Flute et al v. United States of America, The et al
ORDER. ORDERED that Defendants Motion to Dismiss [Docket No. 17] filed by defendants the United States of America, the Department of the Interior, and the Bureau of Indian Affairs is GRANTED in part. This case is dismissed without prejudice for lack of subject matter jurisdiction. ORDERED that this case is CLOSED by Judge Philip A. Brimmer on 09/04/14.(jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-01836-PAB-CBS
ROBERT SIMPSON, JR.,
THOMPSON FLUTE, JR., and
DOROTHY WOOD, on behalf of themselves and all others similarly situated,
THE UNITED STATES OF AMERICA,
THE DEPARTMENT OF THE INTERIOR, and
THE BUREAU OF INDIAN AFFAIRS,
This matter is before the Court on Defendants’ Motion to Dismiss [Docket No.
17] filed by defendants the United States of America (“United States”), the Department
of the Interior (“DOI”), and the Bureau of Indian Affairs (“BIA”). This case arises from
the United States Army’s massacre of certain bands of the Cheyenne and Arapaho
Indian Tribes along the banks of Colorado’s Big Sandy Creek on November 29, 1864.
The defendants acknowledge in their motion that “[i]n all of American history there is no
episode more contemptible nor more abhorrent than the depredations of the United
States cavalry on the banks of Sand Creek in Colorado Territory during the early
morning hours of November 29, 1864. The ‘Sand Creek Massacre’ was a tragedy and
a disgrace.” Docket No. 17-1 at 8. Plaintiffs are descendants of the victims of the Sand
Creek Massacre. Plaintiffs seek an accounting of the reparation payments promised to
their ancestors in the 1865 Treaty of Little Arkansas and an award of funds found still
The complaint alleges as follows. Plaintiffs Homer Flute, Robert Simpson, Jr.,
Thompson Flute, Jr., and Dorothy Wood descend from bands of the Cheyenne and
Arapaho Indians who were victims of the Sand Creek Massacre. Docket No. 1 at 2,
¶ 2. Plaintiffs bring this case on behalf of themselves and all descendants of the
massacre’s victims. Id. at 14, ¶ 70. Plaintiffs reside in Oklahoma and are each
members of a federally recognized Indian tribe. Id. at 2, ¶ 2.
The BIA was created in 1849 within the Department of the Army and
subsequently moved to the DOI. Id. at 2, ¶ 4. In 1849, the DOI assumed responsibility
for Indian affairs on behalf of the federal government. Id. at 2, ¶ 5. Plaintiffs allege that
the DOI has, since 1866, controlled and held in trust reparation payments owed to
B. The Sand Creek Massacre
On February 18, 1861, the United States entered into the Treaty of Ft. Wise with
the Arapaho and Cheyenne Tribes of the Upper Arkansas River (the “Tribes”), ceding
the Tribes a tract of land at the mouth of the Sandy Fork of the Arkansas River and
promising to protect the tribes “in the quiet and peaceful possession of the said tract of
land so reserved for their future home, and also their persons and property thereon,
during good behavior on their part.” Treaty between the United States of America and
the Arapaho and Cheyenne Indians of the Upper Arkansas River, arts. 1 & 4, Feb. 18,
1861, 12 Stat. 1163.
In June 1864, Territorial Governor and Superintendent of Indian Affairs John
Evans conspired with Colonel John Chivington of the U.S. Army to take action against
the peaceful Tribes. Docket No. 1 at 4, ¶ 9. At a series of meetings in September and
October 1864, tribal leaders Bull Bear, One-Eye, Left Hand, Little Raven, White
Antelope, and Black Kettle expressed their peaceful intentions. Major Edward
Wynkoop, Colonel Chivington, and Governor Evans told them that, to prove their good
intentions, they should relocate their villages to Fort Lyon in the Colorado Territory. Id.
at 4-5, ¶¶ 11-16. In late October 1864, the Tribes relocated to Fort Lyon. Id. at 5, ¶ 17.
