UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TIMBISHA SHOSHONE TRIBE, et al., :
:
Plaintiffs, :
:
v. : Civil Action No. 10-968 (GK)
:
KENNETH SALAZAR, :
Secretary of Interior, et al., :
:
Defendants. :
MEMORANDUM OPINION
Plaintiffs, who are a federally recognized Indian Tribe,
citizens or members of the Tribe, and members of its Tribal
Council, bring this action against Kenneth Salazar in his official
capacity as Secretary of the Department of the Interior; the
Department of the Interior; Timothy Geithner in his official
capacity as Secretary of the Department of the Treasury; and the
Department of the Treasury. Plaintiffs seek declaratory and
injunctive relief on the grounds that the Western Shoshone Claims
Distribution Act, Pub. L. No. 108-27, 118 Stat. 805 (2004), orders
an unconstitutional taking of tribal property and denies equal
protection of the law under the Fifth Amendment of the
Constitution. This matter is before the Court on Defendants’ Motion
to Dismiss [Dkt. No. 9]. Upon consideration of the Motion,
Opposition, Reply, and the entire record herein, and for the
reasons set forth below, the Motion to Dismiss is granted.
I. BACKGROUND
A. Factual Background1
This case concerns the proper distribution of a fund set aside
for the benefit of the nations and tribes constituting the Western
Shoshone Identifiable Group, of which Plaintiff Timbisha Shoshone
Tribe (“the Tribe”) is a member. On August 15, 1977, the Indian
Claims Commission (“ICC”) determined that the United States should
pay the Western Shoshone Identifiable Group $26,145,189.89 (“the
Fund”) in compensation for the taking of a large area of the
Western Shoshone homeland in Nevada and California. See W. Shoshone
Identifiable Group v. United States, 40 Ind. Cl. Comm. 318, 387
(1977) (“the ICC decision”). Pursuant to the ICC decision, the Fund
was appropriated and put into trust at the Treasury Department. The
Fund has remained in the custody of the Treasury Department,
earning interest, ever since.
The delay in distributing this award results from the
particular manner in which ICC judgment funds are parceled out.
Under 25 U.S.C. § 1401 et seq., after money is appropriated to pay
the judgment funds, the Secretary of the Interior must devise a
plan for distributing the funds among the potential beneficiaries
1
For purposes of ruling on a motion to dismiss, the
factual allegations of the complaint must be presumed to be true
and liberally construed in favor of the plaintiff. Aktieselskabet
AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat’l Rifle Ass’n of Am., 606 F.2d 1251, 1253 (D.C.
Cir. 1979). Therefore, the facts set forth herein are taken from
the Complaint.
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and submit that plan to Congress. The plan becomes effective unless
Congress enacts a joint resolution disapproving of the plan within
60 days of its submission. Id. at § 1405(a). However,
“[i]n cases where the Secretary has to submit a
plan dividing judgment funds between two or more
beneficiary entities, he shall obtain the consent
of the tribal governments involved to the proposed
division. If the Secretary cannot obtain such
consent within one hundred and eighty days after
appropriation of the funds for the award or within
one hundred and eighty days of January 12, 1983, he
shall submit proposed legislation to the Congress.”
Id. at § 1402(d). In such cases, therefore, Congress must act to
distribute the award.
After the money relevant to this case was appropriated, the
Western Shoshone Tribes, including the Timbisha Shoshone, declined
to seek distribution of the Fund and instead demanded partial
return of the underlying land for which the Fund was intended to
provide compensation.2 Because the Secretary was unable to obtain
the tribes’ consent to distribute the monies, the Fund sat
undisturbed, waiting for Congress to pass a distribution act.
In 2004, Congress resolved to distribute the Fund by passing
the Western Shoshone Claims Distribution Act (“the Distribution
Act”), Pub. L. No. 108-27, 118 Stat. 805 (2004). The Distribution
2
The Government’s Opposition to Plaintiffs’ Preliminary
Injunction Motion [Dkt. No. 24] explains that the relevant Tribal
Councils “uniformly opposed any kind of distribution of the
judgment funds, believing that the distribution of the Judgment
Funds [sic] would preclude them from seeking a return of the
aboriginal lands.” Defs.’ Opp’n to Pls.’ PI Mot. 4.
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Act directs the Secretary of the Interior to establish a roll
consisting of individuals with at least one-quarter degree of
Western Shoshone blood who are citizens of the United States and
living on the date of enactment of the Distribution Act, but who
are not eligible to receive a per capita payment from any other
judgment fund based on an aboriginal land claim. The Secretary of
the Interior is then to distribute the award directly to these
individuals and not to any tribal entities.
Plaintiffs, individuals claiming to represent the Tribe,
brought this action to challenge the Distribution Act. Plaintiffs’
Complaint alleges that the Distribution Act violates the Takings
Clause of the Fifth Amendment and denies equal protection of the
law under the Fifth Amendment by seizing tribal property––the
Fund––and distributing it to individuals rather than the Tribe.
