal Claims).
2. The Tribe’s Claims Are Barred By The Statute Of Limitations
Plaintiff filed its initial complaint on April 20, 2016. ECF No. 1. Thus, “the six-
year statute of limitations applicable to [this Court] would ordinarily bar plaintiff[‘s]
claim[s] to the extent [they] ‘first accrued’ prior to” April 20, 2010. Menominee Tribe, 726
F.2d at 720. In this case, the Tribe’s claims are barred by the statute of limitations
because the underlying facts predate April 20, 2010. 34 Indeed, for the majority of the
counts in the Complaint, no material fact has changed since at least 1996, and no
material fact in the Complaint post-dates 2006. 35
33The government argues, and the Court agrees, that the Tribe has not established “that the
relevant source of substantive law ‘can fairly be interpreted as mandating compensation for
damages sustained as a result of a breach of the duties’ imposed by the governing law.” Def.
Mot. at 31 (quoting Navajo II, 556 U.S. at 291). Indeed, the Tribe makes no attempt, in its
response to the government’s motion to dismiss, to show that the government’s failure to
provide an accounting, alone, gives rise to monetary damages. Without any precedent to
support its claim, this Court must conclude that the Tribe has not met its burden to establish
that the sources of law on which the Tribe relies are money-mandating. In any event, for the
same reasons that all of the Tribe’s claims at issue here are barred by the statute of limitations —
as explained in more detail infra — the Tribe’s claim for a better accounting in any court likely
would be barred by the statute of limitations with respect to any years preceding 2010. See 28
U.S.C. § 2401(a) (providing six-year statute of limitations for APA claims).
34The Tribe filed its initial complaint on April 20, 2016. ECF No. 1. The Tribe’s response to the
government’s motion to dismiss provides that “the earliest date that the United States
reasonably could be found to have repudiated the Tribe's trust claims was on April 16, 2016, the
date that the Tribe filed the instant lawsuit.” Pl. Resp. at 24. The Court believes that the
reference to April 16, 2016, was a mistake, but in any event holds that the Tribe’s claims are
time-barred regardless of whether the relevant date is April 16 or 20, 2016.
35 As the government correctly notes:
In this case, it is clear from the Second Amended Complaint that
Plaintiff knew or should have known of the key events underlying
its “breach of trust” claims: the Congressional grant to the United
States of title and interest to certain tribal lands of the Chemehuevi
Page 29 of 51
a) Count I & Count II
In Count I and Count II of the Complaint, the Tribe alleges that the United States,
may have mismanaged certain monies held in trust for the Tribe’s benefit. 36 Assuming
for the purposes of this Section that the Tribe’s equivocal allegations37 satisfy RCFC
12(b)(6), the Court naturally must ask when did those claims accrue?
Before answering that question, we begin with an axiom: where a plaintiff states
a claim as a matter of law sufficient to survive a motion to dismiss pursuant to RCFC
12(b)(6), the claim necessarily accrued at the latest on the date the plaintiff filed the
Reservation for construction of the Parker Dam Project; the
Congressional mandate to the Secretary of the Interior to determine
the amount of money to be paid to Plaintiff as just and equitable
compensation (Compl. ¶ 23); the taking of 7,136.53 acres of tribal
lands, most of which was flooded (id. ¶ 27); Plaintiff’s loss and
subsequently the federal ownership and administration of the
shoreline property riparian to Lake Havasu (id. ¶ 29); the return by
Secretarial Order on November 1, 1974, to Plaintiff of full equitable
title to 21 miles of shoreline land after 33 years (id. ¶¶ 125-126); after
the return, Plaintiff’s receipt of income from the shoreline land (in
the form of rents and leases) and from profit distributions from the
Havasu Landing Resort (id. ¶ 131); Plaintiff’s usage of its Winters
water rights, in comparison to other users, and the lack of payments
from junior water rights users (id. ¶ 118); the Secretary’s refusal to
sign Plaintiff’s proposed water rights lease for off reservation use
(id. ¶ 112); and the lack of a “complete, meaningful accounting” that
Plaintiff deemed to be necessary for the monies that, decades ago,
Plaintiff knew were in its accounts but now Plaintiff is unsure about
receiving (id. ¶¶ 30, 134). It is also clear from the Second Amended
Complaint that Plaintiff knew (or should have known) of any
alleged financial and other impacts from the government’s actions,
which gave rise to Plaintiff’s claims herein, many decades before
2010 (six years before the filing of this case). Id. ¶¶ 29, 30, 33, 36, 47-
49, 93, 94, 108, 125-12.
Def. Mot. at 16–17.
36Count I is a “Claim For Accounting And Damages For Mismanagement of Parker Dam
Compensation Monies” and Count II is a “Claim for Accounting and Damages for ICC
Judgment Funds.” Compl. ¶¶ 30, 35.
37The Tribe’s claim in Count I admits that the Tribe does not know whether it was ever paid the
funds it claims. Id. ¶¶ 87–91 (alleging that the Tribe is “entitled to recover damages for any and
all mismanagement by the Federal Government of the Parker Dam Compensation Monies” but
without alleging any non-conclusory facts which, if true, demonstrate mismanagement). The
Tribe’s claim in Count II similarly alleges the lack of an adequate accounting but equivocates
about whether the Tribe has been paid or was damaged. Id. ¶¶ 92–97.
Page 30 of 51
complaint. So, when does the Tribe contend its claims accrued? According to the Tribe,
“the earliest date” that its trust mismanagement claims accrued was when “the United
States reasonably could be found to have repudiated the Tribe’s trust claims…on April
[20], 2016, the date that the Tribe filed the instant lawsuit.” 38 Pl. Resp. at 24 (emphasis
added).
Putting aside that trust misfeasance or mismanagement claims do not require
repudiation to trigger claim accrual, Catawba Indian Tribe of S.C., 24 Cl. Ct. at 31, 39 there
is a reason the Tribe is all but compelled to assert that its claims arose on the day the
Tribe filed its Complaint. That is because identifying any earlier date would merely beg
a question fatal to the Tribe’s position: what new fact did the Tribe learn on that yet
earlier date — triggering the accrual of the claims — that the Tribe did not know prior
to April 20, 2010? The Tribe might not want to face that last question, but the Court
must do so. And the answer is that there simply is no new factual predicate for the
claims at issue that the Tribe suddenly learned on the filing date of the Complaint; nor,
for that matter, are there any material facts arising after April 20, 2010 upon which the
Tribe relies in its Complaint. Put yet differently still, every factual allegation in the
Complaint related to putative trust fund mismanagement was known to the Tribe
before April 20, 2010, including the alleged lack of accounting documentation.
With respect to Count I, for example, the Tribe divides its factual allegations into
two time periods: “1940-1970” (see Compl. ¶¶ 76–84); and “1970 to the present time”
(see id. ¶¶ 85–86). Of course, 1970 predates 2010 by 40 years. And there is no allegation
— not one shred of a fact — even suggesting that the Tribe learned something new after
April 20, 2010 that triggered the accrual of its claim. Notably, the Tribe alleges that
“[t]he Federal Government has never provided the Tribe with a complete accounting of
the Parker Dam Compensation monies from 1970 up to the time this Second Amended
Complaint was filed.” Id. ¶ 86. But that means that the Tribe could have lodged that
same complaint in every single year after 1970, “when federal recognition of the Tribe
was restored.” Id. ¶ 83. To be clear, according to the Complaint, the public record
establishes that the funds in question ($108,104.95) had been deposited in an account for
the benefit of the Chemehuevi in 1940. Id. ¶ 26. But, there were no factual
developments following the 1996 Arthur Andersen Report. That means either the Tribe
currently has insufficient facts to maintain a claim, or if the facts are sufficient to state a
claim as a matter of law, they were known to the Tribe at the latest when the Tribe
See supra note 34 (addressing incorrect reference in Tribe’s response to the government’s
38
motion to dismiss); ECF No. 1 (filed April 20, 2016).
