Opposition Brief — Winnemucca Indian Colony, Petitioner v. United States
Supreme Court briefAug 20, 2026
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No. 25-1170
In the Supreme Court of the United States
WINNEMUCCA INDIAN COLONY, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
D. JOHN SAUER
Solicitor General
Counsel of Record
ADAM R.F. GUSTAFSON
Principal Deputy Assistant
Attorney General
AMBER BLAHA
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
To establish that the Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C. 1491, and Indian Tucker Act, 28 U.S.C. 1505, over an Indian tribe’s
breach-of-trust claim seeking money damages from the
United States, the tribe must, among other things,
“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.” United States v. Navajo Nation, 556 U.S. 287, 290
(2009); see Arizona v. Navajo Nation, 599 U.S. 555, 564
& n.1 (2023). The question presented is:
Whether the reserved-water-rights doctrine of Winters v. United States, 207 U.S. 564 (1908), and 25 C.F.R.
152.22(b)’s provisions governing the conveyance of federal land held in trust for an Indian tribe are relevant
substantive sources of law that impose a specific duty
on the United States to prevent a third party from taking action upstream of an Indian reservation that diverts water from a stream that would have otherwise
flowed through the reservation.
(I)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 1
Argument..................................................................................... 11
Conclusion ................................................................................... 24
TABLE OF AUTHORITIES
Cases:
Agua Caliente Band of Cahuilla Indians v.
Coachella Valley Water Dist., 849 F.3d 1262
(9th Cir.), cert. denied, 583 U.S. 996 (2017) ..................... 21
Arizona v. California, 373 U.S. 546 (1963) ................... 15, 21
Arizona v. Navajo Nation,
599 U.S. 555 (2023)............................................. 11, 14-17, 21
Arizona v. San Carlos Apache Tribe of Arizona,
463 U.S. 545 (1983).............................................................. 21
Bank of Am., N.A. v. Bills, No. 3:00-cv-450,
2008 WL 682399 (D. Nev. Mar. 6, 2008),
aff ’d, 400 Fed. Appx. 159 (9th Cir. 2010),
cert. denied sub nom. Winnemucca Colony
Council v. Wasson, 563 U.S. 936 (2011) ......................... 3, 4
Bank of Am., N.A. v. Swanson, 400 Fed. Appx. 159
(9th Cir. 2010), cert. denied sub nom. Winnemucca
Colony Council v. Wasson, 563 U.S. 936 (2011) ................ 4
Brown v. Haaland,
604 F. Supp. 3d 1059 (D. Nev. 2022) ................................... 2
Cappaert v. United States, 426 U.S. 128 (1976)...... 15, 18, 21
Corner Post, Inc. v. Board of Governors of the
Fed. Reserve Sys., 603 U.S. 799 (2024) ............................. 23
Crow Creek Sioux Tribe v. United States,
900 F.3d 1350 (Fed. Cir. 2018) ........................................... 18
(III)
IV
Cases—Continued:
Page
Federal Power Comm’n v. Niagara Mohawk Power
Corp., 347 U.S. 239 (1954) .................................................. 17
Hopi Tribe v. United States,
782 F.3d 662 (Fed. Cir. 2015) ............................................. 18
John R. Sand & Gravel Co. v. United States,
552 U.S. 130 (2008).............................................................. 23
Sturgeon v. Frost, 587 U.S. 28 (2019) ............................ 17, 18
United States v. Adair, 723 F.2d 1394 (9th Cir. 1983),
cert. denied, 467 U.S. 1252 (1984) ..................................... 16
United States v. Jicarilla Apache Nation,
564 U.S. 162 (2011).............................................................. 14
United States v. Mitchell:
445 U.S. 535 (1980) .................................................... 13, 17
463 U.S. 206 (1983) .......................................................... 13
United States v. Navajo Nation:
537 U.S. 488 (2003) ......................................... 12-14, 16, 17
556 U.S. 287 (2009) ............................................... 12-15, 20
United States v. Tohono O’odham Nation,
563 U.S. 307 (2011)...................................................... 7, 8, 21
Ute Indian Tribe v. United States,
99 F.4th 1353 (Fed. Cir. 2024) ........................................... 18
Winnemucca Colony Council v. Wasson,
563 U.S. 936 (2011)................................................................ 5
Winnemucca Indian Colony v. United States,
No. 13-874, 2014 WL 3107445
(Ct. Fed. Cl. July 8, 2014) .......................................... 7, 8, 23
Winnemucca Indian Colony v. United States ex rel.
Dep’t of the Interior:
837 F. Supp. 2d 1184 (D. Nev. 2011) ................................ 3
No. 3:11-cv-622, 2018 WL 4714755 (D. Nev. Oct. 1,
2018), vacated, 819 Fed. Appx. 480 (9th Cir.
2020) .............................................................................. 6
V
Cases—Continued:
Page
819 Fed. Appx. 480 (9th Cir. 2020) .................................. 6
Winters v. United States, 207 U.S. 564 (1908) .............. 10, 15
Statutes and regulations:
Act of May 21, 1928, ch. 646, § 1, 45 Stat. 618 ....................... 2
Indian Tucker Act, 28 U.S.C. 1505 ............................ 7, 12, 13
Tucker Act, 28 U.S.C. 1491 ............................................... 7, 12
28 U.S.C. 1491(a)(1) ................................................... 12, 13
28 U.S.C. 1500 ..................................................... 7, 9-12, 21, 23
28 U.S.C. 2501 ............................................................ 10, 12, 23
Exec. Order No. 2639 (June 18, 1917) ................................... 2
Exec. Order No. 2803 (Feb. 8, 1918) ...................................... 2
25 C.F.R.
Section 152.22 ...................................................... 11, 19, 20
Section 152.22(b).............................................................. 19
In the Supreme Court of the United States
No. 25-1170
WINNEMUCCA INDIAN COLONY, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 3a-28a)
is reported at 156 F.4th 1339. The opinion and order of
the Court of Federal Claims (Pet. App. 29a-91a) is reported at 167 Fed. Cl. 396.
