Petition for Writ of Certiorari — Winnemucca Indian Colony, Petitioner v. United States

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI

TABLE OF CONTENTS

Appendix A - Order of the United States Court of

Appeals for the Federal Circuit

Denying Petition for Panel Rehearing

and Rehearing En Banc

(January 8, 2026) ................................. 1a

Appendix B - Opinion of the United States Court

of Appeals for the Federal Circuit

(October 16, 2025) ................................ 3a

Appendix C - Opinion and Order of the United

States Court of Federal Claims

(August 25, 2023) ............................... 29a

Appendix D - First Amended Complaint, United

States Court of Federal Claims

(February 1, 2022).............................. 92a

1a

APPENDIX A

NOTE: This order is non precedential.

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

WINNEMUCCA INDIAN COLONY,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

2024-1108

Appeal from the United States Court of Federal

Claims in No. 1:20-cv-01618-KCD, Judge Kathryn

C. Davis

ON PETITION FOR PANEL REHEARING

AND REHEARING EN BANC

Before MOORE, Chief Judge, LOURIE, DYK, PROST,

REYNA, TARANTO, CHEN, HUGHES, STOLL,

CUNNINGHAM, and STARK, Circuit Judges. 1

PER CURIAM.

1 Circuit Judge Newman did not participate.

2a

ORDER

Winnemucca Indian Colony filed a combined

petition for panel rehearing and rehearing en banc.

The petition was referred to the panel that heard

the appeal, and thereafter the petition was referred

to the circuit judges who are in regular active

service.

Upon consideration thereof,

IT IS ORDERED THAT:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

January 8, 2026

Date

For the Court

/s/ Jarrett B. Perlow

Clerk of Court

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

WINNEMUCCA INDIAN COLONY,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

2024-1108

Appeal from the United States Court of Federal

Claims in No. 1:20-cv-01618-KCD, Judge Kathryn

C. Davis.

Decided: October 16, 2025

NORBERTO J. CISNEROS, Maddox & Cisneros, LLP,

Las Vegas, NV, argued for plaintiff-appellant. Also

represented by BARBARA MCDONALD; TREVA J.

HEARNE, Reno Law Group, Reno, NV.

BENJAMIN W. RICHMOND, Environment and Natural

Resources Division, United States Department of

Justice, Boston, MA, argued for defendant-appellee.

Also represented by AMBER BETH BLAHA, TODD KIM.

Before LOURIE, DYK, and CUNNINGHAM, Circuit

Judges.

4a

DYK, Circuit Judge.

The Winnemucca Indian Colony (“Colony”)

brought suit against the United States in the Court

of Federal Claims (“Claims Court”) asserting claims

based on alleged statutory violations and breaches of

trust duties relating to tribal land and water rights.

The Claims Court dismissed for lack of jurisdiction.

Winnemucca Indian Colony v. United States, 167

Fed. Cl. 396, 401 (2023) (“Decision”). The Claims

Court determined that some claims were barred

because they failed to identify a money-mandating

source of law, some were time-barred by the statute

of limitations, some were barred by 28 U.S.C. § 1500

due to an earlier filed action in district court, and

some otherwise re- quested equitable relief outside of

the Claims Court’s juris- diction. We affirm.

BACKGROUND

I. Factual Background

The Colony is a federally recognized Indian Tribe

located in northern Nevada. In 1917, President

Woodrow Wilson set aside 320 acres near

Winnemucca, Nevada for certain Shoshone Indians

living in the area, and in 1928, Congress set aside

another 20 acres. Those lands are held in trust for

the Colony. The Bureau of Indian Affairs (“BIA”) has

authority to act on behalf of the United States with

respect to certain trust responsibilities to the

Colony. Members of the Colony elect a Council to

represent the Colony’s interests in its interactions

with the BIA. Colony membership is limited to

persons who are at least one- quarter Paiute or

5a

Shoshone by blood quantum, are de- scended from a

person listed in a 1916 tribal census, and have not

taken money or land as a result of membership in

another tribe.

On February 22, 2000, then-Chairman of the

Council Glenn Wasson was stabbed to death. The

surviving Council members split into two factions:

the “Wasson group” and the “Bills/Ayer group.” Both

factions claimed they were the proper tribal

government and entitled to control of the Colony’s

assets. The Wasson group claimed the leader of the

Bills/Ayer group, William Bills, did not qualify for

tribal membership because of his lineage and could

not serve on the Council. The factions litigated the

leadership dispute in tribal courts. In 2002, a

specially appointed panel of appellate tribal court

judges ruled in favor of the Wasson group.

For the following decade, the BIA refused to

recognize either faction as the Colony’s government,

despite repeated requests to do so. At one point, the

Interior Board of Indian Appeals, which hears

appeals of BIA decisions, ordered the BIA to

recognize a government. The BIA still refused to

recognize a government.

II. The Nevada Action

Subsequently, in August 2011, the Wasson group

filed suit in the U.S. District Court for the District of

Nevada, Winnemucca Indian Colony v. United

States, No. 3:11-cv- 622 (“the Nevada action”),

seeking injunctive and declaratory relief recognizing

6a

the Wasson group as the rightful representatives of

the Colony.

In the Nevada action, the Wasson group alleged

that the BIA irreparably harmed the Colony by

failing to recognize the Wasson group’s leader as the

rightful leader of the Council and by arbitrarily

recognizing William Bills as part of the Council. The

Colony requested a “preliminary and permanent

injunction against the BIA from appointing as the

government of the Colony any person who does not

meet” the council membership requirements, App’x

62, 1 and sought a declaratory judgment that a

decision failing to recognize the Wasson group as the

government of the Colony was error.

The allegations in the Nevada action were not

limited to the tribal leadership dispute. The Colony

also alleged unauthorized occupation of its land,

including: that the Colony, including its rightful

members, “ha[d] been effectively excluded from its

own lands by the BIA”; that the BIA failed to require

other persons to leave the 20-acre parcel “even

though none of those persons ha[d] authority to be

on the [Colony’s] lands”; and that “[t]he lands of the

. . . Colony continue[d] to be occupied by non[]members of [the Colony], all allowed and supported

by the BIA.” App’x 54 ¶¶ 25–27. The Colony sought

a declaratory judgment that:

The failure of the BIA . . . [in] allowing any

non[-]members to occupy a possessory

1 Citations to “App’x” refer to the appendix filed by the Colony at

Dkt. No. 13.

7a

interest in the lands of the Winnemucca

Indian Colony to the exclusion of the

Winnemucca Indian Colony members and

government without proper federal approval

and consent, violates the Non Intercourse Act,

[25 U.S.C. § 177,] is an abuse of discretion, and

is a breach of the trust responsibility owed by

the United States of America to a federally

recognized Tribe[.]

App’x 63.

The Bills/Ayers group intervened in the Nevada

action, arguing that they should be recognized as the

legitimate Council of the Colony and that they had a

right to live and conduct business on Colony lands.

Ayer Grp.’s Mot. to Intervene at 2–3, Winnemucca

Indian Colony v. United States, No. 3:11-cv-622,

Dkt. No. 18 (D. Nev. Sept. 15, 2011). Following

various rulings against the BIA, in 2012, the district

court ordered the BIA to “recognize Thomas

Wasson[, then the leader of the Wasson group,] as

the representative of the Council until the

conclusion of [the Nevada] action” and ordered that

Mr. Wasson institute a process for determining

membership. S. App’x 431–32. 2 In October 2014, the

Colony elected Council members. The district court

ordered the BIA to recognize the election results,

which favored the Wasson group. S. App’x 440. The

BIA did so on December 13, 2014. The Bills/Ayer

group challenged the election results in tribal courts,

which dismissed the action for lack of jurisdiction.

2 Citations to “S. App’x” refer to the supplemental appendix filed

by the government with its response brief at Dkt. No. 18.

8a

On October 1, 2018, the district court “extend[ed]

comity” to the tribal court rulings. Winnemucca

Indian Colony v. United States, No. 3:11-cv-622,

2018 WL 4714755, at *1 (D. Nev. Oct. 1, 2018). The

Bills/Ayer group then appealed to the Ninth Circuit.

The United States did not participate in the appeal.

On June 15, 2020, the Ninth Circuit held that the

Nevada district court lacked subject matter

jurisdiction, vacated the district court’s orders, and

remanded with instructions to dismiss. Winnemucca

Indian Colony v. United States ex rel. Dep’t of the

Interior, 819 F. App’x 480, 483 (9th Cir. 2020). The

Ninth Circuit issued the mandate on December 23,

2020. Following the vacatur of the district court’s

orders, the BIA later “continue[d] to recognize the

results of [the Colony’s elections]”—which have

favored the Wasson group—“unless and until a

tribal remedy require[d] [it] to change course.” App’x

234 (letter of the Acting Regional Director of the BIA

executed Jan. 11, 2022). The Nevada suit did not

resolve any of the trespass claims.

III. The Claims Court Action

On November 18, 2020, before the Ninth Circuit

issued the mandate in the Nevada action, the Colony

filed suit in the present case (“the Claims Court

action”). The case comes to us on facts that have

been alleged but not adjudicated. “At this stage in

the proceedings, we accept the [Colony’s] well

pleaded factual allegations as true.” Bd. Of

Supervisors of Issaquena Cnty. v. United States, 84

F.4th 1359, 1362 (Fed. Cir. 2023) (quoting A & D

9a

Auto Sales, Inc. v. United States, 748 F.3d 1142, 1147

(Fed. Cir. 2014)). In the operative complaint, the

Colony included a history of the leadership dispute,

including the various tribal court actions and the

Nevada action. The Colony enumerated eleven

claims for relief, six of which (Counts One, Two,

Five, Six, and Eight) are at issue in this appeal. 3

Counts One and Two alleged breaches of duties

relating to various unauthorized encroachments on

tribal land relating to at least one road (“Highland

Road”), an electrical substation, and power lines.

Count Three alleged a “[b]reach of [t]rust,” App’x 96,

relating to the Colony’s water rights due to a nearby

development’s diversion of a stream and its removal

of water “from wells from which water was able to

reach the Colony’s lands,” App’x 97 ¶ 168. Count

Five alleged breaches of trust and violations of the

Indian Non-Intercourse Act, 25 U.S.C. § 177. With

respect to these Counts, the Colony alleged that the

government failed to police the 320-acre parcel of

land to prevent unauthorized entries and

improperly conveyed interests in the land to others.

Count Six alleged other breaches of fiduciary duties.

The Colony alleged that the government failed to

survey or protect from encroachments the 20-acre

portion of the Colony’s lands. The Colony alleged

that “more than one structure” was placed on the

land by a nearby subdivision, including “a garage,

shed, part of a trailer park, road, and driveway.”

App’x 100 ¶ 196. In Count Eight, the Colony sought

equitable relief, demanding documents and an

3 The Colony has not appealed the dismissals of Counts Four,

Seven, Nine, Ten, and Eleven.

10a

accounting.

The government moved to dismiss. The Claims

Court dismissed all of the claims, relying on various

overlapping theories. First, the Claims Court

determined that Count Three and part of Count Six 4

failed to state a claim upon which relief can be

granted because those claims did not identify

violations of a money-mandating source of law as

required to bring a suit against the United States for

damages under the Tucker Act, 28 U.S.C. § 1491,

and the Indian Tucker Act, 28 U.S.C. § 1505. Second,

the Claims Court found that Counts One, Two, 5

Three, Five, and Six were time-barred by the statute

of limitations, 28 U.S.C. § 2501. Third, the Claims

Court determined it lacked jurisdiction over all of

the Counts at issue on appeal under 28 U.S.C. §

1500, because the claims were substantially the

same as the claims in the then-pending Nevada

action. See United States v. Tohono O’Odham

Nation, 563 U.S. 307, 311 (2011) (explaining that

section 1500 bars the Claims Court from having

jurisdiction over a claim “if the plaintiff has another

The Claims Court “conclude[d] that Count Six should be

dismissed in part for failure to state a claim upon which relief

can be granted to the extent the claim rests on allegations other

than those related to physical encroachments onto Colony

lands.” Decision at 414.

5 Count Two asserts a claim based on “a road along-side the lands

of the Winnemucca Indian Colony,” but does not explicitly name

the road. App’x 95 ¶ 158. The Claims Court’s statute-oflimitations determination as to Count Two applies to “Highland

Road,” a road named elsewhere in the operative complaint.

Decision at 415 n.10; see App’x 94–95 ¶ 152. There is no

contention on appeal that the road identified in Count Two is not

Highland Road.

4

11a

suit for or in respect to that claim pending against

the United States or its agents”). Fourth, the Claims

Court determined that Count Eight’s request for

equitable relief was outside of the court’s

jurisdiction, because it depended on jurisdiction over

the other Counts.

The Claims Court entered judgment on August

28, 2023. The Colony appeals. We have jurisdiction

under 28 U.S.C. § 1295(a)(3).

DISCUSSION

We review de novo the Claims Court’s dismissal

of a complaint for lack of jurisdiction. Fletcher v.

United States, 26 F.4th 1314, 1321 (Fed. Cir. 2022).

The plaintiff bears the burden of establishing

jurisdiction. Id. In deciding a motion to dismiss for

lack of subject matter jurisdiction, the court accepts

as true all uncontroverted factual allegations in the

complaint, construing them in the light most favorable to the plaintiff. Id.

The Colony challenges each of the Claims Court’s

reasons for dismissing the Counts at issue on appeal.

We start with the Claims Court’s dismissal for lack of

a money-mandating fiduciary duty, then turn to the

time bar, then the dismissal pursuant to section

1500, and finally the issue of equitable relief.

I. Money Mandate

The Claims Court dismissed Count Three and

part of Count Six for failing to identify violations of

12a

money-mandating fiduciary duties. We do not

disturb the Claims Court’s dismissal of part of Count

Six because the Colony did not challenge that

portion of the Claims Court’s decision in its opening

brief. 6 We affirm the Claims Court’s dismissal of

Count Three.

While the United States has a “‘general trust

relationship [with] the Indian people,’” for the

Claims Court to have jurisdiction over a claim for

breach of trust or breach of fiduciary duty, a plaintiff

“must identify a substantive source of law that

establishes specific fiduciary or other duties.” United

States v. Navajo Nation, 537 U.S. 488, 506 (2003)

(“Navajo I”) (quoting United States v. Mitchell, 463

U.S. 206, 225 (1983)). The “substantive source of

law” must be one that “‘can fairly be interpreted as

mandating compensation for damages sustained as a

result of a breach of [specific fiduciary or other]

duties,’” and, to establish jurisdiction, the plaintiff

must allege that the “[g]overnment has failed

faithfully to perform those duties.” Id. (quoting

Mitchell, 463 U.S. at 219).

6 The Claims Court dismissed portions of Count Six, including

the Colony’s contentions “regarding surveying, recognition of a

tribal government, and the smoke-shop operation,” for failure to

fit within the scope of a money-mandating source of law.

Decision at 414. In its opening brief, the Colony only challenged

the Claims Court’s “finding that a money mandate did not

support Plaintiff-Appellant’s third claim,” Appellant’s Br. 8

(emphasis added), and did not challenge the dismissal of this

portion of Count Six for failure to identify a money-mandating

source of law. Arguments not raised by an appellant in its

opening brief on appeal are forfeited. McIntosh v. Dep’t of Def.,

53 F.4th 630, 641 (Fed. Cir. 2022).

13a

In Count Three, titled “Breach of Trust – Water,”

the Colony alleged that the government allowed a

third-party development company “to divert a

stream and remove water from wells from which

water was able to reach the Colony’s lands” and hold

that water in upstream wells and holding tanks,

such that “there is no available water or water rights

located on the 320 acres” of the Colony’s land. App’x

96–97. On appeal, the Colony argues dismissal of

Count Three was improper because the Winters

doctrine and 25 C.F.R. § 152.22 establish the

required fiduciary duty and money mandate. We

disagree.

Under the Winters doctrine, the “Federal

Government’s reservation of land for an Indian tribe

. . . implicitly reserves the right to use needed water

from various sources.” Arizona v. Navajo Nation, 599

U.S. 555, 561 (2023) (citing Winters v. United States,

207 U.S. 564, 576–77 (1908)). The Colony appears to

argue that the government must take affirmative

actions on the Colony’s behalf to protect its Winters

water rights from third-party actions taking place

outside of the Colony’s land. But the Winters doctrine

is a common law doctrine that does not, on its own,

create a trust obligation. The Supreme Court

addressed this issue in Arizona v. Navajo Nation,

599 U.S. 555 (2023). There, the Navajo Nation filed

suit seeking to compel the United States

government to take affirmative steps to secure

needed water for the tribe. 599 U.S. at 558–59. The

Court held that the 1868 treaty establishing the

Navajo Reservation reserved necessary water to

14a

accomplish the purpose of the Reservation but did

not require the government to take affirmative steps

to secure water for the tribe. Id. at 566. The Court

held it would not “‘apply common-law trust

principles’ to infer duties not found in the text of a

treaty, statute, or regulation.” Id. (quoting United

States v. Jicarilla Apache Nation, 564 U.S. 162, 178

(2011)); see also id. at 564 n.1. Thus, “[t]o maintain

[a breach-of-trust] claim here, the [Colony] must

establish, among other things, that the text of a

treaty, statute, or regulation imposed certain duties

on the United States.” Id. at 563–64.

The Colony primarily points to 25 C.F.R. § 152.22

as providing the rights-creating duty found

necessary in Navajo I, but that regulation does not

mention water rights or establish any governmental

duty relevant to the diversion of tribal water. The

regulation states that “land owned by an Indian

tribe may only be conveyed where specific statutory

authority exists and then only with the approval of

the Secretary,” unless Congress provides otherwise.

25 C.F.R. § 152.22(b). Such language does not

establish a money-mandating duty relevant to

Count Three. The Colony has not identified any

other “treaty, statute, or regulation,” Arizona, 599

U.S. at 563–64, that establishes an obligation for the

United States to stop third-party actions relating to

water rights.

We addressed a similar situation in Ute Indian

Tribe of the Uintah & Ouray Indian Reservation v.

United States, 99 F.4th 1353 (Fed. Cir. 2024). There,

the Tribe alleged that the government had “duties in

15a

trust to secure new water for the Tribe, including by

constructing new water storage infrastructure.” Id.

at 1364–65. The Tribe pointed to the Winters

doctrine and federal statutes as imposing those

duties. Id. at 1365–66. We held that the statutes did

not impose trust duties to secure water for the tribe

because the general instruction of one of the statutes

to “otherwise protect the rights and interests of the

Indians” was not specific enough to create trust

duties. Id. at 1366, 1371. Here, too, we see no

obligation for the government to take action with

respect to the alleged diversion of tribal water.

