usca case #11-5049 document #1310322 filed: 05/27/2011 … · 2011. 5. 31. · case no....

Case No. 11-5049___________________________________________________________

UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

___________________________________________________________

TIMBISHA SHOSHONE TRIBE, et al.,

Appellants,

v.

KENNETH LEE SALAZAR, Secretary of Interior, et al.,

Appellees.____________________________________________________________

On Appeal from the United States District Court for the District of Columbia

Case No. 1:10-cv-00968-GK, Judge Gladys Kessler____________________________________________________________

BRIEF OF APPELLANTS____________________________________________________________

COUNSEL FOR APPELLANTS

Of CounselDavid Kairys1719 North Broad StreetPhiladelphia, PA 19122(215) 204-8959

Robert T. CoulterPhilomena KebecKirsten CarlsonIndian Law Resource Center602 North Ewing StreetHelena, MT 59601(406) 449-2006

USCA Case #11-5049 Document #1310322 Filed: 05/27/2011 of 85

i

PLAINTIFFS-APPELLANTS’ CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES

Parties and Amicus. The Plaintiffs-Appellants are: Timbisha Shoshone

Tribe, Joe Kennedy, Pauline Esteves, Angie Boland, Grace Goad, and Madeline

Esteves. The Defendants-Appellees are: Kenneth Salazar, Secretary of the Interior;

the United States Department of the Interior; Timothy Geithner, Secretary of the

Treasury; and the United States Department of the Treasury. George Gholson

participated in the case as amicus curiae.

Ruling Under Review. This case is an appeal from an order dismissing

this action entered by the United States District Court for the District of Columbia

by the Honorable Gladys Kessler on March 1, 2011, in Timbisha Shoshone Tribe v.

Salazar, Civil No. 10-968. Judge Kessler filed a memorandum opinion the same

day. This appeal also seeks review of the district court’s denial of a preliminary

injunction, issued from the bench on January 20, 2011. An order denying the

injunction was filed that same day. The order and transcript of decision are

included in the Appendix. JA 251, 252.

Related Cases. There are no related cases before this or any other federal

court.


ii

TABLE OF CONTENTS

CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. The District Court Erred in Ruling that the Tribe has No VestedInterest Protected by the Fifth Amendment in the Judgment FundAwarded to It. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. The Distribution Act Denies Equal Protection of the Law. . . . . . . 16

A. The Act is Subject to Strict Scrutiny Because it Imposes Harm Based on an Explicitly Racial Classification. . . . . . . 16

B. Equal Protection: The Act Also Lacks a Rational or LegitimateGovernmental Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

III. The District Court Applied an Erroneous Legal Standard and Abused its Discretion in Denying a Preliminary Injunction. . . . . . 23

A. Likelihood of Success on the Merits: The District Court Abusedits Discretion and Made Clearly Erroneous Findings in Deciding Plaintiffs-Appellants are Not Likelyto Establish Their Authority to Sue. . . . . . . . . . . . . . . . . . . 24

B. Irreparable Harm: The Tribe has No Available DamagesRemedy, Nor Would a Potential Damages Remedy Preclude a Preliminary Injunction in these Circumstances. 25

C. The District Court Abused Its Discretion in Weighing theEquities and Determining the Public Interest. . . . . . . . . . . . 28


iii

CONCLUSION AND PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . 30

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

STATUTORY ADDENDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

ADDENDUM II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50


iv

TABLE OF AUTHORITIES

Cases

Adams v. United States, 391 F.3d 1212 (Fed. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

*Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 16, 17, 20, 21

Amer. Federation of Government Employees v. United States, 330 F.3d 513 (D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Assiniboine v. United States, 121 F. Supp. 906 (Ct. Cl. 1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Axel Johnson Inc. v. Arthur Andersen & Co., 6 F.3d 78 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8

*Babbitt v. Youpee, 519 U.S. 234 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Barenblatt v. U.S., 360 U.S. 109 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Benjamin v. Jacobson, 124 F.3d 162 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Brown v. Board of Education,347 U.S. 483 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Cherokee Freedmen & Cherokee Freedmen’s Assoc. v. United States, 195 Ct. Cl. 39 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

*Chippewa Cree Tribe v. United States, 69 Fed. Cl. 639 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

* Authorities upon which we chiefly rely are marked with asterisks.


v

Chippewa Cree Tribe v. United States, 73 Fed. Cl. 154 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

*Daylo v. Administrator of Veterans’ Affairs, 501 F.2d 811 (D.C. Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

De Beers Consol. Mines v. United States, 325 U.S. 212 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Deckert v. Independence Shares Corp., 311 U.S. 282 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

*Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-14, 29

*Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 27

Ellipso, Inc. v. Mann, 480 F.3d 1153 (D.C. Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

*Elrod v. Burns, 427 U.S. 347 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

F.T.C. v. Whole Foods Market, Inc., 548 F.3d 1028 (D.C. Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Fallon Paiute-Shoshone Tribes v. City of Fallon, 174 F. Supp. 2d 1088 (D. Nev. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Georgia Ass’n of Retarded Citizens v. McDaniel, 855 F.2d 805 (11th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Glidden Co. v. Zdanok, 370 U.S. 530 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8


vi

Goodface v. Grassrope, 708 F.2d 335 (8th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Gratz v. Bollinger, 539 U.S. 244 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Grutter v. Bollinger, 539 U.S. 306 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

*Hodel v. Irving, 481 U.S. 704 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

*Johnston v. Cigna Corp., 14 F.3d 486 (10th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033 (D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Kiowa Tribe of Okla. v. Mfg. Tech., Inc., 523 U.S. 751 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Korematsu v. United States, 323 U.S. 214 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

LeBeau v. United States, 171 F. Supp. 2d 1009 (D.S.D. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

LeBeau v. United States, 474 F.3d 1334 (Fed. Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

*McCullough v. Virginia, 172 U.S. 102 (1898) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Miller v. Johnson, 515 U.S. 900 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

*Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

*Minnesota Chippewa Tribe v. United States, 315 F.2d 906 (Ct. Cl. 1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11


vii

Morrison v. Garraghty, 239 F.3d 648 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Morton v. Mancari, 417 U.S. 535 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 23

Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288 (D.C. Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

*Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421 (1855) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Plaut v. Spendthrift, 514 U.S. 211 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

*Richmond v. Croson, 488 U.S. 469 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 21

Serono Laboratories, Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25

Shaw v. Reno, 509 U.S. 630 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Sioux Tribe v. United States, 84 Ct. Cl. 16, 1936 WL 2974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

*Sisseton-Wahpeton Sioux Tribe v. United States, 686 F. Supp. 831 (D. Mont. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

*Student Loan Mktg. Ass’n v. Riley, 104 F.3d 397 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 26-27

Suffolk v. Long Island Lighting Co., 14 F. Supp. 2d 260 (E.D.N.Y. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Temoak Band of Western Shoshone Indians v. United States, 593 F.2d 994 (Ct. Cl. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 23


viii

Treiber v. Katz, 796 F. Supp. 1054 (E.D. Mich. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tuttle v. Kaiser Co., 863 F.2d 601 (8th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

*United States v. Cherokee Nation of Oklahoma, 480 U.S. 700 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14

*United States v. Creek Nation, 295 U.S. 103 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14

*United States v. Dann, 470 U.S. 39 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9, 13, 14, 15

United States v. Jim, 409 U.S. 80 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

*United States v. O’Grady, 89 U.S. 641 (1874) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

*United States v. Sioux Nation, 448 U.S. 371 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10, 14, 15

Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19

Western Shoshone Identifiable Group v. United States, 40 Ind. Cl. Comm. 318 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

*Western Shoshone Identifiable Group v. United States, No. 1:06-cv-00896-EJD (Fed. Cl. Nov. 24, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Wichita & Affiliated Tribes v. Hodel, 788 F.2d 765 (D.C. Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Winter v. NRDC, Inc., 555 U.S. 7, 129 S.Ct. 365 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23


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Worcester v. Georgia, 31 U.S. 515 (1832) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Statutes

Western Shoshone Claims Distribution Act, Pub. L. No. 108-270,118 Stat. 805 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4, 16, 21-23, 27-28, 30

25 U.S.C. § 1401 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

25 U.S.C. § 70u(a) (1976 ed.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 14

25 U.S.C.A. § 1402(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 2517 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1362 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

31 U.S.C. § 724a (Supp. V 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. Const. art. I, § 8, cl. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Rules

Fed. R. Civ. P. 19(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Other Authorities

Brief for the United States, United States v. Dann, 470 U.S. 39 (1984), No. 83-1476, 1984 WL 565954 . . . . . . . . . . . . . . . . . . . . . . . 9

Bureau of Indian Affairs, Monthly Progress Update, April 8, 2011, http://www.bia.gov/idc/groups/xregwestern/documents/text/idc013454.pdf . . 3, 25

The Federalist Papers, Nos. 47 and 48 (Arlington House, 1966) . . . . . . . . . . . . . . 7

H. Rep. No. 93-377, 1973 WL 12641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

H. Rep. No. 102-1006, 1992 WL 309178 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14


x

S. Rep. No. 97-275, 1982 WL 21373 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

S. Rep. No. 100-186, 1987 WL 61539 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Native Land Law Project, Draft General Principles of Law Relating to NativeLands and Natural Resources, Lawyer’s Edition (Feb. 2010) (unpublishedmanuscript, on file with the Indian Land Tenure Foundation) . . . . . . . . . . . . . . . 10

Sarah H. Cleveland, Powers Inherent in Sovereignty: Aliens, Territories, and theNineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Tex. L. Rev. 1 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


1

JURISDICTIONAL STATEMENT

Plaintiffs brought this suit in the District Court for the District of Columbia

on the ground that the Western Shoshone Claims Distribution Act, Pub. L. No.

108-270, 118 Stat. 805 (July 7, 2004), orders a taking of a fund of money

belonging in part to Plaintiff-Appellant Timbisha Shoshone Tribe in violation of

the takings and equal protection guarantees of the Fifth Amendment to the United

States Constitution. The district court had jurisdiction under 28 U.S.C. §§ 1331

and 1362. The March 1, 2011 Order granting Defendants’ motion to dismiss and

the January 20, 2011 Order denying Plaintiffs’ request for preliminary injunctive

relief are final orders. JA 251. Plaintiffs filed a timely notice of appeal on March

4, 2011. This Court has jurisdiction under 28 U.S.C. § 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether an Indian tribe’s interest in a judgment award is protected by the

Fifth Amendment’s takings and equal protection guarantees.

II. Whether, in denying the Tribe’s preliminary injunction request, the

district court abused its discretion and applied erroneous legal standards in

determining (1) that the Tribe will not suffer irreparable harm in the absence of an

injunction, and (2) that the equities and public interest do not favor a preliminary

injunction.

III. Whether the district court erred in deciding that Plaintiffs-Appellants

lack authority to bring this action, despite unrebutted, sworn evidence to the

contrary, without reference to the evidentiary record, without any supporting

evidence, and based only on, as the district court described it, “facts I can

assume.”


2

STATUTES AND REGULATIONS

The relevant statutes are in the appended Statutory Addendum.

STATEMENT OF FACTS

The Plaintiff-Appellant Timbisha Shoshone Tribe (“Tribe”) is a small tribe

that has always lived in an area of California and Nevada that includes present day

Death Valley National Park. JA 154-55. In 1951, a claim was filed before the

Indian Claims Commission (“Commission”), ostensibly on behalf of the entire

“Shoshone Tribe,” seeking compensation for the alleged taking of a large area of

Shoshone homeland, including land belonging to the Tribe. The Commission

separated out the claims of the Western Shoshone tribes, including those of the

Tribe, and considered those claims separately. Western Shoshone Identifiable

Group v. United States, 40 Ind. Cl. Comm. 318 (1977). This was a claim brought

on behalf of the Western Shoshone tribes, not on behalf of individual members of

the tribes. The land involved belonged to the tribes, never to individuals.

In 1977, the Commission entered judgment for the Western Shoshone

Identifiable Group for $26,145,189.89. The U. S. Court of Claims affirmed the

judgment, and the judgment became final. See Temoak Band of Western

Shoshone Indians v. United States, 593 F.2d 994 (Ct. Cl. 1979). Pursuant to 31

U.S.C. § 724a (Supp. V 1981), the award was automatically appropriated and paid

into a trust account in the United States Treasury for the benefit of the Western

Shoshone Identifiable Group, including the Tribe. At the time the award was

placed in the trust account, where it remains today, at least in part, the Tribe

became the owner of an undivided share of the judgment fund, the fund of money

that is at issue in this case. JA 154, 157.


3

Starting in about 2001, as noted in a sworn statement by Plaintiff Kennedy, a

law firm contracted with some Western Shoshone individuals, not the tribes that

own the fund, to seek legislation that would take the fund of money from the tribes

and distribute it to individuals. JA 159. Despite the opposition of a majority of the

Western Shoshone tribal governments (JA 159), Congress passed the Western

Shoshone Claims Distribution Act (“Distribution Act” or “Act”) on July 7, 2004,

Pub. L. No. 108-270, 118 Stat. 805 (2004). See Statutory Addendum.

The Act directs the Secretary of the Interior to pay the entire fund to

individuals who meet certain eligibility requirements and whose names are

included on a roll to be created by the Secretary. Id. at § 3(b). The government

made a partial payment of the award on March 1, 2011. See Bureau of Indian

Affairs, Monthly Progress Update, April 8, 2011,

http://www.bia.gov/idc/groups/xregwestern/documents/text/idc013454.pdf.

No funds at all are to be reserved for the Tribe or for any of the Western

Shoshone tribes, nor does the Act provide for compensation. The Tribe filed this

suit seeking a declaratory judgment that the Act is unconstitutional and an

injunction against disbursing the money until Congress takes action consistent with

the Constitution. The Tribe requested a preliminary injunction, which was denied

by the district court January 20, 2011. JA 251. The Tribe also moved the district

court for an injunction pending appeal on February 2, 2011. That motion was also

denied. (Order Den. Mot. Inj. Pending Appeal, Feb. 28, 2011.) The Tribe, in this

Court, made an Emergency Motion for an Injunction Pending Appeal and for

Expedited Consideration. This Court granted expedited consideration but denied

an injunction pending appeal. (Order Granting Mot. Expedited Appeal and Den.


