         In the United States Court of Federal Claims
                                           No. 13-51X

                                  (Filed: September 17, 2013)

************************************                *
                                                    *
THOMAS CHARLES BEAR, et al.,                        *
                                                    *
                           Claimants,               *      Congressional Reference Case; Rule
                                                    *      12(b)(1) Motion to Dismiss; Effect
    v.                                              *      of Other Pending Cases; Legal v.
                                                    *      Equitable Claims; Indian Canons of
                                                           Construction.
THE UNITED STATES,                                  *
                                                    *
                           Defendant.               *
                                                    *
************************************                *


Nancie G. Marzulla and Roger J. Marzulla, Marzulla Law, LLC, Washington, D.C., with
whom were Stephen R. Ward and John Williams, Conner & Winters, LLP, Tulsa,
Oklahoma, Of Counsel, for Claimants.

Stephen R. Terrell, with whom were Ignacia S. Moreno, Assistant Attorney General, U.S.
Department of Justice, Environmental and Natural Resources Division, Washington,
D.C., and Shani Walker, U.S. Department of Interior, Office of the Solicitor, Of Counsel,
for Defendant.

                              OPINION AND ORDER ON
                          DEFENDANT’S MOTION TO DISMISS

WHEELER, Hearing Officer. 1

       On May 10, 2013, in this Congressional Reference case, Defendant filed a motion
to dismiss Claimants’ complaint for lack of subject matter jurisdiction under Rule
12(b)(1) of the Court. According to Defendant, when the House of Representatives
referred this matter to the Court on December 19, 2012, it asked the Court to review
“Indian trust-related legal or equitable claims” of the members of the Quapaw Tribe of
1
  Chief Judge Emily C. Hewitt designated Judge Thomas C. Wheeler as the Hearing Officer in this case
on January 23, 2013.
Oklahoma “other than the legal claims that [were] pending in the Court of Federal Claims
on the date of enactment of [the] resolution.” Mot. to Dismiss 1 (citing H.R. Res. 668,
112th Cong. § 1 (2012)). Defendant cites two other breach-of-trust lawsuits filed by the
Quapaw Tribe in this Court that were pending on December 19, 2012, Goodeagle v.
United States, Fed. Cl. No. 12-431L (filed June 28, 2012), and Quapaw Tribe of
Oklahoma v. United States, Fed. Cl. No. 12-529L (filed Sept. 11, 2012), and asserts that
Claimants’ complaint in this Congressional Reference case advances the same or similar
causes of action as those encompassed in the other two cases. Id. Defendant thus argues
that the complaint in this case violates House Resolution 668 by asserting legal claims
“pending in the Court” on the date of enactment of the Resolution.

      On June 17, 2013, Claimants filed an opposition to Defendant’s motion, and on
June 28, 2013, Defendant filed a reply. The Court heard oral argument on August 27,
2013, and the matter now is ready for decision. For the reasons explained below,
Defendant’s motion to dismiss is denied.

                                      Background

       The individual Claimants in this case, all of whom are members of the Quapaw
Tribe of Oklahoma (the O-Gah-Pah), first filed suit in this Court on January 5, 2011, in
Grace M. Goodeagle v. United States, Fed. Cl. No. 11-9L. After the Government
successfully argued that 28 U.S.C. § 1500 barred the claim during the pendency of Cobell
v. Salazar, No. 96-CV-1285, 2011 WL 10676927 (D.D.C. July 27, 2011), aff’d, 679 F.3d
909 (D.C. Cir. 2012), cert. denied, 133 S. Ct. 543 (2012), Goodeagle restated and re-filed
her complaint on June 28, 2012. The Tribe filed suit in its own behalf on September 11,
2012, in Quapaw Tribe, Fed. Cl. No. 12-529L. Both of these cases assert breach-of-trust
legal claims against the Government under the Tucker Act, 28 U.S.C. § 1491, and Indian
Tucker Act, 28 U.S.C. § 1505.

