Flute v. United States

• Decision Date: 22 December 2015
• Docket Number: No. 14–1405.,14–1405.
• Citation: 808 F.3d 1234
• Parties: Homer FLUTE; Robert Simpson, Jr.; Thompson Flute, Jr.; Dorothy Wood, on behalf of themselves and all others similarly situated, Plaintiffs–Appellants, v. The UNITED STATES of America; The Department of the Interior; the Bureau of Indian Affairs, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

808 F.3d 1234

Homer FLUTE; Robert Simpson, Jr.; Thompson Flute, Jr.; Dorothy Wood, on behalf of themselves and all others similarly situated, Plaintiffs–Appellants,

v.The UNITED STATES of America; The Department of the Interior; the Bureau of Indian Affairs, Defendants–Appellees.

No. 14–1405.

United States Court of Appeals, Tenth Circuit.

Dec. 22, 2015.

Jason B. Aamodt, Indian & Environmental Law Group, PLLC, Tulsa, OK, (Krystina E. Phillips and Dallas L.D. Strimple, Indian & Environmental Law Group, PLLC, Tulsa, OK; Larry Derryberry, Derryberry & Naifeh, LLP, Oklahoma City, OK; and David F. Askman, Askman Law Firm, LLC, Denver, CO, with him on the briefs), for Plaintiffs–Appellants.

John Emad Arbab (John C. Cruden, Assistant Attorney General, and John L. Smeltzer, with him on the briefs), Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Defendants–Appellees.

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.

McHUGH, Circuit Judge.

This case arises out of an ignominious event in the history of this Nation. In 1864, the United States Army conducted an unprovoked attack on a group of unarmed Indians, who had relocated to an area next to the Sand Creek River in the Territory of Colorado at the direction and under the protection of the Territorial Governor. When what has become known as the Sand Creek Massacre was over, most of the Indians were dead, including many women and children. After an investigation, the United States publicly acknowledged its role in the tragedy and agreed to pay reparations to certain survivors of the massacre. But those reparations were never paid.

Plaintiffs are descendants of the victims of the 1864 Sand Creek Massacre and bring this action for an accounting of the amounts they allege the U.S. government holds in trust for payment of reparations to their ancestors. Because the United States has not waived its sovereign immunity, we affirm the district court's dismissal of such for lack of subject matter jurisdiction.

I. BACKGROUND

On February 18, 1861, the United States entered into a treaty with the Arapaho¹ and Cheyenne Tribes (the Tribes), ceding to the Tribes a tract of land along 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."² Despite this promise, in June 1864, Territorial Governor and Superintendent of Indian Affairs John Evans conspired with Colonel John Chivington of the U.S. Army to relocate the Tribes to Fort Lyon in the Colorado Territory. When the Tribes arrived in late October 1864, the commander of Fort Lyon, Major Scott Anthony, gave them permission to camp at nearby Sand Creek and to hunt bison. But he first disarmed the Tribes, leaving them with only minimal hunting weapons.

With the approval of Major Anthony, Colonel Chivington ordered an attack on the Tribes settled at Sand Creek. Approximately 700 U.S. troops marched for Sand Creek, arriving at sunrise on November 29, 1864. Despite the fact the Indians flew both an American flag and a white truce flag over their camp, the U.S. troops attacked. Indians attempting to flee or hide were hunted down and killed, and some of the attackers then looted and mutilated the bodies. The exact number killed at Sand Creek remains unknown, but eyewitness accounts estimate the majority were women and children.

After an investigation, Colonel Chivington and Major Anthony resigned their commissions. And on October 14, 1865, the United States entered into the Treaty of Little Arkansas, which expresses the United States' condemnation of "the gross and wanton outrages perpetrated against certain bands of Cheyenne and Arrapahoe Indians ... at Sand Creek, Colorado Territory." See Treaty between the United States of America and the Cheyenne and Arrapahoe Tribes of Indians, art. VI, Oct. 14, 1865, 14 Stat. 703 [hereinafter Treaty of Little Arkansas]. The Treaty of Little Arkansas then provides:

[T]he government being desirous to make some suitable reparation for the injuries then done, will grant three hundred an[d] twenty acres of land by patent to each of the following-named chiefs of said bands ... 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.... Said lands shall be selected under the direction of the Secretary of the Interior within the limits of country hereby set apart as a reservation for the Indians parties to this treaty.... 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, they being present and members of the bands who suffered at Sand Creek, ... as a compensation for property belonging to them, and then and there destroyed or taken from them by the United States troops aforesaid.