4

Mot. Inj. Pending Appeal, Feb. 18, 2011.) On March 1, 2011, the district court

granted the motion to dismiss. This appeal followed.

SUMMARY OF ARGUMENT

The Distribution Act effects a taking without compensation. The Tribe has a

vested, legally protected interest in the Commission award made to it and other

tribes. The award has the same legal status as an award of the Court of Federal

Claims and such awards have been consistently recognized by federal courts as the

property of the tribes. Further, the district court erroneously rejected the Tribe’s

equal protection challenge to an explicitly racial classification without applying

strict scrutiny, contrary to and without any discussion of Adarand Constructors,

Inc. v. Pena, 515 U.S. 200 (1995). Even under the rational basis test, the Act

serves no legitimate government purpose and instead merely takes money (the

judgment award) from the Tribe and gives it to others.

The district court also abused its discretion in denying the Tribe’s

preliminary injunction request, applying incorrect legal premises and rules in its

decision that the Tribe will not suffer irreparable harm. The Tribe cannot maintain

an action for damages against the United States, because it cannot join the seven

other tribes, which would be necessary parties. Moreover, this Court’s decision in

Student Loan Mktg. Ass’n v. Riley, 104 F.3d 397 (D.C. Cir. 1997), finds such a

remedy is not available. The court also erred in finding, without any evidentiary

support and contrary to facts established by an unrebutted, sworn declaration, that

the Plaintiffs-Appellants are not likely to succeed in establishing their authority to

sue on behalf of the Tribe. The court’s legal errors also resulted in a clearly

erroneous conclusion in weighing the equities and assessing the public interest.


5

ARGUMENT

This case presents a straightforward governmental taking of property

(money) without compensation. Usually, there would be little question that the

owner should get, as the Tribe requested below, an injunction to stop the taking.

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998). The government is not allowed

to do that to an individual, corporation or any entity legally capable of owning

property –“[c]ertainly not to a corporation,” as the district court put it, perhaps

facetiously, at the preliminary injunction hearing. JA 290.

The property at issue is a judgment fund awarded by the Commission to nine

Western Shoshone tribes, including the Timbisha Shoshone Tribe, and held in trust

for the tribes in the U.S. Treasury. According to the district court, that means, in

essence, that the Tribe – because it is an Indian tribe – has no property or

constitutional rights to the fund that the government must respect.

The central issue on this appeal is whether Indians, particularly Indian tribes,

have constitutional rights as others do in this country, or whether, as the district

court ruled, Congress has authority to control, take, and dispose of their property

and money without the constitutional restraints that protect others. This central

issue of equality before the law permeates the district court’s rulings against the

Tribe on the two constitutional claims – takings and equal protection.

I. The District Court Erred in Ruling that the Tribe has No VestedInterest Protected by the Fifth Amendment in the Judgment FundAwarded to It.

This Court reviews de novo the district court’s dismissal of a complaint for

failure to state a claim. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033,


6

1039-40 (D.C. Cir. 2003).

In granting the motion to dismiss, the district court adopted a novel legal

theory – that tribes have no property interest at all in the judgment awards made to

them by the Commission. JA 347-53. The district court relied exclusively on a

Federal Circuit decision that did not even consider a takings claim by a tribe, and

the court ignored numerous decisions and pertinent statutes that clearly establish

that tribes do have a vested right in judgment awards of the Commission.

The Indian Claims Commission Act, pursuant to which this award was

made, provided that an award of the Commission “shall have the effect of a final

judgment of the Court of Claims.” 25 U.S.C. § 70u(a) (1976 ed.) (emphasis

added). The effect of judgments of the Court of Claims is governed by 28 U.S.C. §

2517 (emphasis added), which in 1977 read:

(a) Every final judgment rendered by the Court of Claimsagainst the United States shall be paid out of any generalappropriation therefor, on presentation to the General Accountingoffice of a certification of the judgment by the clerk and chief judge ofthe court.

(b) Payment of any such judgment and of interest thereon shallbe a full discharge to the United States of all claims and demandsarising out of the matters involved in the case or controversy.

These statutory provisions are unconditional and unequivocal in commanding

payment of the award by the United States to the judgment holder. They are the

kind of legal rules referred to in Adams v. United States, 391 F.3d 1212, 1219

(Fed. Cir. 2004), that “create and define the dimensions of property interests for

purposes of establishing a cognizable right and hence a potential taking.”

The property rights created by a Commission award are, moreover, protected

by the vested rights doctrine, which holds that a money judgment creates in the

judgment creditor a vested right, subject to the same constitutional protections


7

afforded other forms of property, including protection against uncompensated

takings by legislatures. Suffolk v. Long Island Lighting Co., 14 F. Supp. 2d 260,

265 (E.D.N.Y. 1998). See also Treiber v. Katz, 796 F. Supp. 1054, 1060 (E.D.

Mich. 1992). This right was recognized by the Supreme Court as early as

McCullough v. Virginia, 172 U.S. 102, 123-124 (1898). The holding in

McCullough has been applied in the context of federal legislation. See, e.g., Daylo

v.Administrator of Veterans’ Affairs, 501 F.2d 811, 816-818 (D.C. Cir. 1974);

Johnston v. Cigna Corp., 14 F.3d 486, 491 (10th Cir. 1993); Gavin v. Branstad,

122 F.3d 1081, 1091 (8th Cir. 1997). See also The Federalist, Nos. 47 and 48

(Arlington House, 1966) (James Madison characterizing statutes that disturb vested

rights as “legislative usurpation” and “tyranny”).

The vested right stemming from final judgments has been repeatedly

recognized by the federal courts. See, e.g., Benjamin v. Jacobson, 124 F.3d 162,

176 (2d Cir. 1997), vacated on other grounds, 172 F.3d 144 (2nd Cir. 1999) (“It is

well-settled that a final money judgment creates a vested right and hence a

constitutionally protected property interest.”); Georgia Ass’n of Retarded Citizens

v. McDaniel, 855 F.2d 805, 810 (11th Cir. 1988), cert. denied, 490 U.S. 1090

(1989) (“rights fixed by judgment are, in essence, a form of property over which

legislatures have no greater power than any other [property].”).

Courts consistently recognize that attempts to alter legislatively a legal

judgment violate the separation of powers doctrine. Plyler v. Moore, 100 F.3d

365, 371 (4th Cir. 1996). The Supreme Court discussed this rule in Pennsylvania

v. Wheeling & Belmont Bridge Co., 59 U.S. 421, 431 (1855). See also Plaut v.

Spendthrift, 514 U.S. 211 (1995); Axel Johnson Inc. v. Arthur Andersen & Co., 6


8

F.3d 78, 83 (2d Cir. 1993) (“the vested rights doctrine has a separation of powers

component which limits congressional review of judicial actions.”); Johnston, 14

F.3d at 490-91.

Further, the Supreme Court has held that judgments of the Court of Claims,

when final, are akin to final judgments of the Supreme Court. United States v.

O’Grady, 89 U.S. 641, 648 (1874) (a Court of Claims final judgment “is just as

conclusive under existing laws as the judgment of the Supreme Court.”). See also

Glidden Co. v. Zdanok, 370 U.S. 530, 554-55 (1962); Johnston, 14 F.3d at 491;

Assiniboine v. United States, 121 F. Supp. 906, 916 (Ct. Cl. 1954) (“Judgments of

this court not appealed and which stand unmodified are as final and conclusive as

are the judgments of the Supreme Court.”).

The Supreme Court relied particularly on the O’Grady decision and on the

finality provisions of the Claims Commission Act (“the effect of a final judgment

of the Court of Claims”) in United States v. Dann, 470 U.S. 39, 45 (1985), ruling

as to the very award at issue in this case that Congress does not retain authority to

alter a Commission award. The Court examined the legislative history of the

Claims Commission Act and found that Congress deliberately rejected a proposal

to put such authority in the Act. Id. at 45-47.

The Conference adopted the House version ‘in order to make perfectlyclear the intention of both houses that the determinations of theCommission should . . . have the same finality as judgments of theCourt of Claims.’ . . . As enacted, the Indian Claims Commission Actexplicitly incorporated this standard of finality in § 22(a).

Id. at 47 (citations omitted).

The Supreme Court in Dann held that the award at issue in this case had

been paid to the tribes upon deposit of the monies in the Treasury in trust for the


1 In that litigation, the United States admitted in its answer that the Tribe is amember of the Western Shoshone Identifiable Group. JA 177. See also Bureau ofIndian Affairs Results of Research Reports. JA 193, 205.

9

tribes, and that the Western Shoshone tribes are the beneficiaries of the

Commission’s award. Id. at 50. The United States insisted in its Brief in Dann

that “the Western Shoshones have acquired a vested property right to the beneficial

ownership of the judgment fund.” Brief for the United States, United States v.

Dann, 470 U.S. 39 (1984), No. 83-1476, 1984 WL 565954 *23 (emphasis added).

In addition, there is abundant decisional law that tribes have a vested interest

in their judgment awards. The Court of Federal Claims has decided that the Tribe

is, along with the other tribes, the beneficial owner of the very judgment fund now

at issue.1 Western Shoshone Identifiable Group v. United States, No. 1:06-cv-

00896-EJD (Fed. Cl. Nov. 24, 2009) slip op. at 14. See Addendum II.

Commission judgment funds are tribal property, because they are awarded only to

tribes. Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 85 (1977) (judgment

funds are “tribal rather than individually owned property”); see also LeBeau v.

United States, 171 F. Supp. 2d 1009, 1018 (D.S.D. 2001); Chippewa Cree Tribe v.

United States, 69 Fed. Cl. 639, 650, 652-53 (2006) (gathering cases and holding

that Commission awards are held in trust for the claimant tribe or tribes);

Chippewa Cree Tribe v. United States, 73 Fed. Cl. 154, 161-62, 173 (2006).

The Supreme Court has repeatedly held that the Constitution protects

tribally-owned assets, including property held in trust by the United States, from

confiscation or taking by the government without just compensation. See United

States v. Cherokee Nation of Oklahoma, 480 U.S. 700, 707-08 (1987); United

States v. Sioux Nation, 448 U.S. 371 (1980); Delaware Tribal Business Comm. v.


10

Weeks, 430 U.S. 73 (1977); United States v. Creek Nation, 295 U.S. 103, 109-10

(1935). See also Babbitt v. Youpee, 519 U.S. 234 (1997); Hodel v. Irving, 481

U.S. 704 (1987). The notion advanced by the government and the district court

that Congress has “plenary power” to effect takings of tribal property without

compensation finds no support in the Constitution. See Native Land Law Project,

Draft General Principles of Law Relating to Native Lands and Natural Resources,

Ch. VI at 133-137 (2010) (JA 98 -102); Sarah H. Cleveland, Powers Inherent in

Sovereignty: Aliens, Territories, and the Nineteenth Century Origins of Plenary

Power Over Foreign Affairs, 81 Tex. L. Rev. 1, 25-42 (2002).

The district court ignored the pertinent statutory provisions and the extensive

body of decisions on point, and relied instead exclusively on one inapposite

Federal Circuit decision, LeBeau v. United States, 474 F.3d 1334 (Fed. Cir. 2007).

The district court concluded, based on LeBeau, that “no individual or no entity

possesses a property interest in an [Indian Claims Commission] judgment fund

until that fund has actually been distributed.” JA 348.

LeBeau was a suit for damages by individual Indians based on an act of

Congress purporting to give them a share of the Mississippi Sioux Tribes Judgment

Fund and based on the Secretary of the Interior's unreasonable delay in distributing

to them their share. Id. at 1336-38. The individuals also claimed damages for a

partial taking resulting from a second act of Congress reducing the individuals’

share of the fund. The holding in LeBeau is merely that individuals have no vested

property interest in a Commission judgment fund until after distribution of the

award to them. Id. at 1343. The statutes and cases discussed above provide that

only tribes, not individuals, can bring claims or receive awards from the


11

Commission. LeBeau, therefore, has no bearing at all on this case. The ownership

interest of the tribes in the judgment fund was not at issue and was not addressed in

LeBeau.

The tribes owning the award were not parties to LeBeau, but they had

initiated their own lawsuit challenging the distribution act as an unconstitutional

taking of the tribes’ property. Sisseton-Wahpeton Sioux Tribe v. United States,

895 F.2d 588 (9th Cir. 1990). In that litigation, the district court granted a

preliminary injunction to the tribes that were awarded the judgment, stopping

distribution of the judgment fund to individual descendants. That district court

could not have granted the preliminary injunction had there been serious doubt of

the tribes’ property interest in the judgment fund. The opinion granting the

preliminary injunction is attached in Addendum II. See Sisseton-Wahpeton Sioux

Tribe v. United States, 686 F. Supp. 831 (D.Mont. 1988), aff’d 895 F.2d 588 (9th

Cir. 1990). The tribes’ suit was eventually dismissed on statute of limitations

grounds. Id.

No court has ever before concluded that a tribe does not have a vested

interest in a Commission award made to it nor interpreted LeBeau to mean that.

On the contrary, courts have consistently characterized judgment funds as property

belonging to the tribe or tribes awarded the judgment. See, e.g., Weeks, 430 U.S.

at 85; Minnesota Chippewa Tribe v. United States, 315 F.2d 906, 914 (Ct. Cl.

1963); LeBeau, 171 F. Supp. 2d 1009, 1018 (D.S.D. 2001); see also cases cited

supra at p. 9. There is simply no precedent supporting the district court’s

conclusion on this issue.

The district court has erroneously confused or conflated the rights of tribes


2 In this connection, the district court also misreads Cherokee Freedmen &Cherokee Freedmen's Assoc. v. United States, 195 Ct. Cl. 39, WL 17825 (1971), assupporting the theory that Congress retains authority over an award sufficient totake a Commission award, without compensation, from the tribe or tribes grantedthe judgment award. JA 351. That case was another example of a challenge by agroup of individuals asserting a right to participate in the distribution of an award,this one to the Cherokee Nation. The distribution act was not challenged oropposed by the Cherokee Nation. Nothing in that decision suggests that Congresscould have taken the award from the Cherokee Nation without compensation. Rather, this was a distribution act having the acquiescence or consent of the tribe.

12

and the rights of individuals.2 JA 349, 351-52. Tribes have a legal identity and a

distinct legal status that is not the same as the members of the tribe. Worcester v.

