                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA


TIMBISHA SHOSHONE TRIBE, et al.,              :
                                              :
                     Plaintiffs,              :
                                              :
           v.                                 : Civil Action No. 10-968 (GK)
                                              :
KENNETH SALAZAR,                              :
Secretary of Interior, et al.,                :
                                              :
                     Defendants.              :



                                 MEMORANDUM OPINION

      Plaintiffs, who are a federally recognized Indian Tribe,

citizens or members of the Tribe, and members of its Tribal

Council, bring this action against Kenneth Salazar in his official

capacity as Secretary of the Department of the Interior; the

Department of the Interior; Timothy Geithner in his official

capacity as Secretary of the Department of the Treasury; and the

Department     of    the    Treasury.    Plaintiffs    seek   declaratory     and

injunctive relief on the grounds that the Western Shoshone Claims

Distribution Act, Pub. L. No. 108-27, 118 Stat. 805 (2004), orders

an unconstitutional taking of tribal property and denies equal

protection      of    the    law    under     the   Fifth   Amendment    of   the

Constitution. This matter is before the Court on Defendants’ Motion

to   Dismiss    [Dkt.      No.   9].   Upon   consideration   of   the   Motion,

Opposition, Reply, and the entire record herein, and for the

reasons set forth below, the Motion to Dismiss is granted.
I.   BACKGROUND

     A.    Factual Background1

     This case concerns the proper distribution of a fund set aside

for the benefit of the nations and tribes constituting the Western

Shoshone Identifiable Group, of which Plaintiff Timbisha Shoshone

Tribe (“the Tribe”) is a member. On August 15, 1977, the Indian

Claims Commission (“ICC”) determined that the United States should

pay the Western Shoshone Identifiable Group $26,145,189.89 (“the

Fund”) in compensation for the taking of a large area of the

Western Shoshone homeland in Nevada and California. See W. Shoshone

Identifiable Group v. United States, 40 Ind. Cl. Comm. 318, 387

(1977) (“the ICC decision”). Pursuant to the ICC decision, the Fund

was appropriated and put into trust at the Treasury Department. The

Fund has remained in the custody of the Treasury Department,

earning interest, ever since.

     The   delay   in   distributing    this   award   results   from   the

particular manner in which ICC judgment funds are parceled out.

Under 25 U.S.C. § 1401 et seq., after money is appropriated to pay

the judgment funds, the Secretary of the Interior must devise a

plan for distributing the funds among the potential beneficiaries


     1
          For purposes of ruling on a motion to dismiss, the
factual allegations of the complaint must be presumed to be true
and liberally construed in favor of the plaintiff. Aktieselskabet
AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat’l Rifle Ass’n of Am., 606 F.2d 1251, 1253 (D.C.
Cir. 1979). Therefore, the facts set forth herein are taken from
the Complaint.

                                  -2-
and submit that plan to Congress. The plan becomes effective unless

Congress enacts a joint resolution disapproving of the plan within

60 days of its submission. Id. at § 1405(a). However,

      “[i]n cases where the Secretary has to submit a
      plan dividing judgment funds between two or more
      beneficiary entities, he shall obtain the consent
      of the tribal governments involved to the proposed
      division. If the Secretary cannot obtain such
      consent within one hundred and eighty days after
      appropriation of the funds for the award or within
      one hundred and eighty days of January 12, 1983, he
      shall submit proposed legislation to the Congress.”

Id. at § 1402(d). In such cases, therefore, Congress must act to

distribute the award.

      After the money relevant to this case was appropriated, the

Western Shoshone Tribes, including the Timbisha Shoshone, declined

to seek distribution of the Fund and instead demanded partial

return of the underlying land for which the Fund was intended to

provide compensation.2 Because the Secretary was unable to obtain

the   tribes’   consent   to   distribute   the   monies,   the   Fund   sat

undisturbed, waiting for Congress to pass a distribution act.

      In 2004, Congress resolved to distribute the Fund by passing

the Western Shoshone Claims Distribution Act (“the Distribution

Act”), Pub. L. No. 108-27, 118 Stat. 805 (2004). The Distribution



      2
          The Government’s Opposition to Plaintiffs’ Preliminary
Injunction Motion [Dkt. No. 24] explains that the relevant Tribal
Councils “uniformly opposed any kind of distribution of the
judgment funds, believing that the distribution of the Judgment
Funds [sic] would preclude them from seeking a return of the
aboriginal lands.” Defs.’ Opp’n to Pls.’ PI Mot. 4.

                                   -3-
Act directs the Secretary of the Interior to establish a roll

consisting of individuals with at least one-quarter degree of

Western Shoshone blood who are citizens of the United States and

living on the date of enactment of the Distribution Act, but who

are not eligible to receive a per capita payment from any other

judgment fund based on an aboriginal land claim. The Secretary of

the Interior is then to distribute the award directly to these

individuals and not to any tribal entities.

     Plaintiffs,   individuals   claiming   to   represent   the   Tribe,

brought this action to challenge the Distribution Act. Plaintiffs’

Complaint alleges that the Distribution Act violates the Takings

Clause of the Fifth Amendment and denies equal protection of the

law under the Fifth Amendment by seizing tribal property––the

Fund––and distributing it to individuals rather than the Tribe.

