                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
ORANNA BUMGARNER FELTER,       )
et al.,                        )
                               )
     Plaintiffs,               )
                               )
     v.                        )    Civil Action No. 02-2156 (RWR)
                               )
KEN SALAZAR, et al.,           )
                               )
     Defendants.               )
______________________________)

                       MEMORANDUM OPINION

     Asserting that they are “mixed-blood” members of the Ute

Band of Indians, the plaintiffs filed this action in 2002 against

the Secretary1 of the Department of the Interior (“DOI”), the

Assistant Secretary for Indian Affairs of the DOI, the United

States of America, and two employees of the Bureau of Indian

Affairs for injuries suffered as a result of the defendants’

alleged wrongful termination under the Ute Partition and

Termination Act (“UPA”), 25 U.S.C. §§ 677 et seq., of plaintiffs’

status as federally recognized Indians.   Defendants move to

dismiss plaintiffs’ claims for lack of subject matter

jurisdiction and for failure to state a claim upon which relief

can be granted, arguing that the Department of the Interior and

Related Agencies Appropriations Act, 2004, Pub. L. No. 108-108,




     1
      Ken Salazar is substituted for Gale Norton under Fed. R.
Civ. P. 25(d).
                               - 2 -

117 Stat. 1241 (2003) (“P.L. 108-108”), did not revive

plaintiffs’ claims for which the limitations period had expired,

and that prior judgments preclude the plaintiffs’ claim for an

accounting.   Although P.L. 108-108 does apply retroactively to

claims of trust mismanagement in litigation pending at the time

of its enactment, the plaintiffs are collaterally estopped from

arguing that they are entitled to an accounting due to the

defendants’ mismanagement of trust assets because prior

litigation to which the plaintiffs are bound resolved that the

UPA terminated the government’s trust obligations.   Thus, the

defendants’ motion to dismiss will be granted.

                            BACKGROUND

     The background of this case is fully discussed in Felter v.

Norton, 412 F. Supp. 2d 118 (D.D.C. 2006) and Felter v.

Kempthorne, 473 F.3d 1255, 1257-59 (D.C. Cir. 2007).   Briefly,

the plaintiffs allege that their federal status as recognized Ute

Indians was unlawfully terminated by the UPA.    In 1954, the Ute

Tribe’s General Council voted to categorize members of the tribe

as either “full-bloods” or “mixed-bloods” and to separate the

assets of the two groups.   In response to the vote, Congress

passed the UPA, under which full-bloods were defined as Ute

members whose ancestry was at least one-half Ute Indian and over

one-half Indian.   25 U.S.C. § 677a(b).   Mixed-bloods were defined

as Ute members who did not have sufficient Ute or Indian ancestry
                                 - 3 -

to qualify as full-bloods.   25 U.S.C. § 677a(c).   The UPA

formally distributed the reservation’s assets between the mixed-

bloods and the full-bloods, terminated the mixed-bloods’ rights

to a $32,000,000 Indian Claims Commission (“ICC”) judgment

because the mixed-bloods were no longer considered members of the

Ute Tribe after the UPA, and terminated the mixed-bloods’ status

as federally recognized Indians.    As required by the UPA, the

Secretary of the Interior then published in the Federal Register

the list of the 490 mixed-bloods, 21 Fed. Reg. 2208-04, and the

corresponding federal policy of terminating supervision over the

affairs of the mixed-bloods and their status as federally

recognized Indians, effective as of August 27, 1961.    26 Fed.

Reg. 8042-03.

     Plaintiffs’ complaint seeks a judgment declaring that the

1961 list of the 490 mixed-bloods unlawfully terminated their

status as recognized Ute Indians and is void; restoring their

rights retroactively to their reservation assets wrongfully

distributed under the UPA; restoring to their status as Uinta

Indians the Uinta who were minors in 1961 and not listed among

the 490; awarding the 490 damages for their loss of status as

Indians under the UPA, for breach of trust and for the violation

of the due process clause of the Fifth Amendment; and ordering an

accounting of the $32,000,000 ICC judgment allocated to the

Colorado bands of Ute Indians.    (Am. Compl. 61-64.)   Earlier, the
                                   - 4 -

defendants’ motion to dismiss all claims was granted because the

plaintiffs did not allege any acts that the defendants committed

within the six-year statute of limitations period under 28 U.S.C.

