 United States Court of Appeals for the Federal Circuit



                                       04-5042



                               SAMISH INDIAN NATION,

                                                    Plaintiff-Appellant,


                                          v.

                                  UNITED STATES,

                                                    Defendant-Appellee.



      Craig J. Dorsay, of Portland, Oregon, argued for plaintiff-appellant. With him on
the brief were William R. Perry and Anne D. Noto, Sonosky, Chambers, Sachse,
Endreson & Perry, of Washington, DC.

       Kathryn E. Kovacs, Attorney, Appellate Section, Environment & Natural Resources
Division, United States Department of Justice, of Washington, DC, argued for defendant-
appellee. With her on the brief were Thomas L. Sansonetti, Assistant Attorney General
and Todd S. Aagaard, Attorney. Of counsel on the brief was Jason Roberts, Attorney,
Office of the Solicitor, United States Department of Interior, of Washington, DC.

Appealed from: United States Court of Federal Claims

Chief Judge Edward J. Damich
United States Court of Appeals for the Federal Circuit

                                       04-5042


                              SAMISH INDIAN NATION,

                                                     Plaintiff-Appellant,


                                          v.


                                  UNITED STATES,

                                                     Defendant-Appellee.

                             _______________________

                             DECIDED: August 19, 2005
                             _______________________


Before CLEVENGER, SCHALL and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

      The Samish Indian Nation (“Samish”) appeal from the judgment of the United

States Court of Federal Claims in favor of the United States. In two counts the Samish

claimed federal benefits allegedly owed between 1969 and 1996.              The trial court

dismissed these counts with prejudice. In a third count the Samish claimed federal

benefits allegedly owed since 1996.     The trial court dismissed this count without

prejudice. Samish Indian Nation v. United States, 58 Fed. Cl. 114 (2003) (“Samish”).

      The court concludes that two statutes on which the Samish premise their claims

to benefits from 1969 to 1996, namely the Indian Self-Determination and Education

Assistance Act (“ISDA”), 25 U.S.C. §§ 450 et seq., and the Snyder Act, 25 U.S.C. §§ 2,
13, are not money-mandating for purposes of the Samish claims. These claims are not

within the trial court’s Tucker Act or Indian Tucker Act jurisdiction, and we affirm their

dismissal.

        The court concludes, however, that the Samish claims to federal benefits for the

1969 to 1996 period are not time barred. We therefore reverse the dismissal of count

two on limitations grounds and remand for further proceedings to determine whether the

remaining statutes underlying the claim are money-mandating.

       The court affirms the dismissal, without prejudice, of the Samish claims to post-

1996 benefits.

                                             I.

       The Samish contend, in essence, that but for federal misconduct they would

have received federal benefits since 1969. In many cases, since the 1970s, Congress

has conditioned statutory benefits to Indian tribes on federal acknowledgment. The

Samish contend that the federal government wrongfully refused them this status, and

the counterfactual – that they would otherwise have been acknowledged – is the first

element to their claims for benefits between 1969 and 1996.

       For thirty-three years the Samish have, in administrative actions, sought federal

acknowledgment for statutory benefits. During that time the Samish’s ability to claim

treaty rights, under the 1855 Treaty of Point Elliott, has also been disputed and, as

shown below, come full circle.       And during that time the law has also evolved

concerning the relation between recognition for treaty purposes and recognition for

statutory benefits, and more generally concerning the justiciability of federal recognition.




04-5042
                                            -2-
      Federal recognition or acknowledgement is a prerequisite to an Indian tribe’s

right to claim benefits under federal statutes. 25 C.F.R. § 83.2 (2005). The federal

government did not formalize the recognition process until 1978 with the Department of

the Interior’s adoption of the regulatory acknowledgment criteria now codified at 25

C.F.R. Part 83; before 1978 the executive branch accorded tribes recognition on an ad

hoc basis.    Cf. Kahawaiolaa v. Norton, 386 F.3d 1271, 1272-73 (9th Cir. 2004)

(discussing pre-1970s recognition process).

      In 1972, the Samish first sought federal recognition for statutory benefits by

petitioning the Department of the Interior.       Those efforts are chronicled in several

judicial opinions including, most recently, (1) Greene v. Babbitt, 943 F. Supp. 1278

(W.D. Wash. 1996), and (2) United States Department of the Interior, Office of Hearings

and Appeals, Recommended Decision of Administrative Law Judge Torbett in Greene v.

Babbitt, No. Indian 93-1 (Aug. 31, 1995).

                                            A.

      The facts relevant to Samish recognition date to a treaty signed in 1855. The

Samish descend from a signatory tribal party to the 1855 Treaty of Point Elliott, 12 Stat.

927, by which several tribes in the Pacific Northwest ceded land to the United States but

retained various fishing rights.1   See United States v. Washington, 641 F.2d 1368,

1373-74 (9th Cir. 1981);2 Duwamish v. United States, 79 Ct. Cl. 530, 1934 WL 2033



      1
             The parties signed the treaty on January 22, 1855. It became effective
with Senate ratification on March 8, 1859.
      2
              In Washington the Ninth Circuit affirmed a district court finding, United
States v. Washington, 476 F. Supp. 1101, 1106 (W.D. Wash. 1979), that the Samish,
through assimilation, had lost the degree of “political and cultural cohesion” needed to
claim rights under the Treaty of Point Elliott. Washington, 641 F.2d at 1373-74.

04-5042
                                            -3-
(1934) (Finding of Fact IV); cf. Samish Tribe of Indians v. United States, 6 Ind. Cl.

Comm. 159, 159-62 (1958).

       In 1958 the Indian Claims Commission reported that the Samish were “an

identifiable tribe of American Indians residing within the territorial limits of the United

States along the shoreline of Guemes Island and Samish Peninsula in what is now the

Northwest portion of the State of Washington.” Samish, 6 Ind. Cl. Comm. at 159. It is

unclear from the present record, however, whether Congress ever ratified this finding by

legislation.

       In 1966 the Bureau of Indian Affairs (“BIA”) drew up a list of Indian tribes that

appeared in their files. According to the BIA, the 1966 list was not intended “to be a list

of federally recognized tribes as such.” Id. The list included the Samish. This was not

a formal list premised on any legal basis. At the time, the BIA pursued its duties and

responsibilities in such an ad hoc fashion that it was unable to determine which tribes

were treaty recognized, and which were not.

                                            B.

       In 1969 the BIA restricted the list to tribes with a “formal organization” approved

by the Interior Department. Id. Although the BIA employee who drew up the list had no

authority to determine which groups would be accorded federal recognition, the 1969 list



        The Ninth Circuit, however, recently reversed a decision denying a Samish
motion, under Rule 60(b)(6), to reopen the underlying district court judgment, at 476 F.
Supp. 1101, in view of the Samish federal acknowledgment in 1996. See United States
v. Washington, 394 F.3d 1152, 1161 (9th Cir. 2005) (holding “[f]ederal recognition is
determinative of the issue of tribal organization,” and characterizing the judgment
denying the Samish treaty fishing rights as depending on findings that the Samish had
not maintained an organized tribal structure); see generally id. at 1159-61 (discussing
relation between federal recognition and criteria for signatory descendants to assert
treaty rights).

