United States Court of Appeals 

for the Federal Circuit ______________________ 

UTE INDIAN TRIBE OF THE UINTAH & OURAY 

INDIAN RESERVATION,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2021-1880

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:18-cv-00359-RHH, Senior Judge Robert H. 

Hodges, Jr, Judge Armando O. Bonilla.

______________________ 

Decided: April 25, 2024 

______________________ 

MICHAEL W. HOLDITCH, Patterson Earnhart Real Bird 

& Wilson LLP, Louisville, CO, argued for plaintiff-appellant. Also represented by FRANCES C. BASSETT. 

 ANDREW MARSHALL BERNIE, Appellate Section, Environment and Natural Resources Division, United States 

Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by TODD KIM. 

 ______________________ 

Before DYK, REYNA, and STARK, Circuit Judges.

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2 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

Opinion for the court filed by Circuit Judge DYK. 

Opinion concurring-in-part and dissenting-in-part filed by 

Circuit Judge REYNA. 

DYK, Circuit Judge. 

Plaintiff Ute Indian Tribe of the Uintah and Ouray Indian Reservation (“Tribe”) brought suit against the United 

States in the Court of Federal Claims (“Claims Court”) asserting various claims concerning water rights and waterrelated infrastructure. The First Amended Complaint

(“Complaint”) alleged that the United States breached duties of trust by mismanaging water rights and mismanaging water infrastructure held by the United States and 

operated for the Tribe, breached contracts with the Tribe, 

and effected unconstitutional takings of the Tribe’s property. The Claims Court held that the Tribe had not identified a trust-creating source of law and dismissed all the 

breach of trust claims, held that one breach of contract 

claim was barred by a 2012 settlement agreement, and

found the remaining breach of contract and takings claims 

time barred. 

We hold that the Winters doctrine and the 1899 Act do 

not sufficiently establish trust duties to support Indian 

Tucker Act jurisdiction with respect to the Tribe’s claims

that the United States has a duty to construct new infrastructure and secure new water for the Tribe, but that the 

1906 Act imposes trust duties on the United States sufficient to support a claim at least with respect to management of existing water infrastructure. Thus, as to the trust 

claims, we affirm in part and vacate and remand in part. 

With respect to one breach of contract claim, we affirm in 

part and vacate and remand in part. With respect to the 

takings claims and the other breach of contract claim, we 

affirm the dismissal.

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UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 3

BACKGROUND

I. Historical Background

The Tribe is a federally recognized and sovereign Indian Tribe that was organized into its present form under 

the Indian Reorganization Act of 1934. 25 U.S.C. § 5101 et 

seq. The Tribe occupies the Uintah and Ouray Indian Reservation (“Reservation”), which encompasses about four 

million acres in the Green River Basin of northeastern 

Utah and lies within the drainage of the Colorado River

Basin. Approximately half of the Reservation was established by an 1861 Executive Order that was confirmed by 

an Act of Congress instructing the superintendent of Indian affairs for the territory of Utah to “collect and settle 

all or so many of the Indians of said territory as may be 

found practicable in the Uinta valley.” Act of 1864, 38 

Cong. Ch. 77, 13 Stat. 63. The other half was established 

by Congress in 1880. Act of 1880, 46 Cong. Ch. 223, 21 

Stat. 199. Among “[t]he purposes of [the Act of 1880 was] 

to destroy the tribal structure and to change the nomadic 

ways of the Utes by forcibly converting them from a pastoral to an agricultural people.” United States v. S. Ute Tribe 

or Band of Indians, 402 U.S. 159, 163 (1971) (citing 10 

Cong. Rec. 2059, 2066 (1880)). Because the Reservation is 

exceptionally arid, year-round water supply depends upon 

water storage infrastructure and irrigation systems to capture and distribute winter snowmelt in the rivers running 

through the Reservation. In 1905, the Commissioner of Indian Affairs remarked that the Tribe’s future “depends 

upon a successful irrigation scheme, for without water 

their lands are valueless, and starvation or extermination 

will be their fate.” Complaint at 6 (quoting Rep. of the 

Comm. of Ind. Affs., 1906).

The history of the relationship between the Tribe and 

the United States with respect to water rights is long and 

complicated. Several events essential to the Tribe’s claims

here are the following:

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4 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

The 1899 Act 

• In 1899, Congress enacted an appropriations statute with a provision permitting the Secretary of the Interior to grant rights of way on or through the Uintah Indian 

Reservation for the construction and maintenance of dams, 

ditches, and canals, provided that “it shall be the duty of 

the Secretary of the Interior to prescribe such rules and 

regulations as he may deem necessary to secure to the Indians the quantity of water needed for their present and 

prospective wants.” Act of March 1, 1899, 55 Cong. Ch. 

324, 30 Stat. 924, 941 (“1899 Act”). The Tribe maintains 

that this statute created a trust obligation to secure future 

water rights for the Tribe.

The 1906 Act and the Uintah Indian Irrigation Project

• In 1906, Congress enacted another appropriations 

statute that funded the construction of “irrigation systems 

to irrigate the allotted lands of the Uncompahgre, Uintah, 

and White River Utes in Utah.” Act of June 21, 1906, 59 

Cong. Ch. 3504, 34 Stat. 325, 375 (“1906 Act”). 

• These irrigation works were to be “held and operated, and water therefor appropriated under the laws of the 

State of Utah, and the title thereto . . . shall be in the Secretary of the Interior in trust for the Indians.” Id.

• By about 1922, the irrigation system constructed 

pursuant to the 1906 Act, now known as the Uintah Indian 

Irrigation Project (“UIIP”), was essentially completed. 

• The Tribe alleges that the infrastructure constructed under the 1906 Act today comprises several hundred miles of waterways and canals. The Tribe maintains 

that the 1906 statute created a trust obligation with respect to water rights and water infrastructure.

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UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 5

The Central Utah Project 

• In 1956 Congress authorized the Central Utah Project, a major infrastructure project to transport water from 

the Colorado River system to lands within Utah.

• The initial phase included the Bonneville unit, 

which transports water from the Reservation to the Salt 

Lake City metropolitan region. This initial phase depended on diverting water subject to the Tribe’s water 

rights, water which was not then being used to irrigate 

lands on the Reservation. The project could not proceed 

without the Tribe’s agreement to delay the use of this water. 

The 1960 Decker Report 

• In order to quantify its claims to water rights in 

connection with the proposed Central Utah Project, in 1960 

the Tribe employed E.L. Decker, a former employee of the 

Bureau of Reclamation, to prepare a report surveying present, historic, and future practicably irrigable lands within 

the Reservation (the “Decker Report”). 

• The Decker Report organized irrigable Reservation 

lands into seven different categories, which included four 

groups particularly relevant to the Tribe’s claims here: 

Group 1, consisting of lands irrigated through the 1906 Act 

infrastructure with federally decreed water rights; Group 

2, consisting of lands irrigated through the 1906 Act infrastructure with state-certified water rights; Group 3, consisting of lands designated as irrigable that were or could 

be served through 1906 Act infrastructure facilities, with 

some lands having a supplemental state-certified water 

right and other lands lacking a water right certificate; and

Group 5, consisting of certain lands that were found economically feasible to irrigate but not yet irrigated. 

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6 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

The 1965 Deferral Agreement 

• In 1965, after the Decker Report was completed,

the Bureau of Indian Affairs (“BIA”), the Bureau of Reclamation, the Central Utah Water Conservancy District (a 

political subdivision of the State of Utah), and the Tribe

entered into the “1965 Deferral Agreement,” which provided that the Bonneville unit “may proceed without objection, interference or claim adverse to the water 

requirements for such unit” and that the Tribe would defer 

the use of water designated to irrigate Decker Report 

Group 5 lands until “the ultimate phase of the Central 

Utah project.” J.A. 255–56. 

• In exchange, the Tribe was granted “full and complete recognition of the water rights of said tribe, with a 

priority date of 1861 in groups (1), (2), (3), (4) and (5) as 

described in the book of claims filed with the State Engineer, State of Utah, by the Ute Indian Tribe [i.e., as described in the Decker Report], without resort to litigation.” 

