# In the United States Court of Federal Claims

No. 13

- 227L July 3 0

, 2015

* * * * * * * * * * * * * DEBRA JONES, et al.,

Plaintiffs,

v.

UNITED STATES,

Defendant.

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* Motion to Dismiss; Lack of Subject Matter Jurisdiction; Failure to State a Claim;

Exhaustion of Administrative Remedies; Issue Preclusion ; 1868 Ute Treaty; “Bad Men”

Provision.

Frances C. Bassett

, Fredericks Peebles & Morgan LLP, Louisville, CO, for plaintiff s

. With her were Sandra L. Denton and Todd K. Gravelle , Fredericks Peebles & Morgan LLP, Louisville, CO.

Jody H. Schwartz

, Trial Attorn ey, Environment and Natural Resources Division

, Department of Justice

, Washington D.C., for defendant. W ith her were Kenneth D. Rooney

, Trial Attorney , Environment and Natural Resources Division , and John C.

Cruden , Assistant Attorney General, Environment an d Natural Resources Division, Department of Justice.

O P I N I O N HORN, J.

FINDINGS OF FACT

On April 1, 2013, plaintiffs filed their complaint in the United States Court of Federal

Claims. 1 Plaintiffs allege that o n April 1, 2007

, “ Utah State Trooper Da ve Swenson sent

1 The plaintiffs are “Debra Jones and Arden C. Post, individually and as the natural parents of Todd R. Murray; Debra J ones, as personal representative of the Estate of Todd R. Murray, deceased, for and on behalf of the heirs of Todd R. Murray, and the Ute Indian Tribe of the Uintah and Ouray Reservation.” Plaintiffs Jones and Post are the biological parents of Todd R. Mur ray, a 21

- year old member of the Ute Indian Tribe, whose death is the basis for the above captioned case, filed against the United States for violation of2

a radio dispatch from his patrol car adv ising the Ut ah central Police Dispatch that he was pursui ng a car containing ‘two tribal mal es’ for a speeding violation.” Trooper Swenson

later testified 2 that the vehicle was traveling 74 miles per hour in a 65 mile an hour zone.

The driver of the vehi cle was 17

- year

- old Uriah Kurip, and his lone passenger was the decedent, 21

- year

- old Todd Murray

. The alleged speeding violation occurred just outside the boundary of the Ute Tribe’s Uncompaghre Reserv ation in Utah

. In what Trooper

Swenson later testified he viewed as an attempt to evade police pursuit

, Mr. Kurip turned off U.S. Highway 40, onto State Road 88 , an intersection located more than two miles

outside the boundary of the U n compahgre Reservatio n

. Although Trooper Swenson began his pursuit off the Uncompaghre Reservation

, the pursuit carried into the Uncompaghre Reservation , land held by the Ute Indians , and ended 25 miles south of

the intersection of U.S. 40 and State Road 8 at the intersection of Seep Ridge Road and Turkey Track Road, an intersection also inside the boundary of the Uncompaghre

Reservation

. Once stopped, Mr. Kurip and Mr. Murray exited their vehicle and stood on

either side of the vehicle

. The amended complaint reflects that T r oo per Swenson testified

that he exited his vehicle with his gun drawn and ordered the two to the ground. Mr. Kurip and Mr. Murray exchanged looks and Trooper Swenson repeated the command two or

three times

, after which Mr. Kurip and Mr. Murray ran from thei r vehicle in opposite

directions. Trooper Swenson pursued Mr. Kurip on foot and quickly apprehended him.

Responding to Trooper Swenson’s earlier radio dispatch requests for help, o ff

- duty Vernal City police officer Vance Norton was next to arrive on the scene

, dressed in street clothes and driving his personal vehicle

. Officer Norton set off on foot in pursuit of Mr. Murray

. Utah Highway Patrol Trooper Craig Young and Uintah County Deputy Anthoney Byron subsequently joined in the search

. Officer Norton later testified he eventually

encountered Mr. Murray as Mr. Murray was rounding a hill

. According to the amended complaint, Officer Norton testified he saw Mr. Murray before Mr. Murray saw him

. Officer

Norton allegedly raise d h is gun and shouted, “POLICE

— G ET TO THE GROUND.” (capitalization in original). Also, a ccording to the amended complaint, Officer Norton

recalled seeing something in Mr. Murray’s hand , but admitted that he could not tell what was in Mr. Murray’s hand. Defendant indicates in its motion t o dismiss that it was later

determined Mr. Murray was carrying an illegally purchased .380 ca liber handgun. Further,

a ccording to plaintiff s ’ amended complaint, Officer Norton indicated Mr. Murray raised his

hand and fired shots

, and Officer Norton, in tur n

, fire d two rounds at Mr. Murray

. The amended complaint states that “Norton alleges that Murray then turned the gun on himself and pulled the trigger. Officer Norton contacted dispatch, advised that shots had been fired and that Murray had shot himself.” “At the time of the shooting, Officers Byron and Young state they were approaching from the south with their firearms drawn. Officers Byron and Young worked together to handcuff Murray

. ” Plaintiffs contend that Trooper

the Ute treaties and federal statutes and breach of trust in violation of the Ute treaties

federal st atutes

.

2 Although the amended complaint repeatedly refers to “testimony” by multiple individuals, the amended complaint does not indicate how or under what circumstances the “testimony” was taken.3

Swenson, Officer Norton, “Defendant ” Byron

, and “ Defendant” Young 3 are not cross

deputized by the federal government or the Ute Tribe to exercise law enforcement powers

over Native Americans inside the Ute Tribe’s Reservation. 4

A fter the shooting, a number of other officers arrived at the scene, including Special Agent s Rex Ashdown and David Ryan with the Federal Bureau of Investigation (FBI) and various officials from the Bureau of Indian Affairs (BIA ). In their amended complaint, plaintiffs allege that the FBI and BIA officers “ostensibly assumed jurisdiction of the scene” because “the shooting sce ne was in Indian Country

, ” yet “[t]he FBI and BIA officers on the scene were complicit in the State officers’ improper assertion of jurisdictional authority over the shooti ng site.” Plaintiffs f urther allege that Raymond

3 Although plaintiffs refer to Officers Young and Br yon as “defendants” in the amended complaint, the only proper defendant in the United States Court of Federal Claims is the

United States. See Rule 10(a) of the Rules of the United States Court of Federal Claims (RCFC) (2014) (“The title of the complaint must name all the parties . . . , with the United States designated as the party defendant.”). The United States Supreme Court has

indicated that for suits filed in the United States Court of Federal Claims and its predecessors, “[i]f the relief sought is against others than the United States the suit as to them must be ignored as beyond the jurisdiction of the court.” United States v. Sherwood

, 312 U.S. 584, 588 (1941) (citation omitted) Slattery v. United States , 635 F.3d 1298, 1321 n.1 (Fed. Cir.), aff’d , 710 F.3d 1336 (Fed. Cir.), cert. denied , 134 S. Ct. 1276 (2014); May

v. United States , 80 Fed. Cl. 442, 444 (“Jurisdiction, then, is limited to suits against the United States.”), aff’d , 293 F. App’x 775 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2008). Stated differently, “the only proper defendant for any matter before this court is the United States, not its officers, nor any other individual.” Stephenson v. United

States , 58 Fed. Cl. 186, 190 (2003) (emphasis in original); see also United States v.

Sherwood , 312 U.S. at 588; Brown v. United States , 105 F.3d 621, 623 (Fed. Cir.), reh’g

denied (Fed. Cir. 1997); Hover v. United States , 113 Fed. Cl. 295, 296 (2013) (“As an initial matter, it is well settled that the United States is the only p roper defendant in the United States Court of Federal Claims.”); Warren v. United States , 106 Fed. Cl. 507, 510

- 11 (2012) (“It is well settled that the United States is the only proper defendant in the Court of Federal Claims.”)

. The refore, the court only refers to t he United States as the defendant in the above captioned case.

4 Plaintiffs amended the complaint after defendant filed a motion to dismiss the complaint. Plaintiffs allege in the amended complaint:

Murray was shot after being pursued at gun

- point by two Utah state Highway Troopers, a Uintah County Sheriff’s Deputy, and an off

- duty Vernal City, Utah, police officer. The pursuit took place over tribal trust lands more than 25 miles inside the northern boundary of the U&O Reservation. The four shooting

- invo lved officers had no criminal jurisdiction over Indians inside the U&O Reservation. The officers also had no probable cause to believe that Todd Murray had committed any crime.

(internal citation omitted).4

Wissiup, a member of the Ute Tribe and a certified law enforcement office r was excluded

from the scene. In addition, plaintiffs contend that the law enforcement officers did not segregate, question, or search the officers involve d in Mr. Murray ’s shooting

, nor pr operly process their firearms.

At 11:30 a.m., i mmediately f ollowing the shooting, “Officer Norton contacted dispatch, advised that shots had been fired and that Murray had shot himself.” Plaintiffs allege that an ambul ance did not arrive on the scene until 12:02 p.m. , and further allege that p rior to its arrival, Mr. Murray was alive, but no state or federal officer provided him

medical aid. According to the amended complaint, when the ambulance arrived on the scene, Mr . Murray’s “breathing was labored, his limbs were twitching, and he was unconscious. There was a copious amount of blood around his head.” The ambulance transported Mr. Murray to Ashely Valley Medical Center

, where he was pronounced dead

at 1:19 p.m. Accor ding to the amended complaint, t he “FBI and the BIA officers then allowed the Utah state, county and municipal officers to transport Murray’s body to the

Thomson

- Blackburn Vernal Mortuary (Mortuary) in Vernal , Utah, for holding overnight until the body cou ld be transported to the Utah State Medical Examiner’s office for an autopsy the next day

. ”

Plaintiffs contend that the FBI and BIA officers “took no action to secure Todd Murray’s remai ns or the crime scene itself.” Plaintiffs also assert that “municip al officers present at the medical center proceeded to violate Murray’s dignity and to tamper with the physical evidence.” While a t the hospital, plaintiff s allege that Mr. Murray ’s body was unnecessarily and inappropriately disrobed , manipulated, and phot ographed. Officer Byron was allegedly photographed with his finger inserted in Mr. Murray’s head wound. Plaintiffs assert that BIA Officer Kevin Myore was present at the medical center and “condoned and participated in, or failed to prevent, the illegal a nd unethical des e cration

of Mr. Murray’s remains and the spo liation of critical evidence.” Pl aintiffs also claim that “Special Agent Ashdown took no action to secure and preserve Mr. Murray’s body at the Mortuary” and instead was “complicit in the addition al acts of horrific desecration and evidence tampering that took place at the Mortuary.” Further, p laintiffs claim th at the Vernal City Police Chief Gary Jensen “admits” to inserting a needle into Mr. Murray to draw blood, and allege that “Chief Jensen the n allegedly directed a mortuary employee to make an unauthorized incision to Murray’s jugular vein, from which two vials of blood were purportedly drawn, although neither the Utah state nor the federal law enforcement

officers have ever accounted for the b lood vials drawn from Murray’s body at the Mortuary.” Plaintiffs also contend

, “[n]either the Mortuary, nor any law enforcement officers, obtained the permission of Mr. Murray's next of kin to desecrate Todd Murr ay’s

remains in this manner.”

The amended complaint states that Mr. Murray’s body was next transported to the

Utah Office of the Medical Examiner . The Utah Office of the Medical Examiner allegedly “elected to forego an autopsy and to perform only a simple external exam ination of Mr. Murray’s body. ” Plaintiffs indicate that :5

OME’s [Utah Office of the Medical Examiner’s] final pathological diagnosis was that the entrance wound on Mr. Murray's head was on the lateral left scalp and the exit wound was on the upper posterior right scalp. Thus, the

guns hot wound that killed Todd R. Murray entered on the left side of Mr. Murray's head and exited on the ri ght side of Mr. Murray's head.

(emphasis in original)

. Plaintiffs further note that the Utah Office of the Medical Examiner reported that Mr. Murray arr ived with his hands “bagged” and that no soot was found on

either of Mr. Murray’s hands, his left hand was clean and free of any debris or blood, and his right hand was bloody. Moreover, plaintiffs allege that “the FBI officers and the BIA

officers allowed the Utah Medical Examiner’s Office to list the cause of Todd Murray’s death as a suicide, when the Medical Examiner himself later testified that he could not rule out the possibility that Todd Murray was shot in the back of his head execution style.”

Plai ntiffs, therefore, challenge Officer’s Norton version of events and state that “Todd Murray did not shoot himself execution

- style in the back of his head.” (emphasis in original).

In addition, plaintiffs contend tha t “all of the evidence the FBI and BIA o fficers were responsible for

— and that would have been of a dispositive nature in this case

— has been destroyed or altered

, ” and that, throughout, the FBI and BIA officers disregarded proper investigatory procedure and preservation of evidence. Specifically

, plaintiff s contend that

the firearm that Mr. Murray allegedly fired during his encounter with Officer Norton was destroyed by the FBI and not forensically tested and that Mr. Murray’s person or clothing

were n ever forensically tested

. Plaintiffs contend t he same regarding preservation and forensic testing of Officer Norton’s firearm, personal vehicle, person, and clothing

. Plaintiffs further contend that Officer Norton was not sequestered, but was allowed free access to the scene of the shooting , thereby g iving Officer Norton the “opportunity to tamper with the physical evidence.” Plaintiffs also allege other failures

, including lack of

documentation of the scene

, failure to administer medical aid to Mr. Murray, improper handling of

, and tampering with

, Mr. Murray ’ s body at the medical center, mortuary, and

Utah Office of the Medical Examiner , resulting in “significantly altered and potentiall y destroyed critical evidence

, ” and failure by the Utah Office of the Medical Examiner to perform an autopsy of Mr. Murray’s body.

According to the complaint, “ [t] hree weeks after the shooting, members of Todd Murray’s family met with FBI Agent Ashdown.” Plaintiffs allege that “[t]he family members explained to Agent Ashdown that Todd Murray was a right

- handed individual; they told

Ashdown it would have been impossible for Murray to shoot himself in the back of the head, above and behind his left ear.” 5 Mr. Murray’s family urged Special Agent Ashdown to investigate and revisit the circumstances of Mr. Murray ’s death. According to plaintiffs, Special Agent Ashdown “promised the family members that the FBI would conduct a full investigation” yet despite this promise, the United States has never conducted a civil or

5 According to the amended complaint, “Agent Ashd own admitted to the family members that it would be impossible for a right

- handed individual to shoot himself in the back of the head, above and behind his left ear.”6

criminal investigation into “the actions of any single individual ” involved in the

circumstanc es surrounding Mr. Murray ’s death

, nor of the investigatory and preservation procedures immediately following. Plaintiffs contend that Special Agent Ashdown later admitted under oath that he conducted no investigation into the shooting of Mr. Murray largel y because of his long

- standing rel ationship with Officer Norton.

On July 17, 2009, Debra Jones, individually

, as the natural parent of Todd Murray, and as personal representative of the Estate of Todd R. Murray for and on behalf of Mr. Murray’s heir s, and Arden Post, individually and as the natural parent of Todd Murray, filed suit in the Uintah County Court regarding the death of Mr. Murray. See Jones et al.

v. Norton et al. , 3 F. Supp. 3d 1170 (D. Utah 2014). 6 The plaintiffs b r ought suit in the

D is trict C ourt and asserted civil rights claims under 42 U.S.C. § 1983 (2006) and 42 U.S.C. § 1985 (2006) against Uintah County and the City of Vernal, and against law enforcement officers, in their individual, as well as in their offici al, capacities

. Plaintiffs sought upwards of $3,000,000.00 in damages. “In their § 1983 claims against the Individual Defendants, the Plaintiffs allege illegal seizure, excessive force, and failure to intervene to prevent the officers' unconstitutional act s. Under § 1985, they allege conspiracy to obstruct justice and conspiracy to violate Mr. Murray's civil rights based on

racial animus.” Jones et al. v. Norton et al. , 3 F. Supp. 3d

. at 1177. Plaintiffs alleged

additional numerous causes of action, includ ing illegal seizure, use of excessive force, assault/battery, and wrongful death. Subsequently, t he suit was removed to the United States District Court for the District of Utah on August 20, 2009.

On March 12, 2013, while the District Court case was pen ding, p laintiffs mailed a

letter to senior officials at the United States Department of the Interior

, giving notice of their intent to file suit against the United States. The letter was titled “Notice of Claim concerning the April 1, 2007 Shooting Death o f Todd Murray, Ute Indian tribal member.”

T he letter states:

Dear Messrs. Toulou, Smith, and Washburn and Secretary of the Interior:

Our law firm represents the Ute Indian Tribe of the Uintah and Ouray Reservation (“Tribe” or “Ute Tribe”). We also repre sent tribal members Debra Jones and Arden Post who are the parents of Todd Murray, a tribal

member who was shot to death in an encounter with Utah state and local police on the Uintah and Ouray Indian Reservation in Utah ( “ U&O

Reservation ” ) in 2007. Please accept this letter as our notice of claim to your respective agencies of our intent to file a complaint against the United

States based on breaches of the 1863 and 1868 Ute Treaties and the United States’ violation of its trust obligations to the Ute Trib e and its members.

We plan to file suit in the Federal Court of Claims and allege that the Federal Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA), by and through their employees, committed wrongs upon the person or property of

6 The Ute Indian Tribe was not a party to the District Court litigation.7

the In dians, namely decedent Todd Murray his family and the Ute Indian Tribe as a whole. Included with our letter are the Plaintiffs’ (i) Third Amended Complaint, (ii) motion for default judgment on liability based on tampering [sic] destruction of critical evid ence, and (iii) motion for summary judgment under Counts 1, 3 and 5 filed in the parents’ private cause of action, DEBRA JONES, et al., v, VANCE NORTON, et al., Civil Case No.

2:09

- cv

- 00730, U.S. District Court, District of Utah, Central Division.

The att ached filings give an overview of the sequence of events that transpired on April 1, 2007 as well as a clear indication of the egregious actions of the law enforcement officers who participated in this “investigation.” The FBI and the BIA representatives w ho were present on April 1, 2007 and who participated in the “investigation” contributed to the travesties by (1) failing to protect the Ute Tribe’s interests as a sovereign in the crime scene, (2) failing to properly preserve and protect evidence from

bei ng tampered with and destroyed, and (3) failing to conduct their own independent investigation into the death of Todd Murray. As a result of the aforementioned failures, the Murray family and the Ute Indian Tribe are seeking damages from the United States in the amount of $10 million, as well as reimbursement of litigation costs and attorney fees.

Attached to this letter is a summary of the relevant Treaty obligations that have been violated by the actions and inactions of the United States in this

case. U nder Article 6 of the 1863 Treaty, the Ute Indian bands agreed to forego "private revenge or retaliation" for injuries suffered by the Tribe and

individual tribal members as the result of the “misconduct of individuals.” In return the United States guarant eed the Tribe and individual tribal members a right to legal redress for "any robbery violence, or murder" committed "on an Indian or Indians" belonging to the Ute Indian bands. Article 6 of the 1868 Treaty promised that any person violating the territoria l integrity of the Reservation and causing harm to the Tribe or its tribal members would be "punished according to the laws of the United States." In violation of these treaty obligations, the United States has failed to investigate or to prosecute

the ind ividuals involved in the shooting death of 21 year

- old Todd Murray in April 2007, and the subsequent conspiracy to suppress, alter, and destroy

critical evidence.

Please feel free to contact our office should you require any additional information regardi ng this forthcoming claim.

Sincerely,

Sandra L. Denton8

(footnote omitted). T he March 12, 2013 letter attached almost four hundre d pages of exhibits, including filings in the District Court s uch as the plainti ffs’ third amended complaint, the motion f or summary judgment, and plaintiffs’ mo t ion for alleged ly the tampering and destruction of critical evidence.

On March 7, 2014

, the District Court granted the defendant’s motion for summary judgment , and denied plaintiffs’ cross motion

. See Jones et al. v. Norton et al. , 3 F. Supp.

