Chemehuevi Indian Tribe v. United States, No. 16-492L

CourtCourt of Federal Claims
Writing for the CourtSOLOMSON, Judge.
PartiesCHEMEHUEVI INDIAN TRIBE, Plaintiff, v. THE UNITED STATES, Defendant.
Decision Date29 September 2020
Docket NumberNo. 16-492L

CHEMEHUEVI INDIAN TRIBE, Plaintiff,
v.
THE UNITED STATES, Defendant.

No. 16-492L

United States Court of Federal Claims

September 29, 2020


CORRECTED

RCFC 12(b)(1); RCFC 12(b)(6); Tucker Act jurisdiction; Indian Tucker Act; statute of limitations; 28 U.S.C. § 2501; claim accrual; tolling; meaningful accounting; Indian Trust Accounting Statute; American Indian Trust Fund Management Reform Act; usufructuary water rights.

Roger J. Marzulla, Marzulla Law, LLC, Washington, D.C., for Plaintiff. With him on the briefs was Nancie G. Marzulla, Marzulla Law, LLC, Washington, D.C. Of counsel was Mario Gonzalez, Gonzalez Law Office, Rapid City, SD.

Davene D. Walker, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C., for Defendant. With her on the briefs were Prerak Shah, Deputy Assistant Attorney General, United States Department of Justice, Environment and Natural Resources Division, and Peter Dykema, United States Department of Justice, Environment and Natural Resources Division. Of counsel were Dondrae Maiden and Karen Boyd, Office of the Solicitor, United States Department of the Interior, Washington, D.C., and Thomas Kearns, Office of the Chief Counsel, United States Department of the Treasury, Washington, D.C.

OPINION AND ORDER

SOLOMSON, Judge.

Around the time of the establishment of this Court's predecessor tribunal — the United States Court of Claims — Albert Bierstadt became a renowned painter of our country's storied westward expansion. Depicting sweeping landscapes on immense canvases, Bierstadt "offered a war-torn nation a golden image of their own Promised Land."1 The paintings are visually arresting, but have been "criticized [as] overly

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romanticized."2 Bierstadt's paintings thus are a metaphor for the expansion of our Great Nation itself: its rise was a marvel, but the idealized version of that history, as we now recognize, does not present the full picture. Indeed, a heavy cost was imposed — often unjustly — on the Native American Indian tribes that inhabited the continent long before the formation of the United States.

Over the course of the next century and continuing into this one, Congress sought — as our country always does — to remedy past wrongs,3 a process in which our Court has played no small part, dating back to the Indian Claims Commission Act,4 and thereafter pursuant to the Indian Tucker Act, 28 U.S.C. § 1505. The latter statute serves as the basis for this Court's jurisdiction over "any claim against the United States accruing after August 13, 1946, in favor of any [American Indian] tribe . . . whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group." Id.

In exercising such jurisdiction, however, Congress has empowered us to adjudicate monetary claims — and enter judgment against the United States — only where consistent with the laws it has duly enacted, binding precedent, this Court's Rules, and with the recent pronouncement of the United States Supreme Court firmly in mind: "'[C]ourts are essentially passive instruments of government'" that "'do not, or should not, sally forth each day looking for wrongs to right.'" United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in denial of reh'g en banc)).

Accordingly, but with abundant sympathy for the Plaintiff — the Chemehuevi Indian Tribe (the "Chemehuevi" or the "Tribe") — this Court is compelled to grant the government's motion to dismiss the Tribe's Second Amended Complaint (the "Complaint"). At bottom, the Complaint is long on history and legal conclusions but almost entirely devoid of operative facts. And although the history is often troubling, to say the least, the Tribe's claims are barred by the statute of limitations, erroneous as a matter of law, so equivocal as to fail to state a claim, or plainly outside of this Court's jurisdiction. Indeed, even after more than two years of exhaustive jurisdictional discovery, the Tribe's Complaint is a jumbled puzzle that once properly arranged and

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viewed even in the light most favorable to the Tribe, reveals that it has backed itself into a corner from which it cannot proceed further.

I. Background

A. Factual Background5

Prior to the westward migration of American settlers, the Chemehuevi "used and occupied the Mojave Desert's mountains and canyons and the Colorado River shoreline." ECF No. 45 [hereinafter "Compl."] ¶ 7. By the mid-nineteenth century, the Chemehuevi "were living with the Mojave Indians near the present-day Fort Mojave Indian Reservation." Id. ¶ 8. In 1865, the Chemehuevi and the Mojave Indians moved "to the newly established Colorado River Indian Reservation in Arizona." Id. In 1875, however, many Chemehuevi "moved back to the Chemehuevi Valley." Id. ¶ 10. The Chemehuevi subsequently requested that the Federal Government set aside land for the Tribe in the Chemehuevi Valley. Id.