39 See also Cherokee Nation of Okla. v. United States, 21 Cl. Ct. 565, 571–72 (1990) (“This general rule
is not applicable to the facts alleged in this case. Plaintiff here made no allegation that
defendant repudiated the trust, but alleged misfeasance or nonfeasance by the defendant as
trustee. . . . Because these allegations involve misfeasance or nonfeasance, the existence of a
trust relationship does not act to toll the statute of limitations.”); Hopland Band of Pomo Indians,
855 F.2d at 1578–79 (discussing rule).
Page 31 of 51
received its 1996 Arthur Andersen Report. Either way, Count I must be dismissed.
That jurisdictional discovery may have confirmed what the Tribe already knew (i.e., an
alleged absence of accounting information) does not constitute a new fact triggering
claim accrual, particularly when the Tribe was aware that it lacked such information for
forty years or at least since the 1996 Arthur Andersen Report. Def. Supp. Br. at 3.
With respect to Count II, the statute of limitations problem is equally glaring.
Congress appropriated the ICC judgment funds at issue in 1965. Compl. ¶ 93. The
Tribe complains that “no accounting has ever been made by the Federal Government to
the Tribe regarding the retention . . . and/or the ultimate disbursement or disposition of
the ICC Judgment Funds” from “June 1965 until at least September 1970.” Id. ¶ 94. The
Tribe’s Complaint references two statutes: the initial appropriation by the ICC
judgment through the Act of June 30, 1965 and the Act of September 24, 1970, the latter
of which authorized the ICC Judgment funds “for distribution in per capita payments to
tribal members.”40 Id. ¶ 93.
Nothing about the Tribe’s situation or knowledge with respect to those ICC
judgment funds, however, has changed since the 1970s, or, at the latest, since the 1996
Arthur Andersen Report. Again, to the extent the Complaint contains sufficient facts to
state a claim, such facts are many decades old or were derived from the 1996 Arthur
Andersen Report, and thus Count II is barred due to the statute of limitations. In the
alternative, as discussed below (see infra Section IV.B.), to the extent the Tribe lacks
sufficient facts because of the inadequacy of the 1996 Arthur Andersen Report, the Tribe
fails to state a claim and its Complaint must be dismissed pursuant to RCFC 12(b)(6).
The Tribe bears the burden to demonstrate jurisdiction, but points to no fact arising
within the six years preceding the filing of the Complaint to demonstrate that Count II
accrued during that time period and thus was filed in a timely manner.
Accordingly, the Court holds that Counts I and II must be DISMISSED for lack
of jurisdiction.
b) Count III
In Count III of the Tribe’s Complaint, the Tribe alleges that the government is
liable for the taking and mismanagement of tribal water rights. Those water rights,
however, “were specifically quantified” in the “Supreme Court’s decree of March 9,
1964.” Compl. ¶ 103 (discussing 1964 Arizona Decree, 376 U.S. 340). The Tribe further
alleges that such “quantified water rights were confirmed by the supplemental orders
entered by the Supreme Court in 1979 and 1984 . . . and, most recently, . . . in 2006.” Id.
(citing Arizona v. California, 466 U.S. 144 (1984); Arizona v. California, 439 U.S. 419 (1979)
(per curiam); Arizona v. California, 547 U.S. 150, 157 (2006)). In the Tribe’s view — one
40 The Tribe relies only upon the latter as a money-mandating provision of law. ECF No. 79-1 at
4; see also Compl. ¶ 95(b).
Page 32 of 51
that we reject as a matter of law (see infra Section IV.B.) — the government effectuated a
taking “of the Tribe’s quantified water rights[,]” by having “declared the bulk of the
Tribe’s annual allocation ‘surplus water’” and in making “that water available to other
junior users, . . . without any compensation to the Tribe.” Compl. ¶ 108.
Although the Tribe likely had full notice of its (and others’) water rights and
usage following the Supreme Court’s decree in 1964, the Complaint confirms that the
Tribe had notice of the government’s alleged “taking” in 1998 at the absolute latest. For
example, in 1998, “the Tribe propose[d] to lease . . . water to the Southeastern Nevada
Water Company” instead of allowing others to use the Tribe’s “water allocation
annually without providing compensation to the Tribe.” Compl. ¶ 109 (incorporating
ECF No. 45-8 (TRC Mariah Associates, Environmental Assessment, Section 1.0
PURPOSE AND NEED FOR ACTION (Dec. 1998)). Indeed, the Tribe alleges that “[t]he
Secretary of the Interior . . . failed and refused to exercise his power and authority . . . to
approve . . . the proposed 25-year lease by the Tribe of 5,000 acre feet of the
Chemehuevi quantified water rights to the Southeastern Nevada Water Company[.]”
Id. ¶ 112. Thus, the Tribe alleges that “Interior has continued to make the bulk of the
Tribe’s annual water allocation available to other junior users . . . without compensation
being paid to the Tribe, from 1999 up until the time of filing of this Second Amended
Complaint.” Id. (emphasis added). That is the end of the line for Claim III; having
accrued prior to 2010, it is clearly barred by the statute of limitations. 41
Accordingly, Count III is DISMISSED for lack of jurisdiction.
c) Count IV
Count IV seeks compensation for “[t]he Government’s long-term confiscation
and deprivation of the use by the Chemehuevi Tribe of the Chemehuevi Reservation’s
twenty-one (21) miles of Colorado River Shoreline for thirty-three (33) years without
any payment to the Tribe of compensation for the use, lease, and/or temporary taking
of the shoreline and related assets….” Compl. ¶ 128. The statute of limitations clearly
bars this claim.
The Tribe’s Complaint itself discloses that the government took the shoreline
land in question (and its associated rights or assets) in 1940 or 1941. Compl. ¶ 125; see
41The Court agrees with the government that “Count III concerns the management of water
rights determined in 1963” — publicly, in a Supreme Court decision — “along with a specific
allegation regarding the failure to approve a 25-year leasing agreement in 1998.” Def. Mot.
at 14. Even assuming for the sake of argument that the Supreme Court decision in question had
given the Chemehuevi the right to sell unused water to a third-party, the Tribe never alleges
that it tried to do so prior to 1998 or 1999, but the government somehow stood in the Tribe’s
way. And to the extent the government did preclude the Tribe from selling such water prior to
1998, Claim III is time-barred in any event.
Page 33 of 51
also id. ¶¶ 22, 26-27 (the Secretary of the Department of the Interior “approved payment
to the Chemehuevis of $108,104.95” for “lands taken”). Putting aside that the
government voluntarily returned that land to the Tribe after having paid just
compensation, in 1940, 42 for a permanent taking, 43 the alleged 33-year “temporary
taking” 44 period for which the Tribe now seeks compensation — for the same property
— concluded in November 1974. 45 Thus, even assuming the Tribe would have had a
viable claim in 1974 — and that is not the case — the time to pursue its temporary
takings claim has long since passed.
In sum, the Court agrees with the Government that to the extent the Tribe “is
attempt[ing] to challenge the justness of the compensation it received in 1942 for the
Shoreline land when it was acquired for legitimate public purposes, the Complaint
contains no allegations of the inadequacy or unjustness of the compensation it received,
and even it had, the time for any such challenge lapsed decades ago.” Def. Mot. at 33.
The Tribe’s claim for compensation for a temporary taking of land between 1941
and 1974 is DISMISSED for lack of jurisdiction.