Because the Colony fails to identify the source of

an affirmative duty for the government to intercede,

we affirm the Claims Court’s dismissal of Count

Three for lack of jurisdiction.

II. Statute of Limitations

We next turn to the Claims Court’s dismissal of

Counts One, Two, Five, and the remaining portion of

Six as time-barred under 28 U.S.C. § 2501. The

statute of limitations in section 2501 is jurisdictional

and requires that a claim be filed “within six years

after such claim first accrues.” 28 U.S.C. § 2501;

Chemehuevi Indian Tribe v. United States, 104

F.4th 1314, 1321 (Fed. Cir. 2024). The Colony filed

suit on November 18, 2020, so for its claims to be

timely, they must have accrued on or after

November 18, 2014 (the “critical date”). For the

purposes of section 2501, a cause of action against

the government accrues “when all the events which

fix the government’s alleged liability have occurred

16a

and the plaintiff was or should have been aware of

their existence.” Hopland Band of Pomo Indians v.

United States, 855 F.2d 1573, 1577 (Fed. Cir.

1988).

As further detailed below, Counts One, Two,

Five, and the portion of Six at issue on appeal

alleged various physical encroachments on the

Colony’s land, trespasses and continued use of those

encroachments, and that the government breached

its trust duties to the Colony by failing to act to

prevent those encroachments and trespasses. Count

One alleged that the BIA allowed the construction of

Highland Road across Colony land “without the

approval of the Colony and without compensation to

the Colony” and “without obtaining proper approvals

or consent for the right-of-way from the Tribe,” and

that the government has continued to “allow[] the

City of Winnemucca to continue to use and

maintain” the road. App’x 94–95 ¶¶ 152–54. The

Colony also alleged that “the City of Winnemucca

ap- proved a subdivision for ingress and egress from

a back parking lot over Colony lands without any

approvals, con- sent or compensation to the Colony.”

App’x 95 ¶ 154. Count Two alleged that the

government allowed an energy company to

“construct an electrical substation and place

overhead power lines upon Colony land” and “grade

a road alongside the lands of the . . . Colony without

authorization or notice to the Colony which road . . .

caused erosion and disruption to the lands of the

Colony,” and that the government allowed the

energy company to “continue to use the power lines

. . . without authorization . . . .” App’x 95–96 ¶¶

17a

158–59. Count Five alleged breaches of trust and

violations of the Indian Non-Intercourse Act related

to the encroachments—namely, that the Colony

“ha[d] not consented to the conveyance of any

property interest in the Colony lands”; that the

government failed to “protect[] . . . the lands from

encroachment” and failed to “properly police[] the

lands”; and that, as a result, the Colony was entitled

to damages for the “failure to receive funds for the

rights of way being utilized” for the encroachments

detailed in Counts One and Two (in addition to other

damages). App’x 99–100 ¶¶ 188–91. The portion of

Count Six at issue on appeal alleged breaches of

fiduciary duties—namely, that the government

failed to protect the 20-acre parcel from

encroachments including “a garage, shed, part of a

trailer park, road, and driveway”; that the Colony

was entitled to damages for “loss of energy and use”

resulting from those encroachments; and that the

government “fail[ed] to police and protect the lands

from encroachment and trespass.” App’x 100–101 ¶¶

196–99.

The Colony argues its claims were timely

because (1) the claims did not accrue until the

United States repudiated its trust relationship with

the Colony, which occurred in 2015 at earliest; (2)

the claims did not accrue until the United States

provides an accounting; (3) the claims did not accrue

until the tribe was recognized by the BIA on

December 13, 2014; and (4) the continuing claims

doctrine applies.

The

Colony’s

first

three

arguments

are

18a

unpersuasive. First, the government was not

required to provide a formal statement repudiating

the trust for the Colony’s claims to accrue in this

case. As we explained in San Carlos Apache Tribe v.

United States, an explicit repudiation is not required for a claim of breach of fiduciary duty to

accrue where the circumstances are “objectively

sufficient to notify the Tribe of the alleged breach.”

639 F.3d 1346, 1355 (Fed. Cir. 2011). That is the case

here. The Colony fails to explain why the physical

presence of the encroachments would not be

“objectively sufficient to notify” the Colony of the

alleged breaches. Second, the Colony has not

identified a common law requirement that a party

be provided with an accounting before its claim

accrues

in

situations

involving

physical

encroachments, such as those alleged by the Colony.

The Colony points to Shoshone Indian Tribe of the

Wind River Reservation v. United States, 364 F.3d

1339 (Fed. Cir. 2004) (“Shoshone I”), for the principle

that “the statute of limitations [does] not commence

to run against the beneficiaries until a final

accounting has occurred that establishes the deficit

of the trust.” Appellant’s Br. 16 (quoting Shoshone I,

364 F.3d at 1348). But Shoshone I involved claims of

mismanagement of tribal trust funds, where a

beneficiary would not be aware that a breach of

fiduciary duty had occurred until an accounting had

been provided. See Shoshone I, 364 F.3d at 1342,

1344. As we explained in San Carlos Apache Tribe,

that principle does not apply where, as here, a final

accounting is unnecessary to put the Colony on

notice of the accrual of its claim. 639 F.3d at 1355.

19a

Third, the timing of the recognition of certain

tribal leadership does not change the limitations

period here. The Colony primarily points to Samish

Indian Nation v. United States, 419 F.3d 1355 (Fed.

Cir. 2005) to support its position. There, we held that

the Samish’s claims did not accrue until they

received a ruling recognizing the existence of the

tribe. Id. at 1369. But here, the parties do not

dispute that the Colony has been recognized for the

entirety of the limitations period—it is only the

Colony’s leadership that has been in dispute. In this

case, there is no question about the official

recognition of the Colony as an existing tribe, and

the Colony’s leadership dispute does not affect the

accrual of its claims. 7 We now turn to the Colony’s

fourth argument, regarding the continuing claims

doctrine. The continuing claims doctrine allows

“later arising claims even if the statute of limitations

has lapsed for earlier events.” Tamerlane, Ltd. v.

United States, 550 F.3d 1135, 1145 (Fed. Cir. 2008)

(citation omitted). It applies where a plaintiff’s claim

is “inherently susceptible to being broken down into

a series of independent and distinct events or

wrongs, each having its own associated damages.”

7 The Claims Court acknowledged that the Colony’s argument

could, at best, “be construed as a claim that the lack of a BIArecognized council created a ‘legal disability’ for the Colony that

prevented it from filing an action, in which case § 2501 would

entitle it to additional time to bring suit.” Decision at 417; see 28

U.S.C. § 2501 (“A petition on the claim of a person under legal

disability . . . at the time the claim accrues may be filed within

three years after the disability ceases.”). The Colony does not

raise that argument on appeal. Oral Arg. at 11:02–11:07 (“Our

theories have not gone under legal disability [in the appeal].”)

20a

Brown Park Ests.-Fairfield Dev. Co. v. United States,

127 F.3d 1449, 1456 (Fed. Cir. 1997). “The

continuing claims doctrine has been applied when

the government owes a continuing duty to the

plaintiffs. In such cases, each time the government

breaches that duty, a new cause of action arises.”

Boling v. United States, 220 F.3d 1365, 1373 (Fed.

Cir. 2000). The doctrine does not apply to single

events that have continuing negative effects. Brown

Park, 127 F.3d at 1456.

In order to avoid the statute of limitations, the

Colony must establish that its claims accrued on or

after November 18, 2014, i.e., within six years of the

filing of the complaint on November 18, 2020. As

described earlier, Counts One, Two, Five, and the

remaining portion of Six allege various physical

encroachments on the tribe’s land and the

government’s failure to act to prevent those

encroachments. The physical encroachments

include:

•

“a two-lane, partially paved road called

High-land Road,” App’x 94–95 ¶ 152;

•

ingress and egress easements granted to

a neighboring subdivision;

•

an electrical substation;

•

overhead power lines; and

•

several structures, including “a garage,

shed, part of a trailer park, road, and

driveway,” allegedly “placed on the

Colony’s land by a subdivision located

adjacent to the [20-acre plot of the

Colony’s land],” App’x 100 ¶ 196.

21a

The Claims Court found that the first four of

these encroachments—the Highland Road, the

ingress/egress for the neighboring subdivision, the

electrical substation and the overhead power lines—

were already constructed as of 2013, i.e., before the

critical date. The Colony does not challenge that

factual finding on appeal. The Claims Court also

determined that the Colony had not met its burden

to demonstrate that the allegations regarding the

structures on the 20-acre plot occurred within the

limitations period. The court’s conclusion was based

in part on satellite images from 2013, “which

reveal[ed] the existence of a trailer park, road,

driveway, sheds, and other structures” on the plot.

Decision at 420. On appeal, the Colony does not

dispute that the structures identified in the 2013

satellite photos were the same structures it

referenced in Count Six of its complaint, see App’x

100 ¶ 196, nor does it dispute that the structures

existed as of 2013. Accordingly, to the extent that the

Colony’s claims are based on the original

encroachment of the structures on the Colony’s land,

we see no error in the Claims Court’s conclusion that

those claims are barred by the statute of limitations.

The Colony’s allegations also, however, raise

more difficult questions as to the continued use and

maintenance of the physical encroachments. 8 The

8 In this connection, the Colony asserts that the government has

a trust duty to eject trespassers or prevent trespass on tribal

land. The Claims Court did not answer this question. The court

explained that “[t]he Indian Long-Term Leasing Act[, 25 U.S.C.

§ 415,] requires the Government to approve leases of Indian

22a

Colony argues that its claims are not limited to

physical encroachments and that “individual

instances of trespass have occurred . . . within

. . . the limitations period.” Appellant’s Br. 23. In its

complaint, the Colony alleged that the government

“fail[ed] to police and protect [the Colony’s] lands

from encroachment and trespass.” App’x 101 ¶ 199;

see also App’x 84 ¶ 81 (referring to the BIA’s

“continuing failure to secure the lands and resources

of the Colony”); App’x 99– 100 ¶ 190 (alleging that

the government failed to remove trespassers and

“affirmatively conveyed the possessory interest of

the land be held by [sic] trespassers”). The Colony

specifically alleged that the government “allowed

the City of Winnemucca to continue to use and

maintain” Highland Road, App’x 95 ¶ 153, and

“allowed [an energy company] to continue to use the

power lines.” App’x 95–96 ¶ 159.

The Colony argues that the Claims Court erred

in treating all of the trespass allegations as

“continued ill effects” of the physical encroachment

land,” that the Act and its implementing regulations “impose on

the Government money-mandating fiduciary duties in the tribal

leasing context,” and that the Act thus “supplie[d] a moneymandating source of law” to the extent the Colony alleged that

the government “mismanaged the leasing of residential

properties on the Colony’s land.” Decision at 413 (citing Brown

v. United States, 86 F.3d 1554, 1562–63 (Fed. Cir. 1996)). It did

not address whether the government has a continuing duty to

otherwise stop trespasses to tribal land. On appeal, the Colony

argues that the Indian Long-Term Leasing Act and its

implementing regulations establish such a duty, relying

primarily on Nulankeyutmonen Nkihtaqmikon v. Impson, 503

F.3d 18 (1st Cir. 2007) to support its theory. Appellant’s Reply

Br. 16–17. The government disagrees.

23a

allegations. Decision at 418 (citation omitted). The

Colony’s trespass allegations appear to rely on a

continuing trespass theory like the one we addressed

in Shoshone Indian Tribe of Wind River Reservation

v. United States, 672 F.3d 1021 (Fed. Cir. 2012)

(“Shoshone II”). Under that theory, “each trespass is

its own cause of action with its own six-year statute

of limitations.” Id. at 1035. Accordingly, the Colony

argues that “[a]ssuming the Government had a duty

to eject the trespassers, every time the Government

failed to remove the trespassers, a new cause of

action arose.” Appellant’s Br. 24 (quoting Shoshone

II, 672 F.3d at 1035 n.9). The Colony’s theory thus

seems to be that it could still timely bring suit for

any such injuries incurred on or after November 18,

2014 (i.e., within six years of filing suit in the Claims

Court).

While this case raises important and difficult

questions as to the scope of the continuing claims

doctrine, we think it inadvisable to resolve those

questions now, given the sparse record and limited

briefing on the issues. We need not decide whether

the Colony’s theories as to the continuing claims

doctrine are correct, because, as discussed in the

following section, we affirm the dismissal of these

claims on other grounds.

III.

Section 1500

Section 1500 provides that the Claims Court “shall

not have jurisdiction of any claim for or in respect to

which the plaintiff or his assignee has pending in any

other court any suit or process against the United

24a

States.” 28 U.S.C. § 1500. The statute’s aim is to

“save the Government from burdens of redundant

litigation.” Tohono O’Odham, 563 U.S. at 315. “[T]o

determine whether § 1500 applies, a court must

make two inquiries: (1) whether there is an earlierfiled ‘suit or process’ pending in another court, and,

if so, (2) whether the claims asserted in the earlierfiled case are ‘for or in respect to’ the same claim(s)

asserted in the later-filed Court of Federal Claims

action.” Res. Invs., Inc. v. United States, 785 F.3d

660, 664 (Fed. Cir. 2015) (quoting Brandt v. United

States, 710 F.3d 1369, 1374 (Fed. Cir. 2013)).

Since the Nevada action was filed first and

remained pending when this suit was filed, only the

second inquiry is in dispute in this appeal. “Two

suits are for or in respect to the same claim if they

are based on substantially the same operative facts,

regardless of the relief sought in each suit.” Tohono

O’Odham, 563 U.S. at 317. If the section 1500 bar

applies, it attached “when plaintiffs filed their

Claims Court action,” and we must therefore “compare the operative facts asserted at the time the two

com- plaints were filed.” Cent. Pines Land Co. v.

United States, 697 F.3d 1360, 1364 (Fed. Cir. 2012);

see also Keene Corp. v. United States, 508 U.S. 200,

207–09 (1993). The Colony argues that the Nevada

action did not involve substantially the same set of

facts as the Claims Court action and so the Claims

Court erred in determining it lacked jurisdiction

over Counts One, Two, Three, Five, Six, and Eight

pursuant to 28 U.S.C. § 1500. 9

9 The government argues that the Colony forfeited this argument

by failing to raise it to the Claims Court. To the extent the

25a

We need not reach the Colony’s section 1500

arguments as to many of the appealed claims

because, as explained above, we affirm the dismissal

of those claims on other grounds. As to the surviving

claims concerning continuing trespass—the portions

of Counts One, Two, Five, and Six that are alleged to

have accrued on or after November 18, 2014—we

affirm the Claims Court’s dismissal under section

1500. 10

The Supreme Court examined section 1500 in

Tohono O’Odham. There, the tribal nation filed two

complaints, one in district court and one in the

Claims Court, that “alleged almost identical

violations of fiduciary duty, for which it requested

money damages.” 563 U.S. at 310. The Court

determined that “the substantial overlap in

operative

facts”

triggered

section

1500’s

jurisdictional bar. Id. at 318.

Colony failed to properly preserve its argument for appeal, we

exercise our discretion to consider it in the first instance.

Medtronic, Inc. v. Teleflex Innovations S.À.R.L., 68 F.4th 1298,

1305 (Fed. Cir. 2023) (“[E]ven if an issue was not presented

below, there is no absolute bar to considering and deciding the

issue on appeal, as forfeiture is a matter of discretion.”);

Singleton v. Wulff, 428 U.S. 106, 121 (1976) (“The matter of what

questions may be taken up and resolved for the first time on

appeal is one left primarily to the discretion of the courts of

appeals, to be exercised on the facts of individual cases.”).

10 The government acknowledges that section 1500 is applied on

a claim-by-claim basis. Oral Arg. at 15:57–16:04 (admitting that

“[i]f there are counts [in the Claims Court complaint] that don’t

involve overlap [with the Nevada complaint], then the section

1500 bar wouldn’t apply”).

26a

Here, much of the subject matter of the Nevada

com- plaint, such as the BIA’s failure to resolve the

tribal leadership dispute, may be ultimately

irrelevant to the disposition of the surviving claims,

which involve third-party encroachments and

related trespasses. The problem for the Colony is

that the Nevada action included significant and

broad allegations of trespass and occupation. Those

allegations are sufficient to trigger section 1500 and

bar the surviving claims.

In the Nevada complaint, the Colony alleged that

the BIA “allowed and supported” “[t]he lands of the

Colony [to] continue to be occupied by non[]members

of [the Colony],” App’x 54 ¶ 27, and that “[t]here ha[d]

been no federal consent to convey any interest in the

. . . Colony lands including any possessory interest,”

App’x 56 ¶ 36. These allegations are operative facts

in the Claims Court complaint. As described earlier,

the complaint here alleges claims that the

government allowed continuing trespasses on tribal

land. These overlapping facts “are not mere

background facts; they are critical to [the Colony’s]

claims in both actions.” Cent. Pines, 697 F.3d at

1365. We thus conclude that the appealed portions of

Counts One, Two, Five, and Six that are alleged to

have accrued on or after November 18, 2014, are

barred by section 1500, and affirm the Claims

Court’s dismissals under that section.

This ruling does not, of course, bar the Colony

from initiating a new lawsuit covering the subject

matter of the continuing trespass allegations and, in

that suit, attempting to overcome any statute of

27a

limitations bar. Res. Invs., 785 F.3d at 670 (holding

that plaintiff’s claims were barred by section 1500

but noting that plaintiff could have earlier

“dismissed and refiled its Claims Court action”

following the conclusion of the barring district court

action).

IV. Equitable Relief

In Count Eight, the Colony demands equitable

relief in the form of “[d]ocuments and [an

a]ccounting.” App’x 102. The Claims Court

determined that such a request was outside its

jurisdiction. The Claims Court generally does not

have jurisdiction to grant equitable relief, subject to

a few exceptions, such as when the equitable relief is

“ancillary to claims for monetary relief over which

[the Claims Court] has jurisdiction.” Nat’l Air

Traffic Controllers Ass’n v. United States, 160 F.3d

714, 716 (Fed. Cir. 1998). The Colony appears to

acknowledge that Count Eight rises and falls with

the determination of jurisdiction over its substantive

claims. See Appellant’s Reply Br. 24–25. Because

none of the Colony’s claims for monetary relief

remain pending, we affirm the Claims Court’s

dismissal of Count Eight.

CONCLUSION

For the foregoing reasons, we affirm the Claims

Court’s dismissal of the Colony’s complaint.

AFFIRMED

28a

COSTS

No costs.