JURISDICTION
The judgment of the court of appeals was entered on
October 16, 2025. A petition for rehearing was denied on
January 8, 2026 (Pet. App. 1a-2a). The petition for a writ
of certiorari was filed on April 8, 2026. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
This case arises from a longstanding internal membership and leadership dispute within the Winnemucca
Indian Colony, a federally recognized Indian tribe. Petitioner contends that when the United States declined
for more than a decade to recognize one of two compet(1)
2
ing factions as the Tribe’s lawful government, its members “suffered without a permanently recognized government” because, as relevant here (and as alleged in
petitioner’s Third Claim), the United States “[a]s a result” failed to prevent a third party’s upstream diversion of water that had previously flowed through petitioner’s reservation. See Pet. 6-7; see also Pet. 4, 13-14;
Pet. App. 34a, 123a, 130a-131a.
1. a. In 1917 and 1918, President Wilson set aside
two quarter-sections (i.e., 320 acres) of surveyed land in
Nevada for a “band[] of homeless Shoshone Indians”
then residing near Winnemucca, Nevada. Exec. Order
No. 2639 (June 18, 1917) (second paragraph); Exec. Order No. 2803 (Feb. 8, 1918); see Pet. App. 4a, 121a. In
1928, Congress authorized the purchase of an additional
20-acre parcel near Winnemucca “to be used as an Indian colony.” Act of May 21, 1928, ch. 646, § 1, 45 Stat.
618; see Pet. App. 4a, 121a. After the Indians living on
that land, who were both Paiute and Shoshone, adopted
a representative form of government, the Assistant Secretary of the Interior for Indian Affairs approved petitioner’s constitution and by-laws in 1971. See Brown v.
Haaland, 604 F. Supp. 3d 1059, 1068 (D. Nev. 2022);
Pet. App. 97a-98a. Petitioner interprets the Tribe’s
constitution to require an individual to be at least onequarter Paiute or Shoshone by blood quantum in order
to be an enrolled member of the Tribe. Pet. App. 98a.
Since the 1980s, the Tribe’s political leadership “has
been subject to uncertainty and turmoil.” See Brown,
604 F. Supp. 3d at 1068-1070. By 2000, the Department
of the Interior (Department), acting through its Bureau
of Indian Affairs (BIA), had recognized the Tribe’s fivemember tribal council, which at the time included Glenn
Wasson as chairman; his son, Thomas Wasson; and Wil-
3
liam Bills, the vice chairman. Pet. App. 105a; see Winnemucca Indian Colony v. United States ex rel. Dep’t
of the Interior, 837 F. Supp. 2d 1184, 1186 (D. Nev. 2011).
In February 2000, Chairman Wasson reported to the
tribal council that Vice Chairman Bills might not be
properly enrolled as a member of the Tribe because he
had been adopted; the chairman further indicated that
action would be taken on that matter in the following
month’s council meeting. Pet. App. 105a. Less than two
weeks later, the chairman was murdered. Ibid.; see
Winnemucca, 837 F. Supp. 2d at 1186. The murder remains unsolved. See Pet. App. 105a.
After the murder, the Tribe’s council split into two
factions—the so-called “Wasson group,” which included
the murdered chairman’s son; and the “Bills/Ayers
group,” which was led by Vice Chairman Bills. Pet.
App. 5a; see Winnemucca, 837 F. Supp. 2d at 1186.
Each faction claimed to be “the proper tribal government and entitled to control of the Colony’s assets.”
Pet. App. 5a. The younger Wasson contended that
Bills—who petitioner asserts is “100% Filipino by blood
quantum,” id. at 115a; see id. at 106a; cf. Pet. 6—“was
not an Indian eligible for membership on the Council or
even membership in the [Tribe].” Winnemucca, 837 F.
Supp. 2d at 1186; see Pet. 106a.
b. In July 2000, in light of the Tribe’s governance
breakdown, the BIA determined that “[the Tribe] was
dysfunctional and refused to recognize any [tribal] government.” Winnemucca, 837 F. Supp. 2d at 1186-1187;
see Pet. App. 106a.
Lengthy litigation between the two factions ensued
in tribal courts. See Pet. App. 108a-110a. In 2001, the
Winnemucca Tribal Court initially determined that
Bills was the Tribe’s lawful acting chairman. See Bank
4
of Am., N.A. v. Bills, No. 3:00-cv-450, 2008 WL 682399,
at *1 (D. Nev. Mar. 6, 2008), aff ’d, 400 Fed. Appx. 159
(9th Cir. 2010), cert. denied sub nom. Winnemucca Colony Council v. Wasson, 563 U.S. 936 (2011). But after
holding a trial as directed by the Inter-Tribal Court of
Appeals, the tribal court determined that “no legitimately formed tribal council” existed. Id. at *2. Both
parties appealed and stipulated to the appointment of a
special appellate panel composed of judges from the
Sioux Nation in Minnesota to issue a binding decision.
Ibid. In 2002, the Minnesota panel determined that the
valid tribal council included specific individuals, a majority of whom were aligned with the Wasson group.
See ibid. It also determined that “subsequent activities
of the Bills Council” were “unconstitutional and invalid.” Ibid. (citation omitted).
The Bills/Ayers group appealed that decision to the
Inter-Tribal Court of Appeals, which, in 2007, dismissed
the case for lack of appellate jurisdiction. Bank of Am.,
2008 WL 682399, at *2. But in doing so, the court stated
that it “withdr[e]w the mandates of all orders and rulings.” Id. at *2, *5 (citation omitted). Each faction
claimed that the 2007 order favored its position. Ibid.;
see Pet. App. 110a-111a.
