                                                              0RE0!illt
      lfntbe @nrte! Statee"@ourt of feDersl @[sgftp
                                                                Filed: March 20,2017                                     MAR 2   0   2017

*    ** * ** * * *:i:f * *:f * * * ** * ** * ** *:i * * * * *:t ** * ** * *
                                                                                       28   u.s.c. g 14e1 (ruckerA+Eote3oo.'3t?fit
                                                                                               Jurisdiction):
                                                                                       28 U.S.C. $ 1495 (Damages   for
SYLVAN GODFREY.                                                                                Unjust Conviction);
                                                                                       28 U.S.C. $ 25 l3 (Claims Against the
                                                                                               United States for Unjust
               Plaintiff, pro se,                                                              Conviction);
                                                                                       Breach Of Settlement Agreement;
                                                                                       Fifth Amendment to the United
                                                                                           States Constitution:
                                                                                       Rules ofthe United States Court of
                                                                                           Federal Claims ("RCFC")
THE I.]NITED STATES,                                                                       l2(bxl ) (Subject Matter
                                                                                           Jurisdiction);
                                                                                       RCFC 12(bX6) (Failure to State a
               Defendant.                                                                  Claim Upon Which Relief Can
                                                                                           Be Granted);
                                                                                       RCFC l5(a) (Amending Pleadings
                                                                                           Before Trial).
:t   *i.:t * * * * * * * * * * * * * * * * * 1. * * * ,* * * * * :i * * * * * * {. *
                                                    ,1.




Sylvan Godfrey, Marianna, Florida, Plaintiff, pro se.

Courtney D. Enlow, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for the Govemment.

                   MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND
                   DENYING-IN-PART THE GOVERNMENT'S MOTION TO DISMISS

BRADEN, ChiefJudge.

I.             RELEVANTFACTUALBACKGROIJND.I

       Sylvan Godfrey is a member of the Sioux Indian Tribe of South Dakota, serving a 365-
month prison term at the Federal Corrections Institute ("FCI") in Marianna, Florida. Compl. at 1.
Before his imprisonment in20l3, Mr. Godfrey was a plaintiff in a class action lawsuit captioned
Cobell v. Salazar, United District Court for the District of Columbia, Civil Action No. 96-1285.




               I
        The relevanl facts discussed herein were derived from Plaintiffs August 4, 2016
Complaint ("Compl."). ECF No. 1.




                                                                                       ?01q ta00 0000 !013 h8l,r
Compl. at 1, 3. The history of the Cobell litigation has been summarized by the United States
Court of Appeals for the District of Columbia Circuit, as follows:

                 [n 1996], five named plaintiffs ('Class Representatives') initiated a class
       action lawsuit [in the United States District Court for the District of Columbia,] . . .
       seeking to compel the United States Department of the Interior to perform a
       historical accounting ofthe hundreds of millions of doilars 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. 103412, 108
       Stat. 4239. In 2001, [the United States Court of Appeals for the District of
       Columbia Circuit held] . . . 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 Department could feasibly discharge
       its legal duty to conduct an accounting ofthe hundreds of thousands of'Individual
       Indian Money' trust accounts under its control. . . .

               [On December 7,2009, the parties submitted to the United States District
       Court for the District of Columbia a proposed Class Action Settlement Agreement.
       Cobell v. Salazar, Civil Action No.96-1258, ECF No. 3660-2. One year later, on
       December 8, 2010, Congress enacted the Claims Resolution Act, Pub.L. No. 111-
       291,124 Stat. 3064 (2010), authorizing, ratifring, and confirming the proposed
       Settlement Agre ement, id. g 101(c)(1).1

               Under the Settlement Agreement, each member of what was known as the
       'Historical Accounting Class' received $1,000 in lieu ofan actual accounting.2 . . .
       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, including attomeys' fees and awards



       2
           The December 7,2009 Cobett Settlement Agreement provides:

       Historical Accounting Class means those individual Indian beneficiaries (exclusive
       ofthose who prior to the filing ofthe complaint on June 10,1996 had filed actions
       on their own behalf stating a claim for a historical accounting) alive on
                                                                                 [September
       30, 20091 and who had an [Individual Indian Money (.IIM,)] Account[, pursuant
       to 25 C.F.R. 115.002,1 open during any period between October 25, 1994 and
       [September 30, 2009], which IIM Account had at least one cash transaction credited
       to it at any time as long as such credits were not later reversed. Beneficiaries
       deceased as of [September 30, 20091 are included in the Historical Accountins
       Class only if they had an IIM Account that was open as of
                                                                     [September 30, 2009f
       The estate of any Historical Accounting class Member *ho di"r after the
       [September 30,2009] but before distribution is in the Historical Accounting class.

Cobell v. Salazar, Civil Action No.96-1258, ECF No. 3660-2 atn A.16.
         to the Class Representatives.           r   Id. at 914-15. In exchange, all class members
         released            the Department     of    Interior from liability arising out of prior
         mismanagement of their trust accounts. 1d.