The Cheyenne, led by Black Kettle, arrived at Fort Lyon, id. at ¶ 21, and were
told they could set up camp at Sand Creek and hunt bison. Id. at ¶ 22. Black Kettle
and his band of Cheyenne settled at the Smoky Hill Crossing of Sand Creek. Id. at
On November 14, 1864, in preparation for the massacre, Colonel Chivington
ordered the First and Third Colorado Cavalries to march from Denver to Fort Lyon. Id.
at ¶ 24. At noon on November 28, 1864, Colonel Chivington and his troops arrived at
Fort Lyon. Id. at ¶ 30. Between 675 and 700 soldiers then marched for Sand Creek,
id. at 8, ¶ 36, arriving at the camp at sunrise on November 29, 1864. Id. at ¶ 37. Black
Kettle, the chief of the camp, flew an American flag with a white flag beneath it,
signaling that the camp was under a truce. Id. Nevertheless, the soldiers began firing
on the Indians. Id. at 8-9. Chief White Antelope ran towards the troops to convince
them to stop shooting. Id. at 9, ¶ 40. He was shot and killed. Indians who tried to flee
were chased down and shot. The massacre lasted until 3:00 p.m. Id. at ¶ 43. The
number of casualties is uncertain; eyewitnesses reported that the majority were women
and children. Id. at ¶ 44.
Once the federal government learned of the massacre, Major Wynkoop was
ordered to retake command of Fort Lyon and to perform an investigation. Id. at 11,
¶ 54. He collected soldiers’ eyewitness accounts. Id. On January 4, 1865, Colonel
Chivington resigned his commission. He was mustered out of service on January 8,
1865 and, the following month, a military commission in Colorado launched an
investigation into his conduct. Id. at ¶¶ 55, 58. On January 10, 1865, the United States
House of Representatives ordered the Committee on the Conduct of War to inquire into
and write a report on the facts of the massacre. Id. at ¶ 56.
In response to the massacre, the federal government signed the Treaty of Little
Arkansas on October 14, 1865. Id. at 11-12, ¶ 60. The Treaty provides in pertinent
The United States being desirous to express its condemnation of, and, as far
as may be, repudiate the gross and wanton out-rages perpetrated against
certain bands of Cheyenne and Arapahoe Indians, on the twenty-ninth day
of November, A.D. 1864, at Sand Creek, in Colorado Territory, . . . will grant
three hundred and twenty acres of land by patent to each of the followingnamed chiefs of said bands, viz: Moke-ta-ve-to, or Black Kettle; Oh-tah-hane-so-weel, or Seven Bulls; Alik-ke-home-ma, or Little Robe; Moke-tah-vove-hoe, or Black White Man; and will in like manner grant to each other
person of said bands made a widow, or who lost a parent upon that
occasion, one hundred and sixty acres of land, the names of such persons
to be ascertained under the direction of the Secretary of the Interior . . . . The
United States will also pay in United States securities, animals, goods,
provisions, or such other useful articles as may, in the discretion of the
Secretary of the Interior, be deemed best adapted to the respective wants
and conditions of the persons named in the schedule hereto annexed, . . .
the sums set opposite their names, respectively, as a compensation for
property belonging to them, and then and there destroyed or taken from
them by the United States troops aforesaid.
Id. at 12 (Treaty between the United States of America and the Cheyenne and
Arapahoe Tribes of Indians, art. 6, Oct. 14, 1865, 14 Stat. 703, 889-90).
Six months later, the United States signed the Medicine Lodge Treaty. Id. at 12,
¶ 61. The Medicine Lodge Treaty provides in pertinent part:
In lieu of all sums of money or other annuities provided to be paid to the
Indians herein named, under the treaty of October fourteenth, eighteen
hundred and sixty-five, made at the mouth of the Little Arkansas, and under
all treaties made previous thereto, the United States agrees to deliver at the
agency house on the reservation herein named, on the fifteenth day of
October, of each year, for thirty years, the following articles, to wit:–
For each male person over fourteen years of age, a suit of good, substantial
woolen clothing, consisting of coat, pantaloons, flannel shirt, hat, and a pair
of home-made socks.
For each female over twelve years of age, a flannel skirt, or the goods
necessary to make it, a pair of woolen hose, twelve yards of calico and
twelve yards of cotton domestics.
For the boys and girls under the ages named, such flannel and cotton goods
as may be needed to make each a suit as aforesaid, together with a pair of
woolen hose for each.