29a

APPENDIX C

IN THE UNITED STATES

COURT OF FEDERAL CLAIMS

No. 20-1618

WINNEMUCCA INDIAN COLONY,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

Filed: August 25, 2023

OPINION AND ORDER

Plaintiff Winnemucca Indian Colony (“Plaintiff”

or “Colony”) filed this breach of trust action against

the United States, alleging the Bureau of Indian

Affairs (“BIA”) failed to fulfill various trust

responsibilities it owed to the Colony. The events

underpinning Plaintiff’s claims relate to a longrunning internal tribal dispute about the Colony’s

proper membership and leadership. Plaintiff

contends the BIA’s refusal to recognize the rightful

leadership faction of the Colony for nearly two

decades resulted in nonmembers unlawfully

30a

occupying the Colony’s land, diverting its natural

resources, and stifling economic development. It

seeks more than $208 million in monetary damages,

as well as declaratory judgment and an accounting

of the Colony’s trust assets.

Before the Court is the Government’s Motion to

Dismiss the Amended Complaint. The Government

contends Plaintiff’s claims should be dismissed

primarily for lack of subject-matter jurisdiction on

several grounds, including standing, 28 U.S.C. §

1500’s statutory bar on jurisdiction, the statute of

limitations, and Plaintiff’s failure to identify a

money-mandating source of substantive law. For

any claims that survive, the Government seeks

dismissal for failure to state a claim upon which

relief may be granted. Also before the Court is

Plaintiff’s Motion to File a Surreply and Plaintiff’s

Motion to Strike the Government’s recent Notice of

Additional Authority. Because the Court concludes

that it lacks jurisdiction over Plaintiff’s claims, it

must GRANT the Government’s Motion and

DISMISS the Amended Complaint. The Court

further concludes that Plaintiff’s proposed surreply

does not address new arguments and is not

necessary for the Court’s disposition of the

Government’s Motion and, as such, DENIES its

request to file a surreply. The Court likewise

DENIES Plaintiff’s Motion to Strike the

Government’s Notice of Additional Authority and

instead GRANTS Plaintiff’s alternative request to

consider its response.

31a

BACKGROUND

I. Factual History

A. Leadership Dispute

The Colony is a federally recognized Indian Tribe

located in northern Nevada. See Pl.’s Am. Compl. ¶¶

2, 6, ECF No. 22. In 1916, President Woodrow

Wilson set aside by executive order 320 acres of land

for homeless Shoshone Indians that is now held in

trust for the Colony. Id. ¶ 6. In 1928, Congress set

aside and additional 20 acres. Id. ¶ 7. Membership

in the Colony is limited to individuals who are onequarter Paiute or Shoshone by blood quantum, are

descended from a person listed in the 1916 tribal

census, and who have not taken money or land as a

result of membership in another tribe. Id. ¶ 11.

Qualifying members elect a council to represent the

Colony’s interests in government-to-government

relations with the BIA, which manages the trust

responsibility to the Colony on behalf of the United

States. Id. ¶ 5.

The leadership dispute underlying Plaintiff’s

claims dates back more than 20 years. From 1990 to

2000, the BIA recognized a tribal council led by

Winnemucca Council Chair Glen Wasson as the

government of the Colony. Id. ¶¶ 32, 37. On

February 22, 2000, Wasson was stabbed to death on

the doorstep of the Colony’s Administrative

Building. Id. ¶ 39. His murder initiated a power

struggle among the remaining members of the

council to decide who would assume control of the

32a

Colony’s government. Id. ¶¶ 40–50. Two factions

each claimed to be the legitimate tribal council and

asserted control over the Colony’s assets. Id. One

faction—the Wasson group (led by council member

Sharon Wasson)—believed the leader of the

competing group, council member William Bills, did

not qualify for tribal membership because of his

lineage. Id. ¶¶ 38, 50. Later that year, the BIA

withdrew its recognition of the tribal government

while the Colony resolved the leadership dispute. Id.

¶¶ 44, 46. Things came to a head in 2002 after

several years of litigation before the Tribal Court

when a specially appointed appellate panel, the

“Minnesota Panel,” ruled in favor of the Wasson

group. Id. ¶ 63. 1

Following the Minnesota Panel decision, the

Wasson group requested the BIA to recognize it as

the rightful government of the Colony. Id. ¶ 64.

Despite repeated requests, the BIA refused to

recognize the group, citing the outstanding

leadership dispute and remaining tribal remedies.

Id. As of May 17, 2007, all tribal remedies had been

exhausted, and the Inter-Tribal Court of Appeals of

Nevada issued a decision dismissing all further

appeals in recognition of the Minnesota Panel’s

decision as final. Id. ¶ 65. On March 6, 2008, in

connection with an interpleader action filed by the

bank holding the Colony’s account of funds, the

1 The Colony funded the Minnesota Panel because, at the time,

the BIA had not funded the Inter-Tribal Court of Appeals of

Nevada; thus, no government-provided appellate process was

available. ECF No. 22 ¶¶ 59, 62.

33a

United States District Court for the District of

Nevada issued an opinion agreeing that all tribal

remedies had been exhausted and granting the

Minnesota Panel decision comity. Id. ¶ 67. Still, the

BIA refused to recognize a Colony government. Id.

¶¶ 68, 73 recognize a leadership group of the Colony

when a reason existed. Id. In light of allegations of

trespass by nonmembers on the Colony’s land, it

ordered the BIA to recognize a Colony government.

Id. When the BIA did not do so, and instead barred

Colony members from entering the land in May 2011

to rehabilitate an abandoned smoke shop, the

Wasson group sought injunctive and declaratory

relief in the District of Nevada to prohibit the

Government from interfering with the Colony’s

activities on their land and to establish themselves

as the Colony’s duly elected government (“Nevada

Case”). Id. ¶ 83; see Compl., Winnemucca Indian

Colony v. United States ex rel. Dep’t of the Interior,

No. 11-622 (D. Nev. Aug. 29, 2011), ECF No. 1. After

several more years of litigation and various rulings

against the BIA, the BIA (acting pursuant to the

district court’s order) recognized the Wasson group

by letter dated December 13, 2014. ECF No. 22 ¶¶

83–84, 86–87, 89, 96. Another competing Colony

faction, the Ayer group, who had intervened as a

defendant in the Nevada Case, appealed to the

Ninth Circuit Court of Appeals. The Circuit

ultimately vacated all of the district court’s orders

from 2011 to 2018 for lack of subject- matter

jurisdiction. See Winnemucca Indian Colony v.

United States ex. rel. Dep’t of Interior (Winnemucca),

819 F. App’x 480, 483 (9th Cir. 2020). The

Government did not participate in the appeal.

34a

In April 2021, due to the BIA’s need to administer

contracts with the Colony under P.L. 93-638, the

BIA issued an interim tribal government recognition

to the Wasson group. Ex. 1 to Def.’s Mot. for

Enlargement of Time at 9–12, ECF No. 16-1. On

January 11, 2022, the Acting Regional Director of

the Western Regional Office of the BIA issued a final

decision letter on how the Western Regional Office

would

continue

necessary

government-togovernment relations with the Colony, including

continued recognition of the Wasson group for

government-to-government contracting purposes

until “an adjudication of the underlying membership

and election disputes by a tribal forum” requires

otherwise. Ex. 1 to Def.’s Notice of Additional

Authority at 15–16, ECF No. 20-1.

B. Resulting Losses to the Colony

Plaintiff alleges that because of the ongoing

leadership dispute and the BIA’s failure to

permanently recognize a government of the Colony

during the dispute, the BIA failed to fulfill its trust

responsibilities to the Colony and prevented the

Colony from managing and preserving its resources,

leading to disrepair and decay of Colony lands and

buildings. See, e.g., ECF No. 22 ¶¶ 85, 140–46, 177–

78. Plaintiff alleges that during the pendency of the

leadership dispute, the BIA and individuals residing

on Colony land — who Plaintiff claims are

unlawfully trespassing — threatened Colony

members, preventing them from entering and

managing the Colony’s property. Id. ¶¶ 40–41, 76,

35a

78–79, 108, 141, 177, 221. As a result, Plaintiff

alleges the Colony’s lands suffered numerous

encroachments and harms, which the BIA failed to

prevent or remedy. Id. ¶¶ 85, 177–78.

In particular, the BIA continued to maintain

leases for HUD housing on Colony land to

individuals who Plaintiff contends are not members

of the Colony. Id. ¶¶ 29, 41, 79–81, 108, 111, 220.

Plaintiff alleges the BIA never required the

residents to pay rent and never collected any

payments. Id. ¶ 174. It also asserts the BIA never

transitioned possession of Colony homes to

members, and Colony members have been forced to

reside outside of the reservation at the Colony’s

expense. Id. ¶¶ 41, 108, 177–78, 221. According to

Plaintiff, the BIA and the nonmember residents also

have failed to properly maintain the premises,

resulting in open contamination of hazardous waste

on the land. Id. ¶¶ 113, 175.

In addition, the BIA allegedly allowed several

physical encroachments on Colony lands without the

Colony’s consent and without compensation to the

Colony. Id. ¶¶ 132–39. These encroachments include

a road, overhead powerlines, an electrical

substation, and easements granted to a neighboring

subdivision. Id. Plaintiff alleges that the subdivision

also has placed several structures on Colony lands,

including a garage, shed, road, driveway, and part of

a trailer park. Id. ¶ 196. Plaintiff further contends

that the BIA allowed the Offenhauser Development

Company, which designed the subdivision, to divert

a stream off Colony lands without permission and

36a

without any compensation to the Colony. Id. ¶¶ 124–

26. And the BIA has allegedly permitted the

neighboring subdivision to discharge storm sewer

runoff directly onto Colony lands. Id. ¶¶ 127–28.

Plaintiff contends that the BIA has failed to

recapture the water that once naturally flowed

through Colony lands or collect compensation for the

Colony’s water loss. Id. ¶¶ 129-31. Before the

leadership dispute, the Colony operated a successful

smoke shop and maintained an administrative

building, both on Colony land. Id. ¶¶ 140, 144.

Plaintiff alleges that because trespassers and the

Government excluded Colony members from the

land, the smoke shop ceased operations and the

administrative building fell into disrepair. Id. ¶¶

141–42, 146. Plaintiff claims the BIA made no effort

to preserve these structures, nor has it compensated

the Colony for the resulting losses. Id. ¶¶ 143, 149.

II. Procedural History

On November 18, 2020, the Colony filed a

complaint in this Court (“Original Complaint”). See

Pl.’s Compl., ECF No. 1. The Original Complaint

raised ten claims for relief: (1) Violation of 25 U.S.C.

§ 323 et seq.—land use; (2) Violation of 25 U.S.C. §

323 et seq.—land use in relation to energy station;

(3) Breach of Trust—Water; (4) Agency action

unlawfully withheld or unreasonably delayed; (5)

Breach of Trust pursuant to the Indian NonIntercourse Act; (6) Breach of Fiduciary Duty; (7)

Demand for Documents and Accounting; (8)

Declaratory Judgment—Right to royalties for use of

land; (9) Loss of use of lands and rights as Tribal

37a

members by the individual members of the Colony;

and (10) Declaratory Judgment—Right to lands

granted to the other western tribes of BLM and

other government lands pursuant to the repatriation

of Tribal Lands process. Id. at 23–31.

After the Government filed a Motion to Dismiss

under Rules 12(b)(1) and 12(b)(6) of the Rules of the

United States Court of Federal Claims (“RCFC”), the

Colony moved to amend the Original Complaint. See

Mot. to File First Am. Compl., ECF No. 15; Proposed

First Am. Compl., ECF No. 15-1. The Proposed

Amended Complaint eliminated the claim for agency

action unlawfully withheld, added a claim for

violation of 25 U.S.C. § 4101, added a claim alleging

Plaintiff lacks an available remedy at law, corrected

facts about land use, clarified facts about

encroachment, and provided jurisdictional facts in

an attempt to overcome the Government’s first

Motion to Dismiss. See ECF No. 15 at 4. The Court

granted the amendment over the Government’s

opposition, and the Colony filed its Amended

Complaint on February 1, 2022 (“Amended

Complaint”). See Order Granting Mot. to Amend

Pleadings, ECF No. 21; ECF No. 22. On March 18,

2022, the Government filed a second Motion to

Dismiss. See Def.’s Mot. to Dismiss (“MTD”), ECF

No. 23. The Motion is now fully briefed. See Pl.’s

Resp. to MTD, ECF No. 25; Def.’s Reply to MTD,

ECF No. 28. On August 17, 2022, Plaintiff filed a

Motion for Leave to File Surreply, which is also fully

briefed. See Pl.’s Mot. to File Surreply, ECF No. 29;

Def.’s Resp. to Pl.’s Mot. to File Surreply, ECF No.

30; Pl.’s Reply to Mot. to File Surreply, ECF No. 31.

38a

On January 19, 2023, the Court held oral argument.

On July 6, 2023, Plaintiff filed a Notice of

Additional Authority, informing the Court of the

Supreme Court’s decision in Arizona v. Navajo

Nation, 143 S. Ct. 1804 (2023), which it argues is

relevant to the pending Motion to Dismiss. See

Notice of Additional Authority, ECF No. 35. On July

12, 2023, Plaintiff filed a Motion to Strike Notice of

Additional Authority, or, in the Alternative,

Response Thereto. See Mot. to Strike, ECF No. 36.

Plaintiff argues that the Court’s rules do not allow

for such a notice to be filed and, in any event, that

Navajo Nation does not impact its breach of trust

claims. Id. at 1–2.

The Court notes that this is the second lawsuit

filed by the Colony in the Court of Federal Claims.

In 2014, another judge of the court dismissed an

action brought by the Colony seeking monetary

damages from the United States for nearly identical

harms. See Winnemucca Indian Colony v. United

States, No. 13-874, 2014 WL 3107445, at *3 (Fed. Cl.

July 8, 2014). The court granted dismissal for lack of

jurisdiction under 28 U.S.C. § 1500 because of the

concurrent Nevada Case pending at the time. The

court held that the district court case involved

substantially the same operative facts related to the

BIA’s refusal to recognize the Wasson group as the

Colony’s government. Id. at *4 (holding that both

cases involved “factual questions of who, if anyone,

constituted the legitimate Colony leadership;

whether the individuals in question had

authorization from that leadership to enter Colony

39a

lands; and when and under what circumstances the

BIA took (or did not take) action to recognize a

government”).

At the time the instant action was filed, the

Ninth Circuit had issued its decision vacating the

district court’s prior orders in the Nevada Case for

lack of subject-matter jurisdiction. Winnemucca, 819

F. App’x 480 at 483 (opinion issued June 15, 2020).

But the Ninth Circuit did not issue the mandate

effectuating its June 2020 judgment until December

23, 2020, over a month after Plaintiff filed the

Original Complaint in this case. See Mandate,

Winnemucca, No. 18-17121 (9th Cir. Dec. 23, 2020),

ECF No. 65.

LEGAL STANDARDS

I. Motions to Dismiss Pursuant to RCFC

12(b)(1)

Before reaching the merits of a plaintiff’s action,

the Court must as a threshold matter assure itself

that subject-matter jurisdiction exists. RCFC

12(b)(1), (h)(3); see Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94–95 (1998) (affirming that

subject-matter jurisdiction “‘spring[s] from the

nature and limits of the judicial power of the United

States’ and is ‘inflexible and without exception’”

(quoting Mansfield v. Swan, 111 U.S. 379, 382

(1884))). The plaintiff bears the burden of

establishing by the preponderance of evidence the

Court’s jurisdiction over its claim. See Estes Express

Lines v. United States, 739 F.3d 689, 692 (Fed. Cir.

40a

2014).

When deciding whether to dismiss a complaint

pursuant to RCFC 12(b)(1) for lack of subject-matter

jurisdiction, the Court must accept all factual

allegations as true and draw all reasonable

inferences in the claimant’s favor. See Henke v.

United States, 60 F.3d 795, 797 (Fed. Cir. 1995).

However, if a complaint contains challenged factual

allegations, for purposes of ruling on a motion to

dismiss, the court may inquire into facts necessary

to support jurisdiction and may resolve disputed

facts. See Al Johnson Constr. Co. v. United States, 19

Cl. Ct. 732, 733 (1990); see also Indium Corp. of Am.

v. Semi-Alloys, Inc., 781 F.2d 879, 884 (Fed. Cir.

1985) (affirming that a court may consider

“evidentiary matters outside the pleadings” when

assessing a Rule 12(b)(1) dismissal).

II. Motions to Dismiss Pursuant to RCFC

12(b)(6)

The Court must also dismiss an action if it fails

to state a claim for which relief may be granted.

RCFC 12(b)(6). To avoid dismissal under RCFC

12(b)(6), “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). Although a

complaint need not contain detailed factual

allegations to raise a plausible claim, a plaintiff

must provide “more than labels and conclusions, and

a formulaic recitation of the elements of a cause of

41a

action will not do.” Twombly, 550 U.S. at 555; see

Papasan v. Allain, 478 U.S. 265, 286 (1986) (holding

that a court is “not bound to accept as true a legal

conclusion couched as a factual allegation”). In

deciding a motion under RCFC 12(b)(6), the Court

may consider the complaint itself, “the written

instruments attached to it as exhibits, ‘documents

incorporated into the complaint by reference, and

matters of which a court may take judicial notice.’”

Todd Constr., L.P. v. United States, 94 Fed. Cl. 100,

114 (2010) (quoting Tellabs, Inc. v. Makor Issues &

Rts. Ltd., 551 U.S. 308, 322 (2007)), aff’d, 656 F.3d

1306 (Fed. Cir. 2011).

DISCUSSION

The Court lacks jurisdiction over each of

Plaintiff’s claims because they are barred pursuant

to 28 U.S.C. § 1500, fail to identify moneymandating sources of substantive law, are outside

the statute of limitations, and/or seek equitable

relief that is beyond the Court’s statutorily

prescribed jurisdiction. 2

Because the Court has determined that each of Plaintiff’s

claims should be dismissed on jurisdictional grounds, and

because the Government’s standing argument addresses what

amounts to a pleading issue, it is unnecessary to determine

whether Plaintiff has sufficiently pleaded facts showing that this

suit is brought by and through the Colony’s duly elected council.

It is likewise unnecessary to determine whether Count Two

should be dismissed under RCFC 12(b)(6) for failure to state a

claim.

2

42a

I. The Court Lacks Jurisdiction Over All

Claims Except Count Nine Because

Plaintiff Had Another Suit or Process

Pending Against the United States When It

Filed Its Original Complaint.