Co be l l v. Jew   e   ll,   802 F.3 d 12, l 6-17 (D.C. Ch. 201 5).

IL       PROCEDURAL IIISTORY.

        On August 4,2016, Mr. Godfrey ("Plaintiff') filed a Complaint ("Compl.") in the United
States Court of Federal Claims, alleging that the Govemment violated his statutory and
constitutional rights, as well as the terms of the December 9,2009 Cobell Settlement Agreement.
ECF No. 1. On the same day, Plaintifffiled a Motion For Leave To Proceed 1n Forma Pauperis
and a Notice Of Directly Related Cases. ECF Nos. 2, 4.

        On September 30,2016, the Government filed a Motion To Dismiss the August 4,2016
Complaint ("Gov't Mot."), pursuant to Rules of the United States Court of Federal Claims
('RCFC) 12(bX1) and 12(b)(6). ECF No. 8. Plaintiffs Response to the September 30,2016
Motion was due by October 3I, 2016. But, weeks after the deadline, Plaintiff failed to file any
response or objection with the court. Therefore, on December 2, 2016,the court issued an Order,
instructing Plaintiffto show cause why this case should not be dismissed for failure to prosecute.
ECF No. 9.

         On December 19, 2016,  Plaintifffiled a Motion For Extension Of Time To File Opposition
To Defendant's Motion To Dismiss, To Amend complaint, And For Third Party Representative
("P1. Mot."). ECF No. 10. On January 3,2016,|he court granted Plaintiff an enlargement of time
to file a response to the Govemment's September 30,2016 Motion To Dismiss, but did not rule
on the Plaintiff s December 19, 2016 Motion To Amend or Motion For Third Party Representative.
ECF No. 1 1. On January 4,2017, the Govemment filed a Response to the pending December 19,
2016 Motions. ECF No. 12.




        '   The December 7 ,2009 Cobell Settlement Agreement provides:

         Trust Administration Class shall mean those individual Indian beneficiaries
         (exclusive of persons who filed actions on their own behalf, or a group of
         individuals who were certified as a class in a class action, stating a Funds
        Administration Claim or a Land Administration Claim prior to the filing of the
        Amended Complaint) alive as of [September 30, 2009] and who have or had IIM
        Accounts in the 'Electronic Ledger Era' (currently available electronic data in
        systems of the Department of the Interior dating from approximately 1985 to the
        present), as well as individual Indians who, as of [September 30, 2009], had a
        recorded or other demonstrable ownership interest in land held in trust or
        restricted status, regardless of the existence ofan IIM Account and resardless of
        the proceeds, ifany, generated from the Land.

Cobell v. Salazar, Civil Action No .96-1258, ECF No. 3660-2              atl A.35.
         On January 18,2017, Plaintiff filed a Motion To Alter Or Amend The December 19, 2016
Judgment ("PI. Resp."), that the court considers a response to the September 30,2016 Motion To
Dismiss. ECF No. 14. Therein, Plaintiff argued that: (1) another case pending before the United
States Court of Federal Claims, Redboy v. United States, No. 17-19, is "matedal to [Plaintiffs]
ability to state the jurisdiction ofthis court;" (2) the record reflects Plaintiffs effort to oppose the
Govemment's Motion To Dismiss; and (3) Plaintiff"lacks the ability to pursue his rights as a truly
pro se litigant," because the staff at FCl-Marianna deprived Victor Fourstar, Plaintiffs "third-
party representative," ofhis legal files. Pl. Resp. at 2.

 III.   DISCUSSION.

        A.      Relevant Legal Standards.

                1.      Jurisdiction.

        The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C.
$  1491, "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, or for liquidated or unliquidated damages in
cases not sounding in tort." 28 u.s.c. $ 1a91(a)(l). The Tucker AcL however, is "ajurisdictional
statute; it does not create any substantive right enforceable against the United States for money
damages. . . . [T]he Act merely confers jurisdiction upon [the United States Court of Federal
claims] whenever the substantive right exists." united states v. Testan,424IJ.s.3g2,3gs (1976).

         To pursue a substantive right under the Tucker Act, a plaintiff must identifu and plead an
 independent contractual relationship, constitutional provision, federal statute and./or executive
 agency regulation that provides a substantive right to money damages. See Todd v. United States,
 386 F'3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the litigant to
 identifu a substantive right for money damages against the United States separite from the Tucker
 Act[.]"); see also Fisher v. United States, 402 F .3d, 1167, 1172 (Fed. Cir. 2005) (en banc) (,,T\e
 TuckerAct... does not create a substaltive cause ofaction; ... a plaintiff must identiff a separate
 source of substantive law that creates the right to money damages. . .      .[T]hat souice must be
 'money-mandating."'). Specifically, a plaintiff must demonstrate that the source of substantive
 law upon which he relies "can fairly be interpreted as mandating compensation by the Federal
 Govemment[.]" Testan, 424 U.S. at 400. And, the plaintiff bears the burden oi establishing
jurisdiction by a preponderance ofthe evidence. see Reynolds v. Army & Air Force Exch.
                                                                                               serv.,
 846F.2d,746,748 (Fed. Cir. 1988) ("[O]nce the [trial] court's subject matter jurisdiction
                                                                                             [is] put
in question . . . [the plaintiff] bears the burden of establishing subject mattir jurisdiction by a
preponderance of the evidence.").

