San Carlos Apache Tribe v. United States

United States Court of Appeals
for the Federal Circuit
__________________________

SAN CARLOS APACHE TRIBE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________

2010-5102
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Appeal from the United States Court of Federal
Claims in Case No. 09-CV-046, Senior Judge Robert H.
Hodges, Jr.
__________________________

Decided: April 25, 2011
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WILLIAM P. HORN, Birch Horton Bittner and Cherot,
P.C., of Washington, DC, argued for plaintiff-appellant.
Of counsel on the brief was STEVEN M. TITLA, Titla &
Parsi, PLLC, of Globe, Arizona. Of counsel was KEVIN L.
PARSI, Titla & Parsi, PLLC, of Scottsdale, Arizona.

TAMARA N. ROUNTREE, Attorney, Environment &
Natural Resources Division, United States Department of
Justice, of Washington, DC, argued defendant-appellee.
With her on the brief was IGNACIA S. MORENO, Assistant
Attorney General.
SAN CARLOS APACHE TRIBE v. US 2

__________________________

Before NEWMAN, LOURIE, and MOORE, Circuit Judges.
Opinion for the court filed by Circuit Judge LOURIE.
Dissenting opinion filed by Circuit Judge NEWMAN.
LOURIE, Circuit Judge.
The San Carlos Apache Tribe (“Tribe”) appeals from a
decision of the United States Court of Federal Claims,
which dismissed the Tribe’s monetary damages claim
against the United States for an alleged breach of fiduci-
ary duty relating to water rights in the Gila River. Be-
cause the Court of Federal Claims correctly granted the
government’s motion to dismiss the Tribe’s claim for lack
of jurisdiction, we affirm.
BACKGROUND
The San Carlos Apache Reservation borders the Gila
River. Compl. at 1; see also In re the Gen. Adjudication of
All Rights to Use Water in the Gila River Sys. & Source,
127 P.3d 882, 885 (Ariz. 2006) (“Gen. Adjudication”). The
river flows in a westerly direction across Arizona through
semi-arid and desert lands requiring irrigation for suc-
cessful agricultural or horticultural use. Gen. Adjudica-
tion, 127 P.3d at 885 n.1. In 1925, in connection with a
federal project to dam the Gila River and provide water to
surrounding landowners, the United States filed a com-
plaint on behalf of the Tribe and other parties in the
United States District Court for the District of Arizona to
obtain a declaration of water rights to the Gila River (the
“Globe Equity Litigation”). See San Carlos Apache Tribe
v. United States, No. 09-46, at 1 (Fed. Cl. Mar. 25, 2010)
(“Op.”).
In 1935, following ten years of litigation, the district
court approved a settlement among the parties; the con-
3 SAN CARLOS APACHE TRIBE v. US

sent decree is known as the “Globe Equity Decree” (“De-
cree”). Id. The Decree grants the Tribe 6,000 acre-feet of
water from the Gila River each irrigation season for
irrigating 1,000 acres of land. Id.; Answering Br. Def.-
Appellee at A36, 2010 WL 3758727 (“Appellee Br.”). The
Decree states that the parties have “concluded and settled
all issues” pertaining to Gila River water rights. Op. at 1;
see also Appellee Br. at A26. The Decree further states
that the parties’ settlement is “embodied in and confirmed
and made effective by” the Decree, which “defin[es] and
adjudicat[es] the[] claims and rights” of the parties.
Appellee Br. at A26. In addition, the Decree states:
That each and all of the parties to whom rights to
water are decreed in this cause (and the persons,
estates, interests and ownerships represented by
such thereof as are sued in a representative ca-
pacity herein), their assigns and successors in in-
terest, servants, agents, attorneys and all persons
claiming by, through or under them and their suc-
cessors, are hereby forever enjoined and re-
strained from asserting or claiming—as against
any of the parties herein, their assigns or succes-
sors, or their rights as decreed herein—any right,
title or interest in or to the waters of the Gila
River, or any thereof, except the rights specified,
determined and allowed by this decree, and each
and all thereof are hereby perpetually restrained
and enjoined from diverting, taking or interfering
in any way with the waters of the Gila River or
any part thereof . . . .
Id. at A51.
The government filed another water rights claim on
behalf of the Tribe in 1979. Op. at 2; see also Arizona v.
San Carlos Apache Tribe, 463 U.S. 545, 558 (1983).
SAN CARLOS APACHE TRIBE v. US 4

Eventually, this claim was consolidated with other par-
ties’ water rights claims in the Gila River general stream
adjudication (“Arizona Adjudication”) in Arizona state
court. See Gen. Adjudication, 127 P.3d at 886. In 2001,
certain parties to the Arizona Adjudication asserted that
the Tribe’s water rights claims were barred by the res
judicata effect of the Decree. Id. In response, the Tribe
argued that it is not bound by the Decree, because it was
not in privity with the United States in the Globe Equity
Litigation. Id. at 896. The Tribe also argued that, in the
litigation leading to the Decree, the United States as
trustee for the Tribe sought water rights only under the
theory of prior appropriation; thus, the Decree does not
cover the Tribe’s aboriginal water rights or federal re-
served (“Winters”) water rights. Id. at 888; see also Win-
ters v. United States, 207 U.S. 564, 576-77 (1908); A. Dan
Carlock, Law of Water Rights and Resources § 9:39
(2010).
The matter was appealed to the Arizona Supreme
Court, which in 2006 declined on the basis of comity to
consider the Tribe’s argument that the Decree is not
binding on the Tribe. Gen. Adjudication, 127 P.3d at 901.
In essence, the court held that the proper forum for chal-
lenging the interpretation and enforcement of the Decree
was the United States District Court for the District of
Arizona, not Arizona state court. 1 Id. at 900-01. The
Arizona Supreme Court further held that the Decree
resolved all of the Tribe’s water rights, under all theories,