J.A. 256.

• The 1965 Deferral Agreement also required the 

United States to construct specific additional infrastructure units to increase the quantity of water available to the 

Tribe, including the Upalco unit and the Uintah unit, 

which were “to supply said Indian water rights by the 1st

day of January, 2005,” and “provide storage of the runoff 

waters of the Uintah River and its tributaries.” J.A. 257, 

258. 

• These additional infrastructure units were never 

constructed. The Tribe alleges that the United States 

breached the 1965 Deferral Agreement.

The 1967 Midview Exchange Agreement

• In 1967, the Tribe, the United States, and an organization of secondary water rights users entered into the 

“Midview Exchange Agreement” to exchange particular 

water rights and irrigation facilities.

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UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 7

• As part of the exchange, title to “the Midview Dam 

and Reservoir, Duchesne Diversion Dam, Duchesne Feeder 

Canal, and Midview Lateral together with all facilities and 

property appurtenant thereto” (hereinafter the “Midview 

Property”) was to be transferred to BIA to “become part of 

the project works of the Uintah Project,” and BIA was to

“operate and maintain” the same “as part of the Uintah 

Project [UIIP].” J.A. 263. 

• The Tribe contends that because the Uintah Project (UIIP) infrastructure was to be held in trust for the 

Tribe pursuant to the 1906 Act, the Midview Property was 

also meant to be held in trust, but that the United States 

has not transferred the property to BIA and is “using water 

from the Midview Reservoir to irrigate lands other than 

those designated for irrigation under the Midview Exchange” in violation of the agreement. Complaint at 35. It 

alleges that the United States failed to comply with the 

agreement in other respects as well.

The Central Utah Project Completion Act (“CUPCA”) 

of 1992

• In 1990, the United States, the State of Utah, and 

the Tribe attempted to negotiate a “Revised Ute Water 

Compact,” which was intended to quantify the Tribe’s water rights.1 Congress ratified the 1990 Revised Ute Water 

Compact, subject to ratification by the State of Utah and 

the Tribe. The Tribe never ratified the 1990 Revised Ute 

Water Compact.

• In 1992, Congress passed the Central Utah Project 

Completion Act (“CUPCA”), Pub. L. No. 102-575, 106 Stat. 

4600. 

1 The State of Utah and the Tribe had agreed to an 

earlier 1980 compact, but the United States Congress did 

not ratify it.

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8 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

• Title V of CUPCA, which concerned “Ute Indian 

Rights Settlement,” noted that there were “unresolved 

Tribal claims arising out of [the 1965 Deferral Agreement],” that “construction of the Upalco and Uintah Units

[required by the 1965 Deferral Agreement] has not been 

undertaken,” and that “there is no present intent to proceed with Ultimate Phase construction.” Id. § 501(a)(2)–

(3). One of the purposes of Title V was to “put the Tribe in 

the same economic position it would have enjoyed had the 

features contemplated by the [1965 Deferral Agreement] 

been constructed.” Id. § 501(b)(3). The House Committee 

Report further stated that the “purpose of Title V is to authorize the [Tribe] to quantify by compact its reserved water rights vis-a-vis the State of Utah and to settle longoutstanding claims against the United States arising out of 

the construction of the Central Utah Project.” H.R. Rep.

No. 102-114, pt. 1, at 69 (1991). 

• CUPCA provided for economic benefits to the 

Tribe, which have totaled several hundred million dollars 

to date. One provision, section 502(a), provided that “the 

Tribe shall receive from the United States 26 percent of the 

annual Bonneville Unit municipal and industrial capital 

repayment obligation . . . which represents a portion of the 

Tribe’s water rights that were to be supplied by storage 

from the Central Utah Project, but will not be supplied because the Upalco and Uintah units are not to be constructed.” The Tribe currently receives approximately 

$2 million per year under this provision.

• In addition, sections 504, 505, and 506 provided 

$198.5 million for economic development, farming operations, and improvements to existing reservoirs, streams, 

and municipal water facilities.

• Receipt of these funds was conditioned on a 

“waiver” of “any and all claims relating to [the Tribe’s] water rights covered under the [1965 Deferral Agreement].” 

CUPCA § 507(b). The purpose of this section was to 

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UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 9

accomplish “a waiver of all historical claims which the tribe 

may have, including all claims arising out of the [1965 Deferral Agreement].” H.R. Rep. No. 102-114, pt. 1, at 127. 

But the waiver did not include, “and indeed preserved . . . 

rights which the Tribe may have under the Ute Indian 

Compact and under Title V itself.” Id. at 127–28. Section 

507 is ambiguous as to whether the waiver of contractual 

claims was imposed on the Tribe—unilaterally eliminating 

the contractual rights by statute—or whether the claims 

would be waived only if the Tribe accepted the settlement 

funds and agreed to the revised compact. See CUPCA 

§§ 503(a); 507.

• In its complaint, the Tribe alleges that the latter 

construction is correct, that the Tribe has not yet received 

the full amount of funds provided by these sections of 

CUPCA, and that the proposed 1990 Revised Ute Water 

Compact was never ratified. Therefore, the Tribe alleges, 

there was no effective settlement or waiver of the Tribe’s 

claims under the 1965 Deferral Agreement. 

The 2012 Settlement Agreement

• In 2006, the Tribe filed a lawsuit at the Claims 

Court concerning the United States’ alleged breach of trust 

in its management of CUPCA funds. This lawsuit was settled in 2012. In exchange for $125 million, the Tribe agreed 

to waive: 

[A]ny and all claims, causes of action, obligations, 

and/or liabilities of any kind or nature whatsoever, 

known or unknown, regardless of legal theory, for 

any damages or any equitable or specific relief, that 

are based on harms or violations occurring before 

the date of the execution of this Settlement Agreement by both Parties and that relate to the United 

States’ management or accounting of Plaintiff’s 

trust funds or Plaintiff’s non-monetary trust assets 

or resources. 

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10 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

J.A. 273 (emphasis added). The waiver contained an exception for claims based on the Tribe’s “water rights, 

whether adjudicated or unadjudicated; [the Tribe’s] authority to use and protect such water rights; and [the 

Tribe’s] claims for damages for loss of water resources allegedly caused by [the United States’] failure to establish, 

acquire, enforce or protect such water rights.” J.A. 277. 

II. The Present Lawsuit

The Tribe filed the present case on March 7, 2018, seeking damages for breaches of trust, breaches of contract, and 

unconstitutional takings.2 After the Tribe amended its 

2 The next day, the Tribe also filed a case in the 

United States District Court for the District of Columbia. 

Ute Indian Tribe of Uintah & Ouray Reservation v. United 

States Dep’t of Interior, 18-cv-547, ECF 1 (D.D.C. March 8, 

2018). The complaint in that case raised similar allegations concerning the United States’ fiduciary duties (including based on the 1899 and 1906 Acts), the 1965 

Deferral Agreement, and the Midview Exchange Agreement, and sought declaratory and injunctive relief. Id., 

ECF 57, at 68–82. Following the government’s motion to 

dismiss, the district court determined that neither the 1899 

nor the 1906 Act created enforceable trust duties and that 

the claims related to both the Midview Exchange Agreement and the 1965 Deferral Agreement were time barred. 

560 F. Supp. 3d 247, 258, 261–63 (D.D.C. 2021). This decision was dated September 15, 2021. The remaining claims 

were transferred to the District of Utah. Id. at 268.

In the District of Utah, the court granted the Tribe 

leave to amend its complaint. No. 21-cv-573, 2023 WL 

6276594, at *2 (D. Utah Sept. 26, 2023). Following another 

motion to dismiss, the district court dismissed most claims 

with prejudice, agreeing with the District Court for the District of Columbia that the Tribe failed to establish commonCase: 21-1880 Document: 54 Page: 10 Filed: 04/25/2024
UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 11

initial complaint, the United States moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (6).

