Motion to Dismiss; Lack of Subject Matter Jurisdiction; Failure to State a Claim; Exhaustion of Administrative Remedies; Issue Preclusion; 1868 Ute Treaty; “Bad Men” Provision. OPINION
FINDINGS OF FACT
On April 1, 2013, plaintiffs filed their complaint in the United States Court of Federal Claims. 1 Plaintiffs allege that on April 1, 2007, “Utah State Trooper Dave Swenson sent a radio dispatch from his patrol car advising the Utah central Police Dispatch that he was pursuing a car containing ‘two tribal males’ for a speeding violation.” Trooper Swenson later testified 2 that the vehicle was traveling 74 miles per hour in a 65 mile an hour zone. The driver of the vehicle was 17-year-old Uriah Kurip, and his lone passenger was the decedent, 21-year-old Todd Murray. The alleged speeding violation occurred just outside the boundary of the Ute Tribe’s Uncompaghre Reservation in Utah. In what Trooper Swenson later testified he viewed as an attempt to evade police pui’suit, Mr. Kurip turned off U.S. Highway 40, onto State Road 88, an intersection located more than two miles outside the boundary of the Uncompaghre Reservation. Although Trooper Swenson began his pursuit off the Uncompaghre Reservation, the pursuit carried into the Uncompaghre Reservation, land held by the Ute Indians, and ended 25 miles south of the intersection of U.S. 40 and State Road 8 at the intersection of Seep Ridge Road and Turkey Track Road, an intersection also inside the boundary of the Uncom-paghre Reservation. Once stopped, Mr. Ku-rip and Mr. Murray exited their vehicle and stood on either side of the vehicle. The amended complaint reflects that Trooper Swenson testified that he exited his vehicle with his gun draw and ordered the two to the ground. Mr. Kurip and Mr. Murray exchanged looks and Trooper Swenson repeated the command two or three times, after which Mr. Kurip and Mr. Murray ran from their vehicle in opposite directions. Trooper Swenson pursued Mr. Kurip on foot and quickly apprehended him.
Responding to Trooper Swenson’s earlier radio dispatch requests for help, off-duty *495 Vernal City police officer Vance Norton was next to arrive on the scene, dressed in street clothes and driving his personal vehicle. Officer Norton set off on foot in pursuit of Mr. Murray. Utah Highway Patrol Trooper Craig Young and Uintah County Deputy An-thoney Byron subsequently joined in the search. Officer Norton later testified he eventually encountered Mr. Murray as Mr. Murray was rounding a hill. According to the amended complaint, Officer Norton testified he saw Mr. Murray before Mr. Murray saw him. Officer Norton allegedly raised his gun and shouted, “POLICE — GET TO THE GROUND.” (capitalization in original). Also, according to the amended complaint, Officer Norton recalled seeing something in Mr. Murray’s hand, but admitted that he could not tell what was in Mr. Murray’s hand. Defendant indicates in its motion to dismiss that it was later determined Mr. Murray was carrying an illegally purchased .380 caliber handgun. Further, according to plaintiffs’ amended complaint, Officer Norton indicated Mr. Murray raised his hand and fired shots, and Officer Norton, in turn, fired two rounds at Mr. Murray. The amended complaint states that “Norton alleges that Murray then turned the gun on himself and pulled the trigger. Officer Norton contacted dispatch, advised that shots had been fired and that Murray had shot himself.” “At the time of the shooting, Officers Byron and Young state they were approaching from the south with their firearms drawn. Officers Byron and Young worked together to handcuff Murray.” Plaintiffs contend that Trooper Swenson, Officer Norton, “Defendant” Byron, and “Defendant” Young 3 are not cross-deputized by the federal government or the Ute Tribe to exercise law enforcement powers over Native Americans inside the Ute Tribe’s Reservation. 4
After the shooting, a number of other officers arrived at the scene, including Special Agents Rex Ashdown and David Ryan with the Federal Bureau of Investigation (FBI) and various officials from the Bureau of Indian Affairs (BIA). In their amended complaint, plaintiffs allege that the FBI and BIA officers “ostensibly assumed jurisdiction of the scene” because “the shooting scene was in Indian Country,” yet “[t]he FBI and BIA officers on the scene were complieit in the State officers’ improper assertion of jurisdictional authority over the shooting site.” Plaintiffs further allege that Raymond Wissi-up, a member of the Ute Tribe and a eerti- *? fied law enforcement officer was excluded from the scene. In addition, plaintiffs contend that the law enforcement officers did not segregate, question, or search the officers involved in Mr. Murray’s shooting, nor properly process their firearms.
At 11:30 a.m., immediately following the shooting, “Officer Norton contacted dispatch, advised that shots had been fired and that Murray had shot himself.” Plaintiffs allege that an ambulance did not arrive on the scene until 12:02 p.m., and further allege that prior to its arrival, Mr. Murray was alive, but no state or federal officer provided him medical aid. According to the amended complaint, when the ambulance arrived on the scene, Mr. Murray’s “breathing was labored, his limbs were twitching, and he was unconscious. There was a copious amount of blood around his head.” The ambulance transported Mr. Murray to Ashely Valley Medical Center, where he was pronounced dead at 1:19 p.m. According to the amended complaint, the “FBI and the BIA officers then allowed the Utah state, county and municipal officers to transport Murray’s body to the Thomson-Blackburn Vernal Mortuary (Mortuary) in Vernal, Utah, for holding overnight until the body could be transported to the Utah State Medical Examiner’s office for an autopsy the next day.”
Plaintiffs contend that the FBI and BIA officers “took no action to secure Todd Murray’s remains or the crime scene itself.” Plaintiffs also assert that “municipal officers present at the medical center proceeded to violate Murray’s dignity and to tamper with the physical evidence.” While at the hospital, plaintiffs allege that Mr. Murray’s body was unnecessarily and inappropriately disrobed, manipulated, and photographed. Officer Byron was allegedly photographed with his finger inserted in Mr. Murray’s head wound. Plaintiffs assert that BIA Officer Kevin Myore was present at the medical center and “condoned and participated in, or failed to prevent, the illegal and unethical desecration of Mr. Murray’s remains and the spoliation of critical evidence.” Plaintiffs also claim that “Special Agent Ashdown took no action to secure and preserve Mr. Murray’s body at the Mortuary” and instead was “eomplicit in the additional acts of horrific desecration and evidence tampering that took place at the Mortuary.” Further, plaintiffs claim that the Vernal City Police Chief Gary Jensen “admits” to inserting a needle into Mr. Murray to draw blood, and allege that “Chief Jensen then allegedly directed a mortuary employee to make an unauthorized incision to Murray’s jugular vein, from which two vials of blood were purportedly drawn, although neither the Utah state nor the federal law enforcement officers have ever accounted for the blood vials drawn from Murray’s body at the Mortuary.” Plaintiffs also contend, “[njeither the Mortuary, nor any law enforcement officers, obtained the permission of Mr. Murray’s next of kin to desecrate Todd Murray’s remains in this manner.”
The amended complaint states that Mr. Murray’s body was next transported to the Utah Office of the Medical Examiner. The Utah Office of the Medical Examiner allegedly “elected to forego an autopsy and to perform only a simple external examination of Mr. Murray’s body.” Plaintiffs indicate that:
OME’s [Utah Office of the Medical Examiner’s] final pathological diagnosis was that the entrance wound on Mr. Murray’s head was on the lateral left scalp and the exit wound was on the upper posterior right scalp. Thus, the gunshot wound that killed Todd R. Murray entered on the left side of Mr. Murray’s head and exited on the right side of Mr. Murray’s head.
(emphasis in original). Plaintiffs further note that the Utah Office of the Medical Examiner reported that Mr. Murray arrived with his hands “bagged” and that no soot was found on either of Mr. Murray’s hands, his left hand was clean and free of any debris or blood, and his right hand was bloody. Moreover, plaintiffs allege that “the FBI officers and the BIA officers allowed the Utah Medical Examiner’s Office to list the cause of Todd Murray’s death as a suicide, when the Medical Examiner himself later testified that he could not rule out the possibility that Todd Murray was shot in the back of his head execution style.” Plaintiffs, therefore, challenge Officer’s Norton version of events and state that “Todd Murray did not shoot *497 himself execution-style in the back of his head.” (emphasis in original).
In addition, plaintiffs contend that “all of the evidence the FBI and BIA officers were responsible for — and that would have been of a dispositive nature in this ease — has been destroyed or altered,” and that, throughout, the FBI and BIA officers disregarded proper investigatory procedure and preservation of evidence. Specifically, plaintiffs contend that the firearm that Mr. Murray allegedly fired during his encounter with Officer Norton was destroyed by the FBI and not forensically tested and that Mr. Murray’s person or clothing were never forensically tested. Plaintiffs contend the same regarding preservation and forensic testing of Officer Norton’s firearm, personal vehicle, person, and clothing. Plaintiffs further contend that Officer Norton was not sequestered, but was allowed free access to the scene of the shooting, thereby giving Officer Norton the “opportunity to tamper with the physical evidence.” Plaintiffs also allege other failures, including lack of documentation of the scene, failure to administer medical aid to Mr. Murray, improper handling of, and tampering with, Mr. Murray’s body at the medical center, mortuary, and Utah Office of the Medical Examiner, resulting in “significantly altered and potentially destroyed critical evidence,” and failure by the Utah Office of the Medical Examiner to perform an autopsy of Mr. Murray’s body.
According to the complaint, “[t]hree weeks after the shooting, members of Todd Murray’s family met with FBI Agent Ashdown.” Plaintiffs allege that “[t]he family members explained to Agent Ashdown that Todd Murray was a right-handed individual; they told Ashdown it would have been impossible for Murray to shoot himself in the back of the head, above and behind his left ear.” 5 Mr. Murray’s family urged Special Agent Ash-down to investigate and revisit the circumstances of Mr. Murray’s death. According to plaintiffs, Special Agent Ashdown “promised the family members that the FBI would conduct a full investigation” yet despite this promise, the United States has never conducted a civil or criminal investigation into “the actions of any single individual” involved in the circumstances surrounding Mr. Murray’s death, nor of the investigatory and preservation procedures immediately following. Plaintiffs contend that Special Agent Ashdown later admitted under oath that he conducted no investigation into the shooting of Mr. Murray largely because of his longstanding relationship with Officer Norton.
On July 17, 2009, Debra Jones, individually, as the natural parent of Todd Murray, and as personal representative of the Estate of Todd R. Murray for and on behalf of Mr. Murray’s heirs, and Arden Post, individually and as the natural parent of Todd Murray, filed suit in the Uintah County Court regarding the death of Mr. Murray.
See Jones et al. v. Norton et al.,
On March 12, 2013, while the District Court case was pending, plaintiffs mailed a letter to senior officials at the United States Department of the Interior, giving notice of *498 their intent to file suit against the United States. The letter was titled “Notice of Claim concerning the April 1, 2007 Shooting-Death of Todd Murray, Ute Indian tribal member.” The letter states:
Dear Messrs. Toulou, Smith, and Washburn and Secretary of the Interior:
Our law firm represents the Ute Indian Tribe of the Uintah and Ouray Reservation (“Tribe” or “Ute Tribe”). We also represent tribal members Debra Jones and Arden Post who are the parents of Todd Murray, a tribal member who was shot to death in an encounter with Utah state and local police on the Uintah and Ouray Indian Reservation in Utah (“U & 0 Reservation”) in 2007. Please accept this letter as our notice of claim to your respective agencies of our intent to file a complaint against the United States based on breaches of the 1863 and 1868 Ute Treaties and the United States’ violation of its trust obligations to the Ute Tribe and its members.