     B.   Procedural Background

     On June 10, 2010, Plaintiffs filed their Complaint [Dkt. No.

1]. On October 22, 2010, Defendants filed their Motion to Dismiss

[Dkt. No. 9]. On November 22, 2010, the Court granted a Motion for

Leave to File an Amicus Curiae Brief in Support of Defendants’

Motion to Dismiss (“Amicus Curiae”) [Dkt. No. 16] filed by George

Gholson, who claims that he, and not the Plaintiffs, is a member of

the legitimate Tribal Council of the Timbisha Shoshone Tribe. On

December 17, 2010, Plaintiffs opposed Defendants’ Motion to Dismiss




                                  -4-
[Dkt. No. 18]. On January 7, 2011, Defendants filed a Reply [Dkt.

No. 23].

      On January 5, 2011, prior to the filing of Defendants’ Reply,

Plaintiffs filed a Motion for Preliminary Injunction [Dkt. No. 21],

asking the    Court      to preliminarily     enjoin   the   first     phase of

distributions of the Fund, which Defendants indicated would occur

sometime in February. On January 20, 2011, the Court heard oral

argument on both the Motion for Preliminary Injunction and the

Motion to Dismiss. After hearing argument, and for the reasons

stated on the record in open court, the Court denied Plaintiff’s

Motion for Preliminary Injunction [Dkt. No. 26].

II.   STANDARD OF REVIEW

      Defendants ask the Court to dismiss Plaintiffs’ claims under

Rules 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), Plaintiffs bear

the burden of proving by a preponderance of the evidence that the

Court has subject matter jurisdiction. See Shuler v. U.S., 531 F.3d

930, 932 (D.C. Cir. 2008). In reviewing a motion to dismiss for

lack of subject matter jurisdiction, the Court must accept as true

all of the factual allegations set forth in the Complaint; however,

such allegations “will bear closer scrutiny in resolving a 12(b)(1)

motion than in resolving a 12(b)(6) motion for failure to state a

claim.”    Wilbur   v.    CIA,   273    F.   Supp.   2d   119,   122    (D.D.C.

2003)(citations and quotations omitted). The Court may rest its

decision on its own resolution of disputed facts. Id.


                                       -5-
     To   survive   a     motion   to   dismiss    under     Rule   12(b)(6),   a

plaintiff need only plead “enough facts to state a claim to relief

that is plausible on its face” and to “nudge[ ] [his or her] claims

across the line from conceivable to plausible.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “[O]nce a claim has been stated

adequately, it may be supported by showing any set of facts

consistent with the allegations in the complaint.” Id. at 563. A

complaint   will    not    suffice,     however,   if   it    “tenders   ‘naked

assertions’ devoid of ‘further factual enhancement.’” Ashcroft v.

Iqbal, 129 S.Ct. 1937, 1948 (2009) (citing Twombly, 550 U.S. at

557).

     Under the Twombly standard, a “court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs’ success . . . must assume all the allegations in the

complaint are true (even if doubtful in fact) . . . [and] must give

the plaintiff the benefit of all reasonable inferences derived from

the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame

Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotation

marks and citations omitted).

III. ANALYSIS

     Defendants make a number arguments in favor of dismissal.

Under Rule 12(b)(1), Defendants contend that Plaintiffs cannot

establish jurisdiction because (1) Defendants have not waived

sovereign immunity and (2) Plaintiffs’ takings claim must be


                                        -6-
brought in the Court of Federal Claims. Additionally, the Amicus

Curiae brief submitted by George Gholson and endorsed by the

Defendants in their Reply and at oral argument submits that, due to

political strife within the Timbisha Shoshone Tribe, Plaintiffs

lack standing to bring a lawsuit on behalf of the Tribe. Under Rule

12(b)(6), Defendants argue (1) that Plaintiffs have failed to make

allegations supporting a claim against the Treasury Department and

Secretary of the Treasury, (2) that Plaintiffs cannot set forth a

property interest sufficient for a takings claim, and (3) that

Plaintiffs have failed to state a claim for denial of equal

protection. Each argument will be considered in turn.

     A.   Plaintiffs Have Made Sufficient Allegations to Survive a
          Motion to Dismiss Under Rule 12(b)(1)

          1.   Sovereign Immunity Does Not Bar Plaintiffs’ Claims

     Defendants argue that Plaintiffs have failed to demonstrate

that Defendants have waived their sovereign immunity. Defs.’ Mot.

6. Defendants contend that 28 U.S.C. §§ 1331 and 1362, upon which

Plaintiffs rely to invoke the jurisdiction of this Court, do not

waive the United States’ sovereign immunity. Id. at 5-6; see Compl.

¶ 2. Plaintiffs respond that sovereign immunity does not bar suits

for specific relief against the government where the challenged

official action is alleged to be unconstitutional, and that Section

702 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702,

has effected a waiver of sovereign immunity in cases alleging

unconstitutional agency action. Pls.’ Opp’n 2-5.

