58 Fed. Cl. 114 | Fed. Cl. | 2003
OPINION
I. Introduction
Before the Court is Defendant’s Motion to Dismiss (hereinafter “Def.’s Mot.”). Defendant seeks dismissal of five claims asserted by the Samish Indian Nation (Plaintiff). Claims one and two allege that Defendant should have treated Plaintiff as a federally recognized tribe during the period of 1969 to 1996. Claims three and four allege that Defendant violated the promises made to Plaintiff in the Treaty of Point Elliott during the period of 1969 to 1996. Claim five alleges that Defendant violated a variety of laws after Plaintiff was federally recognized as a tribe in 1996. Because claims one, two, three, and four are barred by the statute of limitations, they are dismissed. Further, even if the statute of limitations did not apply to bar Plaintiff’s claims, claim one is dismissed because of lack of jurisdiction under the Indian Self-Determination Act (ISDA), and claims three and four are barred due to collateral estoppel. Claim five is also dismissed, as the Court lacks jurisdiction under 28 U.S.C. § 1500, because Plaintiff has an identical, previously filed claim pending in district court in the Western District of Washington.
For the reasons set forth herein, Defendant’s Motion to Dismiss is GRANTED.
II. Background
Prior to 1969, Plaintiff allegedly received federal services and benefits available to In
Plaintiff filed suit in the United States District Court for the Western District of Washington in 1989, challenging the 1987 decision. The district court found that the 1987 decision had violated Plaintiffs Due Process rights under the Fifth Amendment to the United States Constitution; this was affirmed on appeal. Upon remand, an Administrative Law Judge (ALJ) found that the Samish had continued to exist from the time of the 1855 Treaty of Point Elliot until the present. Based on the ALJ’s findings, the Assistant Secretary of Indian Affairs ruled in favor of the Samish, but omitted certain findings of fact made by the ALJ. After this, the Samish appealed to the district court in the Western District of Washington, which entered summary judgment for the Samish. This resulted in the Plaintiff obtaining federal recognition as a tribe in 1996.
Plaintiff contends that it was improperly omitted from the 1969 unofficial tribe list and, therefore, that it should have continued to be treated as a federally recognized tribe even before its 1996 recognition.
III. Analysis
The Plaintiff variably refers to itself as being not federally recognized during the period of 1969 to 1996,
A. Claim One — Violation of the Indian Self-Determination Act (ISDA), 25 U.S.C. § 450 et seq.
Plaintiff alleges that Defendant refused to treat it as a federally recognized tribe, which
Claim One should be dismissed because (1) the statute of limitations period has expired for that claim, and (2) the Court has no jurisdiction under the ISDA.
1. Statute of Limitations
The Court of Federal Claims has jurisdiction over lawsuits filed within six years of their accrual. 28 U.S.C. § 2501 (2003). Although six years have passed from the time Plaintiff was aware of its lack of recognition as a tribe until the present action, Plaintiff argues that the statute was tolled by both the exhaustion of administrative remedies doctrine
a) Exhaustion of Administrative Remedies Doctrine
Pursuant to the exhaustion of administrative remedies doctrine, a claim against the government does not accrue until all of the administrative proceedings regarding the claim are final. Crown Coat Front Co. v. United States, 386 U.S. 503, 509-10, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967); Brighton Vill. v. United States, 52 F.3d 1056,1060 (Fed.Cir. 1995). The administrative remedies sought, however, must be mandatory, rather than permissive, in order to toll the statute of limitations. Brighton, 52 F.3d at 1060.
In the present case, Plaintiff had means other than the administrative process to gain federal recognition as a tribe. Plaintiff could have pursued the present action in court before the administrative proceedings were concluded. Further, eligibility under the ISDA is prospective and does not confer any retroactive benefits: “Acknowledgment of tribal existence by the Department [of the Interior] is a prerequisite to the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes.” 25 C.F.R. § 83.2 (emphasis added). Therefore, the resolution of administrative proceedings would not have addressed Plaintiff’s present claims, and it could have pursued those claims independently.
