                             ORIGINAL
     lfn tbe Wniteb         ~tates ~ourt        of jfeberal QClaint5
                                 No. 16-959L
                            (Filed: April 25, 2017)
                           NOT FOR PUBLICATION

* ********* * ** ** *** ** **

CLARENCE WALKING EAGLE, JR.,
                                               Cobell v. Salazar; Statute of
                                               Limitations; Claim
              Plaintiff,
                                               Preclusion.
       v.

THE UNITED STA TES,
                                                                      FILED
                                                                    APR 2 5 2017
              Defendant,                                          U.S. COURT OF
                                                                 FEDERAL CLAIMS
** ** **** ** ** **** ** *****

                                    ORDER

         Plaintiff, Clarence Walking Eagle, Jr., is a Sioux Native American in
the Fort Peck Sioux Tribe and resides on Fmi Peck in Brockton, Montana.
Appearing pro se, he filed his complaint on August 8, 2016, seeking
$10,000,000.00 in compensatory damages under various treaties and statutes
due to, among other alleged wrongs, "being unlawfully alienated from the
exclusive use and benefit of [his] trust land and exposed to foreign jurisdiction
without consent for the benefit of non-Indian concerns for almost ninety-nine
years." 1 Pl. 's Compl. ~ 48. Plaintiff also seeks $10,000,000.00 in punitive
damages and various forms of equitable relief, such as an order restraining
state law enforcement agencies from exercising jurisdiction within the
boundaries of Fmi Peele

        On December 5, 2016, defendant filed a motion to dismiss for lack of
jurisdiction and for failure to state a claim upon which relief can be granted,
arguing that plaintiffs claims accrued outside this comi's six-year statute of


1
  Along with his complaint, plaintiff filed a motion to proceed in Jonna
pauperis on August 8, 2016.

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limitations and that plaintiff is precluded from bringing these claims due to his
participation in the Cobell class-action settlement, which is described in more
detail below. See Cobell v. Salazar, No. 96-1285(TFH), 2011WL10676927
(D.D.C. July 27, 2011); Def.'s Mot. to Dismiss ("Def.'s Mot.") Ex. 4 (copy of
the Cobell settlement agreement). We agree and deem oral argument on this
motion unnecessary. Because we find that plaintiffs claims accrued outside
of this court's six-year statute of limitations and that, in any event, plaintiff is
precluded from bringing these claims due to the Cobell settlement agreement,
we grant defendant's motion to dismiss.

        Prose plaintiffs are afforded latitude in their filings, see, e.g, Henke v.
United States, 60 F.3d 795, 799 (Fed. Cir. 1995), and are entitled to a liberal
construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520
(1972) (requiring that allegations contained in a prose complaint be held to
"less stringent standards than formal pleadings drafted by lawyers"). That said,
the prose plaintiff is not relieved of his duty to meet the court's jurisdictional
requirements. See Henke, 60 F .3d at 799. Before the court considers the merits
of a complaint, it must determine the threshold matter of subject-mater
jurisdiction. See Steel Co. v. Citizens for a Better Env 't, 523 U.S. 83, 94-95
(1998). Because we are deciding a motion to dismiss, we construe the
allegations in the complaint in the light most favorable to plaintiff and assume
all unchallenged factual allegations to be true. See Henke, 60 F .3d at 797.
However, the court is not confined to an examination of the complaint when
considering a motion to dismiss, but may also look to "evidentiary matters
outside the pleadings." Schuerman v. United States, 30 Fed. Cl. 420, 425
(1994)(quotingCedars-SinaiMed. Ctr. v. Watkins, 11F.3d 1573, 1584(Fed.
Cir. 1993)).