3d 1170. On April 1, 2014, plaintiffs appealed the District Court’s decision to the United

State s Court of Appeals for the Tenth Circuit. See Jones et al. v. Norton et al. , No. 14

- 4040 (10th Cir . appeal docketed Apr. 1, 2014). On November 18, 2014, plaintiffs filed another appeal to the United States Court of Appeals for the Tenth Circuit, appealing the

Distric Court ’ s amended judgment

. See Jones et al. v. Norton et al. , No. 14

- 414 4 (10th

Cir. appeal docketed Nov. 18, 2014). 7 To date, t he Tenth Circuit has not issued a decision on plaintiffs’ appeal.

In the District Court case

, the Court considered wheth er Mr. Murray was “seized”

for 4 th Amendment purposes

. 8 Most rele vant to the above captioned case, “[t]he Plaintiffs contend that Detective Norton seized Mr. Murray when he (1) fired shots at Mr. Murray; and (2) according to Plaintiffs, shot Mr. Murray in the head.” Jones et al. v. Norton et al.

, 3 F. Supp. 3d at 1189. The District Court determined that “[t]he record does not support their claim and no reasonable jury could find against Detective Norton,” and that “[t]he evidence clearly shows that Mr. Murray shot himself.” Id. at 1189, 1190. T he District Court

also det ermined :

[T] he Plaintiffs' evidence is sparse, circumstantial, subject to more than one interpretation, and, at times, very speculative. Moreover, evidence to the contrary is strong and is consistent with a self

- inflicted gunshot wound. Deputy Byron test ified that he did not see Detective Norton next to Mr.

7 On October 15, 2014, the District Court amended its judgement “to reflect the award of

costs” to the defendants. See Jones et al. v. Norton et al. , No. 2: 09

– CV

– 730

– TC, 2014 WL 909569 (D. Utah Oct, 15, 2014).

8 As indicated by the District Court:

The Plaintiffs conte nd that officers Norton, Young, Byron, and Swenson seized Mr. Murray on the Reservation and so a violation of Mr. Murray's Fourth Amendment rights necessarily occurred. They focus on the following events: (1) Trooper Swenson's order to Mr. Kurip and Mr. Mu rray to stop after the car chase ended and the men got out of the car; (2) the forming of a police perimeter to entrap Mr. Murray; (3) Detective Norton firing at Mr. Murray twice; (4) when Detective Norton's bullet allegedly entered Mr. Murray's head; and (5) Deputy Byron handcuffing Mr. Murray while Trooper Young pointed his gun as cover for Deputy Byron.

Jones et al. v. Norton et al. , 3 F. Supp. 3d at 1186 (footnotes omitted).9

Murray when Mr. Murray dropped to the ground. Detective Norton testified that he was up on a hill when he saw Mr. Murray shoot himself

.

The Deputy Chief Medical Examiner Dr. Edward Leis, who conducted the physical examination of Mr. Murray's body, concluded in his report that the wound was caused by a gun shot “in close proximity to the skin surface when it was discharged.” He based his conclusion on “abundant soot at the inferior margin of the defect [the wound] and some marginal abrasion is also noted at the inferior margin. ” In his testimony, he elaborated on his conclusion that the gun was in contact with Mr. Murray's head when it was

fired:

At the perimeter, there are several triangular shaped te ars of the wound. That's a result of the gun being pressed up against the skin surface when it's discharged and gases causing the scalp to be separated from the underlying skull. When the scalp lifts up, it stretches and it tears and gets its characteristi c stellae appearance.

The smaller wound on the right side of Mr. Murray's head was, in Dr. Leis' opinion, the exit wound. After Dr. Leis certified that Mr. Murray's death was a suicide resulting from a gunshot wound to the head, he added an

additional cau se of death (based on results from testing of Mr. Murray's bodily fluids). Because the tests showed the presence of drugs and alcohol in Mr. Murray's system, Dr. Leis issued an amended death certificate which added “Acute alcohol intoxication; recent metha mphetamine use” as contributing to Mr. Murray's death.

Detective Norton was more than 100 yards away when Mr. Murray was

shot. Dr. Leis testified that there was no evidence that the wound could have been caused by a shot coming from that far away. Plainti ffs maintain that Detective Norton was not 100 yards away, but was right next to Mr. Murray and so he had the capability of inflicting the contact wound. But the actual evidence in the record (that is, testimony by Detective Norton and Deputy Byron) shows that Detective Norton was not right next to Mr. Murray when

the fatal shot was fired.

Id. at 1190

- 91 (footnotes omitted).

The District Court noted that plaintiffs also alleged the defendant conspired to cover up the killing of Mr. Murray, stating, “[s] ummed up, Plai ntiffs ’ argument is that Defendants engaged in ‘ [a] cons piracy to cover up a killing.’ Plaintiffs ’ theory is that Detective Norton shot and killed Mr. Murray, and that the rest of the Defendants conspired

to cover

- up that killing and protect Detective Norton.” Id. at 1197 (footnotes omitted). Addressing the plaintiffs’ alleged conspiracy, the court stated: “T he focus of the Plaintiffs ’10

conspiracy theory is the failure to give aid and their spoliation argument about the

destruction of evidence .” Id. at 1202.

Turning to plaintiffs’ claims of the defendants’ failure to give medical aid to Mr. Murray, and the defendants’ “interference with Mr. Murray's due process right of access to courts via the failure to preserve critical evidence and the affirmative destruction of critical evidence,” the District Court determined

,

[n] one of that testimony could allow a reasonable jury to conclude that Individual Defendants were deliberately indifferent to Mr. Murray's situation, or that they knew that th ere was a substantial risk of significant harm to Mr. Murray if they did not provide first aid. If anything, the evidence shows that at least three of the Individual Defendants (Young, Davis, and Slaugh) were concerned that attempts to provide any kind of aid to Mr. Murray would do more harm than good

.

Id. at 1210. The District Court stated: “[i]n sum, there is no evidence before the court to support a finding that the inaction by each individual defendant was part of a conspiracy to let Mr. Murray die. ” Id. at 1203. The District C ourt also determined that , “[b]ased on the facts as detailed and explained in its spoliation order, the court concludes that no reasonable jury could conclud e that Defendants conspired to ‘ effectively eliminate[ ] all probative e vidence ’ and ‘ clean the closet of evidence that would have allowed Plaintiffs

to build their case. ’ ” 9 Id. at 1204 (quoting various plaintiffs’ briefs; omissions in original; footnote omitted). Therefore, t he District Court concluded that “ the Defendants d id not violate Mr. Murray's civil rights for failing to provide medical aid, nor did the Defendants fail to preserve evidence. ” 10 Id. at 1210 (footnote omitted).

9 I n relation to plaintiffs’ claim that defendants’ conspired to violate Mr. M urray's civil rights, the District Court explained that the plaintiffs asked “the court to infer the existence of such a conspiracy (much like they asked the court to infer racial animus) from a handful of facts and the Plaintiffs' speculative characteriza tion of those facts as so ‘brazen and flagrant’ and ‘unjustifiable and irrational’ that they support a finding of conspiracy.” Jones

et al. v. Norton et al. , 3 F. Supp. 3d

. at 1201 (footnote omitted).

10 The defendants’ alleged failure to preserve eviden ce was discussed in detail in the District Court’s spoliation order. See Jones et al. v. Norton et al. , No. 2: 09

– CV

– 730

– TC,

2014 WL 909569. For instance, the plaintiffs argued that “ critical evidence was lost because Mr. Murray's hands were not bagged pr operly and Mr. Murray's body was not properly preserved because the body bag was incorrectly sealed.” The District Court, however, determined, that:

There is no evidence to show that Mr. Murray's hands were bagged improperly. Plaintiffs argue that Mr. Mur ray's hands must have been improperly bagged because some photographs showed his hands bagged and others did not, but there is no evidence to show who, when, and where11

On April 1, 2013, a pproximately three weeks after plaintiffs mailed the March 12,

2013 letter to the Department of the Interior officials, giving notice of the ir intent to file suit

in this court

, and e xac tly six years after Todd Murray ’s death, plaintiffs filed suit in this

c ourt

. Plaintiffs’ suit in this court was consistent with the information submitted in the March 12, 2013 letter.

In response, defendant filed a motion to dismiss

, pursuant to RCFC 12(b)(1) and RCFC 12(b)(6)

, alleging lack of subject matter jurisdiction and failure to state a claim. Notably, defendant argued that “[i]n addi tion to the various individuals identified in the Complaint, Plaintiffs aver that the FBI, BIA, the State of Utah, Unitah County, Vernal city,

and various non

- federal enforcement agencies are ‘bad men’ as that term is used in the

treaties

. ” According to de fendant, “[t]he federal government and various state enforcement agencies, however, cannot be ‘ bad men ’ as that term is used in the treaties.”

Plaintiffs subsequently moved to amend the complaint, and in support of their

motion stated:

The Plain tiffs’ proposed amendments [sic] correct the pleading deficiencies cited by the United States in its motion to dismiss the complaint. The amendments include additional factual allegations to make clear the substance of the Plaintiffs’ allegations, and to m ake clear that Plaintiffs sought administrative review of Todd Murray’s shooting death before filing

this action. The amendments also make clear that Plaintiffs’ claims are based on the actions and inactions of individual federal officers, not the

actions or inactions of the federal agencies employing those officers, i.e., the Federal Bureau of Investigation and the Bureau of Indian Affairs.

The court granted plaintiffs’ motion

, after which plaintiffs filed an amended complaint. Plaintiffs ’ amended complai nt

, which asserts numerous claims for relief

, alleges that the United States committed cognizable wrongs upon Mr. Murray and the Ute

T ribe

. According to plaintiffs ’ amended complaint

, the United States , by and through the conduct of the FBI and BIA, violat ed the guarantees of two Ute T reaties

, entered into and

s igned in 1863 and 1868 . Plaintiffs also advanc e a breach of trust claim for the same alleged violations and injustices

. For these all eged injuries, plaintiffs seek compensatory damag es in the amoun t of $10,000,000 .00

, as well as costs, attorney’s fees, “ and all other damages permitted by the Treaties with the Utes, and such other and further relie f as this Court deems proper.”

Specifically, plaintiffs’ claims for relief , set forth in the amended complaint, are: “ I. VIOLATION OF THE UTE TREATIES AND OTHHER [sic] FEDERAL LAWS ,” and “ I. [sic]

Mr. Murray's hands were bagged, or when the bags were removed. And

there is no evidence to show that the body bag was sealed.

Id. at *11.12

BREACH OF TRUST IN VIOLATION OF THE UTE TREATIES AND OTHER FEDERAL

LAW .” (capitalization in original). Within the alleged “ VIOLATION OF THE UTE

TREATIES AND OT HHER [sic] FEDERAL LAWS, ” (capitalization in original) plaintiffs allege :

B y their actions and inactions, the FBI and BIA officers committed wrongs to Todd Murray, the Murray family and the Ute Tribe (i) by acting in concert with state/county/municipal o fficers, expressly or impliedly, in concocting, or permitting to be concocted, a false story that Todd Murray shot himself in the back of his head, execution style, above and behind his left ear; (ii) by failing to take custody of Murray’s body and to secu re the body against desecration and spoliation of evidence; [sic] (iv) by participating in, tacitly allowing, or failing to prevent, the desecration of Murray’s body and the spoliation of critical evidence both at the shooting scene and afterwards at

the M edical Center, Blackburn Mortuary, and at the Utah OME; (v) the failure to insure that a proper autopsy was performed on Murray’s body; (vi) by failing to conduct any kind of investigation into Todd Murray’s murder;

and (vii) by failing to protect the terr itorial integrity of the Tribe’s reservation boundary and the Tribe’s sovereign interests in the crime scene where Murray was shot. [ 11 ]

(emphasis in original).

Regarding the “ BREACH OF TRUST IN VIOLATION OF THE UTE TREATIES

AND OTH H ER [sic] FEDERAL LAW ,” (capit alization in original) plaintiffs claim that “ [i] n violation of federal law and its treaty obl igations, the United States has failed to investigate or prosecute the individuals invol ved in the shooting death of 21 year

- old Todd Murray on April 1, 2007, or the subsequent conspiracy to suppress, alter, and destroy critical

11 The court notes that pre ceeding the list of allegations in plaintiffs’ amended complaint, plaintiffs also claim:

In April 2007, Todd Murray, Todd Murray’s family, and the Ute Indian Tribe

suffered “ injuries” at the hands of “bad men” as those terms are used in the Ute Treaties of 1863 and 1868. These injuries include ( i) the extra

- territorial police pursuit, assault upon and murder of Todd Murray, ( ii ) the conspiracy to cover up Todd Murray’s murder, ( iii ) the failure of federal officers to take custody of Murray’s body and to secure the body against desecration and spoliation of evidence; ( iv ) the desecration of Murray’s body and the spoliation of critical evidence both at the shooting scene and afte rwards at the Medical Center, Blackburn Mortuary, and at the Utah OME; ( v ) the failure to insure that a proper autopsy was performed on Murray’s body; [sic] ( vii ) failure of federal officers to conduct any kind of investigation into Todd Murray’s murder; a nd (vi) the failure of federal officers to protect the territorial integrity of the Tribe’s reservation boundary and the Tribe’s sovereign interests in the crim e scene where Murray was shot.13

evidence related to the shooting death. ” Plaintiffs claim that “[b]y failing to investigate Todd Murray’s death and by taking no action to promote justice in Indian Country, Special Agent Rex Ashdown and David Ryan and BIA Officers James Beck, Terrance Cuch and Kevin Myore breached their duties to the Ute Tribe, to Todd Murray, and to Murray’s family under the Ute Tre aties of 1863 and 1868. . . .”

Plaintiffs further allege:

The United St ates has also breached its trust obligations to the Tribe and Murray’s family by failing to protect the territorial integrity of the Tribe’ s reservation and the Tribe’s sovereign interest in the shooting site, thus

a llowing unauthorized persons to trespass on the Ute homeland and cause

harm to tribal members with complete impunity. The Defendant’s breach of

its trust and tre aty obligations has resulted in substantial loss to the Tribe. Todd Murray was a regist ered tribal member and a lineal descendant of Ut e blood. The Ute Tribe is a small trib e with less than 4,000 members. Unremitting tribal membership is an integral part of the Tribe’s ability to

sustain its lineage and culture. The Defendant is liable in damages for such

loss

.

In response to the amended complaint, defendant , again

, filed a motion to dismiss

both counts pursuant to RCFC 12(b)(1) and RCFC 12(b)(6)

, for lack of subject matter jurisdiction, and failure to state a claim, respectively . For count one, defendant contends

that the violation of th e Ute Treaties should be dismissed “ for lack of jurisdiction and for

failure to state a claim. ” Defendant argues that “[p]laintiffs have not complied with the terms of the Treaty and have not exhausted the administrative remedies required by the
express te rms of the Treaty

. ” Defendant contends that even if the court found jurisdiction

under the “ bad m e n ” provision 12 of the 1868 Treaty with the Utes , “plaintiffs do not state a cognizable claim under the ‘bad men’ provision.” For count two

, defendant contends

th at

, “[p]laintiffs’ breach

- of

- trust claims are barred by the United States’ sovereign immunity because plaintiffs did not allege the violation of a specific statutory or regulatory

money

- mandating duty, ” and that the T reaties involved “do not impose a nondi scretionary fiduciary duty upon the United States to prosecute alleged ‘bad men’ without exercising its prosecutorial discretion.”

DISCUSSION

Background of the Ute Treaties

Many of the plaintiffs’ claim s center on particular provisions of two treaties

executed

, and ratified

, in the mid

- 19 th century. The first treaty was concluded on October
7, 1863. See Treaty with the Utah Tabeguache Band, O ctober 7, 1863, 13 Stat. 673

12 Both defendant and plaintiffs use the phrases “bad men” provi sion and “bad men” clause, in their filings. For simplicity, unless quoting directly, the court adopts the phrase “bad men” provision.14

( referred to by the parties as the 1863 Treaty). 13 Through the 1863 T reaty, the Tabeguache Band of Ute Indians ceded their rig hts and interest to vast tracts of land in

the Western United States

. See id

. Article 1 of the 1863 Treaty states: “It is admitted by the Tabeguache band of Utah Indians that they reside within the territorial limits of the United States, acknowledging the ir supremacy, and claim their protection. The said band also admits the right of the United States to regulate all trade and intercourse with them

. ”

Article 2 of the 1863 Treaty states

, in part: “Said Tabeguache band of Utah Indians hereby cede, convey, an d relinquish al l of their claim , right, title, and interest in and to any and

all of their lands within the territory of the United States, wherever situated, excepting that which is included within the following boundaries. . . .” Id. In return: “ [f] or the period of ten years the said band shall receive, annually, by such distribution as the Secretary of the Interior may direct, ten thousand dollars' worth of goods, and also ten thousand dollars' worth of provisions.” Id.

Article 10 of the 1863 T reaty provides:

Each family that shall announce through its head to the agent of the band a willingness and determination to begin and follow the pursuits of agriculture, by farming or raising stock and growing wool, upon such lands and according to such regulations as the Sec retary of the Interior may prescribe, shall receive the following donations of stock to aid them in their endeavor to gain a livelihood by such new pursuits, viz.:

Of cattle, one head annually during five years, beginning with the ratification

of this tre aty.

Of sheep, ten head annually during the first two years after the ratification of this treaty, and five head annually during the three years thereafter.

The Secretary of the Interior may also direct that their share of annuity goods and provisions sh all be of a character suited to such change of life: Provided, however

, That such stock shall only be donated as long as such family shall in good faith keep and use the same for the purpose indicated

in this article.

All the Indians of said band who may adopt and conform to the provisions of this article shall be protected in the quiet and peaceable possession of their said lands and property.

Id. (emphasis in original).

13 On March 25, 1864, the United States Senate advised ratification, with amendments,

which were assented to by the Trib e on October 8, 1864. See 13 Stat. 673. The 1863 Treaty was then signed by President Lincoln on December 14, 1864. See id.15

In March of 1868, the United States concluded another treaty with the Ute. See

Tre aty with the Ute, M arch 2, 1868, 15 Stat. 619 ( referred to by the parties as the 1868 Treaty)

. 14 As noted in the preamble and Article 1 of the 1868 Treaty :

Articles of a treaty and agreement made and entered into at Washington City, D.C., on the second day of March, one thousand eight h undred and sixty

- eight, by and between Nathaniel G. Taylor, Commissioner of Indian Affairs, Alexander C. Hunt, governor of Colorado Territory and ex

- officio superintendent of Indian affairs, and Kit Carson, duly authorized to represent the United States, o f the one part, and the representatives of the Tabaquache [ 15 ] , Muache, Capote, Weeminuche, Yampa, Grand River, and Uintah bands of Ute Indians, (whose names are hereto subscribed,) duly authorized and empowered to act for the body of the people of said band s, of the other part , witness:

Article I. All the provisions of the treaty concluded with the Tabequache band of Utah Indians, October seventh, one thousand eight hundred and sixty

- three, as amended by the Senate of the United States and proclaimed

Decemb er fourteenth, one thousand eight hundred and sixty

- four, which are not inconsistent with the provisions of this treaty, as hereinafter provided, are hereby reaffirmed and declared to be applicable and to continue in force as well to the other bands, respe ctively, parties to this treaty, as to the Tabequache band of Utah Indians.

Id. Article 2 of the 1868 Treaty state s

, in part:

[T]he United States now solemnly agree that no persons, except those herein authorized so to do, and except suc h officers, agen ts, and employe s [sic] of the Government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law shall ever be permitted to pass over, settle upon, or reside in the Territory described in this article, except as herein otherwise provided.