We plan to file suit in the Federal Court of Claims and allege that the Federal Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA), by and through their employees, committed wrongs upon the person or property of the Indians, namely decedent Todd Murray his family and the Ute Indian Tribe as a whole. Included with our letter are the Plaintiffs’ (i) Third Amended Complaint, (ii) motion for default judgment on liability based on tampering [sic] destruction of critical evidence, and (iii) motion for summary judgment under Counts 1, 3 and 5 filed in the parents’ private cause of action, DEBRA JONES, et at, v, VANCE NORTON, et al., Civil Case No. 2:09-ev-00730, U.S. District Court, District of Utah, Central Division. The attached filings give an overview of the sequence of events that transpired on April 1, 2007 as well as a clear indication of the egregious actions of the law enforcement officers who participated in this “investigation.” The FBI and the BIA representatives who were present on April 1, 2007 and who participated in the “investigation” contributed to the travesties by (1) failing to protect the Ute Tribe’s interests as a sovereign in the crime scene, (2) failing to properly preserve and protect evidence fi’om being tampered with and destroyed, and (3) failing to conduct their own independent investigation into the death of Todd Murray. As a result of the aforementioned failures, the Murray family and the Ute Indian Tribe are seeking damages from the United States in the amount of $10 million, as well as reimbursement of litigation costs and attorney fees.
Attached to this letter is a summary of the relevant Treaty obligations that have been violated by the actions and inactions of the United States in this ease. Under Article 6 of the 1863 Treaty, the Ute Indian bands agreed to forego “private revenge or retaliation” for injuries suffered by the Tribe and individual tribal members as the result of the “misconduct of individuals.” In return the United States guaranteed the Tribe and individual tribal members a right to legal redress for “any robbery violence, or murder” committed “on an Indian or Indians”.belonging to the Ute Indian bands. Article 6 of the 1868 Treaty promised that any person violating the territorial integrity of the Reservation and causing harm to the Tribe or its tribal members would be “punished according to the laws of the United States.” In violation of these treaty obligations, the United States has failed to investigate or to prosecute the individuals involved in the shooting death of 21 year-old Todd Murray in April 2007, and the subsequent conspiracy to suppress, alter, and destroy critical evidence.
Please feel free to contact our office should you require any additional information regarding this forthcoming claim.
Sincerely,
Sandra L. Denton
(footnote omitted). The March 12, 2013 letter attached almost four hundred pages of exhibits, including filings in the District Court such as the plaintiffs’ third amended complaint, the motion for summary judgment, and plaintiffs’ motion for allegedly the tampering and destruction of critical evidence.
On March 7, 2014, the District Court granted the defendant’s motion for summary
*499
judgment, and denied plaintiffs’ cross motion.
See Jones et al. v. Norton et al.,
In the District Court ease, the Court considered whether Mr. Murray was “seized” for 4th Amendment purposes.
8
Most relevant to the above captioned ease, “[t]he Plaintiffs contend that Detective Norton seized Mr. Murray when he (1) fired shots at Mr. Murray; and (2) according to Plaintiffs, shot Mr. Murray in the head.”
Jones et al. v. Norton et al.,
[T]he Plaintiffs’ evidence is sparse, circumstantial, subject to more than one interpretation, and, at times, very speculative. Moreover, evidence to the contrary is strong and is consistent with a self-inflicted gunshot wound. Deputy Byron testified that he did not see Detective Norton next to Mr. Murray when Mr. Murray dropped to the ground. Detective Norton testified that he was up on a hill when he saw Mr. Murray shoot himself.
The Deputy Chief Medical Examiner Dr. Edward Leis, who conducted the physical examination of Mr. Murray’s body, concluded in his report that the wound was caused by a gun shot “in close proximity to the skin surface when it was discharged.” He based his conclusion on “abundant soot at the inferior margin of the defect [the wound] and some marginal abrasion is also noted at the inferior margin.” In his testimony, he elaborated on- his conclusion that the gun was in contact with Mr. Murray’s head when it was fired:
At the perimeter, there are several triangular shaped tears of the wound. That’s a result of the gun being pressed up against the skin surface when it’s discharged and gases causing the scalp to be separated from the underlying skull. When the scalp lifts up, it stretches and it tears and gets its characteristic stellae appearance.
The smaller wound on the right side of Mr. Murray’s head was, in Dr. Leis’ opinion, the exit wound. After Dr. Leis certified that Mr. Murray’s death was a suicide resulting from a gunshot wound to the head, he added an additional cause of death (based on results from testing of Mr. Murray’s bodily fluids). Because the tests showed the presence of drugs and alcohol in Mr. Murray’s system, Dr. Leis issued an amended death certificate which added “Acute alcohol intoxication; recent methamphetamine use” as contributing to Mr. Murray’s death.
Detective Norton was more than 100 yards away when Mi’. Murray was shot. Dr. Leis testified that there was no evidence that the wound could have been caused by a shot coming from that far away. Plaintiffs maintain that Detective Norton was *500 not 100 yards away, but was right next to Mr. Murray and so he had the capability of inflicting the contact wound. But the actual evidence in the record (that is, testimony by Detective Norton and Deputy Byron) shows that Detective Norton was not right next to Mr. Murray when the fatal shot was fired.
Id. at 1190-91 (footnotes omitted).
The District Court noted that plaintiffs also alleged the defendant conspired to cover up the killing of Mr. Murray, stating, “[s]ummed up, Plaintiffs’ argument is that Defendants engaged in ‘[a] conspiracy to cover up a killing.’ Plaintiffs’ theory is that Detective Norton shot and killed Mr. Murray, and that the rest of the Defendants conspired to cover-up that killing and protect Detective Norton.” Id. at 1197 (footnotes omitted). Addressing the plaintiffs’ alleged conspiracy, the court stated: “The focus of the Plaintiffs’ conspiracy theory is the failure to give aid and their spoliation argument about the destruction of evidence.” Id. at 1202.
Turning to plaintiffs’ claims of the defendants’ failure to give medical aid to Mr. Murray, and the defendants’ “interference with Mr. Murray’s due process right of access to courts via the failure to preserve critical evidence and the affirmative destruction of critical evidence,” the District Court determined,
[n]one of that testimony could allow a reasonable jury to conclude that Individual Defendants were deliberately indifferent to Mr. Murray’s situation, or that they knew that there was a substantial risk of significant harm to Mr. Murray if they did not provide first aid. If anything, the evidence shows that at least three of the Individual Defendants (Young, Davis, and Slaugh) were concerned that attempts to provide any kind of aid to Mr. Murray would do more harm than good.
Id. at 1210. The District Court stated: “[i]n sum, there is no evidence before the court to support a finding that the inaction by each individual defendant was part of a conspiracy to let Mr. Murray die.” Id. at 1203. The District Court also determined that, “[biased on. the facts as detailed and explained in its spoliation order, the court concludes that no reasonable jury could conclude that Defendants conspired to ‘effectively eliminate[ ] all probative evidence’ and ‘clean the closet of evidence that would have allowed Plaintiffs to build their case.’ ” 9 Id. at 1204 (quoting various plaintiffs’ briefs; omissions in original; footnote omitted). Therefore, the District Court concluded that “the Defendants did not violate Mr. Murray’s civil rights for failing to provide medical aid, nor did the Defendants fail to preserve evidence.” 10 Id. at 1210 (footnote omitted).
On April 1, 2013, approximately three weeks after plaintiffs mailed the March 12, 2013 letter to the Department of the Interior officials, giving notice of their intent to file suit in this court, and exactly six years after Todd Murray’s death, plaintiffs filed suit in this court. Plaintiffs’ suit in this court was consistent with the information submitted in the March 12, 2013 letter.
In response, defendant filed a motion to dismiss, pursuant to RCFC 12(b)(1) and *501 RCFC 12(b)(6), alleging lack of subject matter jurisdiction and failure to state a claim. Notably, defendant argued that “[i]n addition to the various individuals identified in the Complaint, Plaintiffs aver that the FBI, BIA, the State of Utah, Unitah County, yernal city, and various non-federal enforcement agencies are ‘bad men’ as that term is used in the treaties.” According to defendant, “[t]he federal government and various state enforcement agencies, however, cannot be ‘bad men’ as that term is used in the treaties.”
Plaintiffs subsequently moved to amend the complaint, and in support of their motion stated:
The Plaintiffs’ proposed amendments [sic] correct the pleading deficiencies cited by the United States in its motion to dismiss the complaint. The amendments include additional factual allegations to make clear the substance of the Plaintiffs’ allegations, and to make clear that Plaintiffs sought administrative review of Todd Murray’s shooting death before filing this action. The amendments also make clear that Plaintiffs’ claims are based on the actions and inactions of individual federal officers, not the actions or inactions of the federal agencies employing those officers, i.e., the Federal Bureau of Investigation and the Bureau of Indian Affairs.
The court granted plaintiffs’ motion, after which plaintiffs filed an amended complaint. Plaintiffs’ amended complaint, which asserts numerous claims for relief, alleges that the United States committed cognizable wrongs upon Mr. Murray and the Ute Tribe. According to plaintiffs’ amended complaint, the United States, by and through the conduct of the FBI and BIA, violated the guarantees of two Ute Treaties, entered into and signed in 1863 and 1868. Plaintiffs also advance a breach of trust claim for the same alleged violations and injustices. For these alleged injuries, plaintiffs seek compensatory damages in the amount of $10,000,000.00, as well as costs, attorney’s fees, “and all other damages permitted by the Treaties with the Utes, and such other and further relief as this Court deems proper.”
Specifically, plaintiffs’ claims for relief, set forth in the amended complaint, are: “I. VIOLATION OF THE UTE TREATIES AND OTHHER [sic] FEDERAL LAWS,” and “I. [sic] BREACH OF TRUST IN VIOLATION OF THE UTE TREATIES AND OTHER FEDERAL LAW.” (capitalization in original). Within the alleged “VIOLATION OF THE UTE TREATIES AND OTHHER [sic] FEDERAL LAWS,” (capitalization in original) plaintiffs allege:
By their actions and inactions, the FBI and BIA officers committed wrongs to Todd Murray, the Murray family and the Ute Tribe (i) by acting in concert with state/county/municipal officers, expressly or impliedly, in concocting, or permitting to be concocted, a false story that Todd Murray shot himself in the back of his head, execution style, above and behind his left ear; (ii) by failing to take custody of Murray’s body and to secure the body against desecration and spoliation of evidence; [sic] (iv) by participating in, tacitly allowing, or failing to prevent, the desecration of Murray’s body and the spoliation of critical evidence both at the shooting scene and afterwards at the Medical Center, Blackburn Mortuary, and at the Utah OME; (v) the failure to insure that a proper autopsy was performed on Murray’s body; (vi) by failing to conduct any kind of investigation into Todd Murray’s murder; and (vii) by failing to protect the territorial integrity of the Tribe’s reservation boundary and the Tribe’s sovereign interests in the crime scene where Murray was shot.[ 11 ]
*502 (emphasis in original).
Regarding the “BREACH OF TRUST IN VIOLATION OF THE UTE TREATIES AND OTHHER [sic] FEDERAL LAW,” (capitalization in original) plaintiffs claim that “[i]n violation of federal law and its treaty obligations, the United States has failed to investigate or prosecute the individuals involved in the shooting death of 21 year-old Todd Murray on April 1, 2007, or the subsequent conspiracy to suppress, alter, and destroy critical evidence related to the shooting death.” Plaintiffs claim that “[b]y failing to investigate Todd Murray’s death and by taking no action to promote justice in Indian Country, Special Agent Rex Ashdown and David Ryan and BIA Officers James Beck, Terrance Cuch and Kevin Myore breached their duties to the Ute Tribe, to Todd Murray, and to Murray’s family under the Ute Treaties of 1863 and 1868.... ”
Plaintiffs further allege:
The United States has also breached its trust obligations to the Tribe and Murray’s family by failing to protect the territorial integrity of the Tribe’s reservation and the Tribe’s sovereign interest in the shooting site, thus allowing unauthorized persons to trespass on the Ute homeland and cause harm to tribal members with complete impunity. The Defendant’s breach of its trust and treaty obligations has resulted in substantial loss to the Tribe. Todd Murray was a registered tribal member and a lineal descendant of Ute blood. The Ute Tribe is a small tribe with less than 4,000 members. Unremitting tribal membership is an integral part of the Tribe’s ability to sustain its lineage and culture. The Defendant is liable in damages for such loss.