               2.      Standing.

         Constitutional standing is a fundamental jurisdictional consideration. See Glass v. (Jnited
 states,258F.3d 1349, 1355 (Fed. cir. 2001) ("The united states constitution limits iudicial oower
 to the resolution of actual 'cases' or 'controversies. "'); see also Myers Investigitive And sec.
 servs., Inc. v. united states,275 F.3d 1366, 1369 (Fed. cir.2002) ("tsltanding is a threshold
jurisdictional issue."). Although the constitutional standing requirementi are derived from
                                                                                            Article
III ofthe United States Constitution, those requirements apply to the United States Court ofFederal
Clains. See Andersonv. United States,344F.3d 1343, 1350 n.1 (Fed. Cir.2003) ("The Court of
Federal Claims, though an Article I court, . . . applies the same standing requirements enforced by
other federal courts created under Article III.").

        To establish standing, a plaintiffmust show that he or she suffered, "an injury-in-fact that
is both fairly traceable to the challenged conduct of the defendant and likely redressable by a
favorable judicial decision." Figueroa v. United States,466 F.3d 1023, 1029 (Fed. Cir. 2006).
The party invoking jurisdiction, bears the burden of establishing constitutional standing. See
Myers Investigative,2T5 F.3d at 1369 ("[T]he party invoking federal jurisdiction bears the burden
of establishing [its] elements.") (crting Lujan v. Defenders of Wildlife,504U.S.555, 561, (1992).

                3.      Standard Of Review For A Motion To Dismiss, Pursuant To RCFC
                        12(bXt).

        A challenge to the United States Court ofFederal Claims' "general power to adjudicate in
specific areas of substantive law .        is properly raised by [an RCFC] l2(bx1) motion[.],,
Palmer v. United States,168 F.3d 1310, 1313 (Fed. Cir. 1999); see a/so RCFC 12(b)(t) (,,Every
defense to a claim for relief in any pleading must be asserted in the responsive pleading. . . . But
a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction[.]").
When considering whether to dismiss an action for lack of subject matter jurisdiction, "a court
must accept as true all undisputed facts asserted in the plaintiff s complaint and draw all reasonable
inferences in favor of the plaintiff." Trusted Integration, Inc. v. united states, 659 F.3d 1159,
1163 (Fed. Cir. 2011).

               4.      Standard Of Review For A Motion To Dismiss, pursuant To RCFC
                       12(bX6).

         A claim is subject to dismissal under RCFC 12(bX6), if it does not provide a basis for the
court to grant relief. see Bell Atl. Corp. v. Twombly,550 u.s. 544, 555-56 (2007) (.,[A welt-
pleaded complaintl requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual allegations must be enough to raise a right of
relief above the speculative level, on the assumption that all the allegations in the complaint are
true (even if doubtful in fact)." (intemal citations omitted)); see a/s o Lindsay v. United siates,295
F.3d 1252,1257 (Fed. Cir.2002) ("A motion to dismiss . . . for failure to state a claim upon which
reliefcan be granted is appropriate when the facts asserted by the claimant do not entitie him to a
legal remedy.").

         A complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face."' Ashnofr v. Iqbal,556u.s.66t,679 (2009) (quotingTwombly,
550 U.S. at 570). The allegations contained in a complaint also must indicate to the court that
there is "more than a sheer possibility that a defendant has acted unlawfirlly. 1d. ..Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice." 1d. To determine whether a complaint states a plausible claim foi relief, a coun musr
engage in a context-specific analysis and "draw on its judicial experience and common sense.,'
Id. at678-79. The court, however, must construe the allegations of the complaint in the light most
favorable to the plaintiff. See Henlw v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995).

                 5.      Standard Of Review For Pra Se Litigants.

        Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants
represented by counsel. See Haines v. Kerner,404 U.S. 519,520 (1972) (holding that pro se
complaints, "however inartfully pleaded," are held to "less stringent standards than formal
pleadings drafted by lawyers"). The court traditionally examines the record "to see if [apro se]
plaintiff has a cause of action somewhere displayed." Ruderer v. United States, 412 F.2d 1285,
1292 (Ct. Cl. 1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiff s
complaint, the court "does not excuse [a complainfs] failures." Henke,60 F.3d at799.

       B,        The Government's September 30, 2016 Motion To Dismiss, Pursuant To
                 RCFC 12@Xr) and 12(b)(6).