B. Procedural Background
On June 10, 2010, Plaintiffs filed their Complaint [Dkt. No.
1]. On October 22, 2010, Defendants filed their Motion to Dismiss
[Dkt. No. 9]. On November 22, 2010, the Court granted a Motion for
Leave to File an Amicus Curiae Brief in Support of Defendants’
Motion to Dismiss (“Amicus Curiae”) [Dkt. No. 16] filed by George
Gholson, who claims that he, and not the Plaintiffs, is a member of
the legitimate Tribal Council of the Timbisha Shoshone Tribe. On
December 17, 2010, Plaintiffs opposed Defendants’ Motion to Dismiss
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[Dkt. No. 18]. On January 7, 2011, Defendants filed a Reply [Dkt.
No. 23].
On January 5, 2011, prior to the filing of Defendants’ Reply,
Plaintiffs filed a Motion for Preliminary Injunction [Dkt. No. 21],
asking the Court to preliminarily enjoin the first phase of
distributions of the Fund, which Defendants indicated would occur
sometime in February. On January 20, 2011, the Court heard oral
argument on both the Motion for Preliminary Injunction and the
Motion to Dismiss. After hearing argument, and for the reasons
stated on the record in open court, the Court denied Plaintiff’s
Motion for Preliminary Injunction [Dkt. No. 26].
II. STANDARD OF REVIEW
Defendants ask the Court to dismiss Plaintiffs’ claims under
Rules 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), Plaintiffs bear
the burden of proving by a preponderance of the evidence that the
Court has subject matter jurisdiction. See Shuler v. U.S., 531 F.3d
930, 932 (D.C. Cir. 2008). In reviewing a motion to dismiss for
lack of subject matter jurisdiction, the Court must accept as true
all of the factual allegations set forth in the Complaint; however,
such allegations “will bear closer scrutiny in resolving a 12(b)(1)
motion than in resolving a 12(b)(6) motion for failure to state a
claim.” Wilbur v. CIA, 273 F. Supp. 2d 119, 122 (D.D.C.
2003)(citations and quotations omitted). The Court may rest its
decision on its own resolution of disputed facts. Id.
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To survive a motion to dismiss under Rule 12(b)(6), a
plaintiff need only plead “enough facts to state a claim to relief
that is plausible on its face” and to “nudge[ ] [his or her] claims
across the line from conceivable to plausible.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “[O]nce a claim has been stated
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Id. at 563. A
complaint will not suffice, however, if it “tenders ‘naked
assertions’ devoid of ‘further factual enhancement.’” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1948 (2009) (citing Twombly, 550 U.S. at
557).
Under the Twombly standard, a “court deciding a motion to
dismiss must not make any judgment about the probability of the
plaintiffs’ success . . . must assume all the allegations in the
complaint are true (even if doubtful in fact) . . . [and] must give
the plaintiff the benefit of all reasonable inferences derived from
the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame
Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotation
marks and citations omitted).
III. ANALYSIS
Defendants make a number arguments in favor of dismissal.
Under Rule 12(b)(1), Defendants contend that Plaintiffs cannot
establish jurisdiction because (1) Defendants have not waived
sovereign immunity and (2) Plaintiffs’ takings claim must be
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brought in the Court of Federal Claims. Additionally, the Amicus
Curiae brief submitted by George Gholson and endorsed by the
Defendants in their Reply and at oral argument submits that, due to
political strife within the Timbisha Shoshone Tribe, Plaintiffs
lack standing to bring a lawsuit on behalf of the Tribe. Under Rule
12(b)(6), Defendants argue (1) that Plaintiffs have failed to make
allegations supporting a claim against the Treasury Department and
Secretary of the Treasury, (2) that Plaintiffs cannot set forth a
property interest sufficient for a takings claim, and (3) that
Plaintiffs have failed to state a claim for denial of equal
protection. Each argument will be considered in turn.
A. Plaintiffs Have Made Sufficient Allegations to Survive a
Motion to Dismiss Under Rule 12(b)(1)
1. Sovereign Immunity Does Not Bar Plaintiffs’ Claims
Defendants argue that Plaintiffs have failed to demonstrate
that Defendants have waived their sovereign immunity. Defs.’ Mot.
6. Defendants contend that 28 U.S.C. §§ 1331 and 1362, upon which
Plaintiffs rely to invoke the jurisdiction of this Court, do not
waive the United States’ sovereign immunity. Id. at 5-6; see Compl.
¶ 2. Plaintiffs respond that sovereign immunity does not bar suits
for specific relief against the government where the challenged
official action is alleged to be unconstitutional, and that Section
702 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702,
has effected a waiver of sovereign immunity in cases alleging
unconstitutional agency action. Pls.’ Opp’n 2-5.