§ 2401(a), and failed to justify the application of any exception

to allow them to file this action outside the limitations period.

Felter, 412 F. Supp. 2d at 125-27.

     On appeal, the plaintiffs raised a new issue, arguing that

P.L. 108-108 “preserve[d] [their] claims.”       Felter, 473 F.3d at

1260.       The D.C. Circuit agreed that the plaintiffs’ claims had

accrued in the 1950s and 1960s, that there were no continuous

violations that made the complaint timely filed, and that

equitable tolling of the statute of limitations did not apply.

However, the court remanded the case “to determine whether [P.L.]

108-108 applies to any of Felter’s claims.”       Id. at 1259-61.

     On remand, the defendants move to dismiss under Federal

Rules of Civil Procedure 12(b)(1) and (6), arguing that

P.L. 108-108 does not apply to Count 8,2 a claim for an

accounting, because the plaintiffs’ expired claim was not

revived.       (Defs.’ Mem. of P. & A. in Supp. of Defs.’ Renewed Mot.

to Dis. (“Defs.’ Renewed Mem.”) at 5, 8, 10.)       The defendants

also argue that even if P.L. 108-108 revived the plaintiffs’


        2
      The defendants move to dismiss all of the plaintiffs’
claims, not just Count 8. However, the plaintiffs’ opposition
did not address the defendants’ motion to dismiss as to Counts 1
through 7. Therefore, the defendants’ motion is deemed conceded
as to Counts 1 through 7. See Peter B. v. CIA, 620 F. Supp. 2d
58, 70 (D.D.C. 2009).
                                - 5 -

claim, it would still be barred by collateral estoppel because

Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128

(1972), resolved that the UPA terminated the Secretary of the

Interior’s responsibility over divisible tribal assets, including

the mixed-blood’s share of the ICC judgment.    (Defs.’ Renewed

Mem. at 12 n.8; Defs.’ Mem. of P. & A. in Supp. of Defs.’ Mot. to

Dis. at 14.)    The plaintiffs oppose the defendants’ renewed

motion to dismiss, arguing that P.L. 108-108 revives their

accounting claim and that they are not collaterally estopped from

bringing the claim.    (Pls.’ Opp’n to Defs.’ Renewed Mot. to Dis.

at 20; Pls.’ Suppl. Mem. in Opp’n to Defs.’ Mot. to Dis. at 9-

15.)

                             DISCUSSION

       Whether the statute of limitations expired for the

plaintiffs’ claim for an accounting should be analyzed under Rule

12(b)(6) for failure to state a claim.    See Felter, 412 F. Supp.

2d at 124.    The affirmative defense of collateral estoppel may

also be raised in a Rule 12(b)(6) motion to dismiss when “the

defense can either be established from the face of the complaint,

matters fairly incorporated within it, and matters susceptible to

judicial notice.”    Mitchell v. United States, Civ. Action No. 05-

916 (RWR), 2007 WL 148781, at *2 n.2 (D.D.C. Jan. 16, 2007).      “A

Rule 12(b)(6) motion tests the legal sufficiency of a

complaint. . . .”    Browning v. Clinton, 292 F.3d 235, 242 (D.C.

Cir. 2002).    In a motion to dismiss for failure to state a claim
                                - 6 -

under Rule 12(b)(6), the complaint must be construed in the light

most favorable to the plaintiff and “the court must assume the

truth of all well-pleaded allegations.”      Warren v. District of

Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).

I.     REVIVAL OF CLAIM UNDER P.L. 108-108

       Congress included in P.L. 108-108 a provision which stated

that

       notwithstanding any other provision of law, the statute
       of limitations shall not commence to run on any claim,
       including any claim in litigation pending on the date
       of the enactment of this Act, concerning losses to or
       mismanagement of trust funds, until the affected tribe
       or individual Indian has been furnished with an
       accounting of such funds from which the beneficiary can
       determine whether there has been a loss.

Pub. L. No. 108-108, 117 Stat. 1241, 1263.      Passed in 2003 while

this litigation was pending, this trust fund provision serves to

stop the statute of limitations period from beginning to run on

claims involving losses or mismanagement of Indian trust funds

until an accounting has been provided.    The defendants argue,

however, that this provision in P.L. 108-108 does not apply

retroactively to revive a claim for which the statute of

limitations has already expired.