Georgia, 31 U.S. 515, 559 (1832). Property belonging to a tribe does not belong to

the members of the tribe; likewise, property belonging to the members of the tribe

does not belong to the tribe. See Hodel v. Irving, 481 U.S. 704 (1987); Sioux

Tribe v. United States, 84 Ct. Cl. 16, 1936 WL 2974 *13-14, cert. denied, 302 U.S.

740 (1937). See also Weeks, 430 U.S. at 85; United States v. Jim, 409 U.S. 80, 82,

n. 3 (1972).

The district court attempts to bolster its novel and unsupported conclusion

by saying it is “in accord” with the body of law concerning Congress’ plenary

power over Indian property. JA 349. The district court erroneously relies on

Weeks as support for this supposed power to take the Tribe’s judgment award

without compensation and as calling for judicial deference to such congressional

acts. But, Weeks expressly recognized claim awards as “tribal property” (430 U.S.

at 85) and declared that congressional action dealing with Indians is subject to

constitutional scrutiny. Id. at 84 (“The power of Congress over Indian affairs may

be of a plenary nature; but it is not absolute.”). Whether Congress can take a


13

tribe’s judgment award without compensation was never considered and certainly

not decided in Weeks. In that case, a group of individuals challenged a distribution

act on equal protection grounds, but not on grounds of racial discrimination, and

the deferential standard of review noted by the district court related only to that

non-racial equal protection challenge, not to a taking challenge. Id. at 85. As we

have demonstrated above, the Supreme Court has repeatedly held that the

Constitution protects tribally-owned assets, including property held in trust by the

United States, from confiscation or taking by the government without just

compensation.

Next, the district court supports its conclusion by arguing that Congress

reserved to itself the power to determine who would receive a Commission

judgment award (JA 350-1), but the Supreme Court definitively decided this issue

in Dann, holding explicitly that Congress did not reserve to itself the power to

determine who should receive a Commission award. As we discussed supra at p. 8,

the Supreme Court decided that the award was final and binding upon Congress

and that Congress did not retain power to withhold or convert the award. Id. at 45-

47, 50 fn. 13. The district court’s decision is flatly in conflict with Dann.

The district court pointed to 25 U.S.C. § 1401 et seq. as demonstrating that

Congress “did not create a property interest in ICC awards until distribution.” JA

350. The statute relied on by the district court does not go so far. Rather, this

statute is an effort to create a fair procedure for getting Commission awards paid

into the hands of the tribes that won the awards. Of course, this statute must be

read in conjunction with the Indian Claims Commission Act itself. The Claims

Commission Act says nothing about Congress retaining power over awards made


14

by the Commission but rather, again, makes those awards as final as a final

judgment of the Court of Claims, as discussed in Dann. 470 U.S. at 45; 25 U.S.C.

§ 70u(a) (1976 ed.). Nothing in 25 U.S.C. § 1401 et seq. purports to amend the

Claims Commission Act, and there is no evidence of congressional intent to amend

the Act by implication. Amendments by implication are disfavored. Natural

Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 318 (D.C. Cir. 1988).

The legislative history of 25 U.S.C. § 1401 et seq. shows no intent to reserve to

Congress power to take back or give to others awards made by the Commission.

See, e.g., H. Rep. No. 93-377, 1973 WL 12641; S. Rep. No. 97-275, 1982 WL

21373; S. Rep. No. 100-186, 1987 WL 61539; H. Rep. No. 102-1006, 1992 WL

309178. The statute simply provides a procedure for getting the awards into the

hands of the tribes and the individual members, with the consent of the tribes and

without violating the rights of the tribes. Indeed, solicitude for the consent of

affected tribes is demonstrated clearly in 25 U.S.C.A. § 1402(d).

The district court explicitly acknowledged, as it must, that the judgment fund

is held in trust for the tribes by the United States when the court stated: “Rather, in

its role as trustee, Congress retained authority to distribute the Fund ‘in a manner

consistent with the best interests of the Tribe.’” (quoting Dann, 470 U.S. at 49-50).

JA 352. Tribal property held in trust by the United States is property protected by

the Fifth Amendment, as the Supreme Court has repeatedly held. United States v.

Cherokee Nation of Oklahoma, 480 U.S. 700, 707-08 (1987); United States v.

Sioux Nation, 448 U.S. 371 (1980); Delaware Tribal Business Comm. v. Weeks,

430 U.S. 73 (1977); United States v. Creek Nation, 295 U.S. 103, 109-10 (1935).

Thus, the district court’s recognition that the fund is held in trust for the tribes is


15

entirely inconsistent with the conclusion that the Tribe has no property interest in

the fund.

The district court notes Congress’ authority to distribute the award “in a

manner consistent with the best interests of the Tribe.” JA 352. But,

astonishingly, the court finds “the best interests of the Tribe” to include depriving

the Tribe of the award without compensation. The Supreme Court has held that

whether an act is in the interest of a tribe is a factual issue. United States v. Sioux

Nation, 448 U.S. 371, 415 (1980) (“As the Court of Claims recognized in its

decision below, the question whether a particular measure was appropriate for

protecting and advancing the tribe's interests, and therefore not subject to the

constitutional command of the Just Compensation Clause, is factual in nature.”).

The Tribe was, therefore, entitled to a hearing on this issue, and this was not an

appropriate ground for dismissal of this action under Rule 12(b)(6).

The district court reads Dann as holding only that “payment” of the award

extinguished the Western Shoshone Tribes’ land rights, but without giving the

Tribes anything in return – without giving the Tribes any property interest in the

money paid. JA 352. To read the Indian Claims Commission Act as creating a

process that extinguishes the land rights of Indian tribes without providing them

any compensation, as the district court does, flies in the face of reason and is

absolutely contrary to the stated purposes and provisions of the Indian Claims

Commission Act. Such an interpretation would render that Act unconstitutional as

applied, because it would effect a taking of the Indian tribes’ land rights and claims

without any compensation, contrary to the Fifth Amendment.


16

II. The Distribution Act Denies Equal Protection of the Law.

A. The Act is Subject to Strict Scrutiny Because it Imposes HarmBased on an Explicitly Racial Classification.

The government conceded below that the Distribution Act is a law

“classifying Indians” and imposing harm on them. JA 47-8. The Act imposes

harm on a specific group designated by terms that are explicitly racial or ancestral,

raising, as the district court noted, “a very significant” equal protection issue. JA

256. The title of the Act refers to the “Western Shoshone Identifiable Group” of

Indian tribes. The body of the Act takes a money fund belonging to “the Western

Shoshone Indians” and gives it to others. Western Shoshone Claims Distribution

Act, Pub. L. No. 108-270, § 3. Statutory Addendum p. 35. The element of race or

ancestry in the identification of the group whose property is taken is explicit: the

“Western Shoshone identifiable group,” a group of Indian tribes, and “Western

Shoshone Indians.”

The Supreme Court has been quite clear in recent years that in such

circumstances the courts must apply strict scrutiny: “all racial classifications,

imposed by whatever federal, state, or local governmental actor, must be analyzed

by a reviewing court under strict scrutiny.” Adarand Constructors, Inc., 515 U.S.

at 227 (emphasis added). See also Richmond v. Croson, 488 U.S. 469 (1989)

(racially explicit affirmative action in employment); Grutter v. Bollinger, 539 U.S.

306 (2003) and Gratz v. Bollinger, 539 U.S. 244 (2003) (racially explicit

educational affirmative action is subject to strict scrutiny; one plan was upheld, but

only because it survived strict scrutiny); Miller v. Johnson, 515 U.S. 900 (1995)

(remedial action to secure equality in voting rights that is racially explicit is subject

to strict scrutiny). Nevertheless, the government insists that strict scrutiny should


17

not be applied in this case. The government’s argument is not that “Indian” is not

a racial or ancestral designation. Nor does the government express any doubt that

such a classification would usually make a statute suspect and subject to strict

scrutiny.

Rather, according to the government, a punitive, explicitly Indian

classification is a “non-suspect classification,” unlike other racial or ancestral

classifications of Americans. JA 47-8 (emphasis added). The government’s

position is that racially or ancestrally explicit classifications of people or groups of,

for example, Irish, Italian, Hispanic, or African-American heritage are subject to

strict scrutiny, but racially or ancestrally explicit classifications of Indians or

Indian tribes are not. The government asked the district court – and presumably

will ask this Court – to adopt a racially selective approach to protection of the law

that excludes Indians. This goes directly counter to Adarand: "The standard of

review,” the Supreme Court said, “is not dependent on the race of those burdened

or benefitted by a particular classification.” 515 U.S at 223-24.

The district court set out three arguments for rejecting application of strict

scrutiny, all discussed without any mention or citation to Adarand or the other

controlling equal protection cases: (1) “Indian legislation” is not suspect even if

explicitly racial because of the unique relationship of the government to Indians;

(2) strict scrutiny applies to explicit Indian classifications by state or local

governments, but not by the federal government; and (3) the explicit classification

here is for purposes of identification rather than discrimination. JA 353-56. None

of these arguments has merit, and the district court offered no explanation for

ignoring the controlling Supreme Court decision.


18

First, Indians have been regularly recognized as a race or ancestry, and when

an Indian classification is used to impose harm or punishment, the statute or

governmental action should receive – and has received – strict scrutiny on the same

basis and in the same circumstances as other racial or ancestral classifications. For

example, suppose a local law provided “XYZ Park is open to the public and is a

designated public forum, except that no Indians may go or speak there.” This

would surely be suspect and subject to strict scrutiny, because it denies use of the

park and free speech rights to people described by their ancestry or race.

This is how federal courts have applied the law to Indian inequality claims in

a range of contexts. See Tuttle v. Kaiser Co., 863 F.2d 601 (8th Cir. 1988)

(applying the usual rules for ancestry or race claims under Title VII to a claim of

employment discrimination because claimant was an American Indian); Fallon

Paiute-Shoshone Tribes v. City of Fallon, 174 F. Supp. 2d 1088 (D. Nev. 2001)

(upholding an equal protection claim based on a city’s discriminatory refusal to

provide sewer service to an American Indian); Morrison v. Garraghty, 239 F.3d

648 (4th Cir. 2001) (“not of Native American heritage” is a racial classification

subject to strict scrutiny, although in the context of the limited rights of prisoners,

it is subject to a lower level of scrutiny).

The government asserted and the district court granted unlimited power with

respect to anything Indian, and – unlike the law with regard to other governmental

powers – even the Bill of Rights presented no impediment. While there is some

sweeping language in some opinions about the breadth of government power with

regard to Indians (e.g., Washington v. Confederated Bands and Tribes of the

Yakima Indian Nation, 439 U.S. 463, 500-01 (1979)), the rights of Indians and


3 See Shaw v. Reno, 509 U.S. 630 (1993) (Congress has the power to enactthe Voting Rights Act, but it is limited by equal protection rights); Buckley v.Valeo, 424 U.S. 1 (1976) (Congress can regulate campaign finance, but it is subjectto the First Amendment); Barenblatt v. U.S., 360 U.S. 109, 112 (1959).

19

tribes should not be dismissed or diminished based on vague, general

pronouncements about conquest and Congress’ “plenary power.” Whatever the

scope of such powers, they are still subject to the limits imposed by other

constitutional provisions – particularly the Bill of Rights.3

There is a unique relationship, history, and clause of the U.S. Constitution

regarding the United States and Indian tribes. The Commerce Clause provides

Congress with the power to “regulate commerce with foreign nations, and among

the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3.

However, it does not provide and has not been interpreted to grant unlimited power

over interstate, foreign, or Indian tribal commerce. Nor does it provide or require

that individuals or groups subject to regulation of any of the three types of

commerce thereby lose their property, takings, or equal protection rights. No one

would suggest that Congress’ power to regulate, for example, interstate

manufacturing of cars means that Congress can suspend the speech or equality

rights of car manufacturers.

Specifically, nothing in the Constitution or about regulation of commerce

with Indian tribes requires or mandates such a blanket or broad diminution of

Indians’ rights. If there are limits on the constitutional rights of Indian tribes or

people of Indian ancestry, they should be only as numerous and extensive as the

Constitution demands for Congress to carry out its specific constitutional duties

related to Indian tribes – which does not require depriving Indians or Indian tribes


4 The district court’s identification theory is reminiscent of Korematsu v.United States, 323 U.S. 214 (1944), which approved of the wartime imprisonmentof all people of Japanese ancestry on the west coast because, in the Court’s nowrepudiated pre-Brown and pre-civil rights analysis, the explicit racial classificationwas for identification of those who present a risk to national security rather thanfor discriminatory purposes.

20

of their constitutional rights.

Second, the suggestion that explicitly racial, federally imposed harms are,

unlike explicitly racial state or locally imposed harms, exempt from strict scrutiny

is novel and indefensible. The district court distinguished the federal cases cited

above that treat Indian classifications like other race and ancestral classifications

on the sole ground that they dealt with state and local matters. JA 354-55. What

if, to use the above hypothetical, the federal government prohibited Indians from

the open, public areas of Death Valley National Park or Independence National

Historical Park in Philadelphia? Surely, strict scrutiny would be appropriate. The

Supreme Court addressed this squarely in Adarand: , "Equal protection analysis in

the Fifth Amendment area is the same as that under the Fourteenth Amendment.”

citations omitted). 515 U.S. at 224. “Congruence” of federal and state standards

of equal protection is required. Id.

Third, the district court’s assertion that the explicit racial classification here

“merely identifies” the property taken (JA 356) misses the point of Adarand and

the other recent equal protection cases.4 The Supreme Court explained in Adarand

and Croson that the ironclad rule that racial classifications get strict scrutiny is

necessary because, without strict scrutiny “there is simply no way of determining

what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact

motivated by illegitimate notions of racial inferiority or simple racial politics.”


5 Morton’s analysis and holding, though it preceded Adarand and otherrecent cases, remains authoritative, as the government acknowledges, because theemployment preference approved there was necessary to the operation of theBureau of Indian Affairs, which has substantial control over the lives of Indians. See Amer. Federation of Government Employees v. United States, 330 F.3d513,521 (D.C. Cir. 2003), reaffirming Morton after Adarand and emphasizing thatthe challenged Indian hiring preference was not subject to strict scrutiny because it“benefit[s]” rather than harms Indian tribes, and “regulation of commerce withtribes is at the heart” of the challenged regulation. See also Williams v. Babbitt,115 F.3d 657 (9th Cir. 1997).