The Government contends the Court lacks

jurisdiction pursuant to 28 U.S.C. § 1500 over

Counts One through Eight, Ten, and Eleven because

they are substantially the same as the claims in the

Nevada Case, which was pending on appeal before

the Ninth Circuit (“Ninth Circuit Appeal”) at the

time the Colony filed its Original Complaint. ECF

No. 23 at 32. Winnemucca argues that the Court has

jurisdiction because the Government was not a party

to the Ninth Circuit Appeal. ECF No. 25 at 23. The

Court concludes that, although the Government did

not actively participate in the appeal, Plaintiff

nevertheless had a pending suit or process against

the United States at the time it filed its Original

Complaint, and the Court accordingly lacks

jurisdiction over all but one of Plaintiff’s claims.

Section 1500 bars jurisdiction over a claim in the

Court of Federal Claims “if the plaintiff has another

suit for or in respect to that claim pending against

the United States or its agent.” United States v.

Tohono O’Odham Nation, 563 U.S. 307, 311 (2011).

To determine whether § 1500 applies, the Court

must analyze: (1) whether the plaintiff has an

earlier-filed suit “pending” in another court; (2)

whether that suit is pending “against the United

States;” and (3) whether the claims asserted in the

earlier-filed suit share the same operative facts as

43a

the claims asserted in the later-filed suit in the

Court of Federal Claims. 28 U.S.C. § 1500; see

HEALTHeSTATE, LLC v. United States, 146 Fed.

Cl. 681, 686 (2020); see also Brandt v. United States,

710 F.3d 1369, 1374 (Fed. Cir. 2013). Each question

must be evaluated based on the state of things at the

time the action in the Court of Federal Claims was

filed, and the jurisdictional bar continues even if the

earlier-filed action is subsequently resolved. Keene

Corp. v. United States, 508 U.S. 200, 209 (1993);

Prophet v. United States, 106 Fed. Cl. 456, 465

(2012). If the Court answers all questions in the

affirmative, the case must be dismissed.

Winnemucca Indian Colony, 2014 WL 3107445, at

*2.

Plaintiff does not dispute that the Ninth Circuit

Appeal was pending at the time it filed its Original

Complaint because the Ninth Circuit’s mandate had

not yet issued, nor does it dispute that the claims

asserted in that case are substantially the same as

the claims in this case. Indeed, the Colony’s prior,

similar suit brought in this court was dismissed

under § 1500 due to the same concurrent litigation.

See id. at *4. Rather, Plaintiff argues that the Ninth

Circuit Appeal was not pending “against the United

States” because the Government was not

participating in the appeal. ECF No. 25 at 23

(quoting 28 U.S.C. § 1500). The Court must thus

decide whether the United States’ decision not to

join a pending appeal in an earlier-filed case that

otherwise meets § 1500 removes the statute’s

jurisdictional bar. The Court holds that it does not.

44a

Although the parties do not cite any cases

addressing this exact scenario, the ample body of

caselaw interpreting and applying § 1500 undercuts

Plaintiff’s argument. Plaintiff’s argument focuses

narrowly on who was litigating the Ninth Circuit

Appeal rather than the claim subject to the appeal.

A “suit or process,” however, includes both an action

filed in the lower court and any ensuing appeal,

which is “pending” once a notice of appeal is

docketed and remains “pending” at least until the

appeals court issues a mandate effectuating

judgment. Hood v. United States, 659 F. App’x 655,

661 (Fed. Cir. 2016) (citing Brandt, 710 F.3d at

1380); Nycal Offshore Dev. Corp. v. United States,

148 Fed. Cl. 1, 14–15 (2020) (holding that the term

“process,” as used in § 1500, encompasses “the entire

course of legal proceedings” following the filing of a

“suit”); Beberman v. United States, 135 Fed. Cl. 336,

340 (2017), rev’d on other grounds, 755 F. App’x. 973

(Fed. Cir. 2018). And if an appeals court through its

mandate remands a case for further proceedings, the

ongoing “suit or process” remains “pending” until the

lower court resolves the matter. Burman v. United

States, 75 Fed. Cl. 727, 729 (2007). Viewed

collectively, these cases instruct that the finality of

the claim in the earlier-filed suit should be the focus

for determining whether the same claim in the laterfiled suit is barred. Here, the claim against the

Government in the Nevada Case was not

extinguished by the district court’s final judgment

because once the Ayer group filed its notice of appeal

the “suit or process” continued in the Ninth Circuit

Appeal.

45a

Just as in the Nevada Case, the claims at issue

in the Ninth Circuit Appeal were against the United

States. The substance of the Ninth Circuit’s decision

reveals as much. Specifically, the Circuit reviewed

whether the district court had subject-matter

jurisdiction over Plaintiff’s claims against the BIA

pursuant to the Administrative Procedure Act,

answering the question in the negative due to a lack

of final agency action. Winnemucca, 819 F. App’x at

482 (holding that “at the time the complaint was

filed the [BIA] had not reached a final decision on

whether it would recognize any group as the

Colony’s tribal council, or whether any such

recognition was warranted”). Although the

Government was not directly engaged in the appeal,

it was still subject to the judgment of the Ninth

Circuit and faced the potential of continued

proceedings in the district court if the Circuit had

remanded for further proceedings. In short, whether

the Government was directly litigating the Ninth

Circuit Appeal is irrelevant. Because the claims

asserted in the Nevada Case were against the

Government and the same claims were being

challenged in the Ninth Circuit Appeal, the appeal

constituted a “suit or process” pending “against the

United States” under the meaning of § 1500. See

Scott Aviation v. United States, 23 Cl. Ct. 573, 576

(1991) (dismissing complaint under § 1500 where

same claim previously brought in this court was

then-pending on appeal before the Federal Circuit).

This conclusion is reinforced by the purpose of §

1500. The jurisdictional bar now found in § 1500

dates to the Reconstruction Era and was enacted to

46a

address suits brought against the United States by

former residents of the Confederacy to recover for

property seized during the Civil War. Keene, 508

U.S. at 206. Many claimants who struggled to bring

suit in the Court of Claims, which barred the claims

of plaintiffs who aided the rebellion, brought

duplicative suits in other courts. Id. (citing

Schwartz, Section 1500 of the Judicial Code and

Duplicate Suits Against the Government and Its

Agents, 55 Geo. L.J. 573, 574–80 (1967)). Thus,

Congress passed the progenitor of § 1500 “to prohibit

the filing and prosecution of the same claims against

the United States in two courts at the same time.”

Johns-Manville Corp. v. United States, 855 F.2d

1556, 1562 (Fed. Cir. 1988). The purpose of the

jurisdictional bar was to avoid not only the “unfair

burden to the defendant” but also “[t]he possibility

of inconsistent judicial resolution of similar legal

issues[,] . . . unnecessary crowding of this court’s

docket[,] and general administrative chaos.” Id. at

1563 (quoting City of Santa Clara v. United States,

215 Ct. Cl. 890, 893 (1977)). Accordingly, barring

Plaintiff’s claims here properly upholds the purpose

of § 1500.

For these reasons, the Court finds that it lacks

jurisdiction over Counts One through Eight, Ten,

and Eleven pursuant to § 1500.

47a

II. Plaintiff Has Failed to Identify Violations of

Money-Mandating Fiduciary Duties in

Counts Three, Four, Seven, and Part of

Count Six.

In addition to its § 1500 argument, the

Government alleges that Counts Three through

Seven should be dismissed because each of the

counts fails to allege that the Government violated a

money-mandating fiduciary duty. ECF No. 23 at 42.

Accordingly, the Government argues the Court lacks

jurisdiction over those claims. Id. The Court

concludes Plaintiff has sufficiently identified moneymandating statutes granting the Court jurisdiction

over Count Five and part of Count Six. Plaintiff has

not identified, however, money-mandating statutes

supporting Counts Three, Four, Seven, and part of

Count Six.

Plaintiff alleges the Court has subject-matter

jurisdiction over its claims pursuant to the Tucker

Act, 28 U.S.C. § 1491, and Indian Tucker Act, 28

U.S.C. § 1505. These acts provide for a limited

waiver of the Government’s sovereign immunity,

granting the Court jurisdiction over (1) any claim

against the United States founded either upon the

Constitution, or any Act of Congress or any

regulation of an executive department, or upon any

express or implied contract with the United States,”

id. § 1491(a)(1); and (2) any claim against the United

States in favor of a tribe “arising under the

Constitution, laws or treaties of the United States,

or Executive orders of the President, or [that] is one

which otherwise would be cognizable in the Court of

48a

Federal Claims if the claimant were not an Indian

tribe, band or group,” id. § 1505. 3 The acts, however,

are purely jurisdictional and do not create “a

substantive

right

enforceable

against

the

Government by a claim for money damages.” United

States v. White Mountain Apache Tribe, 537 U.S.

465, 472 (2003). To establish jurisdiction, the

plaintiff must identify a substantive source of law,

distinct from the Tucker Act or Indian Tucker Act,

that satisfies a two-part test outlined by the

Supreme Court. United States v. Navajo Nation

(Navajo II), 556 U.S. 287, 290–91 (2009).

Under that test, the tribe first “‘must identify a

substantive source of law that establishes specific

fiduciary or other duties and allege that the

Government has failed faithfully to perform those

duties.’” Id. at 290 (quoting United States v. Navajo

Nation (Navajo I), 537 U.S. 488, 506 (2003)). “[A]

statute or regulation that recites a general trust

relationship between the United States and the

Indian People is not enough to establish any

particular trust duty.” Hopi Tribe v. United States,

782 F.3d 662, 667 (Fed. Cir. 2015). Rather, “the

analysis must train on specific rights-creating or

duty-imposing

statutory

or

regulatory

prescriptions.” Navajo I, 537 U.S. at 506. Next, the

tribe must demonstrate that “the relevant source of

substantive law can fairly be interpreted as

mandating compensation for damages sustained as

3 The last clause of the Indian Tucker Act is meant to incorporate

the “ordinary” Tucker Act. United States v. Navajo Nation

(Navajo II), 556 U.S. 287, 290 (2009).

49a

a result of a breach of the duties [the governing law]

impose[s].” Navajo II, 566 U.S. at 291 (alteration in

original) (internal quotation marks omitted)

(quoting Navajo I, 537 U.S. at 506). A statute is

money-mandating in two circumstances: when (1) “it

can

fairly

be

interpreted

as

mandating

compensation by the Federal Government for . . .

damages sustained,” or (2) “it grants the claimant a

right to recover damages either expressly or by

implication.” Lummi Tribe of the Lummi Rsrv. v.

United States, 870 F.3d 1313, 1317 (Fed. Cir. 2017)

(internal quotation marks and numbering omitted)

(quoting Blueport Co., LLC v. United States, 533

F.3d 1374, 1383 (Fed. Cir. 2008)).

A statute need not explicitly mandate money

damages, and “general trust law [may be] considered

in drawing the inference that Congress intended

damages to remedy a breach of obligation.” White

Mountain Apache Tribe, 537 U.S. at 477. However,

should the statutes or regulations relied upon to

satisfy the question of jurisdiction grant officials

“substantial discretion” in carrying out the statutory

scheme, they generally cannot be interpreted as

mandating compensation. Wolfchild v. United

States, 731 F.3d 1280, 1292 (Fed. Cir. 2013) (internal

quotation marks and citation omitted); Doe v. United

States, 463 F.3d 1314, 1324 (Fed. Cir. 2006) (“A

statute is not money-mandating when it gives the

government complete discretion over the decision

whether or not to pay an individual or group.”

(citation omitted)).

50a

A. Plaintiff Has Not Identified a MoneyMandating Source of Law Underlying

Count Three.

Plaintiff argues that the executive order that

created the Winnemucca reservation (“Executive

Order”) in conjunction with the Winters doctrine

provides the money-mandating source of law

underlying Count Three. ECF No. 25 at 35–36. In

that claim, Plaintiff alleges the Government

wrongfully allowed the Offenhauser Development

Company to divert water from Colony lands in

breach of its fiduciary duty to prevent third-party

interference with the Colony’s reserved waters

rights. ECF No. 22 ¶¶ 164, 168–70; see ECF No. 25

at 37.

In Winters v. United States, the federal

government filed an action to enjoin defendantcorporations from constructing or maintaining dams

or reservoirs on the Milk River in Montana, which

constituted the northern boundary of the Fort

Belknap Indian Reservation, or from otherwise

preventing water of the river from flowing to the

reservation. 207 U.S. 564, 565 (1908). The Supreme

Court held that when the Government set aside the

Fort Belknap Indian Reservation by treaty, it

reserved for the Indians enough water from the Milk

River to support an agrarian lifestyle. Id. at 577.

Accordingly, the Court upheld the lower court’s

order enjoining any diversions of the Milk River

upstream of the reservation that would render the

reservation inarable. Id. at 578 (“The power of the

government to reserve the waters and exempt them

51a

from appropriation under the state laws is not

denied, and could not be.”). Winters thus stands for

the principle that “a reservation of water rights

sufficient to accomplish the purpose of the

reservation is made when the Government reserves

land for a reservation or other federal enclave.”

White Mountain Apache Tribe of Ariz. v. United

States, 11 Cl. Ct. 614, 626 (1987), aff’d, 5 F.3d 1506

(Fed. Cir. 1993).

Plaintiff argues that in Hopi Tribe the Federal

Circuit recognized that the Winters doctrine imposes

fiduciary duties on the Government. ECF No. 25 at

36 (citing Hopi Tribe, 782 F.3d at 669). In that case,

the Hopi Tribe sued the Government for failing to

protect the reservation’s water supply from

contamination by toxic chemicals. Hopi Tribe, 782

F.3d at 665–66. The tribe argued that the

Government breached its fiduciary duty under the

Winters doctrine to preserve the reservation’s water

quality. Id. at 669. The Court held that the Winters

doctrine “gives the United States the power to

exclude others from subsequently diverting waters

that feed the reservation” and that in some

circumstances “it may also give the United States

the power to enjoin others from practices that reduce

the quality of water feeding the reservation.” Id. The

Court held the doctrine did not “give the United

States responsibility for the quality of water within

the reservation, independent of any third-party

diversion or contamination.” Id. According to the

Court, “[a]t most, . . . Congress accepted a fiduciary

duty to exercise [reserve water] rights and exclude

52a

others from diverting or contaminating water that

feeds the reservation.” Id.

While the United States’ duties regarding thirdparty water diversions are central to this case, they

were not in Hopi Tribe and the quoted statement

generally refers to the existence of a duty in a bestcase scenario. Because it was not necessary for the

resolution of the issue in Hopi Tribe, it constitutes

dicta. Lower courts have not interpreted Hopi Tribe

to decide definitively that the Government owes

tribes any specific fiduciary duties with respect to

third-party water diversion, instead analyzing the

text of specific sources of law to determine the

existence of duties related to reserved water rights.

See Ute Indian Tribe of Unitah v. United States, No.

18-359 L, 2021 WL 1602876, at *4–6 (Fed. Cl. Feb.

12, 2021), appeal docketed, No. 21-1880 (Fed. Cir.

Apr. 23, 2021); Crow Creek Sioux Tribe v. United

States, 132 Fed. Cl. 408, 411 (2017), aff’d, 900 F.3d

1350 (Fed. Cir. 2018).

Importantly, after the parties completed briefing

on the Government’s Motion, the Supreme Court

decided Navajo Nation, holding that an 1868 treaty

with the Navajos did not impose upon the federal

government a duty to take affirmative steps to

secure water for the tribe, even if under the Winters

doctrine the treaty reserved the tribe’s water rights.

143 S. Ct. at 1811, 1814. In that case, the Navajos

were not alleging that the Government had

interfered with water access but that it should

assess, plan, and provide for the tribe’s water needs.

Id. at 1810. The Court held that, although the treaty

53a

creating the Navajo reservation imposed several

specific duties on the United States, “the treaty said

nothing about any affirmative duty for the United

States to secure water.” Id. at 1813. Specifically, the

Court found no language in the Navajo treaty that

would establish a “conventional trust relationship

with respect to water.” Id. at 1814 (explaining that

the Court would not “‘apply common-law trust

principles’ to infer duties not found in the text of a

treaty, statute, or regulation”). As “it is not the

Judiciary’s role to update the law,” the Court

concluded its must leave “to Congress and the

President the responsibility to enact appropriations

laws and to otherwise update federal law as they see

fit in light of the competing contemporary needs for

water.” Id. at 1814–15.

Here, the source of law setting aside the Colony’s

land is contained in a single paragraph of an

executive order. The Executive Order states:

It is hereby ordered that the following lands

in Nevada be, and they are hereby reserved

from entry, sale or other disposal and set

aside for the use of two certain bands of

homeless Shoshone Indians now residing

near the towns of Winnemucca and Battle

Mountain, Nevada.

President Woodrow Wilson, Executive Order of June

18, 1917.

Like the Navajo treaty, there is no language in

the Executive Order through which a trust

54a

relationship regarding water could be inferred.

Indeed, the order is completely silent with respect to

water. Just as the Supreme Court found the Navajo

treaty did not impose a duty to take “affirmative

steps” to secure water for the Navajo Tribe, the

Court also concludes the Executive Order does not

impose a duty on the Government to take

“affirmative steps” to prevent diversion of water onto

the Winnemucca reservation. Navajo Nation, 143 S.

Ct. at 1814. That Winters nonetheless recognizes the

Colony’s reserved water rights does not in itself

create a duty for the Government to enforce those

rights against third-party interference. Winters only

recognized the federal government’s power to assert

such rights on behalf of a tribe, not that it has a

specific fiduciary duty to do so. Navajo Nation

instructs that neither the Government’s general

trust relationship with the Colony nor the Executive

Order fill in the gap to create an affirmative duty to

ensure the Colony’s access to water. Indeed, Navajo

Nation rejected the argument that the Government’s

purported control over reserved water rights created

trust duties to the Navajos and indicated that the

Navajos could assert their own interests in water

rights litigation. 4 Navajo Nation, 143 S. Ct. at 1815–

16.

4 As noted above, reserved water rights cases in this court have

employed a similar analytical framework. In Ute Indian Tribe,

a tribe brought a breach of trust claim premised on, among

other things, the Government’s failure to prevent trespass

theft and conversion of the tribe’s reserved water rights. 2021

WL 1602876, at *3 n.3. In Crow Creek Sioux, a tribe brought a

similar claim based on the Government’s diversion of water

from the Missouri River through the construction of several

dams. 132 Fed. Cl. at 409. In each case, the courts looked to the

55a

Plaintiff argues that Navajo Nation is inapposite

because Plaintiff’s claims are not premised on the

treaty with the Navajos analyzed in that case. ECF

No. 26 at 2. Nevertheless, since both the Navajo

treaty and the Executive Order make no mention of

any affirmative duty respecting water, the

analytical framework laid out by the Supreme Court

compels the same conclusion in both cases. Plaintiff

also argues that Navajo Nation is inapplicable since

it did not overrule Winters. But while the Supreme

Court did not overrule the earlier precedent, the

Court here must nevertheless follow the Supreme

Court’s guidance in analyzing cases involving the

Winters doctrine, and that guidance leads the Court

to conclude that neither the Winters doctrine nor the

Executive Order impose the trust responsibilities

Plaintiff asserts here.