And, in addition to the clothing herein named, the sum of twenty thousand
dollars shall be annually appropriated for a period of thirty years, to be used
by the Secretary of the Interior in the purchase of such articles as, from time
to time, the condition and necessities of the Indians may indicate to be
proper. And if at any time, within the thirty years, it shall appear that the
amount of money needed for clothing, under this article, can be appropriated
to better uses for the tribe herein named, Congress may, by law, change the
appropriation to other purposes; but, in no event, shall the amount of this
appropriation be withdrawn or discontinued for the period named.
Treaty between the United States of America and the Cheyenne and Arapahoe Tribes
of Indians, art. 10, Oct. 28, 1867, 15 Stat. 593. Plaintiffs contend that the Medicine
Lodge Treaty was never properly concluded. Docket No. 1 at 13, ¶ 62.
On July 26, 1866, Congress appropriated money to pay the reparations. Id. at
¶ 64. The 1866 Indian Appropriations Act provides as follows:
Arapaho and Cheyenne Indians of the Upper Arkansas River. For
reimbursing members of the bands of Arapaho and Cheyenne Indians who
suffered at Sand Creek, November twenty-ninth, eighteen hundred and
sixty-four, to be paid in United States securities, animals, goods, provisions,
or such other useful articles as the Secretary of the Interior may direct, as
per sixth article treaty of October fourteenth, eighteen hundred and sixty-five,
thirty-nine thousand and fifty dollars.
14 Stat. 255, 267 (July 26, 1866).
The money appropriated was insufficient to compensate the individuals
described in the Treaty of Little Arkansas. Docket No. 1 at 13, ¶ 64. Instead of
distributing the appropriated money to the individual survivors as required under the
Treaty of Little Arkansas, the DOI gave money directly to the Tribes. Id. at 13, ¶ 65.
The money that the government did not distribute to the Tribes was returned to surplus
on August 30, 1872. Id. at ¶ 66. Some, but not all, of the land promised in the Treaty
of Little Arkansas may have been transferred to individual Tribe members in the State
of Colorado. Id. at ¶ 69. The DOI has not made any effort to identify the individuals still
owed reparations. Id. at 14, ¶ 67. The government has never provided an accounting
of the property distributed, withheld, and still owing under the Treaty of Little Arkansas.
Based on these factual allegations, plaintiffs allege that defendants (1) are in
breach of their federal trust responsibilities (first claim); (2) are in breach of their duty to
provide plaintiffs an accounting (second claim); and (3) have unlawfully withheld or
unreasonably delayed agency action (third claim). Docket No. 1 at 17-20, ¶¶ 78-105.
Plaintiffs seek (1) an accounting of the funds held, managed, or controlled for the
benefit of plaintiffs pursuant to the Treaty of Little Arkansas; (2) an order requiring the
DOI to identify the individuals to whom reparations are owed, in the event the
accounting indicates that reparations are still owing; (3) an order requiring defendants
to make plaintiffs’ trust funds whole, in the event the accounting indicates that
reparations are still owing; and (4) attorney’s fees and costs. Id. at 20-21, ¶¶ 106-10.
On September 16, 2013, defendants moved to dismiss the complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Docket No. 17. Plaintiffs
oppose the motion. Docket No. 26.
II. STANDARD OF REVIEW
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate if
the Court lacks subject matter jurisdiction over claims for relief asserted in the
complaint. Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he
moving party may (1) facially attack the complaint’s allegations as to the existence of
subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by
presenting evidence to challenge the factual basis upon which subject matter
jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074
(10th Cir. 2004) (quoting Maestas v. Lujan, 351 F .3d 1001, 1013 (10th Cir. 2003)).
When resolving a facial attack on the allegations of subject matter jurisdiction,
the Court “must accept the allegations in the complaint as true.” Holt v. United States,
46 F.3d 1000, 1002 (10th Cir. 1995). To the extent a defendant attacks the factual
basis for subject matter jurisdiction, the Court “may not presume the truthfulness of the
factual allegations in the complaint, but may consider evidence to resolve disputed
jurisdictional facts.” SK Finance SA v. La Plata Cnty., 126 F.3d 1272, 1275 (10th Cir.