21

Croson, 488 U.S. at 493; quoted with approval, Adarand, 515 U.S. at 226. If there

were any categorical exceptions, a racially explicit exception, like the Indian

exception adopted by the district court, would be the least appropriate – the

standard of review “is not dependent on the race of those burdened or benefitted.”

Adarand, 515 U.S. at 223-24.

The Distribution Act presents an explicit racial or ancestral classification

used to harm Indians. Accordingly, it is subject to strict scrutiny and valid only if

it serves a compelling governmental interest and uses the least restrictive means to

do so, neither of which the government has supported with any evidence or

argument.

B. Equal Protection: The Act Also Lacks a Rational or LegitimateGovernmental Purpose.

Rational basis review does not require, of course, that a governmental

measure survive rigid scrutiny, but it does require more than a deferential nod,

which means at least that the central operation or effect of the Act be “tied

rationally” to a legitimate governmental interest. Morton v. Mancari, 417 U.S.

535, 555 (1974).5 The district court’s analysis does not meet this minimal

requirement, because it placed primary emphasis on the interest in speed and


22

avoiding further delay – although the central operation and effect of the Act is to

take property from A and give it to B. The rationality of the Act stands or falls

based on the government’s interest in taking the property from the Western

Shoshone tribes and giving it to others, from whom the government did not gain

(or lose) anything and to whom it has no relevant legal obligation.

The district court adopted the defendants’ framing of the governmental

interests without question: (1) “avoiding delay;” (2) “providing payment on a

historic claim;” (3) “acting in furtherance of the United States’ trust relationship;”

and (4) “complying with the wishes of the vast majority of the tribal members who

overwhelmingly desire to receive the judgment awarded to them more than twenty

years ago.” JA 48, 357-58.

The government did not explain how or why avoiding delay is a sensible or

legitimate rationale for taking a money fund belonging to the tribes and giving it to

others. Similarly, providing payment on a claim is appropriate but does not

explain or justify paying to others money that the Commission awarded to the

tribes. While the government has a trust duty, that duty is owed to the tribes

involved, and what the Government intends to do pursuant to the Act directly

violates that duty. See supra at pp. 14-15. None of the first three rationales

presents a legitimate or reasonable basis for the Act. Any decision that finds the

requisite rationality in the government’s wish to take from A to give to B would

justify most any future equal-protection-challenged taking, regardless of whether

the case involved tribes and Indians. The last rationale offered, concerning the

wish of tribal members desiring to receive the judgment, is based on the explicit

notion that the award was made to the individual members (“to them”) and this is


23

in conflict with the allegations of the Complaint (JA 16) and the legal facts. It is

also based on a disputed fact, and the only sworn evidentiary version of those facts

before the district court was Plaintiffs-Appellants’. JA 158-59. Further, as with

any government, disposition of tribal property is the responsibility of the tribal

government owning the property or funds. Unlike the government action in

Morton, the Act in question does not further Indian self-government. In fact, it

lacks any legitimate purpose and directly undercuts Indian self-government.

There is no compelling, legitimate, or rational basis for such meddling, or

for the denial of fundamental equality rights that courts regularly accord to all

other ancestries and races. The government asked the district court to ignore the

usual rights and rules because of one simple fact: Plaintiffs-Appellants are an

Indian tribe and its citizens or members are persons of Indian ancestry. The district

court erred in doing so. Treatment of Indians this way by courts must be viewed as

what it is: a violation of equal protection of the law and a refusal to accord Indians

the basic protections of the rule of law.

III. The District Court Applied an Erroneous Legal Standard and Abusedits Discretion in Denying a Preliminary Injunction.

The four requirements for granting a preliminary injunction (likelihood of

success on the merits, irreparable harm, the balance of equities, and the public

interest) are considered below. See Winter v. NRDC, Inc., 555 U.S. 7, 129 S.Ct.

365, 374 (2008). The merits of the constitutional takings and equal protection

claims are fully briefed in the preceding sections. The standard of review on this

issue is whether the district court abused its discretion or based its discretion on an

erroneous legal standard, in which case the legal conclusion is reviewed de novo.


6 During this litigation, the Bureau of Indian Affairs rendered a decisiondeclining to recognize any Timbisha government except for the purpose of holdingan election. This issue is now in litigation and remains unresolved.

24

Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009).

A. Likelihood of Success on the Merits: The District Court Abusedits Discretion and Made Clearly Erroneous Findings in DecidingPlaintiffs-Appellants are Not Likely to Establish Their Authorityto Sue.

It was an abuse of discretion for the district court to expressly assume facts

not in the record – and to entirely ignore the sworn, uncontroverted statement

submitted on behalf of the Tribe – in deciding that there is not a likelihood that

Plaintiffs can establish their authority to sue. Contrary to the district court’s

statement that there is no factual record on this issue (JA 258), Plaintiffs-

Appellants submitted a sworn statement setting forth facts showing that the suit

was brought by the authority of the Tribe’s duly elected government (JA 153-54),

and submitted also the administrative appeal of Plaintiff-Appellant Joe Kennedy on

the recognition issue. JA 207. Absolutely no evidence was submitted by the

Defendants-Appellees concerning the Plaintiffs-Appellants’ authority to sue, other

than a statement by a federal official that the Bureau of Indian Affairs does not

presently recognize any government of the Tribe. JA 173. That statement

contained no factual allegations tending to show that the Plaintiffs-Appellants are

not authorized to sue on behalf of the Tribe.6 Not only did the district court ignore

this one-sided evidentiary record, but the judge also based the decision on “what

facts I can assume to be true.” JA 258. This was clearly erroneous. F.T.C. v.

Whole Foods Market, Inc., 548 F.3d 1028, 1034 (D.C. Cir. 2008); Serono

Laboratories, Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C. Cir. 1998).


7 According to the Bureau of Indian Affairs website, more than $60,000,000remained in the fund after the partial distribution. Seehttp://www.bia.gov/idc/groups/xregwestern/documents/text/idc013454.pdf.

25

If there was an issue of fact concerning the authority of the Plaintiffs-

Appellants to sue on behalf of the Tribe, it was clear error for the court not to hold

an evidentiary hearing. See Cobell v. Norton, 391 F.3d 251, 261 (D.C. Cir. 2004),

citing Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167 (7th Cir. 1997).

Finally, it was an abuse of discretion for the district court to conclude that as

a result of the Department of Interior’s failure to recognize the Timbisha Shoshone

government, the Tribe cannot stop the Department from taking the Tribe’s money.

The district court later correctly decided that Bureau recognition is not necessary

for a tribal government to maintain a lawsuit. JA 343-45. At the very least, then,

the Tribe should have been permitted as a matter of equity to maintain this suit for

the purpose of preserving the Tribe’s assets until the court is able to determine

whether the suit has been legally authorized. See Goodface v. Grassrope, 708 F.2d

335, 339 (8th Cir. 1983).

B. Irreparable Harm: The Tribe has No Available Damages Remedy,Nor Would a Potential Damages Remedy Preclude a PreliminaryInjunction in these Circumstances.

The Tribe sought a preliminary injunction to prevent the irretrievable loss of

millions of dollars that the Tribe owns. The judgment fund was in excess of

$126,000,000 before the government made a partial distribution on March 1,

2011.7 The district court found that there would be no irreparable harm, primarily

because it believed that a damages remedy in the Court of Federal Claims was

available to the Tribe. JA 257. This ruling was in error, because an action for

damages is not an available remedy for the Tribe.


26

A damages remedy for the Tribe against the government would be barred,

because the seven other tribes that have an interest in the judgment fund would be

necessary parties, and they have sovereign immunity from suit. Kiowa Tribe of

Okla. v. Mfg. Tech., Inc., 523 U.S. 751 (1998). See Fed. R. Civ. P. 19(b); Wichita

& Affiliated Tribes v. Hodel, 788 F.2d 765, 774 (D.C. Cir. 1986). It would be

impossible to join these tribes (unless each of them waived its immunity), and their

interests could not be adjudicated in their absence; further, without all of the other

tribes joined, the risk to the government of incurring multiple or inconsistent

damages awards would be substantial. Thus, a damages remedy is not available.

Moreover, the district court failed to recognize and apply the legal rule

established by this Court in Student Loan Mktg., 104 F.3d 397 (D.C. Cir. 1997),

that a damages remedy is not available nor adequate where the challenged taking

involves mandated payments of cash. In such a case, injunctive relief is

appropriate. This Court concluded:

[I]n cases involving straightforward mandates of cash payment to thegovernment, courts may reasonably infer either that Tucker Actjurisdiction has been withdrawn or at least that any continuedavailability does not wipe out equitable jurisdiction.

Id. at 402 (emphasis added). This Court pointed out the absurdity and inadequacy

of the Tucker Act remedy in situations involving mandated payments of money:

“For such cases, use of the Tucker Act remedy would entail an utterly pointless set

of activities . . ..” Id. at 401. The “straightforward mandates of cash payment to

the government” in Student Loan are exactly analogous to the mandated payments

to individuals of funds belonging in part to the Tribe.

The Supreme Court adopted and extended the rule of Student Loan in

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998). The Court in Eastern held that


27

a damages remedy against the government is not an available remedy in cases like

this one where a statutory taking is effected by a mandated payment of money.

Justice O’Connor, writing for a plurality, stated:

On the other hand, in a case such as this one, it cannot be said thatmonetary relief against the Government is an available remedy. . . .Accordingly, the “presumption of Tucker Act availability must bereversed where the challenged statute, rather than burdening real orphysical property, requires a direct transfer of funds” mandated bythe Government.

Id. at 521 (emphasis added and citations omitted). Justice Kennedy, concurring in

the judgment, implicitly endorsed this aspect of the decision, and none of the

dissenting justices expressed any disagreement on this point.

Like the statute in Eastern, the Distribution Act calls for payments of money

to others. It cannot be supposed that Congress intended to pay out the judgment

fund to individuals and then make itself liable for damages for the taking. Such a

result would mean that the United States would pay the claim award twice (once

when it created the judgment fund and again when it pays damages for the taking).

The district court later recognized the applicability of the Student Loan and

Eastern decisions. JA 340-41. It was error not to apply that rule in its decision on

the preliminary injunction.

Even if a damages remedy were available, this does not bar preliminary

injunctive relief where a party seeks equitable relief and claims an equitable

interest in a fund. See Deckert v. Independence Shares Corp., 311 U.S. 282

(1940); De Beers Consol. Mines v. United States, 325 U.S. 212 (1945); Grupo

Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999);

Ellipso, Inc., v. Mann, 480 F.3d 1153, 1160 (D.C. Cir. 2007) (affirming the grant

of a preliminary injunction, despite the availability of a damages remedy).


28

The district court also applied erroneous legal standards in finding that the

Tribe would not suffer irreparable harm by reason of violation of its constitutional

rights. When constitutional rights are threatened or are actually being violated, this

constitutes per se irreparable harm for purposes of granting a preliminary

injunction, regardless of whether a damages remedy exists. See Elrod v. Burns,

427 U.S. 347, 373 (1976) (plurality opinion); Mills v. District of Columbia, 571

F.3d 1304 (D.C. Cir. 2009); Chaplaincy of Full Gospel Churches v. England, 454

F.3d 290 (D.C. Cir. 2006). Here, the imminent violation of the right of equal

protection of the law compounded by the violation of the Fifth Amendment

Takings Clause constitutes per se irreparable harm to the Tribe.

C. The District Court Abused Its Discretion in Weighing the Equitiesand Determining the Public Interest.

The district court weighed the equities and assessed the possible harm to

others premised entirely upon its erroneous legal conclusion that the Tribe has no

property interest in the judgment fund. JA 259-62. The district court based its

consideration on the erroneous legal premise discussed above that it is lawful for

Congress to take the fund from the Tribe and the other tribes without compensation

and give it to individuals. Id.

The district court’s discussion also seemed to confuse the tribes with the

individual Indians, both individual members and non-members of the tribes, for

example, in commenting that an injunction would “impact the tribes that under the

final judgment are entitled to their share of the . . . award.” JA 261. Of course,

under the Claims Distribution Act, the tribes will receive none of the award; only

individuals will. The court should have weighed the equities based on the premise

that the tribes would in no event receive any part of the award under the Act except


29

and unless the Tribe prevails on the merits of its constitutional claims.

A preliminary injunction would have caused no harm to the federal

government. Individuals who would receive payments under the Act would have

experienced frustration and delay, but this would be compensated by interest on the

fund. Moreover, individuals have no vested interest in the fund as discussed

above. See Weeks, 430 U.S. at 85. Further, any temporary harm they would

experience does not even compare to the loss of millions of dollars by the Tribe.

The delay that so concerned the district court was not a sufficient reason for

moving forward with a distribution that has very serious and legitimate questions

about its constitutionality and that will take the money from the Tribe.

The last factor to be considered is whether an injunction would further the

public interest, and that is certainly the case. If the United States is required to pay

just compensation for taking the Tribe’s money, the public would pay the judgment

award twice: once when the funds were deposited in the trust account for the tribes

and again when the tribes seek compensation for the taking of that fund.

Obviously, this would not be in the public interest, and it is surely not what

Congress would have intended. There is a further public interest in assuring that

the United States carries out its duties as trustee to the Tribe and the other tribes.

For the United States to seize and give to others the very fund that it is holding in

trust for the Tribe would not only betray this important public interest, but also

breach its trust responsibilities to the Tribe.

One arguable concern supporting immediate distribution of the fund may be

the desire to benefit needy individual Western Shoshone Indians. But, the tribes

are the proper governments to decide how their funds should be distributed,


30

particularly whether they should be distributed to individual members of the tribes.

No matter how many needy individuals may benefit from the judgment fund, this

cannot justify confiscating the fund from its rightful and lawful owners.

The implementation of the Distribution Act would mean that these tribes,

including the Tribe, have been pushed off their lands, deprived of their resources,

and then deprived of the compensation awarded to them for the wrongs suffered.

This cannot be regarded as serving any public interest in according justice or

making compensation to those who have been wronged. No justice is accorded nor

public interest served by stealing from one to pay another.

CONCLUSION AND PRAYER FOR RELIEF

Plaintiffs-Appellants respectfully request this Court to reverse the order

granting the motion to dismiss and to remand the case with instructions to issue a

preliminary injunction.