                               -7-
     Although Defendants are of course correct that suits against

the United States are barred absent a waiver of sovereign immunity,

it is clear that sovereign immunity does not apply to a claim

seeking specific relief “in which the statute or order conferring

power upon the officer to take action in the sovereign’s name is

claimed to be unconstitutional.” Larson v. Domestic & Foreign

Commerce Corp., 337 U.S. 682, 690 (1949); see also Clark v. Library

of   Congress,   750   F.2d   89,   102   (D.C.   Cir.   1984)   (“It   is

well-established that sovereign immunity does not bar suits for

specific relief against government officials where the challenged

actions of the officials are alleged to be unconstitutional or

beyond statutory authority.”).

     Defendants attempt to limit Larson on the ground that “Larson

and its prodigy [sic] concern ultra vires actions on the part of

government officials.” Defs.’ Reply 3. Defendants plainly misread

Larson. The Supreme Court specifically listed (1) cases involving

ultra vires actions by a government officer as well as (2) cases

alleging unconstitutional actions taken by a government officer as

separate examples of cases in which no waiver of sovereign immunity

is required. Larson, 337 U.S. at 689-90. The Supreme Court stated

that “[t]hese two types have frequently been recognized by this

Court as the only ones in which a restraint may be obtained against

the conduct of Government officials.” Id. at 690. Indeed, the

Supreme Court noted that, in the case of action taken pursuant to


                                    -8-
an unconstitutional statute, “the conduct against which specific

relief is sought is beyond the officer’s powers and is, therefore,

not the conduct of the sovereign. The only difference [from an

ultra vires claim] is that in this case the power has been

conferred in form but the grant is lacking in substance because of

its constitutional invalidity.” Id.

       In addition, our Court of Appeals has consistently ruled that

in cases seeking specific, non-monetary relief the “APA’s waiver of

sovereign immunity applies to any suit whether under the APA or

not.” Trudeau v. FTC, 456 F.3d 178, 186 (permitting suit against

the FTC under 28 U.S.C. § 1331) (D.C. Cir. 2006) (quoting Chamber

of    Commerce   v.   Reich,   74   F.3d    1322,   1328   (D.C.   Cir.   1996))

(internal quotations omitted); Clark, 750 F.2d at 102 (“[T]he 1976

amendments to § 702 . . . eliminated the sovereign immunity defense

in virtually all actions for non-monetary relief against a U.S.

agency or officer acting in an official capacity.”).

       Although Plaintiffs do rely on 28 U.S.C. §§ 1331 and 1362 to

invoke this Court’s jurisdiction, rather than Section 702 of the

APA, Plaintiffs also clearly allege that the actions to be taken by

the Defendants under the Distribution Act will constitute agency

action pursuant to an unconstitutional statute. See Compl. ¶¶ 43,

50.




                                      -9-
       In sum, Plaintiffs’ suit is not barred by sovereign immunity

under Larson, 337 U.S. at 690, and sovereign immunity has been

specifically waived in Section 702 of the APA.

            2.      This Court Has Jurisdiction over the Takings Claim

       Defendants       next     argue       that   this    Court     does     not     have

jurisdiction      over     Plaintiffs’         takings     claim.     Defs.’    Mot.     8.

Defendants rely on the Tucker Act, 28 U.S.C. § 1491(a), which vests

jurisdiction in the United States Court of Federal Claims over

suits seeking monetary compensation from the United States under

the    Constitution,       including         takings     claims      under    the     Fifth

Amendment. See Ry. Labor Execs.’ Ass’n v. United States, 987 F.2d

806,    815-16    (D.C.        Cir.    1993)     (“the     Federal    Claims        Court’s

jurisdiction in such cases is exclusive.”).

       Nonetheless, as the Plaintiffs have pointed out, the Supreme

Court    has     held    that        “‘the    presumption     of     the     Tucker     Act

availability must be reversed where the challenged statute, rather

than    burdening       real    or    physical      property,     requires     a     direct

transfer of funds’ mandated by the Government.” Eastern Enterprises

v. Apfel, 524 U.S. 498, 521 (1998)(quoting In re Chateaugay Corp.,

53 F.3d 478, 493 (2d Cir. 1995)). The Supreme Court explained that

requiring Plaintiffs seeking equitable relief––i.e., as in this,

case a declaratory judgment and permanent injunction--barring the

government from distributing funds to wait until that money is

actually disbursed in order to pursue Tucker Act remedies for


                                             -10-
compensation   “‘would     entail     an   utterly      pointless   set   of

activities.’” Eastern Enterprises, 524 U.S. at 521 (quoting Student

Loan Mktg. Ass’n v. Riley, 104 F.2d 397, 401 (D.C. Cir. 1997).

Consequently, the Supreme Court ruled that “it is within the

district courts’ power to award such equitable relief.” Id. at 522.

Hence, Plaintiffs’ claim seeking to enjoin distribution of the Fund

may be brought in this Court rather than the Court of Federal

Claims.

          3.      Plaintiffs   Have   Made  Sufficient  Allegations
                  Regarding Standing to Survive a Motion to Dismiss
                  Under Rule 12(b)(1)

     Finally, Defendants submit that these Plaintiffs do not, in

fact, represent the Timbisha Shoshone Tribe and therefore have no

standing to advance a claim on behalf of the Tribe. This argument

was first presented by George Gholson in his amicus curiae brief.