       To determine whether a statute applies retroactively, a

court “first look[s] for an express command regarding the

temporal reach of the statute, . . . or, in the absence of

language as helpful as that, determine[s] whether a comparably

firm conclusion can be reached upon the basis of the normal rules
                                - 7 -

of [statutory] construction.”    Lytes v. D.C. Water & Sewer Auth.,

572 F.3d 936, 939 (D.C. Cir. 2009) (internal quotation marks and

citations omitted); see also Fernandez-Vargas v. Gonzales, 548

U.S. 30, 37 (2006)); Martin v. Hadix, 527 U.S. 343, 354 (1999)

(stating that a court looks for an unambiguous directive that the

statute should be applied retroactively).    “[C]ases where [the

Supreme] Court has found truly ‘retroactive’ [applicability]

adequately authorized by statute have involved statutory language

that was so clear that it could sustain only one

interpretation.’”    INS v. St. Cyr, 533 U.S. 289, 316-17 (2001)

(quoting Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997)).    Next,

if the statute contains no such express command and a firm

conclusion cannot be otherwise reached, the court must determine

“whether the new statute would have retroactive effect, i.e.,

whether it would impair rights a party possessed when he acted,

increase a party’s liability for past conduct, or impose new

duties with respect to transactions already completed.”    Republic

of Austria v. Altmann, 541 U.S. 677, 694 (2004) (quoting Landgraf

v. USI Film Prods., 511 U.S. 244, 280 (1994)).    Finally, if the

statute has a retroactive effect, a court then looks to whether

the general “presumption against retroactive legislation [that]

is deeply rooted in our jurisprudence,” id. at 265, is overcome

because “Congress has clearly manifested its intent to the

contrary.”   Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S.

939, 946 (1997).    “The ‘principle that the legal effect of
                               - 8 -

conduct should ordinarily be assessed under the law that existed

when the conduct took place has timeless and universal appeal.’”

Id. at 946 (quoting Landgraf, 511 U.S. at 265).     “‘Requiring

clear intent assures that Congress itself has affirmatively

considered the potential unfairness of retroactive application

and determined that it is an acceptable price to pay for the

countervailing benefits.’”   AT&T Corp. v. Hulteen, 129 S. Ct.

1962, 1971 (2009) (quoting Landgraf, 511 U.S. at 272-73).

Legislative history can be considered when assessing Congress’

intention regarding retroactivity.     Lytes, 572 F.3d at 939-40

(“If applying the statute would have such a disfavored effect,

then we do not apply it absent clear evidence in the legislative

history that the Congress intended retroactive application.”).

     The defendants argue that Congress did not prescribe that

the trust fund provision apply retroactively to revive a time-

barred claim, relying on Cobell v. Babbitt, 30 F. Supp. 2d 24

(D.D.C. 1998).   Cobell interpreted an earlier version of the

Indian trust fund provision which did not contain the language

“including any claim in litigation pending on the date of the

enactment of this Act.”3   Cobell determined that the phrase


     3
      The provision at issue in Cobell stated “‘[t]hat
notwithstanding any other provision of law, the statute of
limitations shall not commence to run on any claim concerning
losses to or mismanagement of trust funds, until the affected
tribe or individual Indian has been furnished with the accounting
of such funds[.]’” 30 F. Supp. 2d at 43 (quoting Department of
the Interior and Related Agencies Appropriation Act, 1991, Pub.
L. No. 101-512, 104 Stat. 1915).
                               - 9 -

“shall not commence to run” prevented the statute of limitations

clock from commencing, but concluded that that version of the

Indian trust fund provision “was [never] intended to do more than

its name suggests.   In other words, the provision only tolls a

clock that has not commenced running.   It cannot revive claims

for which the clock stopped running long ago.”    Cobell, 30 F.

Supp. 2d at 44 (considering both the clear language of the

earlier provision and its legislative history).

     In response, the plaintiffs rely on Shoshone Indian Tribe of

the Wind River Reservation v. United States, 364 F.3d 1339 (Fed.

Cir. 2004), which interpreted Consolidated Appropriations

Resolution, 2003, Pub. L. No. 108-7, 117 Stat. 11.    That law and

its predecessor considered by the Court of Federal Claims4 were

enacted while the Shoshone litigation was pending, and each

contained a provision identical to the one at issue in this case.

