United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 11, 2006 Decided January 19, 2007
No. 06-5092
ORANNA BUMGARNER FELTER, ET AL.,
APPELLANTS
v.
DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 02cv02156)
Dennis G. Chappabitty argued the cause and filed the briefs
for appellants.
John E. Arbab, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief was David
C. Shilton, Attorney.
Before: TATEL and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: In 2002, appellants, former members
2
of the Ute Indian Tribe and their descendants, filed a multi-
count complaint alleging that in the 1950s and 1960s the federal
government improperly terminated their status as federally
recognized Indians and, in the process of partitioning tribal
assets prior to termination, breached its fiduciary duty to them.
The district court dismissed the complaint, finding that
plaintiffs’ claims were barred by the six-year statute of
limitations for non-tort actions against the United States.
Although we agree with the district court’s reasoning, we
nonetheless remand the case for consideration of whether
plaintiffs’ claims have been saved by recently enacted
legislation providing that the statute of limitations “shall not
commence to run” on Indian claims of trust fund
mismanagement until the United States has provided an
accounting.
I.
Because the district court dismissed plaintiffs’ claims under
Federal Rule of Civil Procedure 12(b), “we assume that the facts
alleged in plaintiffs’ complaint are true.” Wagener v. SBC
Pension Benefit Plan—Non Bargained Program, 407 F.3d 395,
397 (D.C. Cir. 2005) (regarding motion to dismiss for failure to
state a claim); see also Jerome Stevens Pharms., Inc. v. FDA,
402 F.3d 1249, 1253 (D.C. Cir. 2005) (regarding motion to
dismiss for lack of subject matter jurisdiction). Viewed through
this lens, the complaint relates the following:
In 1861, President Abraham Lincoln declared the Uinta
Valley in Eastern Utah to be an Indian reservation, later named
the Uinta and Ouray Reservation. Several years later, the Uinta
Band, the aboriginal occupants of substantial portions of
present-day Utah, including the Uinta Valley, was forcibly
relocated to the reservation. Then, in 1881, the United States
government removed the White River Band of Utes, who had
3
historically resided in western Colorado, to the same reservation.
Around the turn of the century, the government allotted portions
of the reservation to the Uncompaghre Band, who had also
historically resided in western Colorado. Recognizing the
“exclusive property” interest of the Uinta Band to the Uinta and
Ouray Reservation, the federal government provided
compensation to the Uinta Band for the portions of their
reservation given to the White River and Uncompaghre Bands.
Am. Compl. ¶ 31.
In 1937, the “Ute Indian Tribe,” repeatedly referred to in
the complaint as “a modern fiction,” was created pursuant to the
Indian Reorganization Act, 25 U.S.C. § 461 et seq. See Am.
Compl. ¶ 33. This new “tribe” consisted of the three
bands—Uinta, White River, and Uncompaghre—now living on
the Uinta and Ouray Reservation. Under a newly adopted tribal
constitution, a “Tribal Business Committee” acted as the
governing body of the tribe, with each band having equal
representation on the Committee. Id. ¶¶ 34-36. Despite the
consolidation of the bands, each band retained all property rights
held prior to the formation of the Ute Indian Tribe. Moreover,
the Tribal Business Committee was authorized to take action
regarding a band’s preexisting property only with that band’s
consent.
In 1950, the Confederated Bands of Colorado Utes, of
whom the Uncompaghre and White River Bands—but not the
Uinta Band—were members, obtained a thirty-two million
dollar Indian Claims Commission judgment against the United
States for the seizure of their western Colorado lands. The Ute
Indian Tribe then adopted the “Share and Share Alike”
agreement, under which the Uinta Band, in exchange for a share
of the judgment, would agree to relinquish its separate claim
against the United States for compensation for seized land. As
characterized by Congress in an act related to payment of the
4
judgment, the Share and Share Alike agreement also stated that
“land within the Uintah and Ouray Reservation and income
issuing therefrom . . . shall become the tribal property of all the
Indians of the Ute Indian Tribe . . . without regard to band
derivation.” 25 U.S.C. § 672. According to the complaint,
however, the Bureau of Indian Affairs knew that the Share and
Share Alike agreement was invalid because the members of the
Uinta Band had never approved it.
