       In the United States Court of Federal Claims
                                       No. 15-560C

                                 (Filed: January 4, 2016)

************************************** *
WYANDOT NATION OF KANSAS, a/k/a        *
WYANDOTTE TRIBE OF INDIANS,            *                Indian Tribe Claims for Tribal
                                       *                Trust Fund Mismanagement; Rule
                    Plaintiff,         *                12(b)(1) and (b)(6) Motion to
                                       *                Dismiss; Fiduciary Duties Owed
v.                                     *                to Indian Tribes; 28 U.S.C. § 2501;
                                       *                Statute of Limitations; Effect of
THE UNITED STATES,                     *                Appropriations      Act     Riders;
                                       *                Standing.
                    Defendant.         *
                                       *
************************************** *

Brian J. Leinbach, with whom were Walter J. Lack, Engstrom, Lipscomb & Lack, Los
Angeles, California, Thomas V. Girardi, Girardi & Keese, Los Angeles, California,
Gregory A. Yates, Gregory A. Yates, P.C., Encino, California, Mario Gonzalez, Law
Offices of Mario Gonzalez, Rapid City, South Dakota, Gregory Smith, Law Offices of
Gregory W. Smith, Beverly Hills, California, Of Counsel, for Plaintiff.

Laura W. Duncan, Trial Attorney, with whom were John C. Cruden, Assistant Attorney
General, Environment and Natural Resources Division, U.S. Department of Justice,
Washington, D.C., Gladys Cojocari, Office of the Solicitor, U.S. Department of the
Interior, Of Counsel, for Defendant.

                            OPINION AND ORDER ON
                        DEFENDANT’S MOTION TO DISMISS

WHEELER, Judge.

       This case involves an Indian Tribe’s claims that accrued in the nineteenth century.
For Indian Tribes that qualify for a “full and complete accounting” of their treaty trust
funds pursuant to the American Indian Trust Fund Management Reform Act of 1994,
Congress has permitted claims relating to the treaty trust funds to be brought within six
years after the Government furnishes the accounting. However, in this case, Plaintiff is not
a federally recognized Indian Tribe, and therefore is not entitled to an accounting. For
claims relating to cemetery land in Kansas City, Kansas, Plaintiff is not the owner of the
land, and thus has no standing to assert these claims. For the reasons explained in greater
detail below, Defendant’s motion to dismiss must be granted.

                                  Factual and Procedural History

       Plaintiff, the Wyandot Nation of Kansas (“Wyandot Nation”), is an Indian tribe
whose members trace their ancestry to the Historic Wyandott Nation and the Wyandotte
Tribe of Indians. Compl. ¶ 2. The Historic Wyandott Nation’s government-to-government
relations with the United States were dissolved and terminated 160 years ago by the Treaty
of January 31, 1855, 10 Stat. 1159 (“1855 Treaty”). Id. Following the Historic Wyandott
Nation’s termination, the Wyandotte Tribe of Indians was established as a reorganized tribe
under Article 13 of the Treaty of February 23, 1867 (“1867 Treaty”). Id. Plaintiff claims
to be both a successor-in-interest to all of the treaties entered into by the Historic Wyandott
Nation with the United States and a part of the reorganized Wyandotte Tribe of Indians.
Id. Plaintiff changed its name to the Wyandot Nation of Kansas in 1959 to avoid confusion
with the separate, federally-recognized Wyandotte Tribe of Oklahoma. Id. ¶ 37.1

        The Wyandot Nation’s claims in this case involve treaty trust funds and trust land
that the Government allegedly holds in trust for the Wyandot Nation. The funds Plaintiff
claims the Government holds in trust for it fall into two categories. Id. at 69. Plaintiff’s
“Category One trust funds are those funds described in Schedule A of the 1867 Treaty.”
Id. ¶ 69. According to Plaintiff, its Category One funds “. . . were derived from the sale of
Historic Wyandott Nation lands that were placed in U.S. Treasury trust accounts.” Id. ¶ 72.
Plaintiff’s “Category Two trust funds are derived from easements for grants of rights-of-
way for the use of two tracts of the Huron Cemetery trust land for Kansas City, Kansas
streets since 1857.” Id. ¶ 73.