3. The ITAS Provisions Do Not Save The Tribe’s Claims From
Dismissal Based On The Applicable Statute Of Limitations
As explained more fully infra, the Court holds that the tolling language that
Congress enacted in the ITAS provisions cannot save the Tribe’s untimely claims. Even
assuming, however, that our approach to the statute of limitations issue and the ITAS
provisions does not support granting the government’s motion to dismiss, the Tribe’s
Complaint pleads itself right out of court. In particular, the Tribe alleges:
The deficiencies and gaps endemic to the Federal
Government’s accounting system severely limited the
Chemehuevi Tribe’s ability to determine the full extent of its
losses as a result of the Federal Government’s breaches of its
fiduciary duties. This problem has not been cured by the
Federal Government’s preparation and release of the
Chemehuevi Tribe’s Arthur Andersen Report. . . .
42Compl. ¶ 30 (“It is undisputed that these funds were placed in a Treasury Account from 1940
until at least June 5, 1970[.]”).
43For that reason alone, the Court GRANTS the government’s motion to dismiss for failure to
state a claim, see infra Section IV.B.
44 Compl. ¶ 128.
45The government’s returning of the land to the Chemehuevi was not concealed. Pl. Resp.
at 64–65.
Page 34 of 51
Compl. ¶ 63 (emphasis added). That assertion is fatal to the Tribe’s entire Complaint 46
because the assertion demonstrates that the Tribe, indeed, was aware “of its losses”
resulting from the “Government’s breaches of its fiduciary duties” even before the 1996
Arthur Andersen Report, just not “the full extent” of such losses. Not only does that
admission give away the proverbial farm, it also demonstrates that the ITAS tolling
provision does not apply for the simple fact that an accounting was not necessary for
the Tribe to determine “a loss.” Wolfchild, 731 F.3d at 1291 (holding that “claims about
‘losses’ or ‘mismanagement’ that are protected by this provision are those for which an
accounting matters in allowing a claimant to identify and prove the harm-causing act at
issue; otherwise, the ITAS would give claimants the right to wait for an accounting that
they do not need”); Goodeagle, 111 Fed. Cl. at 721–22 (“[T]he Appropriations Act
language displaces 28 U.S.C. § 2501 in those circumstances where a ‘final accounting’ is
necessary to put the tribe on notice that a breach of a fiduciary obligation has occurred.”
(citing San Carlos Apache Tribe, 639 F.3d at 1355)). The Tribe has the burden to
demonstrate the timeliness of its claims and despite two-and-a-half years of
jurisdictional discovery and the filing of its Second Amended Complaint, the Tribe
either admits its claims are untimely or otherwise has failed to meet its burden. At a
minimum, in 1996, the clock started to run on both its APA claim for an accounting in
district court and the Tucker Act claims it now pursues here.
****
In 1987, Congress required the government to audit and reconcile tribal trust
funds and to provide the tribes with an accounting of such funds pursuant to the Act of
December 22, 1987, Pub. L. No. 100-202, 101 Stat. 1329. Compl. ¶ 57. Congress
subsequently amplified that requirement in 1994, in the ITFMRA, providing that “[t]he
Secretary [of the Interior] shall transmit to the Committee on Natural Resources of the
House of Representatives and the Committee on Indian Affairs of the Senate, by May
31, 1996, a report identifying for each tribal trust fund account for which the Secretary is
responsible a balance reconciled as of September 30, 1995[.]” 25 U.S.C. § 4044
46This assertion is incorporated by reference in each count of the Complaint. See Compl. ¶¶ 74,
92, 98, 124, 138; see also id. ¶ 143 (alleging government’s accounting systems “severely limited
the Chemehuevi Tribe’s ability to determine the full extent of its losses as a result of the Federal
Government’s breaches of its fiduciary duties” and that “[t]his problem has not been cured by
the Federal Government’s preparation and release of the 199[6] Arthur Andersen Report”
(emphasis added)). Statutes of limitations ordinarily begin to run where “Indians were capable
enough to seek advice, launch an inquiry, and discover through their agents the facts
underlying their current claim.” Menominee Tribe, 726 F.2d at 721; Brown v. United States, 42 F.
Cl. 538, 555 (1998) (quoting same), aff’d, 195 F.3d 1334 (Fed. Cir. 1999); see also Shoshone Indian
Tribe of Wind River Rsrv., Wyo., 672 F.3d at 1030–33 (statute of limitations ran where tribes not
prevented “from being aware of the material facts that gave rise to their claim,” even if they
were not “aware of the full extent of their injury”). The government is correct: “[t]he same
questions that Plaintiff raises now could have been raised decades ago.” Def. Supp. Br. at 4.
Page 35 of 51
(“Reconciliation report”). That statute further required such reconciliation reports to
include:
(1) a description of the Secretary’s methodology in reconciling
trust fund accounts;
(2) attestations by each account holder that—
(A) the Secretary has provided the account holder with
as full and complete accounting as possible of the
account holder’s funds to the earliest possible date,
and that the account holder accepts the balance as
reconciled by the Secretary; or
(B) the account holder disputes the balance of the
account holder’s account as reconciled by the Secretary
and statement explaining why the account holder
disputes the Secretary's reconciled balance; and
(3) a statement by the Secretary with regard to each account
balance disputed by the account holder outlining efforts the
Secretary will undertake to resolve the dispute.
Id. In addition, the ITFMRA required that Interior perform “an annual audit on a fiscal
year basis of all funds held in trust by the United States for the benefit of an Indian tribe
or an individual Indian,” now codified at 25 U.S.C. § 4011(c), and issue a report that
identifies “for each tribal trust fund account for which [Interior’s] Secretary is
responsible[,] a balance reconciled as of September 30, 1995.” 25 U.S.C. § 4044; see Osage
Nation, 57 Fed. Cl. at 394 n.3 (discussing 25 U.S.C. § 4044).
The United States, to meet its various statutory duties, retained an accounting
firm, Arthur Andersen, to prepare and issue reconciliation reports to all federally
recognized tribes. 47 Compl. ¶ 58. The Tribe received its reconciliation report on
47The Tribe and the government dispute whether Arthur Andersen prepared the 1996 Arthur
Andersen Report for the Chemehuevi pursuant to the Act of December 22, 1987, Pub. L. No.
100-202, 101 Stat. 1329, see Compl. ¶ 57, or the ITFMRA. See Def. Supp. Br. at 1–2. This Court
previously has explained the statutory basis for the Arthur Andersen reports, as follows:
Near the end of the 1980s, it appears that Arthur Andersen
performed various work for the BIA, including financial and
compliance audits of the BIA Office of Trust Funds Management
for the fiscal years ending September 30, 1988, 1989 and 1990.
Although this is unclear, the impetus for these audits may have
been statutes Congress passed from 1987 to 1991 requiring audits
of tribal trust accounts. On May 24, 1991, BIA and Arthur Andersen
Page 36 of 51
January 8, 1996. ECF No. 7-4 (Federal Express delivery receipt). The Tribe also
submitted an acknowledgment of the receipt of the report, dated February 9, 1996, in
which the Tribe noted that it “required additional time to review the report and has no
response for acceptance or dispute.” ECF No. 56-3 (emphasis added). The Tribe further
“request[ed] an individual meeting with the BIA to discuss their tribal-specific
questions or concerns regarding the Reconciliation Report at a Regional Meeting” to
take place in Phoenix on March 19-22, 2016. Id. 48
entered into a new contract “to assure that the accounting records
and the accounting balances in the Tribal and Individual Indian
Monies (IIM) accounts are reconciled as accurately as possible back
to the earliest date practicable using available accounting records
and transaction data.” This contract anticipated the active
involvement of the tribes in the reconciliation process and indicated
that both the BIA and the relevant tribes would receive copies of
the final reports and supporting documents. This reconciliation
process was apparently ongoing when, in 1994, Congress enacted
the aforementioned Trust Fund Reform Act, requiring the Secretary
of the Interior to “account for the daily and annual balance of all
funds held in trust by the United States for the benefit of an Indian
Tribe or an individual Indian which are deposited or invested
pursuant to the Act of June 24, 1938.” 25 U.S.C. § 4011(a); see also
Eastern Shawnee Tribe of Oklahoma v. United States, 82 Fed. Cl. 322,
324 (2008). This statute also required the tribes to either accept or
dispute the reconciled account balances, with that information to
be included in a report to Congress from the Secretary of the
Interior by May 31, 1996. 25 U.S.C. § 4044. On December 31, 1995,
Arthur Andersen completed its reconciliation of tribal trust funds
for the period July 1, 1972, through September 30, 1992, and, at or
around that time, delivered reports and account statements to both
the BIA and the tribal account owners. In a modification of the 1991
contract, dated March 5, 1996, BIA engaged Arthur Andersen to
assist it in entering into “settlement discussions” with the tribes.”