        The Tucker Act, this court's primary grant ofjurisdiction, affords us the
authority 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 ... in cases not sounding in tort." 28 U.S.C. § 149l(a)(l) (2012).
Thus we do not have general equitable jurisdiction to provide the various non-
monetary relief that plaintiff seeks. Outside the context of a bid protest,
equitable relief may only be provided as an incident of and collateral to a
money judgment. See James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998).
As we discuss in more detail below, plaintiffs complaint does not include
allegations that lead to such a circumstance. Accordingly, we do not have
jurisdiction over plaintiffs non-monetary claims.

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        Plaintiff also frequently refers to a conspiracy and uses other language
that intimates some form of criminal conduct on the part of the government
and its agents. However, we do not have jurisdiction to adjudicate criminal
claims. See Hufford v. United States, 87 Fed. Cl. 696, 702 (2009). Therefore,
to the extent that plaintiff is alleging any criminal conduct by government
employees, we do not have jurisdiction to entertain such allegations.
Similarly, plaintiffs conspiracy claims would fail if they were characterized
as a tort because this court does not have jurisdiction over cases sounding in
tort. 28 U.S.C. § 1491 (excluding cases "sounding in tort"); Gable v. United
States, 106 Fed. Cl. 294, 297 (2012) ("The United States Court of Federal
Claims does not have jurisdiction to adjudicate tort claims."). We are also
without power to award punitive damages. See Environmental Safety
Consultants, Inc. v. United States, 95 Fed. Cl. 77, 98 (2010).

       We are left with plaintiffs primary claim for compensation, which
centers on plaintiffs belief that the United States improperly allowed
Roosevelt County, Montana to build County Road 1041 ("CR 1041 ") on a 40-
acre individual land allotment held in trust by the United States for plaintiff
(the "Trust Land"). Comp!. iJ 17. However plaintiff may attempt to frame a
claim arising out of the construction of CR 1041, it is time-barred.

        All claims brought under the Tucker Act are subject to a six-year statute
of limitations. 28 U.S.C. § 2501 (2012). In order for this court to entertain
plaintiffs suit, he must have filed within six years after his claim accrued. As
a general matter, a claim accrues "when all the events have occurred that fix
the alleged liability of the government and entitle the claimant to institute an
action." Ingrum v. United States, 560 F.3d 1311, 1314 (Fed. Cir. 2009) (citing
Alliance ofDescendants of Tex. Land Grants v. United States, 37 F.3d 1478,
1481 (Fed. Cir. 1994)). As defendant points out, "an action for breach of
fiduciary duty accrues when the trust beneficiary knew or should have known
of the breach." Jones v. United States, 801F.2d1334, 1335 (Fed. Cir. 1986).
Defendant attached a satellite image of CR 1041 dated June 11, 1996-more
than 20 years before plaintiff filed suit-as exhibit 3 to its motion to dismiss.
In his response, plaintiff described the 20-year-old image as "prima [facie]
evidence of the gran[t]s of right[s] of way[], easements, and the physical
County Road 1041 that was illegally placed in the middle of [the Trust Land]
without consent or just compensation." Pl.' s Resp. at 27. A deeper examination
of the factual background is not necessary because we are satisfied that
plaintiff knew or should have known about the existence of CR 1041 no later
than June 11, 1996. As a result, plaintiffs claims accrued outside this court's

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six-year statute of limitations.

        In any event, plaintiff is precluded from bringing these claims due to the
preclusive effect of his status as a Trust Administration Class member in the
Cobell settlement. To survive a motion to dismiss for failure to state a claim
upon which relief can be granted, a plaintiff must plead plausible facts that
"allow[] the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Barnes v. United States, 122 Fed. CL 581, 583
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court will grant a
motion to dismiss for failure to state a claim when it is clear that the plaintiff
can prove no set of facts that would entitle him to relief. Id. Here, as
defendant argues, we find that there is no scenario in which plaintiff could be
entitled to relief due to the fact that he waived his claims as a member of the
Trust Administration Class in the Cobell settlement.

