United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 12, 2009 Decided June 26, 2009
No. 08-5133
OGLALA SIOUX TRIBE OF THE PINE RIDGE INDIAN
RESERVATION,
APPELLANT
v.
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:01-cv-02679-GK)
Mario Gonzalez argued the cause for appellant. With him
on the briefs was Patricia Marks.
Robert J. Lundman, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief was
Katherine Hazard, Attorney. R. Craig Lawrence, Assistant U.S.
Attorney, entered an appearance.
Before: HENDERSON and TATEL, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
Opinion concurring in part, concurring in the judgment in
part, and dissenting in part filed by Circuit Judge TATEL.
RANDOLPH, Senior Circuit Judge: The Great Sioux
Reservation once encompassed the western half of present-day
South Dakota. This case deals with several federal government
properties located along the Missouri River within the area of
the former Great Sioux Reservation. The Oglala Sioux Tribe
brought this action seeking a declaration that the 1889 Act of
Congress dissolving the Great Sioux Reservation never took
effect. In addition, the Tribe requested an injunction preventing
the United States from transferring title to any land inside the
former Reservation without the Tribe’s permission, and a writ
of mandamus compelling the Army Corps of Engineers to
evaluate the Missouri River properties for inclusion in the
National Register of Historic Places.
I.
In 1866, representatives of the United States met with
leaders of the Sioux tribes at Fort Laramie, in present-day
Wyoming, to negotiate a right of passage for settlers and
military personnel through Sioux territory. Negotiations broke
down, and the Sioux, led by the Oglala chief Red Cloud, fought
a series of battles against the U.S. Army for control of
Wyoming’s Powder River Basin. In 1868, the two sides met
again at Fort Laramie, this time signing a peace treaty
establishing the Great Sioux Reservation. The treaty provided
that the Sioux tribes would enjoy “absolute and undisturbed use
and occupation” of the Reservation and prohibited unauthorized
non-Indians from entering the land. Treaty with the Sioux
Indians, art. 5, Apr. 29, 1868, 15 Stat. 635. The treaty also
3
provided that “[n]o treaty for the cession of any portion or part
of the reservation herein described which may be held in
common shall be of any validity or force as against the said
Indians, unless executed and signed by at least three fourths of
all the adult male Indians, occupying or interested in the same
. . . .” Id. art. 12.
After the discovery of gold in the western portion of the
Great Sioux Reservation in 1874 and more battles between the
U.S. Army and the Sioux (including the Battle of Little Big
Horn), Congress passed a law in 1877 providing for the cession
to the United States of more than 7 million acres of Reservation
land in the Black Hills area of western South Dakota. See Act
of Feb. 28, 1877, 19 Stat. 254; United States v. Sioux Nation of
Indians, 448 U.S. 371, 374–84 (1980). The Act of March 2,
1889, ch. 405, 25 Stat. 888, passed only months before South
Dakota was admitted as a State, purported to dissolve the Great
Sioux Reservation, restoring roughly 9 million acres of land to
the public domain and dividing the remaining territory into six
smaller reservations for the various Sioux tribes. The Act was
to take effect only when consent had been obtained from three-
fourths of all adult male Sioux in accordance with the 1868 Fort
Laramie Treaty, an event to be “made known by proclamation
by the President of the United States, upon satisfactory proof
presented to him . . . and upon failure of such proof and
proclamation this act becomes of no effect and null and void.”
Act of March 2, 1889 § 28. A three-member commission
appointed by the Secretary of the Interior (the “Crook
Commission”) obtained the requisite number of signatures on
quitclaim deeds and submitted a report to President Benjamin
Harrison. In 1890 President Harrison issued a proclamation
declaring the Act to be in full force.