1 The Arizona Supreme Court noted that the Tribe
had received permission to intervene in an ongoing litiga-
tion in the United States District Court for the District of
Arizona over enforcement of the Decree, but that the
Tribe had “declared that it ‘does not seek to litigate rights
to additional Gila River water in this matter.’” General
Adjudication, 127 P.3d at 900.
5 SAN CARLOS APACHE TRIBE v. US

and thus precludes any further claim by the Tribe to the
waters of the Gila River. Id. at 895. The Arizona Su-
preme Court noted that it “express[ed] no opinion as to
what other remedies, if any, might be available to the
Tribe for the Government’s allegedly inadequate repre-
sentation.” Id. at 901 n.21.
On January 23, 2009, the Tribe filed a complaint in
the United States Court of Federal Claims for monetary
damages. The Tribe alleged that “[t]he United States’
inadequate representation and failure to secure and
protect the [Tribe’s] aboriginal and federal reserved water
rights under the Decree for a permanent Tribal homeland
constitutes a serious breach of fiduciary duty which it
owed to the [Tribe].” Compl. at 4. The Tribe asserted
that its claim against the United States for monetary
damages did not become ripe until the 2006 decision of
the Arizona Supreme Court. Id. at 18.
The government filed a motion to dismiss for lack of
jurisdiction, arguing, inter alia, that the Tribe’s claim is
barred by the six-year statute of limitations set forth in 28
U.S.C. § 2501. Def.’s Mot. to Dismiss at 1. The Court of
Federal Claims granted the government’s motion to
dismiss. Op. at 3. The court held that the Tribe’s claim
against the government accrued in 1935 upon entry of the
Decree and that it was therefore barred by the six-year
statute of limitations. Id.
The Tribe timely appealed from the court’s decision to
dismiss its claim. We have jurisdiction over final judg-
ments of the Court of Federal Claims pursuant to 28
U.S.C. § 1295(a)(3).
DISCUSSION
The statute of limitations provided by 28 U.S.C.
§ 2501 is jurisdictional in the Court of Federal Claims.
SAN CARLOS APACHE TRIBE v. US 6

John R. Sand & Gravel Co. v. United States, 552 U.S.
130, 134 (2008); Hopland Band of Pomo Indians v. United
States, 855 F.2d 1573, 1576-77 (Fed. Cir. 1988) (“The 6-
year statute of limitations on actions against the United
States is a jurisdictional requirement attached by Con-
gress as a condition of the government’s waiver of sover-
eign immunity and, as such, must be strictly construed.”).
Whether the Court of Federal Claims possesses jurisdic-
tion over a claim is a question of law subject to de novo
review. Western Co. v. United States, 323 F.3d 1024, 1029
(Fed. Cir. 2003). In reviewing the propriety of the court’s
dismissal, we accept as true the facts alleged in the
Tribe’s complaint. Catawba Indian Tribe v. United
States, 982 F.2d 1564, 1568-69 (Fed. Cir. 1993).
An action brought under the Tucker Act is time-
barred unless it is “filed within six years of the date that
the cause of action accrued.” Fallini v. United States, 56
F.3d 1378, 1380 (Fed. Cir. 1995); see also 28 U.S.C. § 2501
(2006) (“Every claim of which the United States Court of
Federal Claims has jurisdiction shall be barred unless the
petition thereon is filed within six years after such claim
first accrues.”). A cause of action against the government
has first accrued “when all the events which fix the gov-
ernment’s alleged liability have occurred and the plaintiff
was or should have been aware of their existence.”
Hopland Band, 855 F.2d at 1577 (emphasis omitted).
Moreover, “[t]he question whether the pertinent events
have occurred is determined under an objective standard;
a plaintiff does not have to possess actual knowledge of all
the relevant facts in order for the cause of action to ac-
crue.” Fallini, 56 F.3d at 1380. This objective standard
applies to the accrual of a claim for breach of fiduciary
duty. See Jones v. United States, 801 F.2d 1334, 1335
(Fed. Cir. 1986) (“Generally, an action for breach of fidu-
7 SAN CARLOS APACHE TRIBE v. US

ciary duty accrues when the trust beneficiary knew or
should have known of the breach.”).
On appeal, the Tribe argues that the Court of Federal
Claims erred by dismissing its claim. The Tribe asserts
that its claim against the government accrued in 2006
following the decision of the Arizona Supreme Court, and
is therefore within the six-year statute of limitations
under 28 U.S.C. § 2501. The Tribe contends that, due to
the government’s legally inadequate representation of the
Tribe in the Globe Equity Litigation, it was not clear until
2006 that the Tribe was in fact bound by the Decree.
The Tribe also argues that the scope of the Decree
remained unclear until the Arizona Supreme Court held
that the Decree precluded any claims by the Tribe for
additional water rights from the Gila River. The Tribe
points out that the United States, as trustee for the Tribe,
continued to support the Tribe’s claims for additional
water rights until 2006, and the Tribe contends that it
had no notice that the Decree precluded additional water
rights. The Tribe thus argues that, as a beneficiary, it
was entitled to rely on the government’s good faith and
expertise without having to sue for money damages prior
to the 2006 Decision. Further, the Tribe argues that
because the government did not repudiate its role as the
Tribe’s trustee until 2006, the Tribe’s claim for breach of
fiduciary duty did not begin to accrue until then.
The government argues that the Tribe’s claim is un-
timely and barred by the statute of limitations. The
government contends that a claim against a trustee for
breach of trust accrues when the beneficiary objectively
knew or should have known of the breach. The govern-
ment points out that the basis of the Tribe’s present claim
is the plain language of the Decree itself, demonstrating
that the Tribe’s claim was “inherently knowable” to the
SAN CARLOS APACHE TRIBE v. US 8

Tribe in 1935. Appellee Br. at 11. The government
further argues that the decision of the Arizona Supreme
Court in 2006 did not fix the basis of the Tribe’s claim; at
most, the decision clarified the possible damages associ-
ated with the claim. Therefore, the government argues,
the Arizona Supreme Court’s decision did not affect
whether the Tribe knew or should have known that its
claim existed.
We agree with the government that the Court of Fed-
eral Claims lacked jurisdiction over this case because the
Tribe’s claim is barred by the statute of limitations. The
Tribe’s complaint asserts jurisdiction pursuant to the
Tucker Act, 28 U.S.C. § 1491(a)(1). As noted above, an
action brought under the Tucker Act is time-barred unless
it is filed within six years of the date that the cause of
action accrued. The central question in this case is when
the Tribe’s claim for breach of fiduciary duty accrued. We
conclude that the Tribe’s claim accrued in 1935 upon
entry of the Decree. As we shall explain, our conclusion is
compelled by the plain terms of the Decree and is consis-
tent with the Tribe’s own concessions in its complaint and
appellate brief.
It is objectively evident that all of the events that
fixed the government’s alleged liability and entitled the
Tribe to institute an action against the government
occurred upon entry of the Decree in 1935. The Tribe’s
claim is based on the unsatisfactory water rights to which
the government stipulated in the Decree. Specifically, the
Tribe asserts that it was inadequately represented be-
cause the United States failed to obtain aboriginal or
federal reserved water rights. Compl. at 18-19. However,
the terms of the Decree plainly and objectively indicate
which water rights the Tribe did and, importantly, did not
receive following the settlement of the Globe Equity
Litigation. The Decree does not expressly grant any
9 SAN CARLOS APACHE TRIBE v. US

