Felter v. Norton

• Decision Date: 27 January 2006
• Docket Number: No. CIV.A. 02-2156(RWR).,CIV.A. 02-2156(RWR).
• Citation: 412 F.Supp.2d 118
• Parties: Oranna Bumgarner FELTER, et al., Plaintiffs, v. Gale NORTON, et al., Defendants.
• Court: U.S. District Court — District of Columbia

412 F.Supp.2d 118

Oranna Bumgarner FELTER, et al., Plaintiffs, v. Gale NORTON, et al., Defendants.

No. CIV.A. 02-2156(RWR).

United States District Court, District of Columbia.

January 27, 2006.

COPYRIGHT MATERIAL OMITTED

Dennis G. Chappabitty, Sacremento, CA, for Plaintiffs.

R. Anthony Rogers, Alexandria, VA, Daniel G. Steele, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROBERTS, District Judge.

Asserting they are "mixed-blood" members of the Ute Band of Indians, plaintiffs filed this suit to address injuries suffered as a result of the defendants' alleged wrongful termination of plaintiffs' status as federally recognized Indians under the Ute Partition & Termination Act ("UPA"), 25 U.S.C. §§ 677-677aa (1982). Defendants filed a motion to dismiss plaintiffs' claims under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Because plaintiffs fail to allege any acts within the six-year statute of limitations, defendants' motion to dismiss will be granted.

BACKGROUND

In 1869, the Uinta Band of Indians in Utah was forced to relocate to the Uinta and Ouray Reservation site set aside for their use and occupation. In 1881, the White River Band of Indians from Colorado moved to the Reservation as a result of a removal agreement between the federal government and the White River Band of Indians. By 1902, the Uintas, the White River Band and the Uncompaghre Band of Indians from Colorado occupied the Reservation. (Am.Compl.¶ 29, 30.)

Pursuant to the Indian Reorganization Act (codified as amended at 25 U.S.C. § 461-79 (1934)), these three bands of Indians formed the "Ute Indian Tribe" which in turn created a Tribal Business Committee, composed of two members of each of the former bands of Indians. The Ute Tribe also adopted a constitution and bylaws which enacted the policy that no property rights shall be acquired or lost through the vote of only two of the former bands.

In 1950, the Ute Tribe obtained a $32,000,000 takings judgment against the federal government related to Colorado lands previously occupied by the White River and Uncompaghre Bands. This Indian Claims Commission ("ICC") judgment was to be divided among the Ute Tribe members. On March 31, 1954, the Ute Tribe held a General Council meeting where the council ratified the extraction of the members it called mixed-bloods, mostly former members of the Uinta Band, from the Ute Tribe. The vote also called for a formal separation of the assets of mixed-bloods and members called full-bloods.

On August 27, 1954, as a result of the March 1954 vote, Congress passed the UPA. Under the UPA, full-bloods were defined as Ute members whose ancestry was at least one-half Ute Indian and over one-half Indian. Mixed-bloods were defined as Ute members who did not have sufficient Ute or Indian ancestry to qualify as full-bloods. 25 U.S.C. § 677a. The UPA's definitions of mixed-bloods and full-bloods were based on the Ute General Council's definitions. (Am.Compl.¶ 47-48.) The UPA formally distributed the Reservation's assets between the mixed-bloods and the full bloods. The Act also terminated the mixed-bloods' rights to the $32,000,000 ICC judgment because, as a result of the UPA, the mixed-bloods were no longer considered members of the Ute Tribe. Additionally, the UPA codified the positions that the federal government would not supervise the affairs of the mixed-bloods and terminated the mixed-bloods' status as federally recognized Indians.

Pursuant to the UPA, on April 5, 1954, the Secretary of Interior published in the Federal Register a list of the 490 mixed-bloods whose status as members of the Ute Tribe was terminated. The Secretary of Interior subsequently published in the Federal Register the list of the 490 mixed-bloods and the corresponding federal policy of terminating supervision over the affairs of the mixed-bloods and their status as federally recognized Indians on August 27, 1961.