Because the Executive Order does not impose a

duty upon the Government to prevent third- party

diversion of water onto Colony lands or otherwise

take affirmative steps to secure water for Colony

lands, it is not a money-mandating source of law

that can support jurisdiction in this case. And

because Plaintiff has not identified an otherwise

language of the sources of law at issue to determine whether

they imposed specific trust obligations with respect to water,

and they found none. Ute Indian Tribe, 2021 WL 1602876, at

*4–6; Crow Creek Sioux, 132 Fed. Cl. at 409, 411 (noting

treaties establishing reservations did not address water rights;

holding general trust language in statute to manage natural

resources, alongside Winters, did not create specific trust

obligations sufficient to invoke jurisdiction under the Indian

Tucker Act).

56a

money-mandating source of law underlying Count

Three, the Court does not have jurisdiction to hear

such claim under the Tucker Act or Indian Tucker

Act.

B. Plaintiff Has Not Identified a MoneyMandating Source of Law Underlying

Count Four.

Plaintiff alleges that the Native American

Housing Assistance and Self-Determination Act

(“NAHASDA”), 25 U.S.C. §§ 4101–4243, provides the

money-mandating source of law underlying Count

Four. ECF No. 25 at 39. In that count, Plaintiff

claims that the Government wrongly conveyed

leaseholds for residential housing on Colony land to

nonmembers without collecting rents, excluded

Colony members from Colony lands, and prevented

the Colony from applying for housing grants. ECF

No. 22 ¶¶ 174–79. As a result, Plaintiff alleges it

suffered over $20,000,000 in damages. Id. ¶ 179.

NAHASDA directs the Government to provide

grants to Indian tribes to carry out affordable

housing activities. 25 U.S.C. § 4111(a). Plaintiff does

not allege that it made an application for grants, and

accordingly does not allege the Government failed to

provide grants owed under a NAHASDA contract.

ECF No. 22 ¶ 179. Rather, it alleges that, without a

recognized tribal government, it lacked the ability to

enter into contracts or receive grants under

NAHASDA and thus is seeking to recover the

amount of funding it should have received. Id. ¶ 176;

ECF No. 25 at 40.

57a

The Federal Circuit has held that the obligation

imposed by NAHASDA to supply tribes with housing

grants is not money-mandating. Lummi Tribe, 870

F.3d at 1319. As the Court explained, “[u]nder

NAHASDA, the Tribes are not entitled to an actual

payment of money damages, in the strictest terms.”

Id. at 1318. Rather, the Court held that the

appropriate remedy for a failure to allocate or

disburse funds under NAHASDA is the award of

“strings-attached NAHASDA grants—including

subsequent supervision and adjustment,” which is a

form of equitable relief. Id.

Plaintiff responds that it “is not seeking

equitable relief in the form of strings-attached

NAHASDA grants

It is seeking money damages

because it never received the funding it was due.”

ECF No. 25 at 40. But the Federal Circuit has

specifically rejected such a distinction. Lummi Tribe

held that any claim for relief under NAHASDA for a

failure to provide housing grants “would necessarily

be styled in the same [equitable] fashion; the statute

does not authorize a free and clear transfer of

money.” 870 F.3d at 1319. Thus, NAHASDA cannot

serve as the money- mandating source of law

underlying Count Four, and the Court therefore

lacks jurisdiction to hear such claim under the

Tucker Act or Indian Tucker Act.

58a

C. Plaintiff Has Identified a MoneyMandating Source of Law Underlying

Count Five.

Plaintiff’s Amended Complaint asserts that the

Indian Non-Intercourse Act, 25 U.S.C. § 177,

provides the money-mandating source of law

underlying Count Five. ECF No. 22 ¶¶ 181–82. In its

Opposition, Plaintiff alleges that the Indian LongTerm Leasing Act, 25 U.S.C. § 415, and its

implementing regulations, 25 C.F.R. §§ 162.005 and

162.023, provides a further basis for jurisdiction.

ECF No. 25 at 41, 45–46. Count Five alleges the

Government wrongfully conveyed a possessory

interest in Colony lands to nonmembers, allowed

various encroachments on Colony lands without the

Colony’s consent, and allowed the diversion of a

stream which prevented water from entering Colony

lands. ECF No. 22 ¶¶ 190–91. The Court concludes

that the Indian Long- Term Leasing Act, but not the

Indian Non-Intercourse Act, is a money-mandating

source of law that may form a jurisdictional basis of

Count Five.

1. Plaintiff Has Not Established That the

Indian Non-Intercourse Act Is a MoneyMandating Source of Law.

The only substantive source of law that Plaintiff

identifies in Count Five of the Amended Complaint

is the Indian Non-Intercourse Act. Id. ¶ 181. The

Non-Intercourse Act states:

59a

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. Every person who, not being

employed under the authority of the United

States, attempts to negotiate such treaty or

convention, directly or indirectly, or to treat

with any such nation or tribe of Indians for

the title or purchase of any lands by them held

or claimed, is liable to a penalty of $1,000. The

agent of any State who may be present at any

treaty held with Indians under the authority

of the United States, in the presence and with

the approbation of the commissioner of the

United States appointed to hold the same,

may, however, propose to, and adjust with,

the Indians the compensation to be made for

their claim to lands within such State, which

shall be extinguished by treaty.

25 U.S.C. § 177.

Plaintiff relies on two decisions by the Court of

Claims that found the Non-Intercourse Act imposes

fiduciary duties on the Government. 5 In Seneca

Nation of Indians v. United States, the Court of

5 The Court of Claims is a predecessor to the Federal Circuit,

and its decisions remain binding on this Court unless

overturned by a higher court or by statute. S. Corp. v. United

States, 690 F.2d 1368, 1370 (Fed. Cir. 1982).

60a

Claims held that “[i]n the light of [the NonIntercourse Act’s] language, contemporaneous

construction, and history, . . . the United States

assumed a special responsibility to protect and

guard against unfair treatment in [transactions for

the disposition of tribal land].” 173 Ct. Cl. 917, 925

(1965). And in United States v. Oneida Nation of

New York, the Court “re-affirm[ed] previous

decisions that held that the Trade and Intercourse

Act establishes a fiduciary relationship between the

Indians and the United States Government.” 477

F.2d 939, 943 (Ct. Cl. 1973). Other cases that are not

binding on this Court have likewise recognized a

fiduciary relationship created by the NonIntercourse Act. See Joint Tribal Council of the

Passamaquoddy Tribe v. Morton, 528 F.2d 370, 379

(1st Cir. 1975) (holding Non-Intercourse Act created

trust relationship between Government and tribes);

Alabama-Coushatta Tribe of Tex. v. United States,

Cong. Reference No. 3-83, 2000 WL 1013532, at *63

(Fed. Cl. June 19, 2000) (same); but see Shinnecock

Indian Nation v. United States, 112 Fed. Cl. 369, 380

(2013) (holding Non-Intercourse Act did not “give

rise to any specific fiduciary duties that are

applicable to the judiciary”), aff’d in part, vacated in

part, remanded, 782 F.3d 1345 (Fed. Cir. 2015).

Seneca and Oneida, however, were decided before

the Supreme Court established the two- part test of

Navajo I and II for determining jurisdiction over an

Indian Tucker Act claim. And both cases addressed

a question of liability under the Non-Intercourse Act

in conjunction with the Indian Claims Commission

Act (“ICCA”).

Seneca, 173 Ct. Cl. at 926

61a

(holding the Non- Intercourse Act could support

recovery of money damages under the ICCA when a

tribe received “unconscionably low consideration”

for the disposition of its land); Oneida, 477 F.2d at

941 (holding the Government “might be liable” for

money damages under the ICCA if the NonIntercourse Act created a fiduciary duty upon the

Government regarding tribal land transactions).

Plaintiff has not invoked the ICCA here, nor

could it, as the act only granted jurisdiction over

claims accruing before August 14, 1946. 25 U.S.C. §

70a. The standard applied in Seneca and Oneida to

determine if the courts had jurisdiction over the

tribes’ claims differs significantly from the standard

this Court must apply. In those cases, the courts’

jurisdiction was premised on subsection 2, clause 5

of the ICCA. 6 Seneca, 173 Ct. Cl. at 926; Oneida, 477

F.2d at 941. Clause 5 applied to “claims based upon

fair and honorable dealings that are not recognized

by any existing rule of law or equity.” 25 U.S.C. §

70a(2)(5). The courts in both cases held that a

“‘special relationship’ [was] established between the

government and the claimant Indians affecting the

controverted subject matter” based on the NonIntercourse Act. Oneida, 477 F.2d at 942 (quoting

Lipan Apache Tribe v. United States, 180 Ct. Cl. 487,

502 (1967)); see Seneca, 173 Ct. Cl. at 925–26.

In Seneca, the court held it also had jurisdiction over the

plaintiff’s claims under clause 3 of subsection 2, 173 Ct. Cl. at

925–26, which applies to certain claims arising from “treaties,

contracts, and agreements between the claimant and the United

States,” 25 U.S.C. § 70a(2)(3). Here, Plaintiff’s claims are not

premised on any agreement between it and the United States.

6

62a

However, that conclusion was not driven by any

particular text of the statute found to create specific

fiduciary or other duties of the Government that are

money-mandating. Rather, the courts cited to a

speech by President George Washington to the

Seneca tribe expounding on the Act. Oneida, 477

F.2d at 941–42 (emphasis omitted) (“The General

Government will never consent to your being

defrauded, but it will protect you in all your just

rights [Y]ou will perceive, by the law of Congress for

regulating trade and intercourse with the Indian

tribes, the fatherly care the United States intend to

take of the Indians.”); see Seneca, 173 Ct. Cl. at 923–

24.

Under the standards applicable to this Court, the

recitation of a “general trust relationship” is

insufficient to establish jurisdiction over a breach of

trust claim. Hopi Tribe, 782 F.3d at 667.

Furthermore, the Colony “must establish, among

other things, that the text of a treaty, statute, or

regulation imposed certain duties on the United

States.” Navajo Nation, 143 S. Ct. at 1813 (emphasis

added). The jurisdictional analyses of Oneida and

Seneca are simply inapplicable to the Court’s

current standards. Plaintiff has pointed to no other

authority that has held the Non- Intercourse Act

imposes specific fiduciary duties on the Government

that are money-mandating and only asserts without

any argument that Seneca and Oneida “would

survive analysis under White Mountain Apache II.”

ECF No. 25 at 44.

63a

With no binding precedent applicable to the

jurisdictional question at hand, the Court concludes

that under the standard laid out in Navajo I, the text

of the Non-Intercourse Act does not impose any

“specific fiduciary or other duties” on the United

States. Navajo I, 537 U.S. at 506. The statute lays

out three requirements that: (1) any conveyance of

tribal land must be made through treaty pursuant

to the Constitution; (2) any private party who

attempts to enter such a treaty is liable for $1,000;

and (3) a state may, with the approval of the United

States, adjust the terms of treaties that convey tribal

land held within its jurisdiction. 25 U.S.C. § 177.

The Act thus grants the Government certain powers

in the facilitation of tribal land conveyances—to

enter treaties, to penalize private individuals who

attempt to acquire tribal land, and to allow

participation by the states—but nothing in the text

places upon the Government a duty to carry out any

specific function.

Because the Indian NonIntercourse Act fails the first prong of the Navajo I

analysis, the Court concludes it is not a moneymandating source of law and cannot support

jurisdiction in this case.

2. The Indian Long-Term Leasing Act Is a

Money-Mandating Statute Granting the

Court Jurisdiction Over Count Five.

The Federal Circuit in Brown v. United States

held that the Indian Long-Term Leasing Act and its

implementing

regulations

impose

on

the

Government money-mandating fiduciary duties in

the tribal leasing context. 86 F.3d 1554, 1563 (Fed.

64a

Cir. 1996). The Government admits as much but

argues that because Plaintiff did not identify the Act

in its Amended Complaint, it cannot raise the

statute for the first time in its opposition brief. 7 ECF

No. 28 at 26–27 (citing Jarvis v. United States, 154

Fed. Cl. 712, 718–19 (2021)).

A plaintiff need not identify explicitly in its

Complaint a money-mandating source of law

underlying its claims so long as “there are facts

pleaded in the complaint from which the court’s

jurisdiction may be inferred.” Gay v. United States,

93 Fed. Cl. 681, 685 & n. 4, 5 (2010) (quoting 5B

CHARLES ALAN WRIGHT & ARTHUR R.

MILLER,

FEDERAL

PRACTICE

AND

PROCEDURE § 1350 (3d ed. 2022)) (allowing claim

to move forward despite failure to identify moneymandating statute creating jurisdiction in complaint

when relevant statute was readily identifiable); see,

e.g., Ward v. United States, 89 Fed. Cl. 463, 475

(2009) (same); Morganroth v. Quigg, 885 F.2d 843,

846 (Fed. Cir. 1989) (holding plaintiff need not refer

in complaint to statute granting court jurisdiction

over claims grounded in patent law when claims

were clearly based on patent law violations).

The Indian Long-Term Leasing Act requires the

Government to approve leases of Indian land,

Brown, 86 F.3d at 1562, and “ensure that the parties

7 In its Reply, the Government associates Plaintiff’s reference

to the Indian Long-Term Leasing Act with the claims under

Count Six, see ECF No. 28 at 26, but Plaintiff discussed the act

under its Count Five argument, see ECF No. 25 at 45.

65a

to a lease of Indian land have given adequate

consideration to the impacts of the lease on, inter

alia, neighboring lands and the environment,”

Nulankeyutmonen Nkihtaqmikon v. Impson, 503

F.3d 18, 29 (1st Cir. 2007). The Act’s protections are

meant to encompass both Indian tribes and their

members. Id. It can thus be inferred from the facts

alleged throughout the Amended Complaint—i.e.,

that the Government gravely mismanaged the

leasing of residential properties on the Colony’s

land, including failing to collect any rent—that the

Indian Long-Term Leasing Act supplies a moneymandating source of law underlying Count Five to

that extent. Indeed, the Federal Circuit has drawn a

connection between the Act and the Non-Intercourse

Act, cited in Count Five, explaining that the former

“must, of course, be understood against the backdrop

created by [the latter], the most general prohibition

on conveyances of interests in Indian land.” Brown,

86 F.3d at 1562.

Because there is a money-mandating source of

law underlying Count Five, the Court concludes it

does not lack jurisdiction over such claim solely

based on the failure to identify that specific moneymandating source of law. 8

As explained in other sections of this opinion, the Court

nonetheless lacks jurisdiction over Count Five for other reasons.

8

66a

D. Plaintiff Has Identified a MoneyMandating Source of Law Supporting

Only Part of Count Six.

Plaintiff identifies 25 U.S.C. § 323, NAHASDA,

and the Indian Non-Intercourse Act as the moneymandating sources of law underlying its breach of

fiduciary duty claim in Count Six. ECF No. 22 ¶ 199;

see ECF No. 25 at 47. In support of its claim, Plaintiff

alleges that the Government failed to survey Colony

lands as requested by the Colony; failed to prevent

encroachments on Colony lands, including a garage,

shed, trailer park, road, and driveway; interfered

with the Colony’s efforts to reopen the smoke shop;

and failed to recognize a tribal council for the

Colony. ECF No. 22 ¶¶ 195–96, 199.

As explained above, Plaintiff has not

demonstrated that NAHASDA and the NonIntercourse Act are money-mandating statutes. The

Government concedes that Plaintiff’s remaining

source of law, 25 U.S.C. § 323, “may create moneymandating fiduciary duties.” ECF No. 28 at 26 n.9;

see Mitchell II, 463 U.S. at 223 (recognizing § 323

and related statutes as money- mandating). It

argues, however, that “Plaintiffs’ passing reference

to 25 U.S.C. [§] 323 in Count Six does not create a

plausible claim for relief.” ECF No. 28 at 26 n.9. It

also argues Plaintiff has not identified a source of

law creating a money-mandating duty to recognize a

tribal government and that no such duty exists. ECF

No. 23 at 47 (quoting Cayuga Indian Nation of N.Y.

v. E. Reg’l Dir., 58 IBIA 171, 179, 2014 WL 264822,

at *6 (Jan. 16, 2014)). Plaintiff does not dispute the

67a

Government’s contention that no statute or

regulation requires the BIA to recognize a tribal

council. Rather, Plaintiff rejects the Government’s

characterization of its allegations, arguing that its

“claim is not about failure to recognize a legitimate

tribal government.” ECF No. 25 at 48.

The Court has jurisdiction over a claim under the

Tucker Act or Indian Tucker Act so long as the

plaintiff has identified a money-mandating source of

law underlying the claim and demonstrated that it

is “within the class of plaintiffs entitled to recover

under the money-mandating source.” Jan’s

Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299, 1307

(Fed. Cir. 2008). Section 323 provides the Secretary

of the Interior the power to grant rights-of-way over

Indian lands, and tribes such as Plaintiff fall under

the class of plaintiffs entitled to relief under the

provision. Therefore, the Court concludes that it is

not deprived of jurisdiction over Count Six based on

a lack of an identified money-mandating source of

law.

Nevertheless, if a “plaintiff’s case does not fit

within the scope of the [money-mandating source of

law,] . . . plaintiff loses on the merits for failing to

state a claim on which relief can be granted.” Id.

(quoting Fisher v. United States, 402 F.3d 1167,

1175–76 (Fed. Cir. 2005)). Plaintiff’s contentions in

Count Six regarding surveying, recognition of a

tribal government, and the smoke-shop operation

are patently unrelated to the Secretary of the

Interior’s power to grant rights-of-way. That the

Government failed to compensate the Colony for

68a

rights-of-way

resulting

in

the

physical

encroachments alleged in Count Six, however, could

plausibly entitle Plaintiff to relief. See Mitchell II,

463 U.S. at 223. The Court thus concludes that

Count Six should be dismissed in part for failure to

state a claim upon which relief can be granted to the

extent the claim rests on allegations other than

those related to physical encroachments onto Colony

lands. 9

E. Plaintiff Has Not Identified a MoneyMandating Source of Law Underlying

Count Seven.

As the Government correctly argues, Plaintiff

has not identified any money-mandating source of

law underlying Count Seven. ECF No. 23 at 47. In

that count, Plaintiff simply alleges that it has “no

other remedy at law or administrative appeal to

recover the value of the loss of their lands and

sovereignty” resulting from the Government’s

numerous alleged breaches of trust and violations of

law. ECF No. 22 ¶ 204. Plaintiff makes no argument

in defense of jurisdiction, which the Court construes

as a concession of the issue. See Winnemucca Indian

Colony, 2014 WL 3107445, at *1 n.3. Since Plaintiff

has admittedly failed to identify a money-mandating

source of law underlying Count Seven, the Court

concludes it lacks jurisdiction to hear such claim.