aboriginal or federal reserved water rights to the Tribe,
and, as the Tribe acknowledges, the Decree plainly identi-
fies the Tribe as represented by the United States in the
Globe Equity Litigation, grants the Tribe a total of 6,000
acre feet of water rights, and includes a provision in
Article XIII stating that “each and all of the parties to
whom rights to water are decreed in this cause . . . are
hereby forever enjoined and restrained from asserting or
claiming . . . any right, title or interest in or to the waters
of the Gila River, or any thereof, except the rights speci-
fied, determined and allowed by this decree.” Appellee
Br. at A51. Accordingly, viewed under an “objective
standard,” Fallini, 56 F.3d at 1380, the Tribe knew or
should have known that the terms of the Decree pre-
cluded the Tribe from seeking additional Gila River water
rights.
The Tribe further contends that the government’s in-
adequate representation and its resulting breach of
fiduciary duty arose from a “severe conflict of interest”
due to the government’s representation of multiple parties
in the Globe Equity Litigation. Compl. at 15. The facts
supporting the alleged conflict of interest, however, were
similarly apparent from the text of the Decree, which,
viewed objectively, plainly indicated that the United
States represented multiple parties in the Globe Equity
Litigation. As of 1935, therefore, the Tribe was objec-
tively on notice of the accrual of its claims against the
government. 2

2 Even if the Tribe was unaware of its legal rights
at the time the Decree was implemented, we have held
that “[i]t is settled . . . that 28 U.S.C. § 2501 is not tolled
by the Indians’ ignorance of their legal rights.” Menomi-
nee Tribe of Indians v. United States, 726 F.2d 718, 720-
21 (Fed. Cir. 1984) (emphasis omitted).
SAN CARLOS APACHE TRIBE v. US 10

It is also evident from the Tribe’s complaint and ap-
pellate brief that the basis for its claim in this case is the
language of the Decree itself. For example, the Tribe’s
complaint acknowledges that the government’s alleged
breach of fiduciary duty was apparent from the fact that
the Decree provides for only 6,000 acre-feet for the Tribe:
The United States’ denial of any benefits to
the Apaches from the San Carlos Project was part
of a consistent pattern of discrimination against
the Tribe, and breach of fiduciary duty, that
would be demonstrated again in the Globe Equity
proceeding when the United States stipulated to
only 6,000 acre feet of Gila River water for the
Tribe.
Compl. at 10. 3 This is further apparent from the Tribe’s
appellate brief, which concedes, for example, that the
government’s “breach of trust is also manifested in many
of the terms of the Decree that provided the Tribe virtu-
ally worthless limited irrigation rights while providing
substantially greater more valuable rights to others.”
Opening Br. San Carlos Apache Tribe at 30, 2010 WL
2603457 (“Appellant Br.”).
The Tribe also asserts that its claim arises from the
government’s failure to stipulate to “substituted” water
rights for the Tribe, despite having done so for other
parties to the decree. The complaint states the following:
The U.S. also stipulated to substantial water
rights to benefit the Upper Valley farmers under

3 The Tribe’s complaint also acknowledges that
“[t]he 6000 acre feet of water decreed to the Tribe in 1935
from the Gila River was a mere pittance of water and is
truly de minimis compared to the amount of water stipu-
lated to by the United States under the Decree for other
parties to the Decree.” Compl. at 2.
11 SAN CARLOS APACHE TRIBE v. US

the Decree. These farmers upstream from San
Carlos who had entered the Upper Valley lands
starting in the early 1880’s, were provided a spe-
cial “substituted” storage right under Article VIII
of the Decree based on the amount of water stored
each year in the San Carlos Reservoir. . . .
The United States utterly failed to secure
comparable water rights for the [Tribe]. It limited
the Tribe to a mere 6,000 acre feet from the Gila,
and made no similar effort to established [sic]
“substituted” storage rights for the Tribe based
upon water stored in the Reservoir, even though
the Reservoir is located within the heart of the
[Tribe’s] Reservation, and even though the United
States was legally obligated under its fiduciary
duties to act as the Tribe’s trustee in securing its
federal reserved water rights under the Decree.
Compl. at 12. Thus, with regard to “substituted” water
rights, the Tribe again concedes that the government’s
alleged breach of fiduciary duty is apparent from the
terms of the Decree. Regarding the alleged conflict of
interest, the Tribe’s complaint acknowledges that the
Decree itself indicates that the United States agreed to a
negotiation that provided water rights for multiple parties
including the Tribe. Id. at 15-16.
Finally, in connection with the Tribe’s allegation that
the government breached its duty to adequately represent
the Tribe in actions to obtain sufficient water rights to
fulfill the Tribe’s aboriginal and federal reserved water
rights, id. at 4, the complaint references a provision of the
Decree granting the Upper Valley farmers (another party
to the Decree) a limited right to purchase the Tribe’s
6,000 acre-feet for a specified sum. According to the
Tribe, “[t]his agreement under the Decree . . . clearly
SAN CARLOS APACHE TRIBE v. US 12

provides evidence beyond any reasonable doubt that the
government officials representing the Tribe in Globe
Equity never had any intention to secure aboriginal or
federal reserved water rights for the Tribe under the
Decree, as required under federal law.” Id. at 12-13.
Again, consistent with our conclusion that the Tribe’s
claim accrued in 1935, the facts supporting the Tribe’s
claim arise from the terms of the Decree itself.
We are not persuaded by the Tribe’s arguments to the
contrary. In support of its contention that its claim
against the United States accrued in 2006, the Tribe
relies on Samish Indian Nation v. United States, in which
we stated that, “[i]f a necessary element to a claim must
be established in a different forum, the claim will not
accrue for § 2501 until that element is finally established
in the other proceeding.” 419 F.3d 1355, 1369 (Fed. Cir.
2005). The Tribe contends that, in 2006, the Arizona
Supreme Court decided a “necessary element” to its claim,
viz., “that the Tribe was precluded from asserting its
Winters and aboriginal water rights to the main stem of
the Gila River.” Appellant Br. at 27.
Samish is not controlling in this case, however. In
Samish, the Interior Department dropped the Samish in
1969 from its list of federally recognized tribes. In 1996,
following a series of administrative and judicial proceed-
ings, a federal district court ruled that the government’s
refusal to federally recognize the tribe violated the Sam-
ish’s due process rights and the Administrative Procedure
Act (“APA”). Id. at 1362. In 2002, the Samish filed suit in
the Court of Federal Claims seeking, inter alia, monetary
damages for lost benefits resulting from the government’s
wrongful refusal to accord federal recognition to the
Samish during the period of 1969 to 1996. Id. at 1363.
13 SAN CARLOS APACHE TRIBE v. US