The Federal Circuit read that provision as preventing the

limitations clock for any cause of action for trust fund losses

or mismanagement from starting until an accounting takes place.

Shoshone, 364 F.3d at 1347 (concluding that the statute

“unambiguously delays the commencement of the limitations period

until an accounting has been completed that reveals whether a

loss has been suffered”).   While Shoshone did not specifically



     4
       Pub. L. No. 106-291, 114 Stat. 922, 939 (2000). See
Shoshone Indian Tribe of the Wind River Reservation, Wyoming v.
United States, 51 Fed. Cl. 60, 63 (2001).
                              - 10 -

discuss revival of an expired claim, or the effect of the phrase

“including any claim in litigation pending on the date of the

enactment of this Act,” Shoshone found that the trust fund

provision clearly permitted plaintiffs suing in 1979 to assert

claims of mismanagement occurring as far back as 1946 despite the

expiration of the limitations period existing in 1946.    See

Simmons v. United States, 71 Fed. Cl. 188, 193 (Fed. Cl. 2006)

(citing Shoshone to conclude that P.L. 108-108 “displaces

Section 2501 [a statute of limitations] and can resurrect

otherwise barred claims” (internal quotation marks omitted)).

Other courts have also adopted Shoshone’s interpretation that

such a trust fund provision delays the start of the limitations

clock.   Otoe-Missouria Tribe of Oklahoma v. Kempthorne, Civil

Action No. 06-1436, 2008 WL 5205191 (W.D. Okla. Dec. 10, 2008),

interpreted a trust fund provision identical to P.L. 108-108 to

“clearly express[] an intent to suspend all statutes of

limitations until an accounting has been provided.”   Id. at *5

(stating without discussing the phrase “including any claim in

litigation pending on the date of the enactment of this Act” that

even if there was an ambiguity in reading the statute, the

ambiguity should be resolved in favor of the Native Americans and

application of any limitations period should be deferred until an

accounting is completed); see also Tonkawa Tribe of Indians of

Okla. v. Kempthorne, Civil Action No. 06-1435, 2009 WL 742896, at

*4 (W.D. Okla. Mar. 17, 2009) (relying on Otoe-Missouria Tribe of
                              - 11 -

Okla.’s interpretation of P.L. 109-54 to conclude that the

plaintiff’s claims are not time-barred until an accounting has

been furnished).

     A statute can contain an express command regarding its

temporal scope even if does not contain the word “retroactive.”

Language in a provision stating that it “‘shall apply to all

proceedings pending on or commenced after the date of

enactment . . . unambiguously addresses the temporal reach of the

statute.’”   Martin, 527 U.S. at 354 (quoting Landgraf, 511 U.S.

at 280); see also Sandhvani v. Chertoff, 460 F. Supp. 2d 114, 121

(D.D.C. 2006) (noting that the amendment was retroactive where

Congress stated that the change was “effective immediately and

applicable to cases in which the final administrative order of

removal . . . was issued before, on, or after” the date that the

. . . [original] Act was enacted” (internal quotation marks

omitted)).   Courts have also found the statutory language that

“[n]otwithstanding any other provision of law (including any

effective date), the term applies regardless of whether the

conviction was entered before, on, or after September 30, 1996”

to apply retroactively to change the definition of an aggravated

felony under the Immigration and Nationality Act, regardless of

the conviction date.   Martinez v. INS, 523 F.3d 365, 370 (2d Cir.

2008); United States v. Kwan, 407 F.3d 1005, 1009 (9th Cir.

2005).
                              - 12 -

     P.L. 108-108 uses comparable language addressing its

temporal scope, at least with respect to the claim at issue in

this case, which was pending at the time Congress enacted the

provision.   The phrase “notwithstanding any other provision of

law” operates “to supersede all other laws[, and] ‘[a] clearer

statement is difficult to imagine.’”    Liberty Mar. Corp. v. U.S.,

928 F.2d 413, 416 (D.C. Cir. 1991) (quoting Crowley Carribean

Transp., Inc. v. United States, 865 F.2d 1281, 1283 (D.C. Cir.