       Instead of filing answers to these complaints, the Government filed motions to
dismiss many of the claims. The Government argued that the claims were barred by the
statute of limitations, or were claims for which the United States had not waived
sovereign immunity. The Government also argued that it could not reasonably
understand some of the claims stated in the complaints, and moved for a more definite
statement of those claims.

      On December 19, 2012, the U.S. House of Representatives passed House
Resolution 668, referring to the Chief Judge of the U.S. Court of Federal Claims a bill,
H.R. 5862, entitled “A Bill relating to members of the Quapaw Tribe of Oklahoma (O-
Gah-Pah).” H.R. Res. 668, 112th Cong. § 1 (2012). Section 1 of the Resolution stated as
follows:



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             Pursuant to section 1492 of title 28, United States Code, the
             bill (H.R. 5862), entitled “A Bill relating to members of the
             Quapaw Tribe of Oklahoma (O-Gah-Pah),” now pending in
             the House of Representatives, is referred to the chief judge of
             the United States Court of Federal Claims for a determination
             as to whether the Tribe and its members have Indian trust-
             related legal or equitable claims against the United States
             other than the legal claims that are pending in the Court of
             Federal Claims on the date of enactment of this resolution.

Id. Section 2 of the Resolution contained the proceeding and report instructions to the
Court upon receipt of the bill:

             Upon receipt of the bill, the chief judge shall—

             (1) proceed according to the provisions of sections 1492 and
                 2509 of title 28, United States Code, notwithstanding the
                 bar of any statute of limitations; and

             (2) report back to the House of Representatives, at the earliest
                 practicable date, providing—

                (A) findings of fact and conclusions of law that are
                    sufficient to inform the Congress of the nature, extent,
                    and character of the Indian trust-related claims of the
                    Quapaw Tribe of Oklahoma and its tribal members
                    for compensation as legal or equitable claims against
                    the United States other than the legal claims that are
                    pending in the Court of Federal Claims on the date of
                    enactment of this resolution; and

                (B) the amount, if any, legally or equitably due from the
                    United States to the claimants.

Id. § 2.

       Some of the Congressional Representatives made floor statements in support of
the Reference to this Court. The Chair of the House Judiciary Committee, Representative
Lamar Smith, explained in his floor statement the purpose of the bill was to ensure that
the Quapaw have a forum in which to present their breach-of-trust claims:

             Last year, eight Quapaw Tribe members filed a class-action
             lawsuit on behalf of themselves and other individuals for

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              damages based on breach of trust. The government filed
              motions to dismiss and also refused to respond to a formal
              settlement demand proffered by the tribe.

              The government’s foot-dragging necessitates our passage of
              House Resolution 668 today. The bill doesn’t guarantee a
              desired outcome; it only allows the Quapaw a chance to go
              before the Federal Court of Claims and make their best case.

158 Cong. Rec. H7281 (daily ed. Dec. 19, 2012) (statement of Rep. Smith).
Representative Smith also detailed the Tribe’s efforts to obtain a remedy for their breach-
of-trust claims:

              In 2002, the tribe filed a lawsuit for an accounting in Federal
              district court of the U.S. Government’s mismanagement of
              tribal and tribal member trust assets.

              In November 2004, the tribe and the U.S. Government agreed
              that the tribe and third-party contractors would conduct an
              accounting of the U.S. Government’s actions and inactions
              related to the trust assets. This was to facilitate a mediated
              solution to this lawsuit’s claims. In exchange for this
              mediated route, the tribe would dismiss the lawsuit.

              In June 2010, after 5 years of accounting and related analysis,
              the Quapaw Analysis was completed and shared with the U.S.
              Government. This set the stage for mediation. That analysis
              confirmed that the government’s mismanagement of the
              Quapaw’s trust constituted a breach of trust.

              The tribe initiated multiple attempts to resolve their claims,
              which the government rejected. By 2011, the tribe sought
              relief in court from the government’s failure to fulfill its trust
              obligations and to mediate and settle the trust claims.

