808 F.3d 1234
10th Cir.2015Background
- In 1864 U.S. Army troops attacked and killed many Cheyenne and Arapaho at Sand Creek; the United States later condemned the attack and agreed to reparations in the Treaty of Little Arkansas (1865).
- Congress appropriated $39,050 in 1866 to pay those reparations; some funds allegedly were paid to tribes, some returned to surplus, and no comprehensive accounting was provided.
- Descendants of massacre victims sued seeking a trust accounting, alleging the government held reparations funds in trust and breached fiduciary duties by failing to account.
- Defendants moved to dismiss for lack of subject-matter jurisdiction, arguing sovereign immunity bars suit absent an express waiver; the district court dismissed and the plaintiffs appealed.
- The Tenth Circuit considers whether any statute (notably Interior Appropriations provisions) unequivocally waived sovereign immunity and whether a trust relationship existed that would trigger fiduciary duties and the applicability of any waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Congress (via Appropriations Acts including the 2009 Act) waived sovereign immunity | The Appropriations language tolling accrual until an accounting "expressly waived" immunity and permits suit | No explicit waiver in the Appropriations language; tolling of limitations is not a consent to be sued | Held: Appropriations Acts do not unequivocally waive sovereign immunity; tolling alone insufficient |
| Whether Shoshone II establishes that the Appropriations Acts themselves waive immunity | Shoshone II allegedly recognized such a waiver and supports plaintiffs | Shoshone II only held tolling preserved an independent statutory waiver (e.g., Tucker Act); it did not turn tolling language into an independent waiver | Held: Shoshone II does not support plaintiffs; it preserves waivers already found in other statutes but does not create new waivers |
| Whether the Treaty of Little Arkansas and the 1866 appropriation created a trust relationship imposing fiduciary duties | Treaty + appropriation created an ongoing trust (corpus: appropriated funds) and Secretary control; thus plaintiffs can seek an accounting | Neither the treaty nor appropriation contains express trust-creating language or a regulatory framework imposing ongoing fiduciary duties; at most a one-time discretionary payment | Held: No statutory or regulatory text unambiguously created enforceable fiduciary duties here; thus no trust and no right to an accounting |
| If there were a trust, whether the Appropriations Acts’ tolling would apply | If a trust exists, the 2009 Act’s tolling would defer accrual until accounting and permit suit | Tolling statute applies only to ‘‘losses to or mismanagement of trust funds’’ and presupposes a trust; absent a trust it doesn’t help plaintiffs | Held: Even if the 2009 Act waived immunity (it does not), its scope is limited to existing trust mismanagement claims and so would not cover plaintiffs absent a trust |
Key Cases Cited
- United States v. Testan, 424 U.S. 392 (establishes sovereign immunity baseline)
- United States v. Nordic Village, Inc., 503 U.S. 30 (waivers of sovereign immunity must be unequivocal)
- United States v. Murdock Mach. & Eng’g Co. of Utah, 81 F.3d 922 (sovereign immunity bars injunctive relief absent waiver)
- Fletcher v. United States, 730 F.3d 1206 (requirement to identify waiver to sue government re Indian trust claims)
- El Paso Natural Gas Co. v. United States, 750 F.3d 863 (statute must create rights/duties to find fiduciary obligation)
- Shoshone Indian Tribe v. United States, 364 F.3d 1339 (Fed. Cir.) (Appropriations tolling preserved claims where independent Tucker Act waiver existed)
- United States v. Mitchell, 445 U.S. 535 (Mitchell I) (mere trust wording insufficient to impose full fiduciary duties)
- United States v. Mitchell, 463 U.S. 206 (Mitchell II) (specific statutes/regulations can create enforceable fiduciary duties)
- United States v. Navajo Nation, 537 U.S. 488 (examines when statutory scheme imposes managerial fiduciary duties)
- United States v. White Mountain Apache Tribe, 537 U.S. 465 (statute creating trust over land supported inference of trustee duties)
- Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir.) (appropriations alone do not create enforceable trust relationship)