Next, the complaint alleges that in 1954 defendants
“coerced, threatened, fooled and otherwise forced” the three
bands to seek “termination” of their status as federally
recognized Indians in order to secure the dispersal of the thirty-
two million dollar judgment. Am. Compl. ¶ 43. A federal
policy implemented during the 1950s and early 1960s,
“termination” sought to assimilate Indians by ending their
special relationship with the United States, discontinuing federal
programs for “terminated” Indians, and subjecting them to state
law and taxation. See H.R. Con. Res. 108, 83rd Cong. (1953)
(declaring termination policy); see also Charles F. Wilkinson &
Eric R. Biggs, The Evolution of the Termination Policy, 5 AM.
INDIAN L. REV. 139, 151-54 (1977) (decribing common
elements in termination plans). In 1970, however, President
Nixon called on Congress to “renounce” and “repudiate”
termination, referring to this chapter of federal Indian policy as
“morally and legally unacceptable.” See MESSAGE FROM THE
P RESIDENT OF THE U NITED S TATES T RANSMITTING
RECOMMENDATIONS FOR INDIAN POLICY, H.R. DOC. NO. 91-
363, at 3 (1970).
In March 1954, under pressure from the Department of the
Interior, the Ute Indian Tribe voted to “terminate” from the tribe
what it referred to as its “mixed-blood” members, and to divide
the assets of the tribe between the “mixed-blood” and “full-
blood” Utes. Am. Compl. ¶¶ 46-47. As later defined by statute,
5
“full-blood” Utes are “member[s] of the tribe who possess[]
one-half degree of Ute Indian blood and a total of Indian blood
in excess of one-half.” 25 U.S.C. § 677a(b). “Mixed-blood”
Utes—members of the tribe who do not meet these criteria, id.
§ 677a(c)—were predominantly members of the Uinta Band.
The complaint alleges that the tribe’s vote suffered from
significant procedural irregularities, including that it was never
ratified by the Uinta Band.
Nonetheless, in response to the tribe’s vote, Congress
passed the Ute Partition and Termination Act (UPA), 25 U.S.C.
§ 677 et seq., which provided for the “partition and distribution
of the assets of the Ute Indian Tribe . . . between the mixed-
blood and full-blood members thereof; [and] for the termination
of Federal supervision over the trust, and restricted property, of
the mixed-blood members of said tribe . . . .” Id. § 677. The
UPA directed the tribe “to prepare and submit to the Secretary
a proposed roll of the full-blood members of the tribe, and a
proposed roll of the mixed-blood members . . . . [but i]f the tribe
fails to submit such proposed rolls within the time specified in
this [Act], the Secretary shall prepare such proposed rolls for the
tribe.” Id.. § 677g. Final rolls published on April 5, 1956,
identified 490 members of the Ute Indian Tribe as “mixed-
bloods.” See Mixed-Blood Members and Full-Blood Members
of Ute Indian Tribe of Uintah and Ouray Reservation, Utah, 21
Fed. Reg. 2208 (Apr. 5, 1956). After publication of these rolls,
the statute required the Tribal Business Committee, on behalf of
the “full-blood” Utes, and an “authorized representative[]” of
the “mixed-blood” members to divide “the assets of the tribe
that are then susceptible to equitable and practicable
distribution.” 25 U.S.C. § 677i. Upon completion of the
partition process, the statute instructs the Secretary to
“immediately transfer to [each “mixed-blood” Ute] unrestricted
control of all other property held in trust for such mixed-blood
member by the United States,” and terminate “Federal
6
supervision of such member and his property.” Id. § 677o. On
August 24, 1961, the Secretary published a notice terminating
the 490 “mixed-blood” Utes’ status as federally recognized
Indians. See Termination of Federal Supervision over the
Affairs of the Individual Mixed-Blood Members, 26 Fed. Reg.
8042 (Aug. 26, 1961).
Appellants Oranna Bumgarner Felter and her fellow
plaintiffs are either among the 490 members whose status as
federally recognized Indians was terminated in 1961 or are
descended from those individuals. In a complaint initially filed
on November 4, 2002, and later amended, Felter alleges that the
Interior Department improperly implemented the UPA, and
thereby unlawfully deprived her of her status as a federally
recognized Indian, her land rights, and her share of the thirty-
two million dollar judgment. Claiming that the U.S. government
never properly terminated its trust relationship with her, Felter
asserts that “defendants were and are obligated to safeguard the
trust status of the lands and Indian rights and status of the
individual ‘mixed-blood’ members [of the] Uinta Band.” Am.
