Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ SAMISH INDIAN NATION, a federally ) recognized tribe, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) ___________________________________ )

Case No. 02-1383L Chief Judge Edward J. Damich

UNITED STATES' MOTION TO DISMISS Defendant, UNITED STATES OF AMERICA, respectfully moves, pursuant to Rules 12(b)(1) of the United States Court of Federal Claims ("RCFC"), for dismissal of Plaintiff's second Amended Complaint. This Court lacks jurisdiction over Plaintiff's claims because none of the statutes cited by Plaintiff in its Second Amended Complaint can fairly be interpreted as mandating compensation. A memorandum in support of this motion follows.

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ SAMISH INDIAN NATION, a federally ) recognized tribe, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) ___________________________________ )

Case No. 02-1383L Chief Judge Edward J. Damich

UNITED STATES' MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. The Bureau of Indian Affairs' Tribal Priority Allocation Funding Mechanism Does Not Establish Fiduciary Duties that Can Fairly Be Interpreted As Money-Mandating. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 The Housing Improvement Program Is Not Money-Mandating. . . . . . . . 21

2. B.

Plaintiff's Program Statutes Are Not Money-Mandating. . . . . . . . . . . . . . . . . . . 24 1. The 1937 Housing Act and Its Amendments Do Not Establish Money-Mandating Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 The Indian Health Care Improvement Act and Amendments are Not Money-Mandating. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 The Supplemental Nutrition Program for Women Infants and Children Is Not Money-Mandating. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 The Commodity Food Program Is Not Money-Mandating. . . . . . . . . . . 36 The Food Stamp Program Is Not Money-Mandating. . . . . . . . . . . . . . . . 37 The Job Training Statutes Are Not Money-Mandating.. . . . . . . . . . . . . . 39

2.

3.

4. 5. 6. C.

Plaintiff's Alleged Block Grant Statutes Are Not Money-Mandating. . . . . . . . . 40 1. The State and Local Fiscal Assistance Act of 1972 Is Not MoneyMandating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 The OBRA Block Grants Are Not Money-Mandating. . . . . . . . . . . . . . . 43

2. D. III.

The Appropriations Acts Are Not Money-Mandating.. . . . . . . . . . . . . . . . . . . . . 46

PLAINTIFF'S CLAIMS MUST BE DISMISSED BECAUSE THE APPROPRIATIONS WERE CAPPED AND HAVE BEEN DISBURSED... . . . . . . . . . . . . . . . . . . . . . . . . . . 47

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IV.

PLAINTIFF HAS NOT ESTABLISHED A FIDUCIARY DUTY GIVING RISE TO A CLAIM FOR DAMAGES WITHIN THE TUCKER ACT OR INDIAN TUCKER ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

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TABLE OF AUTHORITIES FEDERAL CASES Allred v. United States, 33 Fed. Cl. 349 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . 6 Bowen v. Massachusetts, 487 U.S. 879 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 42 Carter v. United States, 62 Fed. Cl. 66 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Cherokee Nation of Oklahoma v. United States, 69 Fed. Cl. 148 (2005) . . . . . . . . . . . . . . . 10, 27 City of Houston v. HUD, 24 F.3d 1421 (D.C. Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 City of Manassas Park v. United States, 633 F.2d 181 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . 25 City of Newark v. Blumenthal, 457 F. Supp. 30 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43 Commodity Futures Trading Com'n v. Nahas, 738 F.2d 487 (D.C. Cir. 1984) . . . . . . . . . . . . . . 4 Eastport S.S. Corp. v. United States, 372 F.2d 1002 (Ct. Cl. 1967) . . . . . . . . . . . . . . . . . 6, 11, 28 Fields v. United States, 423 F.2d 380 (Ct. Cl. 1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 21, 29 Greenlee County v. United States, 68 Fed. Cl. 482 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Hoopa Valley Tribe v. Christie, 812 F.2d 1097 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . 16 Hopi Tribe v. United States, 55 Fed. Cl. 81 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 27 Katz v. Cisneros, 16 F.3d 1204 (Fed. Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Kraft Foods v. Commodity Credit Corp., 164 F. Supp. 168 (D. Wis. 1958) . . . . . . . . . . . . . . . . 36 Lincoln v. Vigil, 508 U.S. 182 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-16, 22, 30, 46 Malone v. United States, 34 Fed. Cl. 257 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 41, 42 McDonald v. United States, 37 Fed. Cl. 110 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Mitchell v. United States, 445 U.S. 535 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-7, 11, 12 Mitchell v. United States, 463 U.S. 206 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 11­12, 17, 21 iii

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Nat'l Ctr. for Mfg. Sci. v. United States, 114 F.3d 196 (Fed. Cir. 1997) . . . . . . . . . . . . . . . . 8, 42 Navajo Nation v. United States, 68 Fed. Cl. 805 (2005) . . . . . . . . . . . . . . . . . . . . . . 11-12,15, 21 OPM v. Richmond, 496 U.S. 414 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 Fort Sill Apache Tribe of Oklahoma v. United States, 477 F.2d 1360 (Ct. Cl. 1973) . . . . . 4, 21, 29 Osage Nation v. United States, 57 Fed. Cl. 392 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Perri v. United States, 340 F.3d 1337 (Fed. Cir. 2003) . . . . . . . . . . . . . 10, 11, 24, 28, 34, 35, 39, 46 Quick Bear v. Leupp, 210 U.S. 50 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 20, 46 Renne v. Geary, 501 U.S. 312 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746 (Fed. Cir. 1988) . . . . . . . . . . . . . . . . 5 Samish Indian Nation v. United States, 419 F.3d 1355 (2005) . . . . . . . . . . . 4, 7, 9-11, 15-17, 21, 22, 27, 28, 31-34, 36, 37, 43, 44, 49 Shoshone-Bannock Tribes of Fort Hall Reservation v. Shalala, 988 F. Supp. 1306 (D. Or. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Star-Glo Assoc., LP v. United States, 59 Fed. Cl. 724 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 47 United States Department of Energy v. Ohio, 503 U.S. 607(1992) . . . . . . . . . . . . . . . . . . . . . . . 4 United States ex rel. Norton Sound Health Corp. v. Bering Strait School Dist., 138 F.3d 1281 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 United States v. Cherokee Nation of Oklahoma, 480 U.S. 700 (1987) . . . . . . . . . . . . . . 15, 18, 48 United States v. King, 395 U.S. 1 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 United States v. Navajo Nation, 537 U.S. 488 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States v. Testan, 424 U.S. 392 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 25 United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003) . . . . . . . . . . 11-13, 15, 17, 21 iv