According to Mr. Gholson, the Timbisha Shoshone Tribe is currently

embroiled in an internal political dispute, with two factions each

claiming to be the legitimate Tribal Council of the Timbisha

Shoshone. As a result, the Bureau of Indian Affairs currently

recognizes no Tribal Council for the Timbisha Shoshone. Amicus

Curiae 1-2.

     Defendants    argue   that     Plaintiffs   have    not   sufficiently

demonstrated that they represent the Tribe in an official capacity.

Therefore, Defendants argue, Plaintiffs’ case must be dismissed




                                    -11-
because they have no standing as individuals to assert an injury

suffered by the Tribe.3

     The “irreducible constitutional minimum” of standing requires

plaintiffs to demonstrate (1) that they have suffered an “injury in

fact,” (2) that there is “a causal connection between the injury

and the conduct complained of,” and (3) that it is “likely, as

opposed to merely speculative, that the injury will be redressed by

a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992) (internal quotations omitted); Shays et al. v.

F.E.C., 414 F.3d 76, 83 (D.C. Cir. 2005). In addition to the

constitutional requirements for standing, plaintiffs must satisfy

the prudential limitations, including assertion of their “own legal

rights and interests, and cannot rest [their] claim to relief on

the legal rights or interests of third parties.” Valley Forge

Christian Coll. v. Ams. United for Separation of Church and State,

Inc., 454 U.S. 464, 474 (1982) (quoting Warth v. Seldin, 422 U.S.

490, 499 (1975)) (internal quotations omitted).

     Defendants argue that because the BIA does not recognize them

as representatives of the Tribe, Plaintiffs are merely individuals

attempting to vindicate tribal rights. Defs.’ Opp’n to Pls.’ PI

Mot. 9. Defendants claim that, without BIA recognition, “Plaintiffs



     3
          Plaintiffs have conceded that “[a]ll of the individual
Plaintiffs sue only on behalf of the Tribe, not on their own behalf
as individual members of the Tribe.” Pls.’ Reply in Support of Mot.
for PI 7 [Dkt. No. 25].

                               -12-
cannot bring claims on behalf of the Timbisha” because “tribal

members lack standing to protect a tribe’s rights.” Id. At least

one court has agreed with the government and held that individual

members have no standing to claim an injury on behalf of the tribe.

See Hackford v. Babbitt, 14 F.3d 1457, 1466 (10th Cir. 1994)

(holding that prudential limitations bar a plaintiff from claiming

an injury to an indivisible tribal asset); see also James v. Watt,

716 F.2d 71, 72 (1st Cir. 1983) (noting that individual Indians

have no cause of action under the Indian Nonintercourse Act because

the Nonintercourse Act was designed to protect the land rights only

of tribes).

      However, Defendants fail to provide legal support for their

theory that standing to represent tribal interests is premised on

BIA   recognition.   Importantly,     Defendants     misread   Golden   Hill

Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 58 (2d Cir.

1994) (“Golden Hill Tribe”), the principal case on which they rely

in    their   Opposition   to   Plaintiffs’    Motion    for   Preliminary

Injunction. See Defs.’ Opp’n to Pls.’ PI Mot. 9.

      Critically,    the   Second   Circuit   held   that   the   plaintiff

successfully pled standing as an Indian tribe despite lack of

recognition by the BIA. Golden Hill Tribe, 39 F.3d at 58. The court

relied on the plaintiff’s allegations that it represented an Indian

tribe, and not on the absence of a BIA determination, in assessing

standing at the motion to dismiss stage. Id. at 58-59. Thus, Golden


                                    -13-
Hill Tribe supports Plaintiffs’, rather than Defendants’, position,

since the Second Circuit permitted a plaintiff lacking any BIA

recognition   of    tribal   status    to    satisfy    the   requirements    of

standing simply “by declaring that it is an Indian tribe.” Id. at

58.

      Defendants’    conclusion   that       Golden    Hill   Tribe   held   that

plaintiffs could not establish standing because “members could not

assert [the] tribe’s claim to land” is simply wrong. Defs.’ Opp’n

to Pls.’ PI Mot. 10. Although the Second Circuit remanded the case

with instructions to stay the proceedings “pending the BIA’s

consideration of Golden Hill’s claim for tribal recognition,” those

instructions did not relate to the standing inquiry. Golden Hill

Tribe, 39 F.3d at 61. Rather, the Second Circuit ordered the stay

under the doctrine of primary jurisdiction. Id. at 58. Unlike this

case, Golden Hill Tribe involved a claim under the Nonintercourse

Act,4 which requires plaintiffs to prove tribal status. See id. at

59. The Second Circuit held that “the BIA is better qualified by

virtue of its knowledge and experience to determine at the outset

whether Golden Hill meets the criteria for tribal status.” Id. at

60. In other words, the Second Circuit deferred to the judgment of



      4
      The Nonintercourse Act provides, “No purchase, grant, lease,
or other conveyance of lands, or of any title or claim thereto,
from any Indian nation or tribe of Indians, shall be of any
validity in law or equity, unless the same be made by treaty or
convention entered into pursuant to the Constitution.” 25 U.S.C. §
177 (1988).

                                      -14-
the BIA for determining tribal status under the Nonintercourse

Act––an issue irrelevant to standing. See id. at 58-61.