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Although Defendants are of course correct that suits against
the United States are barred absent a waiver of sovereign immunity,
it is clear that sovereign immunity does not apply to a claim
seeking specific relief “in which the statute or order conferring
power upon the officer to take action in the sovereign’s name is
claimed to be unconstitutional.” Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682, 690 (1949); see also Clark v. Library
of Congress, 750 F.2d 89, 102 (D.C. Cir. 1984) (“It is
well-established that sovereign immunity does not bar suits for
specific relief against government officials where the challenged
actions of the officials are alleged to be unconstitutional or
beyond statutory authority.”).
Defendants attempt to limit Larson on the ground that “Larson
and its prodigy [sic] concern ultra vires actions on the part of
government officials.” Defs.’ Reply 3. Defendants plainly misread
Larson. The Supreme Court specifically listed (1) cases involving
ultra vires actions by a government officer as well as (2) cases
alleging unconstitutional actions taken by a government officer as
separate examples of cases in which no waiver of sovereign immunity
is required. Larson, 337 U.S. at 689-90. The Supreme Court stated
that “[t]hese two types have frequently been recognized by this
Court as the only ones in which a restraint may be obtained against
the conduct of Government officials.” Id. at 690. Indeed, the
Supreme Court noted that, in the case of action taken pursuant to
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an unconstitutional statute, “the conduct against which specific
relief is sought is beyond the officer’s powers and is, therefore,
not the conduct of the sovereign. The only difference [from an
ultra vires claim] is that in this case the power has been
conferred in form but the grant is lacking in substance because of
its constitutional invalidity.” Id.
In addition, our Court of Appeals has consistently ruled that
in cases seeking specific, non-monetary relief the “APA’s waiver of
sovereign immunity applies to any suit whether under the APA or
not.” Trudeau v. FTC, 456 F.3d 178, 186 (permitting suit against
the FTC under 28 U.S.C. § 1331) (D.C. Cir. 2006) (quoting Chamber
of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996))
(internal quotations omitted); Clark, 750 F.2d at 102 (“[T]he 1976
amendments to § 702 . . . eliminated the sovereign immunity defense
in virtually all actions for non-monetary relief against a U.S.
agency or officer acting in an official capacity.”).
Although Plaintiffs do rely on 28 U.S.C. §§ 1331 and 1362 to
invoke this Court’s jurisdiction, rather than Section 702 of the
APA, Plaintiffs also clearly allege that the actions to be taken by
the Defendants under the Distribution Act will constitute agency
action pursuant to an unconstitutional statute. See Compl. ¶¶ 43,
50.
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In sum, Plaintiffs’ suit is not barred by sovereign immunity
under Larson, 337 U.S. at 690, and sovereign immunity has been
specifically waived in Section 702 of the APA.
2. This Court Has Jurisdiction over the Takings Claim
Defendants next argue that this Court does not have
jurisdiction over Plaintiffs’ takings claim. Defs.’ Mot. 8.
Defendants rely on the Tucker Act, 28 U.S.C. § 1491(a), which vests
jurisdiction in the United States Court of Federal Claims over
suits seeking monetary compensation from the United States under
the Constitution, including takings claims under the Fifth
Amendment. See Ry. Labor Execs.’ Ass’n v. United States, 987 F.2d
806, 815-16 (D.C. Cir. 1993) (“the Federal Claims Court’s
jurisdiction in such cases is exclusive.”).
Nonetheless, as the Plaintiffs have pointed out, the Supreme
Court has held that “‘the presumption of the Tucker Act
availability must be reversed where the challenged statute, rather
than burdening real or physical property, requires a direct
transfer of funds’ mandated by the Government.” Eastern Enterprises
v. Apfel, 524 U.S. 498, 521 (1998)(quoting In re Chateaugay Corp.,
53 F.3d 478, 493 (2d Cir. 1995)). The Supreme Court explained that
requiring Plaintiffs seeking equitable relief––i.e., as in this,
case a declaratory judgment and permanent injunction--barring the
government from distributing funds to wait until that money is
actually disbursed in order to pursue Tucker Act remedies for
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compensation “‘would entail an utterly pointless set of
activities.’” Eastern Enterprises, 524 U.S. at 521 (quoting Student
Loan Mktg. Ass’n v. Riley, 104 F.2d 397, 401 (D.C. Cir. 1997).
Consequently, the Supreme Court ruled that “it is within the
district courts’ power to award such equitable relief.” Id. at 522.
Hence, Plaintiffs’ claim seeking to enjoin distribution of the Fund
may be brought in this Court rather than the Court of Federal
Claims.
3. Plaintiffs Have Made Sufficient Allegations
Regarding Standing to Survive a Motion to Dismiss
Under Rule 12(b)(1)
Finally, Defendants submit that these Plaintiffs do not, in
fact, represent the Timbisha Shoshone Tribe and therefore have no
standing to advance a claim on behalf of the Tribe. This argument
was first presented by George Gholson in his amicus curiae brief.
According to Mr. Gholson, the Timbisha Shoshone Tribe is currently
embroiled in an internal political dispute, with two factions each
claiming to be the legitimate Tribal Council of the Timbisha
Shoshone. As a result, the Bureau of Indian Affairs currently
recognizes no Tribal Council for the Timbisha Shoshone. Amicus
Curiae 1-2.