Meanwhile, Bank of America had filed an interpleader action in district court to determine whether
the Wasson group or the Bills/Ayers group was the lawful tribal government possessing authority over the
Tribe’s bank account. Bank of Am., 2008 WL 682399, at
*2. In 2008, the district court gave effect to the Minnesota panel’s 2002 decision. Id. at *6. In 2010, the Ninth
Circuit affirmed. Bank of Am., N.A. v. Swanson, 400
Fed. Appx. 159. And in 2011, this Court denied certio-
5
rari. Winnemucca Colony Council v. Wasson, 563 U.S.
936; see Pet. App. 111a-112a.
c. While litigation ensued on multiple fronts, the
BIA continued (from 2000 until late 2014) to “refuse[] to
recognize either faction as the [Tribe’s] government.”
Pet. App. 5a, 7a. Petitioner contends in this case that,
as relevant here, the United States failed during that
interregnal period to prevent a third-party development
company from diverting water for a subdivision from a
stream that had previously flowed through the 320-acre
portion of petitioner’s reservation, leaving “no available
water or water rights” for that land. Id. at 123a, 131a;
see Pet. 4, 6; see also Pet. App. 34a, 86a (discussing petitioner’s claims and noting that petitioner previously
asserted the diversion claim in 2013).
2. Because the United States was not a party to
Bank of America’s interpleader action, the action did
not definitively resolve the question of who properly represented the Tribe’s government. That question continued to spawn litigation, including two cases that preceded and are relevant to the present case.
a. In the first case, which was filed 2011, the Wasson
group sued the United States in the District of Nevada,
challenging the BIA’s failure to recognize them as petitioner’s lawful government. Pet. App. 5a-6a; see C.A.
App. 48-63 (amended complaint in Winnemucca Indian
Colony v. United States ex rel. Dep’t of the Interior, No.
3:11-cv-622 (D. Nev.)). The Bills/Ayers group intervened and argued that they should be recognized as petitioner’s lawful government. Pet. App. 7a.
In 2012, the district court initially ordered the BIA
to recognize Thomas Wasson as the representative of
the tribal council. Pet. App. 7a. After council members
were elected in October 2014, the court ordered the BIA
6
to recognize the election results, which also favored the
Wasson group. Ibid. Accordingly, in December 2014,
the BIA recognized the Wasson group as representing
petitioner’s lawful government. Id. at 7a, 33a.
The Bills/Ayers group, however, challenged the election results in tribal courts. Pet. App. 7a. After a tribal
appellate court upheld the election by affirming the dismissal of that challenge in 2016, the district court in the
Nevada action “extend[ed] comity” to the tribal-court
rulings in 2018. Id. at 8a (describing and quoting Winnemucca Indian Colony v. United States ex rel. Dep’t
of the Interior, 11-cv-622, 2018 WL 4714755, at *1
(D. Nev. Oct. 1, 2018)) (brackets in original).
The Bills/Ayers group appealed, but the United
States did not participate in that appeal. Pet. App. 8a.
In June 2020, the Ninth Circuit vacated the district court’s
judgment and remanded. Winnemucca Indian Colony
v. United States ex rel. Dep’t of the Interior, 819 Fed.
Appx. 480, 482-483 (2020). The court of appeals determined that the district court lacked authority to adjudicate the case because, when the case was filed, the Department—which had been conducting agency proceedings, including administrative review by the Interior
Board of Indian Appeals—had not reached a final agency
action deciding which group, if any, should be recognized as the Tribe’s council. Ibid. The Ninth Circuit
accordingly remanded with instructions (1) to dismiss
the case and (2) to “vacate the district court’s various
orders.” Id. at 483. After the Ninth Circuit issued its
mandate in December 2020, Pet. App. 8a, the district
court in the Nevada action issued an order implementing that mandate, which ended the case. 11-cv-622
D. Ct. Doc. 333 (Dec. 29, 2020).
7
b. In the second case, which was filed in 2013 while
the Nevada action was pending, petitioner sued the
United States in the Court of Federal Claims (CFC) for
money damages under the Tucker Act, 28 U.S.C. 1491,
and the Indian Tucker Act, 28 U.S.C. 1505. See C.A.
Supp. App. 462-481 (complaint in Winnemucca Indian
Colony v. United States, No. 13-874 (CFC)); id. at 463.
Petitioner alleged that the United States had breached
its trust duties to the Tribe by “unreasonably refusing
to recognize [petitioner’s] tribal government” and
thereby causing, inter alia, “the loss of water rights,”
id. at 462-463, by allowing water to be diverted over the
prior decade (2003-2013) from the stream crossing the
320-acre portion of petitioner’s reservation, which had
allegedly supplied the reservation with over “60 cubic
feet per second” of water, id. at 465 (¶¶ 14-15), see id.
at 477-480. In 2014, the CFC dismissed that damages
action under 28 U.S.C. 1500. Winnemucca Indian Colony v. United States, No. 13-874, 2014 WL 3107445
(July 8, 2014).