        The United States Court of Appeals for the District of Columbia Circuit
briefly summarized the Cobell class-action litigation and settlement-in which
plaintiff was a member of both the Historical Accounting Class and the Trust
Administration Class-as follows:

               [F]ive named plaintiffs ("Class Representatives")
       initiated a class action lawsuit in 1996 seeking to compel the
       United States Department of the Interior to perform a historical
       accounting of the hundreds of millions of dollars held by the
       Department in trust for Native Americans. That accounting was
       required by the American Indian Trust Fund Management
       Reform Act of 1994, Pub. L. No. 103-412, 108 Stat. 4239. In
       2001, [the United States Court of Appeals for the District of
       Columbia Circuit] affirmed the district court's conclusion that
       the Department had unreasonably and unlawfully delayed that
       statutorily mandated accounting. Cobell v. Norton, 240 F.3d
       1081, 1105 (D.C. Cir. 2001). For the next decade, the parties,
       the district court, and Congress all struggled to determine how
       the Depaitment could feasibly discharge its legal duty to conduct
       an accounting of the hundreds of thousands of "Individual
       Indian Money" trust accounts under its control. ...

              We pick up the story in 2010 with the enactment of the
       Claims Resolution Act ("Claims Act"), Pub. L. No. 111-291,
       124 Stat. 3064(2010). The Claims Act authorized, ratified, and

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       confirmed the parties' comprehensive Settlement Agreement
       resolving the class action litigation. See id. § 101 (c)(! ) ....

               Under the Settlement Agreement, each member of what
       was known as the "Historical Accounting Class" received
       $1,000 in lieu of an actual accounting .... A separate class,
       known as the "Trust Administration Class," received a baseline
       payment of $500 and a prorated share of any funds left over in
       the settlement account after specified payments were made ...
       . Id. at 914-915. In exchange, all class members released the
       Department of Interior from liability arising out of prior
       mismanagement of their trust accounts. Id.

Cobell v. Jewell, 802 F.3d 12, 16-17 (D.C. Cir. 2015).

        As defendant points out, plaintiff was a member of the Trust
Administration Class and had the ability to opt out but did not do so. Relevant
here, plaintiff received an award as a member of the Trust Administration
Class, totaling $1,753 .81. 2 The Cobell settlement agreement provided that "all
members of the Trust Administration Class ... shall be deemed to have
released, waived and forever discharged the [United States] from, and ... shall
be deemed to be forever barred and precluded from prosecuting, any and all
claims and/or causes of action that were, or should have been, asserted in the
Amended Complaint when it was filed, on behalf of the Trust Administration
Class ... with respect to ... Land Administration Claims .... " Def.'s Mot. 18,
Exh. 4 at 44. The Cobell settlement agreement defines "Land Administration
Claims" to include"[ fjailure to obtain fair market value for leases, easements,
rights-of-way or sales; ... Misappropriation; ... [and] Failure to control,
investigate allegations of, or obtain relief in equity and at law for, trespass,
theft, misappropriation, fraud or misconduct regarding Land." Id. at 11-12.
Plaintiff received an award as a member of the Trust Administration Class in
the Cobell settlement, and he knew or should have known of the claim he
asserts in this action no later than June 11, 1996. He is therefore precluded
from pursuing his claims here.




2
 Plaintiffs award was subject to a lien. He received a check for $405.90
and the State of Montana Department of Public Health and Human Services
Child Support Enforcement Division received the remaining $1,347.91.

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        In sum, plaintiffs only claims over which we could conceivably have
jurisdiction are outside this comt's six-year statute of limitations period and
precluded due to plaintiffs participation in the Cobell settlement. Thus
plaintiffs complaint must be dismissed. As a result, the following is ordered:

       1. Defendant's motion to dismiss pursuant to Rule 12(b)(l) and Rule
       12(b)(6) is granted.

       2. For good cause shown, plaintiffs motion to proceed in forma
       pauperis is granted.

       3. The Clerk of Court is ordered to dismiss the complaint for lack of
       jurisdiction and enter judgment accordingly. No costs.



                                           ~1~1/
                                           Senior Judge




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