Id. Art. 2. T he 1868 T reaty reaffirmed and incorporated the provisions of the 1863 T reaty, but also created new guarantees and promises. For example, Article 5 the 1868 Treaty

established how to resolve “depredation on pe rson or property ” :

The United States agree that the agents for said Indians, in the future, shall make their homes at the agency buildings; that they shall reside among the

14 On July 25, 1868, the United States Senate advised ratification, with amendments,

which were assented to by the Tribe in August and September 1868. See 15 Stat. 619. The 1868 Treaty was then signed by President Johnson on November 6, 1868. See id.

15 Although the 1868 Treaty uses the spelling “Tabaquache” in the preamble, all other spellings of the Tribe are “Tabequache.”16

Indians, and keep an office open at all times for the purpose of prompt and dilige nt inquiry into such matters of complaint by and against the Indians, as may be presented for investigation under the provisions of their treaty stipu lations, as also for the faithful discharge of other duties enjoined on them by law. In all cases of depre dation on person or property

, they shall cause the evidence to be taken in writing and forwarded, together with their finding, to the Commissioner of Indian Affairs, whose decision, subject to the revision of the Secretary of the Interior, shall be binding on the parties to this treaty.

Id. Art. 5. Article 6 states in full:

If bad men among the whites or among other 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, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person f or the loss sustained.

If bad men among the Indians shall commit a wrong or depredation upon

th e person or property of any one, white, black, or Indian, subject to the authority of the United States and at peace therewith, the tribes herein

named solemnl y agree that they will, on proof made to their agent and

noti ce to him, deliver up the wrong doer to the United States, to be tried and punished according to its laws, and in cas e they wilfully refuse so to do the person injured shall be reimbursed for his loss from the annuities or other moneys due or to become due to them under this or other treaties made

with the United States.

Id. Art. 6. This provision is often referred to by courts and litigan ts as the “bad men” provision. “ Bad men ” provisions are com mon in Native American treaties of this time period , and a ppear to have been fairly standard in Native American treaties during the

19 th century. As explained by the United States Court of Appeals for the Federal Circuit

in Tsosie v. United States , 825 F. 2d 393 (Fed. Cir. 1987):

The treaty in question [the Navajo Treaty] is one of nine made in 1868, by and between commissioners representing the United States and chiefs of various previously hostile Indian tribes. The treaties were all duly ratified, proc laimed, and published in volume fifteen of the Statutes at Large. All say that peace is their object and all contain “bad men” articles in similar language.

Id. at 395 ; see also Elk v. United States , 87 Fed. Cl. 70, 81 & 81 n.16 (2009) (noting that

other 1868 treaties “contain ‘bad men’ clauses identical to that in the Sioux Treaty, citing the Najavo Treaty and noting the earlier 1868 Ute Treaty)

, appeal dismissed , 449 F. App’x 1 (Fed. Cir. 2010) ; Garreaux v. United States , 77 Fed. Cl. 726, 734 (2007).17

A s noted above, in the “ bad men ” provision of the 1868 Ute T reaty, the United

States promised :

I f bad men among the whites or among other people, subject to the authority of the United States, shall commit any wrong upon the person or property

of the India ns, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburs e the injured

p erson for the loss sustained.

Plaintiffs allege that on April 1, 2007

, Todd Murray was “wronged” by “bad men,”

under the terms of the 1868 Ute Treaty . Further, plaintiffs contend that “[t]he United States agreed to protect and reimburse the Ute Indians for all harm, injury, unjust, or unmerited treatment inflicted upon any tribal member or tribal property by n on

- whites on the reservation,” but that the United States failed to honor its obligations under t he 1868 Treaty by not investigating a nd prosecuting the alleged wrongdoers.

Jurisdiction

Defendant argues that this court lacks jurisdiction over plaintiffs ’ case because plaintiffs have not complied with the terms of the 1868 Ute Treaty, and further argue s that plaintiffs have not stated a cogn izable claim under the “bad men” provision. It is well established that “‘subject

- matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.’” Arbaugh v. Y & H Corp. , 546 U.S. 500, 514 (2006) (quoting U nited States v. Cotton , 535 U.S. 625, 630 (2002)). “[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki

, 562 U.S. 428,

434 (2011); see also Gonzalez v. Thaler , 132 S. Ct. 641, 648 (2012) (“When a requirement goes to subject

- matter jurisdiction, courts are obligated to consider sua

spon te issues that the parties have disclaimed or have not presented.”); Hertz Corp. v.

Friend , 559 U.S. 77, 94 (2010) (“Courts have an independent obligation to determine whether subject

- matter jurisdiction exists, even when no party challenges it.” (citing

A rbaugh v. Y & H Corp

. , 546 U.S. at 514)); Special Devices, Inc. v. OEA, Inc. , 269 F.3d 1340, 1342 (Fed. Cir. 2001) (“[A] court has a duty to inquire into its jurisdiction to hear and decide a case.” (citing Johannsen v. Pay Less Drug Stores N.W., Inc. , 918 F.2d 160, 161 (Fed. Cir. 1990))); View Eng’g, Inc. v. Robotic Vision Sys., Inc. , 115 F.3d 962, 963 (Fed. Cir. 1997) (“[C]ourts must always look to their jurisdiction, whether the parties raise the issue or not.”). “Objections to a tribunal’s jurisdiction can be raised at any time, even by a party that once conceded the tribunal’s subject

- matter jurisdiction over the controversy.” Sebelius v. Auburn Reg’l Med. Ctr. , 133 S. Ct. 817, 824 (2013); see also Arbaugh v. Y & H Corp. , 546 U.S. at 506 (“The objection that a federal court lacks subject

matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”); Cent. Pines Land Co.,

L.L.C. v. United States , 697 F .3d 1360, 1364 n.1 (Fed. Cir. 2012) (“An objection to a18

court’s subject matter jurisdiction can be raised by any party or the court at any stage of litigation, including after trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp.

, 546 U.S. at 50 6

– 07)); Rick’s Mushroom Serv., Inc. v. United States , 521 F.3d 1338, 1346 (Fed. Cir. 2008) (“[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp. , 546 U.S. at 506; Folden

v. United States , 379 F.3d 1344, 1354 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. denied , 545 U.S. 1127 (2005); and Fanning, Phillips & Molnar v. West

, 160 F.3d 717, 720 (Fed. Cir. 1998))); Mata v. United States , 118 Fed. Cl. 92, 95

- 96 (2014)

, recons. d enied , 2015 WL 1000820 ( Fed. Cl. Mar. 4, 2015) ; Pikulin v. United

States , 97 Fed. Cl. 71, 76, appeal dismissed , 425 F. App’x 902 (Fed. Cir. 2011). In fact, “[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte , even where . . . neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings

, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp.

, 134 F.3d 1481, 1485 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed. Cir.),

cert. denied , 525 U.S. 826 (1998)), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc. , 546 U.S. 975 (2005), cert. dismissed as improvidently granted , 5 48 U.S. 124 (2006); see also Avid Identification Sys., Inc. v. Crystal Import Corp. , 603 F.3d 967, 971 (Fed. Cir.) (“This court must always determine for itself whether it has jurisdiction to hear the case before it, even when the parties do not raise or c ontest the issue.”), reh’g and reh’g en banc denied , 614 F.3d 1330 (Fed. Cir. 2010), cert. denied , 131 S. Ct. 909 (2011).

Pursuant to the RCFC and the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain stateme nt of the grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2014); Fed. R. Civ. P. 8(a)(1), (2) (2015); see also Ashcroft v. Iqbal , 556 U.S. 662, 677

– 78 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S.
544, 555

– 57, 570 (2007) ) . “Determination of jurisdiction starts with the complaint, which

must be well

- pleaded in that it must state the necessary elements of the plaintiff’s claim, independent of any def ense that may be interposed.” Holley v. United States , 124 F.3d 1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust , 463 U.S. 1 (1983)), reh’g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v.

United States , 97 Fed. Cl. 203, 208 (2011); Gonzalez

- McCaulley Inv. Grp., Inc. v. United

States , 93 Fed. Cl. 710, 713 (2010). “Conclusory allegations of law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp. , 136 F.3d
1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel Corp. , 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004)). “A plaintiff’s fact ual allegations must ‘raise a right to relief above the speculative level’ and cross ‘the line from conceivable to plausible.’” Three S Consulting v. United States , 104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. at 555), aff’d

, 562 F. App’x 964 (Fed. Cir.), reh’g denied (Fed. Cir. 2014). As stated in Ashcroft v. Iqbal , “[a] pleading that offers

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ 550 U.S. at 555. Nor does a compla int suffice if it tenders ‘naked assertion[s]’

devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal , 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. at 555).19

When deciding a case based on a lack of subject matter jurisdiction or for fa ilure to state a claim, this court must assume that all undisputed facts alleged in the complaint

are true and must draw all reasonable inferences in the non

- movant’s favor. See Erickson

v. Pardus , 551 U.S. 89, 94 (2007) (“In addition, when ruling on a def endant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” (citing Bell Atl. Corp. v. Twombly , 550 U.S. at 555

– 56 (citing Swierkiewicz v.

Sorema N. A. , 534 U.S. 506, 508 n.1 (2002)))); Scheuer v. Rho des , 416 U.S. 232, 236 (1974) (“Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint shou ld be construed favorably to the pleader.”), abrogated on other grounds by Harlow v. Fitzgerald , 457 U.S. 800 (1982), recognized by

Davis v. Scherer , 468 U.S. 183, 190 (1984); United Pac. Ins. Co. v. United States , 464 F.3d 1325, 1327

– 28 (Fed. Cir. 2006); Samish Indian Nation v. United States , 419 F.3d 1355, 1364 (Fed. Cir. 2005); Boise Cascade Corp. v. United States , 296 F.3d 1339, 1343 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2002), cert. denied , 538 U.S. 906 (2003). If a defendant or the co urt challenges jurisdiction or plaintiff’s claim for relief, however, the plaintiff cannot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction. McNutt v. Gen. Motors Acceptance Corp. of Ind.

, 298 U.S. 178, 189 (1936); see also Land v. Dollar

, 330 U.S.
731, 735 n. 4 (1947); Reynolds v. Army & Air Force Exch. Serv.

, 846 F.2d 746, 747 (Fed. Cir. 1988); Catellus Dev. Corp. v. United States

, 31 Fed. Cl. 399, 404

– 05 (1994).

The Tucker Act grants jurisdiction to this court as follows:

The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the

Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal

constitut ional, statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Navajo Nation , 556 U.S. 287,

289

– 90 (2009) ( Navajo Nation II) ; 16 United States v. Mitchell , 463 U.S. 206, 216 (1983) ( Mitchell I I ) ; 17 see also Greenlee Cnty., Ariz. v. United States , 487 F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied , 552 U.S. 1142 (2008);

Palmer v. United States , 168 F.3d 1310, 1314 (Fed. Cir. 1999).

16 The d ecision in Navajo Nation II was preceded by the Supreme Court decision in United States v. Navajo Nation , 537 U.S. 488 (2003) ( Navajo Nation I ).

17 The decision in Mitchell II was preceded by the Supreme Court decision in United

States v. Mitchell , 445 U.S . 535 (1980) ( Mitchell I ).20

“Not every claim invoki ng the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the

United States . . . .” Mitchell II , 463 U.S. at 216; see also United States v. White Mountain Apache Tribe , 537 U.S. 465, 472 (2003); Smith v. United States , 709 F.3d 1114, 1116 (Fed. Cir.), cert. denied , 134 S. Ct. 259 (2013); RadioShack Corp. v. United States , 566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States , 521 F.3d at 1343 (“[P ]laintiff must . . . identify a substantive source of law that creates the right to recovery of money damages against the United States.”). In Ontario Power Generation,

Inc. v. United States , the United States Court of Appeals for the Federal Circuit ident ified three types of monetary claims for which jurisdiction is lodged in the United States Court

of Federal Claims. See Ontario Power Generation, Inc. v. United States , 369 F.3d 1298, 1301 (Fed. Cir. 2004). The court wrote:

The underlying monetary claims are of three types. . . . First, claims alleging the existence of a contract between the plaintiff and the government fall within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver encompasses claims where “the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum.” Eastport S.S. [Corp. v. United States , 178 Ct. Cl. 599, 605

– 06,] 372 F.2d [1002,] 1007

- 08 [(1967)] (describing illegal exaction claims as claims “in

which ‘the Government has the citizen’s money in its pocket’” (quoting Clapp v. United States , 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) . . . . Third, the Court of Federal Claims has jurisdiction over those claims where “money has not been paid but the plainti ff asserts that he is nevertheless entitled to a payment from the treasury.” Eastport S.S. , 372 F.2d at 1007. Claims in this third category, where no payment has been made to the government, either directly or in effect, require that the “particular provis ion of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum.” Id. ; see also [ United States v. ]Testan , 424 U.S. [392,] 401

- 02 [ ( 1976 ) ] (“Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim

- whether it be the Constitution, a statute, or a regulation

- does not create a cause of action for money damages unless, as the Court of Claims has stated, that basis ‘in itself . . .

can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’” (quoting Eastport S.S. , 372 F.2d at 1009)). This category is commonly referred to as claims brought under a “money

- mandating” statute.

Ontario Power Gen eration, Inc. v. United States , 369 F.3d at 1301; see also Twp. of

Saddle Brook v. United States , 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money

- mandating, “the statute and regulations must be such that they ‘“can fairly be in terpreted as mandating compensation by the Federal Government for the damage sustained.”’” Roberts v. United States , 745 F.3d 1158, 1162 (Fed. Cir. 2014) (quoting United States v. White Mountain Apache Tribe

, 537 U.S. at 472 (quoting United States v. Testa n , 424 U.S. 392, 400 (1976))); see also21

Navajo Nation II , 556 U.S. at 290; United States v. White Mountain Apache Tribe , 537 U.S. at 472; Mitchell II , 463 U.S. at 217; Blueport Co., LLC v. United States , 533 F.3d 1374, 1383 (Fed. Cir. 2008), cert. denied

, 555 U.S. 1153 (2009). The source of law granting monetary relief must be distinct from the Tucker Act itself. See Navajo Nation II

, 556 U.S. at 290 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional provision[] that operat e[s] to waive sovereign immunity for claims premised on other sources of law ( e.g. , statutes or contracts).”). “‘If the statute is not money

mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject matter j urisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin

. , 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States , 487 F.3d at 876); Fisher v. United States , 402 F.3d 1167, 1173 (Fed. Cir. 2005) (The absence

of a mon ey

- mandating source is “fatal to the court's jurisdiction under the Tucker Act.”); Peoples v. United States , 87 Fed. Cl. 553, 565

– 66 (2009).

If a defendant or the court challenges jurisdiction or a plaintiff’s claim for relief, however, the plaintiff cann ot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction. See McNutt v. Gen. Motors Acceptance Corp. of Ind. , 298 U.S. 178, 189 (1936); see also Reynolds v. Army & Air

Force Exch. Ser v. , 846 F.2d 746, 747 (Fed. Cir. 1988). Therefore, although the court must assume that the undisputed facts alleged in the complaint are true for the purposes of the motion to dismiss and draws all reasonable inferences in the plaintiffs' favor, the facts alleged in the complaint must be plausible and not merely naked assertions devoid of a

factual basis. See Ashcroft v. Iqbal

, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice .”); see also McZeal v. Sprint Nextel Corp.

, 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (mere allegations of law and conclusions of fact are insufficient to support a claim); SUFI Network Servs.,

Inc. v. United States , 102 Fed. Cl. 656, 660 (2012) (plaintiff “must provide more than mere

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” (citing Bell Atl. Corp. v. Twombly

, 550 U.S. at 555 (citing Papasan v. Allain , 478 U.S. 265, 286 (1986) ))); Rack Room Shoes v. United States 718 F.3d 1370, 1376 (Fed. Cir.) reh’g

and reh’g en banc denied , (Fed. Cir. 2013) cert. denied , 134 S. Ct. 2287 (2014); Kam

Almaz v. United States , 682 F.3d 1364, 1367

- 68 (Fed. Cir. 2012) (“[A] court is ‘“not bound to accept as true a legal conclusio n couched as a factual allegation.”’” (quoting Twombly

, 550 U.S. at 555 (quoting Papasan v. Allain , 478 U.S. 265, 286 (1986)))).

“ It is well established that, in addition to the complaint itself a nd exhibits thereto,

the court ‘ must consider

. . . documen ts incorporated into the complaint by reference, and matters of which a court may take judicial notice.’” Bell/Heery v. United States , 106 Fed. Cl. 300, 307

- 08 (2012) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 322 (2007) (citing 5 B Wright & Miller § 1357 (3d ed. 2004 and Supp. 2007)) ), aff’d

, 739 F.3d 1324 (Fed. Cir.)

, reh’g and reh’g en banc denied (Fed. Cir. 2014); see also Fredericksburg Non

- Profit Housing Corp. v. United States , 113 Fed. Cl. 244, 255 n.19 (2013) (citing 5B Char les Alan Wright & Arthur R. Miller, Fed eral Practice & Procedure § 1357); Bristol Bay Area Health Corp. v. United States , 110 Fed. Cl. 251, 262 (2013)

. As

also discussed further below, the “ bad men ” provision of the 1868 Ute Treaty provides a basis for juri sdiction in this court.22

Administrative Exhaustion

D efendant argues that administrative exhaustion is a “jurisdictional prerequisite” to judicial review. The defendant relies on language in the 1868 Ute T reaty, which reads:

In all cases of depredation on person or property, they shall cause the evidence to be taken in writing and forwarded, together with their finding, to the Commissioner of Indian Affairs, whose decision, subject to the revision of the Secretary of the Interior, shall be binding on the parties to this [1868] treaty.

1868 Treaty, Art. 5. Defendant contends that this language mandates full administrative review, allowing the Department of the Interior an opportunity to issue a “binding decision” before a plaintiff can seek relief from t he courts. Defendant states that “throughout the six years following Mr. Murray’s death, Plaintiffs have had every opportunity to present a ‘bad men’ claim to the Department of the Interior (‘DOI’), as agreed upon by both the Tribe and

the United States. S ee Treaty with the Ute Indians, 15 Stat. 619 (1868). Plaintiffs have

not.” (internal citation omitted). According to defendant, “plaintiffs have not complied with the terms of the Treaty and have not exhausted the administrative remedies required by

the e xpress terms of the Treaty.” As a consequence, defendant argues,

DOI has not been provided with an opportunity to “cause the evidence to be taken in writing and forwarded, together with [the government agent’s] finding, to the Commissioner of Indian Affa irs, whose decision, subject to the revision of the Secretary of the Interior, shall be binding on the parties to this treaty.” Art. 5, 1868 Treaty. Having failed to exhaust their administrative remedies, Plaintiffs’ Amended Complaint should be

dismissed.

( alterations in original). D efendant urges th is c ourt to dismiss plaintiffs’ claims in the

United States Court of Federal Claims for lack of subject matter jurisdiction.

In response, plaintiffs argue they have satisfied the exhaustion requirements of th e treaty by way of their March 12, 2013 letter to Department of the Interior officials, placing the Department of the Interior on notice of plaintiffs’ intention to file suit in this court

. Plaintiffs allege that the c ourt “has previously analyzed this spe cific bad men treaty clause and has held that the only prerequisite required before suit is filed is that a notice of claim must be sent to the agency and a copy be sent to the Commissioner of Indian Affairs in Washington.” Moreover, p laintiffs argue that the exhaustion requirement is non

jurisdictional , maintaining that any requirement to exhaust administrative remedies is purely prudential and

, therefore

, subject to the court’s discretion.

“The doctrine of exhaustion of administrative remedies is one am ong related

doctrines

— including abstention, finality, and ripeness

— that govern the timing of federal

court decision making.” McCarthy v. Madigan , 503 U.S. 140, 144 (1992)

, superseded by

statute as recognized in Garrett v. Hawk , 127 F.3d 1263 (10th Cir. 199 7)

. The Supreme23

Court has held “ ‘ that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.’” McKart v. United States

, 395 U.S. 185, 194 (1969) (quoting Myers v. Bethlehem Sh ipbuilding Corp. , 303 U.S. 41,

50

— 51 (1938)); see also Woodford v. Ngo , 548 U.S. 81, 88 (2006); Sandvik Steel Co. v.