A. Breach of Trust Claims

The complaint pled several breach of trust claims, alleging that the “United States holds legal title as trustee to 

the Tribe’s trust lands, waters, water works, and trust 

funds relating to these assets.” Complaint at 2. The complaint presented two basic theories of the United States’

trust duties. First, the Tribe alleged that the United States 

has a duty to procure new water for the Tribe, including by 

constructing new water storage infrastructure. The Tribe 

primarily based this theory on the “Winters doctrine,” under which the “Federal Government’s reservation of land 

for an Indian tribe also implicitly reserves the right to use 

needed water from various sources,” Arizona v. Navajo Nation, 599 U.S. 555, 561 (2023) (citing Winters v. United 

States, 207 U.S. 564, 576–77 (1908)), and on the 1899 Act.3 

Second, the Tribe alleged that the United States has failed 

to maintain the 1906 Act irrigation infrastructure and to 

preserve related water rights, which are held in trust by 

the United States for the benefit of the Tribe pursuant to 

the 1906 Act.

law trust obligations on the federal government and that 

claims related to the 1965 Deferral Agreement and the 

Midview Exchange Agreement were time barred. Id. at *5, 

*11, *17, *24. The Tribe was permitted to re-plead two 

claims related to a 2019 contract between the Bureau of 

Reclamation and the State of Utah. Id. at *19, *24. That 

case is still pending in the District of Utah.

3 The “various sources” implicated by the Winters 

doctrine include “groundwater, rivers, streams, lakes, and 

springs—that arise on, border, cross, underlie, or are encompassed within the reservation.” Arizona v. Navajo Nation, 599 U.S. at 561 (citing Winters, 207 U.S. at 576–77).

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12 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

The Claims Court dismissed all seventeen of the breach 

of trust claims, holding that neither the 1899 Act nor the 

1906 Act expressly created specific trust duties and that 

the Claims Court therefore lacked jurisdiction under the 

Indian Tucker Act, 28 U.S.C. § 1505.4 Ute Indian Tribe of 

Unitah and Ouray Indian Reservation v. United States, No. 

18-359 L, 2021 WL 1602876, at *4–5, *9 (Fed. Cl. Feb. 12, 

2021) (“Decision”). 

B. 1965 Deferral Agreement Claims

The Tribe also pled two claims related to the 1965 Deferral Agreement. First, the Tribe alleged in claim 14 that 

the United States breached the agreement by failing to 

“implement systems and facilities for the development of 

all Tribal Reserved Water Rights.” Complaint at 76–77. 

The Claims Court held that this claim was time barred because CUPCA made clear in 1992 that the infrastructure 

would not be completed. Second, in the alternative and assuming that the breach of contract claims were extinguished, the Tribe alleged in claim 15 that CUPCA effected 

an unconstitutional taking of the Tribe’s 1965 Deferral 

Agreement contractual rights because CUPCA purported 

to extinguish the Tribe’s contract rights without just compensation. The Claims Court also found this claim to be 

time barred because the alleged taking was a discrete 

event—the enactment of CUPCA—and therefore “the Tribe 

had knowledge of the facts forming the basis of its claim in 

1992.” Decision, at *8.

4 The breach of trust claims are claims 1–9, 12, 13, 

16–20, and parts of claim 21. The Tribe also relied on various other treaties and statutes as creating a trust obligation. We do not read the language of those provisions to 

create a specific trust obligation. Nor do we see any significance in the supposed judicial admissions by the United 

States in prior litigation.

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UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 13

C. Midview Exchange Agreement Claims

The Tribe pled two claims related to the Midview Exchange Agreement. First, the Tribe alleged in claim 11

that the United States breached the agreement by “failing 

to effectuate a transfer of the Midview Property in trust for 

the benefit of the UIIP” and operate it for the Tribe’s benefit, which has resulted in damages because the United 

States diverts water from the Midview Property to irrigate 

other lands, reducing the amount of stored water available 

to the Tribe. Complaint at 73.

The Claims Court held that this claim was barred by 

the 2012 settlement agreement, which “waived and released the United States from claims, known and unknown, for ‘improper[ ] or inappropriate[ ]’ transfer of nonmonetary trust assets or resources and ‘fail[ure] to undertake prudent transactions for the sale, lease, use, or disposal of [the Tribe]’s non-monetary trust assets or 

resources.’” Decision, at *8 (alterations in original) (quoting J.A. 275). Second, the Tribe alleged that the United 

States physically took tribal property without just compensation through the Midview Exchange because the Tribe 

was compelled to give up “a portion of the Tribe’s seniorpriority Winters Reserved Water Rights” in exchange for 

“state-based water rights, with a priority date inferior to 

the Tribe’s Winters Reserved Rights.” Complaint at 72. 

The Claims Court found this claim to be time barred because “the source of the claim is the execution of the 

[Midview Exchange] Agreement,” which occurred in 1967. 

Decision, at *8. 

D. Claims Court Judgment

The Claims Court entered judgment on February 16, 

2021, dismissing all of the Tribe’s claims. The Tribe timely 

appeals. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(3).

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14 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

DISCUSSION

We review de novo dismissals by the Claims Court for 

lack of subject matter jurisdiction, Trusted Integration, Inc. 

v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011), and

dismissals for failure to state a claim, Bd. of Supervisors of 

Issaquena Cnty., Mississippi v. United States, 84 F.4th 

1359, 1364 (Fed. Cir. 2023). We generally presume that 

the facts alleged in the complaint are true and draw all reasonable inferences in favor of the plaintiff. Reynolds v. 

Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 

1988); Issaquena, 84 F.4th at 1364. We “may also look to 

matters incorporated by reference or integral to the claim, 

items subject to judicial notice, and matters of public record.” A & D Auto Sales, Inc. v. United States, 748 F.3d 

1142, 1147 (Fed. Cir. 2014) (internal quotation marks, alterations, and citation omitted).

Generally, we do not address issues not presented to 

the trial court or not pressed on appeal. See In re Google 

Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020). 

“An issue that is merely alluded to and not developed as an 

argument in a party’s brief is deemed” forfeited. Rodriguez 

v. Dep’t of Veterans Affs., 8 F.4th 1290, 1305 (Fed. Cir. 

2021). We will exercise our discretion to review forfeited 

issues when, among other reasons, “there is a change in the 

jurisprudence of the reviewing court or the Supreme Court 

after consideration of the case by the lower court” or an issue was not presented to the court we are reviewing but 

nonetheless “an issue is properly before the court.” Golden 

Bridge Tech., Inc. v. Nokia, Inc., 527 F.3d 1318, 1323 (Fed.

Cir. 2008) (quoting Forshey v. Principi, 284 F.3d 1335, 1356

(Fed. Cir. 2002)).

I. The Breach of Trust Claims

We first address the Tribe’s breach of trust claims. 

While the United States has a “general trust relationship

. . . [with] the Indian people,” to establish jurisdiction over 

a breach of trust claim under the Indian Tucker Act a Tribe

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UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 15

first “must identify a substantive source of law that establishes specific fiduciary or other duties.” United States v. 

Navajo Nation, 537 U.S. 488, 506 (2003) (“Navajo I”) (internal quotation omitted). “[T]he analysis must train on 

specific rights-creating or duty-imposing statutory or regulatory prescriptions.” Id. If the Tribe identifies such a statute at step one of the Navajo I analysis, at the second step

“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].’” Id.

(alteration in original) (quoting United States v. Mitchell, 

463 U.S. 206, 219 (1983) (“Mitchell II”)).

 The Claims Court dismissed all of the Tribe’s breach of 

trust claims because the Tribe failed at step one to “establish that the United States has a specific trust obligation to 

ensure adequate water delivery or storage on the Tribe’s 

Reservation.” Decision, at *6. The Tribe’s breach of trust 

claims fit into two broad categories. We consider each of 

these categories in turn.

A 

In the first category of claims, the Tribe alleged that

the United States has duties in trust to secure new water 

for the Tribe, including by constructing new water storage 

infrastructure. According to the Tribe, the Winters doctrine and the 1899 Act impose upon the United States a 

“fiduciary duty to [] secure the amount [of] water to satisfy 

the Tribe’s present and prospective wants.” Complaint at 

8. The Tribe also argues that the United States has “a 

money-mandating fiduciary duty to provide storage facilities and other infrastructure necessary . . . to prevent unnecessary loss or waste of Tribal water.” Complaint at 60. 