Defendants argue that Plaintiffs have not sufficiently
demonstrated that they represent the Tribe in an official capacity.
Therefore, Defendants argue, Plaintiffs’ case must be dismissed
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because they have no standing as individuals to assert an injury
suffered by the Tribe.3
The “irreducible constitutional minimum” of standing requires
plaintiffs to demonstrate (1) that they have suffered an “injury in
fact,” (2) that there is “a causal connection between the injury
and the conduct complained of,” and (3) that it is “likely, as
opposed to merely speculative, that the injury will be redressed by
a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992) (internal quotations omitted); Shays et al. v.
F.E.C., 414 F.3d 76, 83 (D.C. Cir. 2005). In addition to the
constitutional requirements for standing, plaintiffs must satisfy
the prudential limitations, including assertion of their “own legal
rights and interests, and cannot rest [their] claim to relief on
the legal rights or interests of third parties.” Valley Forge
Christian Coll. v. Ams. United for Separation of Church and State,
Inc., 454 U.S. 464, 474 (1982) (quoting Warth v. Seldin, 422 U.S.
490, 499 (1975)) (internal quotations omitted).
Defendants argue that because the BIA does not recognize them
as representatives of the Tribe, Plaintiffs are merely individuals
attempting to vindicate tribal rights. Defs.’ Opp’n to Pls.’ PI
Mot. 9. Defendants claim that, without BIA recognition, “Plaintiffs
3
Plaintiffs have conceded that “[a]ll of the individual
Plaintiffs sue only on behalf of the Tribe, not on their own behalf
as individual members of the Tribe.” Pls.’ Reply in Support of Mot.
for PI 7 [Dkt. No. 25].
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cannot bring claims on behalf of the Timbisha” because “tribal
members lack standing to protect a tribe’s rights.” Id. At least
one court has agreed with the government and held that individual
members have no standing to claim an injury on behalf of the tribe.
See Hackford v. Babbitt, 14 F.3d 1457, 1466 (10th Cir. 1994)
(holding that prudential limitations bar a plaintiff from claiming
an injury to an indivisible tribal asset); see also James v. Watt,
716 F.2d 71, 72 (1st Cir. 1983) (noting that individual Indians
have no cause of action under the Indian Nonintercourse Act because
the Nonintercourse Act was designed to protect the land rights only
of tribes).
However, Defendants fail to provide legal support for their
theory that standing to represent tribal interests is premised on
BIA recognition. Importantly, Defendants misread Golden Hill
Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 58 (2d Cir.
1994) (“Golden Hill Tribe”), the principal case on which they rely
in their Opposition to Plaintiffs’ Motion for Preliminary
Injunction. See Defs.’ Opp’n to Pls.’ PI Mot. 9.
Critically, the Second Circuit held that the plaintiff
successfully pled standing as an Indian tribe despite lack of
recognition by the BIA. Golden Hill Tribe, 39 F.3d at 58. The court
relied on the plaintiff’s allegations that it represented an Indian
tribe, and not on the absence of a BIA determination, in assessing
standing at the motion to dismiss stage. Id. at 58-59. Thus, Golden
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Hill Tribe supports Plaintiffs’, rather than Defendants’, position,
since the Second Circuit permitted a plaintiff lacking any BIA
recognition of tribal status to satisfy the requirements of
standing simply “by declaring that it is an Indian tribe.” Id. at
58.
Defendants’ conclusion that Golden Hill Tribe held that
plaintiffs could not establish standing because “members could not
assert [the] tribe’s claim to land” is simply wrong. Defs.’ Opp’n
to Pls.’ PI Mot. 10. Although the Second Circuit remanded the case
with instructions to stay the proceedings “pending the BIA’s
consideration of Golden Hill’s claim for tribal recognition,” those
instructions did not relate to the standing inquiry. Golden Hill
Tribe, 39 F.3d at 61. Rather, the Second Circuit ordered the stay
under the doctrine of primary jurisdiction. Id. at 58. Unlike this
case, Golden Hill Tribe involved a claim under the Nonintercourse
Act,4 which requires plaintiffs to prove tribal status. See id. at
59. The Second Circuit held that “the BIA is better qualified by
virtue of its knowledge and experience to determine at the outset
whether Golden Hill meets the criteria for tribal status.” Id. at
60. In other words, the Second Circuit deferred to the judgment of
4
The Nonintercourse Act provides, “No purchase, grant, lease,
or other conveyance of lands, or of any title or claim thereto,
from any Indian nation or tribe of Indians, shall be of any
validity in law or equity, unless the same be made by treaty or
convention entered into pursuant to the Constitution.” 25 U.S.C. §
177 (1988).
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the BIA for determining tribal status under the Nonintercourse
Act––an issue irrelevant to standing. See id. at 58-61.