1997). “Reference to evidence outside the pleadings does not convert the motion to
dismiss into a motion for summary judgment in such circumstances.” Id. Ultimately,
and in either case, plaintiff has “[t]he burden of establishing subject matter jurisdiction”
because it is “the party asserting jurisdiction.” Port City Props. v. Union Pac. R.R. Co.,
518 F.3d 1186, 1189 (10th Cir. 2008).
The Court’s function on a Rule 12(b)(6) motion for failure to state a claim upon
which relief can be granted is not to weigh potential evidence that the parties might
present at trial, but to assess whether the plaintiff’s complaint alone is sufficient to
plausibly state a claim. Fed. R. Civ. P. 12(b)(6); Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003) (citations omitted). In doing so, the Court “must accept all
the well-pleaded allegations of the complaint as true and must construe them in the
light most favorable to the plaintiff.” Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215
(10th Cir. 2007) (quotation marks and citation omitted).
The “plausibility” standard requires that relief must plausibly follow from the facts
alleged, not that the facts themselves be plausible. Bryson v. Gonzales, 534 F.3d
1282, 1286 (10th Cir. 2008). However, “where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged–but it has not shown–that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (internal quotation marks and alterations omitted).
Defendants argue that the Court lacks jurisdiction because the federal
government has not waived its immunity to suit with respect to this case. Docket No.
17-1 at 30-32. In response, plaintiffs contend that defendants have waived sovereign
immunity via (1) section 702 of the Administrative Procedures Act (“APA”) and (2) the
2009 DOI Appropriations Act. Docket No. 26 at 18-23.
“It is axiomatic that the United States may not be sued without its consent and
that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell
(“Mitchell II”), 463 U.S. 206, 212 (1983). “[S]overeign immunity protects the United
States against judgments that would require an expenditure from public funds, that
interfere with public administration or that would restrain the Government from acting, or
to compel it to act.” Hensel v. Office of the Chief Administrative Hearing Officer, 38
F.3d 505, 509 (10th Cir. 1994) (quotations and citations omitted). Sovereign immunity
is a jurisdictional bar to suit. Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471,
In order to determine whether either the APA or the 2009 Appropriations Act
waives defendants’ sovereign immunity, the Court must determine whether plaintiffs
have identified a source for defendants’ alleged trust responsibilities.
Plaintiffs rely on two sources for defendants’ trust responsibilities – the Treaty of
Little Arkansas and the 1866 Appropriations Act. See Docket No. 26 at 16-18, 21.
Plaintiffs describe their trust theory as follows: “Since the Treaty called for payment to
specifically identified individuals, and Congress subsequently appropriated the funds to
pay the individual decedents [sic] of the victims of the Sand Creek [Massacre] pursuant
to [the] Treaty of Little Arkansas, those funds were necessarily held ‘in trust’ until they
are ultimately distributed to the proper beneficiaries; an event which has never
occurred.” Id. at 18.
The federal courts have long recognized “the distinctive obligation of trust
incumbent upon the Government” in its dealings with Indians which imposes on the
federal government “moral obligations of the highest responsibility and trust.” Seminole
Nation v. United States, 316 U.S. 286, 296-97 (1942) (listing cases); see also Cobell v.
Norton, 240 F.3d 1081, 1086 (D.C. Cir. 2001) (the government’s trust responsibilities
“are grounded in the very nature of the government-Indian relationship”). On its own,
however, this general duty is not sufficient to support a cause of action for breach of
trust. United States v. Navajo Nation, 537 U.S. 488, 506 (2003) (“Navajo Nation I”); El
Paso Natural Gas Co. v. United States, 750 F.3d 863, 893 (D.C. Cir. 2014) (“neither the
general trust relationship between the federal government and Indian Tribes nor the
mere invocation of trust language in a statute . . . is sufficient to create a cause of
action for breach of trust”).