Plaintiff argues that its claims did not accrue until final judgment was entered in Greene v. Babbitt, in which plaintiffs Greene and the Samish Indian Tribe pursued an action challenging the Department of the Interior’s tribal acknowledgment process. 943 F.Supp. 1278, 1280 (W.D.Wash.1996). The court in Greene reinstated three findings of an Administrative Law Judge that had been rejected by the Assistant Secretary of Indian Affairs during the recognition proceedings. Id. at 1288. One of the reinstated findings was that the omission of Plaintiff from the 1969 list was arbitrary. Id. at 1288 n. 13. This holding, however, does not lead to the conclusion that Plaintiff was entitled to benefits for the period of 1969 to 1996. The reinstated finding only “[went] to the potential liability of defendants ... for wrongfully denying plaintiffs benefits and generating twenty years of administrative proceedings and litigation.” Id. at 1288 (emphasis added). Thus, Plaintiff could have brought the present action before the resolution of the administrative proceedings.
b) Equitable Tolling Doctrine
In addition to claiming that the exhaustion of administrative remedies doctrine tolled the statute of limitations, Plaintiff also claims that the equitable tolling doctrine tolled the statute.
We have allowed equitable tolling in situations where ... the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.
Irwin, 498 U.S. at 96, 111 S.Ct. 453 (citations omitted).
Plaintiff here became aware that it was not being treated as a recognized tribe by Defendant in 1969, but failed to pursue recognition until 1972. Plaintiff did not institute the present action until 2002, and could have pursued it without waiting 33 years, as discussed in Part ILA.l.a., supra. These time gaps show a lack of diligence in pursuing the claim on Plaintiffs part, and, as the Supreme Court has said, courts are “much less forgiving” if the Plaintiff does not “exercise due diligence in preserving his legal rights.” Irwin, 498 U.S. at 96, 111 S.Ct. 453.
Although Defendant’s omission of the Samish from a list of Indian tribes was arbitrary, Defendant did not mislead Plaintiff into missing the statute of limitations for filing the present action. The district court in which the Samish challenged the administrative recognition process found that Plaintiffs “long journey for recognition has been made more difficult by excessive delays and governmental misconduct.” Greene, 943 F.Supp. at 1281. However, despite Plaintiffs argument to the contrary, this misconduct only affected the administrative process, while the present claim could have been pursued independently. Plaintiff presents no evidence that Defendant deceived Plaintiff into missing the filing period. In fact, at oral argument, Plaintiff admitted that Defendant did not engage in any acts of deceit.
Because Plaintiff could have pursued the present claim more diligently and because Defendant’s errors during the administrative process were not misleading with respect to the present action, the statute of limitations is not tolled under the equitable tolling doctrine.
Therefore, since neither the exhaustion of administrative remedies doctrine nor the equitable tolling doctrine apply to this case, claim one is dismissed due to Plaintiffs failure to file within the statute of limitations.
2. Jurisdiction under ISDA
As stated above, Claim one is dismissed as a result of Plaintiffs failure to file its complaint within the statute of limitations. However, for purposes of completeness, the Court also notes that it does not have jurisdiction over claim one because Plaintiff and Defendant never entered into a contract under ISDA.
Although Plaintiff brings this claim under a specific statute, ISDA (25 U.S.C. § 450f) the statute’s “waiver of federal sovereign immunity is limited to ‘self-determination contracts’ entered into by Indian tribes or tribal organizations and the government.” Demon-tiney v. United States ex rel. Dep’t of Interi- or, 255 F.3d 801, 805 (9th Cir.2001); accord Babbitt v. Oglala Sioux Tribal Pub. Safety Dep’t, 194 F.3d 1374, 1376 (Fed.Cir.1999) (construing ISDA as governing “self-determination contracts]” under which the Bureau of Indian Affairs must fund programs and indirect costs to contractors); Carlow v. United States, 40 Fed.Cl. 773, 775 (1998). Plaintiff is not claiming a breach of an ISDA contract; in fact, it is alleging instead that Defendant refused to enter into such a contract.