United States , 164 F.3d 596, 599 (Fed. Cir. 1998) (The general rule is that “no one is entitled to judicial relief for a supposed or threat ened injury until the prescribed administrative remedy has been exhausted.”); Burlington N. R.R. Co. v. United States

, 752 F.2d 627, 629 (Fed. Cir. 1985).

“Exhaustion of administrative remedies serves two main purposes.” Woodford v. Ngo , 548 U.S. at 89; In re DBC , 545 F.3d 1373, 1378 (Fed. Cir. 2008). As described by the United States Supreme Court, the first, and primary, purpose is the development of a proper factual background:

A primary purpose is, of course, the avoidance of premature interruption of

t he administrative process. The agency, like a trial court, is created for the purpose of applying a statute in the first instance. Accordingly, it is normally desirable to let the agency develop the necessary factual background upon

which decisions should be based. And since agency decisions are frequently of a discretionary nature or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise.

McKart v. United States , 395 U.S. at 193

– 94; see also Kappos v. Hyatt , 132 S. Ct. 1690, 1692 (2012) (noting that “‘the avoidance of premature interruption of the administrative process’” is the “primary purpose” of the doctrine of administrative exhaustion). Under this theory, “[t]he administrative agency is created as a separate entity and invested with certain powers and duties. The courts ordinarily should not interfere with an agency until it has completed its action, or else has clearly exceeded its jurisdiction.” McKart v. United

States , 395 U. S. at 194. “Exhaustion gives an agency ‘an opportunity to correct its own mistakes with respect to the programs it administers before it is ha u led into federal court,’ and it discourages ‘disregard of [the agency's] procedures.’” Woodford v. Ngo , 548 U.S. at 89 (quoting McKart v. United States , 395 U.S. at 195) ( alteration in original); In re DBC

, 545 F.3d at 1378; see also Kentucky v. United States , 62 Fed. Cl. 445, 453 (2004) (“‘When administrative remedies have not been exhausted, “judicial review of

adm inistrative action is inappropriate,” since it is “a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice. ”’” (quoting

Sandvik Steel Co. v. United States , 164 F.3d at 599 (quoting Sharp Corp. v. United States

, 837 F.2d 1058, 1062 (Fed. Cir. 1988))), aff’d , 424 F.3d 1222 (Fed. Cir. 2005); see also McCarthy v. Madigan , 503 U.S. at 145 (“Correlatively, exhaustion principles apply with special force when ‘frequent and deliberate flouting of administrative processes’ could weaken an agency's effectiveness by encouraging disregard of its procedures.” (quoting

McKart v. United States , 395 U.S. at 195)).

The second pu rpose for requiring exhaustion of administrative remedies is judicial economy. “And of course it is generally more efficient for the administrative process to go24

forward without interruption than it is to permit the parties to seek aid from the courts at

v arious intermediate stages.” McKart v. United States , 395 U.S. at 194. “Claims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court. In some cases, claims are settled at the admini strative level, and in others, the proceedings before the agency convince the losing party not to pursue the matter in federal court.” Woodford v. Ngo , 548 U.S. at 88; see also McCarthy v. Madigan , 503 U.S. at 145 (“When an agency has the opportunity to co rrect its own errors, a judicial controversy may well be mooted, or at least piecemeal appeals may be avoided.”). “And it can serve judicial efficiency by promoting development of an agency record that is adequate for later court review and by giving an ag ency a full opportunity to correct errors and thereby narrow or even eliminate disputes needing judicial resolution.” Itochu Bldg. Products v. United States , 733 F.3d 1140, 1145 (Fed. Cir. 2013); Kentucky

v. United States , 62 Fed. Cl. at 459; Forest Produc ts Nw., Inc. v. United States , 62 Fed. Cl. 109, 122 (2004), aff’d , 453 F.3d 1355 (Fed. Cir. 2006); see also Weinberger v. Salfi

, 422 U.S. 749 (1975) (the doctrine of administrative exhaustion may allow an agency “to compile a record which is adequate for j udicial review”).

“Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodfo rd v. Ngo , 548
U.S. at 90

- 91; see also Arctic Slope Native Assoc., Ltd. v. Sebelius , 583 F.3d 785, 793 (Fed. Cir. 2009) (“Statutory time restrictions on the submission of administrative claims are a part of the requirement that a party must satisfy to prop erly exhaust administrative remedies.”), reh’g and reh’g en banc denied (Fed. Cir.), cert. denied , 131 S. Ct. 144 (2010); Kellogg Brown & Root Servs., Inc. v. United States , 115 Fed. Cl. 46, 51 (2014); Paradigm Learning, Inc. v. United States , 93 Fed. Cl. 465, 473 (2010). “The fact that the administrative remedy was provided by a regulation rather than by a statute does not make the exhaustion doctrine inapplicable or inappropriate.” Sandvik Steel Co. v. United

States , 164 F.3d at 600; see also Itochu Bldg. Products v. United States , 733 F.3d at 1145 n.1 (“Failure to exploit an available agency remedy, even if not specifically required, can constitute a failure to exhaust in appropriate circumstances.” (citing Corus Staal BV

v. United States , 502 F.3d 1370, 1379 (Fed. Cir. 2007) (“The exhaustion requirement in this context is therefore not simply a creature of court decision, as is sometimes the case, but is a requirement explicitly imposed by the agency as a prerequisite to judicial review.")).

T he facts of a particular case, however, can call for an exception to otherwise requiring administrative exhaustion. See

, e.g.

, McKart v. United States , 395 U.S. at 197 (“We cannot agree that application of the exhaustion doctrine would be proper in the

circumstances of the present case.”). “‘[A]dministrative remedies need not be pursued if the litigant's interests in immediate judicial review outweigh the government's interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to

fu rther.’” McCarthy v. Madigan , 503 U.S. at 146 (quoting West v. Bergland , 611 F.2d 710, 715 (8th Cir.1979), cert. denied , 449 U.S. 821 (1980)); see also Shalala v. Illinois Council on Long Term Care, Inc. , 529 U.S. 1, 13, reh'g denied , 529 U.S. 1095 (2000) (“Doctrines of ‘ripeness' and ‘exhaustion’ contain exceptions, however, which exceptions permit early review when, for example, the legal question is ‘fit’ for resolution and delay means25

hardship, or when exhaustion would prove ‘futile[.]’” ( citing McCarth y v. Madigan , 503

U.S. at 147

– 48) ) (other citations omitted).

“Where the issue of exhaustion of administrative remedies is not governed by a particular statutory provision or an overall statutory scheme, the decision whether to require exhaustion in a par ticular case is a matter committed to the discretion of the trial

court.” Corus Staal BV v. United States , 502 F.3d at 1381 ; Bernklau v. Principi , 291 F.3d 795, 801 (Fed. Cir. 2002).

P laintiffs allege the exhaustion requirement has been satisfied by the n otice of their intent to file suit against the United States indicated in the March 12, 2013 letter

addressed to senior officials at the Department of the Interior

. The March 12, 2013 letter

states:

Dear Messrs. Toulou, Smith, and Washburn and Secretary o f the Interior:

Our law firm represents the Ute Indian Tribe of the Uintah and Ouray Reservation (“Tribe” or “Ute Tribe”). We also represent tribal members Debra Jones and Arden Post who are the parents of Todd Murray, a tribal

member who was shot to dea th in an encounter with Utah state and local police on the Uintah and Ouray Indian Reservation in Utah (“U&O Reservation”) in 2007. Please accept this letter as our notice of claim to your respective agencies of our intent to file a complaint against the U nited

States based on breaches of the 1863 and 1868 Ute Treaties and the United States’ violation of its trust obligations to the Ute Tribe and its members.

We plan to file suit in the Federal Court of Claims and allege that the Federal Bureau of Investig ation (FBI) and the Bureau of Indian Affairs (BIA), by and through their employees, committed wrongs upon the person or property of the Indians, namely decedent Todd Murray his family and the Ute Indian

Tribe as a whole. Included with our letter are the Pl aintiffs’ (i) Third Amended Complaint, (ii) motion for default judgment on liability based on tampering [sic] destruction of critical evidence, and (iii) motion for summary judgment under Counts 1, 3 and 5 filed in the parents’ private cause of action, DEB RA JONES, et al., v, VANCE NORTON, et al., Civil Case No.

2:09

- cv

- 00730, U.S. District Court, District of Utah, Central Division.

The attached filings give an overview of the sequence of events that transpired on April 1, 2007 as well as a clear indicatio n of the egregious actions of the law enforcement officers who participated in this “investigation.” The FBI and the BIA representatives who were present on April 1, 2007 and who participated in the “investigation” contributed to the travesties by (1) fail ing to protect the Ute Tribe’s interests as a sovereign in the crime scene, (2) failing to properly preserve and protect evidence from being tampered with and destroyed, and (3) failing to conduct their own independent investigation into the death of Todd Murray. As a result of the aforementioned failures, the Murray family and the Ute Indian Tribe are26

seeking damages from the United States in the amount of $10 million, as well as reimbursement of litigation costs and attorney fees.

Attached to this letter is a summary of the relevant Treaty obligations that have been violated by the actions and inactions of the United States in this case. Under Article 6 of the 1863 Treaty, the Ute Indian bands agreed to forego “ private revenge or retaliation ” for injuries suffered by the Tribe and

individual tribal members as the result of the “misconduct of individuals.” In return the United States guaranteed the Tribe and individual tribal member s a right to legal redress for “ any robbery violence, or murder ” committed “ on an Indian or Indians ” belonging to the Ute Indian bands. Article 6 of the 1868 Treaty promised that any person violating the territorial integrity of the Reservation and causing harm to the Tribe or its tribal members would be

“ punished according to the laws of the United States. ” In violation of these treaty obligations, the United States has failed to investigate or to prosecute the individuals involved in the shooting death of 21 year

- old Todd Murray in April 2007, and the subsequent conspiracy to sup press, alter, and destroy

critical evidence.

Please feel free to contact our office should you require any additional information regarding this forthcoming claim.

Sincerely,

Sandra L. Denton

(footnote omitted). As noted above, the March 12, 2013 le tter attached almost four

hundre d pages of exhibits, including filings in the District Court s uch as the plaintiffs’ third amended complaint, plaintiffs’ motion for summary judgment, and plaintiffs’ motion for tampering and destruction of critical evidence.

In Elk v. United States , 70 Fed. Cl. 405 (2006), the United States Court of Federal

Claims addressed a similar issue of exhaustion as is raised by defendants in the current

case under review by this court

, albeit under a different treaty, and found no jurisdictional requirement to exhaust administrative remedies. In Elk v. United States , a member of the Oglala Sioux Tribe brought suit after s he was sexually assaulted by a United States Army

recruiter in a remote area of t he reservation. See i d. at 406. The “ bad men ” provision of the 1868 Sioux treaty, served as the legal basis for the plaintiff’s complaint. As in the present action, the Elk plaintiff claimed to have been “wronged” by “bad men” and sought

reimbursement from the United States. Id. at 405. The government in Elk moved to dismiss plaintiff’s claim, arguing that the treaty required “proof” to be “made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City,” and that this,

as a textual matter, plainly suggested a jurisdictional requirement to exhaust

administrative remedies. See id

. While recognizing the requirements that the language imposed , the court ultimately held that the plaintiff did not have to await a formal27

administrative dec ision from the agency before bringing suit. See i d. at 407. After careful review of the relevant provisions of the 1868 Sioux treaty, the Elk court held that formal administrative exhaustion was not a prerequisite to bringing suit , concluding that “ n othing in the Sioux Treaty indicates that a claimant must await a decision from Interior before filing suit.” Id. The Elk court determined that “u nder well established principles, a statute or other Congressional enactment creates an independent duty to exhaust only when it contains ‘sweeping and direct’ statutory language indicating that there is no federal jurisdiction prior to exhaustion, or the exhaustion requirement is treated as an el ement of the underlying claim.” Id

. Because the 1868 Sioux Treaty at issue contained no such language, the Elk court declined to require exhaustion as a prerequisite to judicial jurisdiction. 18

A predecessor court to t he Court of Federal Claims previously found , under the specific facts of the case, that exhaustion of administ rative remedies was a jurisdictional requirement when specific treaty language both (1) unmistakably mandates administrative review by an executive agency and (2) sets forth a procedure for so doing.

See Begay v. United States , 219 Ct. Cl. 599 (1979); see also Tsosie v. United States , 11 Cl. Ct. 62 (1986)

, aff’d and remanded

, 825 F.2d 393 (Fed. Cir. 1987)

. In Begay , the parents of female boarding school students administered by the BIA brought suit after discovering that their daughters had been sexually as saulted by some of the faculty. Id. at 600. Plaintiffs claimed that the sexual assault was a “wrong” inflicted by “bad men” and, therefore, sought reimbursement from the United States. The “ bad men ” provision of the

18 The court notes that defendant in the above captioned case, like the defendant in Elk

, cites to the unpublished opinion in Zephier v. United States , No. 03

- 768L (Fed. Cl. Oct. 29, 2004). The Elk court wrote as follows:

The ot her case cited by defendant, the unpublished opinion in Zephier, et al. v. United States, No. 03

– 768L (Fed. Cl. Oct. 29, 2004), concerned a situation in which the plaintiff did not file a claim with Interior under the Sioux Treaty before filing suit. This court dismissed the complaint for lack of jurisdiction, finding that “the courts either have found that the plain language

of the treaties mandates exhaustion of administrative remedies or have accepted without question that such remedies are available.” I d. at 13. But, with all due respect, the latter statement does not flow from the analysis that precedes it, which, inter alia, overlooks several key distinctions. For example, while the court noted the significant differences between the Navajo and Sioux t reaties, id. at 12 n.4, it freely cited cases involving the former as precedent for construing the latter

— a non sequitur. And while it suggested that Begay II is not precedential, id. at 11, but rather only persuasive, id. at 11 n.3, it, nonetheless, proce eded to apply that case as if it had resolved definitively the precise issue before the court, doing so largely without further independent analysis of the exhaustion issue.

Elk v. United States , 70 Fed. Cl. at 411. Therefore, the Elk court determined, “[ a]t best, then, Zephier is inapposite; at all events, its analysis is unpersuasive. Id.28

Navajo T reaty of 1868 , served as the legal ba sis for the plaintiffs’ complaint. After careful review of the treaty’s provisions, the court suspended litigation and granted the Department of Interior a period of ninety days to issue a decision on the matter. Id. at

602

- 03. In making this determinatio n, the court relied on a passage i n the Navajo Treaty of 1868, which provide d :

[T]he President may prescribe such rules and regulations for ascertaining damages under this article as in his judgment may be proper; but no such damage shall be adjusted a nd paid until examined and passed upon by the

Commissioner of Indian Affairs.

Treaty with the Nava jo

, J une 1, 1868, 15 Stat. 667 , Art. 1.

The Begay court found this provision to be particularly dispositive. In light of the clear and unambiguous language, which withheld damages until “examined and passed upon” by the agency, the court found the requirement of exhaustion to be jurisdictional

, and

, therefore, the Begay court declined to assert jurisdiction over a “ bad men ” claim “in view of the specific ref erences in [the treaty] to administrative consideration . . . .” Begay

v. United States

, 219 Ct. Cl. at 602. Likewise, in Tsosie v. United States , 11 Cl. Ct. 62

, the court in reviewing the “ bad me n ” provision of the Navajo T reaty of 1868 concluded

that “there must first be an administrative decision by the Department of the Interior,” before submitting a claim to the judiciary. Id. at 75 (citing Begay v. United States

, 219 Ct. Cl. at 602).

When comparing the Sioux and the Navajo Treaties side by side, the trea ties differ with respect to an exhaustion requirement , as reflected in the decisions discussed above

. Compare Elk v. United States , 70 Fed. Cl. at 407, with Begay v. United States

, 219 Ct. Cl. at 602, and

, Tsosie v. United States , 11 Cl. Ct. at 75 . The co urt in Elk addressed the differences, ultimately concluding that the Navajo Treaty is unique in precluding the payment of damages until the claim is “thoroughly examined and passed upon” by the

agency. See Elk v. United States , 70 Fed. Cl. at 407. 19 The Sio ux Treaty contains no such

limitation. Id. Furthermore, the court in Elk observed that the Sioux Treaty “neither specifies the particulars of the proof that should be supplied [to the agency] nor indicates that the claimant must wait any particular time for an agency to respond to her claim.” Id.

19 The court notes that the Elk court observed that :

[T ] he court in Begay I

, denied its motion to dismiss the plaintiffs' complaint and retained jurisdiction while ordering the Assistant Secretary of Interior t o render an opinion within 90 days. Id. at 60 3. The Begay orders thus hardly

stands [sic] for the proposition that a claimant must obtain an actual decision

from Interior before brin ging suit under the Tucker Act.

Elk v. United States , 70 Fed. Cl. at 411 ( emphasis in original).29

The language of the 1868 Ute Treaty more closely resembles the language of the Sioux Treaty than the Navajo Treaty. The Ute Treaty also contains no “sweeping and direct language,” requiring administrative exhaustion. Unlike the Navajo Treaty , the Ute Treaty does not withhold damages until “passed upon” by the Department of the Interior.

See Elk v. United States , 70 Fed. Cl. at 407

. N o r does t he Ute Tre aty specify the manner and means for bringing a claim in court. Article 5 of the Ute Treaty states only :

In all cases of depredation on person or property

, they shall cause the evidence to be taken in writing and forwarded, together with their finding, to

the Com missioner of Indian Affairs, whose decision, subject to the revision of the Secretary of the Interior, shall be binding on the parties to this treaty.

As noted above, although t he 1868 Ute Treaty requires evidence of any depredation or wrong “to be taken in writing and forwarded together with their finding to the Commissioner of Indian Affairs, ” 1868 Treaty, Art. 5

, f orwarding such evidence is the “only prerequisite to suit required by the treaty.” Hebah v. United States , 428 F.2d 1334, 1340

, 192 Ct. Cl. 785 (1970) ( Hebah I )

.

In the Mar ch 12, 2013 letter, plaintiffs specifically identified the 1868 Ute Treaty, and indicated “[p]lease accept this letter as our notice of claim to your respective agencies of our intent to file a complaint against the United States based on breaches of the 1 863 and 1868 Ute Treaties and the United States’ violation of its trust obligations to the Ute

Tribe and its members.” The March 12, 2013 letter also indicated, “[a]ttached to this letter is a summary of the relevant Treaty obligations that have been viol ated by the actions

and inactions of the United States in this case.”

In addition, t he March 12, 2013 letter identified the wrong plaintiffs alleged, with plai ntiffs’ counsel indicating “[w] e also represent tribal members Debra Jones and Arden

Post who a re the parents of Todd Murray, a tribal member who was shot to death in an encounter with Utah state and local police on the Uintah and Ouray Indian Reservation in

U tah (U&O Reservation) in 2007.” Plaintiffs identified the agencies which allegedly had

comm itted the improper act s, and stated that the “Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA), by and through their employees, committed wrongs upon the person or property of the Indians, namely decedent Todd Murray.” The March 12,

20 13 letter, while not providing additional detail s about the death of Mr. Murray, included

as attachments selected filings from the District Court litigation, which , as plaintiffs

indicate d , “ give an overview of the sequence of events that transpired on Apr il 1, 2007 as well as a clear indication of the egregious actions of the law enforcement officers who participated in this ‘ investigation. ’ ”

Although plaintiffs’ counsel could have provided more narrative detail about the death of Mr. Murray in the March 12, 2013 letter to more fully amplify on the “proof” requirement, the court believes the letter labelled “notice of claim” sent to the Department

of Interior

, together with the exhibits attached to the letter

, satisfied the plaintiffs’ exhaustion requirem ents under the specific facts presented in the above captioned case

. Moreover , the United States was aware of the death of Mr. Murray in 2007, and the record30

reflects that no criminal prosecutions of Special Agent Rex Ashdown and David Ryan of

the FBI or t he various officials present at the scene from the BIA occurred

, suggesting the decision not to prosecute reflects the view of the United States

. There was a “ federal criminal matter involving the [Mr. Murray’s] firearm,” in which “[t]he purchaser pled gui lty in federal court to a charge of making a false statement in connection with the purchase

of the firearm.” Jones et al. v. Norton, et al.