Compl. ¶ 103 (emphasis added). Thus, Felter alleges that
Interior breached its fiduciary duty during the partition process,
as well as that its failure to rectify that violation constitutes a
continuing breach of its fiduciary duty. In the complaint’s
eighth count, Felter further alleges that Interior “failed to
account for” and “grossly mismanaged” her share of the thirty-
two million dollar judgment. Id. ¶ 110.
The district court granted the government’s motion to
dismiss the complaint on the ground that Felter’s claims are
time-barred under 28 U.S.C. § 2401(a), which states that “every
civil action commenced against the United States shall be barred
unless the complaint is filed within six years after the right of
action first accrues.” Felter appeals. We review the district
court’s order granting the motion to dismiss de novo. See, e.g.,
7
Rochon v. Gonzales, 438 F.3d 1211, 1216 (D.C. Cir. 2006).
II.
Section 2401(a) generally “applies to all civil actions
whether legal, equitable, or mixed.” Kendall v. Army Bd. for
Corr. of Military Records, 996 F.2d 362, 365 (D.C. Cir. 1993).
But see Wilderness Soc’y v. Norton, 434 F.3d 584, 588 (D.C.
Cir. 2006) (“This court has repeatedly refused to hold that
actions seeking relief under 5 U.S.C. § 706(1) to ‘compel
agency action unlawfully withheld or unreasonably delayed’ are
time-barred if initiated more than six years after an agency fails
to meet a statutory deadline.”). Actions usually accrue “when
[they] come[] into existence.” United States v. Lindsay, 346 U.S.
568, 569 (1954). In this case, as the district court found, none
of the acts underlying any of Felter’s claims occurred within the
six years prior to the filing of the complaint in 2002. See
Hopland Band of Pomo Indians v. United States, 855 F.2d 1573,
1578-79 (Fed. Cir. 1988) (holding terminated Indians’ claims
accrued during termination and partition process under an
analogous statute of limitations). In particular, the alleged
misapplication of the UPA and the resulting termination of trust
status and asset distribution occurred in the 1950s and 1960s.
Felter’s effort to recharacterize her claim by asserting that
Interior’s failure to rectify its past illegal termination constitutes
a current breach of trust cannot save her case. Any such claim
accrued in 1961 when Interior repudiated its trust relationship
with Felter and the other “mixed-blood” Utes, regardless of
whether that repudiation conformed to Interior’s statutory and
fiduciary obligations. See Hopland Band, 855 F.2d at 1578-79
(holding statute of limitations on breach of trust claims accrued
at the latest when federal government terminated federal trust
relationship over the band).
The district court also correctly held that neither the
8
continuing violation nor the equitable tolling doctrines provides
a safe harbor for Felter’s claims. In reaching this conclusion,
the district court engaged in an extensive and interesting
analysis of whether the Supreme Court’s decision in Irwin v.
Dep’t of Veterans Affairs, 498 U.S. 89 (1990), undermined this
court’s precedent holding section 2401(a) to be jurisdictional,
and thus not susceptible to such judicial exceptions. See Felter
v. Norton, 412 F. Supp. 2d 118, 122-24 (D.D.C. 2006); see also
Harris v. FAA, 353 F.3d 1006, 1013 n.7 (D.C. Cir. 2004) (noting
tension between Irwin’s holding that the “same rebuttable
presumption of equitable tolling applicable to suits against
private defendants should also apply to suits against the United
States,” 498 U.S. at 95-96, and this court’s precedent that
“[u]nlike an ordinary statute of limitations, § 2401(a) is a
jurisdictional condition attached to the government’s waiver of
sovereign immunity,” Spannaus v. DOJ, 824 F.2d 52, 55 (D.C.
Cir. 1987)). We need not resolve this issue, for Felter’s claims
fail even if these doctrines apply to section 2401(a).
We begin with the continuing violation argument. Even
assuming that doctrine, which typically pertains to employment
discrimination claims, applies to this case, Felter’s complaint
alleges no acts committed by the defendants within the statute
of limitations that could constitute a continuing violation.
Although Felter and her co-plaintiffs do assert that their
termination and the loss of their lands and other trust assets, all
of which happened in the 1950s and 1960s, continues to have
lasting effects on the lives of all “mixed-blood” Utes, she asserts
no new acts committed by Interior since that time. As we have
held, “[a] lingering effect of an unlawful act is not itself an
unlawful act.” Guerra v. Cuomo, 176 F.3d 547, 551 (D.C. Cir.