When the Secretary of the Interior refuses to enter into a self-determination contract, he or she must “provide the tribal organization with a hearing on the record ... except that the tribe or tribal organization may ... exer-else the option to initiate an action in a Federal district court and proceed directly to such court pursuant to section 450m-l(a) of this title.” 25 U.S.C. § 450f(b)(3). Therefore, the district courts, rather than this Court, have jurisdiction to compel the Secretary to enter into self-determination contracts.
Because this Court only has jurisdiction under ISDA for claims alleging violation of self-determination contracts, and because Plaintiffs claim does not allege the existence of any such contract, this claim must be dismissed.
B. Claim Two — Violation of the Snyder Act, 25 U.S.C. §§ 2, 13 and Other Statutes for the Benefit of Tribes and Indians
Plaintiff alleges that Defendant’s refusal to treat it as a recognized tribe prevented it from obtaining services and benefits under the Snyder Act and more than 30 other statutes during the period of 1969 to 1996. Am. Compl. at 19.
This claim is without merit as the statute of limitations precludes it. 28 U.S.C. § 2501. Plaintiff cannot assert either the exhaustion of administrative remedies doctrine or the equitable tolling doctrine for the reasons set forth in the discussion of claim one, supra: (1) Plaintiff could have pursued this action while the administrative proceedings regarding its federal recognition were under way, and (2) Defendant did not deceive Plaintiff into missing the time period of the statute of limitations for the present action.
Plaintiff alleges that it was a party to the 1855 Treaty of Point Elliott (hereinafter “Treaty”), which imposed legal duties on Defendant for its benefit. Am. Compl. at 20. Plaintiff claims that Defendant breached its Treaty obligations by refusing to provide Plaintiff with funds that were available to other Treaty-recognized tribes between 1969 and 1996. Id. at 21. Although Plaintiff is correct that a tribe known as the Samish were a party to the Treaty of Point Elliot, the current Samish Tribe is not descended from that tribe; therefore, the Samish have no rights under the Treaty. See United States v. Washington, 476 F.Supp. 1101,1106 (W.D.Wash.1979).
Due to the application of the statute of limitations and collateral estoppel, the Court is precluded from hearing this claim.
1. Statute of Limitations
The Court cannot proceed with claim three because Plaintiff is barred by the six-year statute of limitations. 28 U.S.C. § 2501. Plaintiff was aware of Defendant’s denial of benefits as early as 1969 but failed to bring any legal action prior to the present case, which was filed in 2002. Although Plaintiffs rights under the Treaty are distinct from the rights under federal recognition as a tribe, Plaintiff cannot toll the statute under either the exhaustion of administrative remedies doctrine or the equitable tolling doctrine.
The exhaustion of administrative remedies doctrine does not apply here because Plaintiff could have brought this claim when it became aware of the Treaty violations. The administrative proceedings regarding Plaintiffs recognition as a tribe had no impact on its recognition as a party to the Treaty.
The equitable tolling doctrine also does not apply to this claim because Plaintiff fails to demonstrate that it was deceived or misled by Defendant into missing a filing deadline set by the statute of limitations.
Because the statute of limitations precludes Plaintiff from bringing claim three, the Court cannot proceed on its merits.