We agree with the Claims Court that Winters and the 1899 

Act do not impose these trust duties and conclude that the 

Claims Court properly dismissed these claims. 

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16 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

The recent Supreme Court decision in Arizona v. Navajo Nation dealt directly with these issues. There, the Navajo Nation alleged that the treaty establishing the Navajo 

Reservation created affirmative duties to supply water under the Winters doctrine. 599 U.S. at 558–59. The Supreme Court noted that the Winters doctrine, without a 

duty-imposing treaty, statute, or regulation, does not “require the United States to take affirmative steps to secure 

water for [Indian] Tribe[s].” 599 U.S. at 569–70. “[T]he 

treaty said nothing about any affirmative duty for the 

United States to secure water,” id. at 565, and “contained 

no ‘rights-creating or duty-imposing’ language.” Id. at 564 

(quoting Navajo I, 537 U.S. at 506). Because the United 

States “owes judicially enforceable duties to a tribe ‘only to 

the extent it expressly accepts those responsibilities,’” the 

Supreme Court found that Navajo Nation could not sustain 

its breach of trust claim. Id. at 564 (quoting United States 

v. Jicarilla Apache Nation, 564 U.S. 162, 177 (2011)).

Here, the Tribe primarily argues that the 1899 Act provides the rights-creating duties found necessary in the 

Navajo I case. The 1899 Act appropriated funds “for the 

purpose of paying the current and contingent expenses of 

the Indian Department.” 30 Stat. 924. It further provided:

That the Secretary of the Interior be . . . authorized, 

in his discretion, to grant rights of way for the construction and maintenance of dams, ditches, and 

canals, on or through the Uintah Indian Reservation in Utah, for the purpose of diverting and appropriating the waters of the streams in said 

reservation for useful purposes:

Provided, That all such grants shall be subject at 

all times to the paramount rights of the Indians on 

said reservation to so much of said waters as may 

have been appropriated, or may hereafter be appropriated or needed by them for agricultural and domestic purposes; and it shall be the duty of the 

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UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 17

Secretary of the Interior to prescribe such rules and 

regulations as he may deem necessary to secure to 

the Indians the quantity of water needed for their 

present and prospective wants, and to otherwise 

protect the rights and interests of the Indians and 

the Indian service. 

Id. at 941. 

In other words, the 1899 Act allowed the Secretary to 

authorize rights of way for construction of facilities to divert water away from the Reservation, but in doing so the 

Secretary could not interfere with the Tribe’s “paramount 

rights” to water. This is essentially an acknowledgment of 

a Winters obligation—the Secretary could not permit construction that would interfere with the Tribe’s right to appropriate water from the streams of the reservation for 

domestic or agricultural purposes. Although the Secretary

had a “duty . . . to prescribe such rules and regulations as 

he may deem necessary to secure to the Indians the quantity of water needed,” this language falls short of creating 

a trust duty with respect to particular property. Id. The 

Secretary’s duty is to establish rules and regulations. The 

United States has not “expressly accept[ed]” a duty to secure new water for the Tribe by construction of new infrastructure or other means. Navajo Nation, 599 U.S. at 564. 

The complaint never alleges that the Secretary 

breached a fiduciary duty by failing to establish the regulations contemplated by the 1899 Act. And this duty to prescribe regulations is explicitly subject to the Secretary’s 

discretion—he must only prescribe such regulations “as he 

may deem necessary”—which further demonstrates that 

the 1899 Act does not create a mandatory duty. 30 Stat. at 

941. Finally, the language referring to a duty “to otherwise 

protect the rights and interests of the Indians and the Indian service” is not specific enough to create trust duties. 

Id.; see Hopi Tribe v. United States, 782 F.3d 622, 667 (Fed. 

Cir. 2015) (“[A] statute or regulation that recites a general 

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18 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

trust relationship between the United States and the Indian People is not enough to establish any particular trust 

duty.”). The 1899 Act does not contain any “in trust” language, nor does it establish a corpus of particular assets or 

any duties with respect to them. It simply recognizes a

prevailing Winters obligation not to interfere with the 

Tribe’s existing rights and to prescribe regulations as may 

be “deem[ed] necessary” by the Secretary to protect them, 

which is not sufficient to create a trust obligation. 30 Stat. 

at 941.

Claims 2, 3, 4, 16, 17, and 18 are all premised on a purported duty of the United States to construct new infrastructure or affirmatively secure new water for the Tribe. 

The 1899 Act neither expressly nor implicitly imposes such

duties on the United States. Therefore, we affirm the 

Claims Court’s dismissal of claims 2, 3, 4, 16, 17, and 18 for 

lack of jurisdiction under the Indian Tucker Act. 

B 

We reach a different conclusion as to the second category of the Tribe’s breach of trust claims, at least as to water infrastructure.5 In the second category, the Tribe 

alleges that the United States has mismanaged particular 

infrastructure and specific water rights previously appropriated to the Tribe and held in trust for the Tribe’s benefit. 

The Tribe relies on the 1906 Act as a duty-creating source 

of law. The 1906 Act appropriated funds: 

For constructing irrigation systems to irrigate the 

allotted lands of the Uncompahgre, Uintah, and 

White River Utes in Utah . . . the cost of said entire 

5 Whether the Tribe may also prevail on a claim that 

a trust relationship was created with respect to water 

rights by the 1906 Act is a question we do not decide but 

remand to the Claims Court, as we explain later in this 

opinion.

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work to be reimbursed from the proceeds of the sale 

of the lands within the former Uintah Reservation:

Provided, That such irrigation systems shall be 

constructed and completed and held and operated, 

and water therefor appropriated under the laws of 

the State of Utah, and the title thereto until otherwise provided by law shall be in the Secretary of 

the Interior in trust for the Indians, and he may 

sue and be sued in matters relating thereto:

And provided further, That the ditches and canals 

of such irrigation systems may be used, extended, 

or enlarged for the purpose of conveying water by 

any person, association, or corporation under and 

upon compliance with the provisions of the laws of 

the State of Utah:

And provided further, That when said irrigation 

systems are in successful operation the cost of operating same shall be equitably apportioned upon 

the lands irrigated, and, when the Indians have become self-supporting, to the annual charge shall be 

added an amount sufficient to pay back into the 

Treasury the cost of the work done, in their behalf, 

within thirty years, suitable deduction being made 

for the amounts received from disposal of the lands 

within the former Uintah Reservation.

34 Stat. at 375. 

1 

As to water-related infrastructure, the Tribe alleged 

that the irrigation systems constructed under the 1906 Act 

(today known as the UIIP) comprise at least several hundred miles of waterways and canals designed to irrigate 

88,000 acres of land. The Tribe alleged that the United 

States had allowed the infrastructure to fall into “a grave 

state of disrepair” resulting in only 61,000 acres of land receiving water as of 2016. Complaint at 24.

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20 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

The United States argues that the language in the 

1906 Act merely declares a limited trust without specific, 

enforceable duties, relying on United States v. Mitchell, 445 

U.S. 535 (1980) (“Mitchell I”). In Mitchell I, plaintiffs 

sought damages “for alleged mismanagement of forests located on lands allotted to Indians under [the Indian General Allotment Act of 1887].” 445 U.S. at 536. The statute 

at issue there was apparently silent as to timber management, but provided: 

[T]he United States does and will hold the land 

thus allotted, for the period of twenty-five years, in 

trust for the sole use and benefit of the Indian to 

whom such allotment shall have been made . . . . 

Id. at 541 (quoting 24 Stat. 389, as amended, 25 U.S.C. 

§ 348). The Supreme Court explained that the statute 

“does not unambiguously provide that the United States 

has undertaken full fiduciary responsibilities as to the 

management of allotted lands,” id. at 542, and noted that 

other sections of the statute established that “the [Indian]

allottee, and not the United States, was to manage the 

land,” id. at 543; see also 24 Stat. 388 (“[A]ll allotments set 

apart under the provisions of this act shall be selected by 

the Indians . . . in such manner as to embrace the improvements of the Indians making the selection.”). Thus, the “in 

trust” language “created only a limited trust relationship 

. . . that does not impose any duty upon the Government to 

manage timber resources.” Mitchell I, 445 U.S. at 542.