As explained in other sections of this opinion, the Court

nonetheless lacks jurisdiction over Count Six for other reasons.

9

69a

III. Count One, Part of Count Two, and Counts

Three through Six Are Barred by the

Statute of Limitations.

The Government contends Count One, part of

Count Two, 10 and Counts Three through Six should

be dismissed as untimely under the court’s statute

of limitations, as each of these claims accrued more

than six years before Plaintiff filed the Original

Complaint. ECF No. 23 at 36. The Government

attached a series of maps, deeds, satellite photos,

and other documents to its Motion in support of its

contention. ECF No. 23, Exs. 15–25. Through these

exhibits, as well as the Colony’s complaint in the

2013 Court of Federal Claims case (“2013

Complaint”), the Government aims to show that

various encroachments and other events on the

Colony’s lands, which serve as the basis for claims in

the Amended Complaint, existed over six years

before Plaintiff filed suit and that Plaintiff was

aware or should have been aware of them at that

time. ECF No. 23 at 38–41.

Plaintiff does not contest the validity of any

evidence introduced by the Government but argues

that the statute of limitations nevertheless does not

bar its claims for several reasons—i.e., because (1)

the Government has not repudiated its trust

relationship with the Colony, (2) the Government

As part of Count Two, Plaintiff alleges that a road was

constructed alongside Colony lands in 2018. ECF No. 22 ¶ 158.

The Government concedes that if Plaintiff is referring to a road

different from Highland Road, then this allegation falls within

the limitations period. ECF No. 23 at 49.

10

70a

has not provided the Colony with an accounting, (3)

the Wasson group was not recognized as the Colony’s

leadership until 2014, and (4) the continuing claims

doctrine saves its claims. ECF No. 25 at 24. None of

Plaintiff’s arguments are availing.

The Court’s six-year statute of limitations on

actions against the United States “is a jurisdictional

requirement attached by Congress as a condition of

the government’s waiver of sovereign immunity and,

as such, must be strictly construed.” Hopland Band

of Pomo Indians v. United States, 855 F.2d 1573,

1576–77 (Fed. Cir. 1988). The limitations period

begins to run when a “claim first accrues.” 28 U.S.C.

§ 2501. The Federal Circuit has found that a claim

ordinarily accrues “when all the events which fix the

government’s alleged liability have occurred and the

plaintiff was or should have been aware of their

existence.” San Carlos Apache Tribe v. United

States, 639 F.3d 1346, 1350 (Fed. Cir. 2011) (quoting

Hopland Band, 855 F.2d at 1577). In the tribal

breach-of-trust context, a claim accrues “when the

trustee ‘repudiates’ the trust” and the Colony knows

or should have known of that repudiation. Shoshone

Indian Tribe of Wind River Rsrv. v. United States,

364 F.3d 1339, 1348 (Fed. Cir. 2004) (citations

omitted) (citing Hopland Band, 855 F.2d at 1573);

see San Carlos Apache Tribe, 639 F.3d at 1350. “A

trustee may repudiate the trust by express words or

by

taking

actions

inconsistent

with

his

responsibilities as trustee.” Shoshone Indian Tribe,

364 F.3d at 1348. Courts employ an objective

standard to determine whether a tribe knew or

should have known that the United States

71a

repudiated its trust responsibilities. San Carlos

Apache Tribe, 639 F.3d at 1350.

A. The Amended Complaint Alleges the

United States Has Repudiated Its Trust

Relationship.

Plaintiff argues that the statute of limitations

has not begun to run on its claims for breach of trust

because the United States has not formally

repudiated its trust relationship with the Colony, an

essential step for claim accrual. ECF No. 25 at 24–

25. A formal repudiation of the Government’s role as

trustee is unnecessary, however.

For the purposes of claim accrual, a repudiation

simply means that “the trustee has failed to fulfill

his responsibilities,” which can occur “by express

words or by taking actions inconsistent with his

responsibilities as trustee.” Shoshone Indian Tribe,

364 F.3d at 1348. Plaintiff alleged throughout its

Amended Complaint that the United States

breached its trust obligations to the Colony by

failing to fulfill its responsibilities in myriad ways.

See, e.g., ECF No. 22 ¶¶ 158 (allowing construction

of electrical substation, power lines, and road on

Colony land without Colony approval), 168 (failing

to prevent diversion of water onto Colony land), 174

(conveying housing to nonmembers without the

collection of any payment), 199 (failing to recognize

tribal council). Indeed, if Plaintiff did not make such

allegations, then it would not have stated a claim for

breach of trust in the first place, as a trustee’s failure

to fulfill his trust obligations is a required element

72a

of a prima facie claim for breach of trust. 121 AM.

JUR. TRIALS 129 Fiduciary Fraud (2011); Navajo

I, 537 U.S. at 506 (holding that the Government’s

failure “faithfully to perform [its fiduciary] duties” is

an essential element of an Indian breach of trust

claim).

Therefore, while the United States may not have

formally repudiated its role as trustee to the Colony,

Plaintiff has alleged through the Amended

Complaint that the United States made limited,

specific repudiations of its trust responsibilities. As

further discussed below, these alleged repudiations

determine when the statute of limitations period for

each claim begins.

B. The United States Need Not Provide the

Colony with an Accounting for the

Limitations Period to Commence.

Plaintiff also contends that the limitations period

has not commenced on its claims, and will not

commence, until the United States provides the

Colony with an accounting of BIA funds to

determine the extent of the Colony’s losses. ECF No.

25 at 25–26. Plaintiff bases its argument on two

sources of law: (1) the common law of trusts, and (2)

the Interior Department Appropriations Act of 2014.

Id. at 25–27 (citing Shoshone Indian Tribe, 364 F.3d

at 1348; Consolidated Appropriations Act, Pub. L.

No. 113-76, 128 Stat. 5, 305–06 (Jan. 17, 2014)). The

Federal Circuit has held that in tribal breach of trust

cases it is “common for the statute of limitations to

not commence to run against the beneficiaries until

73a

a final accounting has occurred that establishes the

deficit of the trust.” Shoshone Indian Tribe, 364 F.3d

at 1348 (citing 76 AM. JUR. 2D Trusts § 440 (2000);

McDonald v. First Nat’l Bank of Bos., 968 F. Supp.

9, 14 (D. Mass. 1997)). Congress codified this

common-law principle through various Interior

Department Appropriations Acts, most recently in

2014, which states: “the statute of limitations shall

not commence to run on any claim . . . concerning

losses to or mismanagement of trust funds, until the

affected Indian tribe . . . has been furnished with an

accounting of such funds from which the beneficiary

can determine whether there has been a loss.” 128

Stat. at 305–06.

Importantly, however, the 2014 Act tolled the

statute of limitations applicable only to claims

premised on “losses to or mismanagement of trust

funds” for which an accounting would be necessary

to determine “whether there has been a loss.” Id.

(emphasis added). It did not toll the limitations

period for all breach of trust claims, and especially

not those where the claimant alleged that “an open

repudiation of an alleged trust duty” had already

occurred. Wolfchild, 731 F.3d at 1291 (holding

tolling provision did not apply to case not involving

trust funds and where accounting would not be

necessary to put the tribe on notice of its claim). In

the latter scenario, as in this case, an accounting is

not necessary to learn of the existence of a loss giving

rise to a claim, although it could help show the extent

of a loss. Indeed, another judge of this court recently

held that “if the Tribe is on notice of a breach of the

government’s trust obligations sufficient to state a

74a

claim—and simply is uncertain of the quantum of

damages—the claim already has accrued and the

statute of limitations has begun to run.” Chemehuevi

Indian Colony v. United States, 150 Fed. Cl. 181, 202

(2020). This holding finds support in longstanding

binding precedent, as the Federal Circuit “has

‘soundly rejected’ the contention ‘that the filing of a

lawsuit can be postponed until the full extent of the

damage is known.’” Navajo Nation v. United States,

631 F.3d 1268, 1277 (Fed. Cir. 2011) (quoting Boling

v. United States, 220 F.3d 1365, 1371 (Fed. Cir.

2000)).

Here, Plaintiff argues that “the true extent of the

damage is unknown at this time” and “an accounting

is necessary to calculate the extent of loss.” ECF No.

25 at 26, 28. Plaintiff does not, however, argue that

an accounting is necessary to determine whether

there has been a loss, nor would such argument be

plausible. Plaintiff’s claims involve alleged trust

obligations pertaining to the Colony’s lands and

resources—not trust funds—and the Amended

Complaint alleges that the Government committed

“an open repudiation” of those alleged trust duties.

Wolfchild, 731 F.3d at 1291. Therefore, an

accounting is not necessary for accrual of Plaintiff’s

claims.

C. The Wasson Group Need Not Have Been

Recognized for the Limitations Period to

Commence.

Even assuming its claims had technically

accrued, Plaintiff argues that the limitations period

75a

could not have commenced until December 13, 2014,

when the BIA recognized the Wasson group as the

Colony’s duly elected council, as that is the earliest

time the Wasson group could have been on inquiry

notice of the Government’s trust repudiations. 11

ECF No. 25 at 27. As Plaintiff’s Opposition expressly

recognizes, however, “[t]here is only one Plaintiff—

the Tribe.” Id. at 21. It is the plaintiff’s awareness of

the facts fixing the Government’s liability that

determines when a claim accrues. See San Carlos

Apache Tribe, 639 F.3d at 1350 (a claim accrues

when “the plaintiff was or should have been aware

of the[] existence” of “the events which fix the

government’s alleged liability” (emphasis added)).

Whether Plaintiff—the Colony—was aware of the

Government’s alleged breaches of trust is not

dependent on changes in or recognition of tribal

leadership. Cf. Wyandot Nation of Kan. v. United

States, 124 Fed. Cl. 601, 606 (2016) (holding

limitations period on tribal breach of trust claim

began when tribe became aware of breach in 1880s

and thus successor-in-interest’s claims were timebarred), aff’d, 858 F.3d 1392 (Fed. Cir. 2017).

11 Plaintiff’s Opposition is confusing on this point. It argues

that Plaintiff’s claims did not accrue until December 13, 2020,

which would be six years from the BIA’s recognition of the

Wasson group pursuant to an order in the Nevada Case. ECF

No. 25 at 27; see ECF No. 22 ¶ 96 (“On December 13, 2014, the

BIA in response to Court Order finally recognized the

government of the Winnemucca Indian Colony.”). Plaintiff

likely meant that the statute of limitations did not expire until

that date. The brief also erroneously refers to December 9,

2014, as the date of BIA’s recognition.

76a

Plaintiff has provided no caselaw supporting the

proposition that the limitations period for a tribe

does not commence until the tribal council that

brings suit has been recognized by the BIA. 12 At

best, Plaintiff’s argument could be construed as a

claim that the lack of a BIA-recognized council

created a “legal disability” for the Colony that

prevented it from filing an action, in which case §

2501 would entitle it to additional time to bring suit.

28 U.S.C. § 2501 (“A petition on the claim of a person

under legal disability . . . at the time the claim

accrues may be filed within three years after the

disability ceases.”). But even assuming the lack of a

recognized tribal council states a cognizable legal

disability, the limited tolling provided under § 2501

would only extend the Colony’s time to file an action

until December 13, 2017 (three years after BIA’s

recognition of the Wasson group).

Accordingly, that the BIA did not recognize the

Wasson group until December 13, 2014, does not

save Plaintiff’s claims from being time barred.

12 By contrast, the Federal Circuit has held that a tribe’s claim

did not accrue until the tribe itself gained government

recognition through judicial proceedings in another forum, as

federal recognition or acknowledgement was a prerequisite to

the tribe’s right to statutory benefits, and thus a necessary

element of the claim. Samish Indian Nation v. United States,

419 F.3d 1355, 1369 (Fed. Cir. 2005). Despite the leadership

disputes, Plaintiff does not allege that the Colony’s status as a

federally recognized tribe was ever in question. See ECF No. 22

¶ 2.

77a

D. The Continuing Claims Doctrine Does

Not Apply to Plaintiff’s Claims.

In the same vein, Plaintiff asserts that the

continuing claims doctrine preserves each of its

claims despite the statute of limitations. ECF No. 25

at 28. When a plaintiff pleads “a series of distinct

events—each of which gives rise to a separate cause

of action—as a single continuing event,” the

continuing claims doctrine operates to save the

later-arising claims even if the limitations period

lapsed for the earlier-arising claims. Ariadne Fin.

Servs. Pty. Ltd. v. United States, 133 F.3d 874, 879

(Fed. Cir. 1998) (citing Brown Park Estates–

Fairfield Dev. Co. v. United States, 127 F.3d 1449,

1456 (Fed. Cir. 1997)); Friedman v. United States,

310 F.2d 381, 384–85 (Ct. Cl. 1962)); Rosales v.

United States, 89 Fed. Cl. 565 (2009) (holding

continuing claims doctrine applies where “the last in

a series of related, on-going actions falls within the

six-year statute of limitations”). “In order for the

continuing claim doctrine to apply, the plaintiff’s

claim must be inherently susceptible to being broken

down into a series of independent and distinct

events or wrongs, each having its own associated

damages.” Wells v. United States, 420 F.3d 1343,

1345 (Fed. Cir. 2005) (quoting Brown Park, 127 F.3d

at 1456). “On the other hand, if there was only a

single alleged wrong, even though the wrong caused

later adverse effects, . . . the continuing claim

doctrine is not applicable.” Id. at 1345–46 (citing

Hart v. United States, 910 F.2d 815 (Fed. Cir. 1990)).

78a

1. Plaintiff’s Pleaded

Continuing Claims.

Claims

Are

Not

There are two categories of Plaintiff’s claims that

the Government argues are barred by the statute of

limitations: (1) physical encroachments onto Colony

land that the Government failed to address, ECF No.

22 ¶¶ 153–55, 158–61, 168–170, 191, 196–98; and (2)

trespasses by nonmembers living on Colony land

that the Government either wrongfully authorized

and/or has failed to remedy through removal or

eviction, id. ¶¶ 112, 174–78.

The Government’s failures to prevent or

prosecute physical encroachments onto Colony land,

however, constitute “single distinct event[s]” that

have only had “continued ill effects later on.”

Simmons v. United States, 71 Fed. Cl. 188, 192–93

(2006) (quoting Brown Park, 127 F.3d at 1456)

(holding failure to prevent road construction on

plaintiff’s trust land did not constitute continuing

claim). Likewise, the Government’s allowing

nonmembers to occupy Colony housing and failing to

set proper rent rates, or its failure to remove

trespassers living in unauthorized housing, also

constitute singular alleged wrongs even if the

Colony continues to suffer from the consequences of

the Government’s original decisions. See Brown

Park, 127 F.3d at 1459 (holding failure to adjust

rental payments was not continuing claim even

when unsuitably low payments continued into

limitations period); Oenga v. United States, 83 Fed.

Cl. 594, 616 (2008) (same); Simmons, 71 Fed. Cl. at

79a

192–93 (holding failure to prevent trespassers from

entering trust land did not constitute continuing

claim).

Take for example Plaintiff’s claim that the

Government wrongfully allowed a road to be

constructed on Colony land. ECF No. 22 ¶ 154.

According to the satellite imagery submitted by the

Government, the road was constructed in 2013 at

the latest. See ECF No. 23-15. Each day since then

the road continues to exist, traffic may frequent

upon it, and all the while Plaintiff lacks payment for

the intrusion; however, these harms are the direct

and natural result of the road’s initial construction.

Or take Plaintiff’s allegation that the Government

unlawfully conveyed housing on the Colony’s land to

nonmembers and has refused the Colony’s requests

to remove trespassing individuals. See, e.g., ECF No.

¶¶ 33, 41, 64, 79, 82, 97–99, 174–78. Again, while

for decades the alleged trespassers have been ever

present and the Colony has continuously lacked

access to or benefits from Colony housing, such harm

is the continued effect of the BIA’s original decision

to convey the housing to the alleged trespassers in

1997 and, with respect to any other individuals, to

the Government’s initial refusal to remove alleged

trespassers dating back to at least 2011. As aptly

described in Brown Park, each of these claims arises

from one alleged wrong by the Government, which

accrued all at once, and the continuing harm alleged

by Plaintiff results from the single earlier alleged

wrong. 127 F.3d at 1457. Accordingly, none of

Plaintiff’s claims in its Amended Complaint are part

of “a series of independent and distinct events or

80a

wrongs,” each with its own associated damages, and

thus do not constitute continuing claims. Id. at 1456.

2. Plaintiff’s Newly Raised Claims Are

Not Continuing Claims.

In its Opposition, Plaintiff raises six allegations

that it argues show a continuation of the

Government’s alleged wrongs. ECF No. 25 at 29.

Specifically, Plaintiff alleges the Government: (1)

removed Plaintiff from the budget formulation

process; (2) failed to allocate all budget funds to the

Colony; (3) failed to institute a tribal court for the

Colony; (4) declined the Colony’s application for law

enforcement; (5) cut off communications with any

Colony member except the Colony’s chairwoman;

and (6) denied the trust status of a parcel of Colony

lands. Id. at 30–34. All but one of these allegations

do not appear in Plaintiff’s Amended Complaint; and

in any event, they do not save Plaintiff’s untimely

claims.

First, these allegations do not constitute

continuing claims as they are not a continuation of

the wrongs alleged in the Amended Complaint. As a

threshold matter, the continuing claims doctrine

applies to save later arising claims in a series of

related events or actions. Rosales, 89 Fed. Cl. at 579;

see Friedman, 310 F.2d at 384–85 (finding

continuing claims doctrine applied to save later

arising periodic pay claims); Burich v. United States,

366 F.2d 984, 986–87 (Ct. Cl. 1966) (same); Mitchell

v. United States, 10 Cl. Ct. 787, 789 (1986) (holding

continuing claims doctrine applied to save later-

81a

arising instances in a pattern of repeated failures to

replant a harvested forest). Except for the last

allegation regarding the trust status of the Colony’s

land, Plaintiff’s newly raised claims share no

relation to the land and natural resource-based

claims pled in the Amended Complaint, but rather

constitute entirely unique alleged wrongs.