       The Wyandot Nation commenced this action on June 1, 2015 by filing a complaint
against the United States for money damages arising from the Government’s alleged breach
of trust and fiduciary obligations owed to the Wyandot Nation. The complaint contains
the following four causes of action: (1) breach of fiduciary duties based on a failure to
provide a full, accurate, and timely accounting of Category One treaty trust funds; (2)
breach of fiduciary trust responsibilities based on a failure to collect, deposit, account for,
and invest trust funds that should have been collected for use of Huron Cemetery trust lands
by the City of Kansas City, Kansas; (3) mismanagement of Category One treaty trust funds

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  According to the Wyandot Nation, “[t]he Wyandotte Tribe of Oklahoma was formerly part of the
Wyandotte Tribe of Indians and consists of members of the Wyandotte Tribe of Indians residing in
Oklahoma that splintered off from the Wyandotte Tribe of Indians, and reorganized as a separate tribe under
Section 3 of the 1936 Oklahoma Indian Welfare Act.” Compl. ¶ 2 (citing 25 U.S.C. § 503).

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and accounts; and (4) mismanagement of Category Two Huron Cemetery trust funds. Id.
¶¶ 75-117. Plaintiff requests full trust fund accountings from the United States based on
the allegations in its first and second claims, and monetary damages from the Government
based on the alleged mismanagement of Plaintiff’s funds and property in its third and fourth
claims.

        On August 28, 2015, Defendant filed a motion to dismiss Plaintiff’s complaint. In
its motion, Defendant contends that Plaintiff’s claims should be dismissed as untimely, for
failure to allege sufficient jurisdictional facts, or for failure to state a claim upon which
relief can be granted. Def.’s Mot. 12-25. Additionally, Defendant argues that Plaintiff
lacks standing to assert any claims regarding the Huron Cemetery. Reply 2-9. Having now
been fully briefed and argued, Defendant’s motion is ready for decision.

                                         Analysis

       I.     Standard of Review

        Jurisdiction is a threshold matter which must be established “before the court may
proceed with the merits[.]” Overview Books, LLC v. United States, 72 Fed. Cl. 37, 40
(2006) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89 (1998)). When
ruling on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1) of the Court of
Federal Claims (“RCFC”), the Court must accept all undisputed factual allegations as true
and draw all reasonable inferences in favor of the plaintiff. Estes Exp. Lines v. United
States, 739 F.3d 689, 692 (Fed. Cir. 2014). The burden lies with the plaintiff to establish
jurisdiction through a preponderance of evidence. Reynolds v. Army & Air Force Exch.
Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The Court will grant a motion to dismiss for
lack of subject matter jurisdiction when it is clear beyond a doubt that there is no set of
facts the plaintiff could prove that would enable this Court to grant relief. See Frymire v.
United States, 51 Fed. Cl. 450, 454 (2002).

        Rule 12(b)(6) authorizes this Court to dismiss an action for failure to state a claim
upon which relief can be granted. Pursuant to RCFC 12(b)(6), the Court must dismiss a
claim if “it appears beyond doubt that the plaintiff can prove no set of facts in support of
his legal claim which would entitle him to relief.” W. Shoshone Nat. Council v. United
States, 73 Fed. Cl. 59, 62 (2006) aff’d, 279 F. App’x 980 (Fed. Cir. 2008) (quoting Conley
v. Gibson, 355 U.S. 41, 46 (1957)). A plaintiff is only required to offer “‘a short and plain
statement,’” showing a plausible claim for relief to survive a motion to dismiss. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley, 355 U.S. 41, 47 (1957)). In
reviewing a motion to dismiss, the Court must accept as true all factual allegations
submitted by the plaintiff. Bell Atl. Corp., 550 U.S. at 555.