In United States v. Mitchell, 445 U.S. 535 (1980) (“Mitchell I”), and Mitchell II,
463 U.S. 206, the Court drew a distinction between statutes that create a “limited trust
relationship” or a “bare trust,” stripped of legally enforceable obligations, and statutes
that impose enforceable fiduciary duties. In Mitchell I, the Court held that language in
the General Allotment Act,1 25 U.S.C. §§ 331 et seq. (repealed by Pub. L. 106-462,
Title I, § 106(a)(1), Nov. 7, 2000, 114 Stat. 2007), directing the Secretary of the Interior
to “hold the land thus allotted, for the period of twenty-five years, in trust for the sole
use and benefit of the Indian to whom such allotment shall have been made” did not
create an enforceable trust because the statute as a whole indicated that the “Indian
allottee, and not a representative of the United States, [was] responsible for using the
land for agricultural or grazing purposes.” 445 U.S. at 541-43.
Mitchell II considered timber management statutes, 25 U.S.C. §§ 406-07, and
their implementing regulations, 25 C.F.R. §§ 163.10 et seq., which “establish the
‘comprehensive’ responsibilities of the Federal Government in managing the harvesting
of Indian timber.” 463 U.S. at 222 (quoting White Mountain Apache Tribe v. Bracker,
448 U.S. 136, 145 (1980)). In finding that this network of statutes created an
enforceable trust, the Court stressed both that the statutes invested the BIA with near
complete control “over the harvesting and management of tribal timber,” id. (“Virtually
every stage of the process is under federal control.”), and that the BIA was required to
“Under the General Allotment Act, beneficial title of the allotted lands vested in
the United States as trustee for individual Indians. The trust was to last for 25 years or
more, at which point a fee patent would issue to the individual Indian allottee. During
the trust period, individual accounts were to be set up for each Indian with a stake in the
allotted lands, and the lands would be managed for the benefit of the individual
allottees. Indians could not sell, lease, or otherwise burden their allotted lands without
government approval. Where tribes resisted allotment, it could be imposed. While the
Dawes Act may not have achieved assimilation, it did result in the widespread transfer
of land from Indians to white settlers.” Cobell v. Norton, 240 F.3d 1081, 1087 (D.C. Cir.
2001) (internal citation omitted).
manage the resources for the benefit of the tribes. Id. at 221-22 (“The regulatory
scheme was designed to assure that the Indians receive the benefit of whatever profit
[the forest] is capable of yielding.”) (internal citation and quotation marks omitted).
Although the timber management statutes and regulations do not “expressly” create a
trust or fiduciary relationship, the Court held that such a relationship “necessarily arises
when the Government assumes such elaborate control over forests and property
belonging to Indians.” Id. at 225. It further explained that “[a]ll of the necessary
elements of a common-law trust are present: a trustee (the United States), a beneficiary
(the Indian allottees), and a trust corpus (Indian timber, lands, and funds).” Id.
The Court drew on the principles articulated in Mitchell I and Mitchell II when
deciding Navajo Nation I, 537 U.S. 488, and United States v. White Mountain Apache
Tribe, 537 U.S. 465 (2003), another pair of cases whose differing outcomes frame a
unified approach. In Navajo Nation I, the Court held that the Indian Mineral Leasing
Act, 25 U.S.C. § 396a et seq., does not create a fiduciary relationship even though the
statute “requires Secretarial approval before coal mining leases negotiated between
Tribes and third parties become effective and authorizes the Secretary [of the Interior]
generally to promulgate regulations governing mining operations.” 537 U.S. at 506-07
(internal citations omitted). The Court found that the statute falls short because it does
not “‘give the Federal Government full responsibility to manage Indian resources . . . for
the benefit of the Indians.’” Id. at 507 (quoting Mitchell II, 463 U.S. at 224. The Court
found that, on the contrary, the statute “aims to enhance tribal self-determination by
giving Tribes, not the Government, the lead role in negotiating mining leases with third
parties.” Id. at 508.