By contrast, several years later in Mitchell II the Court 

considered statutes and regulations requiring the Secretary of the Interior to “manag[e] the Indian forests so as to 

obtain the greatest revenue for the Indians consistent with 

a proper protection and improvement of the forests,” to 

“manage Indian forest resources on the principle of sustained-yield management,” and to “preserv[e] Indian forest 

lands in a perpetually productive state.” Mitchell II, 463 

U.S. at 220–21 (citations and internal quotations omitted). 

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These statutes and regulations, the Supreme Court held,

sufficiently “establish[ed] a fiduciary relationship and define[d] the contours of the United States’ fiduciary responsibilities” to support Indian Tucker Act jurisdiction. Id. at 

224.

More recently, in United States v. White Mountain 

Apache Tribe, the Supreme Court considered the application of Mitchell I and Mitchell II to another statute similar 

to the 1906 Act at issue here. 537 U.S. 465 (2003). In White 

Mountain Apache, the statute provided that the “‘former 

Fort Apache Military Reservation’ would be ‘held by the 

United States in trust for the White Mountain Apache 

Tribe, subject to the right of the Secretary of the Interior to 

use any part of the land and improvements for administrative or school purposes.’” Id. at 469 (quoting Pub. L. 86–

392, 74 Stat. 8). The White Mountain Apache Tribe sought 

damages for the United States’ failure to maintain the 

trust property. Id. The Supreme Court noted that the statutory language expressly defined a fiduciary relationship

and that the United States enjoyed occupation of the trust 

property, which was sufficient for Indian Tucker Act jurisdiction even though the statute did not “expressly subject 

the Government to duties of management and conservation.” Id. at 474–75. 

The United States’ position here—that the 1906 Act establishes only a bare trust with respect to water infrastructure—is inconsistent with both the text of the 1906 statute 

and the Supreme Court’s decision in White Mountain 

Apache. The statute here expressly describes particular 

property—the UIIP irrigation system—and there is express fiduciary language with an identified beneficiary—

the property is to be held “in trust for the Indians.” 34 Stat. 

375. Moreover, the “held and operated” language prescribes specific duties. Id. By identifying a corpus, a trustee, a beneficiary, an intent to create a trust relationship, 

and duties with respect to the property, the 1906 Act bears 

the “hallmarks of a more conventional fiduciary 

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22 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

relationship.” White Mountain Apache, 537 U.S. at 473. 

Thus, like the statute at issue in White Mountain Apache, 

the 1906 Act “goes beyond a bare trust and permits a fair 

inference that the Government is subject to duties as a 

trustee” to protect and preserve the property. Id. at 474–

75. 

The 1906 Act, by its plain text, establishes that the 

United States accepted a duty to “h[o]ld and operate[]” the 

described irrigation systems “in trust for the Indians.” 34 

Stat. 375. The Tribe also pled a breach of this duty, namely 

that the United States has allowed the 1906 Act infrastructure to fall into “a grave state of disrepair.” Complaint at 

24. These allegations are sufficient to clear the first step 

of the jurisdictional analysis in Navajo I with respect to the 

failure to maintain water infrastructure. The Tribe has 

identified “a substantive source of law that establishes specific fiduciary or other duties,” and that the complaint sufficiently “allege[d] that the Government has failed 

faithfully to perform those duties,” as required for Indian 

Tucker Act jurisdiction. Navajo I, 537 U.S. at 506.6 

6 The United States argued on appeal that it does not 

exercise “exclusive authority to use and occupy th[e] property,” contending that the lack of exclusive control distinguishes White Mountain Apache. Oral Arg. at 27:00–28:25. 

The Tribe’s complaint alleged that the United States, 

through the BIA, exercises “pervasive and comprehensive 

control of the UIIP,” including through assessing operation 

fees, performing maintenance and rehabilitation, regulating project structures, and executing carriage agreements 

with other water users. Complaint at 22–25. The United 

States did not challenge any of the factual allegations relating to the trial court’s jurisdiction. At this stage of the 

proceedings, we must take the well-pled factual allegations 

of the operative complaint as true. Reynolds, 846 F.2d at 

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We next turn to the second step of the Navajo I jurisdictional analysis, “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.’” 537 U.S. at 506 (quoting Mitchell II, 463 

U.S. at 219). “This ‘fair interpretation’ rule demands a 

showing demonstrably lower than the standard for the initial waiver of sovereign immunity.” White Mountain 

Apache, 537 U.S. at 472. A statute need only “be reasonably amenable to the reading that it mandates a right of recovery in damages . . . a fair inference will do.” Id. at 473. 

In addition, “[a]t the second step of the jurisdictional analysis . . . common-law trust principles come into play.” Hopi 

Tribe, 782 F.3d at 668.

We again find White Mountain Apache instructive. 

There, as here, “the fact that the property occupied by the 

United States is expressly subject to a trust supports a fair 

inference that an obligation to preserve the property improvements was incumbent on the United States as trustee” because “a fiduciary actually administering trust 

property may not allow it to fall into ruin on his watch.” 

White Mountain Apache, 537 U.S. at 475 (citing, inter alia, 

Restatement (Second) of Trusts § 176 (1957)); see also Restatement (Third) of Trusts § 76 (2007). Here, as in White 

Mountain Apache, “it naturally follows that the Government should be liable in damages for the breach of its fiduciary duties.” 537 U.S. at 476 (quoting Mitchell II, 463 U.S. 

at 226). We find that the duties prescribed by the 1906 Act 

can be fairly interpreted as money-mandating, and, therefore, that the second element of the Navajo I jurisdictional 

analysis is satisfied as to the water infrastructure claims. 

747. Therefore, given that the complaint alleged exclusive 

control, we do not decide whether such a showing of exclusive control is required by White Mountain Apache as argued by the United States.

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24 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

The United States argues that the 1906 Act cannot create trust duties because the Department of Interior’s “mandate” is “to manage the Project for the benefit of both

Indians and non-Indians,” which is “incompatible with the 

notion that it imposes enforceable fiduciary duties owed 

specifically to Plaintiff.” Appellee’s Br. 21. The 1906 Act

contains no such mandate. While the “ditches and canals 

of such irrigation systems may be used, extended, or enlarged for the purpose of conveying water by any person, 

association, or corporation,” 34 Stat. 375, this does not, as 

the United States contends, require the Secretary to consider the benefits to those non-trustee users. 

Moreover, allowing the United States to use the infrastructure for the benefit of non-Indians is not inconsistent 

with the existence of a trust obligation. The Supreme 

Court’s decision in Jicarilla is instructive. There, the 

Court considered whether the United States, acting as a 

trustee, could assert attorney-client privilege and withhold 

communications from an Indian Tribe beneficiary. 

Jicarilla, 564 U.S. at 165–66. The common law’s fiduciary 

exception barred any such claim of attorney-client privilege, but the Supreme Court held that the United States 

could choose to structure the trust relationship to avoid

such a principle, noting that the United States “is not a private trustee,” and Congress may choose “to structure the 

Indian trust relationship in different ways.” Id. at 173, 

178. Likewise, the trust obligations created by the 1906 

Act’s express duties to hold and operate the infrastructure 

for the Tribe’s benefit are not defeated by a provision allowing the Secretary to provide for third-party use. We 

hold that claims 1 (to the extent it concerns maintenance 

of 1906 Act infrastructure and not further construction), 5, 

6, 7, 8, 9, 12, 13, 19, 20, and 21 (to the extent it concerns 

operation of 1906 Act infrastructure but not in other respects), plead a breach of trust premised on the alleged failure of the United States to maintain and operate the 1906 

Act infrastructure for the benefit of the Tribe. Because the 

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UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 25

1906 Act sufficiently sets forth a source of law to establish 

these duties at the pleading stage, we vacate the Claims 

Court’s dismissal of these infrastructure claims and remand.