04-5042
                                           -4-
nonetheless became the basis on which the BIA classified the tribes.             Id.   A BIA

employee testified before an Administrative Law Judge (“ALJ”) in August 1994 that the

Samish were removed from the 1969 list after the BIA’s Portland, Oregon office, without

any stated legal basis advised that the Samish were recognized ephemerally “for claims

purposes only.” The BIA’s documentation from that time has now been lost. Id.

                                             C.

       In the early 1970s, Congress began conditioning statutory benefits for Indian

tribes on federal recognition. See, e.g., Greene v. Lujan, No. C89-645Z, 1992 WL

533059, at *7 (W.D. Wash. Feb. 25, 1992) (discussing Congress’s conditioning of

federal benefits on recognition after the ISDA’s passage in 1975). The parties appear to

agree that until the early 1970s individual Samish members received various federal

benefits, though the benefits were not necessarily premised on tribal status or

recognition. The government has admitted that before 1977, “it had issued blue identity

cards to Samish that made them eligible for Indian benefits.” Greene v. Babbitt, 64 F.3d

1266, 1274 (9th Cir. 1995). The parties also appear to agree that by the mid-1970s the

government stopped providing individual Samish various benefits because the Samish

tribe lacked federal recognition.

       In 1972 the Samish filed their first petition for federal acknowledgement, but the

Department of the Interior took no action.        Six years later the Interior Department

published its final regulations, now codified at 25 C.F.R. Part 83, adopting standard

procedures and criteria for according formal recognition to Indian Tribes. Under these

recognition criteria, the BIA must “make inquiries into the social and political structure of




04-5042
                                            -5-
the petitioning tribe,” developing findings that are “inherently complex and prone to

mischaracterization.” Greene v. Lujan, 1992 WL 533059, at *8.

       In 1979 the Samish filed a revised petition for recognition under the new Interior

Department regulations.     On November 4, 1982, the Assistant Secretary of Indian

Affairs published a notice recommending against recognition. See Samish Indian Tribe;

Proposed Finding Against Federal Acknowledgment, 47 Fed. Reg. 50110 (Nov. 4,

1982). On February 5, 1987, the Secretary of the Interior (“Secretary”), without an

evidentiary hearing, published a final denial of the petition. See Final Determination

That the Samish Indian Tribe Does Not Exist as an Indian Tribe, 52 Fed. Reg. 3709

(Feb. 5, 1987).3

       In April 1989 the Samish filed suit in the United States District Court for the

Western District of Washington challenging, on due process grounds, the decision

denying recognition. On February 25, 1992, the district court vacated the Secretary’s

decision and remanded to the Interior Department for formal adjudication under § 553 of

the Administrative Procedures Act (“APA”). Greene v. Lujan, No. C89-645Z, 1992 WL

533059 (W.D. Wash. 1992), aff’d, 64 F.3d 1266 (9th Cir. 1995).

       The parties agreed on procedures to govern the remand.            Specifically, they

agreed (1) the ALJ would make written findings of fact with a recommendation to the

Assistant Secretary of Indian Affairs as to whether the Samish qualified as an Indian

tribe under the recognition criteria; and (2) the ALJ would consider only evidence in the

       3
               The BIA’s notice reported the Samish did not “meet three of the criteria set
forth in 25 C.F.R. § 83.7 and, therefore, [did] not meet the requirements necessary for a
government-to-government relationship with the United States.” 47 Fed. Reg. 50110;
accord 52 Fed. Reg. 3709 (Final Decision). The 1987 final decision reported the
Samish failed to satisfy recognition criteria 25 C.F.R. §§ 83.7(b), (c), & (e), as those
criteria were then-formulated.

04-5042
                                           -6-
existing administrative record, and any additional testimony provided at the hearing.

Greene, 943 F. Supp. at 1282.         The district court approved the agreement before

remanding to Interior. Id.

       An administrative hearing was conducted and, on August 31, 1995, the ALJ

issued detailed proposed findings and recommended granting the Samish federal

recognition pursuant to the criteria in 25 C.F.R. § 83.7 (“ALJ Recommendation”). He

forwarded the proposed findings and recommendation to the Assistant Secretary of

Indian Affairs for a final determination.

       On November 8, 1995, an attorney with the Solicitor’s Office in the Interior

Department, with the government’s expert witness from the hearing, conducted an ex

parte meeting with the Assistant Secretary “for the purpose of attempting to persuade

the Assistant Secretary to reject” the ALJ’s recommendation of federal recognition.

Greene, 943 F. Supp. at 1283. The government attorney had represented the Interior

Department at the administrative hearing in 1994. No transcript of the meeting was

made, and no effort was made to notify the Samish of the meeting with the Assistant

Secretary.

       That same day the Assistant Secretary issued her final decision under 25 C.F.R.

Part 83. Although her decision recognized the existence of the Samish, she rejected

certain proposed specific findings made by the ALJ.   Among the proposed findings the

Assistant Secretary rejected were:

   1. The Noowhaha tribe and the Samish were at one time different tribes. Dr.
      Suttles and Dr. Hadja testified that the two tribes had combined probably
      around 1850 and they had been one tribe since that time. This conclusion
      of Dr. Suttles and Dr. Hadja is controverted by the Defendants but the




04-5042
                                            -7-
      undersigned is convinced that the conclusions drawn by these two
      witnesses is sound.4

   2. Dr. Hadja explained that, although many Samish Indians had held public
      office on the Lummi and Swinomish Reservation, they continued to
      consider themselves as Samish and participate in Samish activities. . . .
      While individual members of Samish families living today on reservations,
      such as the Edwards, may have given up their Samish identity, Dr. Hadja
      felt that on the whole they had not (TR: 869). Samish leaders living at
      Swinomish were active in Swinomish affairs as a way of gaining personal
      prestige, and not as a declaration of Swinomish identity (TR: 1004, TR:
      1021-1022).5

   3. A list prepared in the late 1960s by Ms. Simmons, a BIA employee, was
      the basis on which groups were then classified as Federally-recognized or
      not, but she admitted that records of Area and Agency comments have
      been lost (TR: 351- 352). Subsequently, her revised list was 'generally'
      consulted to determine groups' legal status, although paradoxically she
      conceded that she had no authority to make such decisions. . . . On
      further questioning Ms. Simmons conceded that she had no personal
      knowledge of the legal status of the groups she had listed under the
      Portland Area. . . . The earliest official references Dr. Hadja found to the
      tribe not being federally recognized appeared in the [early 1970s] (TR:
      849).6

      On April 9, 1996, the government published the Assistant Secretary’s final

decision, according recognition, in the Federal Register, without the findings listed

above.    See Final Determination for Federal Acknowledgment of the Samish Tribal

Organization as an Indian Tribe, 61 Fed. Reg. 15825 (Apr. 9, 1996).         In the Final

Determination, the Secretary expressly rejected any finding suggesting that the Samish

“was a recognized tribe until the 1970s.” Instead, the Secretary expressly found that




      4
              Greene, 943 F. Supp. at 1283, quoting ALJ Recommendation at 22 (Aug.
31, 1995).
      5
             Greene, 943 F. Supp. at 1284, quoting ALJ Recommendation, Appx. B,
Finding 169 (Aug. 31, 1995).
      6
              Greene, 943 F. Supp. at 1284, quoting ALJ Recommendation, Appx. B,
Findings 2, 3, and 110 (Aug. 31, 1995); see also Greene, 943 F. Supp. at 1288 n.13.