Non-Indian settlers later gained title to much of the former
Great Sioux Reservation land. Thereafter, the Army Corps of
4
Engineers acquired portions of former Reservation land from
Indian and non-Indian owners in order to build dam and
reservoir projects and more than one hundred shoreline
recreational areas along the Missouri River. See Flood Control
Act of 1944, Pub. L. No. 78-534, 58 Stat. 887. The Water
Resources Development Act of August 17, 1999, Pub. L. 106-
53, 113 Stat. 269, directed the Secretary of the Army to transfer
title to or grant perpetual leases for many of these federal
properties to the State of South Dakota, the Cheyenne River
Sioux Tribe, and the Lower Brule Sioux Tribe.
The Oglala Sioux Tribe filed its initial complaint in
December 2001, seeking to enjoin the transfers of these
Missouri River properties. The complaint contained several
claims under the National Historical Preservation Act, 16 U.S.C.
§§ 470–470x-6, and other cultural and environmental resource
protection statutes. In a previous lawsuit, the Crow Creek Sioux
Tribe had filed a complaint making essentially the same claims.
In Crow Creek Sioux Tribe v. Brownlee, 331 F.2d 912, 916–17
(D.C. Cir. 2003), we determined that the resource protection
statutes continued to apply to the Missouri River properties even
after their transfer. Thus, the Crow Creek Tribe had suffered no
injury and lacked Article III standing to challenge the transfers.
Id.
After our decision in Crow Creek, the district court ordered
the Oglala Sioux Tribe to show cause why their case should not
be dismissed for lack of subject matter jurisdiction. The Tribe
amended its complaint, dropping its prior claims and asserting
four new or modified ones. The first three were based on the
assertion that the Tribe had an interest in the Missouri River
properties because those properties are part of the Great Sioux
Reservation, an interest allegedly never diminished or altered by
5
any act of Congress.1 Specifically, the Tribe alleged that the
1889 Act dissolving much of the Reservation never went into
effect because the Crook Commission failed to obtain valid
signatures from three-fourths of the adult male Sioux
population. The Tribe’s last claim sought mandamus relief
requiring the Army Corps of Engineers to evaluate, inventory,
and include in the National Register of Historic Places all Native
American cultural items and historic areas within the Missouri
River properties. Pet’r Br. at 22. The district court dismissed
the complaint, ruling that the Tribe lacked standing to bring its
first three claims and that mandamus relief could not be granted
on its fourth claim. The court determined that, regardless of the
fairness or propriety of the ratification, the 1889 Act had taken
effect and abrogated any rights held by the Tribe based on the
1868 Fort Laramie Treaty. Accordingly, the Tribe did not have
a legally protected interest in the lands at issue. The court also
ruled that mandamus relief was inappropriate because the Corps
had no plainly prescribed duty to evaluate federal properties in
the manner requested by the Tribe.
1
In the Tribe’s first claim for relief, it sought a declaratory
judgment that the Great Sioux Reservation has never been diminished
by any Act of Congress. In its second claim for relief, it sought a
declaratory judgment to the effect that the transfers and leases of
federal property were without force and effect and an injunction
against further transfers. In its third claim for relief, it sought a
declaratory judgment that the Army was required to consult with and
reasonably accommodate the Tribe before taking any action regarding
transfer or management of the properties and mandamus relief
compelling such consultation and accommodation. See Pet’r Br. at
21–22.
6
II.
Congress has expressly deprived courts of jurisdiction over
the subject matter of the Tribe’s first three claims.2 Each of
these claims rests on the contention that the United States did
not validly implement the 1889 Act, rendering it a nullity. In
1946, the Indian Claims Commission Act, Pub. L. No. 79-726,
60 Stat. 1049 (1946), imposed a 5-year limitations period on
Indian claims in law and equity then existing and arising under
the Constitution, federal law, and treaties between Indian tribes
and the United States. The Act’s limitations period applies here.
Before 1946, tribes were unable to pursue claims against the
federal government without express congressional authorization.
Otoe & Missouria Tribe of Indians v. United States, 131 F.