As the Supreme Court has held, “[a]t the pleading stage,
general factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion to dismiss we
presume that general allegations embrace those specific facts that
are necessary to support the claim.” Lujan, 504 U.S. at 561
(internal quotations omitted). Here, Plaintiffs have alleged that
they are members of the governing Tribal Council of the Timbisha
Shoshone. Compl. ¶¶ 4-10. The Court must accept that allegation as
true for purposes of a Motion to Dismiss. Such allegations are
sufficient to survive a motion to dismiss for lack of standing
under Rule 12(b)(1).
B. Plaintiffs Have Failed to State a Claim for Relief Under
Rule 12(b)(6)
1. Plaintiffs Have Failed to State a Claim Against the
Department of Treasury and the Secretary of the
Treasury
As a preliminary matter, Defendants argue that Plaintiffs’
“allegations are insufficient to find that Plaintiffs have stated
a viable claim against the Treasury Department and the Secretary of
Treasury.” Defs.’ Mot. 7. Defendants observe that “Plaintiffs fail
to identify any action that the Treasury Department or the
Secretary of the Treasury have taken or will take under the
Distribution Act.” Id. Plaintiffs protest that injunctive relief
must be granted against the Treasury Department and Secretary of
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the Treasury because “[i]t can be inferred that, even though the
Distribution Act refers to distribution of the funds by the
Secretary of Interior, the Secretary of the Treasury and Department
of the Treasury will play a necessary role in the administration of
the distribution, because they have actual custody of the funds.”
Pls.’ Opp’n 37-38.
As Defendants note, the sole allegation made specifically
against Secretary Geithner is that he is sued in his official
capacity as Secretary of the Treasury. Compl. ¶ 13. The sole
allegation made specifically against the Treasury Department is
that it “is named as a Defendant, because the fund of money is now
held in an account in the United States Treasury.” Id. at ¶ 14.
The Distribution Act mandates that the Secretary of the
Interior “shall make a per capita distribution of 100 percent of
the Western Shoshone judgment funds,” and, significantly, makes no
mention of the Treasury Department or Secretary. 118 Stat. 805, §
3(4)(c)(1). Even with “the benefit of all reasonable inferences
derived from the facts alleged,” there is no allegation that the
Treasury Department or the Secretary of the Treasury is required or
authorized to take any action under the Distribution Act.5
5
As noted above, the Distribution Act only calls for the
Secretary of the Interior to distribute the Fund. Therefore, to the
extent Treasury would take any action relating to the Fund, it
would be at the direction of the Secretary of the Interior. In
practical terms, then, an injunction against the Secretary of the
Interior would suffice to remedy Plaintiffs’ alleged harm.
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Aktieselskabet AF 21. November 2001, 525 F.3d at 17. Therefore,
Plaintiffs have failed to allege a claim upon which relief can be
granted against the Treasury Department or the Secretary of the
Treasury.
2. Plaintiffs Have Failed to State a Claim Under the
Takings Clause
The core of Plaintiffs’ takings claim is that the Fund is the
property of the tribes that make up that Western Shoshone
Identifiable Group and not of individual Western Shoshone Indians.
Plaintiffs argue that the ICC provided relief for the taking of the
Tribe’s communal property. Therefore, according to the Plaintiffs,
distributing the Fund to individual Western Shoshones would be an
unconstitutional taking of tribal property under the Fifth
Amendment. Pls.’ Opp’n 15-18. Defendants argue that no property
right in ICC awards vests in any entity or individual until the
award is actually distributed. Defs.’ Mot. 11-12.
In order to make out a claim under the Takings Clause of the
Fifth Amendment, Plaintiffs must “show that the government, by some
specific action, took a private property interest for a public use
without just compensation.” Adams v. United States, 391 F.3d 1212,
1218 (Fed. Cir. 2004) (citing Hodel v. Va. Surface Mining &
Reclamation Ass’n, 452 U.S. 264, 294 (1981)). Therefore, Plaintiffs
must allege a “cognizable property interest” to state a claim.
Adams, 391 F.3d at 1218.
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Plaintiffs contend that the Tribe obtained an ownership
interest in the Fund as soon as the money was deposited in the Fund
account pursuant to the ICC decision. Pls.’ Opp’n 18-19. Plaintiffs
rely on United States v. Dann, which held that “payment”
extinguishing aboriginal title to the land at issue in the ICC
decision occurred at the time the money was deposited into the Fund
account. 470 U.S. 48, 50 (1985) (“Once the money was deposited into
the trust account, payment was effected.”).6
Nonetheless, there is a great deal of authority indicating
that no individual or entity possesses a property interest in an
ICC judgment fund until that fund has actually been distributed. In
particular, Defendants rely on LeBeau v. United States, 474 F.3d
1334 (Fed. Cir. 2007), decided long after Dann. LeBeau considered
a claim for money damages by certain lineal descendants of a tribe
because of the Government’s failure to timely distribute judgment
funds. Id. at 1336. The Federal Circuit explained that “[i]f the
descendants’ rights in the Judgment Fund had vested (that is, the
lineal descendants had already received their distribution),
Congress could not have deprived them of their share of the
6
Plaintiffs also cite to a decision of the Court of Federal
Claims finding that, in a suit claiming a breach of fiduciary duty
by the Government regarding this particular Fund, “the 2004
Distribution Act has no effect whatsoever on the beneficial
interests of the Tribal Plaintiffs in the Western Shoshone tribal
trust funds held by the Government.” Western Shoshone Identifiable
Group v. United States, No. 1:06-cv-00896-EJD (Fed. Cl. Nov. 24,
2009). The Court did not find this ruling helpful.