04-5042
                                          -8-
“[t]he Samish have not been federal recognized as a separate and distinct tribe since

the early 1900’s, when the core of the tribe moved to the reservations.”

        The Samish returned to the district court and challenged the government’s ex

parte contact with the Assistant Secretary as violative of the APA and their due process

rights. The Samish asked the district court to reinstate the omitted findings. In rejecting

the government’s standing challenge as without merit, the district court noted that the

“focus and results of the ex parte contact between the government lawyer and Assistant

Secretary Deer was to eliminate findings that would be favorable to the Samish in

connection with their eligibility for benefits under federal law.” Greene, 983 F. Supp. at

1285.

        The district court found the omitted-facts satisfied several recognition criteria

under 25 C.F.R. Part 83.7. Specifically, the court determined the first rejected claim

satisfied recognition criteria 83.7(b) (separate existence and continuity)7 and (e)

(members descended from tribes that functioned as autonomous political entities);8 the

second satisfied 83.7(b) (separate existence and continuity) and (c) (tribe has

        7
               Section 83.7(b) provides:
        (b) A predominant portion of the petitioning group comprises a distinct
        community and has existed as a community from historical times until the
        present.
25 C.F.R. § 83.7(b) (2005). The provisions have not changed since the Interior
Department last revised 25 C.F.R. § 83.7 in 1994. See Procedures for Establishing
That an American Indian Group Exists as an Indian Tribe, 59 Fed. Reg. 9293 (Feb. 25,
1994). Unless otherwise indicated, hereinafter citations to 25 C.F.R. § 83.7 will
reference the 2005 version of the regulations.
        8
               Section 83.7(e) provides:
        (e) The petitioner's membership consists of individuals who descend from
        a historical Indian tribe or from historical Indian tribes which combined and
        functioned as a single autonomous political entity.
25 C.F.R. § 83.7(e).

04-5042
                                            -9-
maintained political influence or authority over its members);9 and the third satisfied

83.7(a) (government identified the tribe on a substantially continuous basis since 1900),

via subsection 83.7(a)(1) (allowing proof of identification with evidence of earlier federal

identification).10 See Greene, 943 F. Supp. at 1283-84.

       On October 15, 1996, the district court in Greene held for the Samish on both

their APA and due process claims, and ordered the omitted findings reinstated. The

court entered judgment on November 1, 1996.

                                              D.

       On October 11, 2002 the Samish commenced this action in the Court of Federal

Claims under the Tucker Act, 28 U.S.C. § 1491, and the Indian Tucker Act, 28 U.S.C.

§ 1505. The first count alleges violation of the ISDA on grounds that the government’s

pre-1996 refusal to accord the Samish federal recognition wrongfully prevented the

Samish from obtaining self-determination contracts, 25 U.S.C. § 450f, and funds (both

program money and contract support costs) the statute obligated the government to pay



       9
              Section 83.7(c) provides:
       (c) The petitioner has maintained political influence or authority over its
       members as an autonomous entity from historical times until the present.
25 C.F.R. § 83.7(c).
       10
              Section 83.7(a) provides, in relevant part:
       (a) The petitioner has been identified as an American Indian entity on a
       substantially continuous basis since 1900. Evidence that the group's
       character as an Indian entity has from time to time been denied shall not
       be considered to be conclusive evidence that this criterion has not been
       met. Evidence to be relied upon in determining a group’s Indian identity
       may include one or a combination of the following, as well as other
       evidence of identification by other than the petitioner itself or its members.
              (1) Identification as an Indian entity by Federal authorities . . . .
25 C.F.R. § 83.7(a).

04-5042
                                            - 10 -
under such contracts to run various benefits programs, 25 U.S.C. § 450j-1(a)(1). (First

Am. Compl. (“FAC”) ¶¶ 23-26.) In a second count, the Samish contend that the same

refusal to accord federal recognition, before 1996, wrongfully deprived the Samish of

benefits that would otherwise have been available under a collection of thirty-eight

specific treaties and federal statutes.    (FAC ¶¶ 5, 27-31.)       These statutes include,

among others, the Snyder Act, 25 U.S.C. § 13. (FAC ¶¶ 5(b), 28.) Finally, in a third

count, the Samish alleged that since their federal recognition in 1996 the government

has continued to withhold funds that should have been provided under the same

statutory authorities on which the Samish premised their second count. FAC ¶¶ 43-44.

       On September 30, 2003 the trial court dismissed the action and entered

judgment for the United States.       On reasoning applicable to both counts for past

benefits, the court ruled the Samish claims accrued in 1969. Thus, the court concluded

the six year limitations period in 28 U.S.C. § 2501 barred the claims to past benefits,

and it dismissed both counts with prejudice.         Samish, 58 Fed. Cl. at 117-18, 123.

Finding the Samish’s 1972 petition for acknowledgement was permissive rather than

mandatory, the Court of Federal Claims further held the limitations period could not be

tolled for administrative exhaustion. Id. at 117-18. The court “confirmed” this ruling, as

to the first count, in finding that because federal recognition is a prerequisite to statutory

benefits, 25 C.F.R. § 83.2, the ISDA could provide only prospective relief. Id. at 117.

Reading the last finding reinstated by the district court as holding the government’s

exclusion of the Samish from the 1969 BIA “list” was arbitrary, the court reasoned that

(1) because this only went to “potential” government liability, (2) the Samish could have

brought this action before resolving their administrative challenge.        Id.   Finding no



04-5042
                                            - 11 -
government deception the court also rejected an equitable tolling argument made by the

Samish. Id.

       The court additionally dismissed the ISDA count for lack of subject matter

jurisdiction. We read the trial court as holding that the ISDA is not “money-mandating”

for claims to past benefits premised on a wrongful refusal to accord federal recognition,

and thus the Samish claim under the ISDA did not come within the Court of Federal

Claims’ Tucker Act and Indian Tucker Act jurisdiction. Id. at 118-19.

       Finally, the court dismissed, without prejudice, the Samish claim to benefits after

recognition in 1996. Noting that, on September 14, 2002, the Samish had filed a similar

claim in the United States District Court for the Western District of Washington—almost

a month before filing the instant action in the Court of Federal Claims—the trial court

dismissed the third Samish count for lack of jurisdiction under 28 U.S.C. § 1500. Id. at

122-23. The dismissal order provided, however, that the Samish could renew their

claim in the Court of Federal Claims should the district court find itself without

jurisdiction to hear the first-filed, co-pending claim. On February 6, 2004, the district

court in fact dismissed that first-filed, co-pending claim for lack of jurisdiction. Samish

Indian Nation v. United States Dep’t of the Interior; Bureau of Indian Affairs, No. C02-

1955P (W.D. Wash. Feb. 6, 2004) (order on motion to dismiss and cross motions for

summary judgment).