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Vigil v. Andrus, 667 F.3d 931 (10th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

FEDERAL STATUTES 110 Stat. 3009-205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 5 U.S.C. § 5596 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 7 U.S.C. §§ 2011-2036 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13, 15, 17, 21 12 U.S.C. § 1701q . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 25 U.S.C. § 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 25 U.S.C. § 452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 11 25 U.S.C. § 1601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26 25 U.S.C. § 1621 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 27, 42, 43 25 U.S.C. § 1680a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 25 U.S.C. § 1901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16­18 25 U.S.C. § 1902 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 25 U.S.C. § 1931. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 18, 48 25 U.S.C. § 2401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10, 21, 27, 29 25 U.S.C. § 2402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 25 U.S.C. § 3201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 25 U.S.C. § 3208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 25 U.S.C. § 3302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

28 U.S.C. § 1491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 15, 18

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28 U.S.C. § 1505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 21, 29 31 U.S.C. §§ 1221­1263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 42 31 U.S.C. § 1341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 37 U.S.C. § 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 25 42 U.S.C. § 1786 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 47 Pub. L. No. 81-439 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Pub. L. No. 89-642 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Pub. L. No. 93-150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 47 Pub. L. No. 93-203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40 Pub. L. No. 93-383 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26­28 Pub. L. No. 94-437 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 31 Pub. L. No. 95-113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Pub. L. No. 95-128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Pub. L. No. 97-35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43­48 Pub. L. No. 97-300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Pub. L. No. 99-500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 47 Pub. L. No. 100-358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Pub. L. No. 100-713 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Pub. L. No. 104-208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 S. Rep. 93-404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 S. Rep. No. 94-1207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42

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FEDERAL RULES RCFC 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

FEDERAL REGULATIONS 7 C.F.R. Part 281 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 7 C.F.R. Pt. 246 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 7 C.F.R. § 246.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 7 C.F.R. § 253.1 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 37 7 C.F.R. §§ 253.2­253.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 24 C.F.R. § 905.206 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 25 C.F.R. pt. 261 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 25 C.F.R. § 256.3(b) (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23­25 25 C.F.R. § 256.4 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 25 C.F.R. § 256.6 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 25 C.F.R. § 265.5 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 25 C.F.R. § 265.5(a) (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 24 C.F.R. § 805.104. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 24 C.F.R. § 905.207(a) (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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QUESTION PRESENTED In this case, in which Plaintiff seeks money damages based on a claim that the United States wrongfully refused to treat it as a federally recognized Indian tribe until 1996 and, as a consequence, it was denied the rights, programs, services and benefits that federally recognized Indian tribes were eligible to apply for and potentially receive from 1969 through 1996, must this Court dismiss Plaintiff's claims for lack of jurisdiction because Plaintiff's claims are not based on any statutes that can fairly be interpreted as mandating compensation? STATEMENT OF THE CASE This case was first filed in this Court in 2002. This Court granted the United States' motion to dismiss Plaintiff's complaint, and Plaintiff appealed that decision to the Federal Circuit. The Federal Circuit affirmed the Court's decision in part, but overturned the Court's decision on the statute of limitations, and remanded Plaintiff's second claim back to the Court. Plaintiff filed its Second Am. Complaint (hereinafter "Am. Compl.") on January 27, 2006. Plaintiff alleges that from 1969 to 1996 the United States wrongfully refused to treat it as a federally recognized Indian tribe. See Am. Compl. ¶ 1. Due to its non-recognition, Plaintiff alleges that it and its members were denied rights, programs, services and benefits between 1969 and 1996, which the United States provided to federally recognized Indian tribes under moneymandating federal laws. Id. ¶ 2. As a result, Plaintiff seeks damages for its denial of the rights, programs, services and benefits that federally recognized tribes were eligible to apply for and potentially receive during that time period. In its Complaint, Plaintiff alleges that it "has continuously existed as an Indian tribe from the time of the Treaty of Point Elliott . . . in 1855 up to the present," and that, in 1969, the

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Department of the Interior ("Interior") omitted it from a list of Indian tribes. According to the Amended Complaint, the list was not intended to be a list of federally recognized tribes, but the United States used the list to identify federally recognized tribes. Id. ¶¶ 1, 9. Plaintiff alleges that the omission of the Samish from the list resulted in the "treatment of the Tribe as not federally recognized, caus[ing] the [Tribe] and its members to be deprived of all the rights, benefits and services afforded by the United States to other federally recognized Indian tribes and their members, for the period 1969 to 1996." Id. ¶ 9. Plaintiff alleges that every tribe that was federally recognized by 1996 "today receives some amount of federal funds by virtue of being a federally recognized tribe." Id. ¶¶ 22­25. According to Plaintiff, it did not receive any funds "appropriated by Congress and distributed to or expended on behalf of federally recognized tribes during the period from 1969 through April 8, 1996." Id. ¶ 26. Plaintiff also alleges that its tribal members were denied federal services and benefits made available to members of federally recognized tribes from 1969 to 1996 because the United States wrongfully refused to recognize the Samish Tribe. Id. ¶ 28. Plaintiff alleges further that the United States' "wrongful failure to recognize the Samish Indian Nation during this 27 year period put the Samish Tribe behind all other federally recognized tribes with regard to economic development, the provision of programs and services to its members, and in the development of tribal government and tribal community." Id. 29. Plaintiff asserts two claims for relief: (1) violation of federal statutes that mandate funding to all eligible federally recognized Indian tribes and their members; and (2) failure to treat Plaintiff as a federally recognized Indian tribe with respect to federal funding. The first claim asserts that "Congress has enacted a broad range of programs, services and benefits for the