In relevant part, the opinion of the Court of Federal
Claims dismissed the Samish’s claims as time-barred
under 28 U.S.C. § 2501, reasoning that the Samish’s
claims accrued in 1969. Id. We reversed that part of the
court’s decision and held that the tribe’s claim for retroac-
tive benefits did not accrue until 1996, because “the
district court’s determination [in 1996] provides a predi-
cate ‘wrongful’ element in this action.” Id. at 1374. We
pointed out that “[o]nly a district court, acting on a chal-
lenge under the APA, has authority to review the Secre-
tary’s acts concerning the executive’s recognition
determination.” Id. at 1369. Because the district court’s
1996 decision provided the “missing element,” id., to the
Samish’s claim for damages against the government, the
Samish’s claim accrued in 1996; its complaint filed in
2002, less than six years later, was timely.
Accordingly, in Samish, a money damages claim for
improperly withheld federal recognition between 1969
and 1996 required, as a “necessary element,” a district
court’s determination in 1996 that federal recognition was
in fact improperly withheld during that period. In con-
trast, in the present case, the Tribe’s claim required no
further legal determination beyond the Decree itself. As
discussed above, the government’s alleged liability was
objectively fixed in 1935 with the plain language of the
Decree. Here, unlike in Samish, there was no “necessary
element . . . [to] be established in a different forum,” id.,
before the Tribe’s claim accrued under § 2501. The deci-
sion of the Arizona Supreme Court, rather than providing
a necessary element to the Tribe’s claim, simply stated
what was readily apparent from the face of the 1935
Decree.
More germane to the present case is Catawba Indian
Tribe v. United States, 982 F.2d 1564 (Fed. Cir. 1993).
That case involved a dispute stemming from the enact-
SAN CARLOS APACHE TRIBE v. US 14

ment of the Termination Act in 1962. Catawba, 982 F.2d
at 1567. As the Supreme Court of the United States ruled
in 1986, the Act rendered the ancestral lands of the
Catawba subject to South Carolina’s adverse possession
laws. Id. at 1568 (citing South Carolina v. Catawba
Indian Tribe, Inc., 476 U.S. 498 (1986)). The Catawba
sued the United States in 1990, claiming, among other
things, that the government, as trustee for the Catawba,
breached its fiduciary duty to the Catawba. Id. Specifi-
cally, the Catawba alleged that the government failed to
protect its land claim by breaching a duty to notify it of
the legal effect of the Act. Id. The Catawba also asserted
that its claim did not accrue upon enactment of the Act
because, allegedly, the government incorrectly assured
the tribe that nothing in the Act would affect the tribe’s
claim to its ancestral lands. Id. at 1568.
The Court of Federal Claims dismissed the Catawba’s
claim as time-barred, and we affirmed. We held that the
Catawba’s claim accrued in 1962 when the Act was
adopted. Id. at 1570-71. We rejected the Catawba’s
argument that its claim did not accrue until the Supreme
Court’s ruling in 1986:
While the Supreme Court’s pronouncement in
1986 might be relevant to fixing the time when
the Tribe subjectively first knew what the Act
meant, it is fundamental jurisprudence that the
Act’s objective meaning and effect were fixed when
the Act was adopted. Any later judicial pro-
nouncements simply explain, but do not create,
the operative effect.
Id. at 1570. We further explained that the Supreme
Court’s holding in 1986 that the Act was unambiguous on
its face merely reinforced the conclusion that the Ca-
15 SAN CARLOS APACHE TRIBE v. US

tawba’s claim accrued in 1962 upon enactment of the Act.
Id.
Here, as the Tribe correctly asserts, the Arizona Su-
preme Court held in 2006 that the Tribe was bound by the
terms of the Decree. However, like the Supreme Court in
Catawba, the Arizona Supreme Court based its decision
on the unambiguous language of the legal instrument
fixing the alleged liability—the 1935 Decree. For exam-
ple, in reviewing the language of the Decree and deter-
mining that the Tribe was bound by its terms, the Arizona
Supreme Court, foreshadowing our present decision,
stated that “[i]t is difficult to imagine more explicit lan-
guage indicating that the Decree was intended to resolve
all of the parties’ claims to the Gila River mainstem.”
Gen. Adjudication, 127 P.3d at 895. As in Catawba,
where we held that “the ‘damage’ was done when the Act
became effective in 1962,” 982 F.2d at 1571, we hold here
that the government’s liability was fixed upon entry of the
Decree in 1935. Also, like the alleged incorrect assur-
ances by the government in Catawba, the government’s
continued support of the Tribe’s water rights claims
following entry of the Decree does not alter the fact that
the terms of the Decree objectively fixed the Tribe’s claim
in 1935.
The Tribe further argues that its claim did not accrue
until 2006 because, “[u]ntil the full extent and perma-
nency of harm is objectively known, a claim does not
accrue.” Appellant Br. at 28. The Tribe thus contends
that the decision in 2006 of the Arizona Supreme Court
clarified for the first time the extent of the damages
associated with the Tribe’s claim against the government
for inadequate representation in the Globe Equity Litiga-
tion.
SAN CARLOS APACHE TRIBE v. US 16