                 1.     The Government's Argument.

       The Govemment reads the August 4, 2016 Complaint to raise three claims:

             .   wrongful imprisonment, in violation of the 1868 Fort Laramie Treaty's .,Bad Men,,
                 Clause (Gov't Mot. at 2);

             .   wrongful civil commitment in violation of the Fourth, Fifth, Sixth, Eighth and
                 Fourteenth Amendments to the United States Constitution (Gov't Mot. at 2): and

             o   breach of the December 7,2009 Cobell Settlement Agreement (Gov't Mot. at 2).

                        z.        Regarding The August       4,   2016 Complaint's Wrongful
                                  Imprisonment Claim.

         The Govemment argues that the court does not have jurisdiction to review the decisions of
a district cou-rt. cov't Mot. at 4. Therefore, to the extent the Augusr 4.2016 Complaint raises a
collateral attack on PlaintifPs conviction, the court does not have jurisdiction to adjudicate that
claim. Gov't Mot. at 4.

        In addition, the Govemment argues that a money damages claim for wrongful conviction,
filed under 28 u.s.c. g 14954 and 28 u.s.c. $ 2513,5 must allege that plaintiff s conviction has


       4
         "The United States Court of Federal Claims shall have jurisdiction to render judgment
upon any claim for damages by any person unjustly convicted of an offense against the United
States and imprisoned." 28 U.S.C. g 1495.

       5
           Title 28 U.S.C.   $ 2513, provides:

       (a) Any person suing under section 1495   ofthis title must allege and prove that:
been reversed or set aside on the ground that he is not guilty or at new trial or rehearing he was
found not guilty, or that he has been pardoned upon the stated ground of innocence. Gov't Mot.
at 4. But, the wrongful conviction claim set forth in the August 4, 2016 Complaint does not make
any of these allegations. Gov't Mot. at 4.

       Likewise, the court does not have jurisdiction to adjudicate the August 4,2016 Complaint's
claim that Plaintiffs wrongful conviction violated the 1868 Fort Laramie Treaty's "Bad Men"
Clause, because Plaintiff did not exhaust his administrative remedies by first filing a claim with
the United States Department of Interior. Gov't Mot. at 4.

                       b.        Regarding The August 4, 2016 Complaint's Wrongful Civil
                                 Commitment Claim.

        To the extent the August 4, 2016 Complaint raises a collateral attack on Plaintiffs civil
commitment, the court does not have jurisdiction to adjudicate that claim for the reasons stated
above. Gov't Mot. at        4. Moreover, the court does not have jurisdiction to adjudicate the
constitutional violations alleged in the August 4, 2016 Complunt, because the Fourth, Sixth and
Eighth Amendment, as well as the Due Process Clauses of the Fifth and Fourteenth Amendments
are not money-mandating. Gov't Mot. at 5.




           (1) His conviction has been reversed or set aside on the ground that he is not
           guilty ofthe offense of which he was convicted, or on new trial or rehearing he
           was found not guilty of such offense, as appears from the record or certificate
           of the court setting aside or reversing such conviction, or that he has been
           pardoned upon the stated gound of innocence and unjust conviction and

           (2) He did not cornmit any of the acts charged or his acts, deeds, or omissions
           in connection with such charge constituted no offense against the United States,
           or any State, Territory or the District of Columbia, and he did not by misconduct
           or neglect cause or bring about his own prosecution.

       (b) Proofofthe requisite facts shall be by a certificate ofthe court or pardon wherein
       such facts are alleged to appear, and other evidence thereof shall not be received.

       (c) No pardon or certified copy ofa pardon shall be considered by the United States
       court ofFederal claims unless it contains recitals that the pardon was granted after
       applicant had exhausted all recourse to the courts and that the time for any court to
       exercise its jurisdiction had expired.

28 U.S.C. g   2s13(a){c).
                       c.      Regarding The August 4, 2016 Complaint's Breach Of The
                               December 7, 2009 Cobell Settlement Agreement Claim.

       The Government argues that the court does not have jurisdiction to adjudicate tort claims
against the United States, such as the intentional poisoning of the Sioux Indian Reservation's
public drinking water. Gov't Mot. at 4.

       The Plaintiff also does not have standing to bring the claims related to the Govemment's
use of Sioux Reservation lands, the building of roads on the Sioux Reservation, and the alleged
poisoning of the Sioux Reservation's water system, because Plaintiff does not allege that any
wrongdoing has occurred in a location or in a manner that will affect his person or property. Gov't
Mot. at 6. In addition, Plaintiff lacks standing to pwsue claims for violations of the Cobell
Settlement Agreement, because that agreement provides for payment to a Native American tribe,
not for individual members. Gov't Mot. at 6.