Id. Representative Smith further explained in his floor statement that he anticipated this
Court ultimately to issue a report to Congress on the claims:

              This bill allows a Native American Tribe that resides in
              Oklahoma, the Quapaw, to appear before the United States
              Federal [C]ourt of [C]laims to plead for damages against the
              Federal Government for mismanagement of tribal funds. The
              court would issue a report, either favorable or unfavorable[]

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              to the tribe. If favorable, the Natural Resources Committee
              would be authorized to move separate legislation to effect the
              court’s decision.

Id. Representative Tom Cole, one of the sponsors of the Congressional Reference bill,
referred to the Quapaw’s efforts to have an opportunity to present their breach-of-trust
claims as the reason for the reference:

              This is a matter of justice. This is a bipartisan effort to try
              and make sure that an Indian nation that has a legitimate
              claim against the United States of America has an opportunity
              to go to court and make its case; no predetermination of the
              outcome, no settlement without coming back through
              Congress again, just simply an opportunity to make a case of
              an injustice that all sides admit occurred, and establish what’s
              fair compensation.

Id. (statement of Rep. Cole). Representative Zoe Lofgren, also a supporter of the bill,
stated that she had conferred with both the Department of Justice and the Department of
the Interior, and both agencies had agreed that the Quapaw had legitimate claims against
the Government:

              We have consulted with the Department of Justice and the
              Department of the Interior on this matter, and both agencies
              agree that the Quapaw Tribe has legitimate claims against the
              United States concerning certain tribal lands that were held in
              trust by the Federal Government. The only real dispute is the
              value of the claim.

Id. (statement of Rep. Lofgren). Representative Lofgren further stated that by referring
H.R. 5862 to this Court, “the bill would authorize the court to determine whether the tribe
and its members have trust-related legal or equitable claims against the U.S., other than
legal claims that are currently pending before the court.” Id. Representative Lofgren also
stated that she believed referring H.R. 5862 to this Court for final resolution was an
appropriate measure: “This procedure will help the Congress do the right thing, and that’s
why we’re sent here, to do the right thing.” Id.

       Representative Dan Boren, in supporting H.R. Res. 668, directly addressed the
question of the meaning of the Resolution’s reference to pending claims:

              A question arises. If one or more of those currently pending
              legal claims are dismissed by the Court for lack of


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             jurisdiction, would the dismissed claim be considered
             “pending” for purposes of this resolution?

             In my view, the answer is no. Our intention with the
             reference resolution is to request from the Chief Judge of the
             U.S. Court of Federal Claims a report containing findings of
             fact and conclusions of law concerning the nature, extent, and
             character of the Indian-trust related claims of the Quapaw
             Tribe of Oklahoma and its tribal members for compensation.
             As the language of the resolution suggests, these claims may
             be legal or equitable in nature, and exclude only the claims
             that are already within the jurisdiction of the Court of Federal
             Claims (including the statute of limitations) and are already
             pending in the Court of Federal Claims on the date of
             enactment. If a claim is dismissed as being outside the statute
             of limitations or for jurisdictional reasons, in my view, it was
             not pending on the date of enactment.

158 Cong. Rec. E1987 (daily ed. Dec. 21, 2012) (statement of Rep. Boren).

       Claimants filed their complaint in this case on March 25, 2013. The Goodeagle
and Quapaw cases also are pending before the undersigned after being transferred from
other judges. On July 16, 2013, the Court issued rulings in each of those cases granting
in part and denying in part the Government’s respective motions to dismiss. Goodeagle
v. United States, 111 Fed. Cl. 716 (2013); Quapaw Tribe of Okla. v. United States, 111
Fed. Cl. 725 (2013).