We disagree. We have “soundly rejected” the notion
“that the filing of a lawsuit can be postponed until the full
extent of the damage is known.” Boling v. United States,
220 F.3d 1365, 1371 (Fed. Cir. 2000) (discussing United
States v. Dickinson, 331 U.S. 745 (1947)). We recently
confirmed this legal principle in Navajo Nation v. United
States, where we stated that, “for purposes of determining
when the statute of limitations begins to run, the ‘proper
focus’ must be ‘upon the time of the [defendant’s] acts, not
upon the time at which the consequences of the acts
[become] most painful.’” 631 F.3d 1268, 1277 (Fed. Cir.
2011) (quoting Delaware State Coll. v. Ricks, 449 U.S.
250, 258 (1980)). Even if, as the Tribe contends, the full
extent of the damages associated with the government’s
alleged breach of trust was not certain until 2006, all of
the facts relevant to the Tribe’s claim were known as of
1935. See Catawba, 982 F.2d at 1572. We therefore
disagree with the Tribe’s assertion that its claim accrued
in 2006.
As a final matter, the Tribe argues that its claim is
timely because it was not until 2006 that the United
States “definitively repudiated its role of trustee” for the
Tribe. Appellant Br. at 37. Because the Tribe did not
raise this argument before the Court of Federal Claims, it
is waived on appeal. See Corus Staal BV v. United States,
502 F.3d 1370, 1378 n.4 (Fed. Cir. 2007) (treating as
waived an argument made for the first time on appeal);
Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420,
1426 (Fed. Cir. 1997) (“[T]his court does not ‘review’ that
which was not presented to the district court.”).
However, even if this argument were timely pre-
sented, we do not find it persuasive. The Tribe refers us
only to Shoshone Indian Tribe v. United States, 364 F.3d
1339, 1348 (Fed. Cir. 2004), a case concerning the alleged
17 SAN CARLOS APACHE TRIBE v. US

mismanagement of trust funds by the United States as
trustee for the Shoshone. In that case, we explained:
The beneficiary, of course, may bring his action as
soon as he learns that the trustee has failed to ful-
fill his responsibilities. It is often the case, how-
ever, that the trustee can breach his fiduciary
responsibilities of managing trust property with-
out placing the beneficiary on notice that a breach
has occurred. It is therefore common for the stat-
ute of limitations to not commence to run against
the beneficiaries until a final accounting has oc-
curred that establishes the deficit of the trust.
Shoshone, 364 F.3d at 1348 (citation omitted).
Relying on Shoshone, the Tribe argues that not until a
trustee repudiates the trust and the beneficiary is aware
of that repudiation does a claim for breach of fiduciary
duty accrue. However, Shoshone involved a situation
where the trustee allegedly breached its duty by misman-
aging trust funds “without placing the beneficiary on
notice that a breach has occurred.” Id. In such cases, a
“final accounting” is necessary to put the Tribe on notice
of the breach. Id. In the present case, in contrast, a “final
accounting” was unnecessary to put the Tribe on notice of
the accrual of its claim: the plain terms of the Decree
were objectively sufficient to notify the Tribe of the al-
leged breach, as we have explained above.
We conclude that the government’s alleged liability
for breaching its fiduciary duty to the Tribe was objec-
tively fixed upon entry of the Decree in 1935, and that the
Tribe “knew or should have known,” Jones, 801 F.2d at
1335, upon entry of the Decree that the government’s
breach occurred. As we explained supra, our conclusion is
compelled by the plain language of the Decree, which
states in part:
SAN CARLOS APACHE TRIBE v. US 18

“[t]hat each and all of the parties to whom rights
to water are decreed in this cause (and the per-
sons, estates, interests and ownerships repre-
sented by such thereof as are sued in a
representative capacity herein) . . . are hereby for-
ever enjoined and restrained from asserting or
claiming . . . any right, title or interest in or to the
waters of the Gila River, or any thereof, except the
rights specified, determined and allowed by this
decree.”
Appellee Br. at A51. Therefore, the Tribe’s claim is
barred by the six-year statute of limitations set forth in 28
U.S.C. § 2501. Because the Tribe’s claim is time-barred,
the Court of Federal Claims did not legally err by grant-
ing the government’s motion to dismiss the Tribe’s claim
for lack of subject matter jurisdiction.
CONCLUSION
For the foregoing reasons, we affirm the decision of
the United States Court of Federal Claims granting the
government’s motion to dismiss the Tribe’s complaint.
AFFIRMED
 United States Court of Appeals
for the Federal Circuit
__________________________

SAN CARLOS APACHE TRIBE,
Plaintiff-Appellant,

v.
UNITED STATES,
Defendant-Appellee,
__________________________

2010-5102
__________________________

Appeal from the United States Court of Federal Claims
in Case No. 09-CV-046, Senior Judge Robert H. Hodges, Jr.
__________________________

NEWMAN, Circuit Judge, dissenting.

For decades the United States stood together with the
San Carlos Apache Tribe, in federal and state court, press-
ing the position that the 1935 Globe Equity Decree did not
finally determine the Tribe’s water rights in the Gila River.
When the issue was resolved in 2006 in the Arizona Su-
preme Court, and the Tribe’s water rights were finally lost,
the Tribe filed a claim for monetary damages in the Court of
Federal Claims. In that court, for the first time, the United
States took the position that the claim became time-barred
six years after the Globe Equity Decree of 1935. The gov-
ernment now argues, and my colleagues now agree, that the
Tribe was required to file this suit for the value of the lost
water rights, before the water rights had been finally lost
SAN CARLOS APACHE TRIBE v. US 2

and before any claim for damages arose. The court holds
that this Tucker Act claim became time-barred in 1941,
although its premises did not arise until the Arizona Su-
preme Court finally resolved the water rights issue in 2006.
Thus this court provides “yet another instance of the mani-
fest injustice which has assailed the Tribe at virtually every
turn since their dealings with the United States and its
citizens began.” United States v. Gila Valley Irrigation
Dist., 804 F. Supp. 1, 5 (D. Ariz. 1992). I respectfully dis-
sent.

DISCUSSION

The history of the Gila River water allocation supports
the position that the 1935 Decree did not represent the
interests of the Tribe.

The San Carlos Apache Indian Reservation, established
in 1872 in east central Arizona, is the remnant homeland of
approximately 14,000 Tribal members. The Gila River
provides Tribal members with water to grow crops and
sustain themselves. In 1873, 1874, 1876, 1877, and 1902,
the United States stripped out of the Reservation major
parcels of land including valuable bottomlands along the
Gila River, transferring these lands to settlers who began
diverting water from the River. In 1924 construction began
of the Coolidge Dam on the Gila River, flooding nearly
22,000 acres of the most valuable remaining Reservation
bottomlands. No storage water rights in the impoundment
were provided to the San Carlos Tribe; all such rights were
dedicated to other water users.