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       II.    Discussion

              A. Category One 1867 Treaty Trust Fund Claims

                      1. Breach of Category One Trust Fund Fiduciary Duties and Action
                         for an Accounting

        In its first cause of action, Plaintiff alleges that the United States breached its
fiduciary duty to the Wyandot Nation by failing to provide a full and timely accounting of
Plaintiff’s Category One treaty trust funds. Compl. ¶ 76-77. Specifically, Plaintiff refers
to Schedule A of the 1867 Treaty, which lists “the several items embraced in the sum
agreed to be paid to the Wyandottes” by Article 13 of the 1867 Treaty. Opp’n. 7. Plaintiff
claims the United States “has never made a full financial accounting of the funds described
in Schedule A [Category One], or any accrued interest earned on said funds, from 1867 up
to the filing date” of its complaint. Id. Thus, Plaintiff contends it is “entitled to a full and
complete accounting” of its treaty trust funds pursuant to the American Indian Trust Fund
Management Reform Act of 1994 (“1994 Act”). Compl. ¶¶ 80-84 (citing 25 U.S.C.
§§ 4001-61).

        The Government contends that the Wyandot Nation is not a federally recognized
Indian tribe and therefore the 1994 Act does not apply to it. Reply 14. If Plaintiff is not
entitled to an accounting under the 1994 Act, the Government argues that Plaintiff’s action
for an accounting is otherwise untimely and thus this Court lacks jurisdiction to consider
Plaintiff’s first cause of action. The Court agrees.

        Pursuant to the Federally Recognized Indian Tribe List Act of 1994 (“List Act”),
“the Secretary of the Interior is charged with the responsibility of keeping a list of all
federally recognized tribes.” Federally Recognized Indian Tribe List Act of 1994, Pub. L.
No. 103–454, § 103(6), 108 Stat 4791. As currently codified, section 479a-1 of the List
Act requires the Secretary to “publish in the Federal Register a list of all Indian tribes which
the Secretary recognizes to be eligible for the special programs and services provided by
the United States to Indians because of their status as Indians.” 25 U.S.C. § 479a-1
(emphasis added). The Wyandot Nation of Kansas is not included among the 566 tribal
entities currently recognized by the Secretary in the Federal Register. Indian Entities
Recognized and Eligible To Receive Services From the United States Bureau of Indian
Affairs, 80 Fed. Reg. 1942 (Jan. 8, 2015).

        In relevant part, the 1994 Act, the statute upon which Plaintiff relies to assert its
accounting and mismanagement claims, defines the term “Indian tribe” using identical
language to that found in the List Act. 25 U.S.C. § 4001(2) (defining the term “Indian
tribe” to mean “any Indian tribe, band, nation, or other organized group or community . . .
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which is recognized as eligible for the special programs and services provided by the
United States to Indians because of their status as Indians.”) (emphasis added). The List
Act and the 1994 Act were passed within eight days of each other. Both statutes describe
actions required of the Secretary of the Interior for the benefit of Indian tribes. Although
found in two separate statutes, it is nevertheless reasonable to interpret the use of identical
language as signaling Congress’s intent to refer to the same group of tribes given the fact
that each statute describes the Secretary of the Interior’s responsibilities vis-a-vis Indian
tribes. See Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2004-05 (2012)
(explaining “it is a normal rule of statutory construction that identical words used in
different parts of the same act are intended to have the same meaning.”) (internal citations
omitted); Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007) (stating
that “[a] standard principle of statutory construction provides that identical words and
phrases within the same statute should normally be given the same meaning.”).
Accordingly, the Court holds that as a matter of law, Plaintiff is not federally recognized
pursuant to the List Act and is therefore not entitled to an accounting under the 1994 Act,
which limits eligible tribes to those recognized by the Secretary of the Interior.