                                        Analysis

   A. Standard of Review

       Jurisdiction is a threshold matter which must be established “before the court may
proceed with the merits.” Overview Books, LLC v. United States, 72 Fed. Cl. 37, 40
(2006) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89 (1998)). When
ruling on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), the court must
accept all undisputed factual allegations as true and draw all reasonable inferences in
favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Henke v. United
States, 60 F.3d 795, 797 (Fed. Cir. 1995). The burden lies with the plaintiff to establish
jurisdiction through a preponderance of evidence. Reynolds v. Army & Air Force Exch.
Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).




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   B. This Case Involves Equitable Claims, Not Legal Claims.

      1. Equitable Claims Exist Where the Causes of Action are Outside the Court’s
         Jurisdiction.

       In congressional reference cases, this Court’s jurisdiction is based on 28 U.S.C.
§§ 1492 and 2509. Section 2509(c) provides generally that the hearing officer shall make
findings of fact and conclusions of law sufficient to inform Congress whether the
claimants’ demands constitute legal claims, equitable claims, or gratuities. In this case,
House Resolution 668 defines those demands to include “Indian trust-related legal or
equitable claims” of the members of the Quapaw Tribe of Oklahoma and to exclude only
those “legal claims . . . pending in the Court of Federal Claims on [December 19, 2012].”
H.R. 668 § 1 (emphases added). This distinction between legal and equitable claims is
not accidental:

             [T]he term “legal claim,” as used in congressional reference
             proceedings, has no special meaning. The term refers to a
             demand based upon a substantive right, the invasion of which
             is redressable at law. The term “equitable claim,” however,
             has a particular meaning when used in congressional
             reference cases. In general, an equitable claim involves an
             injury, caused by the government, for which there is no
             enforceable legal remedy—due, for example, to the sovereign
             immunity bar or the running of the statute of limitations
             period.

Bear Claw Tribe, Inc. v. United States, 36 Fed. Cl. 181, 186 (1996) (citations omitted),
aff’d, 37 Fed. Cl. 633 (1997). In other words, for a legal claim to exist, there must be a
viable legal remedy, and where a claim is barred on statute of limitations or sovereign
immunity grounds, it is not a legal claim. J.L. Simmons Co., Inc. v. United States, 60
Fed. Cl. 388, 394 (2004). In such circumstances, however, relief may still be possible on
equitable grounds. Kanehl v. United States, 40 Fed. Cl. 762, 771 (1998).

       Indeed, because the very purpose of considering equitable claims in congressional
reference cases is to remedy wrongs for which there is no legal relief, such claims may be
made notwithstanding the barriers imposed by statutes of limitations or sovereign
immunity. J.L. Simmons, 60 Fed. Cl. at 394. Thus, in order to establish an equitable
claim, a claimant must show only two things: “that ‘the government committed a
negligent or wrongful act’ and that ‘this act caused damage to the claimant.’” Id.
(quoting Cal. Canners & Growers Ass’n v. United States, 9 Cl. Ct. 774, 785 (1986)).




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       2. The Causes of Action Dismissed in the Goodeagle and Quapaw Rulings are
          Equitable Claims Because They are Barred by a Legal Principle.

       The complaint in this case states seven causes of action: (1) breach of trust
regarding mining lands; (2) failure to properly lease and manage chat; (3) breach of trust
regarding agricultural lands and town lots; (4) breach of trust regarding easements and
rights-of-way; (5) failure to pay amounts due from judgment against the Government; (6)
breach of trust: polluting soil and water, rendering them unsuitable for agricultural use,
fishing and hunting; and (7) failure to make treaty payments of $1,000 per year. Compl.
10-40. The Government’s argument is that all seven causes of action were legal claims
pending in Goodeagle and Quapaw as of December 19, 2012, and therefore should be
dismissed from this case for lack of subject matter jurisdiction. Mot. to Dismiss 7. In
making this argument, the Government focuses on the definition of the word “pending.”
Mot. to Dismiss 5. However, as explained above, the focus should be on the distinction
between the words “legal” and “equitable.”