2. Collateral Estoppel
In addition to being barred by the statute of limitations, claim three fails under the doctrine of collateral estoppel. Plaintiff claims that Defendant breached the promises made in the 1855 Treaty of Point Elliott. Am. Compl. at 21. Plaintiff, however, already litigated and lost the issue of its participation in the Treaty. See United States v. Washington, 476 F.Supp. 1101, 1106 (W.D.Wash.1979). Collateral estoppel bars re-litigation of an issue if: (1) the issue previously adjudicated is identical to the present one; (2) the issue was “actually litigated” in the previous case; (3) previous determination of the issue was necessary to the final decision; and (4) the party precluded was fully
With regard to claim three, the four elements of collateral estoppel have been satisfied. First, the identical issue regarding Plaintiffs tribal status in the Treaty has already been decided by the United States District Court for the Western District of Washington, which held that the “Samish Tribe is not an entity that is descended from any of the tribal entities that were signatory to the Treaty of Point Elliott.” 476 F.Supp. at 1106. The district court later stated that Plaintiff was barred under res judicata from re-litigating its status as successor to the original Samish Indian Tribe and that Plaintiff was not a party to the Treaty of Point Elliott. Greene v. Lujan, No. C89-645Z, 1992 WL 533059 at *2 (W.D.Wash. Feb.25, 1992) (“The issue of whether [the Samish] are successors in interest to the Treaty of Point Elliot has already been resolved.”). In reviewing this matter, the Ninth Circuit “affirmed denial of treaty rights on the independent factual finding of insufficient continuous political and cultural cohesion.” Greene v. Babbitt, 64 F.3d 1266, 1270 (9th Cir.1995) (citing its decision in United States v. Washington, 641 F.2d 1368, 1372-74 (9th Cir. 1981)).
Plaintiff, however, claims that its “status as a party to the Treaty of Point Elliot was conclusively established.” Pl.’s Opp’n at 3. Plaintiff cites decisions in Duwamish v. United States, 79 Ct.Cl. 530, 533, 1934 WL 2033 (1934), and Samish Tribe, 6 Ind. Cl. Comm. 159, 170 (1958). However, as the court in Greene v. Lujan states,
[T]he issue of treaty status was finally resolved in United States v. Washington. The Court in United States v. Washington held that these prior claims involved compensation for individuals, not tribal rights, and therefore the doctrines of res judicata and collateral estoppel were inapplicable. The Court then determined that petitioners were not successors in interest of the treaty signatories. This holding is binding in this case and treaty issues cannot be relitigated.
1992 WL 533059 at *3 (citations omitted).
Second, Plaintiff actually litigated the issue, as it was one of the five intervener tribes in the action and had much at stake in the resolution of the claim. Plaintiff presented evidence evaluated by the court regarding its organizational structure, constitution, and previous litigation in related matters. 476 F.Supp. at 1106.
Third, the denial of Treaty status was necessary to the final decision that the Samish did not have the fishing rights in contention. Id. at 1111. Fishing rights were a benefit conferred under the Treaty. Therefore, denial of Treaty status had a direct effect on those rights. Id.
Finally, the Samish and the other four intervener tribes were jointly represented by three attorneys in the Washington case. Id. at 1102. There is no indication that the representation was inadequate.
Because another court has already determined that the current Samish Indian Nation was not a party to the Treaty of Point Elliott, Plaintiff is barred from litigating the present claim.
D. Claim Four — Temporary Taking Based on Treaty Rights
As an alternative to claim three, Plaintiff alleges that Defendant’s refusal to recognize
E. Claim Five — Continuing Violation of Tribe’s Rights
Plaintiff alleges that, subsequent to its official recognition as a tribe in 1996, Defendant has continued to violate its rights by denying it federal benefits and services under 38 different statutes. Am. Compl. at 23. As a result, Plaintiff requests damages for the period of 1996 to the present.
This claim must be dismissed due to lack of jurisdiction under 28 U.S.C. § 1500. Plaintiff has a prior claim pending in district court in the Western District of Washington,
Accordingly, courts have determined that the words “any claim” denote a claim in this Court that is (1) based on the same operative facts as the claim filed in another court, and (2) seeks the same relief or relief that is to some extent overlapping. Keene Corp. v. United States, 508 U.S. 200, 212, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993); Loveladies Harbor, Inc., v. United States, 27 F.3d 1545, 1551 (Fed.Cir.1994). In this case, the operative facts are identical for both claims. Plaintiff is basing both claims on the failure of Defendant to treat it as a federally recognized tribe during the period of 1996 to the present. Plaintiff argues, however, that the relief sought in the two courts can be distinguished. PL’s Opp’n at 35. In the district court case, Plaintiff requests declaratory and injunctive relief, as well as monetary damages under the ISDA. The amended complaint in the action before this Court removes the claim for monetary relief based on the ISDA but retains the request for monetary damages based on other statutes. Am. Compl. at 23-24.