In response to the amended complaint, defendant, again, filed a motion to dismiss both counts pursuant to RCFC 12(b)(1) and RCFC 12(b)(6), for lack of subject matter jurisdiction, and failure to state a claim, respectively. For count one, defendant contends that the violation of the Ute Treaties should be dismissed “for lack of jurisdiction and for failure to state a claim.” Defendant argues that “[plaintiffs have not complied with the terms of the Treaty and have not exhausted the administrative remedies required by the express terms of the Treaty.” Defendant contends -that even if the court found jurisdiction under the “bad men” provision 12 of the 1868 Treaty with the Utes, “plaintiffs do not state a cognizable claim under the ‘bad men’ provision.” For count two, defendant contends that, “[plaintiffs’ breach-of-trust claims are barred by the United States’ sovereign immunity because plaintiffs did not allege the violation of a specific statutory or regulatory money-mandating duty,” and that the Treaties involved “do not impose a nondiscretionary fiduciary duty upon the United States to prosecute alleged ‘bad men’ without exercising its pros-ecutorial discretion.”
DISCUSSION
Background of the Ute Treaties
Many of the plaintiffs’ claims center on particular provisions of two treaties executed, and ratified, in the mid-19th century. The first treaty was concluded on October 7, 1863. See Treaty with the Utah Tabeguaehe Band, October 7, 1863, 13 Stat. 673 (referred to by the parties as the 1863 Treaty). 13 Through the 1863 Treaty, the Tabeguaehe Band of Ute Indians ceded their rights and interest to vast tracts of land in the Western United States. See id. Article 1 of the 1863 Treaty states: “It is admitted by the Tabe-guache band of Utah Indians that they reside within the territorial limits of the United *503 States, acknowledging their supremacy, and claim their protection. The said band also admits the right of the United States to regulate all trade and intercourse with them.” Article 2 of the 1863 Treaty states, in part: “Said Tabeguaehe band of Utah Indians hereby cede, convey, and relinquish all of their claim, right, title, and interest in and to any and all of their lands within the territory of the United States, wherever situated, excepting that which is included within the following boundaries....” Id. In return: “[f]or the period of ten years the said band shall receive, annually, by such distribution as the Secretary of the Interior may direct, ten thousand' dollars’ worth of goods, and also ten thousand dollars’ worth of provisions.” Id.
Article 10 of the 1863 Treaty provides:
Each family that shall announce through its head to the agent of the band a willingness and determination to begin and follow the pui’suits of agriculture, by farming or raising stock and growing wool, upon such lands and according to such regulations as the Secretary of the Interior may prescribe, shall receive the following donations of stock to aid them in their endeavor to gain a livelihood by such new pursuits, viz.: Of cattle, one head annually during five years, beginning with the ratification of this treaty.
Of sheep, ten head annually during the first two years after the ratification of this treaty, and five head annually during the three years thereafter.
The Secretary of the Interior may also direct that their share of annuity goods and provisions shall be of a character suited to such change of life: Provided, however, That such stock shall only be donated as long as such family shall in good faith kéep and use the same for the purpose indicated in this article.
All the Indians of said band who may adopt and conform to the provisions of this article shall be protected in the quiet and peaceable possession of their said lands and property.
Id. (emphasis in original).
In.March of 1868, the United States concluded another treaty with the Ute. See Treaty with the Ute, March 2, 1868, 15 Stat. 619 (referred to by the parties as the 1868 Treaty). 14 As noted in the preamble and Article 1 of the 1868 Treaty:
Articles of a treaty and agreement made and entered into at Washington City, D.C., on the second day of March, one thousand eight hundred and sixty-eight, by and between Nathaniel G. Taylor, Commissioner of Indian Affairs, Alexander C. Hunt, governor of Colorado Territory and ex-officio superintendent of Indian affairs, and Kit Carson, duly authorized to represent the' United States, of the one part, and the representatives of the Tabaquaehe[ 15 ], Muache, Capote, Weeminuehe, Yampa, Grand Kiver, and Uintah bands of Ute Indians, (whose names 'are hereto subscribed,) duly authorized and empowered to act for the body of the people of said bands, of the other part, witness:
Article I. All the provisions of the treaty concluded with the Tabequaehe band of Utah Indians, October seventh, one thousand eight hundred and sixty-three, as amended by the Senate of the United States and proclaimed December fourteenth, one thousand eight hundred and sixty-four, which are not inconsistent with the provisions of this treaty, as hereinafter provided, are hereby reaffirmed and declared to be applicable and to continue in force as well to the other bands, respectively, parties to this treaty, as to the Tabequaehe band of Utah Indians.
Id. Article 2 of the 1868 Treaty states, in part:
[T]he United States now solemnly agree that no persons, except those herein authorized so to do, and except such officers, *504 agents, and employes [sic] of the Government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law shall ever be permitted to pass over, settle upon, or reside in the Territory described in this article, except as herein otherwise provided.
Id. Art. 2. The 1868 Treaty reaffirmed and incorporated the provisions of the 1863 Treaty, but also created new guarantees and promises. For example, Article 5 the 1868 Treaty established how to resolve “depredation on person or property”:
The United States agree that the agents for said Indians, in the future, shall make their homes at the agency buildings; that they shall reside among the Indians, and keep an office open at all times for the purpose of prompt and diligent inquiry into such matters of complaint by and against the Indians, as may be presented for investigation under the provisions of their treaty stipulations, as also for the faithful discharge of other duties enjoined on them by law. In all cases of depredation on person or property, they shall cause the evidence to be. taken in writing and forwarded, together with their finding, to the Commissioner of Indian Affairs, whose decision, subject to the revision of the Secretary of the Interior, shall be binding on the parties to this treaty.
Id. Art. 5. Article 6 states in full:
If bad men among the whites or among other people, subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.
If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States and at peace therewith, the tribes herein named solemnly agree that they will, on proof made to their agent and notice to him, deliver up the wrongdoer to the United States, to be tried and punished according to its laws, and in case they wilfully refuse so to do the person injured shall be reimbursed for his loss from the annuities or other moneys due or to become due to them under this or other treaties made with the United States.
Id.
Art. 6. This provision is often referred to by courts and litigants as the “bad men” provision.- “Bad men” provisions are common in Native American treaties of this time period, and appear to have been fairly standard in Native American treaties during the 19th century. As explained by the United States Court of Appeals for the Federal Circuit in
Tsosie v. United States,
The treaty in question [the Navajo Treaty] is one of nine made in 1868, by and between commissioners representing the United States and chiefs of various previously hostile Indian tribes. The treaties were all duly ratified, proclaimed, and published in volume fifteen of the Statutes at Large. All say that peace is their object and all contain “bad men” articles in similar language.
Id.
at 395;
see also Elk v. United States,
As noted above, in the “bad men” provision of the 1868 Ute Treaty, the United States promised:
If bad men among the whites or among other people, subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.
*505 Plaintiffs allege that on April 1, 2007, Todd Murray was “wronged” by “bad men,” under the terms of the 1868 Ute Treaty. Further, plaintiffs contend 'that “[t]he. United States agreed to protect and reimburse the Ute Indians for all harm, injury, unjust, or unmerited treatment inflicted upon any tribal member or tribal property by non-whites on the reservation,” but that the United States failed to honor its obligations under the 1868 Treaty by not investigating and prosecuting the alleged wrongdoers.
Jurisdiction
Defendant argues that this court lacks jurisdiction over plaintiffs’ ease because plaintiffs have not complied with the terms of the 1868 Ute Treaty, and further argues that plaintiffs have not stated a cognizable claim under the “bad men” provision. It is well established that “ ‘subject-matter jurisdiction, because it involves a court’s power to hear a ease, can never be forfeited or waived.’ ”
Arbaugh v. Y & H Corp.,
Pursuant to the RCFC and the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2014); Fed.R.Civ.P. 8(a)(1), (2) (2015);
see also Ashcroft v. Iqbal,
When deciding a case based on a lack of subject matter jurisdiction or.for failure to state a claim, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s favor.
See Erickson v. Pardus,
The Tucker Act grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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, or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S.C. § 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional,. statutory, or regulatory law mandating compensation by the federal government for damages sustained.
See United States v. Navajo Nation,
“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the United States.... ”
Mitchell II,
The underlying monetary claims are of three types.... First, claims alleging the existence of a contract between the plaintiff and the government fall within the' Tucker Act’s waiver.... Second, the Tucker Act’s waiver encompasses claims where “the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum.” Eastport S.S. [Corp. v. United States,178 Ct.Cl. 599 , 605-06,] 372 F.2d [1002,] 1007-08 [ (1967) ] (describing illegal exaction claims as claims “in which ‘the Government has the citizen’s money in its pocket’” (quoting Clapp v. United States,127 Ct.Cl. 505 ,117 F.Supp. 576 , 580 (1954)).... Third, the Court of Federal Claims has jurisdiction over those claims where “money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury.” Eastport S.S.,372 F.2d at 1007 . Claims in this third category, where no payment has been made to the government, either directly or in effect, require that the “particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum.” Id.; see also [United States v.] Testan, 424 U.S. [392,] 401-02 *508 [96 S.Ct. 948 ,47 L.Ed.2d 114 (1976)] (“Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim — whether it be the Constitution, a statute, or a regulation— does not create a cause of action for money damages unless, as the Court of Claims has stated, that basis ‘in itself ... can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” (quoting Eastport S.S., 372 F.2d at 1009). This category is commonly referred to as claims brought under a “money-mandating” statute.
Ontario Power Generation, Inc. v. United States,
To prove that a statute or regulation is money-mandating, “the statute and regulations must be such that they ‘ “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” ’ ”
Roberts v. United States,
If a defendant Qr the court challenges jurisdiction or a plaintiffs claim for relief, however, the plaintiff cannot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction.
See McNutt v. Gen. Motors Acceptance Corp. of Ind.,
“It is well established that, in addition to the complaint itself and exhibits thereto, the court ‘must consider ... documents incorpo
*509
rated into the complaint by reference, and matters of which a court may take judicial notice.’”
Bell/Heery v. United States,
Administrative Exhaustion
Defendant argues that administrative exhaustion is a “jurisdictional prerequisite” to judicial review. The defendant relies on language in the 1868 Ute Treaty, which reads:
In all cases of depredation on person or property, they shall cause the evidence to be taken in writing and forwarded, together with their finding, to the Commissioner of Indian Affairs, whose decision, subject to the revision of the Secretary of the Interior, shall be binding on the parties to this [1868] treaty.
1868 Treaty, Art. 5. Defendant contends that this language mandates full administrative review, allowing the Department of the Interior an opportunity to issue a “binding decision” before a plaintiff can seek relief from the courts. Defendant states that “throughout the six years following Mr. Murray’s death, Plaintiffs have had every .opportunity to present a ‘bad men’ claim to the Department of the Interior (‘DOI’), as agreed upon by both the Tribe and the United States. See Treaty with the Ute Indians, 15 Stat. 619 (1868). Plaintiffs have not.” (internal citation omitted). According to defendant, “plaintiffs have not complied with the terms of the Treaty and have not exhausted the administrative remedies required by the express terms of the Treaty.” As a consequence, defendant argues,
DOI has not been provided with an' opportunity to “cause the evidence to be taken in writing and forwarded, together with [the government agent’s] finding, to the Commissioner of Indian Affairs, whose decision, subject to the revision of the Secretary of the Interior, shall be binding on the parties to this treaty.” Art. 5, 1868 Treaty. Having failed to exhaust their administrative remedies, Plaintiffs’ Amended Complaint should be dismissed.
(alterations in original). Defendant urges this court to dismiss plaintiffs’ claims in the United States Court of Federal Claims for lack of subject matter jurisdiction.