Supp. 265, 272 (Ct. Cl. 1955); see Cohen’s Handbook of
Federal Indian Law 443 (2005 ed.). The 1946 Act created the
Indian Claims Commission to adjudicate all claims accruing
before its effective date, August 13, 1946. Congress’s intention
was to “draw[] in all claims of ancient wrongs, respecting
Indians, and to have them adjudicated once and for all.”
Temoak Band of W. Shoshone Indians, Nev. v. United States,
593 F.2d 994, 998 (Ct. Cl. 1979); see United States v. Dann, 470
U.S. 39, 45–46 (1985). Congress deliberately used broad
terminology in the Act in order to permit tribes to bring all
potential historical claims and to thereby prevent them from
returning to Congress to lobby for further redress. Otoe &
Missouria Tribe, 131 F. Supp. at 272; see Indian Claims
Commission Act § 2; Cohen’s Handbook of Federal Indian Law
2
We therefore do not reach the question whether the Tribe has
standing to sue. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 92, 97 n.2 (1998); Block v. Cmty. Nutrition Inst., 467 U.S. 340,
353 n.4 (1984); Gladstone, Realtors v. Village of Bellwood, 441 U.S.
91, 101 (1979); Sierra Club v. Morton, 405 U.S. 727, 732 (1972).
7
445 (2005 ed.) (citing H.R. Rep. No. 79-1466, 79th Cong., 1st
Sess. 10 (1946)). To balance this permissiveness and to ensure
finality, the Act established a 5-year limitation on all claims
existing before 1946; any claim not presented within the 5-year
period may not be submitted to any court or administrative
agency. Indian Claims Commission Act § 12; see Pueblo of
Santo Domingo v. United States, 16 Cl. Ct. 139, 142 (1988);
Minn. Chippewa Tribe v. United States (Minn. Chippewa Tribe),
11 Cl. Ct. 534, 536 (1987).
It is well established that the Indian Claims Commission
Act bars claims involving allotments or other property, claims
involving title, claims to equitable relief, claims for damages,
and related constitutional and procedural claims that accrued
before 1946 and were not brought by August 13, 1951. See
Oglala Sioux Tribe of Pine Ridge Indian Reservation v. United
States, 650 F.2d 140, 141–42 (8th Cir. 1981); Navajo Tribe of
Indians v. New Mexico, 809 F.2d 1455, 1463–64 (10th Cir.
1987); Minn. Chippewa Tribe Red Lake Band v. United States
(Red Lake Band), 768 F.2d 338, 341–42 (Fed. Cir. 1985); Minn.
Chippewa Tribe, 11 Cl. Ct. at 536; Snoqualmie Tribe of Indians
v. United States, 372 F.2d 951, 959 (Ct. Cl. 1967); W. Shoshone
Nat’l Council v. United States, 279 Fed. Appx. 980, 988 (Fed.
Cir. 2008); Catawba Indian Tribe of S.C. v. United States, 24 Cl.
Ct. 24, 29–30 (1991); Pueblo of Santo Domingo, 16 Cl. Ct. at
141–42; Hannahville Indian Cmty. v. United States, 4 Cl. Ct.
445, 461 (1983); Six Nations Confederacy v. Andrus, 610 F.2d
996, 998 (D.C. Cir. 1979). A tribe cannot avoid the Indian
Claims Commission Act through “artful pleading.” Cf. Block v.
N.D. ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 285
(1983) (citing Brown v. GSA, 425 U.S. 820, 833 (1976)); United
States v. Mottaz, 476 U.S. 834, 847–48 (1986). It cannot obtain
review of a historical land claim otherwise barred by the Act by
challenging present-day actions involving the land. Catawba
Indian Tribe, 24 Cl. Ct. at 29–30. Nor can it circumvent the
8
statutory limitation by styling its grievances as claims for
equitable relief against federal officers in their individual
capacities, see Pet’r Reply Br. at 19. If the Tribe’s essential
claim is time-barred, reaching these “officer suits” would mean
that the Tribe could litigate claims arising before 1946, in direct
defiance of Congress’s intent in passing the Act. Cf. Block, 461
U.S. at 284–85; Mottaz, 476 U.S. at 846–47.