Section 1500 provides that the CFC “shall not have
jurisdiction” of “any claim for or in respect to which”
the plaintiff has “any suit or process” against the United
States (or an agent thereof ) “pending in any other
court.” 28 U.S.C. 1500; see United States v. Tohono
O’odham Nation, 563 U.S. 307, 311 (2011). In Tohono,
this Court held that Section 1500 prevents a plaintiff
from “carving up a single transaction into overlapping
pieces seeking different relief,” 563 U.S. at 315, by providing that the CFC will lack jurisdiction over a claim if
there is a “substantial overlap in operative facts” between the CFC claim and an earlier pending action, regardless of whether the actions seek different relief, id.
at 317-318. That jurisdictional bar is thus triggered by
8
the existence of a pending “action [that] is related although not identical” to the CFC claim, id. at 312, as it
“embodie[s]” principles reflected in “the doctrine of claim
preclusion,” under which the existence of a “factual overlap” with a previously adjudicated claim bars a plaintiff
from bringing additional “ ‘claims arising from the same
transaction,’ ” id. at 315-316 (citation omitted).
Applying that standard, the CFC dismissed the relevant claims in petitioner’s 2013 action because their “operative facts” were “substantially the same” as those in
the pending Nevada district court action challenging the
BIA’s failure to recognize petitioner’s government. Winnemucca, 2014 WL 3107445, at *3-*4 (citation omitted).
3. a. In November 2020—after the Ninth Circuit
had issued its decision in the Nevada action but while
the Nevada action remained pending—petitioner filed
this CFC action against the United States under the
Tucker and Indian Tucker Acts. Pet. App. 8a.1
In this case, petitioner “alleges that because of the
ongoing leadership dispute and the BIA’s failure to permanently recognize a government of the [Tribe] during
the dispute, the BIA failed to fulfill its trust responsibilities to the [Tribe] and prevented [it] from managing
and preserving its resources.” Pet. App. 34a; see id. at
29a. Petitioner’s amended complaint (id. at 92a-144a)
thus refers to the Bills/Ayer group as “the trespassers”
(id. at 103a) and recounts in detail the Tribe’s lengthy
internal-governance dispute and the BIA’s failure to
take sides in that dispute. See id. at 103a-118a. As relThe United States assumes arguendo that this action was
properly filed on behalf of the Winnemucca Indian Colony by persons representing its tribal government. Cf. Pet. App. 41a n.2
(CFC’s conclusion that it need not resolve whether “this suit is
brought by and through the [Tribe’s] duly elected council”).
1
9
evant here, petitioner’s Third Claim (id. at 130a-131a)
incorporates those factual allegations, id. at 130a, and
further asserts that the BIA then failed to prevent a
third party—the Offenhauser Development Company—
from diverting water from the stream that previously
supplied over “60 [cubic feet per second]” of water to
the 320-acre portion of petitioner’s reservation, water
which the company allegedly has held in “upstream
wells and holding tanks.” Id. at 123a, 131a; see, e.g.,
Pet. 4, 6.
b. The CFC dismissed each of petitioner’s 11 claims
for want of jurisdiction. Pet. App. 29a-91a; see id. at
41a. As relevant here, the CFC determined that it lacks
jurisdiction over petitioner’s Third Claim on three independent grounds. Id. at 42a-56a, 69a-86a.
First, the CFC determined that Section 1500 deprives it of jurisdiction over petitioner’s Third Claim because petitioner filed its CFC action against the United
States when its related 2011 Nevada district court action against the United States was still pending. Pet.
App. 42a-46a. The court noted that petitioner does not
“dispute that the claims asserted in [the Nevada action]
are substantially the same as the claims in this case.”
Id. at 43a. The court also observed that petitioner’s earlier 2013 CFC damages action against the United
States—which had similarly challenged the United
States’ purported failure to prevent the third-party
“upstream * * * diversion of water” from petitioner’s
reservation, id. at 86a—had been “dismissed under
§ 1500 due to the same concurrent [Nevada] litigation.”
Id. at 43a. The court thus explained that petitioner disputed Section 1500’s application only by arguing that
the Ninth Circuit appeal in the Nevada case “was not
pending ‘against the United States’ ” within the mean-
10
ing of Section 1500 “because the Government [did] not
participat[e] in the appeal.” Ibid. (citation omitted).
The CFC rejected that contention. Id. at 43a-46a.
Second, the CFC determined that it also lacks jurisdiction over petitioner’s Third Claim under the Tucker
and Indian Tucker Acts because petitioner has failed to
allege (as those jurisdictional statutes require) that the
United States’ alleged conduct violated any “specific
rights-creating or duty-imposing statutory or regulatory prescription[]” that “can fairly be interpreted as
mandating compensation for damages sustained as a result of [that] breach of [those] duties,” Pet. App. 48a49a. See id. at 47a-56a. The court rejected petitioner’s
reliance on President Wilson’s executive orders creating petitioner’s reservation “in conjunction with” the
reserved-water-rights doctrine in Winters v. United
States, 207 U.S. 564 (1908), because neither imposed
upon the United States any trust responsibility to enforce any reserved water “rights against third-party interference.” Pet. App. 50a, 53a-55a.
Finally, the CFC determined that petitioner’s Third
Claim is independently barred by 28 U.S.C. 2501’s sixyear statute of limitations. Pet. App. 69a-86a. The
court determined that the claim accrued more than six
years before petitioner filed this action in 2020, id. at
69a-70a, noting, among other things, that petitioner’s
2013 CFC complaint itself referred to the “upstream
subdivision’s diversion of water,” id. at 86a.
4. The court of appeals affirmed. Pet. App. 3a-28a.
The court determined that petitioner has failed in its
Third Claim to identify any money-mandating “substantive source of law that establishes specific fiduciary
or other duties” that the government allegedly violated,
id. at 12a-13a. See id. at 11a-15a. The court stated that
11
the source of law imposing the relevant duty must be “ ‘a
treaty, statute, or regulation,’ ” but the Winters doctrine is “a common law doctrine” that merely recognizes
that the federal government’s reservation of land for an
Indian tribe “ ‘implicitly reserves the right to use
needed water.’ ” Id. at 13a-14a (quoting Arizona v. Navajo Nation, 599 U.S. 555, 561, 563-564 (2023)). The
court noted that petitioner had invoked 25 C.F.R. 152.22
on appeal, but it concluded that the regulation, which
“does not mention water rights or establish any governmental duty relevant to the diversion of tribal water,”
has not imposed any “money-mandating duty relevant
to [petitioner’s water-diversion-focused claim in] Count
Three.” Pet. App. 14a.