Second, the more recent April 2015 denial of the

trust status of the Colony’s land, which in any event

appears to have been formally reversed in August

2020 (ECF No. 22 ¶¶ 99, 102), is not a continuing

claim. BIA issued the denial in response to a tribal

court order directing the eviction of the alleged

trespassers to whom the Government, as described

above, conveyed residential housing in 1997 and/or

whom the Government has refused to remove since

at least 2011. ECF No. 22 ¶¶ 33, 82, 97–99. As of

those earlier dates, all events necessary to fix the

Government’s alleged liability had occurred, and

Plaintiff’s claim accrued all at once. Brown Park, 127

F.3d at 1459.

Finally, even if the Court found that Plaintiff’s

newly raised claims constitute a continuation of

Plaintiff’s claims as pled in the Amended Complaint,

such that the continuing claims doctrine applied, the

doctrine would act only to save the newly raised

claims, not the claims in the Amended Complaint.

This is because the continuing claims doctrine

serves to preserve those claims in a series of related

events that occurred within the six-year statute of

limitations period; it does not resurrect the related

claims for which the limitations period has expired.

82a

Friedman, 310 F.2d at 6–8; Brown Park, 127 F.3d at

1455–56; Mitchell, 10 Cl. Ct. at 789.

Because each of the claims in Counts One, part

of Two, and Three through Six accrued outside of the

limitations period, the continuing claims doctrine

cannot save them regardless of the occurrence of

later-arising claims.

3. Plaintiff Should Not Be Permitted to

Further Amend Its Complaint to Include

the Newly Raised Claims.

Although Plaintiff’s newly raised claims

allegedly took place within the limitations period, it

is axiomatic that Plaintiff cannot raise new

allegations in its opposition brief to survive a motion

to dismiss. Jarvis, 154 Fed. Cl. at 718. While

Plaintiff incorrectly argues it did not need to include

these allegations in its Amended Complaint, it

alternatively requests leave to again amend its

pleading. ECF No. 25 at 29. Under RCFC 15(a), the

Court has discretion to allow a party to amend its

complaint, and amendments should be liberally

granted. Mitsui Foods, Inc. v. United States, 867

F.2d 1401, 1403 (Fed. Cir. 1989). Nevertheless,

“‘repeated failure to cure deficiencies by

amendments previously allowed . . . [or] futility of

amendment’ may justify the denial of a motion for

leave to amend.” Id. at 1403–04 (quoting Foman v.

Davis, 371 U.S. 178, 182 (1962)).

Allowing Plaintiff to amend its Amended

Complaint to include the newly raised claims would

83a

be futile, as this action is barred nearly in its

entirety under § 1500. Moreover, Plaintiff’s one-line

cursory request for leave to amend does not attempt

to state a plausible breach of trust claim, which must

both identify a money-mandating source of law that

establishes specific fiduciary duties and allege that

the Government breached those duties. 13 Navajo II,

556 U.S. at 291. Plaintiff fails to identify any

substantive source of law underlying its newly

raised claims, which largely relate to decisions

refusing or denying the Colony’s Indian SelfDetermination and Education Assistance Act

(“ISDA”) contract applications. See ECF No. 25 at

30–34; see also Samish Indian Nation v. United

States, 419 F.3d 1355, 1365 (Fed. Cir. 2005) (holding

that, absent a self-determination contract, “ISDA

does not confer a private damage remedy” for nonpayment of underlying benefits based on wrongful

refusal to accord tribe federal recognition).

Moreover, Plaintiff already had an opportunity to

amend its Original Complaint once in response to

the Government’s first motion to dismiss, which

raised similar statute of limitations arguments and,

specifically, the continuing claims doctrine. See ECF

No. 8 at 34–36.

The Federal Circuit has found such bare requests for

amendment to be insufficient. See Refaei v. United States, 725

F. App’x 945, 951 (Fed. Cir. 2018) (holding court was not

required to address request to amend complaint “because it

was merely incorporated into a response to a motion to

dismiss”); see also Albers v. Bd. of Cnty. Comm’rs of Jefferson

Cnty., Colo., 771 F.3d 697, 706 (10th Cir. 2014).

13

84a

E. The Government Has Demonstrated

That the Encroachments Alleged by

Plaintiff

Occurred

Outside

the

Limitations Period.

Since Plaintiff has not demonstrated that the

statute of limitations was tolled or has not begun to

run, the Court must determine the accrual dates of

its claims. Plaintiff bears the burden of showing by

a preponderance of the evidence that its

encroachment and trespass claims accrued within

the statute of limitations. See Fid. & Guar. Ins.

Underwriters, 805 F.3d at 1087. The alleged

encroachments on tribal land include: (1) a street

referred to as “Highland Road,” ECF No. 22 ¶¶ 152–

56, 191 (Counts One, Five); (2) an easement granted

to a neighboring subdivision, id. ¶ 154 (Count One);

(3) an electrical substation, id. ¶¶ 158, 160–62, 191

(Counts Two, Five); (4) overhead powerlines, id. ¶¶

158–62, 191 (Counts Two, Five); (5) structures or

wells that divert water from a stream bed or “remove

water from wells from which water was able to reach

the Colony’s lands,” id. ¶ 168; see id. ¶¶ 169–72, 191

(Counts Three, Five); and (6) structures placed by a

neighboring subdivision, which include “a garage,

shed, part of a trailer park, road, and driveway,” id.

¶ 196 (Count Six). The trespass claims relate to

nonmembers residing in HUD housing on the

Colony’s land. Id. ¶¶ 174–78 (Count Four).

The Government submitted satellite images

revealing that—as of 2013—Highland Road, the

overhead powerlines, the ingress/egress for the

neighboring subdivision, and the electrical

85a

substation were already constructed. See Exs. 15–19

to MTD, ECF Nos. 23-15, 23-16, 23-17, 23- 18, 23-19.

The Government also submitted a 1989 map for

development of a subdivision that reveals the

existence of Highland Road at that time, Ex. 20 to

MTD, ECF No. 23-20; a 1989 quitclaim deed for the

overhead powerlines, Ex. 21 to MTD, ECF No. 2321; a 1997 right-of-way application for the overhead

powerlines, Ex. 22 to MTD, ECF No. 23-22; and a

1974 land survey that includes the electrical

substation, Ex. 23 to MTD, ECF No. 23-23—all of

which show that these structures were in place well

before Plaintiff filed even its 2013 Complaint.

The Government also submitted satellite images

of the Colony’s residential 20-acre plot from 2013,

which reveals the existence of a trailer park, road,

driveway, sheds, and other structures. Ex. 24 to

MTD, ECF No. 23-24. While it cannot be certain, the

Government believes that these are the structures

Plaintiff refers to in Count Six of its Amended

Complaint at paragraph 196. ECF No. 23 at 40.

Plaintiff also admitted in its Amended Complaint

that alleged trespassers have occupied the 20 acres

for decades, including at some point persons “living

in makeshift, unhealthy and unauthorized housing.”

ECF No. 22 ¶ 112; see id. ¶¶ 110, 113. And Plaintiff

acknowledged that the Government has refused to

remove trespassers since as early as 2011, an

allegation it also raised in the 2013 Complaint. Id.

¶¶ 79–82; Ex. 9 to MTD ¶¶ 71–73, ECF No. 23-9.

86a

Finally, the Government contends Plaintiff’s

description of the structures that divert water from

Colony lands is too vague to determine the

structures to which Plaintiff refers. ECF No. 23 at

40. Nevertheless, Plaintiff referred to an upstream

subdivision’s diversion of water in its 2013

Complaint. ECF No. 23-9 ¶ 15. As for the alleged

trespassers in HUD housing on Colony land, the

Amended Complaint alleges that the conveyances to

those individuals occurred in 1997, which counsel

confirmed at oral argument. ECF No. 22 ¶¶ 33, 109–

11; Tr. of Oral Arg. at 86:16–88:6, ECF No. 34.

Plaintiff does not dispute the veracity of any of

this evidence, nor has Plaintiff presented any

evidence to counter the Government’s assertions.

Accordingly, the Court concludes Plaintiff has not

met its burden to demonstrate that the allegations

underlying Count One, part of Count Two, and

Counts Three through Six occurred within six years

prior to the filing of the Original Complaint. To the

contrary, the evidence presented by the Government

and the allegations in the Amended Complaint and

2013 Complaint show they occurred outside the

limitations period and that Plaintiff knew or should

have known of the occurrences. Therefore, each of

these claims is time barred, and the Court

accordingly lacks jurisdiction to entertain them.

87a

IV.Counts Eight Through Eleven Request

Equitable Relief That Is Outside of the

Court’s Jurisdiction.

The Court likewise lacks jurisdiction over Counts

Eight through Eleven because they seek equitable

relief that is outside the Court’s jurisdiction. ECF

No. 23 at 50. Plaintiff argues that those claims

should survive, as the Court has the authority under

28 U.S.C. § 1491(a)(2) to order equitable relief that

will aid in a judgment of liability against the

Government. ECF No. 25 at 49.

Generally speaking, the Court lacks equity

jurisdiction except in a few narrow circumstances.

Nat’l Air Traffic Controllers Ass’n v. United States,

160 F.3d 714, 716 (Fed. Cir. 1998). One of those

circumstances, which Plaintiff alleges is applicable

here, is when equitable relief is “ancillary to claims

for monetary relief over which [the Court] has

jurisdiction.” Id. (citing 28 U.S.C. §§ 1491(a)(2),

(b)(2)). For example, once liability for money

damages has been established, the Court may order

an accounting to determine the extent of damages

owed. N. Colo. Water Conservancy Dist. v. United

States, 88 Fed. Cl. 636, 665 (2009) (citing Klamath

& Modoc Tribes v. United States, 174 Ct. Cl. 483,

490–91 (1966)); Am. Indians Residing on Maricopa–

Ak Chin Rsrv. v. United States, 229 Ct. Cl. 167, 667

F.2d 980 (1981)).

Plaintiff’s claims, however, do not invoke the

Court’s limited equitable powers. Count Nine seeks

a declaration that “the Colony is entitled to fair and

88a

reasonable compensation for past, present and

future use of the Colony’s water, land and other

property rights.” ECF No. 22 ¶ 217. In Count Ten,

Plaintiff requests a declaration that “[Colony]

members each suffered the loss of the use of the

lands for twenty years and the benefits of tribal

membership for fifteen years.” Id. ¶222. And Count

Eleven seeks a declaration that “[the Colony] is

entitled to the opportunity to petition for the

conveyance of the acreage in its purview.” Id. ¶ 228.

Each of these claims are standalone claims for

declaratory judgment that are unnecessary and

unrelated to any potential award of monetary relief.

Nat’l Air Traffic Controllers, 160 F.3d at 716

(holding the Court of Federal Claims has no

“jurisdiction to grant equitable relief when it is

unrelated to a claim for monetary relief pending

before the court.”). They are thus outside the Court’s

jurisdiction.

Count Eight, on the other hand, is a demand for

documents and an accounting to determine the

amount of damages owed in relation to the claims

pending before the Court. ECF No. ¶ 212. While the

Court is permitted to require an accounting to aid in

the assessment of damages, see N. Colo. Water

Conservancy, 88 Fed. Cl. at 665, for the reasons

stated above, each of Plaintiff’s substantive counts

must be dismissed. Because the Court lacks

jurisdiction to entertain Plaintiff’s claims, there are

no damages to be assessed and therefore no

accounting that would be “‘an incident of and

collateral to’ a money judgment.” James v. Caldera,

159 F.3d 573, 580 (Fed. Cir. 1998) (quoting 28 U.S.C.

89a

§ 1491(a)(2)) (“[T]he Court of Federal Claims has no

power to grant affirmative non-monetary relief

unless it is tied and subordinate to a money

judgment.” (citation and quotation marks omitted)).

Count Eight is thus outside the Court’s jurisdiction.

V. The Government Did Not Raise New

Arguments in Its Reply That Warrant a

Surreply.

In response to the Government’s Reply, Plaintiff

filed a Motion for Leave to File a Surreply. See ECF

No. 29. Plaintiff states that a surreply is necessary

to respond to two contentions the Government made

for the first time in its reply in support of its

jurisdictional arguments: (1) that the BIA’s

recognition of a Winnemucca tribal council has been

appealed to the IBIA, and (2) that the alleged

trespassers on Colony lands have sued the

Government. Id. at 2. The Government responds

that neither of those contentions were used to

support its claims for dismissal but rather were

raised simply to update the Court on recent factual

developments pertinent to the case. ECF No. 30 at

2. Thus, the Government argues, there were no

“new” arguments raised in its reply that warrant a

surreply. Id. The Court agrees.

A surreply is appropriate when a party raises

new arguments for the first time in a reply brief,

thus depriving the opposing party the opportunity to

respond. Hardy v. United States, 153 Fed. Cl. 624,

628 (2021). Here, the Government never used the

two contentions Plaintiff addresses to support its

90a

dismissal arguments. Rather, it included them in its

reply merely as a factual update for the Court. See

ECF No. 28 at 8–9. The Court has not relied on

either contention in deciding the question of

dismissal, and thus a surreply would not assist the

Court.

VI. The Government’s Notice of Additional

Authority Properly Provides the Court with

New and Pertinent Binding Case Law.

While the Court’s rules do not address the filing

of notices of supplemental authority, the

Government’s notice appropriately advises the

Court of a new development in relevant case law

that post-dates the completion of both the briefing

and oral argument in this matter. Not only is the

Government’s notice helpful to the Court, as Navajo

Nation is both highly relevant to the issues in this

matter and binding authority, the notice does not

prejudice Plaintiff since it merely directs the Court

to the new decision without including any legal

argument. Accordingly, the Court will not strike the

Government’s notice but will, per the alternative

request, consider Plaintiff’s response to the

Government’s notice set forth in its Motion to Strike.

CONCLUSION

For the above stated reasons, the Government’s

Motion to Dismiss (ECF No. 23) is GRANTED.

Plaintiff’s Motion for Leave to File a Surreply (ECF

No. 29) is DENIED. Plaintiff’s Motion to Strike

(ECF No. 36) is DENIED IN PART and

91a

GRANTED IN PART. The Clerk is directed to

enter judgment accordingly.

SO ORDERED.

Dated: August 25, 2023

/s/ Kathryn C. Davis

KATHRYN C. DAVIS

Judge

92a

APPENDIX D

IN THE UNITED STATES COURT OF

FEDERAL CLAIMS

Case No.: 20-1618 L

WINNEMUCCA INDIAN COLONY,

a Federally-recognized Indian Colony;

Plaintiff,

v.

UNITED STATES OF AMERICA ex rel.

SECRETARY OF THE DEPARTMENT OF THE

INTERIOR, BUREAU OF INDIAN AFFAIRS,

Defendants,

FIRST AMENDED COMPLAINT

Filed: February 1, 2022

93a

COMES NOW, the Winnemucca Indian Colony,

by and through its duly appointed Council and their

attorneys of record, and Plaintiff complains as

follows:

STATEMENT OF THE CASE

This action is initiated to recover actual

damages, just compensation, an accounting,

declaratory judgment, and injunctive relief, arising

from Defendants’ breach which resulted in takings

of property, property rights and monetary assets of

the Winnemucca Indian Colony and its individual

members during the past decades while the Bureau

of Indian Affairs arbitrarily, capriciously and

unreasonably breached its trust responsibility to

this federally recognized tribe to protect its lands

and resources.

These actions and inactions resulted in a group

of non-Indians and non-members unlawfully

occupying the Colony’s lands; other non-members

and non-Indians were allowed to strip all income

from the Colony through the loss of economic

development; easements were allowed or even

granted over Colony land without obtaining

corresponding income and without obtaining the

consent of the Colony Council or membership;

encroachments by adjacent development occurred on

the Colony’s lands and the trustee did nothing to

stop these encroachments, water rights were never

acquired and wet water flowing across the lands

were diverted and no longer available for use on the

lands of the Colony; the Bureau of Land

Management restored certain lands of Western

tribes, but omitted the Colony because the Trustee

94a

failed and refused to recognize a government or

appear on behalf of the Colony which cost the Colony

the loss of in excess of a potential restoration of over

1,000 acres. For all these reasons and others, the

Colony and its members, individually, have been

deprived of their lands and resources. The natural

resources of the Colony have not been protected and

the Colony has lost income and grant and contract

funds, due and owing to it as a result of the acts of

the United States of America through its agency the

Bureau of Indian Affairs. The acts and failure to act

of the government were not just a bad investment or

negligence, the acts were intentional deprivation of

the use of the lands of the Winnemucca Indian

Colony to its members.

The loss of the quality of life and standards of

living for all members and residents because of the

lack of recognition of the government is

unfathomable.

Whereas BIA doesn’t provide

anything close to a Shangri-La for reservations, it

does provide welfare, shelter, food and protective

services according to its legal obligation and as

delegated by Congress. As trustee of the lands of the

Colony, the BIA failed to protect the lands of the

Colony and the use of those lands for the Colony

members.

The members were not able to claim and

contract for P.L. 93-638 funds and the members

individually suffered the loss of health care and

educational support payments, among other

payments and were deprived of the standing to seek

federal resources to aid families and individuals

seeking affordable homes in a safe and healthy

95a

environment. For two decades, Defendants refused

support, took away the federal safety net, and

deprived the members of the Winnemucca Indian

Colony of family, community, and the ability to

preserve traditions.

Two decades of the BIA

claiming that it could not recognize a government

because there were two factions, when BIA held in

its files the family trees and proof of who the

members were for over three decades, divided this

community irretrievably and robbed it of a

substantial opportunity cost of not becoming a

unified community with a viable economy.

The Council members were denied their civil

right to serve in their elected offices. By failing to

verify the status of the members from its own files,

the government deprived the members of their

government and the Council from serving as a

government and building this reservation into

homes and a community.

JURISDICTION

1.

This Court has subject matter jurisdiction

over the subject matter of this action under 28 § 1491

(The Tucker Act), as this action involves claims

against the United States for unliquidated money

damages, which does not sound in tort and is

brought by an Indian Tribe, arising under the

Constitution, laws, treaties or regulations of the

United States, and Executive Orders of the

President of the United States. The damages are

due to the Colony by virtue of breach of the trust

obligtions of the United States to tribes and because

the failures of the government violate the statutes

and laws that mandate money damages to the

96a

Colony. (25 U.S.C.§ 5301 et. seq., 25 U.S.C.§ 4101 et

seq., etc.) The Court further has jurisdiction under

the Indian Tucker Act, 28 U.S.C. § 1505, because

this action is in favor of a tribe.

PARTIES

2.

Plaintiff Winnemucca Indian Colony (the

“Colony” or “Tribe”) is a federally recognized Tribe.

3.

The Winnemucca Indian Colony represents

its enrolled members who are individuals with the

right of membership.

4.

Defendant United States of America is vested

with numerous trust, fiduciary and statutorily

imposed responsibilities owed to the Colony and

employs various federal departments and agencies

to fulfill those obligations. Congress has statutorily

designated the Department of the Interior (“DOI”) as

being primarily responsible for the management of

Indian affairs.