In response, plaintiffs argue they have satisfied the exhaustion requirements of the treaty by way of their March 12, 2013 letter to Department of the Interior officials, placing the Department of the Interior on notice of plaintiffs’ intention to file suit in this court. Plaintiffs allege that the court “has previously analyzed this specific bad men treaty clause and has held that the only prerequisite required before suit is filed is that a notice of claim must be sent to the agency and a copy be sent to the Commissioner of Indian Affairs in Washington.” Moreover, plaintiffs argue that the exhaustion requirement is non-jurisdietional, maintaining that any requirement to exhaust administrative remedies is purely prudential and, therefore, subject to the court’s discretion.
“The doctrine of exhaustion of administrative remedies is one among related doctrines — including abstention, finality, and ripeness — that govern the timing of federal-court decision making.”
McCarthy v. Madigan,
“Exhaustion of administrative remedies serves two main purposes.”
Woodford v. Ngo,
A primary purpose is, of course, the avoidance of premature interruption of the administrative process. The agency, like a trial court, is created for the, purpose of applying a statute in the first instance. Accordingly, it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based. And since agency decisions are frequently of a discretionary nature or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise.
McKart v. United States,
The second purpose for requiring exhaustion of administrative remedies is judicial economy. “And of course it is generally more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages.”
McKaH v. United States,
“Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some .orderly structure on the course of its proceedings.”
Woodford v. Ngo,
The facts of a particular case, however, can call for an exception to otherwise requiring administrative exhaustion.
See, e.g., McKart v. United States,
“Where the issue of exhaustion of administrative remedies is not governed by a particular statutory provision or an overall statutory scheme, the decision whether to require exhaustion in a particular case is a matter committed to the discretion of the trial court.”
Corns Staal BV v. United States,
Plaintiffs allege the exhaustion requirement has been satisfied by the notice of their intent to file suit against the United States indicated in the March 12, 2013 letter addressed to senior officials at the Department of the Interior. The March 12, 2013 letter states:
Dear Messrs. Toulou, Smith, and Wash-burn and Secretary of the Interior:
Our law firm represents the Ute Indian Tribe of the Uintah and Ouray Reservation (“Tribe” or “Ute Tribe”). We also represent tribal members Debra Jones and Arden Post who are the parents of Todd Murray, a tribal member who was shot to death in an encounter with Utah state and local police on the Uintah and Ouray Indian Reservation in Utah (“U & O Reservation”) in 2007. Please accept this letter as our notice of claim to your respective agencies of our intent to file a complaint against the United States based on breaches of the 1863 and 1868 Ute Treaties and the United *512 States’ violation of its trust obligations to the Ute Tribe and its members.
We plan to file suit in the Federal Court of Claims and allege that the Federal Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA), by and through their employees, committed wrongs upon the person or property of the Indians, namely decedent Todd Murray his family and the Ute Indian Tribe as a whole. Included with our letter are the Plaintiffs’ (i) Third Amended Complaint, (ii) motion for default judgment on liability based on tampering [sic] destruction of critical evidence, and (iii) motion for summary judgment under Counts 1, 3 and 5 filed in the parents’ private cause of action, DEBRA JONES, et al., v, VANCE NORTON, et al., Civil Case No. 2:09-cv-00730, U.S. District Court, District of Utah, Central Division. The attached filings give an overview of the sequence of events that transpired on April 1, 2007 as well as a clear indication of the egregious actions of the law enforcement officers who participated in this “investigation.” The FBI and the BIA representatives who were present on April 1, 2007 and who participated in the “investigation” contributed to the travesties by (1) failing to protect the Ute Tribe’s interests as a sovereign in the crime scene, (2) failing to properly preserve and protect evidence from being tampered with and destroyed, and (3) failing to conduct their own independent investigation into the death of Todd Murray. As a result of the aforementioned failures, the Murray family and the Ute Indian Tribe are seeking damages from the United States in the amount of $10 million, as well as reimbursement of litigation costs and attorney fees.
Attached to this letter is a summary of the relevant Treaty obligations that have been violated by the actions and inactions of the United States in this ease. Under Article 6 of the 1863 Treaty, the Ute Indian bands agreed to forego “private revenge or retaliation” for injuries suffered by the Tribe and individual tribal members as the result of the “misconduct of individuals.” In return the United States guaranteed the Tribe and individual tribal members a right to legal redress for “any robbery violence, or murder” committed “on an Indian or Indians” belonging to the Ute Indian bands. Article 6 of the 1868 Treaty promised that any person violating the territorial integrity of the Reservation and causing harm to the Tribe or its tribal members would be “punished according to the laws of the United States.” In violation of these treaty obligations, the United States has failed to investigate or to prosecute the individuals involved in the shooting death of 21 year-old Todd Murray in April 2007, and the subsequent conspiracy to suppress, alter, and destroy critical evidence.
Please feel free to contact our office should you require any additional information regarding this forthcoming claim.
Sincerely,
Sandra L. Denton
(footnote omitted). As noted above, the March 12, 2013 letter attached almost four hundred pages of exhibits, including filings in the District Court such as the plaintiffs’ third amended complaint, plaintiffs’ motion for summary judgment, and plaintiffs’ motion for tampering and destruction of critical evidence.
In
Elk v. United States,
A predecessor court to the Court of Federal Claims previously found, under the specific facts of the case, that exhaustion of administrative remedies was a jurisdictional requirement when specific treaty language both (1) unmistakably mandates administrative review by an executive agency and (2) sets forth a procedure for so doing.
See Begay v. United States,
[T]he President may prescribe such rules and regulations for ascertaining' damages under this article as in his judgment may be proper; but no such damage shall be adjusted and paid until examined and passed upon by the Commissioner of Indian Affairs.
Treaty with the Navajo, June 1, 1868, 15 Stat. 667, Art. 1.
The
Begay
court found this provision to be particularly dispositive. In light of the clear and unambiguous language, which withheld damages until “examined and passed upon” by the agency, the court found the requirement of exhaustion to be jurisdictional, and, therefore, the
Begay
court declined to assert jurisdiction over a “bad men” claim “in view of the specific references in [the treaty] to
*514
administrative
consideration...." Begay v. United States,
When comparing the Sioux and the Navajo Treaties side by side, the treaties differ with respect to an exhaustion requirement, as reflected in the decisions discussed above.
Compare Elk v. United States,
The language of the 1868 Ute Treaty more closely resembles the language of the Sioux Treaty than the Navajo Treaty. The Ute Treaty also contains no “sweeping and direct language,” requiring administrative exhaustion. Unlike the Navajo Treaty, the- Ute Treaty does not withhold damages until “passed upon” by the Department of the Interior.
See Elk v. United States,
In all cases of depredation on person or property, they shall cause the evidence to be taken in writing and forwarded, together with their finding, to the Commissioner of Indian Affairs, whose decision, subject to the revision of the Secretary of the Interior, shall be binding on the parties to this treaty.
As noted above, although the 1868 Ute Treaty requires evidence of any depredation or wrong “to be taken in writing and forwarded together with their finding to the Commissioner of Indian Affairs,” 1868 Treaty, Art. 5, forwarding such evidence is the “only prerequisite to suit required by the treaty.”
Hebah v. United States,
In the March 12, 2013 letter, plaintiffs specifically identified .the 1868 Ute Treaty, and indicated “[pjlease accept this letter as our notice of claim to your respective agencies of our intent to file a complaint against the United States based on breaches of the 1863 and 1868 Ute Treaties and the United States’ violation of its trust obligations to the Ute Tribe and its members.” The March 12, 2013 letter also indicated, “[ajttached to this letter is a summary of the relevant Treaty obligations that have been violated by the actions and inactions of the United States in this case.”
In addition, the March 12, 2013 letter identified the wrong plaintiffs alleged, with plaintiffs’ counsel indicating “[w]e also represent tribal members Debra Jones and Arden Post who are the parents of Todd Murray, a tribal member who was shot to death in an encounter with Utah state and local police on the Uintah and Ouray Indian Reservation in Utah (U & O Reservation) in 2007.” Plaintiffs identified the agencies which allegedly had committed the improper acts, and stated that the “Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA), by and through their employees, committed wrongs upon the person or property of the Indians, *515 namely decedent Todd Murray.” The March 12, 2013 letter, while not providing additional details about the death of Mr. Murray, included as attachments selected filings from the District Court litigation, which, as plaintiffs indicated, “give an overview of the sequence of events that transpired on April 1, 2007 as well as a clear indication of the egregious actions of the law enforcement officers who participated in this ‘investigation.’ ”
Although plaintiffs’ counsel could have provided more narrative detail about the death of Mr. Murray in the March 12, 2013 letter-to more fully amplify on the “proof’ requirement, the court believes the letter labelled “notice of claim” sent to the Department of Interior, together with the exhibits attached to the letter, satisfied the plaintiffs’ exhaustion requirements under the specific facts presented in the above captioned case. Moreover, the United States was aware of the death of Mr. Murray in 2007, and the record reflects that no criminal prosecutions of Special Agent Rex Ashdown and David Ryan of the FBI or the various officials present at the scene from the BIA occurred, suggesting the decision not to prosecute reflects the view of the United States. There was a “federal criminal matter involving the [Mr. Murray’s] firearm,” in which “[t]he purchaser pled guilty in federal court to a charge of making a false statement in connection with the purchase of the firearm.”
Jones et al. v. Norton, et al.,
In summary, by this letter we are requesting that the Department of Justice conduct an investigation into the actions of Utah state/countyfiocal law enforcement agencies and officers for violations of the Ute Treaty of 1868 and any other applicable federal law. Unfortunately, this is not the Tribe’s first request for a federal investigation. See attached letters dated February 14, 2011, and March 18, 2011. In the year since these letters were sent, the conduct of Utah state, county and local police has only gotten worse. I would appreciate communication from your respective offices on our investigation requests.
(internal citation omitted).
Even when exhaustion requirements have not been- met, the United States Supreme Court has found exceptions to the exhaustion doctrine in “at least three broad sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaustion.”
See McCarthy v. Madigan,
The [United States Supreme] Court went on to explain three sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaustion: (1) where there is an unreasonable or indefinite timeframe for administrative action; (2) where there is some doubt as to whether the agency is empowered to grant effective relief; and (3) where the administrative body is shown to *516 be biased or has otherwise predetermined the issue before it.
Wilson ex rel. Estate of Wilson v. United,
“First, exhaustion may not be required when exhaustion of the administrative remedy may prejudice the plaintiff,” such as “‘from an unreasonable or indefinite time-frame for administrative action.’ ”
See Ito-chu Bldg. Products v. United States,
“Second, an administrative remedy may be inadequate ‘because of some doubt as to whether the agency was empowered to grant effective relief.’ ”
McCarthy v. Madigan,
“Third, an administrative remedy may be inadequate where the administrative body is shown to be biased or has otherwise predetermined the issue before it.”
McCarthy v. Madigan,
Plaintiffs only urge the first exception to the exhaustion doctrine would apply if plaintiffs did not otherwise meet the exhaustion requirements, based on when there is an unreasonable or indefinite timeframe for administrative action. Plaintiffs argue that “it is clear that Plaintiffs would be unduly prejudiced by having to embark upon an ill-defined administrative process with a potentially indefinite timeframe for action.” Plaintiffs claim that the “events in question occurred more than seven years ago, and what little evidence was ■ not spoliated by federal/state/local law enforcement officers is in danger of disappearing as memories fade with the passage of time. Plaintiffs have been litigating for years in an effort to get their day in court and they would be unduly prejudiced by an administrative decision that could take years and might get them no closer to a remedy than where they are today.” Plaintiffs also allege that “it is questionable whether the Department of the Interior can adequately grant effective relief in this case in light of the complex and multiple constitutional issues that are play in the ease.” (internal citation omitted).