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Judgment Fund without damages consequences under either a breach-
of-trust claim or a takings claim.” Id. at 1342 (emphasis added).
The court went on to say that the “lineal descendants’ right to
their per capita share of the Judgment Fund was always subject to
modification by Congress until distribution of their share
occurred, which would vest the lineal descendants’ rights in the
Judgment Fund.” Id. at 1343. Therefore, the court reasoned,
Congress was free to reallocate the share of the judgment fund at
issue in that case at any time prior to distribution “because the
lineal descendants never acquired vested rights in their share of
the Judgment Fund.” Id. In short, the Federal Circuit, whose
rulings bind this Court, held that no one can claim a vested
property interest in an ICC judgment fund until distribution of the
award.7
This result is in accord with the significant body of law
concerning Congress’s plenary power over Indian property and
especially the distribution of ICC judgment funds. The Supreme
Court has emphasized Congress’s “traditional broad authority over
the management and distribution of lands and property held by
recognized tribes, an authority drawn both explicitly and
implicitly from the Constitution itself” and has noted that “[t]his
authority of Congress to control tribal assets has been termed ‘one
7
Interestingly, the LeBeau opinion makes no mention of
Dann.
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of the most fundamental expressions, if not the major expression,
of the constitutional power of Congress over Indian affairs.’” Del.
Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 85-86 (1977) (quoting F.
Cohen, Handbook of Federal Indian Law 94, 97 (1942)).
In light of these pronouncements, the Supreme Court has held
that the appropriate standard of judicial review for acts
distributing tribal funds “ordinarily requires the judiciary to
defer to congressional determination of what is the best or most
efficient use for which tribal funds should be employed” and a
legislative judgment “should not be disturbed as long as the
special treatment can be tied rationally to the fulfillment of
Congress’ unique obligation toward the Indians.” Id. at 85
(internal quotations omitted). Elsewhere, the Supreme Court has
“recognized the wideranging congressional power to alter allotment
plans until those plans are executed.” Northern Cheyenne Tribe v.
Hollowbreast, 425 U.S. 657, 656-67 (1976).
The structure of 25 U.S.C. § 1401 et seq. further demonstrates
that Congress did not create a property interest in ICC awards
until distribution. See Adams, 391 F.3d at 1219 (“‘existing rules
or understandings that stem from an independent source,’ such as
state, federal, or common law, create and define the dimensions of
property interests for purposes of establishing a cognizable right
and hence a potential taking.”) (quoting Lucas v. S.C. Coastal
Council, 505 U.S. 1003, 1030 (1992)). As discussed above, 25 U.S.C.
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§§ 1402 & 1405 give Congress--and not the ICC--final say over the
proper distribution of any award (and, it should be noted, have in
this case resulted in a delay of over thirty years between the
award of the judgment fund and its distribution pursuant to
congressional act). As the Court of Claims has noted, determining
the identity of the recipient of an ICC award was reserved to the
competence of the legislative and executive branches and not given
to the ICC or the courts. Cherokee Freedmen and Cherokee Freedmen’s
Assoc. v. United States, 195 Ct. Cl. 39, 1971 WL 17825, at *5-7
(Ct. Cl. 1971).
Finally, although Dann does contain language favorable to the
Plaintiffs, the decision does not speak directly to the issue
presented here. Plaintiffs quote Dann as stating, “the Indian Claim
Commission ordered the Government qua judgment debtor to pay $26
million to the Government qua trustee for the Tribe as the
beneficiary.” Dann, 470 U.S. at 50; Pls.’ Opp’n 18. Plaintiffs
argue that this statement leads to the conclusion that “payment of
the judgment fund to the tribes, and not to individual lineal
descendants of the Western Shoshone Identifiable Group, shows
beyond doubt that the tribes own the judgment fund and that the
government holds the funds in trust for the tribes.” Pls.’ Opp’n
18.
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Plaintiffs read Dann’s language too broadly. Dann did not
conclude that Congress made actual distribution to the Tribe, or
that the Tribe had a vested property interest in the Fund. Rather,
Dann held only that aboriginal title to the land was extinguished
when the money was appropriated and placed in an account at the
Department of Treasury. Dann, 470 U.S. at 41, 44-45 (“The question
presented in this case is whether the appropriation of funds into
a Treasury account . . . constitutes ‘payment’ under § 22(a) of the
Indian Claims Commission Act.”).