       The Samish timely appealed, and the court has jurisdiction under 28 U.S.C.

§ 1295(a)(3) (2000).




04-5042
                                          - 12 -
                                             II.

       The court reviews de novo the Court of Federal Claims’ dismissal for lack of

jurisdiction. See Brown v. United States, 86 F.3d 1554, 1559 (Fed. Cir. 1996). Like the

trial court, this court tests the sufficiency of the complaint as a matter of law, accepting

as true all non-conclusory allegations of fact, construed in the light most favorable to the

plaintiff. See Bradley v. Chiron Corp., 136 F.3d 1317, 1321-22 (Fed. Cir. 1998); Henke

v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). The court also reviews without

deference the trial court’s statutory interpretation. W. Co. of N. Am. v. United States,

323 F.3d 1024, 1029 (Fed. Cir. 2003).

                                            A.

       The court begins with the ISDA claim. The court can affirm the trial court on any

basis in the record. See United States v. Am. Ry. Express Co., 265 U.S. 425, 435

(1924). As set forth herein, we conclude that the ISDA is not money-mandating for

purposes of the Samish claim, and we affirm the dismissal on that basis.

                                             1.

       The Court of Federal Claims’ Tucker Act jurisdiction depends on the substantive

law the Samish have invoked. The Tucker Act waives sovereign immunity and allows

the Court of Federal Claims to award damages upon proof of “any claim against the

United States founded either upon the Constitution, or any Act of Congress.” 28 U.S.C.

§ 1491(a)(1) (2000). The Indian Tucker Act, 28 U.S.C. § 1505, extends to Indian Tribes

the same jurisdiction available to other parties under the Tucker Act. 28 U.S.C. § 1505

(2000).   Tucker Act jurisdiction, however, must derive from substantive law.          The

relevant substantive law supports a claim within the Tucker Act’s sovereign immunity



04-5042
                                           - 13 -
waiver if, but only if, it “can fairly be interpreted as mandating compensation by the

Federal Government for the damage sustained.” United States v. Testan, 424 U.S. 392,

400 (1976); accord United States v. Mitchell, 463 U.S. 206, 216-17 (1983) ( “Mitchell

II”); United States v. Mitchell, 445 U.S. 535, 538 (1980) (“Mitchell I”); Eastport S.S. Co.

v. United States, 372 F.2d 1002, 1009 (Ct. Cl. 1967); cf. 14 Charles Alan Wright, Arthur

R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3657, at 510-11 &

n.40 (West 1998 & 2004 Supp.).

       Where the substantive law is “reasonably amenable” to an interpretation “that it

mandates a right of recovery in damages,” claims arising under that law lie within the

trial court’s jurisdiction under the Tucker Act or Indian Tucker Act. United States v.

White Mountain Apache Tribe, 537 U.S. 465, 469-70, 473 (2003). Because the Tucker

Act provides the relevant sovereign immunity waiver, when interpreting a statute to

determine whether it provides the necessary right of action the court does not strictly

construe the substantive law against the claimant. While the premise to a Tucker Act

claim will not be “lightly inferred,” Mitchell II, 463 U.S. at 218, a fair inference will do.

White Mountain, 537 U.S. at 472-73.

       The court has found Congress provided such damage remedies where the

statutory text leaves the government no discretion over payment of claimed funds. But

Tucker Act jurisdiction is not limited to such narrow statutory entitlements.        Certain

discretionary schemes also support claims within the Court of Federal Claims

jurisdiction. These include statutes: (1) that provide “clear standards for paying” money

to recipients; (2) that state the “precise amounts” that must be paid; or (3) as

interpreted, compel payment on satisfaction of certain conditions.          Perri v. United



04-5042
                                           - 14 -
States, 340 F.3d 1337, 1342-43 (Fed. Cir. 2003). As explained below, the ISDA fails in

these categories.

      Fairly interpreted, the ISDA does not reveal congressional intent to provide the

damage remedy the Samish have claimed in this action. As the Samish allege, the

ISDA identifies two types of funding through self-determination contracts: (1) program

money or funds for operating programs under the contracts, 25 U.S.C. § 450j-1(a)(1)

(2000); and (2) contract support costs consisting “of an amount for the reasonable costs

for activities which must be carried on by a tribal organization as a contractor to ensure

compliance with the terms of the contract and prudent management.” 25 U.S.C. § 450j-

1(a)(2) (2000). (See also FAC ¶ 24.) Absent a contract the ISDA does not confer a

private damage remedy for either type of funding.

      We begin with the provisions relating to program money.           The objective in

interpreting the ISDA is to give effect to congressional intent. Doyon, Ltd. v. U.S., 214

F.3d 1309, 1314 (Fed. Cir. 2000); In re Portola Packaging, Inc., 110 F.3d 786, 788 (Fed.

Cir. 1997). To determine Congressional intent the court begins with the language of the

statutes at issue. Toibb v. Radloff, 501 U.S. 157, 162 (1991). To fully understand the

meaning of a statute, however, the court looks “not only to the particular statutory

language, but to the design of the statute as a whole and to its object and policy.”

Crandon v. United States, 494 U.S. 152, 158 (1990).

      Self-determination contracts under the ISDA are a mechanism for directing

benefits arising under other statutes.    The benefits provided under these contracts

depend on the underlying substantive law rather than the ISDA. See 25 U.S.C. §§ 450j-

1(a)(1) (2000) (program money under self-determination contracts will be funded at



04-5042
                                          - 15 -
level Department would have otherwise provided for specific program operation); 450j-

1(b)(2)(A) (2000) (self-determination contract funding may be reduced where

appropriations for specific programs or functions under contract are also reduced); cf.

25 U.S.C. § 450j-1(b) (2000) (funding is subject to availability of appropriations).

Without an actual self-determination contract, whether these underlying grants provide a

damage remedy cannot be determined by reference to the ISDA itself.              For these

reasons we find the nature of the Secretary’s discretion to refuse a self-determination

contract irrelevant to the jurisdictional question at bar, and the Samish’s reliance on that

limited discretion misplaced.

       The ISDA’s language and structure confirm the dependent nature of program

money under self-determination contract. As originally enacted, the ISDA provided self-

determination contracts would encompass programs subject to (1) “the Act of April 6,

1934 (48 Stat. 596), as amended” by the ISDA; (2) “any other program or portion

thereof which the Secretary of the Interior is authorized to administer for the benefit of

Indians under the Act of November 2, 1921 (42 Stat. 208)”; and (3) “any Act subsequent

thereto.” Pub. L. No. 93-638, § 102(a), 88 Stat. 2203, 2206 (1975). This structure

remains largely unchanged. In its current form, § 450f(a)(1) provides in relevant part:

       (1) The Secretary is directed, upon the request of any Indian tribe by tribal
       resolution, to enter into a self-determination contract or contracts with a tribal
       organization to plan, conduct, and administer programs or portions thereof,
       including construction programs –

              (A) provided for in the Act of April 16, 1934 (48 Stat. 596), as
              amended [25 U.S.C. §§ 452 et seq.];

              (B) which the Secretary is authorized to administer for the benefit of
              Indians under the Act of November 2, 1921 (42 Stat. 208) [e.g., the
              Snyder Act, now codified at 25 U.S.C. § 13], and any Act
              subsequent thereto;

04-5042
                                           - 16 -
              (C) provided by the Secretary of Health and Human Services under
              the Act of August 5, 1954 (68 Stat. 674), as amended [42 U.S.C. §§
              2001 et seq.];

              (D) administered by the Secretary for the benefit of Indians for
              which appropriations are made to agencies other than the
              Department of Health and Human Services or the Department of
              the Interior; and

              (E) for the benefit of Indians because of their status as Indians
              without regard to the agency or office of the Department of Health
              and Human Services or the Department of the Interior within which
              it is performed.