The court of appeals stated that it “need not reach
[petitioner’s] section 1500 arguments” with respect to
the Third Claim because the court had affirmed that
claim’s dismissal on money-mandating-source-of-law
grounds. Pet. App. 24a-25a. The court, however, concluded that Section 1500 requires dismissal of several of
petitioner’s other claims in light of the Nevada district
court action, which “was filed first and remained pending when this suit was filed,” id. at 24a. See id. at 25a26a. With respect to those other claims, the court stated
that it had discretion to address petitioner’s argument
that their operative facts do not substantially overlap
with the Nevada action even if petitioner had forfeited
that contention below. Id. at 24a-25a & n.9. But the
court found that Section 1500 precludes jurisdiction
over those other claims because their operative facts
substantially overlap with the Nevada action. Id. at 26a.
ARGUMENT
Petitioner contends (Pet. 15-24) that the court of appeals erred in determining that petitioner has failed to
12
establish the CFC’s jurisdiction over petitioner’s Third
Claim under the Tucker Act, 28 U.S.C. 1491, and Indian
Tucker Act, 28 U.S.C. 1505, because petitioner failed to
identify a source of substantive law that imposed any
duty that the United States could have violated by purportedly failing to prevent a third party from diverting
water from the Tribe’s reservation. The decision of the
court of appeals is correct, does not conflict with any
decision of this Court or another court of appeals, and
does not warrant further review. Review is particularly
unwarranted because—as the CFC further held—the
jurisdictional bar in 28 U.S.C. 1500 and the statute of
limitations in 28 U.S.C. 2501 both confirm that the CFC
lacks jurisdiction over petitioner’s claim. The petition
for a writ of certiorari should be denied.
1. The court of appeals correctly determined that
petitioner failed to establish the CFC’s jurisdiction over
its Third Claim under the Tucker and Indian Tucker
Acts seeking damages for a third party’s alleged diversion of water from the Tribe’s reservation.
a. The Tucker Act grants the CFC jurisdiction over
“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, * * *
in cases not sounding in tort.” 28 U.S.C. 1491(a)(1). The
Indian Tucker Act extends the terms of the Tucker Act
to Indian tribes by allowing a tribe to bring suit in the
CFC on a claim that “otherwise would be cognizable in
the [CFC] if the claimant were not an Indian tribe,” 28
U.S.C. 1505. See United States v. Navajo Nation, 556
U.S. 287, 290 (2009) (Navajo II); United States v. Navajo Nation, 537 U.S. 488, 503 & n.10 (2003) (Navajo I).
The Indian Tucker Act additionally permits suit on cer-
13
tain claims arising under “treaties of the United States”
and “Executive orders,” 28 U.S.C. 1505, but the two
Acts otherwise provide the “same access” to relief.
United States v. Mitchell, 445 U.S. 535, 540 (1980)
(Mitchell I).
While the Tucker Acts address claims “founded * * *
upon” (28 U.S.C. 1491(a)(1)) or “arising under” (28
U.S.C. 1505) the Constitution or a federal statute or
regulation, it is well settled that “[n]ot every claim invoking the Constitution, a federal statute,” treaty, regulation, or executive order “is cognizable.” United
States v. Mitchell, 463 U.S. 206, 216 (1983) (Mitchell II).
Instead, “[t]he claim must be one for money damages
against the United States, and the claimant must
demonstrate that the source of substantive law [it] relies upon ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage
sustained.’ ” Id. at 216-217 (citation omitted); accord
Navajo I, 537 U.S. at 503.
A tribal plaintiff asserting a non-contract claim under the Tucker or Indian Tucker Act must therefore
clear “two hurdles” to invoke federal jurisdiction. Navajo II, 556 U.S. at 290. “First, the tribe ‘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.’ ” Ibid.
(quoting Navajo I, 537 U.S. at 506). That “threshold”
showing must be based on “specific rights-creating or
duty-imposing [constitutional,] statutory, or regulatory
prescriptions”—or, for Indian Tucker Act claims, such
prescriptions in a treaty or executive order—that establish “specific fiduciary or other duties” that the government allegedly has failed to fulfill. Navajo I, 537 U.S.
14
at 506; see Arizona v. Navajo Nation, 599 U.S. 555, 564
(2023).
That threshold requirement reflects that “the trust
obligations of the United States to the Indian tribes are
established by Congress and the Executive, not created
by the Judiciary.” Arizona, 599 U.S. at 564 n.1. And
because “[t]he Federal Government owes judicially enforceable duties to a tribe ‘only to the extent it expressly
accepts those responsibilities,’ ” courts “must adhere to
the text of the relevant law” as drafted by Congress or
the Executive when analyzing a tribe’s breach-of-trust
claims under the Tucker Acts. Id. at 564 & n.1 (quoting
United States v. Jicarilla Apache Nation, 564 U.S. 162,
177 (2011)). Accordingly, those Acts do not grant jurisdiction over claims based on “common-law trust principles,” which are defined by the courts. Navajo II, 556
U.S. at 301; see Arizona, 599 U.S. at 566 (“[T]his Court
will not ‘apply common-law trust principles’ to infer duties not found in the text of a treaty, statute, or regulation.”) (citation omitted).