      As the Supreme Court has held, “[a]t the pleading stage,

general    factual    allegations      of    injury   resulting   from    the

defendant’s conduct may suffice, for on a motion to dismiss we

presume that general allegations embrace those specific facts that

are necessary to support the claim.” Lujan, 504 U.S. at 561

(internal quotations omitted). Here, Plaintiffs have alleged that

they are members of the governing Tribal Council of the Timbisha

Shoshone. Compl. ¶¶ 4-10. The Court must accept that allegation as

true for purposes of a Motion to Dismiss. Such allegations are

sufficient to survive a motion to dismiss for lack of standing

under Rule 12(b)(1).

      B.   Plaintiffs Have Failed to State a Claim for Relief Under
           Rule 12(b)(6)

           1.    Plaintiffs Have Failed to State a Claim Against the
                 Department of Treasury and the Secretary of the
                 Treasury

      As a preliminary matter, Defendants argue that Plaintiffs’

“allegations are insufficient to find that Plaintiffs have stated

a viable claim against the Treasury Department and the Secretary of

Treasury.” Defs.’ Mot. 7. Defendants observe that “Plaintiffs fail

to   identify   any   action   that    the   Treasury   Department   or   the

Secretary of the Treasury have taken or will take under the

Distribution Act.” Id. Plaintiffs protest that injunctive relief

must be granted against the Treasury Department and Secretary of

                                      -15-
the Treasury because “[i]t can be inferred that, even though the

Distribution   Act   refers    to   distribution    of   the   funds   by    the

Secretary of Interior, the Secretary of the Treasury and Department

of the Treasury will play a necessary role in the administration of

the distribution, because they have actual custody of the funds.”

Pls.’ Opp’n 37-38.

     As Defendants note, the sole allegation made specifically

against Secretary Geithner is that he is sued in his official

capacity as Secretary of the Treasury. Compl. ¶ 13. The sole

allegation made specifically against the Treasury Department is

that it “is named as a Defendant, because the fund of money is now

held in an account in the United States Treasury.” Id. at ¶ 14.

     The Distribution Act mandates that the Secretary of the

Interior “shall make a per capita distribution of 100 percent of

the Western Shoshone judgment funds,” and, significantly, makes no

mention of the Treasury Department or Secretary. 118 Stat. 805, §

3(4)(c)(1). Even with “the benefit of all reasonable inferences

derived from the facts alleged,” there is no allegation that the

Treasury Department or the Secretary of the Treasury is required or

authorized   to   take   any   action      under   the   Distribution       Act.5



     5
          As noted above, the Distribution Act only calls for the
Secretary of the Interior to distribute the Fund. Therefore, to the
extent Treasury would take any action relating to the Fund, it
would be at the direction of the Secretary of the Interior. In
practical terms, then, an injunction against the Secretary of the
Interior would suffice to remedy Plaintiffs’ alleged harm.

                                    -16-
Aktieselskabet AF 21. November 2001, 525 F.3d at 17. Therefore,

Plaintiffs have failed to allege a claim upon which relief can be

granted against the Treasury Department or the Secretary of the

Treasury.

            2.    Plaintiffs Have Failed to State a Claim Under the
                  Takings Clause

     The core of Plaintiffs’ takings claim is that the Fund is the

property    of   the   tribes   that   make   up   that   Western   Shoshone

Identifiable Group and not of individual Western Shoshone Indians.

Plaintiffs argue that the ICC provided relief for the taking of the

Tribe’s communal property. Therefore, according to the Plaintiffs,

distributing the Fund to individual Western Shoshones would be an

unconstitutional       taking   of   tribal   property    under   the   Fifth

Amendment. Pls.’ Opp’n 15-18. Defendants argue that no property

right in ICC awards vests in any entity or individual until the

award is actually distributed. Defs.’ Mot. 11-12.

     In order to make out a claim under the Takings Clause of the

Fifth Amendment, Plaintiffs must “show that the government, 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) (citing Hodel v. Va. Surface Mining &

Reclamation Ass’n, 452 U.S. 264, 294 (1981)). Therefore, Plaintiffs

must allege a “cognizable property interest” to state a claim.

Adams, 391 F.3d at 1218.



                                     -17-
       Plaintiffs        contend   that    the    Tribe     obtained    an   ownership

interest in the Fund as soon as the money was deposited in the Fund

account pursuant to the ICC decision. Pls.’ Opp’n 18-19. Plaintiffs

rely       on   United    States   v.     Dann,    which     held    that    “payment”

extinguishing aboriginal title to the land at issue in the ICC

decision occurred at the time the money was deposited into the Fund

account. 470 U.S. 48, 50 (1985) (“Once the money was deposited into

the trust account, payment was effected.”).6

       Nonetheless, there is a great deal of authority indicating

that no individual or entity possesses a property interest in an

ICC judgment fund until that fund has actually been distributed. In

particular, Defendants rely on LeBeau v. United States, 474 F.3d

1334 (Fed. Cir. 2007), decided long after Dann. LeBeau considered

a claim for money damages by certain lineal descendants of a tribe

because of the Government’s failure to timely distribute judgment

funds. Id. at 1336. The Federal Circuit explained that “[i]f the

descendants’ rights in the Judgment Fund had vested (that is, the

lineal      descendants     had    already       received    their     distribution),

Congress could not have deprived them of their share of the



       6
       Plaintiffs also cite to a decision of the Court of Federal
Claims finding that, in a suit claiming a breach of fiduciary duty
by the Government regarding this particular Fund, “the 2004
Distribution Act has no effect whatsoever on the beneficial
interests of the Tribal Plaintiffs in the Western Shoshone tribal
trust funds held by the Government.” Western Shoshone Identifiable
Group v. United States, No. 1:06-cv-00896-EJD (Fed. Cl. Nov. 24,
2009). The Court did not find this ruling helpful.