25 U.S.C. § 450f(a)(1) (2000). Despite the addition of §§ 450f(a)(1)(C)-(E), this remains

a provision that channels program money, associated with other statutory benefits, to

tribal organizations, through self-determination contracts.

       Absent a contract this statutory language and structure is not reasonably read as

demonstrating congressional intent to establish a damage remedy under the ISDA for

non-payment of the underlying benefits, based on the wrongful refusal to accord the

Samish federal recognition between 1975 and 1996 (thereby precluding entry into a

self-determination contract).11   Indeed, in its original and current forms the ISDA

includes Snyder Act authorizations, 25 U.S.C. § 13, among the sources of program

money subject to self-determination contracting. See 25 U.S.C. § 450f(a)(1)(B) (2000);

88 Stat. 2203, 2206 (1975) (citing 42 Stat. 208). But the Supreme Court has already

determined the Snyder Act does not provide a damage remedy because it does not

require the expenditure of general appropriations, on specific programs, for particular

classes of Native Americans. See Lincoln v. Vigil, 508 U.S. 182, 194 (1993) (reading


       11
              The Samish concede they cannot claim past benefits under the ISDA
before its enactment in 1975.

04-5042
                                          - 17 -
the Snyder Act as giving the Secretary broad discretion how to allocate lump sum

appropriations); see also White Mountain Apache Tribe v. United States, 249 F.3d

1364, 1372 (Fed. Cir. 2001), aff’d 537 U.S. 465 (2003).        Without the government

obligating itself to a self-determination contract, merely bundling Snyder Act funds into

ISDA program money fails to support the damage remedy the Samish allege here.

Thus, to the extent the Samish claim a damage remedy, it must derive from the various

sources of program money subject to self-determination contracting.

      Nor do ISDA provisions for contract support costs provide the damage remedy

the Samish assert here. As recently discussed in Thompson v. Cherokee Nation of

Okla., 334 F.3d 1075 (Fed. Cir. 2003), Congress amended the ISDA in 1988 specifically

to address tribal and tribal organization funding problems regarding administrative costs

of federal programs subject to self-determination contracts. Thompson, 334 F.3d at

1080-81. As we noted, the statute originally did not require funding the administrative

costs tribes incurred in federal program operation. Id. at 1080, discussing S. Rep. No.

100-274 (1987). Partly in response, Congress enacted the Indian Self-Determination

Amendments of 1988, Pub. L. No. 100-472, 102 Stat. 2285.              Id. at 1081.   This

amendment added current § 450j-1(a)(2), requiring payment of contract support costs

consisting of “an amount for the reasonable costs for activities which must be carried on

by a tribal organization as a contractor to ensure compliance with the terms of the

contract and prudent management.” 25 U.S.C. § 450j-1(a)(2) (2000).

      On its face this section demonstrates no congressional intent to allow the Samish

to seek damages for contract support costs never incurred, on contracts never created,

based on a wrongful refusal to accord federal recognition. The court must construe



04-5042
                                         - 18 -
§ 450j-1(a)(2) to advance its remedial purpose, namely, removing the financial burden

incurred by tribes and tribal organizations when implementing federal programs under

self-determination contracts. See Chisom v. Roemer, 501 U.S. 380, 403 (1991) (court

should interpret remedial statute broadly to advance its remedial purpose); Smith v.

Brown, 35 F.3d 1516, 1525 (Fed. Cir. 1994) (“It is of course true that courts are to

construe remedial statutes liberally to effectuate their purposes.”), superseded on other

grounds by 38 U.S.C. § 7111; United States v. Absentee Shawnee Tribe of Okla. on

Behalf of Shawnee Nation, 200 Ct. Cl. 194, 1972 WL 20807, at *3 (Ct. Cl. Dec. 12,

1972) (discussing interpretive canon).       The Samish have not suffered the harm

Congress intended to remedy with the support cost provisions. Since the Samish never

incurred any administrative costs, because they never obtained a self-determination

contract in the years at issue, no sensible reading of the ISDA would allow their present

suit for these funds. Such a damage remedy, if available, would provide them nothing

but a windfall. This reading would not advance the specific remedial purpose of § 450j-

1(a)(2), and we do not think Congress intended that result.

       We therefore conclude Congress did not intend the ISDA to provide a damage

remedy for past program money, or contract support costs never incurred, based on the

government’s wrongful refusal to accord recognition in past years.

                                             2.

       Although fiduciary duty can also give rise to a claim for damages within the

Tucker Act or Indian Tucker Act, no such theory provides a right of action for the ISDA

monies claimed here. See White Mountain, 537 U.S. at 473-74 (discussing fiduciary

relations giving rise to Indian Tucker Act jurisdiction); Mitchell II, 463 U.S. at 224-26. In



04-5042
                                           - 19 -
White Mountain, the court recognized a difference in kind between instances where the

government undertook “full” or pervasive responsibility for managing Indian land and

resources, and a “bare” or “limited” trust relation in which the government undertook no

resource management responsibility. White Mountain, 537 U.S. at 473-74. The court

explained the former relationship “defined the contours” of fiduciary responsibilities

“beyond the bare or minimal level, and thus could fairly be interpreted as mandating

compensation     through   money     damages       if   the   Government   faltered   in   its

responsibilities.” Id. at 474 (internal citation omitted), quoting Mitchell II, 463 U.S. at

224-26. On the merits the court found the government’s conduct established a fiduciary

relation triggering an obligation to preserve improvements in the property held, by

statute, in trust. See White Mountain, 537 U.S. at 474-75 (discussing Pub. L. No. 86-

392, 74 Stat. 8, and plenary authority the United States actually exercised over the

Apache’s trust corpus).

       The Samish nowhere identify a source of fiduciary duty that would provide a

damage remedy for ISDA program money or indirect costs they claim in their first count.

At most, the Samish rely on the ISDA policy statement at § 450a(b). (Appellant Reply

Br. at 13 n.7.) This congressional statement of policy fails to create the necessary trust

relation triggering a damage remedy for the program money and indirect costs the

Samish claim here.12 First, this policy statement nowhere uses the express language of


       12
              Section 450a(b) provides:
       (b) Declaration of commitment
       The Congress declares its commitment to the maintenance of the Federal
       Government's unique and continuing relationship with, and responsibility
       to, individual Indian tribes and to the Indian people as a whole through the
       establishment of a meaningful Indian self-determination policy which will
       permit an orderly transition from the Federal domination of programs for,
04-5042
                                          - 20 -
a trust.    By contrast, both Mitchell II and White Mountain grounded their fiduciary

analysis in statutory language expressly creating a trust relation in a specific property

interest. See Mitchell II, 463 U.S. at 224-26; White Mountain, 537 U.S. at 474-75.