Defendant responds that “Plaintiffs’ extensive litigation in the district court of Utah, where Plaintiffs fully, fairly, and forcefully-presented their case, further ameliorates any concern that additional time spent adjudicating this matter before DOI may prejudice Plaintiffs. Indeed, Plaintiffs have not explained what they would' present here that they have not already presented to that court.” Defendant also claims that the plaintiffs’ argument that this case is complex and has multiple constitutional issues “does not square with their request for relief that is far more straightforward than the premise of their argument suggests: They seek monetary damages pursuant to the ‘bad men’ clause of the 1868 Treaty.” The court agrees with defendant that plaintiffs’ claims in this court do not involve “complex and multiple constitutional issues.” There is no certainty as to how long the Department of the Interi- or might take in responding to plaintiffs’ claims. Plaintiffs’ lengthy litigation history, however, does not mean a further delay at the Department of the Interior would not have a negative impact on plaintiffs. Plaintiffs’ exhaustion requirements may well have been met under the 1868 Treaty by virtue of the March 12, 2013 letter. Even, however,for the sake of argument, if the exhaustion requirements were not met, because the facts of the case stem from the April 1, 2007 death of Mr. Murray, and because the previous litigation has continued since 2009, the court concludes that a requirement to force plaintiffs now to exhaust administrative remedies at the Department of the Interior presents a further unreasonable or “indefinite time frame for administrative action.” Therefore, this court concludes that, on one or both grounds, the exhaustion doctrine does not preclude this court from taking jurisdiction over plaintiffs’ claims.
“Bad Men” Provision
Defendant argues in its motion to dismiss that “Plaintiffs’ do not state a cognizable claim under the ‘bad men’ provision.” Plaintiffs allege in their complaint that “Todd Murray, Todd Murray’s family, and the Ute Indian Tribe suffered ‘injuries’ at the hands of ‘bad men’ as those terms are used in the. Ute Treaties of 1863 and 1868.” As indicated above, the “bad men” provision at issue in the 1868 Treaty provides:
If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong *518 upon the person or property of the Indian, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.
1868 Treaty, Art. 6. Defendant contends that many of plaintiffs’ alleged wrongs are not contemplated by the terms of the treaty and, therefore, plaintiffs fail to state a claim with respect to the “bad men” provision.
In examining what must be pled in order to state a claim, under both RCFC 8(a)(2) and Rule (8)(a)(2) of the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(2); Fed.R.Civ.P. 8(a)(2) (2015);
see also Bell Atl. Corp. v. Twombly,
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, [Conley v. Gibson,355 U.S. 41 , 47,78 S.Ct. 99 ,2 L.Ed.2d 80 (1957) ]; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc.,40 F.3d 247 , 251 (7th Cir.1994), a plaintiffs obligation to provide the “grounds” of his “entitlement] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Attain,478 U.S. 265 , 286 [106 S.Ct. 2932 ,92 L.Ed.2d 209 ] (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed.2004) (hereinafter Wright & Miller) (“[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”), on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N.A.,534 U.S. 506 , 508, n.1 [122 S.Ct. 992 ,152 L.Ed.2d 1 ] (2002); Neitzke v. Williams,490 U.S. 319 , 327 [109 S.Ct. 1827 ,104 L.Ed.2d 338 ] (1989) (“Rule 12(b)(6) does not countenance ... dismissals based on a judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes,416 U.S. 232 , 236 [94 S.Ct. 1683 ,40 L.Ed.2d 90 ] (1974) (a well-pleaded complaint may proceed even if it appears “that a recovery is very remote and unlikely”) .... [W]e do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.
Bell Atl. Corp. v. Twombly,
As when deciding a ease based on a lack of subject matter jurisdiction, when deciding a case for failure to state a claim, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s favor.
See Erickson v. Pardus,
The “bad men” provision of the 1868 Ute Treaty, if applicable, provides a basis for jurisdiction in this court, as it is money mandating. The plaintiff in
Garreaux v. United States, 71
Fed.Cl. at 734, argued that “[t]he ‘bad men’ provision should be construed to allow a private right of action by individual Indians against the United States,” noting that jurisdiction has been found “under ‘bad men’ provisions of this or similar treaties, including:
Tsosie v. United States,
Specifically, to state a cognizable claim under the “bad men” provision of a treaty, the plaintiffs must clear several hurdles. “At least two inquiries are required to determine whether a claim fits within the ‘bad men’ provision: [ (1) ] whether the man is a ‘bad man’ within the meaning of the treaty; and [ (2) ] whether he committed a ‘wrong’ within the meaning of the treaty.”
Garreaux v. United States,
The first question for the purposes of the motion to dismiss is whether the individual defendants named in the amended complaint by plaintiffs qualify as “bad men.” To properly bring a “bad men” claim, the plaintiff first must identify particular individuals as “bad men.”
See Garreaux v. United States,
In specifically naming the allegedly responsible parties, plaintiffs pass the first hurdle. The plaintiffs’ complaint names FBI agents Rex Ashdown and David Ryan, BIA officials James Beck, Terrance Cuch, and Kevin Myore, and all of the Utah state/eounty/municipal law enforcement officers involved in the events of April 1, 2007, 22 as “bad men.” Plaintiffs further name the owners and employees of the Thomson-Blackburn Vernal Mortuary, the State of Utah, Uintah County, and Vernal City as “bad men.” Excepting the mention of the State of Utah, Uintah County, and Vernal City, the plaintiffs successfully identify specific individuals as alleged “bad men,” and, therefore, satisfy the first phase of the analysis.
As to the second hurdle, accepting the facts of the complaint as true for the purpose of defendant’s motion to dismiss, plaintiffs allege possible cognizable “wrongs,” if properly proven, as to certain allegations, but not as to others. Plaintiffs allege a host of injuries, encompassing both actions and omissions, as follows:
By their actions and inactions, the FBI and BIA officers committed wrongs to Todd Murray, the Murray family and the Ute Tribe (i) by acting in concert with state/county/municipal officers, expressly or impliedly, in concocting, or permitting to be concocted, a false story that Todd Murray shot himself in the back of his head, execution style, above and behind his *521 left ear; (ii) by failing to take custody of Murray's body and to secure the body against desecration and spoliation of evidence; [sic] (iv) by participating in, tacitly allowing, or failing to prevent, the desecration of Murray’s body and the spoliation of critical evidence both at the shooting scene and afterwards at the Medical Center, Blackburn Mortuary, and at the Utah OME; (v) the failure to insure that a proper autopsy was performed on Murray’s body; (vi) by failing to conduct any kind of investigation into Todd Murray’s murder; and (vii) by failing to protect the territorial integrity of the Tribe’s reservation boundary and the Tribe’s sovereign interests in the crime scene where Murray was shot.
Defendant argues that “[t]he Bad men clause is limited to affirmative criminal acts.” In
Hebah II,
the Court of Claims construed “wrong” according to its common or plain meaning.
See Hebah II,
In
Garreaux v. United States,
In
Hernandez v. United States,
Applying an affirmative acts test, most of the plaintiffs’ alleged wrongs fail to state a cognizable claim under the “bad men” provision of a treaty. While, as plaintiffs note, it is doubtless true that “a person can be wronged by the inaction of another,” inaction is not a recognized harm under the 1868 Treaty. Since allegations (ii), (v), (vi), and (vii) allege only omissions, they do not qualify as “wrongs” for purposes of a “bad men” claim under the provision of the 1868 Treaty. Accordingly, allegations (ii), (v), (vi), and (vii), therefore, are dismissed for failure to state a claim.
Nevertheless, accepting plaintiffs’ allegations as true, allegations (i) and (iv) qualify as potential, cognizable “wrongs” under the 1868 Treaty. In fact, in
Hebah II
the court explicitly recognized that “the killing of an Indian without just cause or reason would be a wrong within the meaning of the Treaty of 1868.”
Hebah II,
Although the court recognizes allegations (i) and (iv) qualify as potential cognizable wrongs under the • 1868 Treaty, implicit in
Hebah II,
is the conclusion that, as defendant argues, “actions permissibly taken by law enforcement officers are not ‘wrong’ and cannot support a finding of liability under the ‘bad men’ provision.”
24
See Hebah II,
Issue Preclusion
Accepting the plaintiffs’ factual allegations as true and that parts of allegations (i) and (iv) in plaintiffs’ complaint qualify as potentially cognizable “wrongs,” defendant, nevertheless, argues that “[t]he doctrine of issue preclusion prevents the re-litigation of Plaintiffs’ only cognizable claim for relief under the Bad Men clause.” Defendant argues:
The district court of Utah entered an order in Plaintiffs’ lawsuit against the state law enforcement officers and mortuary that rejects with finality the keystone of Plaintiffs’ argument that they constructed over the course of five years of litigation: that the state defendants allegedly trespassed on tribal lands, executed Mr. Murray, and subsequently engaged in a conspiracy to thwart any investigation into his murder.
Therefore, defendant contends that “[pjlain-tiffs’ lawsuit in the Court of Federal Claims does not provide them with an additional opportunity to litigate the ultimate facts of this central thesis that the Utah district-court concluded was without merit.” (internal citation omitted). “This is no less true,” defendant argues, “even though Plaintiffs’ appeal to the Tenth Circuit remains pending.” Defendant argues there is no question that “the issues currently at stake are identical, were actually litigated in the Utah district court, and that Plaintiffs had a full and fair opportunity to litigate those issues. That Plaintiffs’ bring different claims is immaterial. The fundamental point of contention — Mr. Murray’s cause of death — has been resolved.” In response, plaintiffs argue that “[i]ssue preelusion/collateral estoppel does not apply to Plaintiffs’ action in the Court of Claims because Plaintiffs have challenged the district court’s purely legal rulings on appeal. Accordingly, not only does [sic] the Utah district court’s rulings lack finality, but, more importantly, the Plaintiffs have not been afforded a full and fair opportunity in which to conclusively litigate their claims in Norton. ”
The rale of issue preclusion precludes a party from re-litigating an issue that was “litigated and resolved in a valid court determination essential to the prior judgment.”
New Hampshire v. Maine,
Issue preclusion bars successive litigation of “an issue of fact or law” that “is actually litigated and determined by a valid and final judgment, and ... is essential to the judgment.” Restatement (Second) of Judgments § 27 (1980) (hereinafter Restatement). If a judgment does not depend on a given determination, relitigation *524 of that determination is not precluded. Id., § 27, Comment h.
Bobby v. Bies,
The United States Court of Appeals for the Federal Circuit has directed that:
Collateral estoppel is generally appropriate if “(1) an issue is identical to one decided in the'first action; (2) the issue was actually litigated in the first action; (3) the resolution of the issue was essential to a final judgment in the first action; and (4) the party defending against issue preclusion had a full and fair opportunity to litigate the issue in the first action.”
Biafora v. United States,
The Tenth Circuit has explained that “[cjollateral estoppel, or issue preclusion, is designed to prevent needless relitigation and bring about some finality to litigation.”
Moss v. Kopp,
(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the -prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.
Park Lake Res. Ltd. Liab. Co. v. United States Dep’t of Agric.,
Both parties agree that the decisions from the Tenth Circuit govern the collateral estop-pel inquiry. Both parties further agree on the Tenth Circuit’s four part standard for determining the applicability of collateral es-toppel: (1) an issue is identical to one decided in the first action; (2) the prior action has
*525
been finally adjudicated on the merits; (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, the resolution of the issue was essential to a final judgment in the first action; and (4) the party defending against issue preclusion had a full and fair opportunity to litigate the issue in the first action.
See, e.g., Park Lake Res. Ltd. Liab. Co. v. United States Dep’t of Agric.,
Defendant claims that the decision of theUnited States District Court for the District of Utah in
Jones et al. v. Norton et al.,
Regarding the first element of collateral estoppel, whether an issue is identical to one decided in the first action, plaintiffs argue that there is “no identity of issues” between the present suit and the one litigated in the United States District Court for the District of Utah. Plaintiffs also claim that the issues before the District Court related to allegations of illegal seizure, excessive force, and conspiracy, whereas the issue before this court involve the breach of federal treaties, the “wrongs” of various law enforcement officials and trust obligations. Defendant argues that the “issues currently at stake are identical,” and the “identity of issues in both cases is similarly made apparent in the Utah district court’s rejection of Plaintiffs’ conspiracy theory, that is, that the individuals involved in that day’s events engaged in a conspiracy to cover up Mr. Murray’s ‘execution.’” Defendant states “[¡Indeed, Plaintiffs’ suggestion that this Court ‘review the same evidence and come to a different conclusion,’ highlights the very necessity of issue preclusion: to prevent needless relitigation and bring about some finality to litigation.” (internal citation omitted). Defendant also points to plaintiffs’ response to the motion to dismiss to support their point:
The difference between the original Complaint and the proposed First Amended Complaint is that the Amended Complaint makes explicit what is only implicit in the original Complaint. The Utah state, county, and municipal officers committed a wrong by pursuing Murray at gunpoint without jurisdiction and without probable cause, by shooting Murray execution-style, and by then conspiring to' cover-up the execution-style shooting and to obstruct justice.