The Oglala Sioux Tribe’s claims fall under § 2 of the Indian
Claims Commission Act, most directly under provision (3),
which encompasses “claims which would result if the treaties,
contracts, and agreements between the claimant and the United
States were revised on the ground of fraud, duress,
unconscionable consideration, mutual or unilateral mistake,
whether of law or fact, or any other ground cognizable by a
court of equity.”3 The Tribe’s first three claims would require
the court to decide whether to rescind the Sioux Tribe’s
agreements with the United States approving the 1889 Act’s
diminishment of the Great Sioux Reservation, to declare that Act
null and void, and to treat the area as if the 1868 Treaty had not
been modified.4 The Tribe surely knew that such an action
3
The Tribe’s claims also arise under the laws and treaties of
the United States, see Indian Claims Commission Act § 2(1), and are
“based upon [a lack of] fair and honorable dealings,” id. § 2(5).
4
Judge Tatel construes the third claim as asserting that the
government owes the Tribe a permanent fiduciary duty of consultation
before taking any significant action on any land the Tribe has ever
occupied. This is a novel theory, having no support in federal Indian
law, and it is a theory the Tribe itself never mentions in its briefs in
this court. The Tribe’s argument was instead that it retained an
unbroken “aboriginal interest” in its ancestral lands due to the alleged
nullity of the 1889 Act. See, e.g., Appellant Br. at 46–47 (“[The 1889
Act] did not, in clear and plain language, either terminate the Great
Sioux Reservation or diminish its borders. Consequently, the Tribe
9
arose before 1946. Cf. Cheyenne Arapaho Tribes of Okla. v.
United States, 528 F.3d 592 (D.C. Cir. 2009); Warren v. United
States, 234 F.3d 1331, 1335 (D.C. Cir. 2000). Not only did the
1889 Act purport to divest the Sioux tribes of title to millions of
acres of land, but it explicitly returned the land to the public
domain and divested it of its reservation status. Act of March 2,
1889, ch. 405, § 21; see, e.g., DeCoteau v. Dist. Co. Ct. for
Tenth Judicial Dist., 420 U.S. 425, 446 (1975). A court cannot,
120 years later, adjudicate the validity of the quitclaim deeds
and agreements between the Sioux tribes and the United States
without violating both the letter and the intent of the Indian
Claims Commission Act. As the Eighth Circuit stated in
rejecting an analogous claim by the Oglala Sioux concerning a
different portion of the former Great Sioux Reservation,
“Congress has deprived the district court of subject matter
jurisdiction by expressly providing an exclusive remedy” and
thereby barring “any other form of relief.” Oglala Sioux Tribe,
650 F.2d at 142–43; see also Six Nations Confederacy, 610 F.2d
at 998.
The Tribe answers that the Indian Claims Commission Act
does not bar suits to determine a reservation’s boundaries. This
is generally true, but the Tribe puts the matter much too broadly.
The reservation boundary cases do not run afoul of the Indian
Claims Commission Act because the courts were being called
upon to interpret federal legislation and executive orders, not to
set these sources aside or to treat them as void on the basis of
centuries-old flaws in the ratification process. In the words of
still retains and may assert a valid aboriginal interest in the
recreational and other lands at issue in this case.”). Thus, the claim
the Tribe does make – as distinguished from the one Judge Tatel offers
– depends upon our resolution of a dispute arising in 1890. As such,
it is barred by the Indian Claims Commission Act.
10
the Act, the cases do not involve “claims which would result if
the treaties, contracts, and agreements between the claimant and
the United States were revised on the ground of fraud, duress,
unconscionable consideration, mutual or unilateral mistake.”5
But that is precisely what the Tribe’s first three claims do
involve.
III.