5.

Defendant Secretary of the Interior (“SOI”)

has delegated authority over Indian affairs to

several agencies within the Department of the

Interior, most notably the Bureau of Indian Affairs

(“BIA”).

a. The Western Regional Office of the BIA

is located in Phoenix, Arizona

(“Western Regional Office”), and has

authority to manage the trust

responsibility to the Winnemucca

97a

Indian Colony on behalf of the United

States of America.

b. The Superintendent of the Western

Nevada Agency of the BIA is located in

Carson City, Nevada (“Western

Nevada Agency”), and has authority to

manage the trust responsibility to the

Winnemucca Indian Colony on behalf

of the United States. The employees,

contractors and agents of the

Superintendent include the police

officers of the BIA that have as their

patrol the Winnemucca Indian Colony.

STATEMENT OF FACTS

Winnemucca Indian Colony History

6.

In 1916, Woodrow Wilson signed two

Executive Orders setting aside 320 acres in

Humboldt County, Nevada.

7.

In 1928 Congress set aside an additional

twenty acres purchased from the railroad for the

same homeless Shoshone Indians that received the

320 acres.

8.

In 1916 a census was taken by the

government to determine who was living on the 20

acre parcel.

9.

In 1972 the Colony pursuant to the

Reorganization Act of 1934 received a Constitution

and Bylaws from the government that set out the

98a

requirements to qualify for membership in what was

now a federally arecognized Tribe, the Winnemucca

Indian Colony.

10.

The 340 acres set aside for the Winnemucca

Indian Colony were titled in the United States of

America intended for the benefit of the Winnemucca

Indian Colony.

11.

In

1972

pursuant

to

the

Indian

Reorganization Act, the Colony adopted a

Constitution that stated the requirements for

enrollment in the Colony were to be 1/4 Paiute

and/or Shoshone by blood quantum and to be a

descendent of a person listed on the 1916 census of

residents on the Colony and to not have taken money

or land as a result of membership in another Tribe.

These qualifications for membership were

recommended by the BIA and voted on by persons

who resided at the Colony and have not changed

since the date of adoption.

12.

The

Indian

Self-Determination

and

Education Assistance Act of 1975 was slow to be

implemented. Prior to 1996, Self-Governance was

only directly applied to BIA programs,

but

thereafter, all non-BIA Department of the Interior

programs have participated in Self-Governance and

the establishment of programmatic targets to

transfer programs to federally recognized Indian

Tribes.

13.

A tribe must submit an initial contract

proposal under Public Law 93-638 to obtain a

99a

contract from the BIA to perform its own Tribal

functions including police functions, schools, etc.

The BIA is obligated under statute and regulation to

provide technical assistance to the contracting

Tribe.

14.

All Indians who are members of a federally

recognized tribe are entitled to annuity monies and,

after the age of eighteen years, are entitled to a

receipt for their annuity pursuant to 28 U.S.C. §

116.

15.

Prior to 1986 there had been a diaspora of

members of the Colony due to enlistment in the

fighting for the two world wars and because families

with children were escaping from the Colony to save

their children from conscription into the Stewart

Indian residential school.

16.

The Colony members lived on the Colony

sporadically, but returned to bury their relatives on

the lands and returned for family gatherings.

17.

In 1986 the BIA reviewed the list of persons

who alleged qualification for distribution of the

Northern Paiute Judgment Fund and who resided at

the Winnemucca Indian Colony and noted that those

applicants were members of the Ft. McDermitt

Paiute Tribe and the Lovelock Paiute Tribe and were

using those Ft. McDermitt and Lovelock Paiute

memberships as the underlying right to collect funds

under the Northern Paiute Judgment Fund. Some

of these persons were also claiming to serve as the

Council of the Winnemucca Indian Colony in

100a

violation of the membership qualifications of Ft.

McDermitt and Lovelock which disallowed

membership in two tribes coincidentally and who

didn’t qualify for membership in the Winnemucca

Indian Colony pursuant to its Constitution and

Bylaws. Merely residing on an Indian Colony is not

a qualification for membership.

18.

The Western Nevada Agency held in its

records the ancestry research on the residents and

persons attempting to claim membership to the

Winnemucca Indian Colony which either proved or

disproved their right to membership. These records

were placed in the BIA files circa 1986.

19.

The Winnemucca Indian Colony Constitution

excludes persons who took distribution as a result of

membership in another Tribe from being members

of the Colony which is a standard clause in BIA

generated Consitutions adopted throughout Indian

country in the IRA timeframe. Non-members of the

Colony could not serve as Council members.

20.

On February 5, 1987, a memo written by the

Superintendent of the Western Nevada Agency

affirmatively stated: “At the present time, there are

no eligible members residing on the Winnemucca

Colony.” The Superintendent added: “We further

advised the Area Office that it is not the Bureau’s

wish to have the land withdrawn from trust

protection or declared as surplus property, as the

lands were set aside for the use of homeless

Shoshone Indians. . .”

101a

21.

The same memo stated the BIA had presumed

that the persons living on the Colony qualified for

membership but as a result of the Northern Paiute

Judgment Fund distribution, the Council members

serving in Winnemucca were not members and could

not qualify as members of the Colony.

22.

The Western Nevada Agency allowed the

persons who resided on the Winnemucca Indian

Colony to choose which Tribe they intended to be a

member of, and when all the members chose to join

or had always been a member of a Tribe other than

the Winnemucca Indian Colony in order to qualify

for the Northern Paiute Judgment Fund, the BIA

took control of the assets of the Colony and withdrew

recognition of the government of the Colony in 1986.

23.

The BIA stated that the persons serving as

Colony Council were not qualified to be members of

the Colony according to the adopted Constitution

and By-laws, and, therefore, the government had to

be reorganized with qualified members.

24.

The Western Nevada Agency took control and

acted as a trustee of the Colony’s smoke shop and

other assets until a proper government could be

organized. All the funds were collected and turned

over to the new government when it was established.

The new government comprised of persons who were

qualified to be members of the Colony.

25.

The BIA took over a year to search for persons

who qualified to be members of the Winnemucca

Indian Colony and, in the meantime, did ancestry

102a

research on all members that applied to verify their

qualification as members, including, as discovered

in 2016, ancestry research on many residents of the

Colony demonstrating that they did not qualify for

membership in the Winnemucca Indian Colony.

26.

Seventeen persons qualified as members and

became the official membership list, including Glenn

Wasson, Sharon Wasson, Thomas Wasson, Thomas

Magiera, Elverine Castro, Andrea Davidson, Alma

Gregory, Trudi Hodson, Renee Johnson, Paulette

Kelley, Lucy Lowrey, Carlene Likins, Merlene

Magiera, Richard Tom, Ida Whiterock and Alyce

Williams.

27.

After solicitation of members and an election,

by 1990 a government had been recognized for the

government-to-government relationship with the

United States and the lands and assets returned to

the management of the Colony Council.

28.

The newly certified members and recognized

Council of the Winnemucca Indian Colony

repeatedly

requested

information

and

documentation from the BIA about the history and

origins of the Winnemucca Indian Colony and the

records of membership.

29.

In 1997, when the Lovelock Housing

Authority empowered by the BIA to manage the

housing on the Colony’s lands was found to have

diverted the funds from the intended purpose, the

BIA directed the Lovelock Housing Authority,

already in breach of its agreement and without

consent from the Colony Council, to convey a

103a

leasehold interest to the each non-member resident

of the HUD home, thus conveying all but one home

to non-members without requiring rental or any

payment at all, effectively excluding the members

from all residential housing on the Colony.

30.

The BIA failed and refused to furnish any of

this documentation from 1990 until 2013, and the

ancestry information was not furnished until 2016.

This fact is significant in that during the entirety of

the time, 2000 – 2014, the BIA claimed that there

was an intra-tribal dispute and thus it would not

recognize a government. Yet the BIA knew and had

documentation in its files that proved certain

persons requesting recognition, referred to as the

Ayer group and the Bills group,did not qualify for

membership, nor did any person residing on the

Winnemucca Indian Colony without right or

authority (referred to herein as “the trespassers”).

Winnemucca Indian Colony Tribal

Government History

31.

In 1934 the Indian Agency of Nevada stated

that the lands of the Winnemucca Indian Colony

were reserved for bands of Western Shoshone

Indians living in the area.

32.

The BIA in 1990 recognized the government

of the Colony as Glenn Wasson, Chairman; Lucy

Lowry; Sharon Wasson; Elverine Castro; and

Richard Tom.

33.

In 1997, when there was a recognized Council

on the Colony, the BIA approved a conveyance of the

104a

HUD homes on the lands of the Colony to the lessees

without Council approval and the leases were

conveyed to non-members and the BIA failed to

require rents to be paid to the Colony for the use of

the homes causing inestimal damages from loss of

residential housing for members and, at a minimum,

$300 - $500 a month in rental income to the Colony

for each of the five homes for more than 24 years in

excess of $432,000.

34.

In 1999 Richard Tom resigned as a member of

the Council and passed away soon thereafter, and

William Bills, who had recently presented himself as

the son of Ermon Bills, a putative member of the

Winnemucca Indian Colony, was appointed to the

Council.

35.

On August 5, 1999, William Bills, on his own,

without authority from the Council, applied for a

grant from the EPA for up to $75,000. The rest of

and majority of the Council, led by Chairman Glenn

Wasson, adamantly disapproved of this. Bills had

no approval by a majority of the Council for his act

as required by the Constitution and By-laws. The

Council also voted down a request made by William

Bills for an allotment of ten (10) acres of Colony land

on which to build a casino.

36.

The EPA did not check with the BIA to

determine the proper government and membership

of the Winnemucca Indian Colony and paid the

$75,000 grant to William Bills who pocketed the

grant for his individual use.

105a

37.

The BIA recognized the Colony’s government

until the year 2000 as Glenn Wasson, Chairman;

Elverine Castro; Lucy Lowery; and Thomas Wasson,

and, in the Fifth Council position, alternatively from

1990 to 2000, as Thomas Magiera or Sharon Wasson,

or William Bills or Richard Tom.

38.

In the regularly scheduled February 2000

meeting of the Winnemucca Indian Colony, the

Chairman, Glenn Wasson, reported to the Council

that William Bills might not qualify as an Indian

since he may have been adopted and had provided a

fraudulent birth certificate with his application for

membership and, further, that he was diverting mail

belonging to the Colony. The Chairman stated that

action would have to be taken on this matter at the

March 2000 meeting.

39.

On February 22, 2000, Glenn Wasson was

murdered by multiple stab wounds in his back on the

doorsteps of the Colony’s Administration Building.

The federal government has failed to arrest anyone

for this murder and failed to make any credible

investigation.

40.

On March 1, 2000, William Bills had soil

removed from the Colony lands in and around the

Administration Building, including but not limited

to the area where the murder occurred. Bills acted

without majority Council approval as required by

the Constitution and Bylaws of the Colony as

adopted in 1972 and excluded the other Council

members from their lands

106a

41.

The BIA was the sole policing agency on the

lands of the Colony and refused to remove the

trespassers and refused to remove the non-Indian

acting as Chairman. Once again, the members of the

Colony were forced to leave their lands out of fear for

their lives after the murder of Glenn Wasson and the

failure of the police officers to protect them from

further violence.

42.

Although the Colony Council submitted

evidence of William Bills’ lack of blood quantum in

the form of his birth certificate, the BIA did nothing

to remove him from the lands of the Colony.

43.

Further, the BIA knew that the persons

claiming to support William Bills as the Chairman

were not qualified to be members of the Winnemucca

Indian Colony based upon the ancestry research

done in 1986-1987.

44.

During the year 2000, the BIA first recognized

William Bills, then Sharon Wasson, then William

Bills, and then withdrew recognition of the

government.

45.

From the year 2000 the BIA did nothing to

secure the trust assets and resources of the Colony

for its members.

46.

When this dispute arose, the Western

Nevada Agency of the BIA declared the Tribe’s

government dysfunctional and did not recognize any

government as of July 2000.

107a

47.

In December 2000, the Regional Office

overruled the Western Nevada Agency and made an

affirmative finding that the Western Nevada Agency

could not find the government to be dysfunctional.

Still, the BIA continued its refusal to recognize a

government for this federally recognized Tribe.

48.

Despite repeated requests, the BIA failed to

recognize a government of the Winnemucca Indian

Colony from July 2000 until ordered to do so by the

United States District Court, District of Nevada, in

December 2014.

49.

In October 2000 when the government of the

Winnemucca Indian Colony had an election on the

Colony lands, the BIA arrested Thomas Wasson and

Sharon Wasson and the members of the election

committee and qualified members of the

Winnemucca Indian Colony.

50.

The election was eventually held and Sharon

Wasson, Thomas Wasson, Elverine Castro, Thomas

Magiera and Merlene Magiera were elected as

Council members.

51.

On March 31, 2005, the United States District

Court entered an Order finding that the Wassons

and the election committee had been wrongfully

arrested in violation of their Constitutional rights

when the arrests were made by the BIA.

52.

In July 2000, Bank of America, which held the

account of funds of the Winnemucca Indian Colony

in the approximate sum of $500,000.00, froze the

108a

accounts in order to determine who was the proper

party to access the account, and filed the account in

interpleader due to the allegations by both William

Bills and Sharon Wasson claiming to be Chairman

of the Winnemucca Indian Colony. The case was

entitled Bank of America v. William Bills and

Sharon Wasson, Case No. CV-N-00-450-HDM

(VPC), filed in the United States District Court,

District of Nevada.

53.

On May 19, 2000, the Tribal Court, Judge

Kyle Swanson, at the request of William Bills, issued

an order excluding all council members from the

Colony but for William Bills. The Order was in

violation of the Constitution and Bylaws of the

Colony, but the BIA police officers enforced the

Order and did not allow the members to re-enter

their lands.

54.

That Order was appealed to the Inter Tribal

Court of Appeals of Nevada, a body that was funded

by the BIA.

55.

On March 21, 2001, the parties were ordered

to have another trial over the matters before a Tribal

Court agreed to by William Bills and Sharon Wasson

because of the failure of the Tribal Judge Kyle

Swanson to hold a hearing, take evidence or create

any record whatsoever.

56.

A Tribal Court hearing was scheduled, and

Steven Haberfeld of Sacramento, California,

recommended by Larry Echohawk, then affiliated

with the Native American Rights Fund, was agreed

109a

to by the parties as the Tribal Judge to officiate and

render an opinion.

57.

During 2000 and 2001, a Tribal Court

proceeding was held for more than five weeks of

testimony, with hundreds of exhibits entered into

evidence, costing the Colony over $70,000 in Tribal

funds to pay for the proceedings because the BIA

refused to provide 638 funding to the Colony.

58.

In May of 2002, the acting Tribal Court

determined that no members existed and that the

acting Court would decide the membership and

conduct the election and be paid for by the

Winnemucca Indian Colony in excess of another

$50,000.00.

59.

All parties agreed that an appeal of this

decision was necessary; however, the BIA had failed

to fund the Inter Tribal Court of Appeals in Nevada

and, thus, no appellate process was available to

Indians in Northern Nevada.

60.

Pursuant to a Ninth Circuit mediation that

was convened to settle some matters on appeal in

this litigation, counsel for William Bills et al. and

counsel representing the members of the Colony

agreed that a panel of judges would be chosen to

hear the appeal of the Winnemucca Indian Colony

Tribal Court decision.

61.

The United States District Court, District of

Nevada, provided a courtroom and the Appellate

Panel, which was the Specially Appointed Appellate

Panel of the Winnemucca Indian Colony also known

110a

as the “Minnesota Panel,” because the Judges were

judges from the Sioux Tribes in Minnesota.

62.

The Minnesota Panel was paid for by the bank

account belonging to the Winnemucca Indian

Colony, in an amount more than $50,000.00.

63.

On August 16, 2002, the “Minnesota Panel”

issued an opinion recognizing Sharon Wasson as the

Chairman of the Winnemucca Indian Colony and the

other members of the Council as Elverine Castro,

Thomas Wasson, William Bills and Thomas

Magiera. Mr. Mageira was required to be replaced

because of his decease prior to the hearing. This

decision recognized a Council with a clear majority

of members that are Plaintiffs herein.

64.

The Winnemucca Indian Colony requested

that the BIA recognize the government as

recognized by the Minnesota Panel, but the BIA

refused in 2002 to recognize a government of this

federally recognized Tribe, did not remove the

trespassers from the Colony’s lands, and did not

protect the resources and assets of the Colony.

65.

On May 17, 2007, all Tribal remedies were

again exhausted regarding the matters of

government recognition and Tribal membership by

virtue of a decision of the reconstituted Inter-tribal

Court of Appeals of Nevada dismissing all further

appeals in recognition of the prior Minnesota Panel

decision as final.

111a

66.

In 2007, the Winnemucca Indian Colony

again requested that the BIA recognize the

government as affirmed by the Inter Tribal Court,

but the BIA refused.

67.

On March 6, 2008, United States District

Court Judge Brian Sandoval issued an opinion that

all Tribal remedies had been exhausted and the

decision of the “Minnesota Panel” was granted

comity.

68.

In 2008, the Winnemucca Indian Colony

again requested that the BIA recognize the

government as recognized in comity by the United

States District Court, District of Nevada, but the

BIA refused.

69.

On June 29, 2009, William Bills, holding

himself out as “Tribal Chairman” for the Colony,

executed a certified resolution for the “Winnemucca

Indian Colony” certifying and authorizing the

Glacier International Depository Bank as its

“Central Bank and Depository.”

70.

The alleged GID bank defrauded foreign

investors

and

was

eventually

criminally

investigated, resulting in the conviction of a known

associate of William Bills. Upon information and

belief, William Bills testified in exchange for

leniency in his role, as the GID Bank was falsely

authorized by him as the Chairman of the

Winnemucca Indian Colony.

112a

71.

Since the GID Bank was chartered by William

Bills acting as the Winnemucca Indian Colony, the

name of the Colony will always be associated with

defrauding foreign investors of hundreds of

thousands of dollars.

72.

On October 14, 2010, the Ninth Circuit Court

of Appeals affirmed the decision of the U.S. District

Court that recognized the Minnesota Panel decision.

Certiorari was denied by the United States Supreme

Court on April 18, 2011.

73.

The Winnemucca Indian Colony again

requested that the BIA recognize the government as

recognized by the Ninth Circuit and the United

States Supreme Court, but the BIA refused.

74.

The Interior Board of Indian Appeals (“IBIA”)

determined that the BIA was required to recognize

the government of a f

This text is long and has been trimmed here. Open the source document for the complete record.