Jicarilla Apache Nation v. United States, 88 Fed. Cl. 1, 16–17 (2009). Accordingly, this Court
concludes that the 1996 Arthur Andersen Report was prepared and provided to the Tribe,
pursuant to several statutory provisions, including 25 U.S.C. § 4044, as amended. Id.; see also
ECF No. 90-10 at 2 (“The BIA will present and explain in-depth the report procedures and
findings for the two (2) tribal trust funds reconciliation reports as mandated by the American
Indian Trust Fund Management Reform Act of 1994.”).
48See ECF No. 90-10 (BIA document describing 1996 “National & Regional Meetings” regarding
“Tribal Trust Funds: Reconciliation Procedures and Findings”). Indeed, BIA appears to have
provided the Tribe with every opportunity to understand its 1996 Arthur Andersen Report.
BIA provided the Tribe with five optional locations and dates to conduct an individual meeting
to discuss “tribal-specific questions or concerns regarding the Reconciliation Report.” ECF
No. 56-3 at 2. Additionally, BIA held a national meeting in Albuquerque, New Mexico, to
Page 37 of 51
In 2002, Congress passed “[a]n Act to encourage the negotiated settlement of
tribal claims” that provided as follows:
Notwithstanding any other provision of law, for purposes of
determining the date on which an Indian tribe received a
reconciliation report for purposes of applying a statute of
limitations, any such report provided to or received by an
Indian tribe in response to [the ITFMRA] shall be deemed to
have been received by the Indian tribe on December 31, 1999.
See An Act to Encourage the Negotiated Settlement of Tribal Claims, Pub. L. No. 107–
153, 116 Stat. 79 (Mar. 19, 2002). Congress subsequently updated the deemed-receipt
date, and, thus, irrespective of the actual date of the Tribe’s receipt of the Arthur
Andersen Report, all such reports were “deemed to have been received by the Indian
tribe on December 31, 2000” pursuant to section 304 of the ITFMA, 25 U.S.C. § 4044
note, Pub. No. L. 107-153 § 1, 116 Stat. 79 (Mar. 19, 2002), as amended, Settlement of
Tribal Claims—Amendment, Pub. L. No. 109-158 § 1, 119 Stat. 2954 (Dec. 30, 2005). See
Compl. ¶ 65. 49
The reason for the statutorily-extended deemed-received date was to alleviate
the pressure on Indian claimants to sprint to court, particularly where they and the
“present and explain in-depth the report procedures and findings for the two (2) tribal trust
funds reconciliation reports as mandated by the American Indian Trust Fund Management
Reform Act of 1994.” ECF 90-10 at 1. BIA offered to “pre-pay the airline ticket and reimburse
lodging and per diem expenses” for a representative of the Tribe to attend both the national and
any regional meeting so that BIA could “address questions and/or concerns related to the tribal
trust funds accounts.” Id. While the Tribe contends that no Chemehuevi representative
attended the national meeting in Albuquerque, see Pl. Supp. Br. at 2, the Tribe’s decision not to
accept BIA’s offer does not demonstrate “excusable ignorance” sufficient to toll the statute of
limitations. Brown v. United States, 195 F.3d 1334, 1338 (Fed. Cir. 1999).
49 Although the Tribe contends that it “received the [complete] Arthur Andersen Report in the
mail on March 1, 1996[,]” — and not on January 8, 1996 (the date of the government’s Federal
Express receipt, ECF No. 7-4) — the discrepancy between the two dates is immaterial given
that the Tribe is deemed to have received the Report on December 31, 2000, by operation of
law. Pl. Supp. Br. at 2. The Tribe further contends that its “claims . . . are not time barred
because the statute of limitations did not start to run in 1996[,]”Pl. Supp. Br. at 3, but that date
is a red herring of sorts. For the purpose of determining when the statute of limitations was
triggered (and began to run), the relevant date is provided by statute: December 31, 2000.
Even under that more generous date, however, the Tribe’s claims would be barred as of
December 31, 2006 — well before the Tribe filed the instant case — assuming the ITAS
provisions do not save the covered claims. The Court further notes that many of the Tribe’s
claims were barred well before that; only the claims for which an accounting is relevant are
addressed in this section. See Wolfchild, 731 F.3d at 1291; Shoshone Indian Tribe, 364 F.3d at
1343.
Page 38 of 51
government continued to wrangle over the quality of accounting documents provided
to the trust beneficiaries (i.e., would-be plaintiffs). 50 The reason for the disputes over
the quality of the accounting documents arose from the ITAS tolling provisions
themselves. See S. Rep. No. 109-201, at 2 (2005) (noting that “questions have arisen as
to the adequacy and reliability of the reconciliation reports, and as to whether such
reconciliation reports constituted an ‘accounting’ for the purpose of the language set
forth in numerous Department of Interior Appropriations Acts” and that “it is not at
all clear that the reconciliation reports at issue did in fact constitute an ‘accounting’
sufficient to commence the running of the statute of limitations”).
In other words, because the ITAS provisions suspended the running of the
statute of limitations until the tribes received an accounting, and because there were
disputes regarding whether the reconciliation reports constituted an accounting
sufficient to trigger the statute of limitations (and avoid the ITAS tolling provision),
Congress reset the tribes’ receipt deadline to discourage potential claimants from
running to court. In extending the deemed-receipt date, however, the legislative
history at least suggests that Congress did not intend to take a position on what
qualified as an accounting, as a matter of law, sufficient to trigger the statute of
limitations. Id. at 2–3; see also S. Rep. No. 107-138, at 5 (2002) (“[N]either the bill nor
Congress’ action in approving this bill should be construed to favor any one of the
competing interpretations of the provisions of appropriations acts which preclude the
statute of limitations from commencing to run until an Indian tribe has received an
‘accounting’ and/or ‘an accounting of such funds from which the beneficiary can
determine where there has been a loss.’”). Nor does the plain language of any
statutory provision answer the question.
The upshot of all of this is that Congress did not determine whether
reconciliation reports constituted a per se satisfaction of the ITAS tolling provision, or
whether a court must undertake a fact-intensive review of such reports to decide
whether the ITAS tolling provision was satisfied. Nor has the Federal Circuit spelled
out in any detail what constitutes a “meaningful accounting.” And, while some
decisions of this Court, as noted supra, appear to interpret the ITAS tolling provisions
and the Federal Circuit’s “meaningful accounting” standard as requiring something
more than what is ordinarily required to trigger breach of trust claim accrual, the plain
language of the statute does not support that conclusion, any more than the legislative
history.
50The express purpose of deeming the accounting reports received at a later date was contained
in the statute itself: the December 31, 2000 date “is solely intended to provide recipients of
reconciliation reports with the opportunity to postpone the filing of claims, [and] to encourage
settlement negotiations with the United States.” Pub. No. L. 107-153 § 1(b) (“Statement of
purpose”).