        In the altemative, the August 4, 2016 Complaint fails to state a claim upon which relief can
be granted, pursuant to RCFC 12(bX6). Gov'tMot. at7. TheAugust4,20l6 Complaint does not
identi$ any statutory or contractual provision, or condition of the December 7, 2009 Cobelt
Settlement Agreement, that entitles Plaintiff to more than $880. Gov't Mot. at 8. Nor does the
August 4,2016 complaint identifl any provision that prohibits the Govemment from building
roads on the Sioux Reservation. Finally, the terms ofthe Settlement Agreement state that class
members, such as Plaintiff, "shall be deemed to have released, waived and forever dischareed" the
Government from land administration claims, such as rhe clajm alleged in rhe Augusl;. 2016
Complaint that the Govemment unlawfully built roads on the Sioux Reservation                  and./or
appropriated the Reservation's natural resources. Gov't Mot. at 9.

               2.      PlaintifPsResponse.

       on January 18,2017, Plaintiff filed a Motion To Alter or Amend rhe December 19,2016
Judgment, that the court considers Plaintiff s Response to the Govemment's September 30,2016
Motion To Dismiss. Therein, Plaintiff responds that the "record reflects [Plaintiff s] efforts to
oppose the defendant's motion to dismiss[.]" pl. Resp. at 2. In addition, plaintiff requested that
the court grant him leave to amend the August 4, 20i6 Complaint, because the related case,
RedBoy v. United States, No. 17-19, is "material to [Plaintiffs] ability to state the jurisdiction of
this court[.]" Pl. Resp. at 2.

               3.      The Court's Resolution.

       The court considers Plaintiff s August 4,2016 complaint to allege that the Govemmenr:

           r   imprisoned Plaintiff in breach of the I 868 Fort Laramie Treaty's "Bad Men" clause
               (Compl. at 3);

           o   certified Plaintiff for civil commitment in violation of the Fourth, Fifth, sixth,
               Eighth and Fourteenth Amendments to the United states constitution (comol. at
               4):
                denied Plaintiff economically viable use of Indian Land resources through unfair
                Iand purchasing and escheatrnent of "fractionated" Indian Land allotments
                (Compl. at 2);

                built roads on "Godfrey's Sioux Indian Reservation" without Just Compensation,
                violating 25 U.S.C. $$ 318(a), 323-25 and the Fifth Amendment to the United
                States Constitution (Compl. at 2);

                intentionally poisoned the Sioux lndian Reservation's public drinking water and
                falsely reported Uranium and Chlorine levels on the Reservation (Compl. at 2-3);
                and

            o   failed to compensate Plaintiff fully as a member of the Historical Accounting Class
                in the December 9,2009 Cobell Settlement Agreement (Compl. at 1-2).

                       a.      Regarding The August          4,   2016 Complaint's Wrongful
                               Conviction Claim.

       The United states court of Federal claims has "jurisdiction to render judgment upon any
claim for damages by any person unjustly convicted ofan offense against the United States and
imprisoned." 28 U.S.C. g 1495. But,

       [a]ny person suing under section 1495 of this title must allege that . . . [h]is
       conviction has been reversed or set aside on the ground that he is not guilty of the
       offense of which he was convicted or on new trial or rehearing he was found not
       guilty ofsuch offense, as appears from the record or certificate ofthe court settins
       aside or reversing such conviction, or that he has been pardoned upon the statei
       ground ofinnocence and unjust conviction.

28 u.S.C. $ 2s13(a)(l).

        The August 4, 2016 Complaint does not allege that Plaintiffs conviction was reversed, set
aside, or pardoned. Therefbre, to the extent that the August 4,2016 complaint claims money
damages for an unjust conviction, t}le court does not have jurisdiction to adjudicate that claim.

       In addition, the court does not havejurisdiction to adjudicate alleged violations ofthe 1868
Fort Laramie Treaty's "Bad Men" clause, unless plaintiff has exhausted his available
administrative remedies before the United States Department of Inte rior. See Elkv. Ilnited States,
70 Fed. cl. 405,407 (2006) ('As a condition to receiving reimbursement, the
                                                                                  [Fort Laramie]
Treaty plainly requires that 'proof [be] made to the agent and forwarded to the Commissioner of
Indian Affairs at washington city."'(quoting Fort Laramie Treaty of 1g6g, art. L, 15 Stat. 635)).
The August 4, 2016 Complaint, however, does not allege that Plaintiffhas filed any claim with the
Interior Department. Therefore, to the extent that the August 4, 2016 complaint alleges that
Plaintiffs imprisonment violated the Fort Laramie Treaty, the court does not have iurisdiction to
adjudicate that claim.
                        b.      Regarding The August 4, 2016 Complaint's Wrongful Civil
                                Commitment Claim.

