Felter v. Kempthorne, 06-5092.

• Decision Date: 19 January 2007
• Docket Number: No. 06-5092.,06-5092.
• Citation: 473 F.3d 1255
• Parties: Oranna Bumgarner FELTER, et al., Appellants v. Dirk KEMPTHORNE, Secretary of the Interior, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

473 F.3d 1255

Oranna Bumgarner FELTER, et al., Appellants v. Dirk KEMPTHORNE, Secretary of the Interior, et al., Appellees.

No. 06-5092.

United States Court of Appeals, District of Columbia Circuit.

Argued December 11, 2006.

Decided January 19, 2007.

Appeal from the United States District Court for the District of Columbia (No. 02cv02156).

Dennis G. Chappabitty argued the cause and filed the briefs for appellants.

John E. Arbab, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was David C. Shilton, Attorney.

Before: TATEL and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge.

In 2002, appellants, former members of the Ute Indian Tribe and their descendants, filed a multi-count complaint alleging that in the 1950s and 1960s the federal government improperly terminated their status as federally recognized Indians and, in the process of partitioning tribal assets prior to termination, breached its fiduciary duty to them. The district court dismissed the complaint, finding that plaintiffs' claims were barred by the six-year statute of limitations for non-tort actions against the United States. Although we agree with the district court's reasoning, we nonetheless remand the case for consideration of whether plaintiffs' claims have been saved by recently enacted legislation providing that the statute of limitations "shall not commence to run" on Indian claims of trust fund mismanagement until the United States has provided an accounting.

I.

Because the district court dismissed plaintiffs' claims under Federal Rule of Civil Procedure 12(b), "we assume that the facts alleged in plaintiffs' complaint are true." Wagener v. SBC Pension Benefit Plan—Non Bargained Program, 407 F.3d 395, 397 (D.C.Cir.2005) (regarding motion to dismiss for failure to state a claim); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005) (regarding motion to dismiss for lack of subject matter jurisdiction). Viewed through this lens, the complaint relates the following:

In 1861, President Abraham Lincoln declared the Uinta Valley in Eastern Utah to be an Indian reservation, later named the Uinta and Ouray Reservation. Several years later, the Uinta Band, the aboriginal occupants of substantial portions of present-day Utah, including the Uinta Valley, was forcibly relocated to the reservation. Then, in 1881, the United States government removed the White River Band of Utes, who had historically resided in western Colorado, to the same reservation. Around the turn of the century, the government allotted portions of the reservation to the Uncompaghre Band, who had also historically resided in western Colorado. Recognizing the "exclusive property" interest of the Uinta Band to the Uinta and Ouray Reservation, the federal government provided compensation to the Uinta Band for the portions of their reservation given to the White River and Uncompaghre Bands. Am. Compl. ¶ 31.

In 1937, the "Ute Indian Tribe," repeatedly referred to in the complaint as "a modern fiction," was created pursuant to the Indian Reorganization Act, 25 U.S.C. § 461 et seq. See Am. Compl. ¶ 33. This new "tribe" consisted of the three bands— Uinta, White River, and Uncompaghre— now living on the Uinta and Ouray Reservation. Under a newly adopted tribal constitution, a "Tribal Business Committee" acted as the governing body of the tribe, with each band having equal representation on the Committee. Id. ¶¶ 34-36. Despite the consolidation of the bands, each band retained all property rights held prior to the formation of the Ute Indian Tribe. Moreover, the Tribal Business Committee was authorized to take action regarding a band's preexisting property only with that band's consent.

In 1950, the Confederated Bands of Colorado Utes, of whom the Uncompaghre and White River Bands—but not the Uinta Band—were members, obtained a thirty-two million dollar Indian Claims Commission judgment against the United States for the seizure of their western Colorado lands. The Ute Indian Tribe then adopted the "Share and Share Alike" agreement, under which the Uinta Band, in exchange for a share of the judgment, would agree to relinquish its separate claim against the United States for compensation for seized land. As characterized by Congress in an act related to payment of the judgment, the Share and Share Alike agreement also stated that "land within the Uintah and Ouray Reservation and income issuing therefrom . . . shall become the tribal property of all the Indians of the Ute Indian Tribe . . . without regard to band derivation." 25 U.S.C. § 672. According to the complaint, however, the Bureau of Indian Affairs knew that the Share and Share Alike agreement was invalid because the members of the Uinta Band had never approved it.