Page 39 of 51
Given the statutory framework, there are three possible scenarios that could
have resulted from the Arthur Andersen reports. First, a tribe might consider its
Arthur Andersen report to be a full and complete accounting of that tribe’s trust
funds, and the tribe would agree with the balances as reported. In that scenario, the
statute of limitations would have commenced, but no litigation would have been
necessary. Second, a tribe might consider its Arthur Andersen report to be a full and
complete accounting of that tribe’s trust funds, but the tribe would disagree with the
balances as reported. In that scenario, the statute of limitations would begin to run on
any claim for monetary damages on the day the tribe received its report and the tribe
could bring a claim for monetary damages to this Court within six years. In both of
those scenarios, the ITAS tolling provisions play no role.
In the third scenario, however, a tribe might believe that its Arthur Andersen
report was not a full and complete accounting of that tribe’s trust funds. In that case,
the tribe would have six years from the date the tribe received its Arthur Andersen
report to challenge the agency action — that is, the adequacy of the accounting given
the government’s statutory duty to prepare one — under the Administrative
Procedure Act (“APA”). See 28 U.S.C. § 2401(a) (providing six-year statute of
limitations for APA claims). 51 At the conclusion of any APA litigation, a tribe may
receive a declaratory judgment that its accounting was incomplete and an order,
directing BIA to produce a complete accounting. Given that such litigation may take
years and that it may take additional time thereafter for BIA to compile a complete
accounting, the ITAS essentially operates to toll the statute of limitations, such that at
the conclusion of that lengthy process, the tribe could then bring its claim for
monetary damages in this Court. See Tohono O’Odham Nation, 563 U.S. at 316–17.
What a tribe may not do is what Plaintiff has done here: fail to dispute the
adequacy of its Arthur Andersen report for sixteen years and then file an equivocal
claim — that is devoid of factual allegations — in this Court, while attempting to
invoke the ITAS tolling provisions in order to save, or resurrect, its otherwise
untimely challenge to the quality of the accounting the Tribe received. Perhaps the
Court might take a different view if some new fact had come to light within the six
years preceding the Tribe’s filing of the Complaint that, coupled with the 1996 Arthur
Andersen Report, showed that it was not sufficiently meaningful to put the Tribe on
notice of a loss. The Court, however, provided the Tribe with more than two years of
jurisdictional discovery to uncover any such facts, but the Tribe failed to do so.
Accordingly, the Tribe has failed to satisfy its burden to prove that this Court
possesses subject-matter jurisdiction over its claims.
51This scenario assumes that the presentation of an Arthur Andersen report represented final
agency action. To the extent that the presentation of an Arthur Andersen report was not final
agency action, a tribe would have six years to bring an APA challenge to the sufficiency of the
accounting from whatever later date the agency action became final.
Page 40 of 51
The language of 25 U.S.C. § 4044 supports the Court’s interpretation of the
statutory framework and its application to the Tribe’s Complaint. Section 4044 of Title
25 of the United States Code provides that the Tribe was required either (a) to
acknowledge that the government had provided the Tribe “with as full and complete
accounting as possible of the account holder’s funds to the earliest possible date, and
that the account holder accepts the balance as reconciled by the Secretary”; or (b) to
“dispute[] the balance of the . . . account as reconciled by the Secretary [with a]
statement explaining why the account holder disputes the Secretary’s reconciled
balance[.]” 25 U.S.C. § 4044(2)(a)–(b) (emphasis added). Where a tribe disputes a
balance, the Secretary then must include a statement in the report “outlining efforts
the Secretary will undertake to resolve the dispute.” Id. § 4044(3).52 Congress did not
provide a third option for an open-ended, unlimited duration for the Tribe to consider
whether the accounting was “full and complete” and accurate, or whether to dispute a
particular balance. Nor did Congress provide, with the ITAS tolling provisions, an
avenue for the Tribe to bring an untimely APA action in this Court.
In this case, the Tribe contends that it “never submitted an Attestation Form
accepting the Report,” Pl. Supp. Br. at 2, but that is plainly not the case. See ECF
No. 56-3 (“Acknowledgment required by Sec. 304(2) of P.L. 103-412”). 53 The Tribe
makes no attempt to explain the attestation in the record, which, along with the Tribe’s
request for a meeting with the Department of the Interior, demonstrates that the Tribe
received the 1996 Arthur Andersen Report and had ample time to examine,
understand, and dispute it — or to challenge that it was a “full and complete
accounting” in district court. Id. In other words, having provided the Tribe with a
reconciliation report pursuant to 25 U.S.C. § 4044, Interior essentially asserted to the
Tribe that the 1996 Arthur Andersen Report was as “meaningful” of an accounting as
the Tribe was ever going to receive. Rather than promptly proceed to district court to
seek the accounting the Tribe now improperly seeks in this Court, the Tribe sat on its
rights. In that regard, the Court notes once again that “the Indian beneficiary of a
trust, no less than any other, is charged with notice [i.e., knowledge] of whatever facts
an inquiry appropriate to the circumstances would have uncovered.” Brown, 42 F.
Cl. at 554 (internal quotation omitted), aff’d, 195 F.3d 1334 (Fed. Cir. 1999); 42 Fed. Cl.
52 Indeed, these “efforts” may lead to final agency action sufficient to trigger the APA’s statute
of limitations clock. 28 U.S.C. § 2401(a) (providing six-year statute of limitations for APA
claims); see also Nez Perce Tribe v. Kempthorne, No. 06-2239, 2008 WL 11408458, at *2 (D.D.C. Dec.
1, 2008) (discussing tribal lawsuit “filed on December 28, 2006, three days before a generic
period of limitations for federal suits would run on a claim that accrued on December 31, 2000,”
seeking “a judgment declaring that the TRP Reports are not complete accountings of tribal trust
funds and that the plaintiffs have not otherwise received such an accounting”).
53The Tribe nowhere disputes the authenticity of this document, and the Plaintiff bears the
burden of demonstrating that its claims are timely.
Page 41 of 51
at 549 (“Substantial precedent holds that Indians are not granted special consideration
on the basis of ignorance of the accrual of claims under the statute of limitations.”).
In an attempt to evade the impact of having received the 1996 Arthur Andersen
Report long ago, the Tribe now contends that “the Arthur Andersen Report itself did
not purport to be an accounting.” Pl. Supp. Br. at 3. But that contention is refuted not
only by § 4044, but also by the Tribe’s own Complaint, in which the Tribe specifically
alleges that the 1996 Arthur Andersen Report was prepared in response to a
congressional mandate “(1) to audit and reconcile tribal trust funds and (2) to provide
the Chemehuevi Tribe and other tribes with an accounting of such funds.” Compl.
¶ 57 (emphasis added); see also id. ¶ 58 (“To satisfy the requirements of the Act of
December 22, 1987, the Federal Government, among other things, retained the
accounting firm of Arthur Andersen LLP . . . to prepare and issue reports to the
Chemehuevi Tribe and other federally recognized tribes.”).
In any case, the Tribe admits that the 1996 Arthur Andersen Report included
approximately 6,000 images, including roughly 400 deposit tickets, 60 vouchers and
schedules of payment, and 40 reconciliation checklists, among other documents. Pl.
Supp. Br. at 1. The Tribe recently may have developed some legitimate gripes about
the Report’s readability or clarity, id. at 1-2, but the Tribe — as explained supra — had
every opportunity to engage with the government to understand the Report’s contents
and conclusions, and to register disagreement. Shoshone Indian Tribe of Wind River
Rsrv., Wyo., 672 F.3d at 1032 (“As explained in both Menominee [Tribe] and Catawba
[Indian Tribe], a trust beneficiary’s subjective ignorance of the law giving rise to its
claim, even if predicated on misleading statements relating to those legal rights, does
not toll the accrual of the statute of limitations.” (internal citations omitted)). The
Tribe, however, having stuck its head in the sand, cannot now raise it out, complain
about the quality of the Report, and allege that it knows it has suffered a loss — but
decline to allege any supporting facts, as opposed to conclusory legal assertions — all
while variously insisting that it may or may not know anything based upon the
Report. Id. at 3 (“The Arthur Andersen Report contains no information relating to any
of the Tribe’s claims in this case for loss or mismanagement of funds held in
trust . . . .”). 54
Even if the ITAS tolling provisions were not satisfied, however, we should be clear about
54
what types of claims the provisions potentially cover:
The Federal Circuit repeatedly has held that “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.” [T]he
tolling provisions of the Appropriations Act riders only apply to
claims for mismanagement of trust funds.