Because Plaintiff asks for monetary damages in both courts, the relief is overlapping. Further, the district court claim was filed prior to the present action, and is therefore considered “pending” for purposes of the
IV. Conclusion
Claims one, two, three, and four — alleging Defendant’s failure to treat Plaintiff as a federally recognized tribe and violation of promises made to Plaintiff in the Treaty of Point Elliott during the period of 1969 to 1996 — are barred by the statute of limitations; as such, they are dismissed for lack of subject matter jurisdiction. Even if the statute of limitations did not apply to bar Plaintiffs claims, claim one would be barred because of lack of jurisdiction under the ISDA, and claims three and four would be barred due to collateral estoppel. Claim five, which alleges that Defendant violated a variety of laws after Plaintiff was federally recognized as a tribe in 1996, is also dismissed, because the Court lacks jurisdiction under 28 U.S.C. § 1500, due to Plaintiffs identical, previously filed claim pending in district court in the Western District of Washington.
For the aforementioned reasons, Defendant’s motion to dismiss is hereby GRANTED. The Clerk of Court is instructed to dismiss claims one, two, three, and four with prejudice and to dismiss claim five without prejudice.
. Plaintiff claims that it had been receiving federal aid up until the early 1970s. Pl.'s Brief in Opp'n to the United States’ Mot. to Dismiss at 4 (hereinafter "Pl.’s Opp'n”). However, the court in Greene v. Lujan states, "The evidence submitted by plaintifff ] does not conclusively show that the Samish received benefits because of their tribal status." No. C89-645Z, 1992 WL 533059 at *3 (W.D.Wash. Feb.25, 1992) (denying motion for summary judgment). Further, Plaintiff does not even allege that it was receiving funds prior to 1969 as a tribe, stating in its opposition brief only that prior to the 1970s, "Samish Indians received health and other benefits provided by the United States to members of Indian tribes." Pl.'s Opp'n at 4 (emphasis added).
. The Western District of Washington district court, reinstating the finding of an Administrative Law Judge, concluded that the omission of the Samish from the unofficial 1969 list was arbitrary. Greene v. Babbitt, 943 F.Supp. 1278, 1288 n. 13 (W.D.Wash. 1996).
. Am. Compl. at 16 (stating that the United States "wrongfully refused to recognize the Samish Tribe"); Samish Indian Nation v. United States, Aug. 5, 2003 Tr. at 33 (hereinafter "2003 Tr.") (Plaintiff's statement that "it is not until the [1996] judgment was issued that Samish was fully recognized on the basis of continual tribal existence ....”).
. Am. Compl. at 1 ("the government unlawfully and arbitrarily refused to treat the Tribe as a recognized tribe."); Am. Compl. at 12 (referring to the omission from the 1969 list that caused "treatment of the Nation as not federally recognized”); Am. Compl. at 18 (stating the alleged consequences of the United States "refusing to treat the Samish Indian Nation as a federally recognized tribe"); 2003 Tr. at 7 (Plaintiff's statement that "the Tribe has always been recognized .... Our position is that [recognition] continued.”); Id. at 29 (Plaintiff's statement that "[the Samish] were recognized this whole time"); Pl.'s Opp'n at 7 (referring to the "failure of the Department of the Interior to treat the Samish Tribe as a federally recognized tribe”).
. This argument was raised by Defendant in its motion to dismiss. Def.’s Mot. at 22-29.
. If Plaintiff did actually receive funds prior to 1969 (see supra note 1), Plaintiff might have a claim for continuation of those funds based on the law (other than the ISDA) under which they received funding. However, as Plaintiff has not mentioned any such basis, and since nothing in the ISDA provides that the ISDA has retroactive effect, this Court declines to examine the issue here. Furthermore, the Court notes, without determination of the issue, that Plaintiff might face the same statute of limitations problem that has necessitated the dismissal of claim one herein.