, 2014 WL 909569, at *4. In addition, on February 1, 2011, one of the attorneys from plaintiffs ’ counsel’s firm sent the Department of Justice, specifically, the Director of the Office of Tribal Justice and the Chief of the Civil Rights Division, a letter titled: “The Shooting Death of Todd Murray, Ute Indian tribal member Jones v. Norton, et al., Case No. 2:09

- cv

- 00730 U.S. District Court for the District of Utah, Central Division And the Continued Violation of Criminal Law Enforcement Jurisdiction on the Uintah and Ouray Indian Reservation, and the Continued Harassment, Racial Targeting, and Violation of Tribal M embers’ Civil Rights by Utah State, County, and Local Law Enforcement Officers.” The letter provided background information to the Department of Justice about Mr. Murray’s death and noted that “no officer

- involved shooting investigation was conducted by the Feder al Bureau of Investigation, the State of Utah, the County of Uintah, Vernal City, or any disinterested party.” The letter

concluded:

In summary, by this letter we are requesting tha t the Department of Justice conduct an investigation into the actions of U tah state/county/local law enforcement agencies and officers for violations of the Ute Treaty of 1868 and any other applicable federal law. Unfortunately, this is not the Tribe’s first request for a federal investigation. See attached letters dated Februar y 14, 2011, and March 18, 2011. In the year since these letters were sent, the conduct of Utah state, county and local police has only gotten worse. I would appreciate communication from your respective offices on our investigation
requests.

(internal cit ation omitted).

E ven w hen exhaustion requirements have not been met, t he United States Supreme Court has found exceptions to the exhaustion doctrine in “at least three broad sets of circumstances in which the interests of the individual weigh heavily agains t requiring administrative exhaustion.” See McCarthy v. Madigan , 503 U.S. at 146. 20 The United States Court of Appeals for the Federal Circuit, in Wilson ex rel. Estate of Wilson

v. United States , summarized the three exceptions articulated by the United St ates Supreme Court , as follows:

The [United States Supreme] Court went on to explain three sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaustion: (1) where there is an unreasonable or

20 The Supreme C ourt, noted, however “ this Court has declined to require exhaustion in some circumstances even where administrative and judicial interests would counsel

otherwise.” McCarthy v. Madigan , 503 U.S. at 146.31

ind efinite timeframe for administrative action; (2) where there is some doubt as to whether the agency is empowered to grant effective relief; and (3) where the administrative body is shown to be biased or has otherwise predetermined the issue before it.

Wils on ex rel. Estate of Wilson v. United , 405 F.3d 1002, 1011 (Fed. Cir. 2005). The determination of when and how to apply an exception to the general exhaustion doctrine

is highly case specific and emphasizes practicality, keeping in mind the overall balance of “‘the interest of the individual in retaining prompt access to a federal judicial forum,’” with “deciding when exhaustion is demanded in order to protect ‘institutional interests.’”

See Itochu Bldg. Products v. United States , 733 F.3d at 1145 (quoting McCarthy v. Madigan , 503 U.S. at 146 (“In determining whether exhaustion is required, federal courts must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion. . . . Application of this balancing principle is ‘intensely practical,’” (quoting Bowen v. City of New York , 476 U.S. 467, 484 (1986))); Rollock Co. v. United States

, 115 Fed. Cl. 317, 322 (2014); Elk v.

United States , 70 Fed. Cl. at 408.

“Firs t, exhaustion may not be required when exhaustion of the administrative remedy may prejudice the plaintiff,” such as “‘from an unreasonable or indefinite

timeframe for administrative action.’” See Itochu Bldg. Products v. United States , 733 F.3d at 1145 (q uoting McCarthy v. Madigan , 503 U.S. at 147). “Even where the administrative decisionmaking schedule is otherwise reasonable and definite, a particular plaintiff may suffer irreparable harm if unable to secure immediate judicial consideration of his claim. ” McCarthy v. Madigan , 503 U.S. at 147. In Gibson v. Berryhill , 411 U.S. 564, 575 n.14 (1973), although discussing state administrative remedies, the United States Supreme Court wrote: “State administrative remedies have been deemed inadequate by federal

c ourts and hence not subject to the exhaustion requirement . . . [m]ost often . . . because of delay by the agency . . . .” Such delay is not characterized by any specific time limit in which to respond to claims. See

, e.g.

, Walker v. Southern Ry. Co. , 385 U.S. 196, 198 (1966), reh'g denied , 385 U.S. 1020 (1967) (holding that plaintiffs are not required to wait ten years or more on the administrative board to decide their claim); Smith v. Illinois Bell

Tel. Co. , 270 U.S. 587, 591

– 592 (1926) (finding that an injured public service company “is not required indefinitely to await a decision of the rate

- making tribunal before applying to a federal court . . . .”).

“Second, an administrative remedy may be inadequate ‘because of some doubt as to whether the agency was empowered to grant effective relief.’” McCarthy v. Madigan

, 503 U.S. at 147 (quoting Gibson v. Berryhill , 411 U.S . at 575 n.14 ); Elk v. United States

, 70 Fed. Cl. at 408; see also McNeese v. Bd. of Ed. for Cmty. Unit Sch. Dist. 187 , 373 U.S. 668, 675 ( 1963) (finding that student plaintiffs did not have to exhaust administrative remedies when the school superintendent did not have authority to grant the requested relief).

“Third, an administrative remedy may be inadequate where the administrative body

is shown to be biased or has otherwise predetermined the issue before it.” McCarthy v. Madigan , 503 U.S. at 148; Maggitt v. West , 202 F.3d 1370, 1377 (Fed. Cir. 2000); Rollock

Co. v. United States , 115 Fed. Cl. at 322 ; Elk v. United States , 70 Fed. Cl. at 40 8; White32

& Case LLP v. United States , 67 Fed. Cl. 164, 171, recons. denied , 2005 WL 6124102 (2005). For example, the United States Supreme Court in Houghton v. Shafer held that it would be futile to require the petitioner to exhaust the administrative reme dy of appeal to the Attorney General of Pennsylvania, or another officer, in light of the Attorney General's submission that the rules were “validly and correctly applied to petitioner” and “strictly enforced throughout the entire correctional system . . . .” See Houghton v. Shafer , 392
U.S. 639, 640 (1968) ; see also Aldrich v. United States , 31 Fed. Cl. 554, 557 (1994) (holding that “the interests of the individual ‘weigh heavily against requiring administrative

exhaustion’ . . . where the administrative b ody is shown to have predetermined the issue.” (quoting McCarthy v. Madigan , 503 U.S. at 140))

, aff’d , 56 F.3d 83 (Fed. Cir. 1995) . In such a circumstance, continuing with the agency process is often termed “futile.” See Itochu Bldg. Products v. United Sta tes , 733 F.3d at 1146 (“For example, a party often is permitted to bypass an available avenue of administrative challenge if pursuing that route would clearly be futile, i.e., where it is clear that additional filings with the agency would

be ineffectual.” (citing Corus Staal BV v. United States , 502 F.3d at 1378

– 79 (futility applies i n situations where plaintiffs “‘would be “ required to go through obviously useless

motions in o rder to preserve their rights”’” (quoting Walsh v. United States , 151 Ct. Cl.

50 7, 511 (1960))) ))

.

P laintiffs only urge the first exception to the exhaustion doctrine w ould apply if plaintiffs did not otherwise meet the exhaustion requirements

, based on when there is an

unreasonable or indefinite time frame for administrative action. Plaintiffs argue that “it is clear that Plaintiffs would be unduly prejudiced by having to embark upon an ill

- defined administrative process with a potentially indefinite timeframe for action.” Plaintiffs claim that the “events in question occurred more than seven years ago, and what little evidence was not spoliated by federal/state/local law enforcement officers is in danger of disappearing as memories fade with the passage of time. Plaintiffs have been litigating for years in an effort to get their day in court a nd they would be unduly prejudiced by an administrative decision that could take years and might get them no closer to a remedy than where they are today. ” Plaintiffs also allege that “it is questionable whether the Department of the Interior can adequatel y grant effective relief in this case in light of the complex and multiple constitutional issues that are play in the case. ” (internal citation omitted).

Defendant responds that “Plaintiffs’ extensive litigation in the district court of Utah,

where Plain tiffs fully, fairly, and forcefully presented their case, further ameliorates any concern that additional time spent adjudicating this matter before DOI may prejudice Plaintiffs. Indeed, Plaintiffs have not explained what they would present here that they have not already presented to that court. ” Defendant also claims that the plaintiffs’ argument that this case is complex and has multi ple constitutional issues “does not square with their request for relief that is far more straightforward than the premise of their argument suggests: They seek m onetary damages pursuant to the ‘ bad me n ’ clause of the 1868 Treaty.” The court agrees with defendant that plaintiffs’ claim s in this court do

not involve “complex and multiple constitutional issues

. ” T here is no ce rtainty as to how long the Department of the Interior might take in responding to plaintiffs’ claims

. P laintif fs ’ lengthy litigation history , however, does not mean a further delay at the Department of the Interior would not have a negative impact on plai ntiffs. Plaintiffs’ exhaustion33

requirements may well have been met under the 1868 Treaty by virtue of the March 12,

2013 letter

. E ven, however, for the sake of argument, if the exhaustion requirements were

not met , because the facts of the case stem from the April 1, 2007 death of Mr. Murray,

and because the previous litigation has continued since 2009, the court conclude s that a requirement to force plaintiffs now to exhaust administrative remedies at the Department

of the Interior present s a further unreasonable or “indefinite timefram e for admini strative

action.” Therefore, this court concludes that

, on one or both grounds, the exhaustion

doctrine does not preclude th is court from taking jurisdiction over plaintiffs’ claims

.

“ Bad Men ” Provision

Defendant argues in its motion to dismiss that “Plaintiffs’ do not sta te a cognizable

claim under the ‘ bad men ’ provision .” Plaintiffs allege in their complaint that “Todd Murray, Todd Murray’s family, and the Ute Indian Tribe suffered ‘ injuries ’ at the hands of ‘ bad

men ’ as those terms are used in the Ute Treaties of 1863 and 18 68. ” As indicated above,

t he “ bad men ” provision at issue in the 1868 Treaty provides:

If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indian, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the i njured person for the loss sustained.

1868 Treaty, Art. 6

. D efendant contends that many of plaintiffs’ alleged wrongs are not contemplated by the terms of the treaty and

, therefore , plaintiff s fail to state a claim with respect to the “bad men” provision

.

In examining what must be pled in order to state a claim, under both RCFC 8(a)(2) and Rule (8)(a)(2) of the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the claim showing that the plea der is en titled to relief.” RCFC 8(a)(2); Fed. R. Civ. P. 8(a)(2) (2015 ); see also Bell Atl. Corp. v. Twombly

, 550 U.S. 544, 555 (2007). The United States Supreme Court stated:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations, [ Conley v. Gibson , 355 U.S. 41, 47 (1957)]; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc. , 40 F.3d 247, 251 (7th Cir. 1994), a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requir es more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain , 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235

- 36 (3d ed. 2004) (hereinafter Wright & Miller) (“[T]he pleading must contain something more . . . than . . . a34

statement of facts that merely creates a suspicion [of] a legally cognizable right of action”), on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see

, e.g.

, Swier kiewicz v. Sorema N.A.

, 534 U.S. 506, 508, n.1 (2002); Neitzke v. Williams , 490 U.S. 319, 327 (1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes

, 416 U.S. 232, 236 (1974) (a well

- pleaded complaint may proceed even if it appears “that a recovery is very remote and unlikely”) . . . . [W]e do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.

Bell Atl. Corp. v. Twombly , 550 U.S. at 555

– 56, 570 (footnote and other citations omitted; omissions in original); see also Ashcroft v. Iqbal , 556 U.S. at 678 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. at 555

– 57, 570); A&D Auto Sales, Inc. v. United States , 748 F.3d 1142, 1157 (Fed. Cir. 2014); Bell/Heery v. United States , 739 F.3d 1324, 1330 (Fed. Cir.)

, reh’g and reh’g en banc denied (Fed. Cir. 2014) ; Kam

- Almaz v. United States , 682 F.3d 1364, 1367 (Fed. Cir. 2012) (“The facts as alleged ‘ must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).’” (quoting Bell Atl. Corp. v. Twombly , 550 U.S. at 557)); Totes

- Isotoner Corp. v. United States , 594 F.3d 1346, 1354

– 55 (Fed. Cir.), cert.

denied , 131 S. Ct. 92 (2010); Bank of Guam v. United States , 578 F.3d 1318, 1326 (Fed. Cir.) (“In order to avoid dismissal for failure to state a claim, the complaint must allege facts ‘plausibly suggestin g (not merely consistent with)’ a showing of entitlement to relief.” (quoting Bell Atl. Corp. v. Twombly , 550 U.S. at 557)), reh’g and reh’g en banc denied (Fed. Cir. 2009), cert. denied , 561 U.S. 1006 (2010); Cambridge v. United States , 558 F.3d 1331, 133 5 (Fed. Cir. 2009) (“[A] plaintiff must plead factual allegations that support a facially ‘plausible’ claim to relief in order to avoid dismissal for failure to state a claim.” (quoting Bell Atl. Corp. v. Twombly , 550 U.S. at 570)); Cary v. United States

, 552 F.3d 1373, 1376 (Fed. Cir.) (“The factual allegations must be enough to raise a right to relief above the speculative level. This does not require the plaintiff to set out in detail the facts upon which the claim is based, but enough facts to state a c laim to relief that is plausible on its face.” (citing Bell Atl. Corp. v. Twombly , 550 U.S. at 555, 570)), reh’g denied (Fed. Cir.), cert. denied , 557 U.S. 937 (2009); Vargas v. United States , 114 Fed. Cl. 226, 232 (2014); Fredericksburg Non

- Profit Housing Corp. v. United States , 113 Fed. Cl. 244, 253 (2013), aff’d , 579 F. App’x 1004 (Fed. Cir. 2014); Peninsula Grp. Capital Corp. v. United

States , 93 Fed. Cl. 720, 726

– 27 (2010), appeal dismissed , 454 F. App’x 900 (Fed. Cir. 2011); Legal Aid Soc’y of New Yor k v. United States , 92 Fed. Cl. 285, 292, 298, 298 n.14 (2010)

.

As when deciding a case based on a lack of subject matter jurisdiction, when deciding a case for failure to state a claim, this court must assume that all undisputed facts alleged in the comp laint are true and must draw all reasonable inferences in the

non

- movant's favor. See Erickson v. Pardus , 551 U.S. 89, 94 (2007) (“In addition, when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations conta ined in the complaint.” (citing Bell Atl. Corp. v. Twombly , 550 U.S. at 555

- 56 (citing Swierkiewicz v. Sorema N. A. , 534 U.S. at 508 n.1))); Scheuer v. Rhodes , 416 U.S. at 236 (“Moreover, it is well established that, in passing on a motion to dismiss,35

whet her on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.”), abrogated on other grounds by Harlow v. Fitzgerald , 457 U.S. 800 (1982), recognized by Davis v. Scherer , 468 U.S. 183, 190 (1984); United Pac. Ins. Co. v. United

States , 464 F.3d 1325, 1327

– 28 (Fed. Cir. 2006); Samish Indian Nation v. United States

, 419 F.3d at 1364 ; Boise Cascade Corp. v. United States , 296 F.3d 1339, 1343 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2002), cert. denied , 538 U.S. 906 (2003).

The “bad men” provision of the 1868 Ute Treaty, if applicable, provides a basis for jurisdiction in this court, as it is money mandating. The plaintiff i n Garreaux v. United

States , 77 Fed. Cl. at 734

, argued that “[t]he ‘bad men’ provision should be construed to allow a private right of action by individual Indians against the United States,” noting that juris diction has been found “under ‘bad men’ provis ions of this or similar treaties, including: Tsosie v. United States , 11 Cl. Ct. 62 (1986) ( Tsosie I ); Tsosie v. United States

, 825 F.2d 393 (Fed. Cir. 1987) ( Tsosie II ); Hebah v. United States , 192 Ct. Cl. 785, 428 F.2d 1334 (1970) ( Hebah I ); Hebah v. Uni ted States , 197 Ct. Cl. 729, 456 F.2d 696 (1972) ( Hebah II ); Begay v. United States , 219 Ct. Cl. 599, 1979 WL 10173 (1979) ( Begay I ); Begay v. United States , 224 Ct. Cl. 712, 650 F.2d 288 (1980) ( Begay II ); and Elk v. United

States , 70 Fed. Cl. 405 (2006). ” Garreaux v. United States , 77 Fed. Cl. at 734. The court notes, however, that the 1863 Ute Treaty, standing alone, is not money mandating and cannot provide an alternate basis for jurisdiction in this court over plaintiffs’ claims.

Specifically, t o state a cognizable claim under the “bad men” provision of a treaty,

the plaintiffs must clear se veral hurdles

. “A t least two inquiries are required to determine

whether a claim fits within the ‘ bad men ’ provision: [ (1) ] whether the man is a ‘ bad man ’

with in the mea ning of the treaty; and [ (2) ] whether he committed a ‘ wrong ’ within the meaning of the treaty. ” Garreaux v. United States , 77 Fed. Cl. at 736 ( citing Hebah v.

United States , 456 F.2d 696, 702, 197 Ct. Cl. 729, cert. denied , 409 U.S. 870 ( 1972) ( Hebah II ) ) ; see also Hernandez v. United States , 93 Fed. Cl. 193, 200 (2010) (citing Ex parte Kan

- gi

- shun

- ca , 109 U.S. 556, 567

– 68 (1883) (“[I]n order to constitute a cause of action under this provision, ‘bad men’ must have ‘committed a wrong’ within the sense of

th e treaty

. ”). A “wrong,” as defined by the 1868 treaty, encompasses affirmative criminal acts, but not omissions or acts of negligence. See Garreaux v. United States , 77 Fed. Cl.

at 736 (discussing the Fort L aramie Treaty of April 29, 1868 between the Unite d States and Sioux) ; Hernandez v. United States , 93 Fed. Cl. at 200 (“In order to bring action under the Fort Laramie Treaty a Native American must be a victim of an affirmative criminal act, and the person committing the act must be a specific white man or men. ”).

The first question for the purposes of the motion to dismiss is whether t he individual

defendants named in the amended c omplaint by plaintiffs qualify as “bad men.” To properly bring a “ bad men ” claim, t he plaintiff first must identify particu lar individuals as “bad men .” S ee Garreaux v. United States , 77 Fed. Cl. at 737

. The most recent decision by the Federal Circuit on “ bad men ” provisions, Richard v. United States

, interpreting the

Fort Laramie Treaty of 1868, concluded that the “bad m en” provisions “are not limited to ‘an agent, employee, representative, or otherwise acting in any other capacity for or on

behalf of the United States.’” Richard v. United States , 677 F.3d 1141, 1153 (Fed. Cir.36

2012)

. 21 Federal agencies , however, are not “ bad men” under the language of the treaty.

See id. In Garreaux , an elderly Indian tenant brought suit against the Department of Housing and Urban Development (HUD) for the negligent supervision and administration

of a Mutual Help and Occupancy A greement , a lleging that the HUD’s negligence caused

her to lose her home Garreaux v. United States , 77 Fed. Cl. at 734. Because it was “not a claim against specified white men, but against the federal government or HUD as an entity

, ” the court declined to hear the te nant’s claim. Id. at 737. The court explained that

the “plaintiff ha[d] not alleged sufficient facts stating who the ‘bad men’ are.” Id

. In light of

this and other deficiencies , the Garreaux court granted the defendant’s motion to dismiss.