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benefit of all Indian tribes and their members." Id. ¶¶ 33­43. Plaintiff alleges that these statutes are money-mandating because they provide clear standards for payment, compel payment upon the satisfaction of pre-set conditions, and the amount that each recipient will receive can be readily determined. Id. ¶ 33. According to Plaintiff, the United States' failure to recognize Plaintiff between 1969 and 1996 led to Plaintiff's inability to participate in the programs, services and benefits available for the benefit of all tribes and Indians under federal statutes. Id. ¶¶ 34­36. Plaintiff's second claim alleges that only Congress has the authority to "terminate" a federally recognized tribe by discontinuing the federal trust responsibility and the federal funding provided by virtue of the tribe's status as a federally recognized tribe. Id. ¶ 38. According to Plaintiff, "the federal government's failure to provide any federal funds to the Samish Indian Nation from 1969 to 1996 was, in effect, an unlawful effort to terminate the Tribe." Id. ¶¶ 39­40. This claim also alleges that all of the federal statutes providing funding for programs, services, and benefits for federally recognized tribes and their members "comprise a network of statutes defining a fundamental aspect of the federal government's trust responsibility to tribes." ¶ 41. Plaintiff's second claim asserts that the federal government's failure to provide federal funding to Plaintiff can fairly be interpreted as a violation of the federal government's trust responsibility. Id. ¶¶ 42­43. ARGUMENT In this case, Plaintiff seeks to be compensated for programs that it did not run or spend money on over a 27 year period, from 1969 to 1996, during which it alleges the United States wrongfully failed to recognize it as Indian tribe. Plaintiff asserts a plethora of statutes that allow

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eligible federally recognized Indian tribes to administer social service programs, and asserts that these statutes entitle it to money damages.1/ Plaintiff is mistaken, and its complaint must be dismissed because none of the statutes are money-mandating and do not, individually or collectively, create a fiduciary duty for the United States. This Court, therefore, lacks jurisdiction over Plaintiff's complaint. I. LEGAL STANDARDS FOR EVALUATION OF THE COURT'S JURISDICTION UNDER THE TUCKER ACT AND INDIAN TUCKER ACT A. Standards for a Motion to Dismiss for Lack of Jurisdiction

RCFC 12(b)(1) provides for dismissal of a claim if the court lacks jurisdiction over the subject matter of a claim. A party seeking federal court jurisdiction bears the burden of demonstrating that it is so entitled. Commodity Futures Trading Com'n v. Nahas, 738 F.2d 487, 492 n. 9 (D.C. Cir. 1984). The Supreme Court presumes that federal courts lack jurisdiction unless the contrary appears affirmatively from the record. See United States Dep't of Energy v. Ohio, 503 U.S. 607, 614 (1992); Renne v. Geary, 501 U.S. 312, 315 (1991). A plaintiff must also provide and support a jurisdictional basis for judicial review. See McDonald v. United States, 37 Fed. Cl. 110, 113 (1997). To the extent that Defendant relies on evidence outside the

Plaintiff's Amended Complaint discusses programs that both provide funding for federally recognized tribes and their members. See, e.g., Am. Compl. ¶ 41. Only "group claims," or claims which allege injury to the tribe as a whole as opposed to individual injuries to tribal members, can be litigated under Section 1505 jurisdiction. Individual claims must be brought under the Tucker Act, 28 U.S.C. § 1491. See Fields v. United States, 423 F.2d 380, 383 (Ct. Cl. 1970). In this case, because only the tribe itself is a plaintiff, this Court has jurisdiction over only those claims that relate to a tribal injury, not to individual injuries to tribal members. See Fort Sill Apache Tribe of Oklahoma, v. United States, 477 F.2d 1360 (Ct. Cl. 1973) (noting that tribe does not have a separate and distinct right to recover for injuries solely to individual tribal members). In addition, it is important to note that some individual members of the Samish tribe received benefits up until the mid-1970s. See Samish, 419 F.3d at 1359­60. 4

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pleadings, the Court may properly consider such evidence in ruling on jurisdictional issues. Carter v. United States, 62 Fed. Cl. 66, 67­68 (2004). "Plaintiff cannot rely merely on the allegations in the complaint if jurisdiction is challenged." Osage Nation v. United States, 57 Fed. Cl. 392, 396 (2003). "[I]f the truth of jurisdictional facts is challenged, then the court may consider relevant evidence in order to resolve the factual dispute." Id. (citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988)). B. Standards for Determining Whether the Court of Federal Claims Possesses Jurisdiction under the Tucker Act and Indian Tucker Act

"It is elementary that `[t]he United States, as sovereign, is immune from suit save as it consents to be sued . . . , and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Mitchell v. United States, 445 U.S. 535, 538 (1980) ("Mitchell I") (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). In determining whether such consent is present, the Supreme Court has long held that "[a] waiver of sovereign immunity `cannot be implied but must be unequivocally expressed.'" Id. (quoting United States v. King, 395 U.S. 1, 4 (1969)). Congress has consented to suit against the United States for certain claims for money damages in the Court of Federal Claims ("CFC"). The Tucker Act grants the CFC jurisdiction with respect to any claim against the United States founded either upon the Constitution, any Act of Congress, any regulation of an executive department, 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. § 1491(a)(1). The Indian Tucker Act was enacted in 1946 to ensure that Indian or tribal claimants would enjoy the "same" rights and remedies in suits against the United States as non-Indians, but no more. Mitchell I, 445 U.S. at 539; see Mitchell v. United States, 463 U.S. 5