                                          -18-
Judgment Fund without damages consequences under either a breach-

of-trust claim or a takings claim.” Id. at 1342 (emphasis added).

The court went on to say that the “lineal descendants’ right to

their per capita share of the Judgment Fund was always subject to

modification    by   Congress       until        distribution     of   their   share

occurred, which would vest the lineal descendants’ rights in the

Judgment   Fund.”    Id.   at     1343.     Therefore,     the    court   reasoned,

Congress was free to reallocate the share of the judgment fund at

issue in that case at any time prior to distribution “because the

lineal descendants never acquired vested rights in their share of

the Judgment Fund.” Id. In short, the Federal Circuit, whose

rulings bind this Court, held that no one can claim a vested

property interest in an ICC judgment fund until distribution of the

award.7

     This result is in accord with the significant body of law

concerning   Congress’s         plenary    power    over   Indian      property   and

especially the distribution of ICC judgment funds. The Supreme

Court has emphasized Congress’s “traditional broad authority over

the management and distribution of lands and property held by

recognized     tribes,     an    authority        drawn    both   explicitly      and

implicitly from the Constitution itself” and has noted that “[t]his

authority of Congress to control tribal assets has been termed ‘one



     7
           Interestingly, the LeBeau opinion makes no mention of
Dann.

                                          -19-
of the most fundamental expressions, if not the major expression,

of the constitutional power of Congress over Indian affairs.’” Del.

Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 85-86 (1977) (quoting F.

Cohen, Handbook of Federal Indian Law 94, 97 (1942)).

       In light of these pronouncements, the Supreme Court has held

that    the   appropriate   standard   of    judicial   review    for    acts

distributing tribal funds “ordinarily requires the judiciary to

defer to congressional determination of what is the best or most

efficient use for which tribal funds should be employed” and a

legislative judgment “should not be disturbed as long as the

special treatment can be tied rationally to the fulfillment of

Congress’     unique   obligation   toward   the   Indians.”     Id.    at   85

(internal quotations omitted). Elsewhere, the Supreme Court has

“recognized the wideranging congressional power to alter allotment

plans until those plans are executed.” Northern Cheyenne Tribe v.

Hollowbreast, 425 U.S. 657, 656-67 (1976).

       The structure of 25 U.S.C. § 1401 et seq. further demonstrates

that Congress did not create a property interest in ICC awards

until distribution. See Adams, 391 F.3d at 1219 (“‘existing rules

or understandings that stem from an independent source,’ such as

state, federal, or common law, create and define the dimensions of

property interests for purposes of establishing a cognizable right

and hence a potential taking.”) (quoting Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1030 (1992)). As discussed above, 25 U.S.C.


                                    -20-
§§ 1402 & 1405 give Congress--and not the ICC--final say over the

proper distribution of any award (and, it should be noted, have in

this case resulted in a delay of over thirty years between the

award of    the   judgment   fund    and    its   distribution    pursuant     to

congressional act). As the Court of Claims has noted, determining

the identity of the recipient of an ICC award was reserved to the

competence of the legislative and executive branches and not given

to the ICC or the courts. Cherokee Freedmen and Cherokee Freedmen’s

Assoc. v. United States, 195 Ct. Cl. 39, 1971 WL 17825, at *5-7

(Ct. Cl. 1971).

      Finally, although Dann does contain language favorable to the

Plaintiffs, the decision does not speak directly to the issue

presented here. Plaintiffs quote Dann as stating, “the Indian Claim

Commission ordered the Government qua judgment debtor to pay $26

million    to   the   Government    qua    trustee   for   the   Tribe   as   the

beneficiary.” Dann, 470 U.S. at 50; Pls.’ Opp’n 18. Plaintiffs

argue that this statement leads to the conclusion that “payment of

the judgment fund to the tribes, and not to individual lineal

descendants of the Western Shoshone Identifiable Group, shows

beyond doubt that the tribes own the judgment fund and that the

government holds the funds in trust for the tribes.” Pls.’ Opp’n

18.




                                     -21-
     Plaintiffs read Dann’s language too broadly. Dann did not

conclude that Congress made actual distribution to the Tribe, or

that the Tribe had a vested property interest in the Fund. Rather,

Dann held only that aboriginal title to the land was extinguished

when the money was appropriated and placed in an account at the

Department of Treasury. Dann, 470 U.S. at 41, 44-45 (“The question

presented in this case is whether the appropriation of funds into

a Treasury account . . . constitutes ‘payment’ under § 22(a) of the

Indian Claims Commission Act.”).