Relatedly, the Tribe contends that the United States 

has a trust obligation not to allow use of the infrastructure 

by third parties without the Tribe’s approval and sufficient 

compensation to the Tribe. The Tribe alleged that the 

United States had mismanaged the infrastructure by entering “informal agreements allowing non-Indian irrigation companies and other non-Indian irrigators to utilize

. . . [the] infrastructure for their own benefit.” Complaint 

at 37. The Tribe has not presented further argument on 

this point, nor did the Claims Court address it in any detail. At this stage of the proceeding, we think it premature 

to address the question of whether allowing third-party use 

is a breach of the United States’ fiduciary duties (except to 

the extent that we hold that such third-party use is not inconsistent with the obligation to protect and preserve the 

property). 

2 

We finally address the Tribe’s breach of trust claims 

concerning water rights based on the 1906 Act. Although 

we have concluded that the 1906 Act can fairly be read as 

creating a trust relationship obligating the United States 

to protect and preserve the water infrastructure, the Tribe 

contends that the United States’ trust duties include a general obligation to protect and preserve water rights. The 

language of the 1906 Act is less than clear on this point, 

but the Tribe alleges here, inter alia, that the United States

violated this duty by effecting “transfers of the Tribe’s water rights . . . from Indian lands to non-Indian lands under 

the UIIP and from Indian lands on the Reservation to nonIndian lands outside of the UIIP.” Complaint at 30. Specifically, the Tribe alleged that the Decker Report—which 

the Tribe commissioned in 1960 to quantify its claims to 

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26 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

water rights, and upon which the Tribe relied to define its 

claims here—identified three groups of lands served by 

1906 Act facilities with recognized appurtenant water 

rights (Groups 1, 2, and 3). Claim 7 of the Complaint alleged that transfers of these water rights by the government were improper. The Tribe also alleged in claim 9 that 

the United States’ execution of the Midview Exchange

Agreement somehow constituted mismanagement of the 

Tribe’s water rights. Similarly, the Tribe alleged in claim 

19 that the transfer of Decker Report Group 2 water rights

to the Duchesne Townsite, which was accomplished 

through an act of Congress, Pub. L. No. 106-370 (2000),

breached the United States’ trust obligations under the 

1906 Act. Claims 9 and 19 asserted that damages are owed 

because the United States failed to ensure that the Tribe 

received access to replacement water and adequate compensation for the transfers. 

The Claims Court did not specifically address these 

claims, likely because the government did not present the

issue to the court separately from the Winters arguments. 

Nor do the parties brief these issues on appeal in any detail, focusing instead on the infrastructure issue. Nonetheless, other breach of trust claims relating to the 1906 Act 

will go forward in the Claims Court, and we believe “injustice might otherwise result” were we not to remand for an 

opportunity for the Claims Court to consider these claims. 

Forshey, 284 F.3d at 1353 (quoting Hormel v. Helvering, 

312 U.S. 552, 557 (1941)). We also perceive a predicate, 

jurisdictional issue which has received little attention from 

the parties—whether claims 7, 9, or 19 as for water rights 

would survive the time bar, since the transfers at issue occurred in the 1940s, in the year 1967, and in the year 2001, 

respectively.

The Tribe also contends that the United States under 

the 1906 Act had an obligation to secure additional water 

for the Tribe. For the same reasons that we found no such 

trust obligation in the 1899 Act, we find no such obligation 

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UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 27

in the 1906 Act. The Tribe also contends that the United 

States had a trust obligation to expand the 1906 Act infrastructure at the government’s expense. While the 1906 Act 

obligated the United States to “construct[] and complete[]” 

the “irrigation systems,” we do not read the 1906 Act as 

imposing any such obligation on the government as trustee. 34 Stat. at 375. Even under the common law of trusts, 

there is no duty to expand the trust corpus at the trustee’s 

own expense. See Restatement (Third) of Trusts § 88

cmt. a (2007) (recognizing a right of reimbursement for expenses properly incurred). The 1906 Act does not itself create a trust duty to construct the full scope of the project 

initially contemplated in the statute. See Hopi Tribe, 782 

F.3d at 669 (declining to find that holding reserved water 

rights in trust implicitly imposes a duty to provide water 

infrastructure). Rather, under the 1906 Act it is the title 

to the facilities actually built that shall be held in trust. To 

the extent claim 1 or any others plead for relief from the 

United States’ failure as trustee to construct the full scope 

of the project initially contemplated, the 1906 Act does not 

support Indian Tucker Act jurisdiction. 

We note that the Tribe relies on a provision allowing 

the Secretary to “sue and be sued in matters relating” to 

the 1906 Act. 34 Stat. at 375. We do not read that provision as itself creating a cause of action for breach of trust. 

II. The 1965 Deferral Agreement Claims

A 

We turn next to the Tribe’s claims that the United 

States has breached the 1965 Deferral Agreement. First, 

in claim 14, the Tribe alleged “the United States has blatantly foregone any effort to satisfy Tribal Reserved Water 

Rights as promised in the 1965 Deferral Agreement”

through the construction of promised infrastructure. Complaint at 76. The 1965 Deferral Agreement provides:

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28 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

If the ultimate phase of the Central Utah project is 

not completed sufficiently to supply said Indian 

water rights by the 1st day of January, 2005, equitable adjustment will be made in accordance with 

said reserved and perfected water rights of the 

tribe to permit the immediate Indian use of the water so reserved. It is agreed that the first day of 

January, 2005, shall be mutually considered as the 

maximum date of deferment and that all phases of 

the Central Utah project will in good faith be diligently pursued to satisfy all Indian water rights at 

the earliest possible date.

J.A. 257 (emphasis omitted). The Claims Court dismissed 

claim 14 as time barred because “the Tribe knew as early 

as 1980 that the Uintah and Ute Indian Units contemplated by the 1965 Deferral Agreement would not be constructed.” Decision, at *9. On appeal, the Tribe contends 

that the 1965 Deferral Agreement gave a commencement 

date of January 1, 2005, for projects to supply Indian water 

rights, which allows for completion within a reasonable 

amount of time, and that construction of irrigation and 

storage projects has been ongoing to the present day. We 

disagree with the Tribe’s reading of the 1965 Deferral 

Agreement. 

On its face, the agreement provides that the project 

must be “completed sufficiently to supply said Indian water 

rights by the 1st day of January, 2005,” or else “equitable 

adjustment will be made.” J.A. 257 (emphasis added). 

Thus, on the facts alleged in the complaint, January 1, 

2005, is the latest date on which the construction-related 

aspects of the claim accrued; the equitable adjustment language cannot be read to support that construction would 

begin in 2005. We agree with the Claims Court’s dismissal 

of the construction-related aspects of claim 14 under 28 

U.S.C. § 2501. We have no occasion to determine what obligations would be imposed on the United States with respect to the “equitable adjustment” language since the 

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UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 29

Tribe has not at this point coherently alleged a breach of 

this obligation. Even if 2005 were not the latest date for 

construction, we think that the Claims Court was correct 

in its conclusion that, as early as 1980, the Tribe knew that 

the construction was not going to occur and that the claim 

accrued decades ago. Therefore, we affirm the Claims 

Court’s determination that claim 14 is time barred. 

B 

While the Tribe’s primary theory is that the 1965 Deferral Agreement claims survived the 1992 CUPCA statute,7 claim 15 pled in the alternative that, if section 507 of 

CUPCA extinguished the Tribe’s property interest in “contractual rights and legal claims arising under the 1965 Deferral Agreement,” then CUPCA constituted a taking. 

Complaint at 77. The Tribe contends that the compensation provided by CUPCA included both the funds and projects defined in Title V (titled “Ute Indian Rights 

Settlement”) and also the funds and projects defined in Title II, Section 203 (titled “Uinta Basin Replacement Project”), and that this did not constitute adequate 

compensation for the taking of the defined contract rights. 