       Also, the Court notes that contrary to Plaintiff’s position in this case, Plaintiff has
admitted elsewhere that it is not a federally recognized tribe. See Def.’s Resp. at Ex. 3, ¶ 3
(1998 Settlement Agreement). A 1998 Settlement Agreement executed between the
Wyandot Nation of Kansas and the Wyandotte Tribe of Oklahoma and subsequently
approved by the Bureau of Indian Affairs pursuant to 25 U.S.C. § 81 includes the
stipulation that “the Kansas Wyandot is a non-federally recognized, State of Kansas
recognized, Indian Tribe. . . [.]” Id.

        The Wyandot Nation acknowledges that its “first cause of action dates back to the
Treaty of 1867 and the payment of trust funds in the late 1880s.” Opp’n 17. Based on
Plaintiff’s assertions, it is apparent to the Court that Plaintiff objectively knew, or should
have known of any breach of duty on the part of the Government well before June 1, 2009,
the last date on which Plaintiff’s claim could have accrued in order for Plaintiff’s current
action for an accounting to be timely. 28 U.S.C. § 2501. As Plaintiff is not entitled to an
accounting pursuant to the 1994 Act, which mandates an accounting for “each tribal trust
fund for which the Secretary is responsible,” 25 U.S.C. § 4044, regardless of when the tribe
had knowledge of any wrongdoing, the Court holds that Plaintiff’s action for an accounting
is untimely and therefore this Court lacks jurisdiction to consider Plaintiff’s first cause of
action.




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                      2. Category One Treaty Trust Funds Mismanagement Claim and
                         Request for Monetary Damages

        In its third cause of action, Plaintiff argues that “it has been deprived of substantial
sums of money that it would have received from its Category One treaty trust funds, had
they not been mismanaged by the Federal Government.” Compl. ¶ 107. As detailed above,
Plaintiff claims its Category One trust funds stem from payments listed under Schedule A
of the 1867 Treaty. Admittedly, Plaintiff “is uncertain as to the exact amount of damages
to which it is entitled.” Id. ¶ 108. Nevertheless, Plaintiff contends that “[t]he fact that
uncertainty exists as to the actual amount of damages does not preclude Plaintiff’s legal
right to recover.” Opp’n. 28. The Government argues that Plaintiff’s Schedule A, 1867
Treaty trust fund mismanagement claim is barred by the statute of limitations because those
funds were disbursed and paid out in 1873 and 1888, and therefore accrued no later than
1888. Def.’s Mot. 14-15. Thus, Defendant argues, Plaintiff had until 1894 to advance its
Category One claims. Id. at 14.

       The Wyandot Nation argues that its mismanagement claim is timely because under
the various Department of Interior Appropriations Act riders issued each year from 1990
through 2014, claims for losses due to mismanagement of trust funds do not accrue until
the affected tribe or individual Indian has been furnished with an accounting. See, e.g.,
Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, § 2, 128 Stat. 5, 305-306 (“the
Appropriations Act”). Here, however, the Wyandot Nation is not entitled to an accounting
and therefore cannot rely on the Appropriations Act riders to delay the accrual of its
Category One treaty trust fund claim.

        “A cause of action against the government has first accrued when all of the events
which fix the government’s alleged liability have occurred and the plaintiff was or should
have been aware of their existence.” San Carlos Apache Tribe v. United States, 639 F.3d
1346, 1350 (Fed. Cir. 2011) (internal citation omitted). Plaintiff alleges that the United
States “supposedly paid” the Wyandot Nation its Schedule A funds in 1888. Compl. ¶ 78.
Based on Plaintiff’s own assertion, it is apparent to the Court that Plaintiff objectively knew
or should have known of the events giving rise to its trust fund mismanagement claim by
the late 1880s. Thus, as Plaintiff is not entitled to an accounting under the 1994 Act that
would delay the accrual of its mismanagement claim, its trust fund mismanagement claim
is barred by this Court’s six-year statute of limitations and must be dismissed for lack of
jurisdiction. 28 U.S.C. § 2501.