Second, this ISDA policy statement does not confer on the government pervasive or

elaborate control over a trust corpus, such as would increase federal obligations beyond

any long-recognized “general trust relationship between the United States and the

Indian people.” Mitchell II, 463 U.S. at 225. As White Mountain observed, that bare

trust obligation does not support specific claims for damages conferring Tucker Act

jurisdiction. White Mountain, 537 U.S. at 473-74; cf. Mitchell I, 445 U.S. at 542. If

anything, the ISDA has precisely the opposite effect. Instead of arrogating control and

authority to the government, like regulations and conduct that gave rise to a damage

remedy in White Mountain and Mitchell II, the ISDA delegates to tribal organizations

authority over federal programs. And as set forth above, neither does the ISDA, of its

own force, convert the underlying statutory programs into entitlements fairly analogized

to a trust corpus. The Samish’s attempt to fit their ISDA claim within White Mountain’s

fiduciary framework is misplaced.13




       and services to, Indians to effective and meaningful participation by the
       Indian people in the planning, conduct, and administration of those
       programs and services. In accordance with this policy, the United States is
       committed to supporting and assisting Indian tribes in the development of
       strong and stable tribal governments, capable of administering quality
       programs and developing the economies of their respective communities.

25 U.S.C. § 450a(b) (2000).
       13
               We do not decide whether any fiduciary theory supplies Tucker Act
jurisdiction over the specific substantive laws, or combination of laws, asserted in the
Samish’s second count.

04-5042
                                         - 21 -
       For that reason we affirm the trial court’s dismissal of count one for lack of

subject matter jurisdiction.

                                             B.

       Instead of relying solely on the ISDA, the Samish’s second count claims past

benefits under a basket of thirty-eight other treaties and statutes. The Samish included

within this grouping the Snyder Act. But as noted above, the Supreme Court previously

determined the Snyder Act is not money-mandating and, e.g., does not provide a

private damage remedy.         See Lincoln v. Vigil, 508 U.S. 182, 194 (1993); White

Mountain Apache, 249 F.3d at 1372 (Fed. Cir. 2001), aff’d 537 U.S. 465 (2003). The

court therefore affirms the trial court’s dismissal of the Samish’s second count, insofar

as it relied upon the Snyder Act.

                                             III.

       The Court of Federal Claims dismissed the Samish’s second count, for past

benefits, as time barred. It held that the Samish could have brought this action as early

as 1969, when BIA dropped the Samish from the unofficial list of ‘recognized’ tribes.

We disagree for at least two reasons. First, as explained below, the challenge to the

federal government’s refusal to accord recognition is limited by the contours of the

political question doctrine. Recognition is a political act that is generally non-justiciable.

The Samish could not, in 1969, have established that the government’s conduct was

“wrongful” as required by their retroactive benefits claims here.

       Second, the Samish claims did not accrue until the Samish, through their

administrative challenges, obtained a final ruling by a district court under the APA that

the government’s refusal to accord historical acknowledgment between 1978 and 1996



04-5042
                                            - 22 -
was arbitrary and capricious. A claimant must bring action under the Tucker Act, 28

U.S.C. § 1491, within six years of accrual. 28 U.S.C. § 2501 (2000). The same statute

of limitations applies to claims brought under the Indian Tucker Act, 28 U.S.C. § 1505.

Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576 (Fed. Cir. 1988).

A claim accrues under § 2501 “when all events have occurred to fix the Government’s

alleged liability, entitling the claimant to demand payment and sue here for his money.”

Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc).14 If a

necessary element to a claim must be established in a different forum, the claim will not

accrue for § 2501 until that element is finally established in the other proceeding. See,

e.g., Heck v. Humphrey, 512 U.S. 477, 489-90 (1994); Midgett v. United States, 603

F.2d 835, 839 (Ct. Cl. 1979).

       The Samish had to establish the necessary elements of their historic claim in a

different forum. In this case the claim for historic benefits depends on their establishing

that   the   government     arbitrarily   and   capriciously   withheld   historic   federal

acknowledgment from the Samish before 1996.            Only a district court, acting on a

challenge under the APA, has authority to review the Secretary’s acts concerning the

executive’s recognition determination under 25 C.F.R. Part 83. In this case, the district

court in Greene identified several facts required for historic recognition of the Samish

tribe. The Secretary, however, omitted the pertinent findings from the April 9, 1996

recognition determination, preventing the present action for old non-Snyder Act claims

from accruing.   In Greene the district court modified the Secretary’s April 9, 1996

recognition decision by reinserting the three deleted findings.

       14
             Cf. Chambers v. United States, No. 04-5134, slip op. at 7-9 (Fed. Cir. Aug.
1, 2005) (applying Martinez).

04-5042
                                           - 23 -
      Those findings support the premise that the Samish should have been given

historic recognition and obtain standing for the claims directed to old non-Snyder Act

benefits. The missing element was finally established, within the meaning of Heck and

Martinez, with the effective date of the district court’s modification to the Secretary’s

acknowledgment determination. That date was November 1, 1996, when the district

court in Greene entered its final judgment in the APA action. In sum, the district court’s

reinstatement validated the historic recognition of the Samish.

                                           A.

      There are generally three means by which the federal government can recognize

an Indian tribe.15   The government can enter into a treaty with a tribe.      See, e.g.,

Cherokee Nation v. Georgia, 30 U.S. 1, 16 (1831).16 Congress can recognize a tribe by

enacting a specific statute, in its powers incidental to the Indian Commerce Clause.

See, e.g., Chippewa Indians of Minn. v. United States, 307 U.S. 1, 4-5 (1939)

(discussing role of Act of 1889 in recognizing the Chippewa Indians); cf. Act of Mar. 2,

1889, ch. 405, 25 Stat. 888 (dividing the reservation of the Sioux Nation of Indians);

U.S. Const. art. I, § 8, cl. 3 (authorizing Congress to “regulate Commerce with Foreign

nations, and among the several States, and with the Indian Tribes”). Or the executive
      15
               See generally Felix S. Cohen’s Handbook of Federal Indian Law 3-7 (1982
ed.) (discussing tribal recognition); I American Indian Policy Review Comm’n, 95th
Cong., 1st Sess., Final Report 462 (Comm. Print 1977) (discussing varying and ad hoc
manner in which federal recognition was extended before 1977); cf. William C. Canby,
Jr., American Indian Law in a Nutshell 4 (4th ed. 2004) (“Federal recognition may arise
from treaty, statute, executive or administrative order, or from a course of dealing with
the tribe as a political entity.”), quoted in Kahawaiolaa, 386 F.3d at 1273.
      16
              “[The Cherokee] have been uniformly treated as a state from the
settlement of our country. The numerous treaties made with them by the United States
recognize them as a people capable of maintaining the relations of peace and war . . . .
The acts of our government plainly recognize the Cherokee nation as a state, and the
courts are bound by those acts.”

04-5042
                                          - 24 -
can recognize a tribe pursuant to the authority delegated by Congress. See 25 U.S.C.