In 1925 the United States initiated the Globe Equity
proceeding in the United States District Court for the
District of Arizona, to allocate Gila River water rights for
the San Carlos Apache Tribe, the Pima Indian Tribe, and
3 SAN CARLOS APACHE TRIBE v. US

others including settlers and farmers. The San Carlos Tribe
was not a party to the proceeding and did not participate in
the negotiations, while the United States ostensibly repre-
sented the San Carlos Tribe as “trustee.” The Superinten-
dent of the San Carlos Agency expressed strong opposition
to the terms of the Decree and its adverse impact on the San
Carlos Tribe, but his protests were ignored. San Carlos
Apache Tribe v. United States, No. 09-46 (Fed. Cl. Jan. 23,
2009) (“Complaint”), ¶ 36. Other United States officials,
such as the Special Assistant to the Attorney General,
pressed the position that the United States should not
support the San Carlos Tribe’s superior priority to Gila
River water. Id. ¶ 38. The resultant 1935 Globe Equity
Decree allocated 6,000 acre feet of annual irrigation water
to the San Carlos Tribe, amounting to less than two percent
of the water allocated in the Decree. In contrast, the Pima
Indians Gila River Community was allocated 210,000 acre
feet of Gila River annual irrigation water. The record states
that this differential treatment was rationalized because
“the Pimas are an industrious farming race [while] the
Apache are and always have been warlike and in no sense
agrarian.” Id. ¶ 39. Non-Indian interests were allocated
over 350,000 acre feet of annual irrigation water. As a
result, the Gila River in the San Carlos Reservation is
frequently reduced to a trickle and consists mostly of salt-
laden irrigation return flows unsuitable for use. Id. ¶ 33.

In 1979 the San Carlos Apache Tribe filed suit in the
United States District Court in Arizona, asserting federal
reserved water rights (called Winters rights) in the Gila
River and tributaries, based on the ruling in Winters v.
United States, 207 U.S. 564 (1908), that when the federal
government creates an Indian reservation, it “impliedly
reserve[s] a right to the amount of river water necessary to
effectuate the purpose” of the reservation. Nevada v. United
States, 463 U.S. 110, 116 n.1 (1983); see also Arizona v.
SAN CARLOS APACHE TRIBE v. US 4

California, 373 U.S. 546, 600 (1963) (“The Court in Winters
concluded that the Government, when it created that Indian
Reservation, intended to deal fairly with the Indians by
reserving for them the waters without which their lands
would have been useless.”).

The Tribe’s suit reached the Supreme Court, which held
that the Tribe should pursue its Winters claims in Arizona
state court, stating that:

The McCarran Amendment, as interpreted in Colo-
rado River, allows and encourages state courts to
undertake the task of quantifying Indian water
rights in the course of comprehensive water adjudi-
cations. Although adjudication of those rights in
federal court instead might in the abstract be prac-
tical, and even wise, it will be neither practical nor
wise as long as it creates the possibility of duplica-
tive litigation, tension and controversy between the
federal and state forums, hurried and pressured de-
cisionmaking, and confusion over the disposition of
property rights.

Arizona v. San Carlos Apache Tribe of Ariz., 463 U.S. 545,
569 (1983). Thus in 1985 the Tribe filed federal reserved
water rights claims in Arizona state court, asserting that
the Tribe was entitled to 129,710 annual acre feet of water
from the Gila River system, based on Winters rights. The
United States filed a separate claim in the Arizona state
court “on behalf of the San Carlos Apache Indian Tribe,”
asserting “Federal reserved water rights” as the basis of the
claim. Statement of Claimant Form, In re: The General
Adjudication of all Rights to use Water in the Gila River Sys.
and Source, File No. 39-64259 (Ariz. Super. Ct. 1985). The
United States further stated that “Until the federal court
with jurisdiction over the Gila decree of 1935 finally deter-
5 SAN CARLOS APACHE TRIBE v. US

mines the scope of that decree and the res judicata effect of
that decree, the United States considers this claim to be an
appropriate part of the Tribe’s reserved water rights claim.”
Id.

In 2001 various parties, apparently served by Gila River
water, moved the Arizona state court for dismissal on the
ground that the Tribe’s claims, and the federal government’s
claims on behalf of the Tribe, were res judicata based on the
1935 Globe Equity Decree. In response the United States
stood with the Tribe, and argued that the Tribe is entitled to
a trial on the adequacy of United States representation in
the Globe Equity Decree, based on due process considera-
tions. See U.S. Br. 80-81, In re: The General Adjudication of
all Rights to use Water in the Gila River Sys. and Source,
No. WC-02-0003-IR (Ariz. 2005) (“[W]e agree with the
Apaches that a remand for further proceedings would be
appropriate. Among other things, to determine whether the
United States exercised ‘due diligence and reasonable
prudence’ in prosecuting the Globe Equity Decree on behalf
of the Apaches.”). The United States and the Tribe argued
that the Globe Equity Decree did not extinguish the Tribe’s
Winters rights. Id. at 31.

The Arizona Supreme Court held that the Globe Equity
Decree of 1935 “precluded” the continuing existence of
preserved aboriginal or Winters rights for the Tribe. The
Arizona court explained that the claim was precluded al-
though the issue was not litigated and the Globe Equity
Decree did not mention federal reserved or aboriginal water
rights. In re: The General Adjudication of all Rights to use
Water in the Gila River Sys. & Source, 127 P.3d 882, 888-95
(Ariz. 2006) (holding the San Carlos claim precluded as to
the mainstem waters but not the tributaries of the Gila
River). The Arizona Supreme Court declined to inquire into
the questions of privity and the adequacy of the United
SAN CARLOS APACHE TRIBE v. US 6

States’ representation of the Tribe in connection with the
Globe Equity Decree, holding that such an inquiry was
barred by “the doctrine of comity.” Id. at 898.

The Arizona court declined to review the challenges to
the Decree by both the Tribe and the United States, stating
that the issue of inadequate representation should be
brought “in the forum responsible for issuing, interpreting,
and enforcing the Decree,” id. at 900, and that its merits
could not be explored in state court – ignoring the ruling of
the United States Supreme Court that the Tribe and the
federal government should pursue in state court the claims
that they had raised in federal court. In declining to con-
sider the Tribe’s arguments based on inadequate represen-
tation, the Arizona Supreme Court “express[ed] no opinion
as to what other remedies, if any, might be available to the
Tribe for the Government’s allegedly inadequate representa-
tion.” Id. at 901 n.21 (citing Arizona v. California, 460 U.S.
605, 628 n.20 (1983) (“noting that ‘in an appropriate case
the Tribes’ remedy for inadequate representation by the
government may lie in the Court of Claims’”)).