     As the court in Dann observed, “the Government was at once a

judgment debtor, owing $26 million to the Tribe, and a trustee for

the Tribe responsible for ensuring that the money was put to

productive use and ultimately distributed in a manner consistent

with the best interests of the Tribe.” 470 U.S. at 49-50. Hence,

the Government may have made “payment” sufficient to extinguish the

tribe’s aboriginal rights to the land in question, but it does not

necessarily follow that any particular entity or member of the

tribes at that point obtained a property interest in the Fund.

Rather, in its role as trustee, Congress retained authority to

distribute the Fund “in a manner consistent with the best interests

of the Tribe.” Id.




                               -22-
     Because the Timbisha Shoshone Tribe does not have a property

interest in the Fund under the Fifth Amendment, Plaintiffs have

failed to state a claim for which relief can be granted under the

Takings Clause.

           3.        Plaintiffs Have Failed to State a Claim for Denial
                     of Equal Protection

     Plaintiffs’ second cause of action alleges that the Defendants

“deprive the Plaintiffs of due process of law and the equal

protection     of    the    law   in    violation     of    the      equal    protection

guarantee of the Fifth Amendment to the Constitution” because the

actions   to    be    undertaken       by    the   Defendants        pursuant    to     the

Distribution     Act    “are      invidious,       harmful,    and     detrimental       to

Plaintiffs     and    are   based      on    the   Indian     race    or     ancestry    of

Plaintiffs.” Compl. ¶¶ 48-50. Plaintiffs argue that the “challenged

Act specifies a group for particular treatment, for the taking of

their money, in a way that is racial or ancestral.” Pls.’ Opp’n 31.

     Plaintiffs make the novel argument that the Distribution Act

violates the Equal Protection Clause because it defines the Fund as

those “funds appropriated in satisfaction of the judgment awards

granted to the Western Shoshone Indians.” 118 Stat. 805, § 2(2)(A)

(emphasis added). Plaintiffs argue that this definition, along with

the inclusion of “the Western Shoshone identifiable group” in the

title of the Act, demonstrates that the Act unconstitutionally

targets the “Western Shoshone Identifiable Group.” Pls.’ Opp’n 31.

Defendants argue that Plaintiffs’ claim must be dismissed because

                                            -23-
“rational basis review applies in this case–and the Distribution

Act is undoubtedly rationally related to a legitimate government

interest.” Defs.’ Mot. 13.

                a.   The Distribution Act Is Subject to Rational
                     Basis Review

     As a threshold matter, parties disagree on what degree of

review should be applied under Plaintiffs’ equal protection claim.

Plaintiffs contend that “a classification that explicitly describes

the people or groups on which a particular harm is imposed simply

as an ‘Indian tribe’ or ‘Indians,’ or of ‘Indian descent’ is indeed

an ancestral or racial classification . . . [and] calls for strict

scrutiny.” Pls.’ Opp’n 32.

     However, it is abundantly clear that the “standard of review

for judging the constitutionality of Indian legislation under the

Due Process Clause of the Fifth Amendment . . . focuses on whether

the statute’s objectives are tied rationally to the fulfillment of

Congress’ unique obligation toward the Indians.” Littlewolf v.

Lujan, 877 F.2d 1058, 1064 (D.C. Cir. 1989) (quoting Weeks, 430

U.S. at 84 (1977)) (internal quotations omitted). In Morton v.

Mancari, which Plaintiffs agree is the leading case on equal

protection in this context, the Supreme Court upheld a statute

mandating   preference   for   Indians   in   BIA   hiring   because   “the

preference is reasonably and directly related to a legitimate,

nonracially based goal.” 417 U.S. 535, 554 (1974). The Court

emphasized that the “plenary power of Congress to deal with the

                                  -24-
special problems of Indians is drawn both explicitly and implicitly

from the Constitution itself.” Id. at 551. Therefore, federal

legislation––as opposed to state or local––must receive rational

basis review. See id.; Littlewolf, 877 F.2d at 1064.

     The   cases   Plaintiffs   do   cite   for   the   proposition   that

government actions classifying American Indians as an ancestry or

race should be reviewed under strict scrutiny are unavailing. None

of those cases challenged the validity of the classifications

Congress enacted in federal legislation, and therefore Morton was

not controlling. See Tuttle v. Kaiser Co., 863 F.2d 601, 601 (8th

Cir. 1988) (claiming discrimination by a private employer under

Title VII of the Civil Rights Act); Morrison v. Garraghty, 239 F.3d

648, 652 (4th Cir. 2001) (challenging a policy of the Virginia

Department of Corrections under 42 U.S.C. § 1983); Fallon Paiute-

Shoshone Tribe v. City of Fallon, 174 F. Supp. 2d 1088, 1090 (D.

Nev. 2001) (claiming a violation of equal protection against a city

under 42 U.S.C. § 1983). Therefore, the particularly deferential

review accorded to federal legislation regarding American Indians

naturally did not apply.

     Finally, Plaintiffs attempt to distinguish Morton on the

ground that, in Morton, “the individuals subject to preference were

significantly defined in the statute in political terms: membership

in a tribe that, in turn, has a recognized political relationship

with the United States.” Pls.’ Opp’n 34. Plaintiffs argue that “the


                                 -25-
kind of classification in this [Distribution] Act is, in fact and

in history, simply an ancestral or racial classification.” Id. at

34. This argument is particularly unconvincing in light of the

actual statutory language challenged by the Plaintiffs.