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              B. Category Two 1867 Treaty Huron Cemetery Easement Claims

                      1. Breach of Fiduciary Duties to Collect and Manage Funds and
                         Action for an Accounting

       In its second cause of action, Plaintiff alleges that the United States has breached its
duty to collect and manage Plaintiff’s Category Two, Huron Cemetery trust funds and has
failed to provide a full, accurate, and timely accounting of those funds. According to
Plaintiff, the Huron Cemetery, an Indian burial ground located on a tract of land in Kansas
City, “is trust land, the legal title of which is held by the Federal Government, and the
beneficial or equitable title of which was held for the Wyandotte Tribe of Indians.” Compl.
¶ 58. Plaintiff argues that the Government holds the Huron Cemetery as “trust land in
reservation status” for the Wyandot Nation because its enrolled members are offspring of
the Wyandotte Tribe of Indians. Id. ¶¶ 59-60. As with Plaintiff’s first cause of action, the
Wyandot Nation claims it is entitled to an audit of its Category Two trust funds and
accounts pursuant to the 1994 Act. Id. ¶ 101. Specifically, Plaintiff requests an accounting
of funds that were or should have been “paid to Plaintiff for easements for grants of rights-
of-way over and across two tracts of Huron Cemetery trust lands.” Opp’n 17.

       The Government argues that the Wyandot Nation lacks standing to assert its Huron
Cemetery claims because it “is not a federally-recognized Indian tribe and is not the
beneficial owner of the Huron Cemetery.” Reply at 4. Additionally, the Government
argues that given Plaintiff’s prior representations in the United District Court for the
District of Kansas, Plaintiff knew or should have known of the right-of-way encroachments
on the Huron Cemetery land more than six years ago. Def.’s Resp. 2-3, Ex. 4 at 24 (quoting
an affidavit by Janith K. English, a Chief of the Wyandot Nation of Kansas, swearing that
“Kansas Wyandots have practiced religious ceremonies, including traditional prayers at the
Huron Cemetery, since its establishment in 1843 to the present time.”).

                             a. Standing

        The Federal Circuit has held that although the Court of Federal Claims is an Article I
court, this Court “applies the same standing requirements enforced by other federal courts
created under Article III.” Anderson v. United States, 344 F.3d 1343, 1350 n.1 (Fed. Cir.
2003). Whether a plaintiff has met these standing requirements is “a threshold
jurisdictional issue,” Myers Investigative & Security Services v. United States, 275 F.3d
1366, 1369 (Fed. Cir. 2002), such that a “lack of standing precludes a ruling on the merits.”
Media Techs. Licensing LLC v. Upper Deck Co., 334 F.3d 1366, 1370 (Fed. Cir. 2003).
To establish standing, a plaintiff must show: (1) that it has suffered an “injury in fact,” an
invasion of a legally protected interest that is “(a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical,” (2) that there is “a causal connection between
                                               7
the injury and the conduct complained of,” and (3) that the injury is likely to be redressed
by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-66 (1992)
(internal citations and quotation marks omitted).

        As the party invoking the jurisdiction of this Court, the Wyandot Nation bears the
burden to establish that it has standing to pursue its Huron Cemetery claims. Myers, 275
F.3d at 1369 (citing, inter alia, Lujan, 504 U.S. at 561). Plaintiff has not met this burden.
In the 1998 Settlement Agreement, both the Oklahoma Wyandotte and the Kansas
Wyandot agreed “that the United States is the record titleholder of the Huron Cemetery.”
Def.’s Resp. at Ex. 2, Part 1, § 2 (1998 Settlement Agreement). Plaintiff does not contradict
this statement in the present litigation. Plaintiff does however contradict its prior assertion
that “the United States claims to hold title to the Huron Cemetery in trust for the Oklahoma
Wyandotte. . . [.]” Id. § 5. Based on this prior assertion, Plaintiff and the Oklahoma
Wyandotte agreed that the Oklahoma Wyandotte would assume full responsibility for
executing whatever documents were necessary to obtain the United States’ approval of
their 1998 Settlement Agreement involving the future use and care of the Huron Cemetery.
Id. Although Plaintiff now maintains that it has a beneficial interest in the Huron Cemetery,
Plaintiff’s prior representations in federal court directly contradict its ability to assert a
claim. See Rocovich v. United States, 933 F.2d 991, 993-94 (Fed. Cir. 1991) (explaining
that when jurisdiction is disputed, this Court may look beyond the pleadings and inquire
into jurisdictional facts to determine whether jurisdiction exists). Given Plaintiff’s
contradictory statements, Plaintiff has not shown that it has suffered an actual and concrete
injury in fact. Therefore, the Court holds that Plaintiff lacks standing to assert its Huron
Cemetery claims.