See id

.

In sp ecifically naming the allegedly responsible parties

, plaintiff s pass the first

hurdle. The plaintiff s ’ complaint names FBI ag ents Rex Ashdown and David Ryan

, BIA

officials James Beck , Terrance Cuch, and Kevin Myore

, and all of the Utah state/county/municip al law enforcement officers involved in the events of A pril 1, 2007

, 22

as “bad men.” Plaintiffs further name the owners and employees of the Thomson

Blackburn Vernal Mortuary, the State of Utah, Uintah County, and Vernal City as “bad

m en.” Excepting the men tion of the State of Utah, Uintah County, and Vernal City, the plaintiff s successfully identify specific individuals as alleged “ bad men

, ” and

, therefore

, satisfy the first phase of the analysis.

As to the second hurdle, a ccepting the facts of the complai nt as true for the purpose of defendant’s motion to dismiss, plaintiff s allege possible cognizable “ wrong s

, ”

if properly proven

, as to certain allegations , but not as to others

. P laintiff s allege a host of injuries, encompassing both acti ons and omissions

, as follows :

B y their actio ns and inactions, the FBI and BIA officers committed wrongs to Todd Murray, the Murray family and the Ute Tribe (i) by acting in concert with state/county/municipal officers, expressly or impliedly, in concocting, or

21 The Federal Circuit in Richard noted that the Fort Laramie Treaty “‘is one of nine made in 1868. . . . The treaties were all duly ratified, proclaimed, and published in volume fifteen

of the Statutes at Large. All say that peace i s their object and all contain “ bad men ” articles in similar language.’” Ric hard v. United States , 677 F.3d at 1142 n.2 (quoting Tsosie v.

United States , 825 F.2d at 395) (emphasis in original). One of the 1868 treaties is the 1868 Ute Treaty. As identified in Elk , the Choctaw treaty “contained a host of other provisions like those f ound in the 1867

– 68 Indian Peace Commission treaties, including the Fort Laramie treaty with the Sioux. Indeed, all of the latter treaties [including the Ute 1868 Treaty] contain ‘bad men’ clauses identical to that in the Sioux Treaty.” Elk v. United

State s , 87 Fed. Cl. at 80

- 81.

22 As noted in the District Court litigation, the Utah officials include: Vernal City Police Officer Vance Norton, Vernal City, Vernal City Police Department, the Utah Highway Patrol, the State of Utah, Blackburn Mortuary, Uintah C ounty, State Troopers Dave Swenson, Craig Young, Rex Olsen, and Jeff Chugg, Uintah County Sherriff’s Sergeant Bevan Watkins and Deputy Troy Slaugh, and Utah Division Wildlife Officer Sean Davis.37

permitting to be concocted, a false sto ry that Todd Murray shot himself in the back of his head, execution style, above and behind his left ear; (ii) by failing to take custody of Murray’s body and to secure the body against desecration and spoliation of evidence; [sic] (iv) by participating in , tacitly allowing, or failing to prevent, the desecration of Murray’s body and the spoliation of critical evidence both at the shooting scene and afterwards at the Medical Center, Blackburn Mortuary, and at the Utah OME; (v) the failure to insure that a p roper autopsy was performed on Murray’s body; (vi) by failing to conduct any kind of investigation into Todd Murray’s murder;

and (vii) by failing to protect the territorial integrity of the Tribe’s reservation boundary and the Tribe’s sovereign interests in the crime scene where Murray was shot

.

Defendant argues that “[t]he Bad men clause is limited to affirmati ve criminal acts.”

In Hebah II , th e Court of Claims construed “wrong ” according to its common or plain meaning. See Hebah II

, 456 F.2d at 704 , 197 Ct. Cl. 729

. In Hebah II , the Court of Claims

addressed the death by shooting of plaintiff's husband by tribal policeman Norman Moss.

Id. at 699. 23 With the help of a dictionary, the court defined a wrong as “ [a] ction or conduct

which inflicts harm without due provocation or just cause; serious injury wantonly inflicted or undeservedly sustained; unjust or unmerited treatment.” Id

. Pl aintiff s in the above captioned case argue that this definition is particularly broad and encompasses omissions

of the sort a lleged in the amended complaint. The court notes, however, that defendant

in Hebah II argued that “the plain language of the Treaty of 1868 requires that no reimbursement be made to one who sustains a loss while violating the laws of the United States, an d that deceased was violating the laws of the United States when he suffered

his ‘loss. ’ ” Id. at 705. Defendant in Hebah II also argued that the sh ooting officer

“committed no wrong upon deceased because the arrest attempt was lawfully made and,

under the circumstances, the shooting of deceased was justified ,” and the court agreed

that it “ was regrettable but reasonable for Moss to shoot to kill decedent. Having determined that the killing of deceased was reasonable under the circumstances herein,

it follow s that the killing was with reason or just cause. Therefore, Moss did not commit a

“ wrong ” within the meaning of the Treaty of 1868 [between the United States and the Eastern Band of Shoshonees and the Bannack Tribe of Indians] .” Id. at 705, 710.

I n Garrea ux v. United States

, 77 Fed. Cl. at 736, however, the United States Court

of Federal Claims narrowed its understanding of the term , “wrong.” The court observed a long line of precedent in which bad men claims were “rooted” in behavior that was

23 The Court of Claims further explained, the “ Decedent retur ned to Apartment 18 at Tigee Village about midnight on March 13, 1968. He was drunk, angry and carrying a one pint

bottle and a one

- half pint bottle of whisky,” and “[s]hortly after going to bed, Mr. Hebah started to choke Mrs. Hebah,” who eventually fled to a neighbor’s house who called Wind River Reservation police station. Hebbah II , 456 F.2d at 699. “ Mrs. Hebah explained to Officer Moss that her husband was drunk, armed with a rifle, had plenty of ammunition,

that he had chased her brother and son out of the apartment, that he had threatened her with bodily harm, and that she and her daughter had fled from the apartment.” Id. at 700.38

“criminal in nature.” Id. The Garreaux court emphasized its unwillingness to “ stretch the

bounds of the ‘bad men’ provision to encompass not a criminal claim, but a claim for negligence,” and noted that t he “primary intent” of the provision was to “guard against

affir mative criminal acts.” Id. Furthermore, the court in Garreaux observed that the

pu nishment for inflicting a “ wrong ” is arrest and prosecution. See i d. at 734.

I n Hernandez v. United States

, 93 Fed. Cl. at 199 , this court again adopted a narrow interpreta tion of the term “wrong,” resolving the ambiguity in light of the treaty’ s overall purpose. In Hernandez

, a tribal prisoner at the Tecumseh State Correctional Facility in Nebraska brought suit, claiming

, inter alia , that the U nited States violated the

guar antees of the bad men provision by “fail [ing] to arrest suspected ‘ wrongdoers ’” Id. at

198

. The Hernandez court observed that the provision

, typically , is only appli ed to

affirmative criminal acts and not omissions

. Ultimately , t he court rested its determi nation

on the “ primary intent ” of the “ bad men ” clause , which “ was to keep the peace between

Native Ame ricans and non

- Native Americans.” Id. “[A] s such, the Fort Laramie Treaty has been applied to affirmative criminal acts and not mere acts of negligence.” Id. Because arresting and criminally prosecuting individuals for civil wrongs does not logically follow, “wrongs,” as defined by the 1868 Treaty, are only allegations of criminal wrongs. A more expansive interpretation would render the remedy provided for inappropriate. Thus, in order for the provision to maintain its coherence, the court concludes that “wrongs” is limited to criminal wrongs. In sum, the 1868 Treaty language and the relevant case law
supports a narrow understanding of what constitutes a “ w rong ,” one that encompasses only affirmative criminal acts.

Applying an affirmative acts test

, most of the plaintiffs’ alleged wrongs fail to state a cognizable claim under the “bad men” provision of a treaty. While, as plaintiff s n ote , it

is doubtless t rue that “a person can be wronged by the inaction of another,” inaction is not a recognized harm under the 1868 T reaty

. Since allegations (ii), (v), (vi), and (vii) allege only omissions

, they do not qualify as “ wrongs ” for purposes of a “ bad men ” claim

under the provisi on of the 1868 Treaty

. Accordingly, allegations (ii), (v), (vi), and (vii)

, therefore

, are dismissed for failure to state a claim.

Nevertheless, accepting plaintiffs ’ allegations as true, allegations (i) and (iv) qualify

as potential

, cognizable “ wrongs ” under the 1 868 T reaty. In fact, in Hebah II the court explicitly recognized that “the killing of an Indian without just cause or reason would be a wrong within the meaning of the Treaty of 1868.” Hebah II , 456 F.2d at 704 , 197 Ct. Cl.

729 . Therefore, because p laintif fs allege that the FBI and BIA

, “by acting in concert with state/county/municipal officers, expressly or impliedly, in concocting, or permitting to be concocted, a false story that Todd Murray shot himself in the back of his head, execution style, above an d behind his left ear,” and “by participating in, tacitly allowing, or failing to prevent, the desecration of Murray’s body and the spoliation of critical evidence both at the shooting scene and afterwards at the Medical Center, Blackburn Mortuary, and at the Utah OME,” the court denies the defendant’s motion to dismiss as to allegations (i) and (iv) of the amended complaint. The court also notes, however, that defendant is correct

that the “bad men” provision “does not incl ude, as p laintiffs, suggest the u niverse of off

reservation activities that would have occurred ‘but for’ the initial conduct on the39

reservation. ” Therefore, to the extent allegation (iv), which includes “the desecration of Murray’s body and the spoliation of critical evidence both at the shooting scene and afterwards at the Medical Center, Blackburn Mortuary, and at the Utah OME,” includes the desecration of Mr. Murray’s body and s poliation of critical evidence that did not take place on the reservation, but at the medical center and mort uary, those allegations are not covered by the “ bad men ” provision of the 1868 Treaty

. For example, as explained in the District Court’s spoliation order, ” [a]fter the completion of the federal criminal matter involving the [Mr. Murray’s] firearm, the jud ge hearing the case signed, on November 14, 2008, an order forfeiting the firearm to the government. Shortly thereafter, the firearm was destroyed. Agent Ryan did not notify any of the Defendants that the firearm would be destroyed.” Jones et al. v. Norton et al. , 2014 WL 909569, at *4 (footnote omitted). Therefore, the destruction of Mr. Murray’s weapon did not take place not on Tribal lands.

Although the court recognizes allegations (i) and (iv) qualify as potential cognizable wrongs under the 1868 Tre aty, implicit in Hebah II , is the conclusion that, as defendant argues, “actions permissibly taken by law enforcement officers are not ‘wrong’ and cannot support a finding of liability under the ‘bad men’ provision.” 24 See Hebah II , 456 F.2d at
708, 710, 19 7 Ct. Cl. 729. As noted above, the record does not reflect any criminal prosecutions of Special Agent Rex Ashdown and David Ryan of the FBI or the various officials present from the BIA, suggesting that the decision not to prosecute indicates the

actions t aken by the federal officers were considered permissible by the appropriate

authorities. The court, however, cannot infer from the absence of prosecutions that all the FBI and BIA actions were taken permissibly. Therefore, the court addresses allegations (i) and (iv) of the amended complaint.

Issue Preclusion

Accepting the plaintiffs’ factual allegations as true and that parts of allegations (i) and (iv) in plaintiffs’ complaint qualify as potentially cognizable “ wrongs

, ” d efendant,

never theless , argues that “[t]he doctrine of issue preclusion prevents the re

- litigation of Plaintiffs’ only cognizable claim for r elief under the Bad Men clause. ” Defendant argues :

Th e district court of Utah entered an order in Plaintiffs’ lawsuit against the

state law enfo rcement officers and mortuary that rejects with finality the keystone of Plaintiffs’ argument that they constructed over the course of five years of litigation: that the state defendants allegedly trespassed on tribal lands, executed Mr. Murray, and subseq uently engaged in a conspiracy to thwart any investigation into his murder

.

Therefore, defendant contends that “[p]laintiffs’ lawsuit in the Court of Federal Claims does not provide them with an additional opportunity to litigate the ultimate facts of th is

24 Defendant further argues that “[t]he text and history of the treaty also indicates that the

United States and the trib e were primarily concerned with criminal acts that injured either the individual tribal members or their property, such as robbery, assault, and murder,” and, therefore, not claims of conspiracy to destroy evidence.40

central thesis that the Utah district court concluded was without merit.” (internal citation omitted). “ This is no less true ,” defendant argues, “ even though Plaintiffs’ appeal to the Tenth Circuit remains pending .” Defendant argues t here is no questio n that “ the issues currently at stake are identical, were actually litigated in the Utah district court, and that Plaintiffs had a full and fair opportunity to litigate those issues. That Plaintiffs’ bring different claims is immaterial. The fundamental po int of contention

— Mr. Murray’s cause

of death

— has been resolved. ” In response, plaintiffs argue that “[i] ssue preclusion/collat eral estoppel does not apply to Plaintiffs’ action in the Court of Claims because Plaintiffs have challenged the district court’s purely legal rulings on appeal. Accordingly, not only does [sic] the Utah district court’s rulings lack finality, but, more importantly, the Plaintiffs have not been afforded a full and fair opportunity in which to conclusively litigate their claims in No rton .”

The rule of issue preclusion precludes a party from re

- litigating an issue that was “litigated and resolved in a valid court determination es sential to the prior judgment.” New Hampshire v. Maine , 532 U.S. 742, 748

- 49 (2001)

. In addition, “ [u] nder collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Allen v. McCurry , 449 U.S. 90, 94 (1980) ; see also

United States v. Mendoza , 464 U.S. 154, 158 (1984) (“Under the judicially

- developed doctrine of collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subse quent suit based on a different cause of action involving a party to the prior litigation.”)

. “When an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any futur e lawsuit.” Ashe v. Swenson , 397 U.S. 436, 443 (1970). The United States Supreme Court has explained that issue preclusion guards against “the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of

inconsistent decisions.” Montana v. United States , 440 U.S. 147, 153

– 54 (1979) ( footnote omitted). The Supreme Court has indicated clearly that:

Issue preclusion bars successive litigation of “an issue of fact or la w” that “is actually litigated and determined by a valid and final judgment, and .

. . is essential to the judgment.” Restatement (Second) of Judgments § 27 (1980) (hereinafter Restatement). If a judgment does not depend on a given determination, relitigat ion of that determination is not precluded. Id. , § 27,

Comment h.

Bobby v. Bies , 556 U.S. 825, 834 (2009)

. 25

The United States Court of Appeals for the Federal Circuit has directed that:

25 The Supreme Court has explained that “[i]ssue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided. This effect also is referred to as direct or collateral estoppel.” Migra v. Warren City Sch. Dist.

Bd. of Educ. , 465 U.S. 75 , 77 n.1 (1984).41

Collateral estoppel is generally appropriate if “(1) an issue is i dentical to one decided in the first action; (2) the issue was actually litigated in the first action; (3) the resolution of the issue was essential to a final judgment in the first action; and (4) the party defending against issue preclusion had a full

an d fair opportunity to litigate the issue in the first action.”

Biafora v. United States

, 773 F.3d 1326, 1333 (Fed. Cir. 2014) (quoting Shell Petroleum,

Inc. v. United States , 319 F.3d 1334, 1338 (Fed. Cir. 2003) ) . The Federal Circuit, however, has indica ted that “[o]n procedural issues not unique to this circuit's exclusive jurisdiction, we apply the law of the regional circuit. . . .” Dana v. E.S. Originals, Inc. , 342 F.3d 1320, 1323 (Fed. Cir. 2003); s ee also Aspex Eyewear, Inc. v. Zenni Optical Inc. , 7 13 F.3d 1377, 1380 (Fed. Cir. 2013)

. Because the District Court’s decision is from the District of Utah, the court applies the law of the Tenth Circuit

.

The Tenth Circuit has explained that “[c]ollateral estoppel, or issue preclusion, is designed to pre vent needless relitigation and bring about some finality to litigation.” Moss v. Kopp , 559 F.3d 1155, 1161 (10th Cir. 2009) (footnote omitted). The Tenth Circuit has

determined along the same lines that issue preclusion applies when:

(1) the issue previou sly decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudicatio n, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.

Park Lake Res. Ltd. Liab. Co. v. United States Dep't of Agric. , 378 F.3d 1132, 1136 (10th Cir. 2004) ; see also Stan Lee Med ia, Inc. v. Walt Disney Co. , 774 F.3d 1292, 1297 (10th Cir. 2014); Bushco v. Shurtleff , 729 F.3d 1294, 1301 (10th Cir. 2013) ; Murdock v. Ute Indian Tribe of Uintah and Ouray Reservation , 975 F.2d 683, 687 (10th Cir. 1992 ) (“In the Tenth Circuit, collateral estoppel requires that four elements be met: (1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the

doctrine is invoke d was a party or in privity with a party to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action

. ”) ( internal quotations omitted)

, cert. denied , 507 U.S. 104 2 (1993)

. The Tenth Circuit also has held that “[i]ssue preclusion “bars a party from relitigating an issue once it has suffered an adverse determination on the issue, even if the issue arises when the party is pursuing or defending against a different cla im.” Bushco

v. Shurtleff , 729 F.3d at 1301; see also Moss v. Kopp , 559 F.3d at 1161 ; Burrell v. Armijo

, 456 F.3d 1159, 1172 (10th Cir. 2006)

, cert. denied , 549 U.S. 1167 (2007)

. Quoting the United States Supreme Court, the Tenth Circuit has indicated, “‘on ce an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to42

the prior litigation.’” Estate of True v. Comm’r , 290 F. 3d 1210, 1222 (10th Cir. 2004) (quoting Montana v. United States , 440 U.S. at 153).

Both parties agree that the decisions from the Tenth Circuit govern th e collateral estoppel inquiry. Both parties further agree on the Tenth Circuit’s four part standard f or determining the applicability of collate ral estoppel: (1) an issue is identical to one decided in the first action; (2) the prior action has been finally adjudicated on the merits ; (3) the party against whom the doctrine is invoked was a party or in pri vity with a party to the prior adjudication, the resolution of the issue was essential to a final judgment in the first action; and (4) the party defending against issue preclusion had a full and fair opportunity to litigate the issue in the first action. See

, e.g.

, Park Lake Res. Ltd. Liab. Co. v. United States Dep't of Agric. , 378 F.3d at 1136. Finally, both parties agree that collateral estoppel is available as a defense by the United States, even though the United States was not a party to the original suit, assuming the party who will be bound by the preclusion had a full and fair opportunity to litigate the precluded issue. 26

Defendant claims that the decision of the United States District Court for the District

of Utah in Jones et al. v. Norton et a l.

, 3 F.Supp.3d 1170 is a valid and final judgment as to Mr. Murray’s cause of death, one that precludes re

- litigation

. 27 Plaintiffs respond that “Collateral estoppel can only apply if all four requir ements are met,” and according to plaintiffs, “[t] hat is not the case here. Three out of the four collateral estoppel factors are not satisfied. Plaintiffs acknowledge , however, that the third requirement for collateral estoppel is met, because they were parties to the district court adjudication in Norton

. ”

R egarding the first element of collateral estoppel, whether an issue is identical to one decided in the first action, p laintiffs argue that there is “no identity of issues” between

26 Because the United States was not a party to the Norton suit in the United States District Court for the District of Utah, but the plaintiffs were, the use of collateral estoppel would

be defensive

, non

- mutual issue preclusion. See Parkl ane Hoisery Co. v. Shore , 439 U.S. 322, 326 n.4 (1979). Relatedly, the parties agree that 28 U.S.C § 1500 (2012) does not apply to the above captioned case, because the District Court case was not against the United States or an agent of the United States, even though this case was filed after the

District Court was filed. See United States v. Tohono O'Odham Nation , 131 S. Ct. 1723,

1727

- 28 (2011). Further, the parties also agree that doctrine of law of the case is inapplicable here as this case is distinct from the Norton case and was filed in a different

court.