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206, 212 n.8 (1983) ("Mitchell II"). The Indian Tucker Act grants jurisdiction to the same court with respect to claims by an Indian Tribe against the United States, "whenever such [a] claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe." 28 U.S.C. § 1505. The Tucker Acts themselves do "not create any substantive right enforceable against the United States for money damages." Mitchell II, 463 U.S. at 216; see also Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 738 (1982); United States v. Testan, 424 U.S. 392, 398 (1976). Thus, in order to state a cause of action under one of the Tucker Acts, a plaintiff suing other than for breach of contract must point to an "Act of Congress" or "regulation of an executive department," 28 U.S.C. 1491(a)(1), that "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." Mitchell II, 463 U.S. at 217 (quoting Testan, 424 U.S. at 400, and Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009 (Ct. Cl. 1967)); see Bowen v. Massachusetts, 487 U.S. 879, 905­06 n.42 (1988); Sheehan, 456 U.S. at 739. The requisite waiver of sovereign immunity is present under the Tucker Acts only if "a claim falls within th[at] category." Mitchell II, 463 U.S. at 218; see OPM v. Richmond, 496 U.S. 414, 431 (1990). The Supreme Court has observed that "the substantive source of law may grant the claimant a right to recover damages either `expressly or by implication.'" Mitchell II, 463 U.S. at 217 n.16; but cf. Sheehan, 456 U.S. at 739­40 ("Testan [held] that the Tucker Act provides a remedy only where damages claims against the United States have been authorized explicitly."). But the Court has been reluctant to recognize a damages remedy against the United States under

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the Tucker Acts when a statute does not clearly sanction one. See Testan, 424 U.S. at 400 ("We are not ready to tamper with these established principles [concerning the reach of the Tucker Act] because it might be thought that they should be responsive to a particular conception of enlightened governmental policy."); see also Mitchell II, 463 U.S. at 218 ("Of course, in determining the general scope of the Tucker Act, this Court has not lightly inferred the United States' consent to suit.") (citation omitted). That restraint reflects the general rule that waivers of sovereign immunity must be unequivocally expressed. See Mitchell I, 445 U.S. at 538; OPM, 496 U.S. at 432. 1. Standards for Money-Mandating Statutes.

A statute is money-mandating "where the statutory text leaves the government no discretion over payment of claimed funds." Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (2005). Money-mandating duties have also been found with certain discretionary statutory schemes, but only when the statutes at issue: (1) "provide `clear standards for paying money' to recipients;" (2) "state the `precise amounts' that must be paid;" or (3) "as interpreted, compel payment on satisfaction of certain conditions. Id. at 1364­65. a. Statutes That Subsidize Expenditures on Social Services Programs Instead of Compensating for Injuries Are Not Money-Mandating.

Statutes that direct the government to pay money to subsidize future expenditures on social services programs are not money-mandating because they do not seek to compensate a particular class of persons for past injuries. Courts have held such statutes -- sometimes called "grant-in-aid" statutes -- are not money-mandating because they subsidize future expenditures instead of compensating a particular class of person for past injuries. See Nat'l Ctr. for Mfg. Sci.

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v. United States, 114 F.3d 196, 200 (Fed. Cir. 1997) (noting that courts have distinguished between two types of suits that seek money as a remedy: (1) those seeking payment to which Plaintiff is entitled pursuant to statute, which do not provide Tucker Act jurisdiction; and (2) those seeking compensation for losses suffered, which do provide Tucker Act jurisdiction); Katz v. Cisneros, 16 F.3d 1204, 1207­09 (Fed. Cir. 1994) (finding that, in suit in which housing developer sought payments from the Department of Housing and Urban Development under the Housing Act of 1937, APA review was proper because plaintiff was seeking "payments to which it alleges it is entitled pursuant to federal statute and regulations," not money as compensation for a loss suffered). In Bowen, the Supreme Court held that "an action to enforce the requirement that the government pay certain amounts for appropriate Medicaid services `is not a suit seeking money in compensation for the damage sustained by the failure of the Federal Government to pay as mandated; rather, it is a suit seeking to enforce the statutory mandate itself, which happens to be one for the payment of money.'" Nat'l Ctr., 114 F.3d at 200 (quoting Bowen, 487 U.S. at 900). The Bowen Court noted that statutes that have been found to be money-mandating2/ "attempt to compensate a particular class of persons for past injuries or labors." 487 U.S. at 907 n.42 (citing Testan, 424 U.S. at 405; Bell v. United States, 366 U.S. 393, 398 (1961)). "In contrast, the statutory mandate of a federal grant-in-aid program directs the Secretary to pay money to the State, not as compensation for a past wrong, but to subsidize future state expenditures." Bowen, 487 U.S. at 907 n.42 (citing United States v. Mottaz, 476 U.S. 834, 850­851 (1986)).

2/

The Court noted specifically, the Back Pay Act, 5 U.S.C. § 5596(b) and 37 U.S.C. § 242 (1958 ed.) (repealed, see 76 Stat. 498 (1962)), which provided compensation to prisoners of war, as examples of money-mandating statutes. 487 U.S. at 907 n.42 8

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In Malone v. United States, the Court of Federal Claims applied this rule, finding that it did not have jurisdiction over a case where a landlord sought damages for retroactive housing assistance payments from the Department of Housing and Urban Development (HUD). 34 Fed. Cl. 257, 262 (1995). The court held the statute in question was not money-mandating because it directed HUD to pay "a calculable rental subsidy as part of a program designed to aid lowincome families obtain housing," and did not mandate compensation for damages sustained by participating landlords. Id. "In other words, the payment contemplated by the statute is not for the landlords' past injuries or labor, the essence of a Tucker Act claim for monetary relief." Id. The Federal Circuit's language in its decision in this case also supports a finding that grant-in-aid statutes are not money-mandating. See Samish, 419 F.3d at 1367. According to the court, the Indian Self Determination and Education Assistance Act ("ISDA") must be construed in light of its purpose, which was "removing the financial burden incurred by tribes and tribal organizations when implementing federal programs under self-determination contracts." Id. The court noted that ISDA did not demonstrate congressional intent to provide damages "for contract support costs never incurred, on contracts never created, based on a wrongful refusal to accord federal recognition." Id. Providing Plaintiff with damages in the form of administrative costs on a contract they never obtained or performed "would provide them with nothing but a windfall" and would not advance the remedial purpose of the statute. Id. Similarly, reading a damage remedy into a grant-in-aid statute when a plaintiff has not provided social services pursuant to such a statute would provide a plaintiff with a windfall not in keeping with the purpose of the statute. b. To Be Money-Mandating, The Language And Effect of A Statute Must Be Mandatory. 9

