In the United States Court of Federal Claims

No. 20-1603

(Filed: March 4, 2021)

(NOT TO BE PUBLISHED)

LAVERN C. FASTHORSE and

JERRY JAY,

Plaintiffs,

v.

UNITED STATES,

Defendant.

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Lavern C. Fasthorse, Jerry Jay, pro se, Carson City, Nevada.

Rafique O. Anderson, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, Washington, D.C., for the United States. With him on the 

brief was John V. Goghlan, Deputy Assistant Attorney General, Federal Programs Branch, 

Robert E. Kirschman, Jr., Director, and Steven J. Gillingham, Assistant Director, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Senior Judge.

Plaintiffs Lavern C. Fasthorse and Jerry Jay have brought suit seeking injunctive relief 

for an alleged taking of property by the United States. See Compl., ECF No. 1. Plaintiffs allege 

that their real property has been “[o]ccupied [b]y [t]he [d]efendant since 1848,” and ask the court 

for “[j]ust [c]ompensation” as well as “a decision to reinstate aboriginal [t]itle” to this property. 

Compl. at 1-2. Mr. Fasthorse and Mr. Jay also request a hearing with Senior Judge Royce C. 

Lamberth of the United States District Court for the District of Columbia “to address this issue.” 

Compl. at 2. Plaintiffs cite the Tucker Act, the Fifth Amendment to the United States 

Constitution, various treaties, and judicial decisions concerning those treaties as grounds for 

jurisdiction in this court. Compl. at 1.
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Pending before the court is the United States’ (“the government”) motion to dismiss 

plaintiffs’ complaint pursuant to Rules 12(b)(1) and (6) of the Rules of the Court of Federal 

Claims (“RCFC”). See Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 10. Plaintiffs have not 

filed a response to the motion, and the time to do so has expired. Because Mr. Fasthorse and Mr. 

Jay have failed to establish jurisdiction by a preponderance of the evidence, the government’s 

motion to dismiss is GRANTED and plaintiffs’ claims are DISMISSED.

STANDARDS FOR DECISION

The Tucker Act provides this court with jurisdiction over “any claim against the United 

States founded either upon the Constitution, or any Act of Congress or any regulation of an 

executive department, or upon any express or implied contract with the United States, or for 

liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). To 

invoke this court’s Tucker Act jurisdiction, “a plaintiff must identify a separate source of 

substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d 

1167, 1172 (Fed. Cir. 2005) (en banc in relevant part) (citing United States v. Mitchell, 463 U.S. 

206, 216 (1983); United States v. Testan, 424 U.S. 392, 398 (1976)). If a plaintiff fails to raise a 

claim under a money-mandating provision, this court “should [dismiss] for lack of subject matter 

jurisdiction.” Jan’s Helicopter Serv., Inc. v. Federal Aviation Admin., 525 F.3d 1299, 1308 (Fed. 

Cir. 2008) (quoting Greenlee Cnty. v. United States, 487 F.3d 871, 876 (Fed. Cir. 2007)).

As plaintiffs, Mr. Fasthorse and Mr. Jay must establish jurisdiction by a preponderance of 

the evidence. See Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 

2011) (citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).1 

When ruling on a motion to dismiss for lack of jurisdiction, the court must “accept as true all 

undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences in favor 

of the plaintiff.” Id. (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). “If a 

court lacks jurisdiction to decide the merits of a case, dismissal is required as a matter of law.” 

Gray v. United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 

506, 514 (1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); see also RCFC 

12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court 

must dismiss the action.”). 

1 A court may “grant the pro se litigant leeway on procedural matters, such as pleading 

requirements.” McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007) (citing 

Hughes v. Rowe, 449 U.S. 5, 15 (1980) (“An unrepresented litigant should not be punished for 

his failure to recognize subtle factual or legal deficiencies in his claims.”)). This leniency, 

however, cannot extend to lessening jurisdictional requirements. See Kelley v. Secretary, U.S.

Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) (“[A] court may not . . . take a liberal view 

of . . . jurisdictional requirement[s] and set a different rule for pro se litigants only.”).
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ANALYSIS

In its motion to dismiss, the government asserts that “[t]he complaint fails to allege any 

basis for jurisdiction,” as it “does not allege the existence of a contract with the Federal 

Government[,] . . . [n]or does it identify a money-mandating statute or regulation.” Def.’s Mot. 

at 5. Plaintiffs allege that Mr. Fasthorse is a member of the Oglala Sioux Tribe and that Mr. Jay 

is a member of the Navajo Tribe. Compl. at 1. Plaintiffs also appear to assert that the land at 

issue, covering “23 States,” is subject to the Treaty of Guadalupe Hidalgo, the Fort Laramie 

Treaties, and the 1783 Treaty of Paris. Compl. at 1-2. Aside from these allegations, however, 

the complaint is sparse on factual material. Plaintiffs mention the Tucker Act and the Fifth 

Amendment to the United States Constitution,see Compl. at 1, but the mere invocation of these 

legal underpinnings for a takings claim is insufficient to establish subject-matter jurisdiction. 

See Trusted Integration, 659 F.3d at 1163 (citation omitted). The court must “accept as true all 

undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences in favor 

of the plaintiff,” but a lack of factual material in the complaint prevents the court from making 

such inferences. Id. (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)).

Furthermore, plaintiffs’ recitation of various treaties fails to establish subject-matter 

jurisdiction. The Treaty of Guadalupe Hidalgo established peace and designated a new boundary 

line between the United States and Mexico. See Peace, Friendship, Limits and Settlement 

(Treaty of Guadalupe Hidalgo), U.S.-Mex., arts. I, V, Feb. 2, 1848, 9 Stat. 222. The complaint

“fails to explain why the court has jurisdiction, when Congress established a separate 

administrative scheme for claims brought under the Treaty, and when such claims were required 

to be brought over 160 years ago.” Daniels v. United States, 2018 WL 1664476, at *8 (Fed. Cl. 

April 6, 2018). As for plaintiffs’ citation of the Fort Laramie Treaties, the United States and the 

Sioux Tribe, along with other Tribes, formed the Fort Laramie Treaty of 1851 to end “all 

hostilities whatever against each other . . . and to make an effective and lasting peace.” Treaty of 

Fort Laramie with Sioux, Etc., art. I, Sept. 17, 1851, 11 Stat. 749. The Fort Laramie Treaty of 

1868 had a similar goal. See Treaty with the Sioux, Apr. 29, 1868, 15 Stat. 635. This 

subsequent treaty provided that “[i]f . . . people subject to the authority of the United States[] 

shall commit any wrong upon the person or property of the Indians, the United States will . . . reimburse the injured person for the loss sustained.” Id. art. I. However, the lack of factual 

allegations in the complaint preclude the court from concluding that the Fort Laramie Treaty of

1868 provides a sufficient basis for exercising jurisdiction over plaintiffs’ claims. Lastly, the 

1783 Treaty of Paris ended the Revolutionary War. See Definitive Treaty of Peace Between the 

United States of America and his Britannic Majesty (1783 Treaty of Paris), U.S.-Eng., Sept. 3, 

1783, 8 Stat. 80; see also Seneca Nation of Indians v. New York, 382 F.3d 245, 253-54 (2d Cir. 

2004) (outlining the history leading to the treaty). This treaty did not “create any substantive 

right enforceable against the United States for money damages” for Mr. Fasthorse and Mr. Jay. 

Testan, 424 U.S. at 398. Plaintiffs have thus failed to “identify a separate source of substantive 

law that creates the right to money damages.” Fisher, 402 F.3d at 1172 (citation omitted).
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CONCLUSION

For the reasons stated, the government’s motion to dismiss is GRANTED. Plaintiffs’ 

complaint shall be DISMISSED for lack of subject-matter jurisdiction. The clerk shall enter 

judgment accordingly.

No costs.

It is so ORDERED.

s/Charles F. Lettow 

Charles F. Lettow

Senior Judge