(emphasis in original).
On March 7, 2014 the District Court of Utah granted the defendant’s motion for
*526
summary judgment, and denied plaintiffs’ cross motion.
See generally Jones et al. v. Norton et al.,
the Plaintiffs’ evidence is sparse, circumstantial, subject to more than one interpretation, and, at times, very speculative. Moreover, evidence to the contrary is strong and is consistent with a self-inflicted gunshot wound. Deputy Byron testified that he did not see Detective Norton next to Mr. Murray when Mr. Murray dropped to the ground. Detective Norton testified that he was up on a hill when he saw Mr. Murray shoot himself.
The Deputy Chief Medical Examiner Dr. Edward Leis, who conducted the physical examination of Mr. Murray’s body, concluded .in his report that the wound was caused by a gun shot “in close proximity to the skin surface when it was discharged.” He based his conclusion on “abundant soot at the inferior margin of the defect [the wound] and some marginal abrasion is also noted at the inferior margin.” In his testimony, he elaborated on his conclusion that the gun was in contact with Mr. Murray’s head when it was fired:
At the perimeter, there are several triangular shaped tears of the wound. That’s a result of the gun being pressed up against the skin surface when it’s discharged and gases causing the scalp to be separated from the underlying skull. When the scalp lifts up, it stretches and it tears and gets its characteristic stellae appearance.
The smaller wound on the right side of Mr. Murray’s head was, in Dr. Leis’ opinion, the exit wound. After Dr. Leis certified that Mr. Murray’s death was a suicide resulting from a gunshot wound to the head, he added an additional cause of death (based on results from testing of Mr. Murray’s bodily fluids). Because the tests showed the presence of drags and alcohol in Mr. Murray’s system, Dr. Leis issued an amended death certificate which added “Acute alcohol intoxication; recent methamphetamine use” as contributing to Mr. Murray’s death.
Detective Norton was more than 100 yards away when Mr. Murray was shot. Dr. Leis testified that there was no evidence that the wound could have been caused by a shot coming from that far away. Plaintiffs maintain that Detective Norton was not 100 yards away, but was right next to Mr. Murray and so he had the capability of inflicting the contact wound. But the actual evidence in the record (that is, testimony by Detective Norton and Deputy Byron) shows that Detective Norton was not right next to Mr. Murray when the fatal shot was fired.
Id. at 1190-91 (footnotes omitted). Therefore, the District Court concluded that “[a]ll of the direct evidence presented by the Defendants, including Dr. Leis’ testimony and report, supports the conclusion that Mr. Murray shot himself. Plaintiffs offer no more than speculation and no reasonable jury could find that Detective Norton shot Mr. Murray in the head at point-blank range.” The District Court also determined that Mr. Murray’s death was a suicide. See id. at 1191. The District Court stated, “[bjased on the facts as detailed and explained in its spoliation order, the court concludes that no reasonable jury could conclude that Defendants conspired to ‘effectively eliminate[ ] all probative evidence’ and ‘clean the closet of evidence that would have allowed Plaintiffs to build their case.’ ” Id. at *527 1204 (quoting various plaintiffs’ briefs; omissions in original; footnote omitted).
Addressing plaintiffs’ conspiracy theory, the District Court indicated, “[s]ummed up, Plaintiffs’ argument is that Defendants engaged in ‘[a] conspiracy to cover up a killing.’ Plaintiffs’ theory is that Detective Norton shot and killed Mr. Murray, and that the rest of the Defendants conspired to cover-up that killing and protect Detective Norton.” Id. at 1197 (footnotes omitted). Explaining the conspiracy, the court noted that, “[t]he focus of the Plaintiffs’ conspiracy theory is the failure to give aid and their spoliation argument about the destruction of evidence.” Id. at 1202. Turning to plaintiffs’ claims of the defendants’ failure to give medical aid to Mr. Murray, and the defendants’ “interference with Mr. Murray’s due process right of access to courts via the failure to preserve critical evidence and the affirmative destruction of critical evidence,” the District Court determined “[n]one of that testimony could allow a reasonable jury to conclude that Individual Defendants were deliberately indifferent to Mr. Murray’s situation, or that they knew that there was a substantial risk of significant harm to Mr. Murray if they did not provide first aid. If anything, the evidence shows that at least three of the Individual Defendants (Young, Davis, and Slaugh) wefe concerned that attempts to provide any kind of aid to Mr. Murray would do more harm than good.” Id. at 1210. The court determined, “[i]n sum, there is no evidence before the court to support a finding that the inaction by each individual defendant was part of a conspiracy to let Mr. Murray die.” Id. at 1203.
The thoroughness of the District Court’s findings and decision, after years of discovery and multiple briefings, demonstrates a comprehensive review of the circumstances of the death of Mr. Murray and the actions of the officials in the aftermath of his death. Nonetheless plaintiffs claim that:
The district court’s statements and rulings concerning the manner of Murray’s death, the desecration of Murray’s body, the sufficiency of evidence showing a conspiracy, the extra-jurisdictional pursuit of Murray, and the handcuffing of Murray are not preclusive in this action because the issues to be litigated here — whether the actions and omissions of the Utah and federal law enforcement officers violated the 1863 and 1868 Ute Treaties — are not identical to the issues adjudicated by the district court in that court’s dispositive rulings.
The court agrees with defendant that the issues identified in th‘e amended complaint filed in this court, namely the allegations that officials committed “a wrong by pursuing Murray at gunpoint -without jurisdiction and without probable cause, by shooting Murray execution-style, and by then conspiring to cover-up the execution-style shooting and to obstruct justice,” presents identical issues with those decided in the District Court litigation.
Regarding the second element of the collateral estoppel test, whether the prior action has been finally adjudicated on the merits, defendant contends that the District Court’s “order on summary judgment is final for purposes of issue preclusion, even though Plaintiffs’ appeal remains pending.” In response, plaintiffs declare that the decisions by the District Court “have
not
been conclusively adjudicated on the merits because those rulings are being challenged on appeal and are currently pending
de novo
review by the Tenth Circuit.” (emphasis in original). The Tenth Circuit has made clear that “[t]he appealability of a judgment, however, does not hinder its preclusive effect.”
MACTEC, Inc. v. Gorelick,
Plaintiffs also allege that “to be considered adjudicated on the merits, the previous issues adjudicated must have been necessary to the judgment.” As determined when considering the first element of collateral estop-pel, all of the issues1 defendant raises as bearing on estoppel were necessary to the District Court’s decision to grant summary judgment to the defendant. The District Court carefully considered the allegations of murder, as well as the spoliation claims in determining that there were no constitutional violations by the officials. Each were a necessary element of the summary judgment decision. Therefore, for purposes of collateral estoppel, the careful and thorough summary judgment decision issued by the District of Utah should be considered a final judgment on the issue adjudicated on its merits by this court. 30
Regarding the third element of the collateral estoppel test, whether the party against whom the doctrine is invoked was a party or was in privity with a party to the prior adjudication, “Plaintiffs acknowledge that the third requirement for collateral estoppel is met, because they were parties to the district court adjudication in Norton. ” Therefore, the third element is not in dispute. 31
Finally, for the fourth element of the collateral estoppel test, whether the party defending against issue preclusion had a full and fair opportunity to litigate the issue in the first action, defendant contends that “[t]he district court provided Plaintiffs with a full and fair opportunity to litigate the matters involved in Norton.” Plaintiffs respond that they have not been afforded a full and fair opportunity to litigate the issue in the first action as “Plaintiffs have not yet been heard on appeal.” Plaintiffs also argue that “[c]ritieal in this case is that the Plaintiffs, through no fault of their own, were deprived of crucial evidence in Norton due to the mass spoliation of critical evidence that occurred as a result of the State and federal officers’ intentional tampering with, destruction and/or loss of, and failure to collect and preserve evidence.”
*529
For a full and fair opportunity, the Tenth Circuit has indicated “as to the ‘ “inquiry into whether a party had a full and fair opportunity to litigate an issue ... [we] focus on whether there were significant procedural limitations in the prior proceeding, whether the party had the incentive to litigate fully the issue, or whether effective litigation was limited by the nature or relationship of the parties.” ’ ”
Burrell v. Armijo,
Regarding the argument that plaintiffs “were deprived of crucial evidence in
Norton
due to the mass spoliation of critical evidence that occurred,” defendant argues that “[a]s an initial matter, their -argument goes to the underlying investigation, not the district court proceeding. The matter of spoliation was intensely litigated over the course of five years in the district court of Utah, with extensive discovery, briefing, and an eviden-tiary hearing.” The District Court determined, “[biased on the facts as detailed and explained in i,ts spoliation order, the court concludes that no reasonable jury could conclude that Defendants conspired to ‘effectively eliminate[] all probative evidence’ and ‘clean the closet of evidence that would have allowed Plaintiffs to build their case.’ ”
Jones et al. v. Norton et al.,
As all four elements of the collateral estop-pel test have been met, plaintiffs are es-topped from litigating the factual circumstances of Todd Mun-ay’s death, and the allegations of the destruction of evidence. Therefore, for allegation (i), that the FBI or the BIA officers committed wrongs to Todd Murray, the Murray family and the Ute Tribe “by acting in concert with state/county/municipal officers, expressly or impliedly, in concocting, or permitting to be concocted, a false story that Todd Murray shot himself in the back of his head, execution style, above and behind his left ear,” plaintiffs have failed to state a claim. Likewise, -for allegation (iv), that the FBI or the BIA officers committed wrongs to Todd Murray, the Murray family and the Ute Tribe “by participating in, tacitly allowing, or failing to prevent, the desecration of Murray’s body and the spoliation of critical evidence both at the shooting scene *530 and afterwards at the Medical Center, Blackburn Mortuary, and at the Utah OME,” plaintiffs have failed to state a claim. The remaining portions of plaintiffs’ allegations (i) and (iv) in the amended complaint for violation of the 1863 and 1868 Treaties and other federal laws are dismissed for failure to state a claim. 33
Breach of Trust
Regarding Count II of plaintiffs’ amended complaint, “BREACH OF TRUST IN VIOLATION OF THE UTE TREATIES AND OTHER FEDERAL LAW defendant argues that this court lacks subject matter jurisdiction. (capitalization in original).
The plaintiffs’ amended complaint states, in part:
By failing to investigate Todd Murray’s death and by taking no action to promote justice in Indian Country, Special Agent Rex Ashdown and David Ryan and BIA Officers James Beck, Terrance Cuch and Kevin Myore breached their duties to the Ute Tribe, to Todd Murray, and to Murray’s family under the Ute Treaties of 1863 arid 1868 and under the various federal laws listed under Paragraph 10 above.[ 34 ]
*531 In violation of federal law and its treaty obligations, the United States has failed to investigate or prosecute the individuals involved in the shooting death of 21 year-old Todd Murray on April 1, 2007, or the subsequent conspiracy to suppress, alter, and destroy critical evidence related to the shooting death.
The United States has also breached its trust obligations to the Tribe and Murray’s family by failing to protect the territorial integrity of the Tribe’s reservation and the Tribe’s sovereign interest in the shooting site, thus allowing unauthorized persons to trespass on the Ute homeland and cause harm to tribal members with complete impunity.