In White Mountain Apache Tribe, decided the same day as Navajo Nation I, the
Court held that a 1960 statute providing the Secretary of the Interior limited authority to
use a piece of reservation land created a trust relationship. 537 U.S. 465. The statute
provided that the site of the Fort Apache Military Reservation would be “held by the
United States in trust for the White Mountain Apache Tribe, subject to the right of the
Secretary of the Interior to use any part of the land and improvements for administrative
or school purposes for as long as they are needed for the purpose.” Id. at 469. The
DOI exercised its right to use the land. Id. The Court found that, in addition to explicitly
using the term of art “trust,” the 1960 Act “proceeds to invest the United States with
discretionary authority to make direct use of portions of the trust corpus” and that “it is
undisputed that the Government has to this day availed itself of its option”: “[a]s to the
property subject to the Government’s actual use, then, the United States has not merely
exercised daily supervision but has enjoyed daily occupation, and so has obtained
control at least as plenary as its authority over the timber in Mitchell II.” Id. at 475; see
also id. at 480 (Ginsburg, J., concurring) (“The dispositive question, accordingly, is
whether the 1960 measure, in placing property in trust and simultaneously providing for
the Government-trustee’s use and occupancy, is fairly interpreted to mandate
compensation for the harm caused by maladministration of the property.”).
In El Paso Natural Gas Co., the Court of Appeals for the District of Columbia
offered a synthesis of these four cases, explaining that a “statute’s invocation of trust
terminology is not itself dispositive” and that courts must instead consider whether the
statute or regulation “establishes rights and duties that characterize a conventional
fiduciary relationship.” 750 F.3d at 895. Applying this principle, the court held that “an
express trust plus actual government control” does not create an enforceable trust
unless the source of the express trust “afford[s] the government the right to use the
[property] in question.”2 Id. at 896-97. The court further explained that it is “natural to
infer that Congress intended that a correlative duty to maintain trust property would
attach to an expressly provided right of use (if invoked).” Id. at 897
The statute at issue in El Paso Natural Gas Co. provides that “any lands
partitioned to the Navajo Tribe pursuant to [sections of this title] and the lands
described in the Act of June 14, 1934 . . . shall be held in trust by the United States
exclusively for the Navajo Tribe and as part of the Navajo Reservation.” 25 U.S.C.
§ 640d-9(a). The court found that this statute does not have a “hook” on which to peg a
The court in El Paso Natural Gas Co. recognized the possibility that, because
Mitchell I, Mitchell II, Navajo Nation I, and White Mountain concerned jurisdiction under
the Indian Tucker Act, they may not be applicable to jurisdictional issues under other
statutes, like the APA. 750 F.3d at 895. The court “nevertheless appl[ied] the lessons
articulated in the Mitchell cases. . . . for two reasons: because this been our approach
in past cases and, as important, because the Tribe has not marshaled an argument that
we should reconsider our approach.” Id. In addition, the court pointed out that the
decision in a subsequent case, United States v. Navajo Nation, 556 U.S. 287 (2009)
(“Navajo Nation II”), was reached “without regard to considerations unique to money
damages.” Id. at 898 (“If a plaintiff identifies such a [rights-creating or duty-imposing
statutory or regulatory] prescription, and if that prescription bears the hallmarks of a
‘conventional fiduciary relationship,’ then trust principles . . . could play a role in
‘inferring that the trust obligation [is] enforceable by damages’ . . . . But that must be the
second step of the analysis, not . . . the starting point.”) (quoting Navajo Nation II, 556
U.S. at 301) (emphasis in original) (internal citations omitted)). In this case, the parties
cite Mitchell I, Docket No. 17-1 at 30-31, and Mitchell II, Docket No. 26 at 17, and
neither party argues that these cases are inapposite because they concerned
jurisdiction under the Indian Tucker Act.
“correlative duty of management” and thus does not create an enforceable fiduciary
relationship, even though the government did in fact exercise control over portions of
the land described in the statute for a period of time. El Paso Natural Gas Co., 750
F.3d at 897 (“This is not enough, even if paired with allegations of governmental control
at the Mill, the Dump, and the Highway 160 Site, because nothing in the pleadings or
record suggest that the Government took control of the premises pursuant to § 640d9(a).”).
As noted above, plaintiffs contend that a trust relationship arose when the
government (1) pledged in the Treaty of Little Arkansas to transfer money, real
property, and personal property to the survivors of the Sand Creek massacre; (2)
appropriated money for this purpose; and (3) did not ultimately transfer the appropriated
funds as required by the Treaty. Docket No. 26 at 18. Plaintiffs assert that it “would be
difficult to imagine more clear language than was used in these laws”:
In Article VI of the Treaty, the United States agreed to pay reparations to the
surviving families of those “who suffered at Sand Creek.” 14 Stat. 703 at 889
to 890 (signed Oct. 14, 1865, and ratified by the United States Senate May
22, 1866). The Treaty then identified many of them by name. To guarantee
that the United States fulfilled that obligation, Congress appropriated
$39,050 “[f]or reimbursing members of the bands of Arapaho and Cheyenne
Indians who suffered at Sand Creek.” See 1866 Appropriations Act, 14 Stat.
at 276 (emphasis added).