Next, the complaint alleges that in 1954 defendants "coerced, threatened, fooled and otherwise forced" the three bands to seek "termination" of their status as federally recognized Indians in order to secure the dispersal of the thirty-two million dollar judgment. Am. Compl. ¶ 43. A federal policy implemented during the 1950s and early 1960s, "termination" sought to assimilate Indians by ending their special relationship with the United States, discontinuing federal programs for "terminated" Indians, and subjecting them to state law and taxation. See H.R. Con. Res. 108, 83rd Cong. (1953) (declaring termination policy); see also Charles F. Wilkinson & Eric R. Biggs, The Evolution of the Termination Policy, 5 AM. INDIAN L. REV. 139, 151-54 (1977) (describing common elements in termination plans). In 1970, however, President Nixon called on Congress to "renounce" and "repudiate" termination, referring to this chapter of federal Indian policy as "morally and legally unacceptable." See MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING RECOMMENDATIONS FOR INDIAN POLICY, H.R. DOC. NO. 91-363, at 3 (1970).

In March 1954, under pressure from the Department of the Interior, the Ute Indian Tribe voted to "terminate" from the tribe what it referred to as its "mixed-blood" members, and to divide the assets of the tribe between the "mixed-blood" and "full-blood" Utes. Am. Compl. ¶¶ 46-47. As later defined by statute, "full-blood" Utes are "member[s] of the tribe who possess[] one-half degree of Ute Indian blood and a total of Indian blood in excess of one-half." 25 U.S.C. § 677a(b). "Mixed-blood" Utes—members of the tribe who do not meet these criteria, id. § 677a(c)—were predominantly members of the Uinta Band. The complaint alleges that the tribe's vote suffered from significant procedural irregularities, including that it was never ratified by the Uinta Band.

Nonetheless, in response to the tribe's vote, Congress passed the Ute Partition and Termination Act (UPA), 25 U.S.C. § 677 et seq., which provided for the "partition and distribution of the assets of the Ute Indian Tribe . . . between the mixed-blood and full-blood members thereof; [and] for the termination of Federal supervision over the trust, and restricted property, of the mixed-blood members of said tribe . . . ." Id. § 677. The UPA directed the tribe "to prepare and submit to the Secretary a proposed roll of the full-blood members of the tribe, and a proposed roll of the mixed-blood members . . . . [but i]f the tribe fails to submit such proposed rolls within the time specified in this [Act], the Secretary shall prepare such proposed rolls for the tribe." Id. . § 677g. Final rolls published on April 5, 1956, identified 490 members of the Ute Indian Tribe as "mixed-bloods." See Mixed-Blood Members and Full-Blood Members of Ute Indian Tribe of Uintah and Ouray Reservation, Utah, 21 Fed.Reg. 2208 (Apr. 5, 1956). After publication of these rolls, the statute required the Tribal Business Committee, on behalf of the "full-blood" Utes, and an "authorized representative[]" of the "mixed-blood" members to divide "the assets of the tribe that are then susceptible to equitable and practicable distribution." 25 U.S.C. § 677i. Upon completion of the partition process, the statute instructs the Secretary to "immediately transfer to [each "mixed-blood" Ute] unrestricted control of all other property held in trust for such mixed-blood member by the United States," and terminate "Federal supervision of such member and his property." Id. § 677o. On August 24, 1961, the Secretary published a notice terminating the 490 "mixed-blood" Utes' status as federally recognized Indians. See Termination of Federal Supervision over the Affairs of the Individual Mixed-Blood Members, 26 Fed.Reg. 8042 (Aug. 26, 1961).

Appellants Oranna Bumgarner Felter and her fellow plaintiffs are either among the 490 members whose status as federally recognized Indians was terminated in 1961 or are descended from those individuals. In a complaint initially filed on November 4, 2002, and later amended, Felter alleges that the Interior Department improperly implemented the UPA, and thereby unlawfully deprived her of her status as a federally recognized Indian, her land rights, and her share of the thirty-two million dollar judgment. Claiming that the U.S. government never properly terminated its trust relationship with her, Felter asserts that "defendants were and are obligated to safeguard the trust status of the lands and Indian rights and status of the individual `mixed-blood' members [of the] Uinta Band." Am. Compl. ¶ 103 (emphasis added). Thus, Felter alleges that Interior breached its fiduciary duty during the partition process, as well as that its failure to rectify that violation constitutes a continuing breach of its fiduciary duty. In the complaint's eighth count, Felter further alleges that Interior "failed to account for" and "grossly mismanaged" her share of the thirty-two million dollar judgment. Id. ¶ 110.

The district court granted the government's motion to dismiss...