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If "the statutory text leaves the government no discretion over payment of claimed funds," the Court is without jurisdiction. Samish, 419 F.3d at 1364. As this Court has noted, "it is evident that `[i]f the language and effect of the statute is mandatory, then the court possesses jurisdiction . . . . If, on the other hand, the language of the statute is permissive in scope and effect, the statute does not grant jurisdiction to hear the case.'" Cherokee Nation of Oklahoma v. United States, 69 Fed. Cl. 148, 158 (2005) (quoting Hopi Tribe v. United States, 55 Fed.Cl. 81, 86 (2002). Courts have construed phrases such as "may" and "is authorized" as being discretionary. See, e.g., Hopi, 55 Fed. Cl. at 86. In Hopi, the court noted that nothing in the language of the statute "creates a plainly prescribed duty that the Secretary authorize payment" because the statute stated that the Secretary "is authorized" instead of "shall." Id. at 87. Accordingly, the court found that "the plain language of the statute demonstrates that the Secretary's duty to compensate plaintiff . . . is discretionary." Id. c. Certain "Discretionary Schemes" May Be Money-Mandating If The Statutes Are Sufficiently Specific So As To Mandate Payment.

As the Federal Circuit stated in this case, the court also has jurisdiction over "[c]ertain discretionary schemes," including "statutes: (1) that provide `clear standards for paying' money to recipients; (2) that state the `precise amounts' that must be paid; or (3) as interpreted, compel payment on satisfaction of certain conditions." Samish, 419 F.3d at 1364­65 (citing Perri v. United States, 340 F.3d 1337, 1342­43 (Fed. Cir. 2003). "[T]he allegation must be that the particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum." Eastport, 372. F.2d at 1007; see also Perri, 340 F.3d at 1342. "The lack of any standards . . . governing the payment of such awards necessarily means that . . . the

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determination whether to pay an award and its amount is within the discretion of the Attorney General." Perri, 340 F.3d at 1343. 2. Fiduciary Duties

A fiduciary duty can give rise to a claim for damages within the Tucker Act or Indian Tucker Act. Samish, 419 F.3d at 1367. In order for a fiduciary duty to exist, there must be a specific trust relationship enforceable by an award of damages for a breach. United States v. White Mountain Apache Tribe, 537 U.S. 465, 471­73 (2003). Under the established framework from the Mitchell cases, in order to state a claim cognizable under the Indian Tucker Act, a plaintiff must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties. United States v. Navajo Nation, 537 U.S. 488, 506 (2003); Mitchell II, 463 U.S. at 216­17, 219; Mitchell I, 445 U.S. at 542. Once a plaintiff has identified "a substantive source of law that establishes a specific fiduciary or other duty . . . the court must then determine whether the relevant source of substantive law `can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s].'" Navajo, 537 U.S. at 506 (quoting Mitchell II, 463 U.S. at 219) (alterations in original). The existence of a general trust relationship between the United States and an Indian tribe is insufficient, standing alone, to support jurisdiction under the Indian Tucker Act. Id. Instead, "the analysis [of a breach-of-trust claim under the Indian Tucker Act] must train on specific rights-creating or dutyimposing statutory or regulatory prescriptions." Id. The key question in determining whether a fiduciary duty exists is whether a statute creates a limited or "bare" trust or whether a specific trust relationship enforceable by money

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damages exists. See White Mountain, 537 U.S. at 470­71 (distinguishing between Mitchell I and Mitchell II). In Mitchell I, the Supreme Court held that the General Allotment Act did not create "private rights enforceable in a suit for money damages under the Indian Tucker Act." Navajo, 537 U.S. at 504. The Court found that the Act created only a limited trust relationship between the plaintiffs and the United States, and did not impose any duty on the government to manage timber resources because the "`Indian allottee, and not a representative of the United States'" was responsible for using the land and, thus, a standard element of the trust relationship had been removed. Id. (quoting Mitchell I, 445 U.S. at 542). In Mitchell II, the Supreme Court held that a network of other statutes and regulations imposed judicially enforceable fiduciary duties upon the United States in its management of forested allotted lands because the statutes and regulations gave "the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians." See Navajo, 537 U.S. at 504 (citing Mitchell II, 463 U.S. at 224). The Navajo and White Mountain cases built on the Mitchell cases, holding that only statutory language giving full responsibility to the government triggers fiduciary duties that can fairly be interpreted as mandating compensation through money damages. See Navajo, 537 U.S. at 1367; White Mountain, 537 U.S. at 473­75. II. PLAINTIFF HAS FAILED TO DEMONSTRATE THAT THE COURT HAS JURISDICTION OVER ITS CLAIMS Plaintiff's argument essentially is that, even though it did not provide social services through the alleged programs during the time period at issue, Congress intended it to recoup those funds through a retroactive damage remedy. Plaintiff argues that Congress appropriated substantial funding for the benefit of Indian tribes in the period of 1969 to 1996, and provided "some measure of federal funding" to every federally recognized Indian tribe during that period 12

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pursuant to a number of programs, services, and benefits. Am. Compl. ¶¶ 25, 33. Plaintiff alleges that each statute listed in Paragraph 30 of its Complaint is money-mandating because it (1) provides clear standards for payment, (2) compels payment upon the satisfaction of pre-set conditions, and (3) the amounts that each recipient will receive can be readily determined. Id. ¶ 33. None of the statutes on which Plaintiff relies are money-mandating. For ease of analysis, the statutes can be categorized into four groups: (1) programs under which Plaintiff would receive funding or assistance for its members; (2) statutes that provide funds for Indian tribes to administer social service programs; (3) block grant statutes; and (4) appropriations statutes. In every category, Congress enacted the statutes to provide social services for needy people, not to provide a profit center for tribes. Reading a damage remedy into these statutes would provide Plaintiff with a windfall Congress did not intend. In addition, under each statute, the Secretary has considerable discretion over payment of claimed funds, meaning that payment is not automatic upon the satisfaction of certain conditions. In short, this Court should find that none of the statutes Plaintiff alleges are money-mandating, and dismiss this case based on lack of jurisdiction.

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A.