Page 42 of 51
* * * *
Finally, for the first time in its response to the government’s motion to dismiss, 55
the Tribe, relying on Pueblo of San Ildefonso v. United States, 35 Fed. Cl. 777, 790 (1996),
asserts that the “continuing claims doctrine” saves its otherwise untimely claims. See
Pl. Resp. at 19–20. In Pueblo of San Ildefonso, the Court explained that “Plaintiff has the
burden of establishing a continuing wrong.” 35 Fed. Cl. at 790. The Tribe’s mere
invocation of the continuing claims doctrine — without so much as identifying to which
claims the doctrine applies — does not satisfy the Tribe’s burden. The Tribe’s
Complaint does not contain a single factual allegation of a continuing wrong that can be
“broken down into a series of independent and distinct events or wrongs.” Brown Park
Estates-Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1456 (Fed. Cir. 1997). The Court
is not bound to accept the Tribe’s naked, conclusory legal assertions that the
government breached its fiduciary duties, and the Court will not further find that these
legal conclusions — without any factual support — represent continuing wrongs for the
purposes of establishing jurisdiction.
Accordingly, the Court GRANTS the government’s motion to dismiss the
Complaint pursuant to RCFC 12(b)(1).
B. Counts II, III, And IV Of The Tribe’s Complaint Fail To State A Claim
As A Matter Of Law
The government, in its motion to dismiss, alternatively argues that this Court
should dismiss Counts II, III, and IV of the Tribe’s Complaint for failure to state a claim
Goodeagle v. United States, 111 Fed. Cl. 716, 724–25 (2013) (internal citations omitted) (quoting
Shoshone Indian Tribe of Wind River Rsrv., Wyo., 672 F.3d at 1034–35 (quoting Shoshone Indian
Tribe, 364 F.3d at 1350–51)). An accounting would not disclose any facts or provide any useful
information regarding claims about suboptimal investments, most notably those in Count Three
of the Tribe’s Complaint. Compl. ¶¶ 114–17; Goodeagle, 111 Fed. Cl. at 721–22 (“As applied to
this case, a ‘final accounting’ logically would be necessary to address trust fund losses on actual
leases. However, a ‘final accounting’ would not be necessary for hypothetical leases that were
never executed. Thus, the Court concludes that Plaintiffs’ third cause of action is timely as to
allegations relating to actual leases, but is not timely as to hypothetical leases.”). Additionally,
the Tribe maintains that the 1996 Arthur Andersen Report “was not sufficient to draw any
conclusion on the accuracy of the accounting of the Tribe’s trust funds, or the acceptability of the
investment management of those funds by the Government.” Pl. Resp. at 10 (emphasis added). As
explained in Goodeagle, however, the ITAS provisions do not cover “the acceptability” of the
government’s “investment management” decisions. 111 Fed. Cl. at 724–25; see also Pl. Supp. Br.
at 3 (admitting that the 1996 Arthur Andersen Report “contains no information relating to . . .
the Government’s duties to . . . properly invest” funds (emphasis added)).
55The Tribe addresses the statute of limitations issues at length in its Complain, see Compl.
¶¶ 57–67, but nowhere alleges facts or even legal conclusions to support the favorable
application of the continuing claims doctrine.
Page 43 of 51
pursuant to RCFC 12(b)(6). Def. Mot. at 32. The Complaint largely consists of “labels
and conclusions” or “formulaic recitation[s] of the elements of a cause of action.” See
Twombly, 550 U.S. at 555 (citations omitted). The law does not require that this Court
assume those legal conclusions to be true. In other instances, the Complaint simply fails
to plead “facts which give rise to a plausible inference that the government” is liable for
the misconduct that the Tribe claims. See Todd Const., 656 F.3d at 1316. Accordingly,
and for the reasons that follow, the Court GRANTS the government’s motion to
dismiss Counts II, III, and IV for failure to state a claim on which the Court may grant
relief.
1. Count II Fails To State A Claim
On December 17, 1964, the Tribe “entered into a Final Stipulation For Entry Of
Final Judgment [with the government] . . . in which the Chemehuevi claims in Dockets
351 and 351-A were settled, after deductions, credits and offsets, for a net judgment of
$996,834.81.” Compl. ¶ 47. By the Act of September 25, 1970, 84 Stat. 868, Congress
“authorized for distribution in per capita payments to tribal members” the $996,834.81.
Id. ¶ 48 (emphasis in original). The Tribe’s Complaint contains no factual allegations
that any of the per capita payments actually remain unclaimed, yet the Tribe now
asserts that it is “entitled to claim, and does claim, all unclaimed per capita payments”
and alleges, in Count II of its Complaint — and again without any factual allegations to
support the claim — that the government “breached its fiduciary duties owed to the
Chemehuevi Tribe” with respect to these funds. Id. ¶¶ 50, 94. Accordingly, Count II of
the Tribe’s Complaint fails to state a claim as a matter of law.
Section 164 of Title 25 of the United States Code provides:
Unless otherwise specifically provided by law, the share of an
individual member of an Indian tribe or group in a per capita
or other distribution, individualization, segregation, or
proration of Indian tribal or group funds held in trust by the
United States, or in an annuity payment under a treaty,
heretofore or hereafter authorized by law, and any interest
earned on such share that is properly creditable to the
individual shall be restored to tribal ownership if for any
reason such share cannot be paid to the individual entitled
thereto and remains unclaimed for a period of six years from
the date of the administrative directive to make the payment,
or one year from September 22, 1961, whichever occurs later.
Section 115.820 of Title 25 of the Code of Federal Regulations provides (emphasis
added):
Page 44 of 51
Funds in a returned per capita account will not automatically
be returned to a tribe. However, a tribe may apply under 25
U.S.C. 164 and Public Law 87–283, 75 Stat. 584 (1961), to have
the unclaimed per capita funds transferred to its account for
the tribe’s use after six years have passed from the date of
distribution.
Despite the plain language of the regulation, the Tribe asserts that “[b]y filing its claim
in this Court, the Tribe has ‘applied’ for the transfer of the unclaimed funds.” Pl. Resp.
at 40–41. The Court, however, need not decide whether the Tribe’s filing of its claim in
this Court constitutes a proper application for the transfer of the unclaimed funds under
the statute and regulation because the Tribe fails to include any factual allegation that
any unclaimed funds actually exist.56 Put differently, the Tribe’s inability to allege that
the government actually possesses any funds which the Tribe may or may not be
entitled to claim is fatal to the Tribe’s claim that the government has somehow
mismanaged said funds. See Iqbal, 556 U.S. at 662 (a plaintiff must “plead[ ] factual
content that allows [a] court to draw the reasonable inference that the defendant is
liable for the misconduct alleged” to survive a 12(b)(6) motion).
Further still, even if the Tribe alleged facts substantiating that the government
held unclaimed per capita funds in trust for the Chemehuevi, the Complaint consists of
nothing more than legal conclusions regarding the government’s alleged breaches of its
fiduciary duties. See Compl. ¶¶ 95(a)–(e) (concluding without factual allegations that
the government breached its fiduciary duties by “[f]ailing to invest, or underinvesting,”
“[f]ailing to account for,” “[f]ailing to properly manage,” “[f]ailing to obtain the highest
available rates of interest” on, and “[f]ailing to deposit and/or properly invest” the
subject funds). The Court may not presume these legal conclusions are true for the
purposes of resolving a RCFC 12(b)(6) motion to dismiss, nor will the Court permit the
Tribe to engage in a fishing expedition into alleged mismanagement of funds that the
government may have already properly distributed to the Chemehuevi’s members.