       In Goodeagle, this Court dismissed three causes of action as untimely: failure to
collect rents/payments for town lots, at least to the extent the claim meant to apply to
more than losses under actual leases; failure to protect natural resources and failure to
protect the environment; and failure to protect Quapaw Tribal Members and otherwise act
in their best interests. 111 Fed. Cl. at 718. Likewise, in Quapaw, the Court dismissed
two causes of action as untimely: failure to collect or deposit payments for Tribal lands
and failure to properly manage natural resources and Tribal lands, resulting in lost
income. 111 Fed. Cl. at 727. In other words, those claims were all barred by a legal
principle—the applicable statutes of limitations—and, in the congressional reference
context, cannot be described as “legal.” Therefore, according to the explicit language of
House Resolution 668, those claims, at least to the extent they are “Indian trust-related,”
are not now excluded from the Court’s consideration.

       This, in fact, is the purpose of the claims in this case. Absent the congressional
reference, they would be outside the general six-year statute of limitations or the Indian
Tucker Act’s limited waiver of sovereign immunity, or both. These are precisely the type
of equitable claims referred to this Court by House Resolution 668.

   C. If Any Ambiguity Exists in H.R. Res. 668, it is Resolved in the Claimants’ Favor
      Under the Indian Canons of Construction.

       Even if House Resolution 668 were subject to two possible interpretations, the
choice between them would be dictated not by general principles of statutory
construction, but by the canons of construction specifically applicable to Indian law.
Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985). These canons are
“rooted in the unique trust relationship” that exists between the United States government
and Indian nations or tribes, Oneida Cnty. v. Oneida Indian Nation of N.Y., 470 U.S. 226,

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247 (1985), and therefore guide the Court’s interpretation of a variety of Indian-related
sources of law, including “the complex treaties, statutes, and contracts which define the
status of Indian tribes.” DeCoteau v. Dist. Cnty. Court for Tenth Judicial Dist., 420 U.S.
425, 447 (1975). Moreover, they apply to individual Indians, as well as tribes. See, e.g.,
Squire v. Capoeman, 351 U.S. 1, 6 (1956).

       In this instance, the relevant canon states that “statutes are to be construed liberally
in favor of the Indians, with ambiguous provisions interpreted to their benefit.” Blackfeet
Tribe, 471 U.S. at 766. Thus, even if there were some doubt as to scope of the referral to
this Court, such doubt, rather than being resolved in favor of the United States, must be
resolved in favor of the Quapaw Tribe. See Chickasaw Nation v. United States, 534 U.S.
84, 100 (2001) (quoting Choate v. Trapp, 224 U.S. 665, 675 (1912)).

   D. Congress Would Not Logically Refer a Bill to the Court Over Which the Court
      Lacks Jurisdiction.

       In this case, resolving the issue of jurisdiction in favor of the Government would
have the illogical result of preventing the Court from performing its assigned task. When
the House referred this matter to the Chief Judge of the U.S. Court of Federal Claims, its
explicit instructions were to provide findings of fact and conclusions of law regarding
claims for compensation “as legal or equitable claims.” H.R. Res. 668 § 2 (emphasis
added). The language of this referral makes clear both that the Representatives were
aware of the claims already pending before this Court and that they desired an
investigation of those claims lacking a legal remedy. To now conclude that the Court
lacks jurisdiction to conduct such an investigation “would be to presume that Congress
passed the bill in question merely to send plaintiffs to this forum for a . . . concomitant
dismissal of their petition.” Mizokami v. United States, 188 Ct. Cl. 736, 743 (1969). This
Court finds nothing justifying such a presumption.

                                             Conclusion

       For the reasons set forth above, the Government’s motion to dismiss is DENIED.
Pursuant to Rule 12(a)(4), the Government shall file its answer within fourteen days of
this opinion, on or before October 1, 2013.

       IT IS SO ORDERED.

                                                      s/ Thomas C. Wheeler
                                                      THOMAS C. WHEELER
                                                      Hearing Officer




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