                             b. Subject Matter Jurisdiction

        Even assuming Plaintiff did have standing to bring its Huron Cemetery claims, those
claims are barred by this Court’s six-year statute of limitations. 28 U.S.C. § 2501. As an
exhibit to its complaint, Plaintiff included a July 12, 1959 newspaper article published in
the Kansas City Kansan that includes photos of the portions of the Huron Cemetery over
which the city built roads using easements for rights-of-way granted by the Federal
Government. Compl. at Ex. B. Given the sworn statement from Ms. Janith K. English, a
Chief of the Wyandot Nation of Kansas, that the Wyandot Nation has been using the Huron
Cemetery since 1843, it is apparent to the Court that Plaintiff knew or should have known
of the events giving rise to its Huron Cemetery claims at some point in the 20th century, if
not the 19th century, thereby triggering the statute of limitations on its Huron Cemetery
claims. See Menominee Tribe of Indians v. United States, 726 F.2d 718, 720 (Fed. Cir.
1984) (explaining that, under 28 U.S.C. § 2501, the six-year statute of limitation runs from
when plaintiff’s claim “first accrue[s]”).

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        As with its Category One claims, Plaintiff argues that because it “has never received
an accounting from the United States pertaining to the trust funds arising from the use of
the Huron Cemetery lands, no statute of limitations has yet accrued on Plaintiff’s Huron
Cemetery Claims.” Pl.’s Sur-Reply 10. However, as previously explained, Plaintiff is not
entitled to an accounting under the 1994 Act. Accordingly, Plaintiff is also not entitled to
a tolling of its claims pursuant to the Appropriations Acts. Therefore, Plaintiff’s Category
Two, Huron Cemetery breach of fiduciary duty and accounting claim is patently untimely
and this Court lacks jurisdiction to consider it.

                      2. Mismanagement of Huron Cemetery Funds and Request for
                         Monetary Damages

        In its fourth cause of action, Plaintiff seeks money damages for the Government’s
alleged mismanagement of Plaintiff’s Huron Cemetery trust funds. For the reasons stated
above, Plaintiff lacks standing to bring its fourth cause of action as it has not shown that it
has a legally protected interest in the Huron Cemetery. Even if Plaintiff could establish
standing, its fourth claim is untimely for the same reasons as are its first three causes of
action. Finally, Plaintiff’s fourth claim fails to state a claim upon which this Court can
grant relief. Given that Plaintiff has failed to show that it has any legal interest in the Huron
Cemetery, Plaintiff will necessarily be unable to prove a “set of facts in support of [its]
legal claim which would entitle [Plaintiff] to relief.” W. Shoshone Nat. Council, 73 Fed.
Cl. at 62 (quoting Conley, 355 U.S. at 46).

                                          Conclusion

       For the reasons explained above, the Government’s motion to dismiss Plaintiff’s
claims is GRANTED. The Clerk is directed to dismiss Plaintiff’s complaint without
prejudice.

       IT IS SO ORDERED.

                                                           s/ Thomas C. Wheeler
                                                           THOMAS C. WHEELER
                                                           Judge




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