As to the Tribe’s fourth claim, the Army Corps of Engineers
does not contest the Tribe’s Article III standing to request relief
in the nature of mandamus. The question is whether such relief
can be granted under the Mandamus Act, 28 U.S.C. § 1361. The
Tribe alleged that the Corps owed it a duty under the National
Historical Preservation Act to “locate, inventory and nominate
for inclusion in the National Register all Native American
cultural items and other historic properties within the recreation
areas and other lands” in the former Great Sioux Reservation.
Pet’r Br. at 22.
Mandamus is a “drastic” remedy available only in
“extraordinary situations.” Kerr v. U.S. Dist. Court for N. Dist.
5
See Indian Claims Commission Act § 2(3). None of the
Supreme Court’s Indian reservation cases addresses any dispute
between a tribe and the United States, whether over the validity of
agreements or otherwise. Rather the cases involve jurisdictional
disputes between a tribe and a state government, disputes the Court
resolves by interpreting federal laws. See, e.g., South Dakota v.
Yankton Sioux Tribe, 522 U.S. 329 (1998); Hagen v. Utah, 510 U.S.
399 (1994); Solem v. Bartlett, 465 U.S. 463 (1984); Rosebud Sioux
Tribe v. Kneip, 430 U.S. 584 (1977); DeCoteau, 420 U.S. at 425;
Mattz v. Arnett, 412 U.S. 481 (1973); Seymour v. Superintendent of
Wash. State, 368 U.S. 351 (1962).
11
of Cal., 426 U.S. 394, 401 (1976); In re Cheney, 406 F.3d 723,
729 (D.C. Cir. 2005) (en banc). A plaintiff seeking mandamus
relief has the burden of showing that the defendant owes it a
“clear and compelling” duty, Cheney, 406 F.3d at 729;
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.
271, 289 (1988), a duty “so plainly prescribed as to be free from
doubt and equivalent to a positive command,” Consol. Edison
Co. of N.Y., Inc. v. Ashcroft, 286 F.3d 600, 605 (D.C. Cir. 2002)
(quoting Wilbur v. United States, 281 U.S. 206, 218–19 (1930)).
The National Historical Preservation Act establishes no
clear duty for agencies to evaluate potentially historic sites
within a certain time frame or in a certain manner. Rather it
provides that, before approving any federal project, federal
agencies will “take into account the effect of the undertaking on
any district, site, building, structure, or object that is included in
or eligible for inclusion in the National Register.” 16 U.S.C.
§ 470f. Agencies also “shall establish . . . a preservation
program for the identification, evaluation, and nomination to the
National Register of Historic Places, and protection of historic
properties,” which must ensure “that historic properties under
the jurisdiction or control of the agency, are identified,
evaluated, and nominated to the National Register.” Id. § 470h-
2(a)(2)(A). The Tribe does not allege that the Corps has failed
to establish an historical preservation program. Nor does it
point to any particular statutory duty or command. Instead the
Tribe claims that the Corps has failed to act quickly and
effectively enough to ensure that the historical properties under
its jurisdiction are safe. A court cannot grant mandamus relief
on the basis of general objections to agency policies or
complaints about the timeliness of agency actions. Because the
Tribe did not come close to demonstrating that the Act imposes
a clear and compelling duty on agencies to evaluate all historic
properties under their jurisdiction on any particular timetable,
12
the district court had no choice but to dismiss its mandamus
claim.
Affirmed.
TATEL, Circuit Judge, concurring in part, concurring in
the judgment in part, and dissenting in part: Given the court’s
blanket characterization of the Tribe’s first three claims for
relief, see Maj. Op. at 4–5, 6, a little clarification is in order.
The Tribe’s first claim alleges that the boundaries of the Great
Sioux Reservation remain intact despite the 1890 presidential
proclamation to the contrary, and it seeks a declaration to this
effect. Second Am. Compl. ¶¶ 51–56. Its second claim
alleges that certain transfers of land under Title VI of the
Water Resources Development Act (WRDA), Pub. L. No.