Plaintiffs seek a judgment declaring that the 1961 list of the 490 mixed-bloods unlawfully terminated their status as recognized Ute Indians and is void; resorting their rights retroactively to their Reservation assets wrongfully distributed under the UPA; restoring to their status as Uinta Indians the Uinta who were minors in 1961 and not listed among the 490; awarding them damages for their loss of status as Indians under the UPA, for breach of trust, and for the violation of the due process clause of the Fifth Amendment; and ordering an accounting of the $32,000,000 ICC judgment allocated to the Colorado bands of Ute Indians.

Defendants filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (6) arguing, among other things, that the plaintiffs claims are barred by the statute of limitations, 28 U.S.C. § 2401 (2000).

DISCUSSION

When a party files a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), "the plaintiff[ ] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction." Biton v. Palestinian Interim Self-Gov't Auth., 310 F.Supp.2d 172, 176 (D.D.C.2004). A court considering a motion to dismiss for lack of jurisdiction must construe plaintiffs' complaint in plaintiffs' favor, accepting all inferences that can be derived from the facts alleged. Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005). A motion under Rule 12(b)(6) to dismiss for failure to state a claim should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). "To that end, the complaint is construed liberally in the plaintiffs favor, and ... plaintiff[] [receives] the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994).

I. DISPOSITION UNDER RULE 12(b)(1) OR 12(b)(6)

Ordinarily, a party's motion under Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction cannot rest upon an assertion that an action is barred by the statute of limitations because the expiration of the limitations period is an affirmative defense and not a bar to jurisdiction. See e.g., Gordon v. Nat'l Youth Work Alliance, 675 F.2d 356, 360 (D.C.Cir.1982); see also 5 Wright & Miller, Federal Practice and Procedure § 1277 (2004). However, because the United States enjoys sovereign immunity, Congress has the power to shape the conditions under which the United States can be sued. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ("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.") When a plaintiff seeks to sue the United States, and where Congress has limited the conditions under which the United States can be sued, the expiration of the statute of limitations has been construed as a bar to the court's subject matter jurisdiction, and thus a proper subject for a motion to dismiss under Rule 12(b)(1). For example, in Kendall v. Army Board for Correction of Military Records, the D.C. Circuit affirmed the dismissal of a case for lack of jurisdiction given the expiration of the limitations period. 996 F.2d 362, 366 (D.C.Cir.1993) (holding that the statute of limitations embodied in § 2401(a) is "a condition of federal court jurisdiction"); see also Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957). Traditionally, when a statute of limitations has been deemed jurisdictional, it has acted as an absolute bar and could not be overcome by the application of judicially recognized exceptions, see e.g., Soriano, 352 U.S. at 276, 77 S.Ct. 269, such as waiver, estoppel, equitable tolling, see Gordon, 675 F.2d at 360, fraudulent concealment, the discovery rule, see Nelson v. Int'l Paint Co., 716 F.2d 640, 645 (9th Cir.1983) (cataloguing exceptions), and the continuing violations doctrine. See Cato v. United States, 70 F.3d 1103, 1108-09 (9th Cir.1995).

Other recent Supreme Court and D.C. Circuit decisions, however, have held that the equitable tolling doctrine applies to analogous statutes of limitations. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (holding "that the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States"); Chung v. Dep't of Justice, 333 F.3d 273, 276-77 (D.C.Cir.2003) (holding that the statute of limitations under the Privacy Act is not a jurisdictional bar and is subject to equitable tolling under Irwin's reasoning); see also Harris v. Fed. Aviation Admin., 353 F.3d 1006, 1013 n. 7 (D.C.Cir.2004) (noting that Irwin and Chung have cast doubt on the circuit's holding that § 2401 is a jurisdictional prerequisite to suit in federal court.) In Irwin, the Supreme Court framed a general rule that all statutes of limitations are subject to a rebuttable presumption that equitable tolling applies.¹ Irwin, 498 U.S. at 95-96, 111 S.Ct. 453. In United States v. Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997), the Supreme Court held that the government successfully had rebutted the presumption and that an IRS code limitation was not subject to equitable tolling. The Court held that based on the detailed technical language of the statute, iterations of the limitation in procedural and substantive form and the explicit listing of exceptions, Congress intended no equitable tolling to apply. Id. at 350-51, 117 S.Ct. 849. The Court noted that the area of taxation carries special policy and administrative considerations. Id. at 352, 117 S.Ct. 849.

In Chung, the D.C. Circuit held that the Privacy Act limitation s...