. Pl.'s Opp'n at 17-23.
. Id. at 23-27.
. See id.
. The transcript states the following:
THE COURT: [I]t seems that the government would have to have mislead [sic] or tricked the [Plaintiff] into missing the statute of limitations, in order for there to be equitable tolling in this case. I don't see any evidence of that, Mr. Dorsay, do you?
MR. DORSAY [counsel for Plaintiff]: There wasn’t any tricking or active deceit ... there was no active deceit or concealment. I would have to agree with that.
2003 Tr. at 39.
. Outside of violations of self-determination contracts, ISDA has not been found by any court to be money-mandating. Plaintiff is unpersuasive in its argument that ISDA is analogous to statutes that provide comprehensive federal control over assets for the benefit of Indians and are considered money-mandating. See Mitchell, 463 U.S. at 224, 103 S.Ct. 2961 (stating that these other statutes "clearly give the Federal Government full responsibility to manage Indian resources”). Under ISDA, the Government does not have comprehensive control over Indian resources because "[t]he ISDA’s stated purpose is to allow Native American tribes to operate their own federal programs directly." Babbitt, 194 F.3d at 1376.
. The part of the claim requesting damages under the Snyder Act can also be dismissed on the ground that the Court does not have jurisdiction over it. Under Mitchell, the Court has jurisdiction over money-mandating claims that arise out of statutes or regulations. Mitchell, 463 U.S. at 218, 103 S.Ct. 2961. The Snyder Act, however, does not support money-mandating claims. White Mountain Apache Tribe v. United States, 249 F.3d 1364, 1372 (Fed.Cir.2001). Moreover, the Supreme Court has held that the general language of the Snyder Act "do[es] not translate through the medium of legislative history into legally binding obligations.” Lincoln v. Vigil, 508 U.S. 182, 194, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993).
. The text of official acknowledgment states that "the Samish Tribal Organization has been continuously identified throughout history as Indian or aboriginal, has existed as a distinct community since first sustained European contact, has maintained political influence within itself as an autonomous entity and that 80 percent of its members are descendants of the historical Samish tribe or families which became incorporated into that tribe.” Final Determination for Federal Acknowledgment of the Samish Tribal Organization as an Indian Tribe, 61 Fed.Reg. 15,825, 15,826 (Bureau of Indian Affairs, Dep't of the Interior April 9, 1996). The acknowledgment, however, has no effect on Plaintiff's Treaty rights.
. See supra note 10.
. See Part II.A. 1 .b„ supra.
. The doctrine of res judicata likely does not apply, as the present lawsuit involves different parties than the previously decided cases. Res judicata bars re-litigation of a claim if "(1) there is identity of parties (or their privies); (2) there has been an earlier final judgment on the merits of a claim; and (3) the second claim is based on the same set of transactional facts as the first." Int’l Air Response v. United States, 302 F.3d 1363, 1368 (Fed.Cir.2002).
. Plaintiff's argument on this issue is misleading. Plaintiff quotes from the Western District of Washington district court case, citing the case as saying that members of the Samish Tribe were "descendants of Samish Indians who were party to treaty of Point Elliott [sic].” (Pl.'s Opp'n at 33.) The actual words of the case state, "The Intervenor [sic] Samish Indian Tribe ... is composed primarily of persons who are descendants in some degree of Indians who in 1855 were known as Samish Indians and who were party to the Treaty of Point Elliott." United States v. Washington, 476 F.Supp. at 1105-06.
. See discussion of claim three, supra.
. Plaintiff filed its complaint in district court on September 14, 2002, and filed its complaint in this Court on October 11, 2002.
. Plaintiff's amendment does not actually affect the analysis of claims under 28 U.S.C. § 1500, because, under that statute "the jurisdiction of the Court [of Federal Claims] depends upon the state of things at the time of the action brought.” Keene, 508 U.S. at 207, 113 S.Ct. 2035 (quoting Molían v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154 (1824)).
. See supra note 19.