As the court in Dann observed, “the Government was at once a
judgment debtor, owing $26 million to the Tribe, and a trustee for
the Tribe responsible for ensuring that the money was put to
productive use and ultimately distributed in a manner consistent
with the best interests of the Tribe.” 470 U.S. at 49-50. Hence,
the Government may have made “payment” sufficient to extinguish the
tribe’s aboriginal rights to the land in question, but it does not
necessarily follow that any particular entity or member of the
tribes at that point obtained a property interest in the Fund.
Rather, in its role as trustee, Congress retained authority to
distribute the Fund “in a manner consistent with the best interests
of the Tribe.” Id.
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Because the Timbisha Shoshone Tribe does not have a property
interest in the Fund under the Fifth Amendment, Plaintiffs have
failed to state a claim for which relief can be granted under the
Takings Clause.
3. Plaintiffs Have Failed to State a Claim for Denial
of Equal Protection
Plaintiffs’ second cause of action alleges that the Defendants
“deprive the Plaintiffs of due process of law and the equal
protection of the law in violation of the equal protection
guarantee of the Fifth Amendment to the Constitution” because the
actions to be undertaken by the Defendants pursuant to the
Distribution Act “are invidious, harmful, and detrimental to
Plaintiffs and are based on the Indian race or ancestry of
Plaintiffs.” Compl. ¶¶ 48-50. Plaintiffs argue that the “challenged
Act specifies a group for particular treatment, for the taking of
their money, in a way that is racial or ancestral.” Pls.’ Opp’n 31.
Plaintiffs make the novel argument that the Distribution Act
violates the Equal Protection Clause because it defines the Fund as
those “funds appropriated in satisfaction of the judgment awards
granted to the Western Shoshone Indians.” 118 Stat. 805, § 2(2)(A)
(emphasis added). Plaintiffs argue that this definition, along with
the inclusion of “the Western Shoshone identifiable group” in the
title of the Act, demonstrates that the Act unconstitutionally
targets the “Western Shoshone Identifiable Group.” Pls.’ Opp’n 31.
Defendants argue that Plaintiffs’ claim must be dismissed because
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“rational basis review applies in this case–and the Distribution
Act is undoubtedly rationally related to a legitimate government
interest.” Defs.’ Mot. 13.
a. The Distribution Act Is Subject to Rational
Basis Review
As a threshold matter, parties disagree on what degree of
review should be applied under Plaintiffs’ equal protection claim.
Plaintiffs contend that “a classification that explicitly describes
the people or groups on which a particular harm is imposed simply
as an ‘Indian tribe’ or ‘Indians,’ or of ‘Indian descent’ is indeed
an ancestral or racial classification . . . [and] calls for strict
scrutiny.” Pls.’ Opp’n 32.
However, it is abundantly clear that the “standard of review
for judging the constitutionality of Indian legislation under the
Due Process Clause of the Fifth Amendment . . . focuses on whether
the statute’s objectives are tied rationally to the fulfillment of
Congress’ unique obligation toward the Indians.” Littlewolf v.
Lujan, 877 F.2d 1058, 1064 (D.C. Cir. 1989) (quoting Weeks, 430
U.S. at 84 (1977)) (internal quotations omitted). In Morton v.
Mancari, which Plaintiffs agree is the leading case on equal
protection in this context, the Supreme Court upheld a statute
mandating preference for Indians in BIA hiring because “the
preference is reasonably and directly related to a legitimate,
nonracially based goal.” 417 U.S. 535, 554 (1974). The Court
emphasized that the “plenary power of Congress to deal with the
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special problems of Indians is drawn both explicitly and implicitly
from the Constitution itself.” Id. at 551. Therefore, federal
legislation––as opposed to state or local––must receive rational
basis review. See id.; Littlewolf, 877 F.2d at 1064.
The cases Plaintiffs do cite for the proposition that
government actions classifying American Indians as an ancestry or
race should be reviewed under strict scrutiny are unavailing. None
of those cases challenged the validity of the classifications
Congress enacted in federal legislation, and therefore Morton was
not controlling. See Tuttle v. Kaiser Co., 863 F.2d 601, 601 (8th
Cir. 1988) (claiming discrimination by a private employer under
Title VII of the Civil Rights Act); Morrison v. Garraghty, 239 F.3d
648, 652 (4th Cir. 2001) (challenging a policy of the Virginia
Department of Corrections under 42 U.S.C. § 1983); Fallon Paiute-
Shoshone Tribe v. City of Fallon, 174 F. Supp. 2d 1088, 1090 (D.
Nev. 2001) (claiming a violation of equal protection against a city
under 42 U.S.C. § 1983). Therefore, the particularly deferential
review accorded to federal legislation regarding American Indians
naturally did not apply.
Finally, Plaintiffs attempt to distinguish Morton on the
ground that, in Morton, “the individuals subject to preference were
significantly defined in the statute in political terms: membership
in a tribe that, in turn, has a recognized political relationship
with the United States.” Pls.’ Opp’n 34. Plaintiffs argue that “the
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kind of classification in this [Distribution] Act is, in fact and
in history, simply an ancestral or racial classification.” Id. at
34. This argument is particularly unconvincing in light of the
actual statutory language challenged by the Plaintiffs.