Docket No. 34 at 7 (emphasis in original). Docket No. 34 at 7-9. However, the Treaty
of Little Arkansas and the 1866 Appropriations Act do not expressly refer to a trust,
compare Mitchell I, 445 U.S. at 541-42 (statute providing that the government must
“hold the land . . . in trust for the sole use and benefit” of Indian allottee created only a
bare trust), do not contain other rights-creating or duty-imposing language, and are not
part of a network of statutes disclosing an overall intention to create a legally
enforceable trust relationship. Compare Mitchell II, 463 U.S. at 223-24 (“In contrast to
the bare trust created by the General Allotment Act, the statutes and regulations now
before us clearly give the Federal Government full responsibility to manage Indian
resources and land for the benefit of the Indians. They thereby establish a fiduciary
relationship and define the contours of the United States’ fiduciary responsibilities.”).
Plaintiffs cite Reuben Quick Bear v. Leupp, 210 U.S. 50 (1908), and Navajo
Tribe of Indians v. United States, 624 F.2d 981 (Ct. Cl. 1980), for the proposition that
the reparations payments became the property of the individual descendants of the
massacre victims when they were appropriated and that the government created a trust
by taking control of these funds. Docket No. 34 at 7-9. This argument runs counter to
Navajo Nation II that the “Federal Government’s liability cannot be premised on control
alone.” 556 U.S. at 301.
Plaintiffs argue that this case is analogous to Mitchell II because there is “no
practical difference between an obligation to individuals to manage funds, disburse
funds, or operate funds” because “[e]ach of those actions is implied in the fiduciary
relationship.” Docket No. 34 at 8. First, plaintiffs’ argument assumes the existence of
the fiduciary relationship they are charged with establishing. Second, this argument is
unavailing in light of Navajo Nation I and El Paso Natural Gas Co., which distinguish
between the government’s statutory obligation to hold bare title to an asset and its right
to actively use the asset, with the concomitant obligation to manage it according to the
best interests of a third party beneficiary. See 537 U.S. at 506-07; 750 F.3d at 895.
The Treaty of Little Arkansas and the 1866 Appropriations Act did not accord the
government any right to use or control the reparations; rather, these laws directed the
government to make one-time payments or other discrete transfers of property to the
specified individuals. Since “nothing in the pleadings or record suggest that the
Government took control of the [payments] pursuant” to the Treaty of Little Arkansas or
the 1866 Appropriations Act, and since there is no express language or regulatory
framework otherwise imposing a fiduciary duty, plaintiffs’ allegations of “governmental
control” do not establish an enforceable trust. See El Paso Natural Gas Co., 750 F.3d
In the absence of an enforceable trust, 25 U.S.C. §§ 162a(d) and 4044 do not
impose a legally required duty necessary to establish a waiver of sovereign immunity
under the APA. See Norton, 542 U.S. at 63-64. Furthermore, plaintiffs’ claims do not
concern “losses to or mismanagement of trust funds” and thus do not fall within the
2009 DOI Appropriations Act. See Pub. L. No. 111-88, 123 Stat. at 2922. Finding that
the United States has not waived sovereign immunity for this suit, the Court concludes
that it lacks jurisdiction over plaintiffs’ claims and must dismiss them without prejudice.
See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“[W]here
the district court dismisses an action for lack of jurisdiction . . . the dismissal must be
Wherefore, it is
ORDERED that Defendants’ Motion to Dismiss [Docket No. 17] filed by
defendants the United States of America, the Department of the Interior, and the
Bureau of Indian Affairs is GRANTED in part. This case is dismissed without prejudice
for lack of subject matter jurisdiction. It is further
ORDERED that this case is CLOSED.
DATED September 4, 2014.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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