May 27, 2011

/S/

Robert T. CoulterIndian Law Resource Center602 North Ewing StreetHelena, MT 59601(406) 449-2006

Philomena KebecIndian Law Resource Center601 E Street, S.E.Washington, D.C. 20003(202) 547-2800

Kirsten Matoy CarlsonIndian Law Resource Center3019 Ferris AvenueRoyal Oak, MI 48073


31

(406) 459-4902

Of CounselDavid Kairys1719 North Broad StreetPhiladelphia, PA 19122(215) 204-8959

CERTIFICATE OF SERVICE

I certify this Brief of Appellants and the Joint Appendix were served on May

27, 2011 by electronic filing using the Court of Appeals CM/ECF system on the

following:

Brian C. TothAppellate SectionEnvironment and Natural Resources DivisionUnited States Department of JusticeP.O. Box 23795Washington, DC 20026-3795Counsel for Appellees

/S/

Robert T. CoulterIndian Law Resource Center602 North Ewing StreetHelena, Montana 59601(406) 449-2006


32

Certificate of Compliance with Type-Volume Limitation,Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed.

R. App. P. 32(a)(7)(B) because this brief contains 8,863 words, excluding the parts

of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R.

App. P. 32(a)(5) and the type style requirements of Fed. R. App.

P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface

using WordPerfect version X3, in New Times Roman 14 point type.

__________/S/__________

Robert T. CoulterAttorney for Plaintiffs-Appellants

Dated: May 27, 2011


33

STATUTORY ADDENDUM

TABLE OF CONTENTS

Western Shoshone Claims Distribution Act, Pub. L. No. 108-270, 118 Stat. 805(2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Indian Claims Commission Act, 25 U.S.C. § 70u(a) (1976 ed.). . . . . . . . . . . . . . 40

Indian Judgment Funds Use or Distribution Act, 25 U.S.C. § 1401 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

28 U.S.C. § 2517 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

31 U.S.C. § 724a (Supp. V 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47


34


35


36


37


38


39


25 U.S.C. § 70u (1976)

(a) When the report of the Commission determining anyclaimant to be entitled to recover has been filed with Congress, suchreport shall have the effect of a final judgment of the Court of Claims,and there is authorized to be appropriated such sums as are necessaryto pay the final determination of the Commission. The payment of any claim, after its determination in accordance withthis chapter, shall be a full discharge of the United States of all claimsand demands touching any of the matters involved in the controversy.

(b) A final determination against a claimant made and reportedin accordance with this chapter shall forever bar any further claim ordemand against the United States arising out of the matter involved inthe controversy.

40


United States Code Annotated CurrentnessTitle 25. Indians

Chapter 16. Distribution of Judgment Funds (Refs & Annos)§ 1401. Funds appropriated in satisfaction of judgments of Indian Claims Commission or United

States Court of Federal Claims

(a) Use and distribution

Notwithstanding any other law, all use or distribution of funds appropriated in satisfaction of a judgment ofthe Indian Claims Commission or the United States Court of Federal Claims in favor of any Indian tribe, band,group, pueblo, or community (hereinafter referred to as “Indian tribe”), together with any investment incomeearned thereon, after payment of attorney fees and litigation expenses, shall be made pursuant to the provi-sions of this chapter.

(b) Amounts remaining to be held in trust unless otherwise provided

Except as provided in sections 164 and 165 of this title, amounts which the Secretary of the Interior has re-maining after execution of either a plan under this chapter, or another Act enacted heretofore or hereafterproviding for the use or distribution of amounts awarded in satisfaction of a judgment in favor of an Indiantribe or tribes, together with any investment income earned thereon and after payment of attorney fees and lit-igation expenses, shall be held in trust by the Secretary for the tribe or tribes involved if the plan or Act doesnot otherwise provide for the use of such amounts.

(c) Short title

This chapter may be cited as the “Indian Tribal Judgment Funds Use or Distribution Act”.

§ 1402. Plan for use or distribution of funds

(a) Preparation and submission to Congress by Secretary of the Interior; contents; copy to affected Indian tribe

Within one year after appropriation of funds to pay a judgment of the Indian Claims Commission or theUnited States Court of Federal Claims to any Indian tribe, the Secretary of the Interior shall prepare and sub-mit to Congress a plan for the use and distribution of the funds. Such plan shall include identification of thepresent-day beneficiaries, a formula for the division of the funds among two or more beneficiary entities ifsuch is warranted, and a proposal for the use and distribution of the funds. The Secretary shall simultaneouslysubmit a copy of such plan to each affected tribe or group.

(b) Time for preparation and submission of plan

Page 1

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=USCA&DocName=PRT%28%3E+++++++++001806273%29+%26+BEG-DATE%28%3C%3D%2F%2F%29+%26+END-DATE%28%3E%3D%2F%2F%29+%25+CI%28REFS+%28DISP+%2F2+TABLE%29+%28MISC+%2F2+TABLE%29%29&FindType=l&JH=+Chapter+16.+Distribution+of+Judgment+Funds+&JL=2&JO=25+U.S.C.A.+s+1401&SR=SB

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=USCA&DocName=lk%2825USCAC16R%29&FindType=l

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=25USCAS164&FindType=L


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=USCA&DocName=LK%2825USCAS1402%29&FindType=l

With respect to judgments, for which funds have been appropriated prior to January 12, 1983, but for whichuse or distribution has not been authorized by enactment of legislation or by an effective plan under thischapter, the Secretary shall prepare and submit such plans within one year of January 12, 1983.

(c) Submission of proposed legislation and report to Congress

In any case where the Secretary determines that the circumstances do not permit the preparation and submis-sion of a plan as provided in this chapter, he shall submit to the Congress within the one-year period proposedlegislation to authorize use or distribution of such funds, together with a report thereon.

(d) Submission of proposed legislation and report to Congress in absence of consent of tribal governments to di-vision of judgment funds between two or more beneficiary entities

In cases where the Secretary has to submit a plan dividing judgment funds between two or more beneficiaryentities, he shall obtain the consent of the tribal governments involved to the proposed division. If the Secret-ary cannot obtain such consent within one hundred and eighty days after appropriation of the funds for theaward or within one hundred and eighty days of January 12, 1983, he shall submit proposed legislation to theCongress as provided in subsection (c) of this section.

(e) Extension of time for preparation and submission of plan

An extension of the one-year period, not to exceed one hundred and eighty days, may be requested by the Sec-retary or by the affected Indian tribe, submitting such request to the committees through the Secretary, andany such request will be subject to the approval of both the Senate Committee on Indian Affairs and theUnited States House of Representatives Committee on Natural Resources.

§ 1403. Preparation of plan

(a) Prerequisites for final preparation

The Secretary shall prepare a plan which shall best serve the interests of all those entities and individuals en-titled to receive funds of each Indian judgment. Prior to the final preparation of the plan, the Secretary shall--

(1) receive and consider any resolution or communication, together with any suggested use or distributionplan, which any affected Indian tribe may wish to submit to him; and

(2) hold a hearing of record, after appropriate public notice, to obtain the testimony of leaders and members ofthe Indian tribe which may receive any portion, or be affected by the use or distribution, of such funds, in thearea in which such Indian tribe is located and at a time which shall best serve the convenience of the eligiblemembers thereof.

(b) Guidelines

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In preparing a plan for the use or distribution of the funds of each Indian judgment, the Secretary shall, amongother things, be assured that--

(1) legal, financial, and other expertise of the Department of the Interior has been made fully available in anadvisory capacity to the Indian tribe which is entitled to such funds to assist it to develop and communicate tothe Secretary pursuant to clause (1) of subsection (a) of this section its own suggested plan for the distributionand use of such funds;

(2) the needs and desires of any groups or individuals who are in a minority position, but who are also entitledto receive such funds, have been fully ascertained and considered;

(3) the interests of minors and other legally incompetent persons who are entitled to receive any portion ofsuch funds as are subsequently distributed to them are and will be protected and preserved; [FN1] Provided,That such funds may be disbursed to the parents or legal guardian of such minors or legal incompetents insuch amounts as may be necessary for the minor or legal incompetent's health, education, welfare, or emer-gencies under a plan or plans approved by the Secretary and the tribal governing body of the Indian tribe in-volved. [FN2]

(4) any provision, including enrollment provisions, of the constitution, bylaws, rules, and procedures of suchtribe which may affect the distribution or other use of such funds are in full accord with the principles of fair-ness and equity;

(5) a significant portion of such funds shall be set aside and programed to serve common tribal needs, educa-tional requirements, and such other purposes as the circumstances of the affected Indian tribe may justify, ex-cept not less than 20 per centum of such funds shall be so set aside and programed unless the Secretary de-termines that the particular circumstances of the pertinent Indian tribe clearly warrant otherwise: Provided,That in the development of such plan the Secretary shall survey past and present plans of the tribe for econom-ic development, shall consider long range benefits which might accrue to the tribe from such plans, and shallencourage programing of funds for economic development purposes where appropriate; and

(6) methods exist and will be employed to insure the proper performance of the plan once it becomes effectiveunder section 1405 of this title.

[FN1] So in original. The semicolon probably should be a colon.

[FN2] So in original. The period probably should be a semicolon.

§ 1404. Hearing transcripts and tribal support statements; submission to Congress with plan

When submitting the plan as provided in section 1402 of this title, the Secretary shall also submit to the Con-gress with such plan--

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(1) copies of the transcripts of hearings held by him concerning the Indian judgment pursuant to clause (2) ofsection 1403(a) of this title and all other papers and documents considered by him in the preparation of suchplan, including any resolution, communication, or suggested use or distribution plan of the pertinent Indiantribe submitted pursuant to clause (1) of section 1403(a) of this title; and

(2) a statement of the extent to which such plan reflects the desires of the Indian tribe or individuals who areentitled to such funds, which statement shall specify the alternatives, if any, proposed by such Indian tribe orindividuals in lieu of such plan, together with an indication of the degree of support among the interestedparties for each such alternative.

§ 1405. Effective date of plan; joint resolution of disapproval

(a) Original plan

The plan prepared by the Secretary shall become effective, and he shall take immediate action to implementthe plan for the use or distribution of such judgment funds, at the end of the sixty-day period (excluding dayson which either the House of Representatives or the Senate is not in session because of an adjournment ofmore than three calendar days to a day certain) beginning on the day such plan is submitted to the Congress,unless during such sixty-day period a joint resolution is enacted disapproving such plans.

(b) Proposed legislation and report to Congress following Congressional disapproval

Within thirty calendar days after the date of enactment of a joint resolution disapproving a plan, the Secretaryshall submit to the Congress proposed legislation, together with a report thereon, authorizing use or distribu-tion of such funds.

(c) Successor plan previously withdrawn or amended prior to Congressional action; consent to amendments

Within the sixty-day period and before the adoption of any resolution disapproving a plan, the Secretary maywithdraw or amend such plan: Provided, That any amendments affecting the division of an award between twoor more beneficiary entities shall be subject to the consent of these entities as provided in section 1402(d) ofthis title. Any such amended plan shall become valid at the end of a sixty-day period beginning on the daysuch amendment is submitted to the Congress, unless during such sixty-day period, a joint resolution is en-acted disapproving such plan as amended.

(d) Resubmission of successor plan within prescribed period following withdrawal of plan

Once a plan is withdrawn before the end of a sixty-day period, the Secretary has until the expiration of the ori-ginal one-year deadline to resubmit a plan to Congress. Such a plan shall become valid at the end of a sixty-day period beginning on the day such new plan is submitted to the Congress, unless during such sixty-dayperiod, a joint resolution is enacted disapproving such plan.

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http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=25USCAS1403&FindType=Y&ReferencePositionType=S&ReferencePosition=8b3b0000958a4




http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=25USCAS1402&FindType=Y&ReferencePositionType=S&ReferencePosition=5ba1000067d06

(e) Recomputation of sixty-day period from date of introduction of joint resolution of disapproval; reextensionrestriction

Upon the introduction of the first such resolution of disapproval in either the House of Representatives or theSenate, the sixty-day period shall be recomputed from the date of such introduction and shall not again be ex-tended.

§ 1406. Rules and regulations

(a) Promulgation

The Secretary shall promulgate rules and regulations to implement this chapter no later than the end of the onehundred and eighty-day period beginning on October 19, 1973. Among other things, such rules and regula-tions shall provide for adequate notice to all entities and persons who may receive funds under any Indianjudgment of all relevant procedures pursuant to this chapter concerning any such judgment.

(b) Publication in Federal Register

No later than sixty days prior to the promulgation of such rules and regulations the Secretary shall publish theproposed rules and regulations in the Federal Register.

(c) Hearings

No later than thirty days prior to the promulgation of such rules and regulations, the Secretary shall provide,with adequate public notice, the opportunity for hearings on the proposed rules and regulations, once pub-lished, to all interested parties.

§ 1407. Tax exemption; resources exemption limitation

None of the funds which--

(1) are distributed per capita or held in trust pursuant to a plan approved under the provisions of this chapter,or [FN1]

(2) on January 12, 1983, are to be distributed per capita or are held in trust pursuant to a plan approved by theCongress prior to January 12, 1983,

(3) were distributed pursuant to a plan approved by Congress after December 31, 1981 but prior to January 12,1983, and any purchases made with such funds, or

(4) are paid by the State of Minnesota to the Bois Forte Band of Chippewa Indians pursuant to the agreements

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of such Band to voluntarily restrict tribal rights to hunt and fish in territory cede [FN2] under the Treaty ofSeptember 30, 1854 (10 Stat. 1109), including all interest accrued on such funds during any period in whichsuch funds are held in a minor's trust,

including all interest and investment income accrued thereon while such funds are so held in trust, shall besubject to Federal or State income taxes, nor shall such funds nor their availability be considered as income orresources nor otherwise utilized as the basis for denying or reducing the financial assistance or other benefitsto which such household or member would otherwise be entitled under the Social Security Act [42 U.S.C.A. §301 et seq.] or, except for per capita shares in excess of $2,000, any Federal or federally assisted program.

[FN1] So in original. The word “or” probably should not appear.

[FN2] So in original. Probably should be “ceded”.

§ 1408. Resources exemption

Interests of individual Indians in trust or restricted lands shall not be considered a resource, and up to $2,000per year of income received by individual Indians that is derived from such interests shall not be consideredincome, in determining eligibility for assistance under the Social Security Act [42 U.S.C.A. § 301 et seq.] orany other Federal or federally assisted program.

