Opposition Brief — Winnemucca Indian Colony, Petitioner v. United States

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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.

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