The Claims Court dismissed claim 15 as time barred because the compensation scheme in CUPCA was fixed in 

1992. Decision, at *8. The Tribe argues that the stabilization doctrine saves the claim because “the Tribe was entitled to [defer filing suit until it could] first see whether the 

United States would fulfill its promise to mitigate the impacts of the purported ‘waiver’ of the 1965 Deferral Agreement through the construction of the Uintah Basin 

Replacement Projects.” Appellant’s Br. 47. The Tribe alleged that these projects are ongoing through the present 

7 This theory only has relevance with respect to the 

non-construction claims based on the 1965 Deferral Agreement because we have held that the construction claims 

are time barred.

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30 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

day. We assume, without deciding, that the stabilization 

doctrine applies here, in the context of a regulatory taking. 

However, even on this assumption, we agree with the 

Claims Court.

Our cases have “‘soundly rejected’ the notion ‘that the 

filing of a lawsuit can be postponed until the full extent of 

the damage is known.’” San Carlos Apache Tribe v. United 

States, 639 F.3d 1346, 1354 (Fed. Cir. 2011) (quoting Boling v. United States, 220 F.3d 1365, 1371 (Fed. Cir. 2000)). 

Rather, stabilization occurs when “the permanent nature 

of the taking is evident and the extent of the damage is 

reasonably foreseeable.” Boling, 220 F.3d at 1371. In a 

case involving a statute, “it is fundamental jurisprudence 

that the [a]ct’s objective meaning and effect were fixed 

when the [a]ct was adopted.” Catawba Indian Tribe of S.C. 

v. United States, 982 F.2d 1564, 1570 (Fed. Cir. 1993). 

Here, the effect of the Uinta Basin Replacement Project 

provision in Title II of CUPCA was apparent as of CUPCA’s 

adoption in 1992. Pub. L. No. 102-575, § 203(a)–(b). Section 203 provided that the projects were discretionary and 

contingent on feasibility and environmental studies. The 

Tribe’s theory is that what the government constructed under these discretionary provisions turned out to be insufficient compensation. That is not adequate to invoke the 

stabilization doctrine (assuming it applies); the Tribe could 

have argued in 1992 that the discretionary nature of the 

projects rendered them inadequate compensation. Therefore, we affirm the Claims Court’s determination that 

claim 15 is time barred.

III. The 1967 Midview Exchange Agreement Claims

A 

In addition to the breach claim with respect to the 1965 

Deferral Agreement, the Tribe also alleged a second breach 

of contract, claim 11, concerning the 1967 Midview Exchange Agreement, which provided that the Midview Property (i.e., water infrastructure covered by the agreement) 

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UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 31

would be “transfer[red] to Indian Affairs” and “become part 

of the project works of the Uintah Project.” J.A. 263. Claim 

11 alleged that the United States breached the Midview 

Exchange Agreement by “failing to effectuate a transfer of 

the Midview Property in trust for the benefit of the UIIP,” 

which the Tribe further characterized as a failure to “complete[] the underlying paperwork to formally transfer the 

Midview Property from [the Bureau of Reclamation] to 

BIA.” Complaint at 34, 73. While stated as a breach of 

contract claim, the claimed damages are alleged to be those 

that would be received on a breach of trust theory if the 

property had been transferred to the trust.8

The Claims Court held that claim 11, insofar as it concerns water infrastructure, is barred by the 2012 settlement agreement because it “relate[s] to the United States’

management or accounting of . . . Plaintiff’s non-monetary 

trust assets or resources.” J.A. 273; see Decision, at *8. 

On appeal, the Tribe argues that claim 11 does not implicate the 2012 settlement agreement in this respect because the Midview Property never became a trust asset. 

We reject the Tribe’s theory. We read the settlement agreement as covering both assets that were in trust and assets 

that should have been transferred in trust. To the extent 

that claim 11 concerned infrastructure, we think that a 

claim that such infrastructure was mismanaged is a claim 

that “relate[s] to the United States’ management” of that 

purported trust asset (i.e., a non-monetary trust asset), and 

claims “based on harms or violations occurring before the 

date of the execution of [the 2012] Settlement Agreement,” 

8 Claim 8 directly alleged a breach of trust with respect to the Midview Property. It is unclear whether this 

claim has independent significance given the breach of contract theory, and also unclear whether a breach of trust 

claim can be stated for failure to transfer assets into trust. 

We leave these issues to be addressed on remand. 

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32 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

which was March 8, 2012, are barred. J.A. 273. We affirm 

the dismissal of claim 11 insofar as it concerned infrastructure.

The Tribe also alleged that it received particular water 

rights under the Midview Exchange Agreement, and that 

the federal government has improperly diverted water

owned by the Tribe to other users in violation of the agreement. The 2012 agreement expressly excluded from waiver 

claims concerning:

Plaintiff’s water rights, whether adjudicated or unadjudicated; Plaintiff’s authority to use and protect 

such water rights; and Plaintiff’s claims for damages for loss of water resources allegedly caused by 

Defendants’ failure to establish, acquire, enforce or 

protect such water rights. 

J.A. 277. The question of whether the Midview Exchange 

includes water rights was not a focus of the parties or the 

court below. Given the explicit exceptions in the 2012 settlement that the Claims Court relied upon, three questions 

remain: (1) whether there are water rights under the 

Midview Exchange Agreement, (2) whether the complaint 

adequately pled a breach of contract with respect to water 

rights, and (3) whether the exception in the 2012 settlement applies. We vacate the Claims Court’s dismissal of 

claim 11 and remand for consideration of these issues. 

B 

Claim 10 alleged that the Midview Exchange Agreement in other respects constituted a “per se physical taking” because the Tribe was deprived of a portion of its

“senior-priority” water rights, which were originally

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UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 33

recognized in a 1923 District of Utah decree.9 Complaint 

at 72. While the exchange agreement provided for a transfer of those rights, the Tribe alleged it received inadequate 

compensation in the form of “state-based water rights, with 

a priority date inferior to the Tribe’s Winters Reserved 

Rights and with the prospect of forfeiture through nonuse.” Id. The Tribe’s theory appears to be that the property 

the Tribe received in the exchange was inadequate, and 

therefore the Tribe did not receive just compensation for 

the property given up in the exchange. The Claims Court 

found that claim 10 is barred by the statute of limitations 

because “the source of the claim is the execution of the 

[Midview Exchange] Agreement,” and thus any takings 

claim accrued in 1967. Decision, at *8. 

On appeal, the Tribe contends that the stabilization 

doctrine saves the claim because “subsequent acts and 

omissions by the United States [have] gradually increased 

the disparities between the value of the senior-priority water rights . . . and what the Tribe received in exchange,” including the United States “(1) failing to transfer the 

Midview Property into trust for the Tribe” and “(2) classif[ying] [] Indian lands that would otherwise receive irrigation water from Duchesne River pursuant to the 

Midview Exchange as temporarily or permanently non-assessable [i.e., not eligible to receive irrigation water], without fulfilling its responsibility to render such lands 

assessable again.” Appellant’s Br. at 41–42. We disagree

with the Tribe that these allegations were improperly dismissed. 

Unlike the takings claim with respect to the 1965 Deferral Agreement, the claim with respect to the Midview 

9 The Tribe cited United States v. Cedarview Irrigation Co., No. 4427 (D. Utah 1923) and United States v. Dry 

Gulch Irrigation Co., No. 4418 (D. Utah 1923) as the cases 

resulting in this decree.

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34 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

Exchange Agreement does not rest on alleged legislative 

abrogation of preexisting contract claims. Rather, the 

claim is that the bargained-for consideration either was not 

provided or had less value than was anticipated. We do not 

see how inadequacy of a bargained-for exchange, whether 

a party is dissatisfied at the time of the bargain or afterwards, could result in a taking. “We have held that when 

the government itself breaches a contract, a party must 

seek compensation from the government in contract rather 

than under a takings claim.” Piszel v. United States, 833 

F.3d 1366, 1376 (Fed. Cir. 2016) (citing Hughes Commc’ns 

Galaxy, Inc. v. United States, 271 F.3d 1060, 1070 (Fed. 

Cir. 2001)). Although we have vacated the Claims Court’s 

dismissal of the Tribe’s breach of contract claim concerning 

the Midview Exchange Agreement, this breach allegation 

cannot sustain the Tribe’s takings claim, which was 

properly dismissed. 