Nonetheless, this court today holds that all of the
Tribe’s rights were fully, definitively, and finally resolved in
1935, and that the claim for damages under the Tucker Act,
although it could not have been brought in 1935, nonethe-
less expired six years thereafter. My colleagues bar the
Tribe from exploring the events surrounding the 1935
Decree, although until the Arizona Supreme Court in 2006
finally disposed of the question, the United States had itself
challenged the comprehensiveness and binding effect of the
Globe Equity 1935 Gila River allocation.

The Arizona Supreme Court decision finally ended the
Tribe’s claims to historic and adequate (Winters) water
rights, rights that had been the subject of decades of dispute
7 SAN CARLOS APACHE TRIBE v. US

and litigation. No monetary claims were extant, for the
Tribe’s concern was access to Gila River water. Until the
present case, there was no monetary claim against the
government, and thus no cause of action under the Tucker
Act.

Precedent illustrates that monetary claims do not ac-
crue against the United States until the claims have suffi-
ciently ripened. In Hopland Band of Pomo Indians v.
United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988), this
court held that “a cause of action against the government
has ‘first accrued’ only when all the events which fix the
government’s alleged liability have occurred and the plain-
tiff was or should have been aware of their existence,” in
that case a Tucker Act claim for breach of trust with respect
to an Indian tribe. In Samish Indian Nation v. United
States, 419 F.3d 1355, 1369 (Fed. Cir. 2005), this court held
that “the Samish claims did not accrue until the Samish,
through their administrative challenges, obtained a final
ruling by a district court under the APA,” the court explain-
ing that: “A claim accrues under [Tucker Act] § 2501 ‘when
all events have occurred to fix the Government’s alleged
liability, entitling the claimant to demand payment and sue
here for his money.’” (quoting Martinez v. United States, 333
F.3d 1295, 1303 (Fed. Cir. 2003) (en banc)).

The San Carlos Tribe’s claim for water rights was not
resolved until the Arizona Court held in 2006 that the
Tribe’s rights in the main stem of the Gila River were
controlled by the Globe Equity Decree but that the Decree
did not govern the tributaries. The United States had
argued in Arizona that the Globe Equity Decree did not
extinguish the Tribe’s Winters rights. See U.S. Br. 31 (Ariz.
2005) (“In the present adjudication, the United States filed a
statement of claimant on behalf of the Apaches asserting
rights in the upper Gila River watershed beyond the rights
SAN CARLOS APACHE TRIBE v. US 8

(just noted) that are recognized in the Globe Equity Decree .
. . In asserting these claims, the United States relies on the
doctrine of federally reserved water rights. See Winters v.
United States, 207 U.S. 564 (1908).”). The United States
pointed out that the Decree states a priority date of 1846,
which does not match the date of the founding of the San
Carlos Reservation (1872), as it would if the Decree were
based on Winters rights. Id. at 30; Arizona v. California,
373 U.S. at 600 (Winters rights are effective “as of the time
the Indian Reservations were created.”).

The United States also stated in the Arizona litigation
that “the provisions in the Globe Equity Decree relating to
the Apaches’ rights are unconventional” and “have been
subject to continuing controversy from their inception.”
U.S. Br. 29 (Ariz. 2005). The arguments by the United
States in the Arizona litigation demonstrate that the con-
troversy was continuing, and was generally understood to be
continuing. Only after the water rights claim was finally
lost in 2006, did a cause of action for monetary damages
start to accrue. Until then, there was no ripened Tucker Act
claim. The statute of limitations as to a claim in the Court
of Federal Claims could not have started to run in 1935.

The case of Catawba Indian Tribe of South Carolina v.
United States, 982 F.2d 1564 (Fed. Cir. 1993), relied on by
the panel majority, is too remote, in fact and law, to govern
this case. In Catawba this court held that the statute of
limitations barred suit to recover certain lands or the value
thereof, lands that had been removed from the Tribe by a
1959 statute (effective in 1962) that the Supreme Court
ruled to be unambiguous on its face and “unmistakably
clear” in South Carolina v. Catawba Indian Tribe, Inc., 476
U.S. 498, 505 (1986). This court held that the statute of
limitations accrued from the date of the 1959/1962 statute,
or, at the latest, from 1972 when the ten-year period of
9 SAN CARLOS APACHE TRIBE v. US

adverse possession of the lands had run. Catawba, 982
F.2d. at 1571. In Catawba the United States refused to
recognize the lands as belonging to the Tribe, whereas for
the San Carlos water rights the United States supported the
Tribe’s claim, and the water rights issue was acknowledged
by the Supreme Court to be unresolved when the issue was
consigned to the Arizona courts for resolution.

Only after the highest court of Arizona ruled in 2006
that the Decree would be held operative against the Tribe to
the preclusion of Winters rights, were the federal reserved
and aboriginal water rights resolved. This is not a “tangen-
tial legal question,” as the government now argues, U.S. Br.
27, but the core determinant of a claim for damages, a claim
that accrued only after Arizona ruled that the water was
finally lost. The 2006 Arizona ruling is akin to the thresh-
old determination in Samish Indian Nation, 419 F.3d at
1373, where this court held that until wrongful action was
shown to exist, the statute of limitations could not start to
run against a Tucker Act suit for compensation for such
wrongful act. The Samish Nation was required to obtain a
determination of wrongfulness in the district court. In both
cases, the statute of limitations could not start to run until
an essential premise of the claim was resolved. See id. at
1369 (“If a necessary element to a claim must be established
in a different forum, the claim will not accrue for § 2501
until that element is finally established in the other pro-
ceeding.”). Cf. White Mountain Apache Tribe v. Clark, 604
F. Supp. 185, 190 (D. Ariz. 1984) (dismissing the Tribe’s
federal claims as premature until the Tribe’s water rights
were determined in the Arizona state forum).