END OF DOCUMENT

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28 U.S.C. § 2517 (1977)

(a) Every final judgment rendered by the Court of Claimsagainst the United States shall be paid out of any generalappropriation therefor, on presentation to the GeneralAccounting office of a certification of the judgment by theclerk and chief judge of the court.

(b) Payment of any such judgment and of interest thereonshall be a full discharge to the United States of all claims anddemands arising out of the matters involved in the case orcontroversy.

31 U.S.C. § 724a (Supp. V. 1981)

There are appropriated, out of any money in the Treasuryand not otherwise appropriated, and out of the postal revenues,respectively, such sums as may on and after July 27, 1956 benecessary for the payment, not otherwise provided for, ascertified by the Comptroller General, of final judgments,awards, and compromise settlements (not in excess of$100,000, or its equivalent in foreign currencies at the time ofpayment, in any one case) which are payable in accordancewith the terms of sections 2414, 2517, 2672, or 2677 of title 28,together with such interest and costs as may be specified insuch judgments or otherwise authorized by law: Provided,That, whenever a judgment of a district court to which theprovisions of section 2411(b) of title 28 apply, is payable fromthis appropriation, interest shall be paid thereon only whensuch judgment becomes final after review on appeal or petitionby the United States, and then only from the date of the filingof the transcript thereof in the General Accounting Office tothe date of the mandate of affirmance (except that in casesreviewed by the Supreme Court interest shall not be allowedbeyond the term of the Court at which the judgment wasaffirmed): Provided further, That whenever a judgmentrendered by the Court of Claims is payable from thisappropriation, interest payable thereon in accordance with

47


section 2516(b) of title 28 shall be computed from the date ofthe filing of the transcript thereof in the General AccountingOffice....

48


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ADDENDUM II

TABLE OF CONTENTS

Western Shoshone Identifiable Group v. United States, No. 1:06-cv-00896-EJD (Fed. Cl. Nov. 24, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Sisseton-Wapheton Sioux Tribe v. United States, No. CV-87095-GF, Memorandum andOrder (D.MT May 8, 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

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1

The United States Court of Federal Claims shall have jurisdictionof any claim against the United States accruing after August 13,1946, in favor of any tribe, band, or other identifiable group ofAmerican Indians residing within the territorial limits of the UnitedStates or Alaska whenever such claim is one arising under theConstitution, laws or treaties of the United States, or Executiveorders of the President, or is one which otherwise would becognizable in the Court of Federal Claims if the claimant were notan Indian tribe, band or group.

28 U.S.C. § 1505.

In the United States Court of Federal Claims

No. 06-896 L

(Filed: November 24, 2009)

*****************************************THE WESTERN SHOSHONE IDENTIFIABLE * GROUP, represented by the YOMBA *SHOSHONE TRIBE, a federally *recognized Indian Tribe, et. al. *

*Plaintiff, *

*v. *

*THE UNITED STATES, *

*Defendant. *

******************************************

OPINION

This is an action under the Indian Tucker Act, 28 U.S.C. § 1505 , brought on behalf of the1

Western Shoshone Identifiable Group (“Western Shoshone”) seeking damages formismanagement of tribal trust funds by the United States Department of the Interior. These trust

Case 1:06-cv-00896-EJD Document 61 Filed 11/24/09 Page 1 of 15

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Defendant’s motion for reconsideration pertains only to the Court’s denial of its motion2

to dismiss under RCFC 12(b)(6) and does not pertain to the Court’s denial of its motion todismiss under RCFC 12(b)(7).

The Western Shoshone judgment funds are defined as “(A) the funds appropriated in3

satisfaction of the judgment award granted to the Western Shoshone Indians in Docket Number326-K before the Indian Claims Commission; and (B) all interest earned on those funds.” 2004Distribution Act § 2(3)(A) & (B).

2

funds were awarded to the Western Shoshone Identifiable Group by the Indian ClaimsCommission (“ICC”) and its successors, the United States Claims Court and the United StatesCourt of Federal Claims in Western Shoshone Identifiable Group v. United States, Nos. 326-K,326-A-1, and 326-A-3. Three federally-recognized Indian tribes, the Yomba Shoshone Tribe(“Yomba”), the Timbisha Shoshone Tribe (“Timbisha”) and the Duckwater Shoshone Tribe(“Duckwater”) (collectively “the Tribes” or “Tribal Plaintiffs”) assert that they represent theinterests of the Western Shoshone Identifiable Group. In addition, there are three individualplaintiffs who assert that they, too, represent the interests of the Western Shoshone IdentifiableGroup and are also presenting claims on their own behalf.

Presently before the Court is Defendant’s motion for reconsideration of this Court’sOctober 31, 2008 Opinion which denied Defendant’s motion to dismiss the Tribal Plaintiffs fromthe proceeding under Rule 12(b)(6), for failure to state a claim, and Rule 12(b)(7), for failure tojoin a party, of the Rules of the United States Court of Federal Claims (“RCFC”). On June 18,2

2009, the Court issued an order granting Defendant leave to file its motion for reconsiderationand directing Plaintiffs to file a response, and the Court has received and reviewed the parties’papers.

I. Background

A. Defendant’s Motion to Dismiss

In its October 31, 2008 Opinion, the Court set forth a summary of the litigation beforethis Court, its predecessors, and the Indian Claims Commission giving rise to this proceeding. The October 31, 2008 Opinion also explained how the monies awarded to the Western ShoshoneIdentifiable Group were deposited in Government trust fund accounts for the benefit of theWestern Shoshone. See October 31, 2008 Op. at 2-6. Familiarity with that decision is presumed.

Defendant based its argument that Plaintiffs’ complaint did not contain “allegationsrespecting all the material elements necessary to sustain recovery under some viable legal theory”on the enactment by Congress in 2004 of the Western Shoshone Claims Distribution Act, Pub. L.No. 108-270, 118 Stat. 805 (“2004 Distribution Act”), which provided for a plan of distributionof the Western Shoshone judgment funds on a per capita basis and not to the Western Shoshone3


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The 2004 Distribution Act provides, in relevant part, that “[o]n establishment of the4

judgment roll, the Secretary shall make a per capita distribution of 100 percent of the WesternShoshone judgment funds, in shares as equal as practicable, to each person listed on thejudgment roll.” Id. § 3(c)(1).

3

Identifiable Group nor the tribes as such. In addition, Defendant noted that “until the4

distribution is effected, Congress has the authority to alter distributions.” Id. at 10 (citing, interalia, Lebeau v. United States, 474 F.3d 1334, 1342 (Fed. Cir. 2007)). Thus, Defendantconcluded that “[b]y extension, it follows that the Plaintiff Tribe has no vested right to any partof the distribution or interest earned during the time the funds are invested before they aredistributed.” Id.

On May 16, 2008, Plaintiffs filed their response, asserting that they were beneficialowners of the judgment funds held by the United States as trustee, and further argued that the2004 Distribution Act did not deprive them of these ownership rights.

Defendant filed a reply on July 11, 2008. In its reply, Defendant stated: “Without beingthe beneficiaries of distributions from the judgments and not having vested rights, the tribalplaintiffs cannot seek damages based on mismanagement of the funds.” Def.’s Reply at 3(caption) (punctuation altered). The Defendant further argued that the “Federal Circuit’sdecision in LeBeau v. United States is controlling and relevant to the facts in this case.” Id. at 3(caption) (punctuation altered). The Defendant elaborated further. “Until the time ofdistribution, vesting has not occurred, there is no constitutionally protected property interest, andthere is no basis for a party to sue the United States if Congress’ distribution plan designatesdistribution to a party other than the party bringing the action.” Id. at 4 (citations omitted). TheCourt, therefore, concluded that the Defendant’s argument that the Tribal Plaintiffs where notbeneficial owners of the trust was focused on the issue of vesting.

B. The Court’s October 31, 2008 Opinion

In its October 31, 2008 Opinion, the Court responded to these arguments in the followingmanner: First, the Court framed the issue posed by Defendant’s motion as “May the TribalPlaintiffs Maintain this Action on Behalf of the Western Shoshone?” October 31, 2008 Op. at 7(caption). The Court then characterized Defendant’s argument in the following manner: “Defendant. . .does not challenge the argument of the Tribes that this Court has jurisdiction tohear their breach of trust claims. Instead, Defendant argues that the Federal Circuit’s decision inLeBeau holds that only those with a vested interest in the distribution may state a claim formismanagement of the trust fund proceeds.” Id. at 8 (citation omitted). In distinguishing theholding in LeBeau from this case, the Court stated: “For the purpose of the present motion,Defendant does not dispute that the Tribal Plaintiffs are beneficiaries of the Western Shoshonetribal trust funds.” October 31, 2008 Op. at 10. Quoting LeBeau, the Court explained why itsholding did not, in this case, require the Tribal Plaintiffs to have vested interests in the proceedsof the distribution of the Western Shoshone tribal trust funds.


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“The Distribution Act does not in any way change the Tribal Plaintiffs’ ownership5

interest in those funds, nor would a future amendment to the Distribution Act or a change in thedistribution scheme by Congress have any effect on the Tribe’s ownership interest either.”October 31, 2008 Op. at 10.

4

However, a review of Defendant’s briefing papers indicates that the sentence in theCourt’s Opinion quoted immediately above was somewhat misleading. Although Defendant, inits reply brief, appeared to frame its argument narrowly in terms of Tribal Plaintiffs’ vested rightsin the proceeds of the Western Shoshone trust funds, upon reconsideration it appears thatDefendant’s argument was in fact a broader attack on the Tribal Plaintiffs’ status as beneficialowners of the Western Shoshone trust funds as a consequence of the enactment of the 2004Distribution Act. For instance, in its reply brief, Defendant argued that “[h]ere the beneficiariesof the Western Shoshone Distribution Act are all the individuals, and no tribes are designated asbeneficiaries.” Def.’s Reply at 4-5. And again, Defendant argued that “[t]he point is that theYomba Tribal Plaintiffs are not entitled to mismanagement damages when they are notbeneficiaries of the statute that could, at best, only be fairly interpreted to grant the individualbeneficiaries a damages remedy for alleged mismanagement of the money that Congress hasdirected to be paid to them.” Id. at 7. It is clear, then, that the thrust of Defendant’s argumentwas that, at least after the enactment of the 2004 Distribution Act, the Tribal Plaintiffs could notbe characterized as beneficial owners of the Western Shoshone judgment funds generally andthat the issue of vesting was an element of this broader argument. That said, the Court did in facthold that the 2004 Distribution Act had no effect on the Tribal Plaintiffs’ status as owners oftribal trust funds, thereby registering its disagreement with Defendant’s argument that the 2004Distribution Act in some way negated the Tribal Plaintiffs’ status as beneficial owners of theWestern Shoshone trust funds. 5

The Court concluded its analysis by stating: “Accordingly, Defendant has failed to showthat the Tribal Plaintiffs’ second amended complaint does not contain ‘some viable legal theory’upon which recovery could be granted. Thus, the Court denies Defendant’s motion to dismissunder RCFC 12(b)(6).” October 31, 2008 Op. at 9-10.

C. Defendant’s Motion for Reconsideration

1. Defendant’s Arguments

In its motion for reconsideration, Defendant presents several arguments in favor of itscontention that the Tribal Plaintiffs are not beneficial owners of the Western Shoshone judgmentfunds. First, Defendant argues that the Tribal Plaintiffs cannot show that the Government isunder any money-mandating duty towards the Tribes, as Tribes, with respect to the WesternShoshone judgment funds. This is because any such money-mandating duty is governed by the2004 Distribution Act, which directs how the judgment funds are to be distributed. Defendantstates that a Tribal Plaintiff which cannot allege a money-mandating duty against the


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Defendant captions this argument as “The Tribal Plaintiffs Lack Any Money-6

Mandating Basis for Jurisdiction.” Def.’s Mot. for Recons. at 7. Likewise, Plaintiffs in theiropposition contends that Defendant’s argument is akin to claiming that the Tribal Plaintiffs lackstanding. Pls.’ Opp’n at 9-10 n.4. Defendant did not frame its motion to dismiss in terms ofjurisdiction or standing, though it seems that the question of the standing of the Tribal Plaintiffsto bring this action was always lurking just outside the four corners of Defendant’s motion todismiss.

To provide additional context, the sentence in Navajo II prior to the passage quoted by7

Defendant is “The Federal Government’s liability cannot be premised on control alone.” NavajoII, 129 S.Ct. at 1558.

5

Government with respect to the trust funds has no cognizable breach of trust claim in this Court. 6

For this principle, Defendant quotes United States v. Navajo Nation, 129 S.Ct. 1547 (2009)(“Navajo II”) as follows:

The text of the Indian Tucker Act makes clear that only claimsarising under “the Constitution, laws or treaties of the UnitedStates, or Executive orders of the President” are cognizable (unlessthe claim could be brought by a non-Indian plaintiff under theordinary Tucker Act). 28 U.S.C. § 1505. In Navajo I we reiteratedthat the analysis must begin with “specific rights-creating or duty-imposing statutory or regulatory prescriptions.” [United States v.Navajo Nation,] 537 U.S. 488[,] 506, 123 S.Ct. 1079, 155 L.Ed.2d60 (2003) (“Navajo I”). If a plaintiff identifies such asprescription, and if that prescription bears the hallmarks of a“conventional fiduciary relationship,” [United States v.] WhiteMountain, 537 U.S. 465, 473, 123 S.Ct. 1126, 155 L.Ed.2d 40(2003), then trust principles (including any such principlespremised on “control”) could play a role in “inferring that the trustobligations [is] enforceable by damages,” id., at 477, 123 S.Ct.1126, 155 L.Ed.2d 40. But that must be the second step of theanalysis, not (as the Federal Circuit made it) the starting point.

Def.’s Mot. to Recons. a t7 (quoting Navajo II, 129 S.Ct. at 1558) (citations altered). Defendant7

argues that because the 2004 Distribution Act specified the beneficiary to whom judgment fundsare to be distributed, Congress had effectively taken an action that is contrary to a fair mandate ofmoney damages if the Tribes were indeed beneficiaries prior to the date of enactment of theDistribution Act. This conclusion, so Defendant argues, is demanded by the Federal Circuit’sdecision in Lebeau. Specifically, Defendant argues that:

when Congress specifies a beneficiary of a trust fund, the partywho is not the beneficiary no longer has a trust res for which he


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6

has a beneficial interest, and the trustee’s obligations no longerflow to him. And where as here Congress species [sic] that alltrust res is to be distributed to individuals, Congress’ actionnegates a fair inference of a money damage remedy premised on aprior unvested beneficial interest.