The Tribe, erroneously relying on this Court’s decision in Quapaw Tribe of
Oklahoma v. United States, 120 Fed. Cl. 612 (2015), asserts that “there is no need for the
Tribe to allege that one or more of the per capita payments remain unclaimed.” Pl.
56 The Court is highly skeptical — putting it mildly — that the Tribe’s Complaint satisfies the
application for funds contemplated by the regulatory scheme. See Sandvik Steel Co. v. United
States, 164 F.3d 596, 599–600 (Fed. Cir. 1998) (holding that “detailed . . . determination
procedures that [agency] has provided constitute precisely the kind of administrative remedy
that must be exhausted before a party may litigate the validity of the administrative action”); see
also Palladian Partners, Inc. v. United States, 783 F.3d 1243, 1254 (Fed. Cir. 2015) (explaining that
“the exhaustion doctrine recognizes the notion, grounded in deference to Congress’ delegation
of authority to coordinate branches of Government, that agencies, not the courts, ought to have
primary responsibility for the programs that Congress has charged them to administer”
(internal quotation omitted)).
Page 45 of 51
Resp. at 41 (internal quotation omitted). That position misstates both the pleading
standards under this Court’s rules and the decision in Quapaw, 120 Fed. Cl. at 617.
First, the proposition that a complaint does not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement’” is black letter law. Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 557). Permitting the Tribe to pursue a claim for
unclaimed per capita payments when the Tribe does not (and apparently cannot) even
assert that any unclaimed per capita payments exist would fly in the face of more than a
decade of Supreme Court and Federal Circuit precedent.
Second, this Court’s decision in Quapaw, 120 Fed. Cl. at 617, supports the
conclusion that the Tribe’s equivocal legal conclusions in Count II of the Tribe’s
Complaint fail to state a claim as a matter of law. Despite the Tribe’s cherrypicked
quotations, the plaintiff in Quapaw, prior to initiating suit in this Court, “filed suit in the
U.S. District Court for the Northern District of Oklahoma” and entered into a settlement
agreement under which “a not-for-profit Tribal entity, would prepare an analysis of the
Government's management of Tribal assets.” 120 Fed. Cl. at 614. That entity reviewed
government records and prepared for the plaintiff an accounting, which the plaintiff
then relied on” to claim in this Court that “25 percent of the distributions were
unaccounted for and could not have been made.” Id. at 618. Accordingly, the plaintiff
in Quapaw plausibly alleged facts that supported the plaintiff’s claim that the
government both possessed and mismanaged the plaintiff’s unclaimed per capita
distributions. 57 Here, the Tribe relies on nothing more than equivocal statements that
unclaimed per capita distributions may or may not exist and that the government may
or may not have mismanaged any such funds. See Compl. ¶¶ 94–95. Such statements
are insufficient to survive a motion to dismiss pursuant to RCFC 12(b)(6).
In light of overwhelming binding and persuasive precedent, the Court GRANTS
the government’s motion to dismiss Count II of the Tribe’s Complaint for failure to state
a claim as a matter of law.
57Indeed, the facts Quapaw comport with this Court’s views regarding the procedures the Tribe
should have followed to pursue its claim for a more robust accounting. See infra Section IV.A.3.
In Quapaw, the Tribe first sued the government in district court and, as part of a settlement,
received an accounting. 120 Fed. Cl. at 614. Subsequently, the Tribe sued the government in
this Court for the monetary damages, which the accounting had revealed. Id. at 618.
Page 46 of 51
2. Count III Fails To State A Claim
In 1952, the State of Arizona filed a complaint against the State of California
“over how much water each State has a legal right to use out of the waters of the
Colorado River and its tributaries.” Arizona v. California, 373 U.S. 546, 551 (1963). In
1953, the United States intervened in the litigation and “asserted claims to waters in the
main river and in some of the tributaries for use on Indian Reservations,” including the
Chemehuevi reservation. Id. at 595. The United States Supreme Court appointed a
Special Master “to take evidence, find facts, state conclusions of law, and recommend a
decree,” and the Special Master “found both as a matter of fact and law that when the
United States created these reservations or added to them, it reserved not only land but
also the use of enough water from the Colorado to irrigate the irrigable portions of the
reserved lands.” Id. at 551, 596 (emphasis added). The Supreme Court “concluded, as
did the Master, that the only feasible and fair way by which reserved water for the
reservations can be measured is irrigable acreage” and found “[t]he various acreages of
irrigable land . . . to be reasonable.” Id. at 601.
Accordingly, the Supreme Court issued a final decree, allocating to the Tribe
“annual quantities [of Colorado River water] not to exceed (i) 11,340 acre-feet of
diversions from the mainstream or (ii) the quantity of mainstream water necessary to
supply the consumptive use required for irrigation of 1,900 acres and for the
satisfaction of related uses, whichever of (i) or (ii) is less.” 1964 Arizona Decree, 376 U.S.
at 344 (emphasis added). Count III of the Tribe’s Complaint notes that the Tribe “has
used or consumed on the Chemehuevi Reservation only a small portion of the Tribe’s
annual allocation of water from the Colorado River” and contends that the government
has taken the remainder “without any payment to the Tribe of compensation.” Compl.
¶¶ 107, 118. Count III fails to state a claim as a matter of law. See Def. Mot. at 37.
The Fifth Amendment to the United States Constitution “guarantee[s] that
private property shall not be taken for a public use without just compensation.”
Armstrong v. United States, 364 U.S. 40, 49 (1960). The test for determining whether an
unconstitutional taking of property has occurred requires consideration of the extent to
which the government action may interfere with the owner’s “distinct [] expectations.”
Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). Here, there is no
viable takings claim because the Tribe has failed to allege any interference with the
Tribe’s water rights under Arizona v. California.
In its final decree, the Supreme Court allocated to the Tribe “annual quantities
[of Colorado River water] not to exceed (i) 11,340 acre-feet of diversions from the
mainstream or (ii) the quantity of mainstream water necessary to supply the
consumptive use required for irrigation of 1,900 acres and for the satisfaction of related
uses, whichever of (i) or (ii) is less.” 1964 Arizona Decree, 376 U.S. at 344 (emphasis
added). Thus, the Tribe’s water rights “are usufructuary in nature—meaning that the
property right ‘consists not so much of the fluid itself as the advantage of its use’—
Page 47 of 51
[and] the Tribe has no right to any particular molecules of water, either on the
Reservation or up- or downstream, that may have been used or diverted by the
government.” Crow Creek Sioux Tribe, 900 F.3d at 1357 (quoting Casitas Mun. Water Dist.
v. United States, 708 F.3d 1340, 1353 (Fed. Cir. 2013)). The Tribe has not alleged that the
United States has taken any action which has prevented the Tribe from obtaining 11,340
acre-feet of mainstream water or the quantity of mainstream water necessary for
irrigation of 1,900 acres of reservation land. Rather, the Tribe has admitted that it has
used “only a small portion” of this water and seeks to sell off or lease the remaining
water. Compl. ¶¶ 107, 118. “In so arguing, the Tribe appears to misunderstand what
its water rights entail.” Crow Creek Sioux Tribe, 900 F.3d at 1357.