106-53, §§ 601–09, 113 Stat. 269, 385–97 (1999), as
amended by Pub. L. No. 106-541, § 540, 114 Stat. 2572,
2664–71 (2000), violate the Tribe’s 1868 Fort Laramie Treaty
right to consent to any “cession” of land within the Great
Sioux Reservation, see Treaty with the Sioux Indians, art. XII,
Apr. 29, 1868, 15 Stat. 635. Second Am. Compl. ¶¶ 57–62.
The third claim alleges that the WRDA transfers violate the
government’s separate “trust responsibility” to consult with
the Tribe before taking any “significant actions” related to its
aboriginal land. Id. ¶¶ 63–67.
On appeal the Tribe effectively abandons the first of
these as an independent claim for relief. See Appellant’s
Reply Br. 20 (“[T]he Tribe is not seeking to obtain judicial
review of, or otherwise to challenge, the 1890 proclamation
under the APA. [T]he Tribe is seeking . . . the determination
of a question of law that must necessarily be determined in
order to adjudicate its Second Claim for Relief.”); see also id.
at 12 (arguing that the Tribe has standing to sue only for “any
and all recently inflicted wrongs and injuries”); id. at 16.
Given that, we needn’t address the claim at all.
As to the Tribe’s second claim, the 1889 Act, the 1890
proclamation, and the resulting alienation of lands within the
Great Sioux Reservation are no doubt historical facts. See
Maj. Op. at 8–9. But unlike the case the court cites for the
2
proposition that the Tribe “cannot obtain review of a
historical land claim otherwise barred by the [Indian Claims
Commission] Act by challenging present-day actions
involving the land,” id. at 7, the second claim focuses on the
unlawfulness of the current WRDA transfers, not on the
government’s continuing failure to remedy a historical wrong.
Cf. Catawba Indian Tribe of S.C. v. United States, 24 Cl. Ct.
24, 29–30 (1991) (post-1946 claims barred where they allege
only government’s ongoing failure to remedy an 1840 cession
of reservation land). Rather than rely on the at best
questionable effect of the Indian Claims Commission Act, I
would affirm the second claim’s dismissal for a more basic
reason—that the Tribe lacks standing to pursue it. The Tribe
insists that the 1868 Fort Laramie Treaty entitles it to approve
the WRDA transfers and claims that the government has
deprived it of this right by transferring the lands unilaterally.
But this claim is so transparently “frivolous” that we needn’t
assume its merit for purposes of evaluating standing. See La.
Energy & Power Auth. v. FERC, 141 F.3d 364, 368 & n.6
(D.C. Cir. 1998) (claim’s merits are assumed when evaluating
standing unless “entirely frivolous”); see also Info. Handling
Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024,
1030 (D.C. Cir. 2003) (only “non-frivolous contention[s]
regarding the meaning of a statute must be taken as correct for
purposes of standing”). The WRDA itself makes abundantly
clear that these transfers have no effect on existing reservation
boundaries. See Pub. L. No. 106-53, § 607(a)(4), 113 Stat.
269, 395 (“Nothing in this title diminishes or affects . . . any
external boundary of an Indian reservation of an Indian
Tribe.”). Thus, to the extent the lands at issue are reservation
lands, they will remain so even after transfer. As a result, no
WRDA transfer, unilateral or otherwise, even implicates—let
alone harms—the treaty right to approve “cessions” of
reservation land.
3
As to the Tribe’s third claim, the court sweeps it out with
the first two, describing it as “based on the assertion” that
these lands are still “part of the Great Sioux Reservation”
despite the 1889 Act and the 1890 proclamation to the
contrary. Maj. Op. at 4–5. And because the Indian Claims
Commission could have adjudicated the effect of the 1890
proclamation on the reservation boundaries in 1946, the court
concludes, the claim amounts to nothing more than a
“historical land claim” that the Tribe may not litigate now, id.
at 7. I disagree.
In reality the third claim rests not on the contention that
the lands are within the Great Sioux Reservation—indeed, the
claim concerns many areas that never were, see Second Am.