§§ 2, 9 (2000). As noted above, recognition by one mechanism does not necessarily

confer recognition for all purposes.17 In this case, the Samish challenge the federal

government’s refusal to accord federal acknowledgment for purposes of statutory

benefits.

       As a political determination, tribal recognition is not justiciable. As the Supreme

Court observed in United States v. Holliday,

       The facts in the case certified up with the division of opinion, show
       distinctly “that the Secretary of the Interior and the Commissioner of Indian
       Affairs have decided that it is necessary, in order to carry into effect the
       provisions of said treaty, that the tribal organization should be preserved.”
       In reference to all matters of this kind, it is the rule of this court to follow
       the action of the executive and other political departments of the
       government, whose more special duty it is to determine such affairs. If by
       them those Indians are recognized as a tribe, this court must do the same.

70 U.S. (3 Wall.) 407, 419 (1865).          The courts, in short, defer to the political

determination made by Congress or the executive. See also United States v. Rickert,

188 U.S. 432, 445 (1903) (“It is for the legislative branch of the government to say when

these Indians shall cease to be dependent and assume the responsibilities attaching to

citizenship. That is a political question, which the courts may not determine. We can

only deal with the case as it exists under the legislation of Congress.”); United States v.

Sandoval, 231 U.S. 28, 46 (1913) (“[I]n respect of distinctly Indian communities the

questions whether, and to what extent, and for what time they shall be recognized and



       17
              The Ninth Circuit, in particular, suggests that treaty recognition and
statutory recognition serve different purposes, with independent effect. See Greene v.
Babbitt, 64 F.3d 1266, 1270-71 (9th Cir. 1995); Greene v. Babbitt, 996 F.2d 973, 976-77
(9th Cir. 1993)); United States v. Washington, 520 F.2d 676, 693 (9th Cir. 1975); see
also 25 C.F.R. § 83.8 (2005).

04-5042
                                            - 25 -
dealt with as dependent tribes requiring the guardianship and protection of the United

States are to be determined by Congress, and not by the courts.”).

      Examining the principles underlying this precedent in Baker v. Carr, 369 U.S. 186

(1962), the Supreme Court observed that the judicial deference to the recognition

determinations by the political branches “reflects familiar attributes of political

questions.” Id. at 215; see generally id. at 215-17 & n.43. Discussing the general rule

for recognizing foreign governments, the Court firmly distinguished between the political

act of according recognition and the judicial determination that a party satisfies the

status made a condition to any given statute.

      [R]ecognition of foreign governments so strongly defies judicial treatment
      that without executive recognition a foreign state has been called “a
      republic of whose existence we know nothing,” and the judiciary ordinarily
      follows the executive as to which nation has sovereignty over disputed
      territory, once sovereignty over an area is politically determined and
      declared, courts may examine the resulting status and decide
      independently whether a statute applies to that area.

369 U.S. at 212.18    The Court observed that tribal recognition was a special case,

because “the relation of the Indians to the United States is marked by peculiar and

cardinal distinctions which exist no where else. . . . [The Indians are] domestic

dependent nations . . . in a state of pupilage.     Their relation to the United States

resembles that of a ward to his guardian.” Baker, 369 U.S. at 215 (quoting Cherokee

Nation, 30 U.S. at 16-17). The court further recognized that, as explained in Sandoval,

the political question principle was bounded in that it did not prevent the courts from



      18
              Accord United States v. 43 Gallons of Whiskey, 93 U.S. 188, 195 (1876)
(“As long as these Indians remain a distinct people, with an existing tribal organization,
recognized by the political department of the government, Congress has the power to
say with whom, and on what terms, they shall deal . . . .”).

04-5042
                                          - 26 -
intervening to limit Congressional overreaching under the Indian Commerce Clause.19

In sum, the Baker analysis does not alter the rule that recognition is a political question.

       Formulating the limits of the political question doctrine, the Baker opinion

identified several criteria common to a non-justiciable issue.

       It is apparent that several formulations which vary slightly according to the
       settings in which the questions arise may describe a political question,
       although each has one or more elements which identify it as essentially a
       function of the separation of powers. Prominent on the surface of any
       case held to involve a political question is found [1] a textually
       demonstrable constitutional commitment of the issue to a coordinate
       political department; or [2] a lack of judicially discoverable and
       manageable standards for resolving it; or [3] the impossibility of deciding
       without an initial policy determination of a kind clearly for nonjudicial
       discretion; or [4] the impossibility of a court's undertaking independent
       resolution without expressing lack of the respect due coordinate branches
       of government; or [5] an unusual need for unquestioning adherence to a
       political decision already made; or [6] the potentiality of embarrassment
       from multifarious pronouncements by various departments on one
       question.

Baker, 369 U.S. at 217. Under the political question doctrine any one criterion is both

necessary and sufficient. “Unless one of these formulations is inextricable from the

case at bar, there should be no dismissal for non-justiciability on the ground of a political

question's presence.” Id. Before 1978 this taxonomy fully described tribal recognition.

The treaty power and the Congressional power to regulate commerce with Indian tribes

       19
              As the Court explained,

       While “[I]t is for [Congress] * * *, and not for the courts, to determine when
       the true interests of the Indian require his release from (the) condition of
       tutelage * * *, it is not meant by this that Congress may bring a community
       or body of people within the range of this power by arbitrarily calling them
       an Indian tribe * * *.” United States v. Sandoval, 231 U.S. 28, 46 (1913).
       Able to discern what is “distinctly Indian,” id., the courts will strike down
       any heedless extension of that label. They will not stand impotent before
       an obvious instance of a manifestly unauthorized exercise of power.

Baker, 369 U.S. at 215-17.

04-5042
                                           - 27 -
are plainly matters textually committed, by the constitution, to the political branches. As

shown by the case law, the separation of powers reasoning underlying the final three

criteria applied both in historical practice and as a matter of principle. Finally, the courts

had no judicially discoverable or manageable criteria by which to accord federal

recognition.

       In 1975, Congress established the American Indian Policy Review Commission.

See Pub. L. No. 93-580, 88 Stat. 1910 (1975). Congress specifically instructed the

Commission to make a comprehensive investigation into “the statutes and procedures

for granting Federal recognition and extending services to Indian communities and

individuals.” Id., § 2(3), 88 Stat. at 1911. In its final report, the Commission noted that

no recognizable criteria applied to the federal recognition decision. “Trying to find a

pattern for the administrative determination of a federally recognized Indian tribe is an

exercise in futility. There is no reasonable explanation for the exclusion of more than

100 tribes from the Federal trust responsibility. . . . A number of Indian tribes are

seeking to formalize relationships with the United States today but there is no available

process for such actions.” I American Indian Policy Review Comm’n, 95th Cong., 1st

Sess., Final Report 462 (Comm. Print 1977) (“Final Report”).

       In response to the Commission findings, the Interior Department published

regulations establishing the first detailed, systematic process by which tribal groups

could obtain acknowledgment. See Procedures For Establishing That An American

Indian Group Exists As An Indian Tribe, 43 Fed. Reg. 39361 (Sep. 5, 1978) (later

codified at 25 C.F.R. Part 54). When the regulations became effective on October 2,




04-5042
                                            - 28 -
1978, they supplied the courts clearly manageable and objective factors by which to

review federal acknowledgment determinations pursuant to the APA.