1999) (quoting Dasgupta v. Univ. of Wis. Bd. of Regents, 121
F.3d 1138, 1140 (7th Cir. 1997)).
Felter also fails to allege sufficient facts to support equitable
9
tolling. To benefit from such tolling, she must demonstrate “(1)
that [she] has been pursuing [her] rights diligently, and (2) that
some extraordinary circumstance stood in [her] way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). Although Felter argues
that the “extraordinary circumstance” element has been met by
Interior’s alleged “fail[ure] or refus[al] to give the Uinta Band
mixed-bloods accurate and adequate information,” Appellants’
Br. at 19, she asserted neither in her brief nor at oral argument
that she diligently pursued her claim over the last forty-plus
years.
III.
Although at this point we would normally affirm the district
court’s section 2401(a) dismissal of the complaint, Felter argues
that a recently-enacted statute preserves her claims.
Specifically, approximately one month after Felter filed her
response to the government’s motion to dismiss, Congress
enacted the Department of the Interior and Related Agencies
Appropriations Act, 2004, Pub. L. No. 108-108, 117 Stat. 1241
(2003) (hereinafter P.L. 108-108), which in relevant part
declares:
[N]otwithstanding any other provision of law,
the statute of limitations shall not commence to
run on any claim, including any claim in
litigation pending on the date of the enactment
of this Act, concerning losses to or
mismanagement of trust funds, until the affected
tribe or individual Indian has been furnished
with an accounting of such funds from which
the beneficiary can determine whether there has
been a loss.
117 Stat. at 1263.
10
The government argues that P.L. 108-108 does not apply to
this case because it covers only claims “concerning the losses to
or mismanagement of trust funds,” whereas “the gravamen of
Felter’s suit” instead concerns “improper termination of
federally recognized Indian status.” Appellees’ Br. at 15.
Felter, however, responds that her complaint includes
allegations that prior to termination Interior breached its
fiduciary duty by conspiring with the “full-blood” Utes and non-
Indians to transfer to these individuals land and other property
that the United States held in trust for plaintiffs as members of
the Uinta Band. See, e.g., Am. Compl. ¶ 64. In the same vein,
Felter notes that the complaint alleges that Interior “grossly
mismanaged” assets held in trust prior to termination. See, e.g.,
Am. Compl. ¶¶ 110-11.
The government also argues that Felter has waived her P.L.
108-108 argument by failing to present it to the district court.
But Felter did argue in the district court that section 2401(a)
does not bar her claim, and she now contends that P.L. 108-108
supports that argument. Although we generally decline to
consider arguments not raised in the district court, see District
of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084 (D.C. Cir.
1984), we have been careful to distinguish between failure to
make an argument and failure to cite relevant legal authority,
particularly where, as here, the interpretation of a statute is at
issue. As the Supreme Court has explained, courts have an
“independent power to identify and apply the proper
construction of governing law.” Kamen v. Kemper Fin. Servs.,
Inc., 500 U.S. 90, 99 (1991). As a result, in United States v.
Rapone, 131 F.3d 188, 196-97 (D.C. Cir. 1997), we held that a
defendant who had repeatedly demanded a jury trial but failed
to cite the relevant statute granting him this right may raise the
overlooked legal authority on appeal. “Ignoring relevant
precedents discovered on appeal,” we explained, “could
‘occasion appellate affirmation of incorrect legal results.’” Id. at
11
197 (quoting Elder v. Holloway, 510 U.S. 510, 515 n.3 (1994)).
Likewise, in Martini v. Fed. Nat’l Mortgage Ass’n, 178 F.3d
1336 (D.C. Cir. 1999), we relied on a provision of a statute that
the parties had failed to cite, explaining that “we have a duty to
conduct an ‘independent examination’ of the statute in
question.” Id. at 1345-46; see also New York v. EPA, 431 F.3d
801, 802 (D.C. Cir. 2005) (Williams, J., concurring) (addressing
similar issue with regard to applicable regulation parties failed
to raise). Here, the government seeks dismissal of Felter’s
action under 28 U.S.C. § 2401(a), but in order to interpret that
statute correctly, it must be determined whether it has been
modified by P.L. 108-108. Because the district court had no
opportunity to consider that question, and because the parties
have not fully briefed the issue here, we remand to the district
court to determine whether P.L. 108-108 applies to any of
Felter’s claims.
So ordered.