The Statutes That Fund Programs Through Which Plaintiff Alleged It Would Have Received Assistance Are Not Money-Mandating. 1. The Bureau of Indian Affairs' Tribal Priority Allocation Funding Mechanism Does Not Establish Fiduciary Duties that Can Fairly Be Interpreted As Money-Mandating.

Plaintiff argues that the Tribal Priority Allocations ("TPA") mechanism, along with several statutes through which the Bureau of Indian Affairs ("BIA") allocates funds via the TPA system -- specifically, the Johnson-O'Malley Act, the Indian Child Welfare Act of 1978, the Higher Education Tribal Grant Authorization Act, and the Indian Child Protection and Family Violence Prevention Act -- and Congressional appropriations acts, "provide a network of statutes that are money-mandating." Am. Compl. at ¶¶ 6, 30a, and 32.3/ Plaintiff does not allege that these statutes individually are money-mandating,4/ but argues that "this network of statutes can fairly be interpreted to provide some funds for all federally recognized tribes, and the failure of the government to abide by that purpose can fairly be interpreted to give rise to a claim for money damages." See Am. Compl. ¶ 30a. Plaintiff's argument is specious. The "trust" responsibility to Indians is implicated only where Indian property is at stake.

Plaintiff did not allege or mention the TPA program in its First Amended Complaint, filed on June 4, 2003. Plaintiff purportedly filed its Second Amended Complaint after the Federal Circuit's remand "to eliminate the claims that are no longer live, and focus[] the remaining claims" in light of the Federal Circuit's decision in this case, but this amended complaint added several statutes and programs as bases for Plaintiff's claims. Because this case is on remand merely to address the remaining statutes after the Federal Circuit's decision, it should not provide an opportunity for Plaintiff to take another bite of the apple. This Court should dismiss Plaintiff's statutes that were not contained in its previous complaint. To the extent that Plaintiff does so allege, Defendant moves to dismiss on the basis that these statutes are not money-mandating for the same reasons described above. In addition, because the TPA system is not statutorily mandated or described in regulations, and is merely the means by which BIA distributes its congressional allocations, it cannot be money-mandating. See Lincoln v. Vigil, 508 U.S. 182, 193 (1993). 14
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See United States v. Cherokee Nation of Oklahoma, 480 U.S. 700, 707 (1987). In this case, no Indian property rights are at stake. Funds made available pursuant to the authorizations in the Snyder Act or the other acts Plaintiff alleges are "gratuitous appropriations," not trust funds belonging to the Indians. See Lincoln v. Vigil, 508 U.S. 182, 194­95 (1993); Quick Bear v. Leupp, 210 U.S. 50, 80­81 (1908) (holding that monies appropriated for support of Indian schools are gratuitous appropriations but monies appropriated to fulfill treaty obligations are trust funds). Even when a plaintiff alleges that a network of statutes and regulations creates fiduciary duties, "the analysis must train on specific rights-creating or duty-imposing statutory or regulatory prescriptions." See Navajo, 537 U.S. at 506; see also Navajo Nation v. United States, 68 Fed. Cl. 805, 811 (2005). Plaintiff cannot show any such fiduciary duty because the TPA system does not deal with trust funds. The TPA system also is not required by statute or regulation, but is merely the internal system through which BIA allocates its appropriated funds. Further, Plaintiff cannot cite to a source of fiduciary duty in any of the other statutes it cites that create a damage remedy. Nor do the programs and statutes taken together as a "network" create fiduciary duties that can fairly be interpreted as money-mandating. None of the statutes Plaintiff cites, or the TPA system, relate to any trust asset or management responsibilities on the part of the United States. With regard to the TPA system, Plaintiff cannot point to any statutory language expressly creating a trust relationship in a specific property interest. See Samish, 419 F.3d at 1368. The TPA system is not statutorily mandated, but is merely the means by which the BIA requests and distributes its lump sum appropriations from Congress. See Clark Decl. ¶¶ 3­4, 9. In developing its budget request from Congress, the BIA asks tribes to identify their recommendations for

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funding priorities, called TPAs. Id. ¶ 8. Because there are 561 federally recognized Indian tribes, the BIA does not include individual tribal budget requests within the BIA budget, but instead requests funds for prioritized programs that support all tribes and are determined by the priorities of all Indian tribes nationwide. Id. ¶¶ 8­9. BIA then submits its budget to Interior, which reviews the budget and can make changes. Id. Interior's overall budget request is sent to the Office of Management and Budget, and then, after the Office of Management and Budget makes changes, becomes part of the President's budget, which is sent to Congress. Id. Congress appropriates a lump-sum of money to the BIA, based in part on the aggregation of all base budget amounts included in BIA's budget requests to Congress. Id. Once appropriated, the BIA allocates the money to various programs based on the TPA funding requests and the Indian tribes' identified tribal priorities. Id. ¶¶ 9­10. The Snyder Act and ISDA are the mechanisms for providing the funds for the programs the Indian tribes wish to operate. Id. ¶¶ 10­11. To the extent that Plaintiff relies on the TPA program as a source of a money-mandating fiduciary duty, that reliance is misplaced. In Lincoln, the Supreme Court explained that courts cannot review "an agency's allocation of funds from a lump-sum appropriation" so long as the agency acts to meet permissible statutory objectives. 508 U.S. at 193. In Lincoln, the Court noted that the contours of the trust relationship between the Indian people and the United States government did "not limit the Service's discretion to reorder its priorities from serving a subgroup of beneficiaries to serving the broader class of all Indians nationwide." Id. at 194­95 (citing Hoopa Valley Tribe v. Christie, 812 F.2d 1097, 1102 (9th Cir. 1986)). Like the Snyder Act and ISDA, which courts have found are not money-mandating, the TPA system does not require the expenditure of general appropriations, on specific programs, for particular classes of