The San Carlos Tribe has persistently argued that it
was not adequately represented in connection with the 1935
Decree, and in the Arizona courts the United States urged
SAN CARLOS APACHE TRIBE v. US 10

that the Tribe was entitled to a hearing on this issue, stat-
ing:

[W]e support the Apaches’ request for a remand to
the Superior Court for further proceedings on the
Apaches’ argument under Section 42(1)(e) of the Re-
statement (Second) of Judgments. . . . As we ex-
plained, under controlling precedent of the Ninth
Circuit, the inadequate representation exception to
res judicata, as set out in Section 42(1)(e) of the Re-
statement (Second) of Judgments is available to the
Apaches. The Apaches clearly raised this exception
in the proceedings below and the Superior Court
clearly failed to address it, either on the law or facts
. . . there is no denying that the Superior Court gave
the Apaches’ arguments short shrift.

U.S. Reply Br. 62, 70, In re: The General Adjudication of all
Rights to use Water in the Gila River Sys. and Source, No.
WC-02-0003-IR (Ariz. 2006). Until the Arizona Supreme
Court declined to decide this issue, the binding effect of the
Global Equity Decree remained in contention, for precedent
supports the Tribe’s argument that since it was not a party,
and since it was inadequately represented, it was not bound.
See United States v. Truckee-Carson Irrigation District, 649
F.2d 1286, 1307 (9th Cir. 1981) (“When the government
breaches its trust to the Tribes while openly advancing its
own interest the Tribe is not necessarily bound . . . such a
limitation to preclusion based on due process is proper.”).

“Because of its treaty and statutory obligations to tribal
nations, the United States must be held to the most exact-
ing fiduciary standards in its relationship with the Indian
beneficiaries.” The Shoshone Indian Tribe of the Wind River
Reservation v. United States, 364 F.3d 1339, 1348 (Fed. Cir.
2004); see generally Nevada v. United States, 463 U.S. at
11 SAN CARLOS APACHE TRIBE v. US

127 (“This Court has long recognized the distinctive obliga-
tion of trust incumbent upon the Government in its dealings
with Indian tribes.”). Basic principles of due process and
fiduciary obligations establish that inadequate representa-
tion by a trustee renders the action non-binding on the
purported beneficiary. See Restatement Second of Judg-
ments §42(1)(e) (1982) (“A person is not bound by a judg-
ment for or against a party who purports to represent him if
. . . The representative failed to prosecute or defend the
action with due diligence and reasonable prudence, and the
opposing party was on notice of facts making that failure
apparent.”). Cf. Pelt v. Utah, 539 F.3d 1271, 1284-89 (10th
Cir. 2008) (Navajo beneficiaries of oil and gas royalty fund
administered by the state, requesting an accounting, were
not bound by previous class actions to which these benefici-
aries were not parties, since their interests were not ade-
quately represented as required by due process, for the
absent beneficiaries' interests were not “vigorously pursued
and protected”). These principles further impugn the final-
ity of the 1935 Decree as to the Tribe, for, as stated in
Hopland Band of Pomo Indians, “[t]he general rule is that
the statute of limitations ‘does not run against a beneficiary
in favor of a trustee until the trust is repudiated and the
fiduciary relationship is terminated.’” 855 F.2d at 1578
(quoting Manchester Band of Pomo Indians, Inc. v. United
States, 363 F. Supp. 1238, 1249 (N.D. Cal. 1973)).

In the analogous case of Fort Mojave Indian Tribe v.
United States, 23 Cl. Ct. 417 (1991), aff’d, No. 95-5014, 1995
U.S. App. LEXIS 23960 (Fed. Cir. 1995), the Fort Mojave
Tribe sought damages for loss of water rights due to alleg-
edly inadequate representation by the United States as
trustee in litigation leading to a 1964 consent decree. The
government argued that the Tribe’s claim for damages
accrued with the 1964 decree and thus was barred by the
statute of limitations. The Court of Federal Claims held,
SAN CARLOS APACHE TRIBE v. US 12

and this court affirmed, that the Tribe’s claim did not accrue
until 1983, when the Supreme Court, in Arizona v. Califor-
nia, 460 U.S. 605 (1983), finally interpreted the rights
established by the 1964 decree.

In Fort Mojave, as in this case, the United States had
stood together with the Tribe in litigation attempting to
secure additional water rights for the Tribe, and the United
States had acted as trustee for the Tribe in entering the
earlier consent decree. The Claims Court reasoned: “Since
the ultimate outcome of the United States’ continuing trust
actions (both pre- and post-1963) remained very much in
doubt until the Supreme Court’s 1983 decision, ‘all the
events’ which fixed liability for a breach of trust had not
occurred until the issuance of that decision.” Fort Mojave,
23 Cl. Ct. at 429. The court pointed out that the govern-
ment’s position “would demand that plaintiffs file their
breach of trust action at a time when, rather than assuming
a position adverse to plaintiffs’ interests, the United States
had acknowledged its error and was working hand in hand
with plaintiffs in an effort to redress that error.” Id. at
431. 1 This reasoning remains apt, along with the court’s
observation that no precedent supported the government’s
position that the action for damages was time barred under
such circumstances. Id. As this court explained in Bayou
Des Familles Dev. Corp. v. United States, 130 F.3d 1034,

1The panel majority states that the Tribe waived this
line of argument in the Court of Federal Claims. Maj. Op.
at 16. That is contrary to the record. See Pl.’s Resp. to
Def.’s Mot. to Dismiss at 26, San Carlos Apache Tribe v.
United States, 09-46 (Fed. Cl. Jun. 23, 2009) (“[I]f the Tribe
had brought the present monetary damages claim before
2006, the U.S. would no doubt have argued that the claim
was not ripe as the Tribe and the U.S. were both seeking to
obtain additional water rights for the Tribe in the Gila
Adjudication, [and] claims for these additional water rights
were unresolved.”).
13 SAN CARLOS APACHE TRIBE v. US

1038 (Fed. Cir. 1997), “Starting the statute of limitations
clock” occurs when the “claim become[s] ripe for adjudica-
tion.” See also Corman, Limitation of Actions, § 6.1, p. 374
(1991) (a claim does not accrue until all events necessary to
fix the liability of the defendant have occurred).

The path of precedent is clear. The San Carlos Apache
claim for damages did not ripen until 2006, when the water
rights were finally adjudicated. As observed ante, in Ari-
zona v. California, 460 U.S. at 628 n.20, the Court noted
that “in an appropriate case the Tribes’ remedy for inade-
quate representation by the Government may lie in the
Court of Claims.” That is the present situation: the issue of
water rights was finally resolved by the Arizona Supreme
Court in 2006, thereby ripening the claim for monetary
damages. From my colleagues’ ruling that this claim arose
in 1935 and became barred six years later, I must, respect-
fully, dissent.