Compl. ¶ 40 (alleging that 33 of the 51 lands at issue are
outside the Great Sioux Reservation)—but rather on the
assertion that the lands are “within Oglala aboriginal
territory,” id. See Appellant’s Opening Br. at 45 (arguing that
the Tribe has “aboriginal interests in the lands set aside by
[the Fort Laramie Treaty of 1851] for [its] occupancy and
use,” only “a portion of which . . . eventually became the
Great Sioux Reservation”). This, the Tribe quite plainly
argues, imposes on the government a “trust responsibility” to
consult with the Tribe before “taking any significant actions”
as to the lands. Second Am. Compl. ¶¶ 63–67; Appellant’s
Opening Br. 45–48; see also id. at 46 (quoting the district
court’s characterization of the third claim as asserting that the
government “owe[s] the Tribe a trust responsibility based
upon [its] aboriginal interest in the land at issue”). And
because the majority of the lands at issue in the third claim
were never part of the Great Sioux Reservation and thus were
entirely unaffected by the 1889 Act and the 1890
proclamation, the claim clearly asserts a legal interest
stemming from the Tribe’s aboriginal interests in the lands,
4
rather than the “alleged nullity of the 1889 Act,” Maj. Op. at 8
n.4.
Although the origins of such a duty (if such a duty exists)
would certainly predate 1946, the alleged breach of the duty
began in 2002 when the WRDA transfers began. Thus,
because this claim could not possibly have existed in 1946—
over half a century before the government began executing
the WRDA transfers without consulting the Tribe—the Indian
Claims Commission Act imposes no bar on its adjudication
today.
Of course this conclusion raises the question of the
Tribe’s standing to bring this claim, which the district court
rejected and my colleagues have no occasion to address. See
Maj. Op. at 5, 6 n.2. The district court ruled that because the
Tribe possesses no “legally protected interest” in the land, it
failed to allege any injury-in-fact. See Oglala Sioux Tribe v.
U.S. Army Corps of Eng’rs, 537 F. Supp. 2d 161, 169–72
(D.D.C. 2008). But that reasoning improperly “decid[ed] the
merits under the guise of determining the plaintiff’s
standing,” Info. Handling Servs., 338 F.3d at 1030. Unlike
the Tribe’s second claim, and given the hornbook principle
that the “federal government has a trust or special relationship
with Indian tribes,” 1-5 COHEN’S HANDBOOK OF FEDERAL
INDIAN LAW § 5.04[4][a], this claim is hardly so frivolous as
to justify dispensing with the normal practice of assuming its
merit for now. See Littlewolf v. Lujan, 877 F.2d 1058, 1063
(D.C. Cir. 1989) (recognizing a general “guardian-ward
relationship” between Indian tribes and the government,
“deriv[ing] from the historical status of Indian tribes as
‘domestic dependent nations,’ and the correspondingly
pervasive federal control over Indians as embodied in treaties
and statutes” (quoting Cherokee Nation v. Georgia, 30 U.S. 1,
17 (1831))). To be sure, in light of the decades of private and
5
government ownership of the Tribe’s aboriginal territory, as
well as the legacy of the Tribe’s treaties with the United
States, a Rule 12(b)(6) motion may get the better of this claim
too. But at this stage of the litigation, the only question
properly before us is whether the challenged conduct injures
the Tribe’s claimed (and non-frivolous) legal interest in a
direct, concrete, and particularized way that a court order
would redress. See City of Waukesha v. EPA, 320 F.3d 228,
233–35 (D.C. Cir. 2003).
Thus assuming the third claim’s legal merit, I have no
doubt the Tribe has standing to pursue it. The government’s
failure to consult the Tribe before proceeding with the WRDA
transfers deprived the Tribe of its alleged procedural right to
be consulted, and such procedural injuries are redressable
where, as here, “there is some possibility that the requested
relief will prompt the injury-causing party to reconsider the
decision that allegedly harmed the litigant,” Massachusetts v.
EPA, 549 U.S. 497, 518 (2007). I would therefore reverse
the dismissal of the third claim and remand to the district
court for consideration of the merits.