1989)) (second alteration in original).   The “notwithstanding”

language suggests that the trust fund provision was intended to

supercede any contradictory statutory provisions, including 28

U.S.C. § 2401(a), which states that “every civil action commenced

against the United States shall be barred unless the complaint is

filed within six years after the right of action first accrues.”

28 U.S.C. § 2401(a).   Taken with the “notwithstanding” language,

P.L. 108-108's phrase “shall not commence to run” can be read to

supercede § 2401(a)’s time bar, thus not triggering the

limitations clock for a cause of action for trust fund losses or

mismanagement “until the affected tribe or individual Indian has

been furnished with an accounting of such funds from which the

beneficiary can determine whether there has been a loss.”   Pub.

L. No. 108-108, 117 Stat. 1241, 1263.

     Of great importance here is that P.L. 108-108 applies “to

any claim in litigation pending on the date of the enactment of

this Act.”   Plaintiffs filed their claim in 2002.   When Congress
                                - 13 -

enacted P.L. 108-108 in 2003, the plaintiffs’ claim was pending

in litigation.   Therefore, the statute of limitations “shall not

commence to run” on the claim until the plaintiffs have been

furnished with an accounting.    Even though the language does not

contain an explicit directive to revive stale claims, it is

identical to the language that the Supreme Court hypothesized

would indicate an express command for retroactive application in

Martin and Landsgraf.   Whether the statutory language applies to

stale claims for which no suit was pending when P.L. 108-108 was

enacted is an issue that need not be reached here, but Congress

has left no ambiguity that the provision applies retroactively

with respect to claims pending in litigation when P.L. 108-108

was enacted.   See United States v. Zacks, 375 U.S. 59, 65-67

(1963) (holding that Congress retroactively reopens claims

otherwise barred by the statute of limitations when it creates a

“grace period” during which the claims can be brought).

     Even assuming that no firm conclusion of retroactivity could

be drawn in construing the language in P.L. 108-108, applying

this provision as plaintiffs suggest would have retroactive

effect, and Congress has manifested its intent to overcome the

presumption against retroactive legislation.   The plaintiffs base

their claim on the termination of trust status and resulting

asset distribution that took place in the 1950s and 1960s.    “Any

such claim accrued in 1961 when Interior repudiated its trust

relationship with Felter and the other ‘mixed-blood’ Utes. . . .”
                               - 14 -

Felter, 473 F.3d at 1259.    Adopting the plaintiffs’

interpretation of the provision would revive these claims, which

the six-year limitations period in § 2401(a) barred in 1967.       See

Hughes Aircraft Co., 520 U.S. at 950 (1997) (describing a cause

of action as “moribund” after “the pre-existing period of

limitations has expired”).    The statute would have a retroactive

effect under the plaintiffs’ interpretation because the

defendants, whose duty, if any, to provide plaintiffs with an

accounting ended in 1967, would once again owe the plaintiffs

this same duty.    See Altmann, 541 U.S. at 694.

     Legislative history reveals that Congress intended this

retroactive effect.    While P.L. 108-108 was passed in 2003, the

original version of this Indian trust fund provision was passed

in 1990.    Cobell, 30 F. Supp. 2d at 43 n.20.   The legislative

history of the original 1990 trust fund provision reflected an

intent to

     extend the statute of limitations with relation to
     Indian trust fund management. Since the audit and
     [reconciliation] of such funds, as directed by the
     Committee, will require at least 5 years to complete,
     it is possible that the statute of limitations for any
     significant discrepancies uncovered during this process
     may have expired by the time such audits are completed.
     Therefore, the Committee has agreed to provide this
     extension in order to protect the rights of the tribes
     and individuals involved should such protection prove
     necessary.

S. Rep. No. 101-534 (1990).    Congress’ apparent concern at this

time was for claims accruing because of discrepancies uncovered

during the audit and reconciliation process.     Later, in the 1993
                               - 15 -

version, Congress amended this provision to add “any claim in

litigation pending on the date of this Act[,]” which “clarif[ied]

that cases in litigation are included under the language.”     H.R.

Rep. No. 103-158 (1993); see also Cobell, 30 F. Supp. 2d at 44

n.23 (citing Department of the Interior and Related Agencies

Appropriations Act, Pub. L. No. 103-138, 107 Stat. 1379, 1391

(1993)).   The extension of the limitations period in 1993 would

“protect the rights of tribes and individuals[,]” and clarified

that “cases in litigation are included under the language.”     H.R.