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Native Americans. See Samish, 419 F.3d at 1366. In addition, the TPA mechanism does not involve trust funds or trust assets and, does not, therefore, invoke fiduciary duties on the part of the United States. See White Mountain, 537 U.S. at 471­73. Therefore, the TPA system is not a money-mandating statute. In support of its contention that a trust obligation entitling them to compensation exists, Plaintiff cites to five additional legal authorities: (1) the Johnson-O'Malley Act, 25 U.S.C. § 452 et seq.; (2) the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq.; (3) the Higher Education Tribal Grant Authorization Act, 25 U.S.C. § 3302 et seq.; (4) the Indian Child Protection and Family Violence Prevention Act, 25 U.S.C. § 2401 et seq.; and (5) the annual congressional appropriations Acts. See Am. Complaint ¶ 30a, 30o. None of these authorities, however, creates the requisite money-mandating obligation, fiduciary or otherwise, necessary to sustain Plaintiff's breach of trust claim. None establishes a trust corpus or provides fiduciary responsibilities for the United States with regard to trust assets. In addition, even if these statutes did create a limited trust, these programs delegate responsibility to tribes to administer programs, so the statutes are not in the same vein as Mitchell II or White Mountain. These statutes simply do not "confer[s] on the government pervasive or elaborate control over a trust corpus, such as would increase federal obligations beyond any long-recognized `general trust relationship between the United States and the Indian people.'" See Samish, 419 F.3d at 1368. Plaintiff's first cited authority, the Johnson-O'Malley Act, authorizes the Secretary, at her discretion, to enter into contracts with states, local governments, and private institutions and "expend under such contract or contracts, moneys appropriated by Congress for the education, medical attention, agricultural assistance, and social welfare, including relief of distress, of

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Indians." 25 U.S.C. § 452. The Johnson-O'Malley Act also establishes a program that enables States to supplement the costs associated with educating Indian children attending public schools and for Indian tribes to provide additional education services. Id. This statute does not use trust language, much less implicate Indian funds or property. This statute, therefore, does not provide Plaintiff with a source of fiduciary duty that would provide a damage remedy. See Vigil v. Andrus, 667 F.3d 931, 934 (10th Cir. 1982) (finding that language of Johnson-O'Malley Act, like Snyder Act, is too broad to support a conclusion that Congress has expressly appropriated funds for lunches for all Indian school children). Plaintiff's second cited authority, the Indian Child Welfare Act, establishes standards for removing Indian children from their homes and placing them in foster or adoptive care, and provides assistance to tribes for the operation of child and family service programs. See 25 U.S.C. § 1902. Section 1931 of the ICWA establishes a grant program for on and off reservation programs and the preparation and implementation of child welfare codes. 25 U.S.C. § 1931. This statute, although it contains general trust language -- recognizing "the special relationship" between the United States tribes, and "the Federal responsibility to Indian people," and finding that the United States has a direct interest as trustee in protecting Indian children -- does not involve a trust corpus or trust assets and, therefore, creates no fiduciary duties. See 25 U.S.C. § 1901; Cherokee Nation, 480 U.S. at 707. In addition, even if a trust were established, the statutory scheme places primary responsibility on the tribes by providing grants for tribes to administer programs and ensure that performance goals are achieved. 25 U.S.C. § 1931; 25 C.F.R. § 23.44 (1994). The Higher Education Tribal Grant Authorization Act, Plaintiff's third cited authority,

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provides a grant system through which the Secretary, under her Snyder Act authority, makes grants to tribes in order to permit tribes to provide individual Indian students with financial assistance to attend institutions of higher education. 25 U.S.C. § 3303. Again, this statute contains general trust language regarding "the Federal Government's continuing trust responsibility to provide education services to American Indian and Alaska Natives," 25 U.S.C. § 3302(7), but does not involve a trust corpus or other trust assets. In addition, the tribe plays the main role in running the programs and a stated purpose of the statute is to further tribes' administering programs and "making decisions on these programs reflecting their determinations of the tribal and human needs." 25 U.S.C. §§ 3302, § 3302(3). The statute specifically provides that the Secretary cannot place limitations on the tribe's use of funds, other than those found in the statute. Id. at § 3303(b). Accordingly, this statute does not establish any trust relationship, much less a specific one creating fiduciary duties enforceable in money damages. Plaintiff's fourth cited authority, the Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986, "provide[s] authority and opportunities for Indian tribes to develop and implement a coordinated program for the prevention and treatment of alcohol and substance abuse at the local level." 25 U.S.C. § 2402. Congress acknowledged that the "Federal Government has a historical relationship and unique legal and moral responsibility to Indian tribes and their members," and "included in this responsibility is the treaty, statutory, and historical obligation to assist the Indian tribes in meeting the health and social needs of their members." 25 U.S.C. § 2401. This statute also, however, clearly does not establish more than a general trust responsibility as it does not involve Indian property. In addition, it states that "the Indian tribes have the primary responsibility for protecting and ensuring the well-being of their

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members and the resources made available under this chapter will assist Indian tribes in meeting that responsibility." 25 U.S.C. § 2401(12). None of the statutory provisions contained in the Indian Alcohol and Substance Abuse Prevention and Treatment Act imposes an obligation to compensate Plaintiff for a breach of fiduciary duty. Finally, Plaintiff's fifth cited authority, the Indian Child Protection and Family Violence Prevention Act sets up an Indian Child Abuse Treatment Grant Program to provide "grants to any Indian tribe or intertribal consortium for the establishment on Indian reservations of treatment programs for Indians who have been victims of child sexual abuse." 25 U.S.C. § 3208. This Act also contains general trust language -- noting the "historical and special relationship of the Federal Government with Indian people," and finding that " there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and the United States has a direct interest, as trustee, in protecting Indian children who are members of, or are eligible for membership in, an Indian tribe" -- but does not involve a specific trust corpus or asset. See 25 U.S.C. § 3201. Again, the tribes are responsible for establishing and administering the programs. 25 U.S.C. § 3208. The purpose of all the statutes Plaintiff alleges as part of its "network" is to provide tribes with funds to run programs.5/ These statutes deal with "gratuitous appropriations," not trust funds; they do not involve Indian property. See Quick Bear, 210 U.S. at 80­81. As noted, even though Plaintiff alleges that a "network of statutes can fairly be interpreted to provide some