       The August 4, 2016 Complaint alleges that Plaintiff was wrongfully certified for civil
commitment in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the
United States Constitution. Compl. at 4. But, the Fourth, Sixth and Eighth Amendments, and the
Due Process Clauses of the Fifth and Fourteenth Amendments axe not money mandating. See
Trafuy v. United States,so3 F.3d 1339, 1340 (Fed. Cir. 2007) ('[T]he Eighth Amendment is not a
'money-mandating' provision[.]"); see also Brown v. United States,105 F.3d 621,623 (Fed. Cir.
1997) ("[T]he Fourth Amendment does not mandate the payment of money for its violation.");
Leblanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (holding that the Due Process
Clauses of the Fifth and Fourteenth Amendments are not "a sufficient basis for jurisdiction[,]
because they do not mandate payment by the Govemment"); Milas v. United States,42Fed,. Cl.
704,710 (1999) ('[The] Sixth Amendment[] [is] not money mandating[.]"), aff d 217 F.3d 854
(Fed. Cir. 1999). Therefore, the court does not have jurisdiction to adjudicate the August 4,2016
Complaint's wrongful civil commitment claims.

                        c.      Regarding The August 4, 2016 Complaint's Escheatment And
                                Unfair Purchase-Price Claim.

         The August 4, 2016 complaint alleges that the Govemment denied plaintiff "all
 economically viable use [ofl Indian land resources and enjoyment of Indian land on a long term
 basis through unfair land purchasing compensation and escheatment of fractionated Indian land
 allotments[.]" compl. at 2. "In determining whether the [court] has jurisdiction, [the court must
 determine] that the [relevantj claim is founded upon a money-mandating sowce and
                                                                                               [that] the
plaintiffhas made a nonfrivolous allegation that it is within the class ofplaintiffs entitled to recover
under the money-mandating source." Jan's Helicopter sem., Inc. v. F.A.A.,525 F.3d l2gg,13og
(Fed. cir. 2008) (emphasis added). Although the Takings clause is money-mandating, .,[a]
claimant under the Takings clause must show that the governrnent, by some specific action, took
a private property interest for a public use without just compensation." Adams v. united states,
391 F.3d 1212, 1218 (Fed. cir. 2004); see atso wyatt v. IJnited states,2Tl F.3d 1090, 1096 (Fed.
Cir. 2001) ("lt is axiomatic that only persons with a valid property interest at the time ofthe taking
are entitled to compensation."). The August 4, 2016 complaint, however, does not allege thit
Plaintiff had a personal property interest in the "Indian land" that escheated to the Government or
the Govemment purchased at an unfair price.

        In addition, Plaintiff does not have standing to assert a takings claims based on the
escheatrnent and unfair purchase-price of "lndian land." At a minimum, standing requires the
plaintiff to suffer "an invasion of a legally protected interest which is . . ioncrete and
particularized." Lujan, 504 U.S. at 560. Accordingly, in Fifth Amendment takings claims, the
court must determine whether the claimant has established a property interest as a thrishold maner.
see Am. Pelagic Fishing co., L.p. v. united states,3Tg F.3d, 1363, 1372 (Fed. cir. 200a). (.,[A]s
a threshold matter, the court must determine whether the claimant has established a DroDerry
interest lor purposes of the Fifth Amendment.''). The August 4. 201 6 complaint does not ailege
that Plaintiff had any valid real property interest in the "Indian land,' at issue. Therefore, the
August 4, 2016 Complaint has failed to allege an "invasion to a legally protected interest', that is
particularized.



                                                   l0
                        d.     Regarding The August 4, 2016 Complaint's Road Construction
                               And Right-Of-Way Claim.

        "In determining whether the [court]    has   jurisdiction, [the court must determine] that the
 [relevant] claim is founded upon a money-mandating sowce and [that] the plaintiff has made a
 nonfrivolous allegation that it is within the class of plaintiffs entitled to recover under the money-
 mandating source." Jan's Helicopter Serv.,525 F.3d at 1309 (emphasis added). The August 4,
 2016 Complaint alleges that the Government built roads on Sioux Indian Reservation without Just
 Compensation in violation of the Fifth Amendment's Takings Clause and 25 U.S.C. $$ 318(a),
 323-25. Compl at 2. These provisions are money-mandating. See Jan's Helicopter Serv.,525
 F.3d at 1309 ("[T]he Takings Clause is a money-mandating source for purposes of Tucker Act
jurisdiction."); see also 25 U.S.C. $ 325 ('No grant of a righrof-way shall be made without the
payment of such compensation as the Secretary of the Interior shall determine to be just."). But,
these provisions only compensate individuals with a private property interest in land. See ll'yatt,
271 F.3d at 1096 ("It is axiomatic that only persons with a valid property interest at the time of the
taking are entitled to compensation."); see also 25 U.S.C. $ 325 ("The compensation received on
behalf of the Indian owners shall be disposed of under rules and regulations to be prescribed by
the Secretary ofthe Interior." (emphasis added)). The August4,2016 Complaint does not allege
that Plaintiffhad a valid real property interest in any of the Sioux land on which the Govemment
allegedly built roads and right-of-ways. Therefore, the August 4, 2016 complaint failed to allege
that Plaintiff is within a potential class ofindividuals entitled to recover under the Takinss Clause
or 25 U.S.C. $$ 318(a), 323--25.