Rep. No. 103-158.   The 1993 version of the trust fund provision

has been included in subsequent appropriations acts, Cobell, 30

F. Supp. 2d at 43 n.20., including the Omnibus Appropriations

Act, 2009, P.L. 11-8, 2009 HR 1105.     This legislative history

reaffirms the conclusion reached from a plain reading of P.L.

108-108 –– it revives claims that were stale at the time of the

previous provision’s passage but were “in litigation pending”

when Congress passed it in 2003.

II.   COLLATERAL ESTOPPEL

      The defendants argue that even if P.L. 108-108 revives the

plaintiffs’ claim for an accounting, the claim is barred by

collateral etoppel.   (Defs.’ Renewed Mem. at 12 n.8; Defs.’

Suppl. Mem. in Supp. of Defs.’ Renewed Mot. to Dis. at 6-12.)

Judgments have preclusive effects, foreclosing relitigation of

claims and issues that parties have already had a full and fair

opportunity to litigate.    Taylor v. Sturgell, 128 S. Ct. 2161,
                               - 16 -

2171 (2008).    It has been “long recognized that ‘[p]ublic policy

dictates that there be an end of litigation; that those who have

contested an issue shall be bound by the result of the contest;

and that matters once tried shall be considered forever settled

as between parties.’”    Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394, 401 (1981) (alteration in original) (quoting

Baldwin v. Traveling Men’s Ass’n, 283 U.S. 522, 525 (1931)).

       Congress may waive the preclusive effect of a “prior

judgment entered in the Government’s favor on a claim against the

United States.”    United States v. Sioux Nation, 448 U.S. 371, 397

(1980).    In Sioux Nation, the Supreme Court rejected a separation

of powers challenge to the constitutionality of a statutory

provision that required the Court of Claims to rehear a claim it

previously had rejected.    Id. at 391.   The provision stated that

“[n]otwithstanding any other provision of law, . . . the Court of

Claims shall review [the claim] on the merits, without regard to

the defense of res judicata or collateral estoppel[.]”     92 Stat.

153.    The Court held that the provision did not raise separation

of powers concerns as it did not reduce the Court of Claims’

earlier judgment to an advisory opinion, and it did not prescribe

a rule for decision for the Court of Claims that would have

undermined its adjudicatory function.     Sioux Nation 448 U.S. at

391, 406 (citing Hayburn’s Case, 2 U.S. 408 (1792), and United

States v. Klein, 80 U.S. 128 (1871)).     However, given the

separation of powers concerns inherent in Congress ordering
                             - 17 -

federal courts to revisit judgments previously thought final, the

Supreme Court has since suggested that parties’ ability to waive

the preclusive effect of prior judgments is limited.   See Plaut

v. Spendthrift Farm, Inc., 514 U.S. 211, 231 (1995) (noting that

while “waivers of res judicata [by litigants] are [not] always

impermissible, . . . waivers of res judicata need not always be

accepted”); see also Commodity Futures Trading Comm’n v. Schor,

478 U.S. 833, 851 (1986) (stating that when “Article III

limitations are at issue, notions of consent and waiver [by

parties] cannot be dispositive because the limitations serve

institutional interests that the parties cannot be expected to

protect”).

     Because the prospect of waiving the preclusive effects of a

prior judgment raises serious constitutional questions with

respect to a court’s Article III powers, statutes should be

construed, if possible, not to have this effect.   See Machinists

v. Street, 367 U.S. 740, 749-50 (1961) (noting that “if a serious

doubt of constitutionality is raised, it is a cardinal principle

that this Court will first ascertain whether a construction of

the statute is fairly possible by which the question may be

avoided”) (internal quotation marks omitted).   Unlike the statute

at issue in Sioux Nation, which referred specifically to the

defenses of res judicata and collateral estoppel, P.L. 108-108 is

capable of a construction that does not have the potential effect

of reducing an Article III court’s decision to an advisory
                              - 18 -

opinion or undermining a court’s adjudicative function.    Even

though it applies “notwithstanding any other provision of law,”

P.L. 108-108 does not specifically or unequivocally waive the

preclusive effect of prior judgments.   Accordingly,

“notwithstanding any other provision of law” should not be

construed to allow plaintiffs to bring their claim for an

accounting if a prior decision forecloses that possibility.    See

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979)

(noting that when a particular interpretation of a statute would

raise separation of powers questions, “there must be present the

affirmative intention clearly expressed” to adopt that

interpretation).