Plaintiffs contend that the 1863 and 1868 Ute Treaties created, and impose, specific fiduciary duties on the United States, namely to protect Indian lands from “unauthorized state intrusion” and to prosecute and “punish any ‘bad man’ that commits any wrong upon the person or property of the Indians.” Plaintiffs claim that the United States “promised” these guarantees to the Ute people, and allege that in failing to prevent trespass onto tribal lands and in neglecting to investigate and prosecute the alleged “bad men,” the United States has breached its duties under the treaty agreement.
As noted above, the Tucker Act grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the Unit: ed 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, or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, and as discussed above, the Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional, statutory, .or regulatory law mandating compensation by the federal government for damages sustained.
See Navajo Nation II,
To prove that a statute or regulation is money-mandating, a plaintiff must demonstrate that an independent source of substantive law relied upon “ ‘can fairly be interpreted as mandating compensation by the Federal Government.’”
Navajo Nation II,
As explained by the Supreme Court in Navajo Nation II:
Neither the Tucker Act nor the Indian Tucker Act creates substantive rights; they are simply jurisdictional provisions that operate to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts). United States v. Testan,424 U.S. 392 , 400,96 S.Ct. 948 ,47 L.Ed.2d 114 (1976); United States v. Mitchell,445 U.S. 535 , 538,100 S.Ct. 1349 ,63 L.Ed.2d 607 (1980) (Mitchell I). The other source of law need not explicitly provide that the right or duty it *532 creates is enforceable through a suit for damages, but it triggers liability only if it “‘can fairly be interpreted as mandating compensation by the Federal Government.’” Testan, supra, at 400,96 S.Ct. 948 (quoting Eastport S.S. Corp. v. United States,178 Ct.Cl. 599 , 607,372 F.2d 1002 , 1009 (1967)); see also United States v. Mitchell,463 U.S. 206 , 218,103 S.Ct. 2961 ,77 L.Ed.2d 580 (1983) (Mitchell II); Navajo I,537 U.S. at 503 ,123 S.Ct. 1079 .
As we explained in Navajo I, there are thus two hurdles that must be cleared before a tribe can invoke jurisdiction under the Indian Tucker Act. 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.” Id., at 506,123 S.Ct. 1079 . “If that threshold is passed, the court must then determine whether the relevant source of substantive law ‘can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s].’ ” Ibid, (alteration in original). At the second stage, principles of trust law might be relevant “in drawing the inference that Congress intended damages to remedy a breach.” United States v. White Mountain Apache Tribe,537 U.S. 465 , 477,123 S.Ct. 1126 ,155 L.Ed.2d 40 (2003).
Navajo Nation II,
To state a claim cognizable under the Indian Tucker Act, Mitchell I and Mitchell II thus instruct, a 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. See463 U.S. at 216-217, 219 ,103 S.Ct. 2961 . If that threshold is passed, the court must then determine whether the relevant source of substantive law “can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s].” Id., at 219,103 S.Ct. 2961 . Although “the undisputed existence of a general trust relationship between the United States and the Indian people” can “reinforc[e]” the conclusion that the relevant statute or regulation imposes fiduciary duties, id., at 225,103 S.Ct. 2961 , that relationship alone is insufficient to support jurisdiction under the Indian Tucker Act. Instead, the analysis must train on specific rights-creating or duty-imposing statutory or regulatory prescriptions. Those prescriptions need not, however, expressly provide for money damages; the availability of such damages may be inferred.
Navajo Nation I,
In describing the “two hurdles, the
Navajo Nation
court explained that “[fjirst, 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.’ ”
Id.
at 290,
“If that threshold is passed, the court must then determine whether the relevant source of substantive law ‘can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s].’” Ibid, (alteration in original). At the second stage, principles of trust law might be relevant “in drawing the inference that Congress intended damages to remedy a breach.” United States v. White Mountain Apache Tribe,537 U.S. 465 , 477,123 S.Ct. 1126 ,155 L.Ed.2d 40 (2003).
*533
Navajo Nation II,
In its motion to dismiss, defendant eon-, tends that the plaintiffs’ breach of trust claim “fail[s] to identify a substantive source of law that establishes specific fiduciary duties.” Defendant argues that “a fiduciary duty only arises if it is plain from the relevant statutes or regulations that the government has accepted such a responsibility.” Defendant contends that because plaintiffs’ claims have no foundation in any substantive body of law, it fails to acquire subject-matter jurisdiction under the Tucker Act and therefore warrants dismissal pursuant to RCFC 12(b)(1).
Plaintiffs correctly note that the Supreme Court has held that “any ambiguities in the language of an Indian treaty must be resolved in favor of the Indians and courts must endeavor to ‘give effect to the terms as the Indians themselves would have understood them.’ ”
(quoting Minnesota v. Mille Lacs Band of Chippewa Indians,
Article 10 of the 1863 Treaty provides:
Each family that shall announce through its head to the agent of the band a willingness and determination to begin and follow the pursuits of agriculture, by farming or raising stock and growing wool, upon such lands and according to such regulations as the Secretary of the Interior may prescribe, shall receive the following donations of stock to aid them in their endeavor to gain a livelihood by such new pursuits, viz.: Of cattle, one head annually during five years, beginning with the ratification of this treaty.
Of sheep, ten head annually during the first two years after the ratification of this treaty, and five head annually during the three years thereafter.
The Secretary of the Interior may also direct that their share of annuity goods and provisions shall be of a character suited to such change of life: Provided, however, That such stock shall only be donated as long as such family shall in good faith keep and use the same for the purpose indicated in this article.
All the Indians of said band who may adopt and conform to the provisions of this article shall be protected in the quiet and peaceable possession of their said lands and property.
1863 Treaty, Art. 10 (emphasis in original). Plaintiffs also contend generally that the United States, “due to its absolute jurisdiction and control over Indian lands ... has a specific fiduciary duty to protect the reservation from the imposition of state criminal jurisdiction over tribal members.” Plaintiffs, however, only cite to
Navajo Tribe of Indians v. United States,
Plaintiffs also allege that Article 2 of the 1868 Ute Treaty establishes a duty to prevent trespass. In relevant part, Article 2 reads:
[N]o persons, except those authorized so to do, and except such officers, agents, and employes [sic] of the Government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law shall ever be permitted to pass over, settle upon, or reside in the Territory described in this article, except as herein otherwise provided.
1868 Treaty, Art. 2. Defendant, notes, however, that “[plaintiffs admit that ‘some courts have held that the duty of the United States to ensure the quiet enjoyment of reservation lands does not make the government liable for general trespasses by third parties.’” Moreover, defendant notes that “[conspicuously absent in the events that constitute the alleged trespass of state law enforcement officials on the Reservation is the presence of any federal law enforcement officer.” In the amended complaint, the plaintiffs specifically identify state officers, but not the federal officers, as having no right to be on the reservation. The amended complaint states: “Murray was shot after being pursued at gunpoint by two Utah state Highway Troopers, a Uintah County Sheriffs Deputy, and an off-duty Vernal City, Utah, police officer. The pursuit took place over tribal trust lands more than 25 miles inside the northern boundary of the U & 0 Reservation. The four shooting-involved officers had no criminal jurisdiction over Indians inside the U & 0 Reservation.” For each of the four state officers, the amended complaint also alleges they are “not cross-deputized by the federal government or the Ute Tribe to exercise law enforcement powers over Native Anericans inside the Ute Tribe’s Reservation.” The plaintiffs, do not, however, make a cross-deputized claim against any of the federal officials.
Finally, according to plaintiffs, the United States’ failure to prosecute the bad men who murdered Mr. Murray and conspired to cover up the murder on April 1, 2007 represents a breach of trust. Article 6 of the 1868 Treaty promises that “the United States will ... proceed at once to cause the offender to be arrested and punished according to the laws of the United States.” 1868 Treaty, Art. 6. Plaintiffs argue that
The “bad men” clause of the 1868 Treaty, further expands the duty of the U.S. to protect not only the Ute Tribe as a whole in its quiet possession of the reservation lands, but also the individual Ute Indians against “any wrong” perpetrated on them by any non-Indian.
Defendant contends that the 1868 Ute Treaty provision is not trust-creating, but rather bestows discretionary power upon the United States to prosecute bad men. Moreover, defendant states “[w]e do not question that the Treaty requires payment to individuals under the ‘Bad Men’ clause, if the requirements of the Treaty are met. The Treaties, however, impose a duty upon the government to only pay individual members, not the Tube, in the event that unauthorized persons cause harm to person or property.” (emphasis in original). Moreover, for count one, this court did not find the United States had violated the “bad men” provision as a result of the actions involving Mr. Murray’s death, and for count two, plaintiffs’ claims are repetitive of count one, as they specifically repeat and re-allege the claims in count two.
None of the citations to the 1863 and 1868 Treaties provide a source of jurisdiction for the breach of trust claims alleged by plaintiffs. Furthermore, none of the plaintiffs’ breach of trust claims identify any substantive law containing the “express language of a trust.”
See Samish Indian Nation v. United States,
The court also agrees with defendant that “authority to institute both civil and criminal litigation on behalf of the United States is committed to the discretion of the Attorney General.” (citing 28 U.S.C. § 516 (2012). The defendant further argues that “[t]he Attorney General’s exercise of his discretion to file litigation on behalf of the United States is ‘presumptively immune from judicial review.’ ” (quoting
Shoshone Bannock Tribes v. Reno,
CONCLUSION
Because plaintiffs have failed to state a claim and have not demonstrated jurisdiction is proper in this court, defendant’s motion to dismiss is GRANTED. Plaintiffs’ amended complaint is DISMISSED. The Clerk’s Office shall enter JUDGMENT consistent with this opinion.
IT IS SO ORDERED.
Notes
. The plaintiffs are "Debra Jones and Arden C. Post, individually and as the natural parents of Todd R. Murray; Debra Jones, as personal representative of the Estate of Todd R. Murray, deceased, for and on behalf of the heirs of Todd R. Murray, and the Ute Indian Tribe of the Uintah and Ouray Reservation.” Plaintiffs Jones and Post are the biological parents of Todd R. Murray, a 21-year old member of the Ute Indian Tribe, whose death is the basis for the above captioned case, filed against the United States for violation of the Ute treaties and federal statutes and breach of trust in violation of the Ute treaties federal statutes.
. Although the amended complaint repeatedly refers to "testimony" by multiple individuals, the amended complaint does not indicate how or under what circumstances the “testimony” was taken.
. Although plaintiffs refer to Officers Young and Bryon as "defendants” in the amended complaint, the only proper defendant in the United States Court of Federal Claims is the United States.
See
Rule 10(a) of the Rules of the United States Court of Federal Claims (RCFC) (2014) ("The title of the complaint must name all the parties ..., with the United States designated as the party defendant.”). The United States Supreme Court has indicated that for suits filed in the United States Court of Federal Claims and its predecessors, "[i]f the relief sought is against others than the United States the suit as to them must be ignored as beyond the jurisdiction of the court.”
United States v. Sherwood,
. Plaintiffs amended the complaint after defendant filed a motion to dismiss the complaint. Plaintiffs allege in the amended complaint:
Murray was shot after being pursued at gunpoint by two Utah state Highway Troopers, a Uintah County Sheriff’s Deputy, and an off-duty Vernal City, Utah, police officer. The pursuit took place over tribal trust lands more than 25 miles inside the northern boundary of the U & O Reservation. The four shooting-involved officers had no criminal jurisdiction over Indians inside the U & O Reservation. The officers also had no probable cause to believe that Todd Murray had committed any crime.
(internal citation omitted).
. According to the amended complaint, “Agent Ashdown admitted to the family members that it would be impossible for a right-handed individual to shoot himself in the back of the head, above and behind his left ear."
. The Ute Indian Tribe was not a party to the District Court litigation.
. On October 15, 2014, the District Court amended its judgement "to reflect the award of costs” to the defendants.