Id.

On July 26, 1866, the U.S. Congress appropriated funds to pay the reparations detailed in the Treaty of Little Arkansas. The 1866 Indian Appropriations Act provides, in relevant part:

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, ... 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.

Act of July 26, 1866, ch. 266, 14 Stat. 255, 276 [hereinafter 1866 Appropriations Act].

But although the United States promised to pay reparations to the survivors of the Sand Creek massacre and appropriated funds with which to do so, it never fulfilled its obligations.³ According to Plaintiffs, the funds appropriated by Congress were insufficient to compensate all the victims of the massacre. Moreover, instead of paying reparations directly to the affected individuals as directed, the Secretary of the Interior (Secretary) paid some of the money directly to the Tribes. What funds were not distributed to the Tribes were returned to surplus on August 30, 1872. The United States has never provided an accounting of the reparations paid or attempted to identify the individuals to whom reparations were still owed.

Plaintiffs are descendants of the victims of the Sand Creek massacre. They brought a class action on behalf of themselves and others similarly situated, alleging the United States acted in the capacity of a trustee over the funds appropriated under the Treaty of Little Arkansas and the 1866 Appropriations Act. Plaintiffs argue the Defendants are in breach of their trust obligations for failing to provide an accounting of the reparations funds held in trust for Plaintiffs' ancestors. Defendants moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defendants argued, alternatively, that the district court lacked subject matter jurisdiction over Plaintiffs' claims because the United States had not waived its sovereign immunity and that Plaintiffs had failed to state a claim for a trust accounting because they had failed to establish the existence of a trust relationship. The district court dismissed Plaintiffs' complaint under Rule 12(b)(1), finding it lacked jurisdiction because the United States had not waived sovereign immunity. This appeal followed.

II. DISCUSSION

The United States and its officers enjoy immunity from suit except in instances where the United States has expressly waived that protection. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) ("It long has been established ... that the United States, as sovereign, is immune from suit save as it consents to be sued...." (internal quotation marks omitted)). And because "[t]his immunity extends to injunctive relief," it bars the relief sought by Plaintiffs here—an order directing the government to provide an accounting. See United States v. Murdock Mach. & Eng'g Co. of Utah, 81 F.3d 922, 929–30 (10th Cir.1996) ("Thus, if the government has not consented to suit, the courts have no jurisdiction to either restrain the government from acting or to compel it to act." (internal quotation marks omitted)). Accordingly, we must determine whether the United States has waived its sovereign immunity to decide if the district court correctly dismissed the Plaintiffs' claims against these Defendants. See Fletcher v. United States, 730 F.3d 1206, 1211 n. 2 (10th Cir.2013) ("Of course, to sue the government a waiver of sovereign immunity must also be found somewhere in the federal code."); El Paso Natural Gas Co. v. United States, 750 F.3d 863, 892 (D.C.Cir.2014) ("Because the Government is a defendant here, the Tribe faces three threshold requirements to stating a viable claim for relief at the pleading stage: it must establish federal subject matter jurisdiction, a waiver of sovereign immunity, and a cause of action.").

We review the district court's dismissal on sovereign immunity grounds de novo. Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir.2013). And we will find the government has waived sovereign immunity only when its consent to be sued is "unequivocally expressed." United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (internal quotation marks omitted). Moreover, statutory text purporting to waive governmental immunity is strictly construed "in favor of the sovereign." Id. at 34, 112 S.Ct. 1011 (internal quotation marks omitted). "If waiver is not unequivocal from the [statutory] text, the...