The Supreme Court did not allocate the Tribe unrestricted rights to a certain
quantity of water; the Tribe solely possesses the right to use a certain amount of water
“for irrigation.” 1964 Arizona Decree, 376 U.S. at 344; see Arizona v. California, 373 U.S. at
601 (“How many Indians there will be and what their future needs will be can only be
guessed. We have concluded, as did the Master, that the only feasible and fair way by
which reserved water for the reservations can be measured is irrigable acreage. The
various acreages of irrigable land which the Master found to be on the different
reservations we find to be reasonable.”); id. at 596 (“[W]hen the United States created
these reservations or added to them, it reserved not only land but also the use of
enough water from the Colorado to irrigate the irrigable portions of the reserved
lands.”). Accordingly, just as the Federal Circuit held in Crow Creek Sioux Tribe, the
“Tribe’s [water] rights, which give the Tribe the right to use sufficient water to fulfill the
purposes of the Reservation, simply cannot be injured by government action that does
not affect the Tribe’s ability to use sufficient water to fulfill the purposes of the
Reservation. The complaint in this case does not allege that the challenged government
action has such an effect.” 900 F.3d at 1357; see also Tr. at 79:15–17 (“MR. MARZULLA:
. . . I did not mean to suggest to the Court that the water right is something other than a
usufruct.”).
Accordingly, the Court GRANTS the government’s motion to dismiss Count III
of the Tribe’s Complaint pursuant to RCFC 12(b)(6).
3. Count IV Fails To State A Claim
In its Complaint, the Tribe admits that, by the Act of July 8, 1940, 54 Stat. 744, the
government took “7,776.14 acres” of the Tribe’s land — including lands lying along
twenty-one miles of the Colorado River shoreline — for the public purpose of building
the Parker Dam. Compl. ¶¶ 23, 27. The Tribe further admits that, at the time of the
taking, the government compensated the Chemehuevi for the land by placing
$108,104.95 in a United States Department of the Treasury account for the benefit of the
Tribe. Id. ¶ 30. The Tribe then notes that, on November 1, 1974, by order of the
Secretary of the Interior, the government returned “equitable title to lands lying along
twenty-one (21) miles of shoreline along the Colorado River . . . to the Chemehuevi
Page 48 of 51
Tribe after thirty-three (33) years.” Id. ¶ 125. In the face of these facts, Count IV of the
Tribe’s Complaint alleges that the United States’ “long-term confiscation and
deprivation of . . . twenty-one (21) miles of Colorado River shoreline for thirty-three (33)
years without any payment to the Tribe of compensation for the use, lease, and/or
temporary taking of the shoreline and related assets, improvements and riparian rights,
amounts to a taking of the Tribe’s property without just compensation in violation of
the Fifth Amendment.” Id. ¶ 128. Count IV fails to state a claim as a matter of law for a
temporary taking of the Tribe’s shoreline property from 1941 until 1974.
The Fifth Amendment to the United States Constitution “guarantee[s] that
private property shall not be taken for a public use without just compensation.”
Armstrong, 364 U.S. at 49. Accordingly, “the text of the Fifth Amendment imposes two
conditions on the exercise of [government] authority: the taking must be for a ‘public
use’ and ‘just compensation’ must be paid to the owner.” Brown v. Legal Found. of Wash.,
538 U.S. 216, 231–32 (2003) (quoting U.S. Const., Amend. V.). “Temporary takings are
not different in kind from permanent takings.” Wyatt v. United States, 271 F.3d 1090,
1097 n.6 (Fed. Cir. 2001). Rather, “[a] temporary taking occurs when what would
otherwise be a permanent taking is temporally cut short.” Id.
In this case, the government, by the Act of July 8, 1940, 54 Stat. 744, purported to
permanently take “7,776.14 acres” of the Tribe’s land for the public purpose of building
the Parker Dam. Compl. ¶¶ 23, 27. The government then paid just compensation to the
Tribe in the amount of $108,104.95 to permanently take that land, much of which the
government thought would be flooded by the construction and operation of the Parker
Dam. Id. ¶ 30. The Parker Dam project, however, apparently did not flood all the land
that the government took and for which the government compensated the Tribe. Thus,
the government, by order of the Secretary of the Interior on November 1, 1974, returned
“equitable title to lands lying along twenty-one (21) miles of shoreline along the
Colorado River” that were not flooded. Id. ¶ 125.
The Tribe does not claim that the government forced the Tribe to return any of
the money that the government originally had paid to the Tribe for the permanent
taking. Indeed, the Tribe already has double recovered, in some sense, by both
retaining the compensation that the government originally had provided for the
permanent taking and also now possessing title to the land that the government
originally thought it would need for the Parker Dam project. Now, the Tribe seeks to
triple recover by forcing the government to pay again for its so-called temporary taking
of land the government already paid for and then returned. The Tribe does not cite to a
single case in which any court has permitted such recovery, and this Court refuses to be
the first.
Page 49 of 51
As the Tribe already has received just compensation for the land, Count IV of the
Tribe’s Complaint fails to state a claim as a matter of law. To the extent the Tribe seeks
additional compensation for the original taking, that claim is time-barred, as explained
supra.
The Court also GRANTS the government’s motion to dismiss the portion of
Count IV of the Tribe’s Complaint that includes a separate claim for alleged
mismanagement of funds that the government purportedly deposited into “suspense
accounts” or “special deposit accounts” for the Tribe. See Compl. ¶¶ 133–37. First, the
Complaint is devoid of any factual allegations that the government mismanaged any
funds held in any suspense accounts; rather, the Complaint seeks “damages for any and
all mismanagement of the Tribe’s BIA suspense and/or special deposit accounts that
were maintained from time to time for the Tribe by the BIA during the time period from
1946 until the present.” Id. ¶ 137 (emphasis added). The Tribe’s inability to “plead[ ]
factual content that allows [the] court to draw the reasonable inference that the
defendant is liable for the misconduct alleged” is fatal to the Tribe’s claim. Iqbal, 556
U.S. at 662. Second, the Tribe has not alleged that the government had any specific legal
duty that it owed to the Tribe with regard to any suspense accounts. Indeed, the
government correctly explains that 25 C.F.R. § 115.002 defines a “special deposit
account” as “a temporary account for the deposit of trust funds that cannot immediately
be credited to the rightful account holders” and that 25 C.F.R. § 115.901 provides that
the government will only disburse funds after “the BIA[’s] certification of the
ownership of the funds.” See Def. Mot. at 34.
A plaintiff, of course, might properly claim that it is the rightful owner of certain
funds in a particular suspense account. The Tribe cannot, however, properly maintain
its current claim, in which the Tribe equivocally opines that it may or may not have
been entitled to funds in some unidentified suspense accounts which the government
may or may not already have disbursed to the Chemehuevi. See DM Research, Inc. v.
Coll. of Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999) (“the price of entry, even to
discovery, is for the plaintiff to allege a factual predicate concrete enough to warrant
further proceedings[;] . . . [c]onclusory allegations in a complaint, if they stand alone,
are a danger sign that the plaintiff is engaged in a fishing expedition”); Reich v. Lopez, 38
F. Supp. 3d 436, 459 (S.D.N.Y. 2014) (“reliance on ‘conclusory’ allegations is generally
not enough . . . as it may lead to an unwarranted ‘fishing expedition’” (internal citation
omitted)), aff’d, 858 F.3d 55 (2d Cir. 2017); Oreman Sales, Inc. v. Matsushita Elec. Corp. of
Am., 768 F. Supp. 1174, 1180 (E.D. La. 1991) (“plaintiff may no longer file a conclusory
complaint not well-grounded in fact [and] conduct a fishing expedition for discovery”).
The Complaint does not include sufficient factual allegations to proceed, and,
accordingly, the Court DISMISSES this aspect of Count IV of the Tribe’s Complaint.
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CONCLUSION
The Court has considered all of the parties’ arguments. Given the Court’s
disposition, those arguments not otherwise addressed herein are unnecessary to the
ultimate resolution of this case.
The Court GRANTS defendant’s motion and DISMISSES the Complaint
pursuant to RCFC 12(b)(1) and, in the alternative (with respect to Counts II – IV), RCFC
12(b)(6). No costs. The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/Matthew H. Solomson
Matthew H. Solomson
Judge
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