Jicarilla Apache Nation v. United States, 02-25L

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Docket NumberNo. 02-25L,02-25L
Decision Date18 August 2011


No. 02-25L

United States Court of Federal Claims

Filed Under Seal: August 18, 2011
Reissued: August 26, 20111

Tribal trust case; Motions for partial summary judgment; Indian Tucker Act - 28 U.S.C. § 1505; Navajo Nation - when statutes give rise to claims under the Indian Tucker Act; Statutes governing accounting and management of tribal trust funds - 25 U.S.C. §§ 161, 161a, 162a; Cheyenne-Arapaho - statutes give rise to fiduciary obligation to maximize trust income by prudent investment; Cheyenne-Arapaho still binding precedent; Court has jurisdiction over pooling claim; Court lacks jurisdiction over disbursement lag claim.


Steven D. Gordon, Holland & Knight, Washington, D.C., for plaintiff.

Stephen R. Terrell, Environmental and Natural Resources Division, United States Department of Justice, Washington, D.C., with whom was Assistant Attorney General Ignacia S. Moreno, for defendant.

Alan R. Taradash and Daniel I.S.J. Rey-Bear, the Nordhaus Law Firm, Albuquerque, New Mexico, for the Pueblo of Laguna and the Navajo Nation, amici.

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Pending before the court, in this tribal trust case, are two motions for partial summary judgment under RCFC 56, raising important issues regarding the reach of this court's jurisdiction under the Indian Tucker Act, 28 U.S.C. § 1505.


A brief recitation of the underlying facts sets the context for this decision.

In this case, the Jicarilla Apache Nation (Jicarilla, the Nation, or plaintiff) seeks an accounting and to recover for monetary loss and damages relating to the government's breach of fiduciary duties in allegedly mismanaging the Nation's trust assets and other funds. Plaintiff, inter alia, avers that defendant failed to maximize returns on its trust funds. For trial purposes, the court has broken this case into several phases, the first of which involves the alleged mismanagement of plaintiff's trust funds for the period from February 22, 1974, through September 30, 1992. Among the claims of mismanagement that plaintiff makes as to this period are that the United States breached its fiduciary obligations by: (i) failing to pool the Nation's trust funds with those of other tribes for investment purposes (the pooling claim); and (ii) immediately removing funds from the Nation's trust fund to cover a disbursement check, thereby creating a lag between when such funds were removed and the check was negotiated, during which time no income was earned on the subject funds (the disbursement lag claim). Through its experts, plaintiff has developed investment models that calculate the hypothetical earnings associated with these claims. Via that model, plaintiff estimates that, in what it terms "2011" dollars, it is owed approximately $90 million on its pooling claim, and $810,789.90 on its disbursement lag claim.

On March 18, 2011, and May 20, 2011, defendant filed motions for partial summary judgment on plaintiff's pooling and disbursement lag claims, respectively. Defendant's argument in both motions is essentially the same: it asserts that the United States has not waived its sovereign immunity as to these claims. In response, plaintiff, inter alia, filed a cross-motion for partial summary judgment as to the disbursement lag claim. After the briefing on these motions was completed, the court, on July 22, 2011, conducted oral argument on the motions. Following that argument, the parties filed supplemental memoranda on August 12, 2011.


Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See RCFC 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Disputes over facts that are not outcome-determinative will not preclude the entry of summary judgment. Id. at 248. However, summary judgment will not be granted if "the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party."

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Id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Becho, Inc. v. United States, 47 Fed. Cl. 595, 599 (2000).

When making a summary judgment determination, the court is not to weigh the evidence, but to "determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249; see also Agosto v. Immigration & Naturalization Serv., 436 U.S. 748, 756 (1978) ("a [trial] court generally cannot grant summary judgment based on its assessment of the credibility of the evidence presented"); Am. Ins. Co. v. United States, 62 Fed. Cl. 151, 154 (2004). The court must determine whether the evidence presents a disagreement sufficient to require fact finding, or, conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 250-52; see also Ricci v. DeStefano, 129 S. Ct. 2658, 2677 (2009) ("'Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" (quoting Matsushita, 475 U.S. at 587)). Where there is a genuine dispute, all facts must be construed, and all inferences drawn from the evidence must be viewed, in the light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587-88 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Stovall v. United States, 94 Fed. Cl. 336, 344 (2010); L.P. Consulting Grp., Inc. v. United States, 66 Fed. Cl. 238, 240 (2005).


"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, 463 U.S. 206, 212 (1983) (Mitchell II). The Nation asserts federal subject-matter jurisdiction under the Indian Tucker Act (as it is colloquially known), 28 U.S.C. § 1505. That Act provides:

The United States Court of Federal Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any 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.

28 U.S.C. § 1505. The reference in this provision to "which otherwise would be cognizable in the Court of Federal Claims" incorporates the Tucker Act, 28 U.S.C. § 1491. The latter provision, in turn, grants this court "jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States . . . ." 28 U.S.C. § 1491(a)(1). "If a claim falls within the terms of the [Indian] Tucker Act," the Supreme Court has held, "the United States has presumptively consented to suit." Mitchell II, 463 U.S. at 216; see also United States v. Navajo Nation, 537 U.S. 488, 503 (2003) (Navajo I); Gregory C. Sisk, "Yesterday and Today: Of Indians, Breach of Trust, Money, and Sovereign Immunity," 39 Tulsa L. Rev. 313, 316-17 (2003) (hereinafter "Sisk").

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Like the Tucker Act, the Indian Tucker Act "is not itself a source of substantive rights." Navajo I, 537 U.S. at 503; see also Mitchell II, 463 U.S. at 216. Accordingly, to state a claim under the Act, "a tribal plaintiff must invoke a rights-creating source of substantive law that 'can fairly be interpreted as mandating compensation by the Federal Government for damages sustained.'" Navajo I, 537 U.S. at 503 (quoting Mitchell II, 463 U.S. at 218). In Navajo I, Justice Ginsburg, writing on behalf of the Court's majority, bifurcated this analysis into two discrete steps. "To state a claim cognizable under the Indian Tucker Act," she first wrote, "a tribe must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties." Navajo I, 537 U.S. at 506 (citing Mitchell II, 463 U.S. at 216-17). "If that threshold is passed," she further opined, "the court must then determine whether the relevant source of substantive law" is money-mandating. Id. In this regard, the opinion went on to explain that "[a]though 'the undisputed existence of a general trust relationship between the United States and the Indian people' can 'reinforc[e]' the conclusion that the relevant statute or regulation imposes fiduciary duties, that relationship alone is insufficient to support jurisdiction under the Indian Tucker Act." Navajo I, 537 U.S. at 506 (quoting Mitchell II, 463 U.S. at 225). Rather, "the analysis must train on specific rights-creating or duty-imposing statutory or regulatory prescriptions," albeit prescriptions that "need not . . . expressly provide for money damages" as "the availability of such damages may be inferred." Navajo I, 537 U.S. at 506; see also United States v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2325 (2011); United States v. Navajo Nation, 129 S. Ct. 1547, 1551-52, 1558 (2009) (Navajo II).

Seizing on the Supreme Court's reference to "specific rights-creating or duty-imposing statutory . . . prescriptions," Navajo I, 537 U.S. at 506, defendant asseverates that plaintiff's pooling and disbursement lag claims...

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