Finally, the Tribe alleges that a taking occurred because the Midview Exchange Agreement violated 25 U.S.C. 

§ 177, the Indian Non-Intercourse Act.10 The Tribe’s theory on this point appears to be that there was a taking because the BIA transferred away the Tribe’s federallydecreed water rights illegally. Even assuming, without deciding, that a violation of the Indian Non-Intercourse Act 

could give rise to a claim for money damages, a violation of 

the Indian Non-Intercourse Act cannot be the basis of a 

takings claim. Rith Energy, Inc. v. United States, 247 F.3d 

1355, 1366 (Fed. Cir. 2001) (“[T]o the extent that the plaintiff claims it is entitled to prevail because the agency acted 

in violation of statute or regulation, Del-Rio does not give 

10 “No purchase, grant, lease, or other conveyance of 

lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or 

equity, unless the same be made by treaty or convention 

entered into pursuant to the Constitution.”

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UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 35

the plaintiff a right to litigate that issue in a takings action 

rather than in the congressionally mandated administrative review proceeding.” (discussing Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358 (Fed. Cir. 

1998))). 

Accordingly, we affirm the Claims Court’s dismissal of 

claim 10.

IV. Alternative Grounds for Dismissal

The United States argues that this court should consider specific alternative grounds to affirm the dismissal of 

any claims for which we vacate the Claims Court’s decision. 

For example, the United States contends that most of the 

surviving breach of trust claims are time barred, and that 

several of them are barred by the 2012 settlement agreement. While it is true that “we may affirm a judgment of 

the trial court on any ground supported by the record, . . . 

[t]he decision whether to do so . . . lies within our discretion.” El-Sheikh v. United States, 177 F.3d 1321, 1326

(Fed. Cir. 1999). We do not reach these alternative grounds 

on appeal.

The United States also argues that all remaining 

claims should be barred by 28 U.S.C. § 1500, which provides that the Claims Court “shall not have jurisdiction of 

any claim for or in respect to which the plaintiff . . . has 

pending in any other court any suit or process against the 

United States” or its agents. As the United States acknowledges, we held in Resource Investments, Inc. v. United 

States that “the § 1500 bar operates ‘only when the suit 

shall have been commenced in the other court before the 

claim was filed in [the Claims Court].’” 785 F.3d 660, 669 

(Fed. Cir. 2015) (alteration in original) (quoting Tecon 

Eng’rs, Inc. v. United States, 343 F.2d 943, 949 (Ct. Cl. 

1965)). Because the Claims Court action was filed before 

the District of Columbia action, see supra n.2, under our 

precedent section 1500 does not apply. 

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36 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

V. Remand

On remand, the Claims Court may order the Tribe to 

replead the surviving claims for purposes of clarity and 

may consider the United States’ alternative grounds for 

dismissal. The court also urges the parties to consider comprehensive settlement of the remaining claims in light of 

what appears to be costly and protracted future litigation. 

CONCLUSION

We affirm the Claims Courts’ dismissal of claims 2, 3, 

4, 10, 14, 15, 16, 17, and 18. We affirm in part and vacate 

in part the dismissal of claims 1, 5, 6, 7, 8, 9, 11, 12, 13, 19,

20, and 21, and remand for further proceedings consistent 

with this opinion. 

AFFIRMED IN PART, VACATED AND REMANDED 

IN PART

COSTS

Costs to neither party.

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United States Court of Appeals 

for the Federal Circuit ______________________ 

UTE INDIAN TRIBE OF THE UINTAH & OURAY 

INDIAN RESERVATION,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2021-1880

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:18-cv-00359-RHH, Senior Judge Robert H. 

Hodges, Jr, Judge Armando O. Bonilla.

 ______________________ 

REYNA, Circuit Judge, concurring-in-part and dissentingin-part.

I am pleased to join my colleagues for most of the majority opinion. But I depart that union in part because I 

believe the 1899 Act is a duty-imposing source of law sufficient to support Indian Tucker Act jurisdiction over the 

Tribe’s breach of trust claims. 

The 1899 Act is about tribal water. Act of March 1, 

1899, 55 Cong. Ch. 324, 30 Stat. 924, 941. It gives the Secretary the discretion to grant rights of way to others for 

construction and maintenance of water infrastructure, subject to the paramount rights of the Tribe. Id. And it expressly places on the Secretary a “duty . . . to prescribe such 

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2 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

rules and regulations as he may deem necessary to secure 

to the Indians the quantity of water needed for their present and prospective wants, and to otherwise protect the 

rights and interests of the Indians[.]”1 Id.

This case is unlike the treaty at issue in Arizona v. 

Navajo Nation, 599 U.S. 555 (2023) because, here, the 1899 

Act imposes actionable fiduciary duties on the government. 

1 The majority ascribes specific fiduciary duties to 

particular sources of law and, in turn, to particular claims 

in the Tribe’s first amended complaint. As a result, the 

majority leaves unaddressed important aspects of the acts. 

For example, the majority characterizes the 1899 Act as relating solely to “duties in trust to secure new water for the 

Tribe, including by constructing new water storage infrastructure.” Maj. Op. 15 (emphasis added). As a result, the 

majority considers the 1899 Act as isolated to new infrastructure and not about access to existing water. Each act 

should be individually interpreted and considered based on 

its language. Caminetti v. United States, 242 U.S. 470, 485 

(1917) (“It is elementary that the meaning of a statute 

must, in the first instance, be sought in the language in 

which the act is framed, and if that is plain . . . the sole 

function of the courts is to enforce it according to its 

terms.”). The Court of Federal Claims did not engage in an 

analysis separating the Tribe’s causes of action and ascribing alleged fiduciary duties between the 1899 and 1906 

Acts, and I fault the majority’s decision to do so. As concerns the Tribe’s breach of trust claims, I concur only in the 

majority’s conclusion that the 1906 Act creates actionable 

trust duties requiring vacatur and remand. I do not join 

the manner in which the majority allocates alleged fiduciary duties between the 1899 and 1906 Acts, nor its peculiar 

assignment of the Tribe’s breach of trust causes of action 

between the two acts. 

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UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 3

Although the Navajo Nation treaty set aside a reservation 

for the Navajo and thus implicitly created reserved water 

rights for the Tribe, it did not create “a duty on the United 

States to take affirmative steps to secure water for the 

Tribe.” Id. at 566. In comparison, the 1899 Act expressly

relates to water. In granting the Secretary discretionary 

authority over building and maintaining water infrastructure, it expressly places on the Secretary a “duty . . . to 

prescribe such rules and regulations as he may deem 

necessary to secure to the Indians the quantity of water

needed for their present and prospective wants.” 30 Stat. 

at 941 (emphasis added). 

With such express language provided, there was no 

need for the 1899 Act to explicitly refer to water and water 

infrastructure as being held “in trust” for it to create actionable fiduciary duties. Nor does it matter that the 1899 

Act permits the Secretary to choose rules and regulations 

“as he may deem necessary.” Id. The specific rules and 

regulations created may be up to the Secretary, but there 

is nothing permissive in the 1899 Act about the Secretary’s 

ultimate duty to prescribe sufficient rules and regulations 

to secure for the Tribe “the quantity of water needed for 

their present and prospective wants.” Id. I am at a loss as 

to how the language of the 1899 Act can be understood to 

mean that the Secretary has the discretion to not secure 

water to the Tribe. 

The majority decision regarding the 1899 Act is another in a drip line of cases eroding promises that the 

United States clearly and objectively made to tribal nations. Those promises were from one sovereign state to another, couched in legal terms with all the trappings of 

legality. See Oklahoma v. Castro-Huerta, 597 U.S. 629, 

667–68 (2022) (Gorsuch, J., dissenting) (“Tribes are not private organizations within state boundaries. Their reservations are not glorified private campgrounds. Tribes are 

sovereigns.”). The plain language of the 1899 Act creates 

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4 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

fiduciary obligations on the Secretary that are objectively 

clear and unambiguous. I thus respectfully dissent in part. 

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