     Collateral estoppel “forecloses ‘successive litigation of an

issue of fact or law actually litigated and resolved in a valid

court determination essential to the prior judgment,’ even if the

issue recurs in the context of a different claim.”     Taylor, 128

S. Ct. at 2171 (quoting New Hampshire v. Maine, 532 U.S. 742, 748

(2001)).   “‘When an issue of fact or law is actually litigated

and determined by a valid and final judgment, and the

determination is essential to the judgment, the determination is

conclusive in a subsequent action between the parties, whether on

the same or a different claim.’”   Consolidated Edison Co. of N.Y.

v. Bodman, 449 F.3d 1254, 1258 (D.C. Cir. 2006) (quoting Fogg v.

Ashcroft, 254 F.3d 103, 111 (D.C. Cir. 2001)).   The party against

whom issue preclusion is invoked must have had an incentive to
                               - 19 -

fully litigate the issue in the first proceeding, so that

preclusion does not “work a basic unfairness to the party bound

by the first determination”.   Yamaha Corp. of America v. United

States, 961 F.2d 245, 254 (D.C. Cir. 1992).    Although collateral

estoppel typically operates to bind the parties to the previous

suit only, it may also bind a nonparty if the issue was decided

in a suit brought by a party acting as “a fiduciary

representative for the beneficial interest of the nonpart[y].”

Sea-Land Servs. v. Gaudet, 414 U.S. 573, 593 (1974).

     The plaintiffs claim that they are entitled to an accounting

because the defendants mismanaged trust funds to which the

plaintiffs assert they are entitled.    (Am. Compl. ¶¶ 106-12.)

This claim rests on the premise that the defendants are “charged

with carrying out the trust obligations of the United States”

(id. ¶ 109), as the defendants could not have mismanaged assets

for which they were not responsible.    Although the Secretary of

the Interior’s proclamation, published in the Federal Register in

1961 as provided for in the UPA, purported to terminate the

federal trust relationship to mixed-blood property, 26 Fed. Reg.

8042-03, the plaintiffs assert that the termination was

ineffective because the UPA was never implemented as intended by

Congress.   (Id.)

     However, in Affiliated Ute Citizens, the Supreme Court

recognized that the UPA had been implemented as intended by

Congress.   The UPA authorized the mixed-bloods to organize and
                                  - 20 -

adopt a constitution.    25 U.S.C. § 677e.      Under this provision,

the mixed-bloods organized an unincorporated association, the

Affiliated Ute Citizens of the State of Utah (“AUC”).        Affiliated

Ute Citizens, 406 U.S. at 135-36.      The UPA also authorized the

mixed-bloods to select “authorized representatives with power ‘to

take any action that is required by [the UPA] to be taken by the

mixed-blood members as a group[.]’”        Id. at 135 (quoting 25

U.S.C. § 677e).    Under this provision, the mixed-bloods

incorporated the Ute Distribution Corporation (“UDC”) to manage

the indivisible assets of the mixed-bloods, and the UDC issued

shares of stock.    Id. at 136.    Eighty-five mixed-bloods sold

their shares and then sued various defendants involved in the

transaction, including the United States, claiming that the sale

violated the Securities and Exchange Act of 1934.        Id. at 144-45.

The Supreme Court granted certiorari in the securities case,

Reyos v. United States, 431 F.2d 1337 (10th Cir. 1970), and

consolidated it with a related case in which the Court had also

granted certiorari, Affiliated Ute Citizens v. United States, 431

F.2d 13490 (10th Cir. 1970), which raised the issue of whether

the UDC or the AUC was the authorized representative of the

mixed-bloods for the purpose of distributing pro-rata shares of a

mixed-blood mineral interest.      Affiliated Ute Citizens, 406 U.S.

at 141.   The Court held that the 1961 proclamation by the

Secretary had terminated federal control over the divisible

mixed-blood assets, which included shares of the UDC stock, and
                                - 21 -

that the United States could not be held liable for failing to

restrain the sale because “there was no remaining governmental

authority over those shares.”    Id. at 150.