The principal language in the Distribution Act challenged by
the Plaintiffs defines the term “Western Shoshone joint judgment
funds” as “the funds appropriated in satisfaction of the judgment
awards granted to the Western Shoshone Indians in Docket Numbers
326-A-1 and 326-A-3 before the United States Court of Claims.” 118
Stat. 805, § 2(2)(A). Plaintiffs believe that this language
indicates a racial classification of “Western Shoshone Indians.”
Pls.’ Opp’n 31. However, this language plainly does not target the
Western Shoshone Indians “for particular treatment, for the taking
of their money, in a way that is racial or ancestral.” Id. This
language merely identifies the particular fund of money subject to
provisions of the Distribution Act. In this sense, the Distribution
Act classifies the persons affected not by race or ancestry, but
rather in terms of their relationship to the ICC decision.
Therefore, in considering Plaintiffs’ equal protection claim,
the Court must determine only whether the Distribution Act “is
reasonably and directly related to a legitimate, nonracially based
goal.” Morton, 417 U.S. at 554; Littlewolf, 877 F.2d at 1064.
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b. The Distribution Act Has a Rational Basis
Under rational basis review, “legislation is presumed valid
and will be sustained if the classification drawn by the statute is
rationally related to a legitimate state interest.” City of
Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440 (1985).
Further, the judiciary must “defer to congressional determination
of what is the best or most efficient use for which tribal funds
should be employed.” Weeks, 420 U.S. at 84.
Here, Defendants clearly cite to four legitimate government
purposes: (1) “avoiding delay,” (2) “providing payment on a
historic claim,” (3) “acting in furtherance of the United States’
trust relationship,” and (4) “complying with the wishes of the vast
majority of the tribal members who overwhelmingly desire to receive
the judgment awarded to them more than twenty years ago.” Defs.’
Mot. 15. Defendants contend that Congress addressed the reasons
behind its policy choices during the legislative process. For
example, during debate on the Senate floor, Senator Harry Reid, the
bill’s sponsor, noted that the “final distribution of this fund has
lingered for more than twenty years, and the best interests of the
Tribe will not be served by a further delay in enacting this
legislation.” 147 Cong. Rec. S5618-01 (2001). Senator Reid went on
to say that the bill would “provide payments to eligible Western
Shoshone tribal members” and that “[t]he Western Shoshone Steering
Committee, a coalition of Western Shoshone individual tribal
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members, has officially requested that Congress enact legislation
to affect this distribution.” Id.; Defs.’ Mot. 18. Finally,
Defendants submit that “Congress’ prior experience with per capita
distributions of awards pursuant to ICC judgments has proven this
to be a workable solution that has the potential to settle a claim
which has been unresolved for a great length of time.” Id. at 19.
Plaintiffs argue, inter alia, that “Defendants did not explain
how or why avoiding delay . . . is a sensible or legitimate
rationale for taking a money fund belonging to the Plaintiff Tribe
and giving it to others” and that “providing payment on a claim .
. . is appropriate but does not explain or justify paying to others
money that the Claims Commission awarded to the tribes.” Pls.’
Opp’n 36. Whatever the merits of Plaintiffs’ policy arguments in
favor of a different distribution formula, they do not invalidate
the rationality or reasonableness of Congress’s actions. See, e.g.,
Heller v. Doe, 509 U.S. 312, 319 (1993) (“rational-basis review in
equal protection analysis is not a license for courts to judge the
wisdom, fairness, or logic of legislative choices.”) (internal
quotations omitted); City of New Orleans v. Dukes, 427 U.S. 297,
303 (1976) (“the judiciary may not sit as a superlegislature to
judge the wisdom or desirability of legislative policy
determinations made in areas that neither affect fundamental rights
nor proceed along suspect lines.”); Hedgepeth v. Washington Metro.
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Area Transit Auth., 386 F.3d 1148, 1157 (D.C. Cir. 2004) (“it is
not our place to second-guess such legislative judgments.”).
Although the Court is certainly mindful of the long history
regarding distribution of the Fund, as well as the impoverished
condition of the Tribe, as recounted in Plaintiffs’ briefing and at
oral argument, the Court must defer to Congress’s rational judgment
regarding the appropriate apportionment of the Fund. Weeks, 420
U.S. at 84. The proper distribution of an ICC award among many
competing interests and desires, be they individual or tribal, is
a judgment that is given to Congress’s discretion. See Cherokee
Freedmen, 195 Ct. Cl. 39, 1971 WL 17825, at *5-7. Therefore,
Plaintiffs have failed to state a claim for which relief can be
granted for denial of equal protection of the law.
IV. CONCLUSION
For the reasons set forth above, the Defendants’ Motion to
Dismiss is granted.
An Order will issue with this opinion.
/s/
March 1, 2011 Gladys Kessler
United States District Judge
Copies to: counsel of record via ECF
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