Def.’s Mot. To Recons. at 8-9. Because the 2004 Distribution Act “negates a fair inference of amoney damages remedy,” to the Tribes, so Defendant argues, the tribes lack any money-mandating basis for jurisdiction under Navajo II, 129 S.Ct. at 1558.

2. Plaintiffs’ Arguments

Plaintiffs, however, argue that Defendant has not met its burden of persuasion under thelegal standard for granting reconsideration of an interlocutory opinion under RCFC 59(a) and54(b). While reconsideration of a prior order is in the sound discretion of the trial court,reconsideration requires the exercise of “extreme care.” Yuba Natural Res. v. United States, 904F.2d 1577, 1583 (Fed. Cir. 1990); A.A.B. Joint Venture v. United States, 77 Fed. Cl. 702, 704(2007). To satisfy its burden of persuasion, Plaintiffs argue, the movant must show that anintervening change in controlling law occurred, previously unavailable evidence is now available,or reconsideration is necessary to prevent manifest injustice. A.A.B. Joint Venture, 77 Fed. Cl. at705. However, to prevail on a motion for reconsideration, the movant cannot “merely reassert[]arguments which were previously made and were carefully considered by the court.” Id. at 704.

Plaintiffs contend that in its motion, Defendant merely reasserts its previous argumentthat the Tribal Plaintiffs are not beneficiaries of the Western Shoshone judgment funds becausethe 2004 Distribution Act mandates per capita payment of the proceeds. Plaintiffs argue that theexpress text of the 2004 Distribution Act does not indicate that only individuals, not tribes, arebeneficial owners of the tribal trust funds. They argue that the 2004 Distribution Act does not“support the conclusion that the Western Shoshone Judgment Funds are anything other thantribal trust funds that remain in trust for the benefit of the Western Shoshone Identifiable Groupuntil distributed.” Pls.’ Opp’n at 7. Instead, they argue that “the Western Shoshone IdentifiableGroup is the conduit through which the funds will pass to the individual and the Tribal Plaintiffsretain their beneficial ownership of the funds.” Id. at 6.

Plaintiffs further argue that Defendant’s position is indistinguishable from the argumentwhich it advanced in Chippewa Cree Tribe of the Rocky Boy’s Reservation v. United States, 73Fed. Cl. 154, 172 (2006) (“Chippewa Cree II”), where, to avoid a claim by an “identifiable groupof American Indians” for mismanagement liability of tribal trust funds, Defendant argued that thedistribution act in that case “individualized” the funds. In that case, Judge (now Chief Judge)Hewitt rejected Defendant’s argument, holding that “Defendant’s theory of the creation ofindividual. . . rights is based neither on specific treaty provisions nor on the language of therelevant. . . statutes . . . . Defendant’s theory of spontaneous creation of individual rights iswithout legal foundation.” Id. at 162.


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However, in its Answer, Defendant denies that the Tribal Plaintiffs possess any interest8

in the trust funds. Id. ¶ 28.

7

In addition, Plaintiffs maintain that, rather than advancing Defendant’s position, Lebeauactually is consistent with their own position that Indian tribes are beneficiaries of tribal trustfunds and can recover damages for mismanagement for the period the funds were held in trust bythe Government. Lebeau according to Plaintiffs, holds that funds remain tribal trust funds untilsuch time as the funds are actually distributed. Lebeau, 474 F.3d at 1342-43. Other cases, soPlaintiffs argue, hold that distribution acts do not divest tribes or groups of beneficial ownership,and the funds remain tribal or group property until the funds are distributed. Sac and FoxIndians v. Sac and Fox Indians, 220 U.S. 481, 486 (1911); Chippewa Cree II, 73 Fed. Cl. 160-61(“statutes that direct the government in the manner tribal funds are to be distributed do not createindividual rights; where the tribe or group is the conduit through which benefits are distributed,‘the primary recipient [is] still the tribe or band,’” (quoting Hebah v. United States, 428 F.2d1334, 1337-39 (1970))).

Plaintiffs further argue that, at the very least, it is not disputed by the parties that theWestern Shoshone Identifiable Group and the Tribal Plaintiffs were the beneficial owners of thetrust funds at issue here at least up until the enactment of the Distribution Act. Plaintiffs’ pointto Defendant’s answer which admits that the Tribal Plaintiffs are “part of the ‘Western ShoshoneIdentifiable Group’ only as that term is used and understood within the meaning and context ofIndian Claims Commission proceedings in Docket Nos. 326-K, 326-A-1, and 326-A-3.” Answer, ¶¶ 2, 3, 4. Likewise, Defendant admits that Congress appropriated certain funds insatisfaction of the judgment awards in accounts held in trust by the United States. Id. ¶¶ 26, 27.8

28. If the tribes are not the beneficial owners, then, so Plaintiffs argue, the Government would beeffectively discharged from liability for breach of trust prior to the transfer of tribal trust funds tothe individual Western Shoshones. Chippewa Cree II, 73 Fed. Cl. at 165 (“Although the trusteehas transferred the entire trust property to the beneficiary, he is not thereby discharged fromliability for breaches of trust committed by him prior to the transfer.”) (internal citation omitted);United States v. Mitchell, 463 U.S. 206, 227 (1983) (“Absent a retrospective damages remedy,there would be little to deter federal officials from violating their trust duties. . . .”).

Moreover, Plaintiffs maintain that the only possible intervening change in law profferedby Defendants is Navajo II, which Plaintiffs contend did not, in fact, change the legal analysisapplicable to a tribal breach of trust damages claim. Instead, the Court applied the sameanalytical framework to determine whether a claimant may bring a breach of fiduciary dutyaction under the Indian Tucker Act as it did in its prior decision in Navajo I, 537 U.S. at 506. The criteria by which a court determines whether a claim for breach of fiduciary duties lies underthe Indian Tucker Act are, according to Plaintiffs:

(1) determine whether there are specific rights-creating or duty-imposing statutory or regulatory prescriptions; (2) determinewhether the prescriptions bear the hallmarks of a conventional


57


8

fiduciary relationship; (3) determine whether the relevant source(s)of substantive law can be fairly interpreted as mandatingcompensation, and (4) determine whether trust principles arerelevant to infer that Congress intended damages to remedy thebreach.

Pls.’ Opp’n at 11 (citing Navajo II, 129 S.Ct. at 1558).

Plaintiffs contend that the Tribal Plaintiffs satisfy these four criteria. First, Plaintiffsargue that the rights-creating and duty-imposing prescriptions governing the tribal trust fundsheld by the United States on behalf of the Tribal Plaintiffs are contained in the trust fundinvestment statutes, including 25 U.S.C. §§ 161a and 162a. Pls.’ Opp’n at 12 (citing OsageTribe v. United States, 72 Fed. Cl. 629, 668 (2006); Manchester Band of Pomo Indians v. UnitedStates, 363 F. Supp. 1238, 1242 (N.D. Ca. 1973). Second, Plaintiffs maintain that 25 U.S.C. §§161a and 162a bear the hallmarks of a conventional fiduciary relationship insofar as the conductof the government as a trustee under those statutes are measured by the common law standardsapplicable to private trustees. Pls.’ Opp’n at 12 (citing Cheyenne-Arapaho Tribes v. UnitedStates, 206 Ct. Cl. 340, 345 (1975) (“It is clear from past opinions of this court and of theSupreme Court, and from the actions of both Congress and the Executive Branch, that fundsappropriated to Indians to satisfy judgments of the Indian Claims Commission or of this court, aswell as funds produced by tribal activities, are, when kept in the Treasury, held in trust for theIndians”); Manchester Pomo, 363 F. Supp. at 1245; Osage Tribe, 72 Fed. Cl. at 667). Moreover,Plaintiffs’ argue, Defendant’s concede that “a fiduciary relationship is created when all theelements of a common law trust are present: a trustee, a beneficiary, and a trust corpus.” Def.’sMot to Recons. at 13 (citing Mitchell, 463 U.S. at 225) and that the Western Shoshone trust fundsare held in trust with the United States as trustee and that the Tribal Plaintiffs are part of theWestern Shoshone Identifiable Group. See Answer ¶¶ 2, 3, 4, 5, 26, 27, 28, 30. Third, Plaintiffsargue that when the Government has failed to manage and invest tribal trust funds, such as theWestern Shoshone judgment funds, “damages for that failure and an award of interest on theamount mismanaged” will result. Shoshone Indian Tribe v. United States, 364 F.3d 1339, 1353-54 (Fed. Cir. 2004). Fourth, Plaintiffs argue that case law shows that general trust law principlesprovide for damages to beneficiaries for improper management and investment of tribal trustfund assets by the Government. Confederated Tribes v. United States, 248 F.3d 1365, 1371(Fed. Cir. 2001). See also Mitchell, 463 U.S. at 227. Plaintiffs also note that Defendantconcedes that, generally, the Indian Tucker Act constitutes a waiver of sovereign immunity for anaward of damages when the Government has control or supervision over tribal monies and all theelements of common-law trust are present. Def.’s Mot. to Recons. at 6 (citing Mitchell, 463 U.S.at 225).

III. Standard for Decision

This Court set forth the standard for a decision in a motion to reconsider in A.A.B. JointVenture:


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Reconsideration of a prior decision by the court is grounded inRule 59(a)(1) of the Rules of the U.S. Court of Federal Claims(“RCFC”). The decision whether or not to grant a motion forreconsideration is in the sound discretion of the trial court. YubaNatural Res., 904 F.2d at 1583; Chippewa Cree v. United States,73 Fed. Cl. at 157; Henderson County Drainage District No. 3 v.United States, 55 Fed. Cl. 334, 337 (2003); Franconia Assocs. v.United States, 44 Fed. Cl. 315, 316 (1999); Fru-Con Constr. Co. v.United States, 44 Fed. Cl. 298, 301 (1999); Seldovia Native Assoc.Inc. v. United States, 36 Fed. Cl. 593, 594 (1996). The court mustexercise extreme care in deciding such a motion. Carter v. UnitedStates, 207 Ct. Cl. 316, 518 F.2d 1199, 1199 (1975); ChippewaCree II, 73 Fed. Cl. at 157; Henderson County Drainage, 55Fed.Cl. at 337; Fru-Con Constr., 44 Fed. Cl. at 301; SeldoviaNative Assoc., 36 Fed. Cl. at 594. The purpose served is not toafford a party dissatisfied with the result an opportunity to reargueits case. Roche v. District of Columbia, 18 Ct. Cl. 289, 290, 1800WL 1263 (1883); Chippewa Cree Tribe, 73 Fed. Cl. at 157;Henderson County Drainage, 55 Fed. Cl. at 337; Fru-Con Constr.,44 Fed.Cl. at 301; Seldovia Native Assoc., 36 Fed. Cl. at 594;Principal Mutual Life Ins. Co. v. United States, 29 Fed. Cl. 157,164 (1993); Bishop v. United States, 26 Cl. Ct. 281, 286 (1992). Amotion for reconsideration “is not intended to give an unhappylitigant an additional chance to sway the court.” Circle K Corp. v.United States, 23 Cl. Ct. 659, 664-65 (1991); see also ChippewaCree II, 73 Fed. Cl. at 157; Henderson County Drainage, 55 Fed.Cl. at 337; Fru-Con Constr., 44 Fed.Cl. at 301; Bishop, 26 Cl.Ct.at 286.

The moving party must support its motion for reconsideration by ashowing of exceptional circumstances justifying relief, based on amanifest error of law or mistake in fact. Henderson CountyDrainage, 55 Fed. Cl. at 337; Fru-Con Constr., 44 Fed. Cl. at 300;Chippewa Cree II, 73 Fed. Cl. at 157; Franconia Assocs., 44 Fed.Cl. at 316; Seldovia Native Assoc., 36 Fed. Cl. at 594; PrincipalMutual Life, 29 Fed. Cl. at 164; Bishop, 26 Cl. Ct. at 286. Themotion must have one of the following bases: (1) an interveningchange in controlling law has occurred; (2) previously unavailableevidence is now available; or (3) reconsideration is necessary toprevent manifest injustice. Chippewa Cree Tribe, 73 Fed. Cl. at157; Henderson County Drainage, 55 Fed. Cl. at 337; Fru-ConConstr., 44 Fed. Cl. at 301; Bishop, 26 Cl.Ct. at 286.


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A.A.B. Joint Venture, 77 Fed. Cl. at 704-05 (footnote omitted and citation form altered).

IV. Analysis

As explained above, in its October 31, 2008 Opinion, the Court inaccurately characterizedDefendant as not disputing that Plaintiffs were beneficial owners of the Western Shoshonejudgment funds. However, after noting this supposed concession, the Court then ruled that “[t]he[2004] Distribution Act does not in any way change the Tribal Plaintiffs’ ownership interest inthese funds, nor would a future amendment to the Distribution Act or a change in the distributionscheme by Congress have any effect on the Tribe’s ownership interest either.” October 31, 2008Op. at 10. This statement shows that the Court found that 2004 Distribution Act had no effect onthe Tribes’ status as beneficial owners. That finding alone supports the holding of the Court thatDefendant failed to show that the Tribal Plaintiffs’ complaint did not contain “some viable legaltheory” upon which recovery could be granted. October 31, 2008 Op. at 10. Accordingly, whilethere was a mistake in fact contained in the opinion, this mistake in fact is not ultimately relevantto the Court’s holding.

Moreover, as Plaintiff correctly points out in its opposition to the motion forreconsideration, it has been consistently held by the U.S. Supreme Court and this Court thatdistribution acts in general do not, in of themselves, divest Indian tribes of any ownership interestthat they may have in the tribal trust funds. See, e.g. Sac and Fox Indians v. Sac and FoxIndians, 200 U.S. 481, 483-84, 486, 489-90 (1911) (holding that distribution acts whichpurported to distribute monies to tribal members pursuant to treaties, the identities of whom wereto be determined by the Secretary of the Interior, did not change preexisting rights or conferindividual rights); see also Gritts v. Fisher, 224 U.S. 640, 648 (1912).