5/

Indeed, none of the statutes Plaintiff alleges are specific to Plaintiff as opposed to any other federally recognized Indian tribes. Therefore, Plaintiff's argument amounts to a claim that any federally recognized tribe has a money-mandating claim against the United States with regard to BIA's budgeting and distribution of funds. 20

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funds for all federally recognized tribes," it must still identify a source of fiduciary duty. Navajo, 537 U.S. at 512. None of the statutes that Plaintiff cites contains anything more than general trust language; they do not contain "statutory language expressly creating a trust relation in a specific property interest." See Samish, 419 F.3d at 1368. Even taken together, these statutes do not establish the detailed fiduciary responsibilities that supported a claim for money damages in Mitchell II. In addition, even if the statutes did involve a general trust, each statute gives the leading role to the tribe to administer the programs. Thus, the government does not have "pervasive or elaborate control over a trust corpus, such as would increase federal obligations beyond any long-recognized `general trust relationship between the United States and the Indian people.'" See Samish, 419 F.3d at 1368 (citing Mitchell II, 463 U.S. at 225). Plaintiff's attempt to argue a "network" and fit this case into the framework of Mitchell II or White Mountain is without merit. 2. The Housing Improvement Program Is Not Money-Mandating.

Plaintiff also alleges that the BIA's Housing Improvement Program (HIP) is moneymandating because the BIA, through the HIP, provided financial assistance to Indians "who were members or descendants of members of federally recognized tribes in need of housing that could not be met through other sources."6/ Am. Compl. ¶ 30c. The HIP is not money-mandating because it is not based on money-mandating statutes, the BIA has discretion in program administration, and no damage remedy can be implied.

6/

This statute, in particular, relates to injuries to individual tribal members as opposed to an injury to the tribe as a whole. Accordingly, because only the tribe is a plaintiff and the tribe cannot recover for injuries solely to individual tribal members, this Court does not have jurisdiction to hear this claim. See Fort Sill, 477 F.2d at 1365; Fields, 423 F.2d at 383. 21

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The HIP, based on the BIA's policy that "every American family should have the opportunity for a decent home and suitable living environment," is designed to "serve the neediest of the needy Indian families who have no other resource for standard housing." See 25 C.F.R. § 256.3 (1982). The HIP provides assistance to needy Indian families in a number of ways: financial assistance to make repairs to homes, grants necessary to make down payments in order to secure loans, and financing new home construction. Id. The HIP program is not money-mandating. First, the authority for the HIP is the Snyder Act, 25 U.S.C. § 13, which has been held not to be money-mandating.7/ See 25 C.F.R. pt. 261 (1976); Lincoln v. Vigil, 508 U.S. 182, 193 (1993); Samish, 419 F.3d at 1368. Second, in appropriations bills, Congress does not specifically appropriate money for HIP for any individual tribe. See, e.g., Pub. L. No. 99-500 (1985) (appropriating a certain amount of money "[f]or construction, major repair, and improvement of irrigation and power systems, buildings, utilities, and other facilities, including architectural and engineering services by contract; acquisition of lands and interests in lands; preparation of lands for farming; and construction, repair, and improvement of Indian housing"). Thus, the appropriations bills do not create an entitlement to any particular tribe for any particular amount. Therefore, neither the Snyder Act nor the appropriations acts are money-mandating. In any event, however, the regulations administering the HIP program are not moneymandating. The regulations are phrased in non-mandatory language. See, e.g., 25 C.F.R. § 256.3 (1982) ("To the maximum extent possible, the program will be administered through tribes,

7/

In fact, Plaintiff's First Amended Complaint refers to the HIP only in terms of the Snyder Act. See First Am. Compl. ¶ 5j ("The Housing Improvement Program of 1965, implemented pursuant to the Snyder Act, 25 U.S.C. § 13...."). 22

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tribal housing authorities, or other tribal organizations, or by having tribal officials participate in the applicant selection process. Every effort will be made to use Housing Improvement Program funds in conjunction with other programs . . . .") (emphasis added). As Plaintiff's own complaint states, financial assistance under HIP was provided when housing needs "could not be met through other sources." Id.; Am. Compl. ¶ 30c. The BIA, therefore, has discretion in determining whether "other sources" would be available to applicants. The regulations also do not provide standards for determining payment and the amount to be paid is neither stated nor calculable. First, the HIP funds were distributed on a competitive basis, meaning that whether an individual received funding and the amount of that funding would be based on other requests for funding in the same time period. See 25 C.F.R. § 265.5 (1982) (listing various priorities for distribution of funds). The regulations set out criteria for eligibility and note that "[p]riority is given to families with the greatest need in relation to income, family size, and of not being eligible for other available programs providing housing assistance." 25 C.F.R. § 265.5(a) (1982); see also 25 C.F.R. § 256.6 (1995). In 1992, the regulations changed to note that every eligible Indian, as defined by the statute, is entitled to participate in the HIP, regardless of tribal affiliation. See 25 C.F.R. § 256.3(b) (1995); see also 57 Fed. Reg. 3105 (Jan. 27, 1992). This version of the regulations notes that the distribution of funds among tribes is based on BIA's "certified inventory of tribal housing needs, a viable work plan, and the tribe being in compliance with the intent of the program." 25 C.F.R. § 256.3 (1995). Accordingly, even though BIA considers every eligible individual Indian entitled to the HIP, BIA has discretion to distribute funds amongst the tribes. Second, HIP provided funding and resources through a variety of means. The 1983

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regulations state that the HIP could be implemented through, inter alia, direct grants, contract or grant agreements, or programs administered directly by the BIA. Id. In addition, as noted, there are several types of funding available under the HIP: repairs to housing that will remain nonstandard, repairs to housing that will become standard, down payment assistance, and new housing. 25 C.F.R. § 256.4 (1982). Certainly, the HIP does not entitle any particular tribe to any particular amount of money. See Perri, 340 F.3d at 1342. In short, far from providing a remedy provision that either specifies the amount to be paid or giving a basis to calculate that amount, the HIP regulations provide for multiple ways in which the program could be implemented. Thus, the regulations cannot be money-mandating because they do not set forward standards for determining payment nor do they specify -- or provide the Court with a means of determining -- the payment amount. In conclusion, the HIP is not money-mandating and