27 Defendant also argues that “Plaintiffs likewise miss the mark with their argument that the supposed ‘mass spoliation of critical evidence’ deprived them of a full and fair opportunity to litigate . As an initial matter, their argument goes to the underlying investigation. And the matter of spoliation was intensely litigated over the course of five years in the district court of Utah, with extensive discovery, briefing, and an evidentiary hearing.” Defendant also argues, “[t]hat Plaintiffs disagree with Judge Campbell’s conclusion is clear. But this lawsuit provides them with no occasion to rely on the same evidence or introduce new evidence in an attempt to reach a different result.”43

the present suit and the one litigated in the United States District Court f or the District of Utah. Plaintiffs also claim that the issues before the District Court related to allegations of illegal seizure, excessive force, and conspiracy, whereas the issue before this court involve the breach of federal treaties, the “wrongs” of various law enforcement officials and trust obligations. D efendant argues that the “issues currently at stake are identical,” and the “identity of issues in both cases is similarly made apparent in the Utah district court’s rejection of Plaintiffs’ conspi racy theory, that is, that the individuals involved in that day’s events engaged in a conspiracy to c over up Mr. Murray’s ‘ execution. ’ ” Defendant

states “[i]ndeed, Plaintiffs’ suggestion that this Court ‘review the same evidence and come

to a different con clusion,’ highlights the very necessity of issue preclusion: to prevent needless relitigation and bring about some finality to litigation.” (intern al citation omitted). Defendant also points to plaintiffs’ response to the motion to dismiss to support their point :

The difference between the original Complaint and the proposed First

Amended Complaint is that the Amended Complaint makes explicit what is only implicit in the original Complaint. The Utah state, county, and municipal officers committed a wrong by pursuing Murray at gunpoint without jurisdiction and without probable cause, by shooting Murray execution

- style, and by then conspiring to cover

- up the execution

- style shooting and to obstruct justice.

(emphasis in original).

On March 7, 2014 the Dis trict Court of Utah granted the defendant’s motion for summary judgment, and denied plaintiffs’ cross motion. See generally Jones et al. v. Norton et al. , 3 F. Supp. 3d 1170

. On April 1, 2014, plaintiffs appealed the District Court’s

decision to the Unite d State Court of Appeals for the Tenth Circuit. See Jones et al. v. Norton et al. , No. 14

- 4040 (10th Cir. appeal docketed Apr. 1, 2014). 28 The District Court in Norton concluded that “[t]he evidence clearly shows that Mr. Murray shot himself.” Id.

at 1190

. This conclusion comes up in several context s in the Distrct Court case, including

whether Mr. Murray was “seized” for Fourth Amendment purposes by the defendants. Plaintiffs in the District Court action argued Mr. Murray was seized, and further claim ed that Detective Norton shot Mr. Murray execution style . The District Court, however,

determined:

the Plaintiffs ’ evidence is sparse, circumstantial, subject to more than one interpretation, and, at times, very speculative. Moreover, evidence to the

contr ary is strong and is consistent with a self

- inflicted gunshot wound. Deputy Byron testified that he did not see Detective Norton next to Mr. Murray when Mr. Murray dropped to the ground. Detective Norton testified that he was up on a hill when he saw Mr. M urray shoot himself.

28 As noted abov e, on November 18, 2014, plaintiffs filed another appeal to the United State Court of Appeals for the Tenth Circuit, appealing the amended judgment entered by the District Court. See Jones et al. v. Norton et al. , No. 14

- 4144 (filed 10th Cir. Nov.
18, 201 4).44

The Deputy Chief Medical Examiner Dr. Edward Leis, who conducted the physical examination of Mr. Murray's body, concluded in his report that the wound was caused by a gun shot “in close proximity to the skin surface

when it was discha rged.” He based his conclusion on “abundant soot at the inferior margin of the defect [the wound] and some marginal abrasion is also noted at the inferior margin. ” In his testimony, he elaborated on his conclusion that the gun was in contact with Mr. Murra y ’ s head when it was

fired:

At the perimeter, there are several triangular shaped tears of the wound. That's a result of the gun being pressed up against the skin surface when it's discharged and gases causing the scalp to be separated from the underlyin g skull. When the scalp lifts up, it stretches and it tears and gets its characteristic stellae appearance.

The smaller wound on the right side of Mr. Murray ’ s head was, in Dr. Leis ’ opinion, the exit wound. After Dr. Leis certified that Mr. Murray ’ s deat h was a suicide resulting from a gunshot wound to the head, he added an additional cause of death (based on results from testing of Mr. Murray ’ s bodily fluids). Because the tests showed the presence of drugs and alcohol in Mr. Murray's system, Dr. Leis iss ued an amended death certificate which added “Acute alcohol intoxication; recent methamphetamine use” as contributing to Mr. Murray ’ s death.

Detective Norton was more than 100 yards away when Mr. Murray was

shot. Dr. Leis testified that there was no evide nce that the wound could have been caused by a shot coming from that far away. Plaintiffs maintain that Detective Norton was not 100 yards away, but was right next to Mr. Murray and so he had the capability of inflicting the contact wound. But the actual

e vidence in the record (that is, testimony by Detective Norton and Deputy Byron) shows that Detective Norton was not right next to Mr. Murray when

the fatal shot was fired.

Id. at 1190

- 91 (footnotes omitted). Therefore, the District Court concluded that “ [a]ll of the direct evidence presented by the Defendants, including Dr. Leis ’ testimony and report, supports the conclusion that Mr. Murray shot himself. Plaintiffs offer no more than speculation and no reasonable jury could find that Detective Norton shot Mr. Murray i n the head at point

- blank range. ” The District Court also determined that Mr. Murray’s death

was a suicide. See id. at 1191

. The District Court s tated , “[b]ased on the facts as detailed and explained in its spoliation order, the court concludes that no reasonable jury could conclude that Defendants conspired to ‘effectively eliminate[ ] all probative evidence’ and

‘clean the closet of evidence that would have allowed Plaintiffs to build their case.’” Id. at 1204 (quoting various plaintiffs’ briefs; o missions in original; footnote omitted).45

Addressing plaintiffs’ conspiracy theory, the District Court indicated , “[s]ummed up,

Plaintiffs ’ argument is that Defendants engaged in ‘[ a] co nspiracy to cover up a killing. ’

Plaintiffs ’ theory is that Detectiv e Norton shot and killed Mr. Murray, and that the rest of the Defendants conspired to cover

- up that killing and protect Detective Norton.” Id. at 1197 (footnotes omitted). Explaining the conspiracy, the court noted that

, “[t]he focus of

the Plaintiffs ’ con spiracy theory is the failure to give aid and their spoliation argument

about the destruction of evidence.” Id. at 1202. Tu rning to plaintiffs’ claims of the defendants’ failure to give medical aid to Mr. Murray, and the defendants’ “interference

with Mr . Murray's due process right of access to courts via the failure to preserve critical evidence and the affirmative destruction of critical evidence,” the District Court determined “[n]one of that testimony could allow a reasonable jury to conclude that

Ind ividual Defendants were deliberately indifferent to Mr. Murray ’ s situation, or that they knew that there was a substantial risk of significant harm to Mr. Murray if they did not provide first aid. If anything, the evidence shows that at least three of the Individual Defendants (Young, Davis, and Slaugh) were concerned that attempts to provide any kind of aid to Mr. Murray would do more harm than good.” Id. at 1210. The court determined, “[i]n sum, there is no evidence before the court to support a finding that the inaction by each individual defendant was part of a conspiracy to let Mr. Murray die.” Id. at 1203.

The thoroughness of the District Court’s findings and decision , after years of discovery and multiple briefing s

, demonstrates a comprehensive review of the

circumstances of the death of Mr. Murray and the actions of the officials in the aftermath

of his death. Nonetheless plaintiffs claim that:

The district court’s statements and rulings concerning the manner of Murray’s death, the desecration of Murray’s body, the sufficiency of evidence showing a conspiracy, the extra

- jurisdictional pursuit of Murray, and the handcuffing of Murray are not preclusive in this action because the issues to be litigated here

— whether the actions and omissions of th e Utah

and federal law enforcement officers violated the 1863 and 1868 Ute

Treaties

— are not identical to the issues adjudicated by the district court in that court’s dispositive rulings.

The court agrees with defendant that the issues identified in the am ended complaint filed in this court , namely the allegations that officials committed “a wrong by pursuing Murray at gunpoint without jurisdiction and without probable cause, by shooting Murray execution

- style, and by then conspiring to cover

- up the executi on

- style shooting and to obstruct justice,” presents identical issues with those decided in the District Court litigation.

Regarding the second element of the collateral estoppel test, whether the prior action has been finally adjudicated on the merits, d efendant contends that the District Court’s “order on summary judgment is final for purposes of issue preclusion, even though Plaintiffs’ appeal remains pending .” In response, plaintiffs declare that the decisions by

the District Court “have not been conc lusively adjudicated on the merits because those rulings are being challenged on appeal and are currently pending de novo review by the46

Tenth Circuit.” (emphasis in original). The Tenth Circuit has made clear that “[t]he appealability of a judgment, howeve r, does not hinder its preclusive effect. ” MACTEC,

Inc. v. Gorelick , 427 F.3d 821, 832 (10th Cir. 2005) (citing 15A Charles Alan Wright et al., Federal Practice and Procedure § 4433, at 78

– 85 (2d ed. 1992) )

, cert. denied , 547 U.S. 1040 (2006) . Wright & Mil ler emphasize that, as a general rule, a final judgment from a lower court carries res judicata effect even though it is still subject to review by an appellate court

. See 15A Charles Alan Wright et al., Federal Practice and Procedure §
4433, at 78

– 85; se e also Leo v. Garmin Int’l , Inc. , 464 F. App’x 737, 740 (10th Cir.) (unpublished)

, cert. denied , 133 S. Ct. 484 (2012) . Moreover, as noted by the United States Court of Appeals for the F ederal Circuit, p rior adjudications are considered final when they are “sufficiently firm to be accorded conclusive effect.” Dana v. E.S. Originals,

Inc. , 342 F.3d at 1323 (quoting Restatement (Second) of Judgments § 13 (1982)) (applying 11th Circuit law)

. 29 The District Court’s decision in Jones et al. v. Norton et al.

, 3 F. Supp. 3d 1170

, was issued after years of discovery and more than four and a half years after the case was removed to Federal Court . The District Court judge issued a spoliation order and a 71 page decision granting the defendant’s motion for summary ju dgment , which fully reviewed the factual circumstances and legal issues raised in the

case.

Plaintiffs also allege that “to be considered adjudicated on the merits, the previous issues adjudicated must have been necessary to t he judgment.” As determined when

co nsidering the first element of collateral estoppel , all of the issues defendant raises as

b e aring on estoppel were necessary to the District C ourt’s decision to grant summary judgment to the defendant

. The District C ourt carefully considered the allegation s of murder, as well as the spoliation claims in determining that there were no constitutional violations by the officials. Each were a necessary element of the summary judgment

decision. Therefore, for purposes of collateral estoppel, the careful and tho rough summary judgment decision issued by the District of Utah should be considered a final judgment on the issue adjudicated on its merits by this court

. 30

Regarding the third element of the collateral estoppel test, whether the party against whom the doc trine is invoked was a pa rty or was in privity with a party to the prior adjudication, “Plaintiffs acknowledge that the third requirement for collateral estoppel is

29 The Federal Circuit has interpreted this to mean decisions that are “adequately deliberated” in which the “parties were fully heard in the prior proceeding.” Dana v. E.S. Originals, Inc. , 342 F.3d at 1323.

30 Although not clearly established by the Te nth Circuit, other federal appellate courts have made clear that issue preclusion applies to summary judgment decisions, and the summary judgment decision by the District Court in Norton thorough and detailed on the

relevant issues. See Exhibitors Poster E xch., Inc. v. Nat’l Screen Serv. Corp. , 421 F.2d 1313, 1319 (5th Cir. 1970); see also Shoup v. Bell & Howell Co ., 872 F.2d 1178, 1181 (4th Cir. 1989); Hubicki v. ACF Indus., Inc. , 484 F.2d 519, 524 (3rd Cir. 1973); 18A Charles Alan Wright et al., Federal P ractice and Procedure § 4444.47

met, because they were parties to the district court adjudication in Norton .” Therefore, the

third element is not i n dispute. 31

Finally, for the fourth element of the collateral estoppel test, whether the party defending against issue preclusion had a full and fair opportunity to litigate the issue in the first action, defendant contends that “[t]he district court prov ided Plaintiffs with a full and fair opportunity to litigate the matters involved in Norton

. ” Plaintiffs respond that they have not been afforded a full and fair opportunity to litigate the issue in the first action as “Plaintiffs have not yet been heard o n appeal.” Plaintiffs also argue that “[c]ritical in this case is that the Plaintiffs, through no fault of their own, were deprived of crucial evidence

in Norton due to the mass spoliation of critical evidence that occurred as a result of the

State and fed eral officers’ intentional tampering with, destruction and/or loss of, and failure to collect and preserve evidence. ”

For a full and fair opportunity, t he Tenth Circuit has indicated “as to the ‘“ inquiry into whether a party had a full and fair opportuni ty to litigate an issue

. . . [we] focus on whether there were significant procedural limitations in the prior proceeding, whether the party had the incentive to litigate fully the issue, or whether effective litigation was limited by the nature or relatio nship of the parties.”’” Burrell v. Armijo , 456 F.3d at 1172 (quoting Murdock v. Ute Indian Tribe of Uintah & Ouray Reservation , 975 F.2d 683, 689 (10th Cir. 1992) (internal citations omitted)). As noted above, plaintiffs originally filed their case in

N orton with the Uintah County Court on July 17, 2009, and then the case was removed

to the United States District Court for the District of Utah on August 20, 2009. The District Court, more than four and a half years after the removal to federal court , afte r issuing a spoliation order, issued a 71 page decision, granting the defendant’s motion for summary

31 The Court notes that the Ute Tribe was not a party to the District Court action

. N o one, however, has suggested to the court that the plaintiffs are in privity with the Tribe. Moreover, the court notes that the Ute Tribe, i ndependent of the other plaintiffs, cannot sustain a claim under the “bad men” provision of the 1868 Treaty. Article 6 of the Treaty

states:

If bad men among the whites or among other 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, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to t he laws of the United States, and also reimburse the injured

person for the loss sustained.

Id. Art. 6 (emphasis added). The Tribe is not an “injured person,” Mr. Murray was the injured person, and his parents brought suit on his behalf. See Hernandez v. United

States , 93 Fed. Cl. at 200 (“In order to bring action under the Fort Laramie Treaty a Native

American must be a victim of an affirmative criminal act, and the person committing the act must be a specific white man or men.”) (emphasis added). The Tri be alone cannot prosecute a claim under the “bad men” provision of the 1868 Treaty.48

judgment. As noted by defendant, in the District Court litigation, “Plaintiffs’ expert report summarize[ed] the nearly 1,000 pages of documents then avai lable, including an

e xtensive list of depositions.” Although plaintiffs argue they “have not yet been heard on appeal,” t his court determines that plaintiffs have not demonstrated a proper reason to
prevent p reclusion following the District Court’s final jud gment. Nor, in the court’s view, does the existence of an appeal speak to the plaintiffs’ ability to have had a full and fair opportunity to litigate the facts of what occurred before the federal District Court , which it appears plaintiffs have been affor ded

.

R egarding the argument that plaintiffs “were deprived of crucial evidence in Norton due to the mass spoliation of critical evidence that occurred ,” defendant argues that “[a]s an initial matter, their argument goes to the underlying investigation, no t the district court proceeding. T he matter of spoliation was intensely litigated over the course of five years in the district court of Utah, with extensive discovery, briefing, and an evidentiary hearing. ”

Th e District Court determined, “[b]ased on the facts as detailed and explained in its spoliation order, the court concludes that no reasonable jury could conclud e that Defendants conspired to ‘ effectively elim inate[ ] all probative evidence ’ and ‘ clean the

closet of evidence that would have allowed Pla intiffs to build their case. ’ ” Jones et al. v.

Norton et al. , 3 F. Supp. 3d at 1204 (footnote omitted ; omissions in original ). The District Court concluded that there was no failure on the part of the defendants to preserve evidence. Plaintiffs appear to b e arguing that the District Court’s decision was wrong and

that demonstrates plaintiffs did not have a full and fair opportunity to litigate. As discussed above, the District Court’s decision was thorough and compre hensive. Plaintiffs had a fair

and full o ppor tunity to litigate the spoliation issues

. 32

As all four elements of the collateral estoppel test have been met, plaintiffs are estopped from litigating the factual circumstances of Todd Murray’s death, and the allegations of the destruction of evidenc e. Therefore, for allegation (i), that the FBI or the

BIA officers committed wrongs to Todd Murray, the Murray family and the Ute Tribe “by acting in concert with state/county/municipal officers, expressly or impliedly, in concocting, or permitting to be c oncocted, a false story that Todd Murray shot himself in the back of his head, execution style, above and behind his left ear,” plaintiffs have failed

to state a claim. Likewise, for allegation (iv), that the FBI or the BIA officers committed wrongs to To dd Murray, the Murray family and the Ute Tribe “by participating in, tacitly allowing, or failing to prevent, the desecration of Murray’s body and the spoliation of

32 Although the District Court decision addressed only the state and local officers named

in the suit

, in the District Court’s spoliation order, the District Court noted tha t “[t] he State Defendants and Uintah County Defendants had no responsibility to ensure that Detective Norton's firearm was tested. . . . As part of his investigation, Agent Ashdown possibly should have taken Detective Norton's firearm to have necessary tes ts performed. But Agent Ashdown is not a named Defendant.” Jones et al. v. Norton, et al.

, 2014 WL 909569, at *7. As determined above, however, only affirmative acts trigger the “bad men” provision of the 1868 Treaty. Plaintiffs offer no claims as to wha t affirmative action by federal officials took place on Tribal lands which would implicate the “bad men ” provision of the 1868 Treaty.49

critical evidence both at the shooting scene and afterwards at the Medical Center,

Blackbur n Mortuary, and at the Utah OME ,” plaintiffs have failed to state a claim. T he remaining portions of plaintiffs’ allegations (i) and (iv) in the amended complaint f or violation of the 1863 and 1868 Treatie s and other federal laws are dismissed for failure

to state a claim. 33

Breach of Trust

Regarding Count II of plaintiffs’ amended complaint, “BREACH OF TRUST IN

VIOLATION OF THE UTE TREATIES AND OTHER FEDERAL LAW defendant argues that this court lacks subject matter jurisdiction. (capitalization in origina l).

The plaintiffs’ amended complaint states, in part :

By failing to investigate Todd Murray’s death and by taking no action to promote justice in Indian Country, Special Agent Rex Ashdown and David Ryan and BIA Officers James Beck, Terrance Cuch an d Kevin Myore breached their duties to the Ute Tribe, to Todd Murray, and to Murray’s

33 As noted above, plaintiffs also included a separate, additional list of allegations in the amended complaint against the defendant claiming:

In April 2007, Todd Murray, Todd Murray’s family, and the Ute Indian Tribe suffered “injuries” at the hands of “bad men” as those terms are used in the Ute Treaties of 1863 and 1868. These injuries include ( i) the extra

- territorial police pursuit, assault upon and murder of Todd Murray, ( ii ) the conspiracy to cover up Todd Murray’s murder, ( iii ) the failure of federal officers to take custody of Murray’s body and to secure the body against desecration and spoliation of evidence; ( iv ) the desecration of Murray’s body and the spoliation of critical evidence both at the shooting scene and afterwards at the Medical Center, Blackburn Mortuary, and at the Utah OME; ( v ) the failure to insure that a proper autopsy was performed on Murray’s b ody; [sic] ( vii ) failure of federal officers to conduct any kind of investigation into Todd Murray’s murder; and (vi) the failure of federal officers to protect the territorial integrity of the Tribe’s reservation boundary and the Tribe’s sovereign interes ts in the crime scene where Murray was shot.