On February 2, 1907, the Secretary of the Interior "withdrew certain lands for the Chemehuevi on the California side of the Colorado River with the Colorado River as the eastern boundary." Compl. ¶ 11. The Secretary's order thus "established the 36,000-acre Chemehuevi Indian Reservation." Id.

On February 10, 1933, the Department of the Interior's Bureau of Reclamation entered into a cooperative agreement with the Metropolitan Water District ("MWD") of Southern California to construct and operate a dam on the Colorado River. Compl. ¶ 14. On August 25, 1934, pursuant to the terms of the agreement, MWD advanced

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funds to the Bureau of Reclamation, which then entered into a contract with a company to construct the Parker Dam on the Colorado River. Id. ¶ 15.

Approximately five years into construction of the Parker Dam, on December 15, 1939, the Department of the Interior's Solicitor concluded that the Tribe was entitled to compensation for damage to certain tribal lands that the Parker Dam would eventually flood. Compl. ¶ 21. In the Act of July 8, 1940, Congress authorized the taking of the Tribe's land "in aid of construction of the Parker Dam Project" and provided that "[t]he Secretary shall determine the amount of money to be paid to the [Tribe] as just and equitable compensation." Id. ¶ 23. Further, Congress noted that "[s]uch amount of money shall be paid to the Secretary by the [MWD], in accordance with the terms of the contract made and entered into on February 10, 1933 between the Interior, and the [MWD]" and that the Secretary then shall deposit such funds "in the Treasury of the United States" for the benefit of the Tribe. Id. ¶ 23.

On October 9, 1940, the Acting Secretary of the Department of the Interior "approved payment to the Chemehuevi[] of $108,104.95" as just compensation for the land taken as a result of the Parker Dam Project. Compl. ¶ 26. Subsequently, MWD paid the government $108,104.95, and the government placed the funds in an account in the Treasury of the United States. Id. ¶ 30. The Tribe alleges that the government deposited the funds in account number "14X7344" and that the government subsequently breached its fiduciary duties to the Tribe with respect to those funds. Id. ¶¶ 33, 73(a)-(q).6

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On August 11, 1951, the Tribe filed a petition with the Indian Claims Commission ("ICC"), which the ICC designated as Docket No. 351, concerning a separate taking, unrelated to the Parker Dam Project. Compl. ¶ 40. On January 11, 1951, the ICC separated Docket No. 351 into two claims: (1) "a claim for a taking of Chemehuevi aboriginal title land in the present states of California, Arizona and Nevada" and (2) "a claim for the accounting and other relief." Id. ¶ 41.

On July 6, 1964, the Tribe's attorneys in the ICC matters submitted a settlement offer to the government. Compl. ¶ 45. On December 17, 1964, the parties entered into a "Final Stipulation For Entry Of Final Judgment," in which "Dockets 351 and 351-A were settled, after deductions, credits and offsets, for a net judgment of $996,834.81." Id. ¶ 47. By the Act of June 30, 1965, Congress appropriated the requisite funds to pay the judgment to the Tribe, and, by the Act of September 25, 1970, Congress "authorized for distribution [the ICC judgment funds] in per capita payments" to Tribe members. Id. ¶ 48. The Tribe is unsure whether the government distributed all of the funds in per capita payments to the Tribe's members, but the Tribe now alleges that it is entitled to claim any undistributed payments if such payments exist. Id. ¶ 50.

On March 9, 1964, the United States Supreme Court issued a decree in Arizona v. California, 376 U.S. 340 (1964) ("1964 Arizona Decree"). Compl. ¶ 103. The 1964 Arizona Decree explained that the Tribe had certain water rights in the Colorado River. Id. In particular, the 1964 Arizona Decree specified that the Tribe was entitled to "annual quantities not to exceed (i) 11,340 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 1,900 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of February 2, 1907." Id. The Tribe alleges that the Chemehuevi have used "only a small portion of the Tribe's annual allocation of water from the Colorado River" since the Supreme Court issued the 1964 Arizona Decree and that the government "has made that water available to other junior users, such as the MWD, without any compensation to the Tribe" and in breach of the fiduciary duties the government owes the Tribe. Id. ¶¶ 107-08.

In 1970, the Tribe adopted a federally recognized constitution and "was reinstated under the Indian Reorganization Act of 1934." Compl. ¶¶ 30, 85.

On November 1, 1974,...

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