        In addition, for the reasons stated above, the August 4, 2016 Complaint does not allege
sufficient facts to establish that Plaintiff has standing to assert a Fifth Amendment takings claim
based on the Govemment's construction of roads and right-of-ways on the sioux Indian
Reservation.

                        e.     Regarding The August           4, 2016 Comptaint's Intentional
                               Poisoning Of The Sioux Reservation Drinking Water.

        The United States Court of Federal Claims does not have jurisdiction to adjudicate cases
sounding in tort. ,See 28 u.s.c. g 1491(a)(1) ("The United states courr of Federal claims shall
have jurisdiction to renderjudgment upon any claim against the United States founded either upon
the constitution, or any Act of congress or any regulation ofan executive department, or upon
any express or implied contract with the United States, or for iiquidated or unliquidated damages
in cases not sounding in tort." (emphasis added)); see also Keene Corp. v. [Jnited stales, 50g U.s.
200, 214 (1993) ("[T]ort cases axe outside the jurisdiction of the court of Federal claims.").
Whether an action sounds in tort is determined by the character of the underlying dispute, not by
the nomenclature chosen by the p arries. see Brazos Elec. Power co-op., Inc. v. united States, 144
F.3d 784, 787 (Fed. cir. 1998) ("[w]e customarily look to the substance ofthe pleadings rather
than their form.").

       In this   case, the August 4,2016 Complaint alleges that the United States intentionally
poisoned the Sioux Reservation's public drinking water, but a "civil wrong arising from exposure
to a toxic substance" sounds in tort. ,See Toxic Tort, BLAcK's LAw DrcrroNARy (10th ed. 2014);
see also Tort, BLACK's LAw DrcrroNARy (1Oth ed. 2014) (explaining that a tort is a'.civil wrong,



                                                 ll
other than breach ofcontract, for which a remedy may be obtained" and that a typical tort involves
an "intentional act resulting in harm"). Therefore, the court has determined that it does not have
jurisdiction to adjudicate the claim alleged in the August 4,2016 Complaint that the Govemment
 intentionally poisoned the Sioux Reservation's public drinking water.

                      f.      Regarding The August 4, 2006 Complaint's Breach Of The
                              December 9, 2009 Cobell Settlement Agreement Claim.

        "[W]hen a breach of contract claim is brought in the [United States] Court of Federal
Claims under the Tucker Act, the plaintiff comes armed with the presumption that money damages
are available, so that normally no further inquiry is required." Holmes v. United States,657 F.3d
1303, 1314 (Fed. Cir. 2011). Because "it is axiomatic that a settlement agreement is a contract,"
the presumption ofTucker Act jurisdiction also applies to claims alleging a breach ofa settlement
agreement. See Grecov. Dep't of the Arny,852F.2d 558,560 (Fed. Cir. 1988). That is notto
say, that the United States Court of Federal Claims has jurisdiction to adjudicate every claim
alleging such a breach. See Rick's Mushroom Service, Inc. v. United States,52l F.3d 1338, 1343
(Fed. Cir. 2008) ("The govemment's consent to suit under the Tucker Act does not extend to every
contract [or settlement agreement]."). The key element is whether the settlement agreement "could
fairly be interpreted as contemplating money damages." Holmes,657 F.3d at 1315.

        The December 9,2009 Cobell Settlement Agreement provides that, ,,each member of the
Historical Accounting class shall be paid a per capita amount of $1,000.00 after Final Approval.
This will be a per-person, not a per-account, payment." Cobell v. Salazar, Civil Action No. 96-
1258, ECF No. 3660-2 at fl E.3a. The August 4, 2016 complaint alleges that the Govemment
breached these terms, because Plaintiff is a member of the Historical Accounting Class, but only
received $880. Compl. at 1-2. Under these circumstances, the court has determined that the
December 9,2009 Cobell Settlement Agreement could fairly be interpreted as contemplating
money damages in the event that the Government underpaid a member of the Historical
Accounting Class.

        The Government argues that Plaintiff "does not identifr any statutory or contractual
provision, or condition of the settlement agreement, that entitled him to more than the $gg0 he
allegedly received." Gov't Mot. at 8. But, this argument is without merit on its face. Plaintiff
alleges that he is a member of the Historical Accounting Class and the December 9,2009 Cobelt
Settlement Agreement unambiguously entitles members of that class to $1,000 in compensation.
$ 120 more than the $880 Plaintiff allegedly received.


       c.     Plaintiffs December 19' 2016 Motion To Amend complaint And Motion For
              Third Party Representative.

       Under RCFC l5(a)(1), a party may amend a pleading once as a matter of course, within
twenty-one days after service ofa motion, pursuant to RCFC l2(b). "In all other cases
                                                                                      [however]
a party may amend its pleading only with the opposing party's written consent or the court's
feave." RCFC 15(a\2). In this case, Plaintiff s December 19,2016 Motion To Amend was filed
eighty days after the Govemment's september 30,2016 Motion To Dismiss, pusuant to RCFC
12(bxl) and 12(b)(6). Therefore, Plaintiff may amend the August 4, 2016 complaint only with



                                               t2
the opposing party's written consent or the court's leave. See RCFC 15(a)(2). On January 4,2017,
the Govemment filed an opposition to the December 19,2016 Motion To Amend.