Second, “[i]f that threshold is passed,” the tribal plaintiff must additionally show that “the relevant source of
substantive law,” the violation of which forms the basis
of its claim, “ ‘can fairly be interpreted as mandating
compensation for damages sustained as a result of a
breach of the duties the governing law imposes.’ ” Navajo II, 556 U.S. at 290-291 (quoting Navajo I, 537 U.S.
at 506) (brackets and citation omitted).
b. Neither of the two bases that petitioner invokes
for its request for damages arising from the United
States’ purported failure to prevent a third party’s diversion of water resources from the Tribe’s reservation
(petitioner’s Third Claim) satisfies those Tucker Act requirements.
15
i. First, petitioner invokes (Pet. 12, 15-21) the
reserved-water-rights doctrine of Winters v. United
States, 207 U.S. 564 (1908), under which the establishment of an Indian reservation or other federal reservation, automatically and “by implication, reserves appurtenant water then unappropriated to the extent needed
to accomplish the purpose of the reservation.” Cappaert v. United States, 426 U.S. 128, 138 (1976) (citing
Winters, 207 U.S. at 576); see Arizona, 599 U.S. at 561.
For at least three reasons, that doctrine interpreting
the existence and scope of the property rights that accompany a federal reservation cannot establish jurisdiction over petitioner’s claim.
Most simply, the Winters doctrine is not a provision
in the Constitution, a statute, a treaty, a regulation, or
an executive order the text of which might show that the
United States has “ ‘expressly accept[ed]’ ” the responsibility to perform certain “enforceable duties to a
tribe.” Arizona, 599 U.S. at 564 (citation omitted). Just
like “common-law trust principles” established by the
courts, the judicial doctrine cannot form the basis for a
Tucker or Indian Tucker Act claim. Id. at 566 (citation
omitted); see Navajo II, 556 U.S. at 302; pp. 13-14, supra.
Furthermore, the Winters doctrine does not even
“create a trust obligation” requiring the United States
to prevent third parties from appropriating water upstream from an Indian reservation. Pet. App. 13a. The
doctrine simply recognizes that the “bundle of property
rights that makes up a reservation” (Arizona, 599 U.S.
at 563) includes a right to use certain unappropriated
water, which vests no later than “the date of the reservation” and is thus “superior to the rights of future appropriators,” Cappaert, 426 U.S. at 138; see Arizona v.
16
California, 373 U.S. 546, 600 (1963); United States v.
Adair, 723 F.2d 1394, 1413-1414 (9th Cir. 1983) (noting
that tribe’s water rights can be aboriginal rights, which
vest earlier), cert. denied, 467 U.S. 1252 (1984). Even if
the creation of that property right were to reflect “a
trust relationship” between the United States and the
relevant tribe, it would reflect only a “limited or bare”
trust that cannot impose “duties [on the United States]
not found in the text of a treaty, statute, or regulation.”
Arizona, 599 U.S. at 565-566.
Finally, the Winters doctrine cannot be fairly interpreted to mandate compensation in damages. It simply
addresses the existence and scope of relevant property
rights reserved when the federal government creates a
reservation, not the remedies that would be appropriate
if those rights are violated.
Petitioner contends (Pet. 15-19) that this Court’s decision in Arizona v. Navajo Nation, supra, is distinguishable because, it asserts, Arizona considered a contention by a tribe that the United States was obligated
to take “affirmative steps to find new water” for the
tribe, not (as here) to prevent a third party’s interference with “existing water,” Pet. 15-16. But even if that
distinction were valid, petitioner fails to explain (1) how
the Winters doctrine could be considered a “substantive
source of law”—like a statute, treaty, or regulation—
the text of which might impose “specific fiduciary or
other duties” on the United States, Navajo I, 537 U.S.
at 506; (2) why the doctrine should be understood to impose an obligation on the United States to take affirmative acts to prevent third parties from diverting water
from a reservation; or (3) why the doctrine is fairly interpreted as mandating a damages remedy from the
United States for such third-party diversions. Each of
17
those shortcomings is independently fatal to petitioner’s position.
In any event, petitioner’s proffered distinction runs
dry. The Court’s decision in Arizona applied the general principle—applicable to “claims seeking damages
from the United States pursuant to the Tucker Act and
Indian Tucker Act”—that a tribe asserting a “breachof-trust claim * * * must establish, among other things,
that the text of a treaty, statute, or regulation impose[s]
certain duties on the United States” through “ ‘specific
rights-creating or duty-imposing’ language in [those
provisions]” because “the trust obligations of the United
States to the Indian tribes are established by Congress
and the Executive, not created by the Judiciary.” Arizona, 599 U.S. at 563-564 & n.1 (quoting Navajo I, 537
U.S. at 506, and citing, e.g., Mitchell I, 445 U.S. at 542,
546). That principle is not limited to alleged violations
of water-related rights and does not turn on a distinction between new and existing water.
Petitioner’s distinction between new and existing
water is also misplaced. Neither the United States nor
petitioner owns the surface or ground waters that run
through the Tribe’s reservation. See Sturgeon v. Frost,
587 U.S. 28, 42 (2019) (Unlike “the lands beneath th[em],”
“running waters cannot be owned—whether by a government or by a private party.”). The water rights reserved for the Tribe’s reservation are “ ‘usufructuary’ ”
rights, i.e., rights “to use—whether by withdrawing or
maintaining—certain waters [that the rights-holder]
does not own.” Id. at 43 (discussing rights under the
Winters doctrine); see Federal Power Comm’n v. Niagara Mohawk Power Corp., 347 U.S. 239, 247 (1954) (distinguishing usufructuary water rights from “claims to
the legal ownership of the water itself ”). Such a right
18
“merely enables [its holder] to take or maintain the specific ‘amount of water’—and ‘no more’—required to ‘fulfill the purpose [of the federal] reservation.’ ” Sturgeon,
587 U.S. at 44 (quoting Cappaert, 426 U.S. at 141). No
relevant distinction therefore exists between “new” and
“existing” water in this context because any water right
that the Tribe might invoke is a general right to use water within a river system, not a right to any specific collection of water molecules. See Crow Creek Sioux Tribe
v. United States, 900 F.3d 1350, 1357 (Fed. Cir. 2018)
(explaining that a tribe “has no right to any particular
molecules of water, either on [a] Reservation or up- or
downstream”).2
Petitioner suggests (Pet. 19-22) that the court of appeals’ earlier
decision in Ute Indian Tribe v. United States, 99 F.4th 1353 (Fed.