     The principal language in the Distribution Act challenged by

the Plaintiffs defines the term “Western Shoshone joint judgment

funds” as “the funds appropriated in satisfaction of the judgment

awards granted to the Western Shoshone Indians in Docket Numbers

326-A-1 and 326-A-3 before the United States Court of Claims.” 118

Stat.   805,   §   2(2)(A).   Plaintiffs   believe   that   this   language

indicates a racial classification of “Western Shoshone Indians.”

Pls.’ Opp’n 31. However, this language plainly does not target the

Western Shoshone Indians “for particular treatment, for the taking

of their money, in a way that is racial or ancestral.” Id. This

language merely identifies the particular fund of money subject to

provisions of the Distribution Act. In this sense, the Distribution

Act classifies the persons affected not by race or ancestry, but

rather in terms of their relationship to the ICC decision.

     Therefore, in considering Plaintiffs’ equal protection claim,

the Court must determine only whether the Distribution Act “is

reasonably and directly related to a legitimate, nonracially based

goal.” Morton, 417 U.S. at 554; Littlewolf, 877 F.2d at 1064.




                                   -26-
                   b.   The Distribution Act Has a Rational Basis

     Under rational basis review, “legislation is presumed valid

and will be sustained if the classification drawn by the statute is

rationally    related    to    a   legitimate       state   interest.”   City     of

Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440 (1985).

Further, the judiciary must “defer to congressional determination

of what is the best or most efficient use for which tribal funds

should be employed.” Weeks, 420 U.S. at 84.

     Here, Defendants clearly cite to four legitimate government

purposes:    (1)    “avoiding      delay,”    (2)    “providing   payment    on    a

historic claim,” (3) “acting in furtherance of the United States’

trust relationship,” and (4) “complying with the wishes of the vast

majority of the tribal members who overwhelmingly desire to receive

the judgment awarded to them more than twenty years ago.” Defs.’

Mot. 15. Defendants contend that Congress addressed the reasons

behind its policy choices during the legislative process. For

example, during debate on the Senate floor, Senator Harry Reid, the

bill’s sponsor, noted that the “final distribution of this fund has

lingered for more than twenty years, and the best interests of the

Tribe will not be served by a further delay in enacting this

legislation.” 147 Cong. Rec. S5618-01 (2001). Senator Reid went on

to say that the bill would “provide payments to eligible Western

Shoshone tribal members” and that “[t]he Western Shoshone Steering

Committee,   a     coalition    of   Western    Shoshone     individual     tribal


                                       -27-
members, has officially requested that Congress enact legislation

to   affect   this   distribution.”   Id.;   Defs.’    Mot.   18.   Finally,

Defendants submit that “Congress’ prior experience with per capita

distributions of awards pursuant to ICC judgments has proven this

to be a workable solution that has the potential to settle a claim

which has been unresolved for a great length of time.” Id. at 19.

      Plaintiffs argue, inter alia, that “Defendants did not explain

how or why avoiding delay . . . is a sensible or legitimate

rationale for taking a money fund belonging to the Plaintiff Tribe

and giving it to others” and that “providing payment on a claim .

. . is appropriate but does not explain or justify paying to others

money that the Claims Commission awarded to the tribes.” Pls.’

Opp’n 36. Whatever the merits of Plaintiffs’ policy arguments in

favor of a different distribution formula, they do not invalidate

the rationality or reasonableness of Congress’s actions. See, e.g.,

Heller v. Doe, 509 U.S. 312, 319 (1993) (“rational-basis review in

equal protection analysis is not a license for courts to judge the

wisdom, fairness, or logic of legislative choices.”) (internal

quotations omitted); City of New Orleans v. Dukes, 427 U.S. 297,

303 (1976) (“the judiciary may not sit as a superlegislature to

judge   the    wisdom    or   desirability     of     legislative     policy

determinations made in areas that neither affect fundamental rights

nor proceed along suspect lines.”); Hedgepeth v. Washington Metro.




                                  -28-
Area Transit Auth., 386 F.3d 1148, 1157 (D.C. Cir. 2004) (“it is

not our place to second-guess such legislative judgments.”).

      Although the Court is certainly mindful of the long history

regarding distribution of the Fund, as well as the impoverished

condition of the Tribe, as recounted in Plaintiffs’ briefing and at

oral argument, the Court must defer to Congress’s rational judgment

regarding the appropriate apportionment of the Fund. Weeks, 420

U.S. at 84. The proper distribution of an ICC award among many

competing interests and desires, be they individual or tribal, is

a judgment that is given to Congress’s discretion. See Cherokee

Freedmen, 195 Ct. Cl. 39, 1971 WL 17825, at *5-7. Therefore,

Plaintiffs have failed to state a claim for which relief can be

granted for denial of equal protection of the law.

IV.   CONCLUSION

      For the reasons set forth above, the Defendants’ Motion to

Dismiss is granted.

      An Order will issue with this opinion.




                                /s/
March 1, 2011                  Gladys Kessler
                               United States District Judge


Copies to: counsel of record via ECF



                               -29-