      This holding resolved the issue the plaintiffs are now

attempting to litigate.   In the present case, the plaintiffs

claim that the UPA did not terminate the government’s trust

obligations over the ICC judgment.       Affiliated Ute Citizens

determined that the UPA did effectively terminate the federal

trust status of the mixed-blood divisible assets, and this

certainly includes their share of the ICC judgment –– an amount

in dollars that the mixed-bloods could separate and distribute as

they saw fit.   The parties actually litigated this issue in

Affiliated Ute Citizens, and the Supreme Court actually decided

it.   The determination was essential to the judgment, as there

was no other basis upon which the court could have concluded that

the United States was not liable for failing to restrain the

sale, and this gave the plaintiffs an incentive to fully litigate

the issue at the time.

      “Generally speaking, one whose interests were adequately

represented by another vested with the authority of

representation is bound by [a previous] judgment, although not

formally a party to the litigation.”       Ellentuck v. Klein, 570

F.2d 414, 425-26 (2d Cir. 1978) (quoting Expert Elec., Inc. v.

Levine, 554 F.2d 1227, 1233 (2d Cir. 1977).       AUC brought suit in

Affiliated Ute Citizens “as representative of its 490 mixed-blood
                                  - 22 -

members[.]”    406 U.S. at 139.    As mixed-bloods or descendants of

mixed bloods, the plaintiffs in this case are in privity with

AUC, as they had their interests adequately represented by AUC in

Affiliated Ute Citizens, since any judgment in AUC’s favor would

have conferred a financial benefit on each of its members.5

Although AUC was not a named plaintiff in the companion Reyos

case, all the plaintiffs in that case were members of AUC, the

same lawyer represented the parties in both of the cases, and AUC

funded the Reyos suit.     Murdock v. Ute Indian Tribe of Uintah and

Ouray Reservation, 975 F.2d 683, 689 (10th Cir. 1992).     The Tenth

Circuit, in determining that Affiliated Ute Citizens collaterally

estopped mixed-blood plaintiffs from contesting that the UDC was

the authorized representative of the mixed-bloods for the purpose

of managing indivisible Ute assets, concluded from these

interconnections that the “AUC was in privity with the Reyos

plaintiffs.”    Id.   The plaintiffs here, then, are bound by the



     5
       There are certain individual plaintiffs named in the
complaint who were neither mixed-bloods nor descended from mixed-
bloods. To the extent that these plaintiffs were not in privity
with the AUC, which only purported to represent the interests of
the 490 mixed-bloods in Affiliated Ute Citizens, such that these
plaintiffs are not bound by the court’s determination that the
government’s trust obligations over the ICC judgment had been
terminated, the complaint will be dismissed with respect to them
under Fed. R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction. These plaintiffs lack standing because they are
not owed any part of the mixed-blood share of the ICC judgment
and cannot allege an injury-in-fact that would be redressed by an
accounting of the portion of the judgment owed to the mixed-
bloods. See Wright v. Foreign Serv. Grievance Bd., 503 F. Supp.
2d 163, 171 (D.D.C. 2007).
                              - 23 -

resolution of the trust issue even though they were not named

parties in the prior suit because the Affiliated Ute Citizens

plaintiffs were acting as their fiduciary representatives and for

their benefit.   Since the plaintiffs are precluded from arguing

that the federal government was responsible for holding the ICC

judgment in trust after the Secretary of the Interior’s

proclamation terminated the trust relationship, there are no

assets for which the defendants are required to account, and the

plaintiffs cannot state a claim upon which relief can be granted.

                            CONCLUSION

     Although P.L. 108-108 did revive at the time of its

enactment time-barred claims then pending in litigation, it did

not waive the preclusive effects of prior judgments, and the

plaintiffs are collaterally estopped from arguing that the

defendants had an obligation to supervise in trust the

plaintiffs’ share of the ICC judgment.   The plaintiffs therefore

cannot demonstrate that they are entitled to an accounting, and

the defendants’ motion to dismiss will be granted.   A final order

accompanies this Memorandum Opinion.

     SIGNED this 15th day of January, 2010.


                                               /s/
                                   RICHARD W. ROBERTS
                                   United States District Judge