Cir. 2024), recognizes a distinction between “new” and “existing”
water and allowed Tucker Act claims alleging “the United States[’]
failure to protect existing water” to proceed, Pet. 20 (emphasis omitted). But petitioner misreads that decision. Ute Indian Tribe addressed a 1906 statute, the “text” of which the court viewed as imposing on the United States “a duty to ‘hold and operate’ [certain]
irrigation systems ‘in trust for the Indians’ ”—a duty that the tribe
alleged had been breached by allowing the “infrastructure to fall into
‘a grave state of disrepair.’ ” 99 F.4th at 1368 (brackets and citations
omitted). Although the court determined that the Act “obligat[ed]
the United States to protect and preserve th[at] water infrastructure,” it declined to decide whether “[t]he language of the 1906 Act”
imposed a more “general obligation to protect and preserve water
rights.” Id. at 1370. The court simply left that question for remand
because the CFC had “not specifically address[ed]” it. Ibid.
Petitioner’s focus (Pet. 17-18) on Hopi Tribe v. United States, 782
F.3d 662 (Fed. Cir. 2015), is similarly misplaced. In Hopi Tribe, the
court of appeals held that the tribe there failed to identify any substantive source of law establishing a “fiduciary duty to ensure adequate water quality” on the tribe’s reservation. Id. at 668, 671. In
so holding, the court declined to decide whether “Congress intended
the term ‘land’ in [a 1958 statute] to include reserved water rights
2
19
ii. Second, petitioner’s reliance (Pet. 12, 23-24) on 25
C.F.R. 152.22 is also unavailing. The regulation provides that “[l]ands held in trust by the United States for
an Indian tribe” and “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 the Act of Congress authorizing sale provides that approval is unnecessary.” 25 C.F.R. 152.22(b).
That regulation has no application here. Its requirement of statutory authority and secretarial approval
concerns only the “convey[ance]” of “[l]ands held in
trust by the United States” or “land owned by an Indian
tribe.” Ibid. It “does not mention water rights or establish any governmental duty relevant to the diversion
of tribal water,” much less to third-party diversions like
that alleged in petitioner’s Third Claim. Pet. App. 14a.
Petitioner briefly suggests (Pet. 23) that “the word
‘water’ may be implied” as part of Section 152.22
“through [the] Winters” doctrine because, under that
doctrine, the regulation’s express reference to “ ‘[l]ands
held in trust by the United States for an Indian tribe’ ”
purportedly “also means water.” That contention fails
for multiple reasons. As an initial matter, the regulation governs the “convey[ance]” of land. 25 C.F.R.
152.22(b). Land and its ownership, as discussed above,
are different from any usufructuary water right that
might be reserved when a federal government establishes a reservation from land that it owns. That water
under the Winters doctrine,” adding that even if it did, the statute
would “[a]t most” impose a duty to exercise those rights and “exclude others from diverting or contaminating water” flowing to the
reservation, not to eliminate naturally occurring contaminants. Id.
at 669. Such dicta—concerning a potential reading of a statute irrelevant to this case—provide petitioner no meaningful support.
20
right is not even a “ownership” right to any particular
water. See pp. 17-18, supra.
Moreover, even if one could properly equate the conveyance of land addressed by Section 152.22 with a conveyance of an associated water right, petitioner’s Third
Claim does not allege that the government has approved
any conveyance of any water rights to a third party. Petitioner instead contends that the United States failed
to prevent a third party from diverting water upstream
of the Tribe’s reservation, a diversion that would be unlawful if the third party’s use interferes with the reservation’s relevant needs and the third party lacked water
rights with a priority date superior to those reserved
for the reservation. But failing to prevent a third party
from taking action that impairs a water right for a reservation is fundamentally different from “convey[ing]”
that right to the third party. And petitioner’s focus
(Pet. 23-24) on whether the regulation could be fairly
interpreted as “money mandating” fails to confront the
Tucker Act’s distinct threshold requirement that petitioner identify a relevant source of law having text imposing “specific fiduciary or other duties” that petitioner alleges the United States failed to perform, Navajo II, 556 U.S. at 290 (emphasis added; citation omitted). See pp. 13-14, supra.
2. Petitioner incorrectly suggests (Pet. 15, 25) that,
absent a claim for money damages from the United
States under the Tucker Acts, its reservation will be
“reduced to useless sand without water.” Any water
rights reserved for the Tribe’s reservation under the
Winters doctrine continue to exist and can be enforced
against third parties who impair those rights.