      As several of our sister circuits have recognized, however, supplying these

criteria did not alter the general rule of non-justiciability. See Kahawaiolaa, 386 F.3d at

1276;20 Miami Nation of Indians of Ind., Inc. v. Dep’t of Interior, 255 F.3d 342, 346-48

(7th Cir. 2001);21 W. Shoshone Bus. Council For and on Behalf of W. Shoshone Tribe of

Duck Valley Reservation v. Babbitt, 1 F.3d 1052, 1057 (10th Cir. 1993);22 James v.

United States Dep’t of Health & Human Servs., 824 F.2d 1132, 1137 (D.C. Cir. 1987).23

To be sure, by adopting the acknowledgment criteria the government voluntarily bound

its process within the confines of its regulations, subject to APA review by the courts.

But that limitation alters neither the commitment of the federal recognition determination

to the political branches, nor the regard for separation of powers that precludes judicial

evaluation of those criteria in the first instance. The political determination may be

      20
              “[I]t is quite correct to say that a suit that sought to direct Congress to
federally recognize an Indian tribe would be non-justiciable as a political question.”
      21
             “[R]ecognition lies at the heart of the doctrine of ‘political questions.’”
Miami Nation, 255 F.3d at 347.
      22
              In Western Shoshone, the Tenth Circuit refused to second-guess the
Interior Department’s failure to recognize the Shoshone tribe. As it explained,
      The judiciary has historically deferred to executive and legislative
      determinations of tribal recognition. See United States v. Rickert, 188
      U.S. 432, 445 (1903); United States v. Holliday, 70 U.S. (3 Wall.) 407, 419
      (1865). Although this deference was originally grounded in the executive's
      exclusive power to govern relations with foreign governments, broad
      congressional power over Indian affairs justifies its continuation.
1 F.3d at 1057.
      23
               “The purpose of the regulatory scheme set up by the Secretary of the
Interior is to determine which Indian groups exist as tribes. 25 C.F.R. § 83.2. That
purpose would be frustrated if the Judicial Branch made initial determinations of
whether groups have been recognized previously or whether conditions for recognition
currently exist.”

04-5042
                                          - 29 -
circumscribed by regulation, but it is still a political act. The regulations create a limited

role for judicial intervention, namely, APA review to ensure that the government followed

its regulations and accorded due process. See Miami Nation, 255 F.3d at 348 (“By

promulgating such regulations the executive brings the tribal recognition process within

the scope of the Administrative Procedure Act.”). Thus, under the acknowledgment

regulations, the executive – not the courts – must make the recognition determination.

                                             B.

       The Samish contend that they were deprived of statutory benefits because of the

“wrongful actions of the United States in refusing to treat the Samish Indian Nation as a

federally recognized tribe.” (FAC ¶ 29.) Because tribal recognition remains a political

question, the trial court erred in holding that the Samish “could have pursued the

present action in court before the administrative proceedings [concerning the Samish

petition for federal acknowledgment] were concluded.” Samish, 58 Fed. Cl. at 117.

Specifically, the Samish cause of action for retroactive benefits did not accrue until they

obtained a final determination from the district court, through their APA challenge, that

the government’s conduct underlying its refusal to accord federal recognition, before

1996, was arbitrary and capricious. See Heck, 512 U.S. at 489-90; Midgett, 603 F.2d at

839.    In sum, the Samish could only obtain judicial review of the Secretary’s

acknowledgement decision through an APA action in a district court. Congress plainly

gave the Court of Federal Claims no role in the recognition process, and that court has

no inherent authority to take part in it.24 Moreover, the Court of Federal Claims has no

power to review the Secretary’s acknowledgment decisions under the APA. In view of

       24
             No precedent of this court, or its predecessor the Court of Claims, would
allow the Court of Federal Claims to delve into tribal recognition.

04-5042
                                            - 30 -
this, we need not reach the issue of whether or not the Samish could have brought this

action in 1969.

      The government urges this court to hold that the Samish claims to retroactive

benefits accrued on April 9, 1996, when the government accorded the Samish federal

recognition. We disagree. The omitted facts go to historic recognition and were not

necessary to the Secretary’s acknowledgement determination going forward. The same

facts, however, are central to the Samish’s instant claim.          Thus, although the

Secretary’s April 9, 1996 determination conferred standing, under 25 C.F.R. § 83.2, for

the Samish to seek prospective statutory benefits, it did not establish the elements

necessary to assert the present claims to past, non-Snyder Act benefits.

      Rather, the district court finally established that the government wrongfully

withheld the Samish federal acknowledgment, and disregarded facts that would have

supported historic recognition, when the district court modified the Secretary’s

recognition decision to establish the previously omitted ALJ findings. As discussed

above, those findings support the Samish contention that but for the government’s

arbitrary and capricious treatment the Samish would have been extended federal

recognition prior to 1996. Indeed, as the trial court noted, the third finding at issue

provides that the government was arbitrary and capricious in dropping the Samish from

the 1969 BIA list. Read in view of the ALJ’s findings, on remand in Greene, that the BIA

list “was the basis on which groups were then classified as Federally-recognized or not,”

the district court’s determination provides a predicate “wrongful” element in this action.

These findings in combination confirm the contention, central to the Samish’s claims at




04-5042
                                          - 31 -
bar, that the government was arbitrary and capricious in refusing the Samish federal

acknowledgment under the regulations before 1996.

       We do not suggest that the district court had authority independently to apply the

recognition criteria under 25 C.F.R. Part 83. To the contrary, as set forth above, federal

acknowledgment has been committed to the coordinate branches. Nonetheless, the

parties do not dispute that the district court acted within its authority under the APA

modifying the factual basis of the Secretary’s recognition determination. The district

court modified the executive order as appropriate under its authority pursuant to the

APA.

       The Samish claims for retroactive benefits thus accrued on November 1, 1996,

when the district court entered judgment in Greene. With the six year limitations period

under § 2501, the Samish had to file this action before November 1, 2002. Because the

Samish brought this action on October 11, 2002, it is timely. Thus, the court reverses

the trial court’s dismissal of the Samish’s second claim as time-barred.

                                           IV.

       Because the ISDA is not money-mandating for purposes of count one, we affirm

the Court of Federal Claims dismissal for lack of jurisdiction. As the Snyder Act is also

not money-mandating, we affirm-in-part the dismissal of count two insofar as it relies on

the Snyder Act.

       The Samish’s remaining claim to past benefits accrued with the effective date of

the district court’s modification, in Greene, to the Secretary’s findings in support of

federal acknowledgment. Because the Samish brought the action before November 1,

2002, within the six year limitations period, the claim is not time-barred. Thus, except



04-5042
                                          - 32 -
as discussed above with respect to the Snyder Act allegations we reverse the dismissal

of count two.

      Finally, we affirm the dismissal, without prejudice, of the Samish claim to benefits

after 1996.

                AFFIRMED IN PART, REVERSED IN PART, REMANDED.

      Each side shall bear its own costs.




04-5042
                                            - 33 -