          Of course RCFC 15(a)(2) states that, "[t]he court should freely give leave [to amend] when
justice so requires." But, the court may exercise its discretion to deny leave, if it finds evidence
of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, [or] futility of amendment." Foman v. Davis,371U.S. 178, 182
(1962). "When a party faces the possibility of being denied leave to amend on the ground of
futility, that party must . . . proffer sufficient facts supporting the amended pleading that the claim
could survive a dispositive pretrial motion." Kemin Foods, L.C. v. Pigmentos Vegetales Del
centro s.A. de C.v.,464 F.3d 1339, 1354-55 (Fed. Cir.2006).

        Plaintiff s December 19,2016 Motion To Amend        states that,

        the herein facts support [] a prima facie case for the jurisdiction of this court by
        South Dakota Sioux Chad S.Two Hearts. In light of [Plaintiff s] owning allottee
        shares in Indian Land on the Standing Rock Indian Reservation in North Dakota
        for which he is also being exploited as a Native American through the Cobelt v.
        Jewell lndian Trust settlement, [Plaintiff] asserts that it is proper for the court to
        allow [Plaintiff] to amend his complaint.

Pl. Mot. at 3.

        The December 19,2016 Motion, however, does not cure any of the jurisdictional defects
in the August 4, 2016 Complaint. Whether the court has jurisdiction to adjudicate the claims in a
Complaint filed by Mr. Two Hearts does not affect whether the court has jurisdiction to adjudicate
the claims alleged in the August 4, 2016 Complaint. Similarly, Plaintiff s allegation that ire owns
land in North Dakota, does not affect the court's jurisdiction to adjudicate tle August 4, 2016
complaint's taking and 28 u.s.c. $$ 31s(a), 32315 claims, that are based on the Govemment,s
alleged conduct regarding the Sioux Indian Reservation in South Dakota.

        For these reasons, the amendments proposed in the December 19,2016 Motion would not
survive a motion to dismiss, pwsuant to RCFC 12(bX1). Therefore, the court has determined that
amending the August 4, 2016 Complaint would be futile.

       D.        Plaintiffs December 19,2016 Motion f,'or Third party Representative.
        RCFC 83.1(a)(3) states that, "[a]n individual who is not an attomey may represent oneself
or a member of one's immediate family, but may not represent a corporation, an entity, or any
other person in any proceeding before this court." In the Decembe r 19,2016 Motion ior 'I.hird
Party Representative, Plaintiff requests that the court appoint Victor Fourstar a his legal counsel.
Pl. Mot. at2. The December 19,2016 Motion, however, does not allege that Mr. Fourstar is a
licensed attorney, nor that he is a member of plaintiff s immediate family. Indeed, t11e December
19,2016 Motion advises the court that Mr. Fourstar might enroll in law ichool after he is released
from prison on December 9,2016. Pl.Mot.at3. For these reasons, plainti{f s December. 19 2016
Motion For Third Party Representative is denied.



                                                 l3
ry.    CONCLUSION.

        For these reasons, the Government's September 30, 2016 Motion To Dismiss, pursuant to
RCFC 12(bX1) and RCFC 12(bX6), is granted with regard to the August 4,2016 Complaint's
claims, alleging that the Government:

           .   wrongfully imprisoned Plaintiff in breach of the 1868 Fort Laramie Treaty's "Bad
               Men" Clause (Compl. at 3);

           o   certified Plaintiff for Civil Commitnent in violation of the Fourth, Fifth, Sixth,
               Eighth and Fourteenth Amendments to the United States Constitution (Compl. at
               4);

           o   denied Plaintiff economically viable use of Indian Land resources through unfair
               land purchasing and escheafinent of "fractionated" Indian Land allotments
               (Compl. at 2);

           .   built roads on "Godfrey's Sioux Indian Reservation" without Just Compensation,
               violating 25 U.S.C. $$ 318(a), 323-25 and the Fifth Amendment to the United
               States Constitution (Compl. at 2); and

           .   intentionally poisoned the Sioux Indian Reservation's public drinking water and
               falsely reported Uranium and Chlorine level on the Reservation (Compl. at 2-3).

        The Govemment's September 30,2016 Motion To Dismiss, pursuant to RCFC 12(bX1)
and RCFC 12(bX6), is denied with regard to the August 4,2016 Complaint's claim, alleging that
the Govemment failed to compensate Plaintiff fully as a member of the Historical Accounting
Class in the Cobell Setllement Agreement. Compl. at 1-2.

       Plaintiff   s   December 19. 2016 Motion     To Amend and Motion For Third          Party
Representative are denied.

       IT IS SO ORDERED.




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