Such reserved water rights, which vest no later than
“the date of the reservation,” are “superior to the rights
21
of future appropriators,” Cappaert, 426 U.S. at 138; see
Arizona v. California, 373 U.S. at 600, and “are not lost
through non-use,” Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262,
1272 (9th Cir.), cert. denied, 583 U.S. 996 (2017). Moreover, those rights may be adjudicated in federal or state
proceedings. See Arizona v. San Carlos Apache Tribe
of Arizona, 463 U.S. 545 (1983). Thus, as this Court has
observed in another context, the Tribe “may be able to
assert the interests [that it] claim[s] in water rights litigation” and, if it does, “courts will then assess the
[Tribe’s] claims and motions as appropriate.” Arizona,
599 U.S. at 568-569.
3. In any event, this case would be a poor vehicle for
review because two additional bases exist for dismissing
petitioner’s Third Claim for lack of jurisdiction.
a. First, the CFC correctly determined that Section
1500 deprived it of jurisdiction over that claim because
there is a “substantial overlap” between the claim’s “operative facts,” United States v. Tohono O’odham Nation, 563 U.S. 307, 318 (2011), and those in petitioner’s
2011 Nevada action, which was still pending when petitioner filed its complaint in this case. See Pet. App. 42a46a. That “factual overlap” illustrates that the “related
although not identical” claim in this case “ ‘ar[ose] from
the same transaction’ ” as those in the Nevada case and
is therefore barred by Section 1500. Tohono, 563 U.S.
at 312, 316 (citation omitted); see pp. 7-8, supra.
In the CFC, petitioner did not even “dispute that the
claims asserted in [the Nevada district court action] are
substantially the same as the claims in this case.” Pet.
App. 43a. In briefing, petitioner argued only that the
Nevada case was not then pending against the United
States because the appeal was a different proceeding in
22
which the United States did not participate. See C.A.
App. 182, 191-192. Petitioner continued to assert at oral
argument that “the appeal [was] a new process” and it
was therefore a “new case” to which “the United States
[was] not a party.” Id. at 403. Petitioner also asserted
orally that the appeal in the Nevada case did not involve
“the same set of facts” as this case because, in the Ninth
Circuit, the appellants (the Bills/Ayers group) “never
made the argument” that they were “tribal members”
and, thus, made “no argument” that under the Tribe’s
constitution they were “the properly seated tribal council.” Id. at 402-403. But petitioner did not dispute that
the operative facts in the Nevada district court action
against the United States—which remained pending until after the Ninth Circuit’s mandate remanding the
case—substantially overlap with the operative facts for
its relevant claims in this case. Petitioner’s Third Claim
ultimately attributes various injuries to the United
States’ inaction purportedly stemming from its failure
to recognize petitioner’s side as the Tribe’s lawful council. See pp. 8-9, supra; see also, e.g., Pet. App. 29a (“The
events underpinning [petitioner’s] claims relate to a
long-running internal tribal dispute about the [Tribe’s]
proper membership and leadership.”), 34a-35a (explaining that petitioner alleges “encroachments and harms”
that were purportedly the “result” of BIA inaction “during the pendency of the leadership dispute” that “prevented the [Tribe] from managing and preserving its resources”).
Moreover, petitioner’s Third Claim in this case directly tracks the water-rights claim in its earlier 2013
CFC action, which asserted that the United States’ purportedly unreasonable failure to recognize petitioner’s
tribal government caused, through resulting inaction,
23
the diversion of the stream that carried “60 cubic feet
per second” of water to the 320-acre portion of the
Tribe’s reservation. C.A. Supp. App. 465 (¶¶ 14-15), 479
(¶ 100.e); see p. 7, supra. The Third Claim here rests
on the same purported government-inaction-caused diversion of the same “60 [cubic-foot-per-second]” stream,
which is allegedly the only water source for the 320-acre
portion of the reservation. Pet. App. 123a, 131a; see pp.
8-9, supra. The CFC dismissed petitioner’s 2013 damages action under Section 1500 because it had “substantially the same operative facts” as the Nevada district
court action. Winnemucca Indian Colony v. United
States, No. 13-874, 2014 WL 3107445, at *3-*4 (July 8,
2014) (citation omitted). And under the doctrine of collateral estoppel, petitioner cannot now properly challenge that determination regarding its earlier claim
that directly tracks its Third Claim here.
b. Second, the CFC correctly determined that petitioner’s Third Claim is barred by a six-year statute of
limitations, which begins to run when a “claim first accrues,” 28 U.S.C. 2501. See Pet. App. 69a-86a; cf. John
R. Sand & Gravel Co. v. United States, 552 U.S. 130,
133-139 (2008) (Section 2501’s limitations period is jurisdictional). A claim accrues “ ‘when the plaintiff has a
complete and present cause of action,’ ” i.e., when “the
plaintiff suffers the injury required to press [its] claim
in court.” Corner Post, Inc. v. Board of Governors of
the Fed. Reserve Sys., 603 U.S. 799, 810-811 (2024) (citation omitted). And as just noted, petitioner asserted
the same water-diversion-focused claim in its 2013 CFC
action, demonstrating that the claim accrued more than
six years before petitioner filed this action in November
2020.
24
The court of appeals did not decide whether an action
—such a purported failure to stop a third party’s “construc[tion]” of a structure that impinges a property
right—may be viewed as supporting separate “continuing claims” if the structure has continuing effects due to
its ongoing existence or operation. Pet. App. 21a-23a.
But the relevant claim here is not that a third party continues to violate petitioner’s asserted water rights; it is
that the United States wrongfully failed to act during
the Tribe’s internal leadership dispute to stop the third
party’s construction of the upstream structures that
continue to divert water from the Tribe’s reservation.
And when the CFC asked petitioner’s counsel whether
petitioner could identify “any discrete events” with respect to its claims involving the 320-acre portion of the
reservation that “occurred in the six years prior to the
filing of [its] complaint” in this case, petitioner failed to
do so. C.A. App. 407-408. Petitioner simply represented that beyond “the diversion from the company”
that it had alleged, it was “looking into” whether another third party “subsequent[ly] * * * diverted water”
but did not “have all the facts at this point.” Ibid.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
D. JOHN SAUER
Solicitor General
ADAM R.F. GUSTAFSON
Principal Deputy Assistant
Attorney General
AMBER BLAHA
Attorneys
AUGUST 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.