See Jones et al. v. Norton et al.,
No. 2: 09-CV-730-TC,
. As indicated by the District Court:
The Plaintiffs contend that officers Norton, Young, Byron, and Swenson seized Mr. Murray on the Reservation and so a violation of Mr. Murray's Fourth Amendment rights necessarily occurred. They focus on the following events: (1) Trooper Swenson's order to Mr. Kurip and Mr. Murray to stop after the car chase ended and the men got out of the car; (2) the forming of a police perimeter to entrap Mr. Murray; (3) Detective Norton firing at Mr. Murray twice; (4) when Detective Norton’s bullet allegedly entered Mr. Murray's head; and (5) Deputy Byron handcuffing Mr. Murray while Trooper Young pointed his gun as cover for Deputy Byron.
Jones et al. v. Norton et al.,
. In relation to plaintiffs' claim that defendants' conspired to violate Mr. Murray's civil rights, the District Court explained that the plaintiffs asked "the court to infer the existence of such a conspiracy (much like they asked the court to infer racial animus) from a handful of facts and the Plaintiffs' speculative characterization of those facts as so 'brazen and flagrant’ and ‘unjustifiable and irrational’ that they support a finding of conspiracy.”
Jones et al. v. Norton et al.,
. The defendants’ alleged failure to preserve evidence was discussed in detail in the District Court's spoliation order.
See Jones et al. v. Norton et al.,
No. 2: 09-CV-730-TC,
There is no evidence to show that Mr. Murray's hands were bagged improperly. Plaintiffs argue that Mr. Murray’s hands must have been improperly bagged because some photographs showed his hands bagged and others did not, but there is no evidence to show who, when, and where Mr. Murray's hands were bagged, or when the bags were removed. And there is no evidence to show that the body bag was sealed.
Id. at *11.
. The court notes that preceeding the list of allegations in plaintiffs’ amended complaint, plaintiffs also claim:
In April 2007, Todd Murray, Todd Murray's family, and the Ute Indian Tribe suffered “injuries” at the hands of "bad men" as those terms are used in the Ute Treaties of 1863 and 1868. These injuries include (i) the extra-territorial police pursuit, assault upon and murder of Todd Murray, (ii) the conspiracy to cover up Todd Murray’s murder, (iii) the failure of federal officers to take custody of Murray’s body and to secure the body against desecration and spoliation of evidence; (iv) the desecration of Murray’s body and the spoliation of critical evidence both at the shooting scene and after-wards at the Medical Center, Blackburn Mortuary, and at the Utah OME; (v) the failure to *502 insure that a proper autopsy was performed on Murray’s body; [sic] (vii) failure of federal officers to conduct any kind of investigation into Todd Murray's murder; and (vi) the failure of federal officers to protect the territorial integrity of the Tribe's reservation boundary and the Tribe’s sovereign interests in the crime scene where Murray was shot.
. Both defendant and plaintiffs use the phrases "bad men” provision and "bad men" clause, in their filings. For simplicity, unless quoting directly, the court adopts the phrase "bad men” provision.
. On March 25, 1864, the United States Senate advised ratification, with amendments, which were assented to by the Tribe on October 8, 1864. See 13 Stat. 673. The 1863 Treaty was then signed by President Lincoln1 on December 14,1864. See id.
. On July 25, 1868, the United States Senate advised ratification, with amendments, which were assented to by the Tribe in August and September 1868. See 15 Stat. 619. The 1868 Treaty was then signed by President .Johnson on November 6, 1868. See id.
. Although the 1868 Treaty uses the spelling "Tabaquache” in the preamble, all other spellings of the Tribe are "Tabequaehe.”
. The decision in
Navajo Nation II
was preceded by the Supreme Court decision in
United States v. Navajo Nation,
. The decision in
Mitchell II
was preceded by the Supreme Court decision in
United States v. Mitchell,
. The court notes that defendant in the above captioned case, like the defendant in Elk, cites to the unpublished opinion in Zephier v. United States, No. 03-768L (Fed.Cl. Oct. 29, 2004). The Elk court wrote as follows:
The other case cited by defendant, the unpublished opinion in Zephier, et al. v. United States, No. 03-768L (Fed.Cl. Oct. 29, 2004), concerned a situation in which the plaintiff did not file a claim with Interior under the Sioux Treaty before filing suit. This court dismissed the complaint for lack of jurisdiction, finding that "the courts either have found that the plain language of the treaties mandates exhaustion of administrative remedies or have accepted without question that such remedies are available.” Id. at 13. But, with all due respect, the latter statement does not flow from the analysis that precedes it, which, inter alia, overlooks several key distinctions. For example, while the court noted the significant differences between the Navajo and Sioux treaties, id. at 12 n.4, it freely cited cases involving the former as precedent for construing the latter — a non se-quitur. And while it' suggested that Begay II is not precedential, id. at 11, but rather only persuasive, id. at 11 n.3, it, nonetheless, proceeded to apply that case as if it had resolved definitively the precise issue before the court, doing so largely without further independent analysis of the exhaustion issue.
Elk v. United States,
. The court notes that the Elk court observed that:
[T]he court in Begay I, denied its motion to dismiss the plaintiffs’ complaint and retained jurisdiction while ordering the Assistant Secretary of Interior to render an opinion within 90 days. Id. at 603,590 F.2d 343 . The Begay orders thus hardly stands [sic] for the proposition that a claimant must obtain an actual decision from Interior before bringing suit under the Tucker Act.
Elk v. United States,
. The Supreme Court, noted, however "this Court has declined to require exhaustion in some circumstances even where administrative and judicial interests would counsel otherwise.”
McCarthy v. Madigan,
. The Federal Circuit in
Richard
noted that the Fort Laramie Treaty " 'is one of nine made in 1868.... The treaties were all duly ratified, proclaimed, and published in volume fifteen of the
Statutes at Large.
All say that peace is their object and all contain "bad men" articles in similar language.’ ”
Richard v. United States,
. As noted in the District Court litigation, the Utah officials include: Vernal City Police Officer Vance Norton, Vernal City, Vernal City Police Department, the Utah Highway Patrol, the State of Utah, Blackburn Mortuary, Uintah County, State Troopers Dave Swenson, Craig Young, Rex Olsen, and Jeff Chugg, Uintah County Sherriff’s Sergeant Bevan Watkins and Deputy Troy Slaugh, and Utah Division Wildlife Officer Sean Davis.
. The Court of Claims further explained, the "Decedent returned to Apartment 18 at Tigee Village about midnight on March 13, 1968. He was drunk, angry and carrying a one pint bottle and a one-half pint bottle of whisky,” and "[s]hortly after going to bed, Mr. Hebah started to choke Mrs. Hebah,” who eventually fled to a neighbor’s house who called Wind River Reservation police station.
Hebah II,
. Defendant further argues that "[t]he text and history of the treaty also indicates that the United States and the tribe were primarily concerned with criminal acts that injured either the individual tribal members or their property, such as robbery, assault, and murder,” and, therefore, not claims of conspiracy to destroy evidence.
. The Supreme Court has explained that "[¡Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided. This effect also is referred to as direct or collateral estoppel.” Migra v.
Wairen City Sch. Dist. Bd. of Educ.,
. Because the United States was not a party to the
Norton
suit in the United States District Court for the District of Utah, but the plaintiffs were, the use of collateral estoppel would be defensive, non-mutual issue preclusion.
See Parklane Hosiery Co. v. Shore,
. Defendant also argues that "Plaintiffs likewise miss the mark with their argument that the supposed 'mass spoliation of critical evidence’ deprived them of a full and fair opportunity to litigate. As an initial matter, their argument goes to the underlying investigation. And the matter of spoliation was intensely litigated over the course of five years in the district court of Utah, with extensive discovery, briefing, and an evidentiary hearing.” Defendant also argues, "[t]hat Plaintiffs disagree with Judge Campbell’s conclusion is clear. But this lawsuit provides them with no occasion to rely on the same evidence or introduce new evidence in an attempt to reach a different result.”
. As noted above, on November 18, 2014, plaintiffs filed another appeal to the United State Court of Appeals for the Tenth Circuit, appealing the amended judgment entered by the District Court. See Jones et al. v. Norton et al., No. 14—4144 (filed 10th Cir. Nov. 18, 2014).
. The Federal Circuit has interpreted this to mean decisions that are “adequately deliberated” in which the "parties were fully heard in the prior proceeding.”
Dana v. E.S. Originals, Inc.,
. Although not clearly established by the Tenth Circuit, other federal appellate courts have made clear that issue preclusion applies to summary judgment decisions, and the summary judgment decision by the District Court in
Notion
thorough and detailed on the relevant issues.
See Exhibitors Poster Exch., Inc. v. Nat'l Screen Serv. Corp.,
. The Court notes that the Ute Tribe was not a party to the District Court action. No one, however, has suggested to the court that the plaintiffs are in privity with the Tribe. Moreover, the court notes that the Ute Tribe, independent of the other plaintiffs, cannot sustain a claim under the "bad men” provision of the 1868 Treaty. Article 6 of the Treaty states:
If bad men among the whites or among other people, subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.
Id.
Art. 6 (emphasis added). The Tribe is not an "injured person,” Mr. Murray was the injured person, and his parents brought suit on his behalf. See
Hernandez v. United States,
. Although the District Court decision addressed only the state and local officers named in the suit, in the District Court’s spoliation order, the District Court noted that "[t]he State Defendants and Uintah County Defendants had no responsibility to ensure that Detective Norton’s firearm was tested_ As part of his investigation, Agent Ashdown possibly should have taken Detective Norton’s firearm to have necessary tests performed. But Agent Ashdown is not a named Defendant."
Jones et al. v. Norton, et al.,
. As noted above, plaintiffs also included a separate, additional list of allegations in the amended complaint against the defendant claiming:
In April 2007, Todd Murray, Todd Murray’s family, and the Ute Indian Tribe suffered "injuries’’ at the hands of "bad men” as those terms are used in the Ute Treaties of 1863 and 1868. These injuries include (i) the extra-territorial police pursuit, assault upon and murder of Todd Murray, (ii) the conspiracy to cover up Todd Murray's murder, (iii) the failure of federal officers to take custody of Murray’s body and to secure the body against desecration and spoliation of evidence; (iv) the desecration of Murray's body and the spoliation of critical evidence both at the shooting scene and after-wards at the Medical Center, Blackburn Mortuary, and at the Utah OME; (v) the failure to insure that a proper autopsy was performed on Murray's body; [sic] (vii) failure of federal officers to conduct any kind of investigation into Todd Murray’s murder; and (vi) the failure of federal officers to protect the territorial integrity of the Tribe’s reservation boundary and the Tribe's sovereign interests in the crime scene where Murray was shot.
The court notes that of these additional claims, numbers (ii), (iii), (iv), (v), (vi), and (viii), overlap with the allegations in the amended complaint addressed above. For claim (i), from the separate list of claims, “the extra-territorial police pursuit, assault upon and murder of Todd Murray,” the extra-territorial pursuit also is not covered by the "bad men” provision of the 1868 Treaty. For the remaining elements of claim (i) from the separate, additional list of claims, "assault upon and murder of Todd Murray,” the United States District Court for the District of Utah determined that the Mr. Murray’s injury is consistent with a self-inflicted gunshot wound, and, in this court, plaintiffs are estopped from claiming otherwise. Therefore, if the court were to consider the additional claims, additional claim (i) also fails to state a claim.
. The federal laws listed in paragraph include "the Treaty of Guadalupe Hidalgo in 1848, including, without limitation, the Indian Country Crimes Act, 18 U.S.C. §§ 1151, 1152; the Major Crimes Act, 18 U.S.C. §§ 1153,2343; the Assimi-lative Crimes Act, 18 U.S.C. § 13; Public Law 280, U.S.C. § 1162; the Indian Civil Rights Act, 25 U.S.C. §§ 1301, 1302, 1321; and 42 U.S.C. §§ 1981, 1983, 1985.” Plaintiffs do not explain how any of the citations listed establish money-mandating statutes to invoke jurisdiction in this court. Moreover, this court specifically does not have jurisdiction under the Civil Rights Acts inclusive df 42 U.S.C. §§ 1981, 1983, 1985.
See Pikulin v. United States,