The court notes that of these additional claims, numbers (ii), (iii), (iv), (v), (vi), and (viii)

, overlap with the allegations in the amended complaint addressed above. For claim (i), from the separate list o f claims, “the extra

- territorial police pursuit, assault upon and murder of Todd Murray,” the extra

- territorial pursuit also is not covered by the “bad men” provision of the 1868 Treaty. For the remaining elements of claim (i) from the separate,

additional list of claims, “assault upon and murder of Todd Murray,” the United States District Court for the District of Utah determined that the Mr. Murray’s injury is consistent

with a self

- inflicted gunshot wound, and, in this court, plaintiffs are estopped from claiming otherwise. Therefore, if the court were to consider the additional claim s

, additional claim (i) also fails to state a claim

.50

family under the Ute Treaties of 1863 and 1868 and under the various

federal laws listed under Paragraph 10 above

. [ 34 ]

. . . In violation of federal law and its treaty obl igations, the United States has failed to investigate or prosecute the individuals involved in the shooting death of 21 year

- old Todd Murray on April 1, 2007, or the subsequent conspiracy to suppress, alter, and destroy critical evidence related to the

sho oting death.

The United States has also breached its trust obligations to the T ribe and Murray’s family by failing to protect the territorial integrity of the Tribe’s

reservation and the Tribe’s sovereign interest in the shooting site, thus

a llowing unaut horized persons to trespass on the Ute homeland and cause

harm to tribal members with complete impunity

.

34 The federal laws listed in paragraph include “the Treaty of Guadalupe Hidalgo in 1848, including, without limitation, the Indian Country Crimes Act, 18 U.S.C. §§ 1151, 1152; the Major Crimes Act, 18 U.S.C. §§ 1153, 2343; the Assimilative Crimes Act, 18 U.S.C. § 13; Public Law 280, U.S.C. §1162; the Indian Civil Rights Act, 25 U.S.C. §§ 1301, 1302, 1321; and 42 U.S.C. §§ 1 981, 1983, 1985.” Plaintiffs do not explain how any of the citations listed establish money

- mandating statutes to invoke jurisdiction in this court. Moreover, this court specifically does not have jurisdiction under the Civil Rights Acts inclusive of 42

U. S.C. §§ 1981, 1983, 1985. See Pikulin v. United States , 97 Fed. Cl. 71, 77 (2011). Furthermore, the Federal Circuit has held that the Indian Civil Rights Act “does not impose duties upon the federal government or its officials.” Wopsock v. Natchees , 454 F.3d 1327, 1333 (Fed. Cir. 2006). In addition, to the extent plaintiffs seek to raise claims based on tortious behavior by invoking these or other statutes separate from their claims of violations of the 1863 and 1868 Treaties, this court lacks jurisdictio n to adjudicate those

claims. The Tucker Act expressly excludes tort claims, including those committed by federal officials, from the jurisdiction of the United States Court of Federal Claims. See 28 U.S.C. § 1491(a) (“The United States Court of Federal Cl aims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United Stat es, or for liquidated or unliquidated damages in cases not sounding in tort.”); see also Keene Corp. v. United

States , 508 U.S. 200, 214 (1993); Rick’s Mushroom Serv., Inc. v. United States , 521 F.3d at 1343. Moreover, to the extent, plaintiffs seek to rai se claims of criminal behavior by invoking these or other statutes, separate from their claims of violations of the 1863 and 1868 Treaties, this court also lacks jurisdiction to adjudicate those claims. See Joshua v.

United States , 17 F.3d 378, 379 (Fed. Cir. 1994); see also Cooper v. United States , 104 Fed. Cl. 306, 312 (2012) (holding that “this court does not have jurisdiction over [plaintiff’s] claims because the court may review neither criminal matters, nor the decisions of district courts.”) (intern al citations omitted); Mendes v. United States , 88 Fed. Cl. 759, 762, appeal dismissed , 375 F. App’x 4 (Fed. Cir. 2009); Hufford v. United States , 87 Fed. Cl. 696, 702 (2009) (holding that the United States Court of Federal Claims lacked jurisdiction

over claims arising from the violation of a criminal statute).51

Plaintiffs contend that the 1863 and 1868 Ute Treaties created, and impose, specific fiduciary duties on the United States, namely to protect Indian lands from “unauthorized state intrusion” and to prosecute and “punish any ‘bad man’ that commits any wrong upon the person or property of the Indians.” Plaintiffs claim that the United States “promised” these guarantees to the Ute people, and allege that in failing to prevent trespass onto tribal lands and in neglecting to investigate and prosecute the alleged “bad men,” the United States has breached its duties under the treaty agreement.

As noted above, the Tucker Act grants jurisdiction to this cour t as follows:

The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1 ). As interpreted by the United States Supreme Court, and as discussed above, the Tucker Act waives sover eign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional, statut ory, or regulatory law mandating compensation by the federal government for damages sustained. See Navajo Nation II , 556 U.S. at 289

– 90; Mitchell II , 463 U.S. at 216; see also Greenlee Cnty., Ariz. v. United States , 487 F.3d
at 875; Palmer v. United State s , 168 F.3d at 1314.

To prove that a statute or regulation is money

- mandating, a plaintiff must demonstrate that an independent source of substantive law relied upon “‘can fairly be interpreted as mandating compensation by the Federal Government.’” Nava jo Nation II

, 556 U.S. at 290 (quoting United States v. Testan , 424 U.S. at 400); see also United States v. White Mountain Apache Tribe , 537 U.S. at 472; Mitchell II , 463 U.S. at 217; Blueport Co., LLC v. United States , 533 F.3d at 1383. The source of law granting monetary relief

must be distinct from the Tucker Act itself. See Navajo Nation II , 556 U.S. at 290 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional provision[] that operate[s] to waive sovereign immunity for c laims premised on other sources of law ( e.g.

, statutes or contracts).”).

As explained by the Supreme Court in Navajo Nation II :

Neither the Tucker Act nor the Indian Tucker Act creates substantive rights; they are simply jurisdictional provisions that operate to waive sovereign immunity for claims pre mised on other sources of law ( e.g., statutes or contracts). United States v. Testan , 424 U.S. 392, 400, 96 S. Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Mitchell , 445 U.S. 535, 538, 100 S. Ct.
1349, 63 L.Ed.2d 607 (1980) ( Mitchell I ). The other source of law need not explicitly provide that the right or duty it creates is enforceable through a52

suit for damages, but it triggers liability only if it “ ‘can fairly be interpreted as mandating compensat ion by the Federal Government.’ ” Testan , supra, at 400, 96 S. Ct. 948 (quoting Eastport S.S. Corp. v. United States , 178 Ct. Cl. 599, 607, 372 F.2d 1002, 1009 (1967)); see also United States v. Mitchell

, 463 U.S. 206, 218, 103 S. Ct. 2961, 77 L.Ed.2d 580 (198 3) ( Mitchell II ); Navajo I, 537 U.S., at 503, 123 S. Ct. 1079.

As we explained in Navajo I , there are thus two hurdles that must be cleared before a tribe can invoke jurisdiction under the Indian Tucker Act. First, the tribe “must identify a substantive s ource of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties.” Id. , at 506, 123 S. Ct. 1079. “If that threshold is passed, 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].’” Ibid . (alteration in original). At the second stage, principles of trust law might b e relevant “in drawing the inference that Congress intended damages to remedy a breach.” United States v. White Mountain Apache

Tribe , 537 U.S. 465, 477, 123 S. Ct. 1126, 155 L.Ed.2d 40 (2003).

Navajo Nation II , 556 U.S. at 290

- 91; s ee also Mitchell II , 4 63 U.S. at 216. The Supreme

Court in Mitchell I I also noted that the existence of “a general trust relationship between the United States and the Indian people” is undisputed. S ee Mitchell II, 463 U.S . at 225

. In the Navajo Nation I , the Supreme Court not ed that

To state a claim cognizable under the Indian Tucker Act, Mitchell I and

Mitchell II thus instruct, a Tribe must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the

Government has failed fai thfully to perform those duties. See 463 U.S., at

216

– 217, 219, 103 S. Ct. 2961. If that threshold is passed, the court must then determine whether the relevant source of substantive law “can fairly be interpreted as mandating compensation for damages sust ained as a result of a breach of the duties [the governing law] impose[s].” Id. , at 219, 103 S. Ct. 2961. Although “the undisputed existence of a general trust relationship between the United States and the Indian people” can “reinforc[e]” the conclusion t hat the relevant statute or regulation imposes fiduciary duties, id. , at 225, 103 S. Ct. 2961, that relationship alone is insufficient to support jurisdiction under the Indian Tucker Act. Instead, the analysis must train on specific rights

- creating or duty

- imposing statutory or regulatory prescriptions. Those prescriptions need not, however, expressly provide for money damages; the availability of such damages may be

inferred.

Navajo Nation I , 537 U.S. at 506; s ee also Round Valley Indian Tribes v. United States

, 97 Fed. Cl. 500, 510 (2011) (quoting Navajo Nation I , 537 U.S. at 490) (“The ‘general53

trust relationship between the United States and the Indian people’ alone . . . is insufficient to establish jurisdiction” in the Court of Federal Claims .).

In describing the “two hurdles, the Navajo Nation court explained that “[f]irst, the tribe ‘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 du ties.’” Id. at 290 (quoting United States v. Navajo Nation , 537 U.S. at 506). Regarding the second hurdle, the Navajo Nation II court noted

“If that threshold is passed, the court must then determine whether the

relevant source of substantive law ‘can f airly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s].’ ” Ibid. (alteration in original). At the second stage, principles of trust law might be relevant “in drawing the infe rence that Congress intended damages to remedy a breach.” United States v. White Mountain Apache Tribe , 537 U.S. 465, 477, 123 S. Ct. 1126, 155 L.Ed.2d 40 (2003).

Navajo Nation II , 556 U.S. at 290

- 91. Specifically, “[t]he Government . . . is not a private

trustee.” United States v. Jicarilla Apache Nation , 131 S. Ct. 2313, 2323 (2011). As such, the Indian trust relationship “is defined and governed by statu tes rather than the common law, ” i d. and “[t]he Government assumes Indian trust responsibilities only to the extent it expressly accepts those responsibilities by statute.” Id. at 2325

. The Supreme Court in Jicarilla Apache Nation , determined, therefore, “Congress may style its rela tions with the

Indians a ‘trust’ without assuming all the fiduciary duties of a private trustee, creating a trust relationship that is ‘limited’ or ‘bare’ compared to a trust relationship between private parties at common law.” Id. at 2323 (quoting Mitchell I , 445 U.S. at 542 )

. The trust relationship , therefore, is limited to th e managem ent of tribal lands and assets

.

In its motion to dismiss, defendant contends that the plaintiff s ’ breach of trust claim “fail[s] to identify a substantive source of law that establishes specific fiduciary duties

. ”

Defendant argues that “a fiduci ary duty only arises if it is plain from the relevant statutes or regulations that the government has accepted such a responsibility.” Defendant

contends that because plaintiffs’ claim s have no foundation in any substantive body of

l aw, it fails to acquire subject

- matter jurisdiction under the Tucker Act and therefore

w arrants dismissal pursuant to RC FC 12(b)(1)

.

Plaintiffs correctly note that the Supreme Court has held that “ any ambiguities in the language of an Indian treaty must be resolved in favor of the India ns and courts must

endeavor to ‘ give effect to the terms as the Indians themselves would have understood

them. ’ ” ( quoting Mille Lacs Band of Chippewa Indians v. Minnesota

, 526 U.S. 172, 196

- 203 (1999) )

. Defendant argues, however, “ Plaintiffs fail to identify any specific, unambiguou s language in the Treaties that impose a fiduciary duty on the United States

to guard against the assertion of state criminal jurisdiction. ” Plaintiffs respond that Article 10 of the 1863 Treaty and Article 2 and Articl e 6 of the 1868 Treaty confer upon the Ute tribe the substantive source of law that establishes specific fiduciary or other duties.54

Article 10 of the 1863 T reaty provides:

Each family that shall announce through its head to the agent of the band a

willin gness and determination to begin and follow the pursuits of agriculture, by farming or raising stock and growing wool, upon such lands and according to such regulations as the Secretary of the Interior may prescribe, shall receive the following donations o f stock to aid them in their endeavor to gain a livelihood by such new pursuits, viz.:

Of cattle, one head annually during five years, beginning with the ratification of this treaty.

Of sheep, ten head annually during the first two years after the ratifi cation of this treaty, and five head annually during the three years thereafter.

The Secretary of the Interior may also direct that their share of annuity goods and provisions shall be of a character suited to such change of life: Provided, however

, That such stock shall only be donated as long as such family shall in good faith keep and use the same for the purpose indicated

in this article.

All the Indians of said band who may adopt and conform to the provisions of this article shall be protected in the quiet and peaceable possession of their said lands and property.

1863 Treaty, Art. 1 0 (emphasis in original). Plaintiffs also contend generally that the United States, “due to its absolute jurisdiction and control over Indian lands . . . has a specific fiduciary duty to protect the reservation from the imposition of state criminal jurisdiction over tribal members.” Plaintiffs, however, only cite to Navajo Tribe of Indians

, 624 F.2d at 989, and 25 U.S.C. § 200 (2012) , which requires “a report or record” b e submitted to the superintendent of the reservation whenever an Indian is confined or imprisoned on land s held in reserve. Plaintiffs do not elaborate how this creates the existence of specific fiduciary duties between the United States and the Ute India ns, or

any duties that are money

- mandating regarding the alleged imprisonment or confinement

. Moreover, Article 10 only addresses the land allotment for the Ute Indians who wish to “begin and follow agricultural or pastoral pursuits by farming or raising stock and growing wool, upon such lands and according to such regulations as the Secretary of the Interior may prescribe” Id. Article 10 of the 1863 Treaty does not provide a specific fiduciary money mandating duty.

P laintiffs also allege that A rticle 2 of the 1868 Ute T reaty establishes a duty to
prevent trespass

. In relevant part, Article 2 reads:

[N] o persons, except those authorized so to do, and except such officers, agents, and employes [sic] of the Government as may be authorized to55

enter upon Indian reservations in discharge of duties enjoined by law shall ever be permitted to pass over, settle upon, or reside in the Territory described in this article, except as herein otherwise provided.

1868 Treaty, Art. 2

. Defendant, notes, however, that “[p]laintiffs admit that ‘some courts have held that the duty of the United States to ensure the quiet enjoyment of reservation lands does not make the government liable for general trespasses by third parties.’” Moreover, defendant notes that “[c]onspicu ously absent in the events that constitute the alleged trespass of state law enforcement officials on the Reservation is the presence of any federal law enforcement officer.” In the amended complaint, the plaintiffs specifically identify state officers, bu t not the federal officers, as having no right to be on the

reservation. The amended complaint states: “ Murray was shot after being pursued at gun

point by two Utah state Highway Troopers, a Uintah County Sheriff’s Deputy, and an off

duty Vernal City, Uta h, police officer. The pursuit took place over tribal trust lands more than 25 miles inside the northern boundary of the U&O Reservation. The four shooting

involved officers had no criminal jurisdiction over Indians inside the U&O Reservation.”

For each of the four state officers, the amended complaint also alleges they are “not

cross

- deputized by the federal government or the Ute Tribe to exercise law enforcement powers over Native Americans inside the Ute Tribe’s Reservation.” The plaintiffs, do not,

how ever, make a cross

- deputized claim against any of the federal officials.

Finally, a ccording to plaintiffs, t he United States’ failure to prosecute the bad men who murdered Mr. Murray and conspired to cover up the murder on April 1, 2007 represents a breac h of trust

. Article 6 of the 1868 T reaty promises that “the United States will . . . proceed at once to cause the offender to be arrested and punished according to

the laws of the United States .” 1 868 Treaty , Art. 6

. Plaintiffs argue that

The “bad men” cl ause of the 1868 Treaty, further expands the duty of the U.S. to protect not only the Ute Tribe as a whole in its quiet possession of the reservation lands, but also the individual Ute Indians against “any wrong” perpetrated on them by any non

- Indian.

Def endant c ontends that the 1868 Ute Treaty provision is not trust

- creating, but

rather bestows discretionary power upon the United States to prosecute bad men

. Moreover , defendant states “[w]e do not question that the Treaty requires payment to

individuals u nder the ‘ Bad Men ’ clause, if the requirements of the Treaty are met. The Treaties, however, impose a duty upon the government to only pay individual members,

not the Tribe , in the event that unauthorized persons cause harm to person or property.” (emphasi s in original). Moreover, for count one, this court did not find the United States

had violated the “ bad m e n ” provision as a result of the actio ns involving Mr. Murray’s death, and for count two, plaintiffs’ claims are repetitive of count on e, as they spec ifically repeat and re

- allege the claims in count two.

None of the citations to the 1863 and 1868 Treaties provide a source of jurisdiction

for the breach of trust claims alleged by plaintiffs

. Furthermore, none of the pla intiffs’

breach of trust clai ms identify any substantive law containing the “ express language of a56

trust

. ” See Samish Indian Nation v. United States , 419 F.3d at 1368

. Moreover, plaintiffs have not demonstrated how “[t]he United States has also breached its trust obligations to

the Tr ibe and Murray’s family by failing to protect the territorial integrity of the Tribe’s reservation and the Tribe’s sovereign interest in the shooting site, thus allowing unauthorized persons to trespass on the Ute homeland and cause harm to tribal members with complete impunity,” or that “[t]he Defendant’s breach of its trust and treaty obligations has resulted in substantial loss to the Tribe.” The court agrees with defendant that, “[i]n fact, Plaintiffs have not identified any ‘specific right

- creating or duty

- imposing statutory or regulatory prescriptions’ that establish ‘spe cific fiduciary or other duti es ’ that the United

States allegedly has failed to fulfill” as part of its trust duties. (quoting Navajo I , 537 U.S. at 506).

The court also agrees with defendant that “authority to institute both civil and criminal litigation on behalf of the United States is committed to the dis cretion of the Attorney General. ” (citing 28 U.S.C. § 516 (2012) . The defendant further argues that “[t]he Attorney General’s ex ercise of his discretion to file litigation on behalf of the United States is ‘presumptively immune from judicial review.’” (quoting Shoshone Bannock Tribes v.

Reno , 56 F.3d 1476, 1480 (D.C. Cir. 1995)). Article 6 of t he 1868 Treaty provides that the

Unit ed States will “ r eimburse the injured person for the loss sustained,” however, payment

i s contingent on the “bad men” “ offender” being “arrested and punished according to the

laws of the United States. . . .” 1868 Treaty, Art. 6. As noted above, the recor d does not reflect any prosecutions were initiated against any individuals named by the plaintiffs in the above captioned case. Moreover, the decision issued by the United States District Court for the District of Utah did not find any culpability on the p art of any individual accused by plaintiffs in the death of Mr. Murray, further suggesting no reimbursement to the plaintiffs is warranted

. For the foregoing reasons, defendant’s motion to dismiss plaintiffs’ breach of trust claims for lack of subject

- matt er jurisdiction is granted

.

CONCLUSION

Because plaintiffs have failed to state a claim and have not demonstrated jurisdiction is proper in this court , defendant’s motion to dismiss is GRANTED

. Plaintiff s ’ amended complaint is DISMISSED

. The Clerk's Off ice shall enter JUDGMENT consistent with this opi nion

.

IT IS SO ORDERED

.

s/Marian Blank Horn

MARIAN BLANK HORN

Judge