Judge Hewitt’s decision in Chippewa Cree II is particularly instructive. In ChippewaCree II, the trial court denied the Government’s motion for reconsideration of its ruling (similarto, but arising in a different manner from, the Court’s holding in the case sub judice) that atribe/group retained its breach of fiduciary duty claim under the Indian Tucker Act “where thetribe or group is the conduit through which benefits are distributed,” Chippewa Cree II, 73 Fed.Cl. at 160, and that acts of Congress which enact plans of distribution of tribal or identifiablegroup trust funds to individuals do not defeat claims of mismanagement of tribal trust fundsbrought by the tribe or identifiable group under the Indian Tucker Act. A detailed discussion ofthe decision follows, which highlights the similarities between the effect of Congressionally-enacted plans of distribution upon claims for mismanagement under the Indian Tucker Actbrought by (or on behalf of) “identifiable groups”as in Chippewa Cree and the case sub judice.

In 1964, the ICC awarded compensation to the descendants of the Pembina Chippewa forland ceded to the United States under two treaties, one in 1863 and another in 1864, for whichthe United States had paid eight cents an acre, the payment of which the ICC found to beunconscionable. Red Lake, Pembina and White Earth Bands, 164 Ct. Cl. 389, 394 (1964).


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Congress appropriated funds to satisfy the ICC award by the Deficiency Appropriations Act of1964, Pub. L. No. 88-317, 78 Stat. 204 (1964). In 1971, Congress enacted a law which set forththe plan of distribution of the 1964 ICC award. Pub. L. No. 92-59, 85 Stat. 158 (1971) (“1971Distribution Act”). The 1971 Distribution Act included the following language:

Be it enacted by the Senate and House of Representatives of theUnited States of America in Congress assembled, That the fundsappropriated by the Act of June 9, 1964 (78 Stat. 204, 213), to paya judgment to the Pembina Band of Chippewa Indians in IndianClaims Commission dockets numbered 18-A, 113, and 191,together with the interest thereon . . . shall be distributed asprovided herein.

The Secretary of the Interior shall prepare a roll of all persons bornon or prior to and living on the date of this Act who are linealdescendants of members of the Pembina Band as it was constitutedin 1863 . . . .

Section 4. In developing the roll of Pembina descendants, theSecretary of the Interior shall determine which enrollees aremembers of the Minnesota Chippewa Tribe, the Turtle MountainBand of Chippewas of North Dakota or the Chippewa-Cree Tribeof Montana, and subsequent to the establishment of thedescendancy roll shall apportion funds to the three cited tribes onthe basis of the numbers of descendants having membership withthese tribes. Funds not apportioned in this manner shall bedistributed in equal shares to those enrolled descendants who arenot members of the three cited tribes.

Chippewa Cree II, 73 Fed. Cl. at 162 (quoting 1971 Distribution Act, 85 Stat. 158 (codified at 25U.S.C. §§ 1241, 1242, 1244)).

The descendants of the Pembina Chippewa also participated with other bands of Indiantribes in a second suit before the ICC seeking just compensation for the loss of 10 million acresof land that was not ceded by treaty, but from which many moved so as not to lose annuitiesnegotiated under the 1863 treaty. The ICC awarded the descendants of the Pembina Chippewaand the other tribes additional compensation for the loss of aboriginal lands, and the U.S. Courtof Claims, affirming the awards, entered two judgments in favor of the bands. Turtle MountainBand of Chippewa Indians v. United States, 229 Ct. Cl. 872 (1980); United States v. TurtleMountain Band of Chippewa Indians, 222 Ct. Cl. 1 (1979). These two judgments were denotedas the “1980 Award” by the trial court. Congress made two separate appropriations in March1980 and December 1981 to satisfy these judgments. Chippewa Cree II, 73 Fed. Cl. at 156. Congress then enacted a plan of distribution for the 1980-81 judgments in December 1982. Pub.


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In Chippewa Cree, the tribal plaintiffs are sub-groups of the individual Indians who9

were beneficiaries of the 1964 and 1980 awards. Chippewa Cree I, 69 Fed. Cl. at 669.

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L. No. 97-403, 96 Stat. 2022 (1982) (“1982 Distribution Act”). The 1982 Distribution Actprovided, in relevant part:

All of the funds appropriated with respect to the judgment awardedthe Pembina Chippewa Indians in dockets 113, 191, 221, and246 . . . shall be divided by the Secretary of the Interior . . . amongthe Turtle Mountain Band of Chippewa Indians, the ChippewaCree Tribe of Rocky Boy's Reservation, the Minnesota ChippewaTribe, the Little Shell Band of the Chippewa Indians of Montana,and the nonmember Pembina descendants (as a group) so that eachis allocated an amount which bears the same relationship to suchfunds as the number of members of such band, tribe, or group . . .bears to the sum of [enrolled descendants].

Chippewa Cree II, 73 Fed. Cl. at 162 n.3 (quoting 1982 Distribution Act, § 2, 96 Stat. 2022). The Pembina judgment funds were partially distributed in 1988 and fully distributed by 1994. Chippewa Cree II, 73 Fed. Cl. at 156-57.

In 1992, the original complaint in Chippewa Cree “was brought by three tribal plaintiffson behalf of the tribes as entities, on behalf of the members of each plaintiff tribe, and ‘on behalfof all of the beneficiaries of the Pembina Judgment Fund’” under the Indian Tucker Act formismanagement of the Pembina judgment funds. Chippewa Cree Tribe of the Rocky Boy'sReservation, 69 Fed. Cl. 639, 670 (2006) (“Chippwa Cree I”). These tribal plaintiffs alsocharacterized their suit as a class action, asserting that the tribal plaintiffs “‘br[ought] this actionon their own behalf and as a class action on behalf of others similarly situated’ and advanced‘class action allegations’ for the class of Pembina Award beneficiaries.” Id. at 665-66 (internalcitations omitted). To that end, Plaintiffs brought a motion for class certification under RCFC23. 9

However, the trial court rejected the motion for class certification on the grounds that aclass action was not, as required by RCFC 23(b)(2) “superior to other available methods for thefair and efficient adjudication of the controversy.” Instead, it found that the Court hadjurisdiction under the Indian Tucker Act, to hear “beneficiaries of the Pembina Judgment Fund”as an “identifiable group of American Indians.” Judge Hewitt noted that the ICC recognized thePembina descendants as an “organized group of Indians” and were entitled to assert claims underthe Indian Claims Commission Act insofar as the Pembina Band of Indians ceased to exist as anorganized entity in 1891. Chippewa Cree I, 69 Fed. Cl. at 672-73. See McGhee v. Creek Nation,122 Ct. Cl. 380, 393-94 (1952) (quoting Red Lake, Pembina and White Earth Bands, Ind. Cl.Comm'n Docket No. 18-A (Sept. 17, 1951). She also noted that the Court of Claims likewiseaffirmed the finding of the Pembina Band as an “identifiable group” and the ICC award.


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Further, in the instant case, the Supreme Court, in United States v. Dann, 470 U.S. 39,10

49-50 (1985), has already held that the final award of the ICC for the Western ShoshoneIdentifiable Group placed the Government in the role of both judgment debtor to the WesternShoshone Tribes and also trustee for the Western Shoshone Tribes, as beneficiaries, to manage

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Chippewa Cree I, 69 Fed. Cl. at 673 (citing Red Lake and Pembina Bands v. Turtle MountainBand of Chippewa Indians, 173 Ct. Cl. 928 (1965). The recognition of the Pembina beneficiariesas an “identifiable group” would allow them to litigate their claims without waiting fornotification for all class members or other parties subject to joinder, and the damages awardwould be shared by all group members rather than just the members of the class. Id.

The Government then filed a motion to reconsider the trial court’s ruling that the Court ofFederal Claims had jurisdiction to hear the group claims of the Pembina Band beneficiaries. Inits motion to reconsider, the Government argued that distribution acts enacted in 1971 and 1982,pertaining to judgment funds awarded to the descendants of the Pembina Band of ChippewaIndians, individualized the beneficial ownership of the tribal trust funds awarded by the ICC in1964 and in the two judgments of the Court of Claims in 1980 and 1981. This precluded, so theGovernment argues, the descendants of the Pembina Band from pursuing claims against theGovernment as an “identifiable group” under the Indian Tucker Act with respect to thosejudgment funds. In response to the Government’s argument on reconsideration, Judge Hewittheld that “Defendant’s theory of the creation of individual, vested rights is based neither onspecific treaty provisions nor on the language of the relevant. . . statutes. It appears to be basedon the suggestion that somehow the process of distribution creates individual rights . . . .Defendant's theory of spontaneous creation of individual rights is without legal foundation.” Chippewa Cree II, 73 Fed. Cl. at 162. “The 1964 Award and the 1980 Award to the PembinaBand were held in undivided trust fund accounts up to the time of distribution, either toindividual Pembina descendant or to the recognized tribes.” Id. “Plaintiffs’ claims involveallegations of mismanagement during the time the 1964 Award and the 1980 Award were held intrust by the government. Plaintiffs are not seeking to recover for mismanagement of funds afterthey were deposited into a given recipient’s Individual Indian Money (IIM) account.” Id. Accordingly, she denied Defendant’s motion for reconsideration, and the identifiable group claimwas permitted to proceed.

With respect to the effect of plans of distribution upon breach of fiduciary duty claimsadvanced by identifiable groups of American Indians, the similarities between the identifiablegroup claim advanced by the Tribal Plaintiffs in the instant case and the identifiable group claimin Chippewa Cree are apparent. If anything, the instant case is a more straightforward one. Likethe Pembina beneficiaries, the Western Shoshone Identifiable Group is an “identifiable group” ofAmerican Indians which may bring claims in this Court under the Indian Tucker Act. The TribalPlaintiffs which assert that they are representing the interests of the Western ShoshoneIdentifiable Group are in fact members of the Western Shoshone Identifiable Group, just as thetribal plaintiffs which brought the initial complaint in Chippewa Cree were subgroups of the“identifiable group” in that case. The pertinent language of the distribution acts in both cases10


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the ICC award.

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indicate that the identifiable group have an interest in the tribal trust funds. In both cases, thedistribution acts identify the judgment funds owed to the identifiable group, namely “a judgmentto the Pembina Band of Chippewa Indians in Indian Claims Commission dockets numbered 18-A, 113, and 191, together with the interest thereon “ and “the funds appropriated in satisfactionof the judgment award granted to the Western Shoshone Indians in Docket Number 326-K beforethe Indian Claims Commission; and . . . all interest earned on those funds.” The distribution actsin both cases direct the manner in which the funds are to be distributed. The 2004 DistributionAct, like the distribution acts in Chippewa Cree, does not indicate any intent by Congress todivest the identifiable groups of American Indians of any ownership interest in the judgmentfunds being distributed. The inevitable conclusion one draws from the comparison is that the2004 Distribution Act has no effect whatsoever on the beneficial interests of the Tribal Plaintiffsin the Western Shoshone tribal trust funds held by the Government.

Nevertheless, Defendant argues that Lebeau, which was decided after Chippewa Cree II,stands for the proposition that Congressional acts distributing the proceeds of ICC awards havethe effect of specifying the beneficiaries. As explained above, Defendant argues that:

when Congress specifies a beneficiary of a trust fund, the partywho is not the beneficiary no longer has a trust res for which hehas a beneficial interest, and the trustee’s obligations no longerflow to him. And where as here Congress species [sic] that alltrust res is to be distributed to individuals, Congress’ actionnegates a fair inference of a money damage remedy premised on aprior unvested beneficial interest.

Def.’s Mot. To Recons. at 9. Because the Distribution Act “negates a fair inference of a moneydamages remedy,” to the Tribes, so Defendant argues, the tribes lack any money-mandating basisfor jurisdiction under Navajo II, 129 S.Ct. at 1558.

Defendant did not bring its motion to dismiss the Tribal Plaintiffs under RCFC 12(b)(1)for a lack of subject matter jurisdiction. Accordingly, the Court did not make any ruling onwhether the Court had jurisdiction over the Tribal Plaintiffs’ claims. Because Defendant nowargues in its motion for reconsideration that Lebeau defeats any claim brought by TribalPlaintiffs on the ground that the Government has no money-mandating duty of trust to the Tribesover which this Court would have jurisdiction, the Court will take a second look at Lebeau inthat light.

Lebeau is discussed extensively and distinguished from the present case in this Court’sOctober 31, 2008 Opinion. Once again, the Court finds that Lebeau is inapposite to the instantcase. Unlike in Lebeau, where the Lebeau plaintiffs argued, and the Government conceded, that


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a distribution act in that case created a trust relationship between a class of individual linealdescendants of the Sisseton-Wahpeton Sioux Tribe and the United States, with the Governmentas trustee, Lebeau, 474 F.3d at 1341-1342, the trust relationship in the instant case between theWestern Shoshone Identifiable Group and the United States was not created by any distributionact, but instead by the deposit of the Western Shoshone judgment funds into trust accounts of theUnited States for the benefit of the Western Shoshone tribes. Dann, 470 U.S. at 49-50. Moreover, in the instant case, the Tribal Plaintiffs, asserting that they are representatives of theWestern Shoshone Identifiable Group, are advancing claims against the Government of a breachof fiduciary duty towards an “identifiable group of American Indians” under the Indian TuckerAct. However, unlike the instant case, the Lebeau plaintiffs were not advancing breach offiduciary duty claims as, or on behalf of, an “identifiable group” under the Indian Tucker Act. Rather, they were advancing breach of fiduciary duty claims as a class of individuals under theLittle Tucker Act, 28 U.S.C. § 1346(a)(2). The Little Tucker Act does not grant jurisdiction forthis Court to hear claims of “identifiable groups” as such.

Accordingly, insofar as the Tribal Plaintiffs are members of, and assert that they arerepresentatives of, the Western Shoshone Identifiable Group and are advancing its claims underthe Indian Tucker Act, the Court finds that Lebeau provides no basis for Defendant’s argumentthat the Tribal Plaintiffs do not have a money-mandating basis for jurisdiction in this Court orotherwise lack standing to bring this action on behalf of the Western Shoshone IdentifiableGroup.

V. Conclusion

Defendant’s motion for reconsideration is hereby DENIED.

s/ Edward J. Damich EDWARD J. DAMICHChief Judge


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usca case #11-5049 document #1310322 filed: 05/27/2011 … · 2011. 5. 31. · case no....

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