# ORIGINAL lfn 

# tbe Wniteb**~tates ~ourt**  

# ofjfeberal QClaint5 No. 16-959L (Filed: April 25, 2017) NOT FORPUBLICATION 

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CLARENCE WALKING EAGLE, JR., Plaintiff,



### v. THE UNITED ST ATES, Defendant , 

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ORDER Cobell v. Salazar; Statute of Limitations; Claim Preclusion. 

# FILED APR 252017 U

.S

. COURTOF FEDERAL CLAIMS

Plaintiff, Clarence Walking Eagle, Jr., is a SiouxNative American in the Fort Peck Sioux Tribe and resides on Fmi Peck in Brockton, Montana

. Appearing pro se, he filed his complaint on August 8, 2016, seeking $10,000,000.00 in compensatory damages under various treaties and statutes due to, among other alleged wrongs, "being unlawfully alienated from the exclusive use and benefitof[his] trust land and exposedto foreignjurisdiction without consentfor thebenefit ofnon-Indian concerns for almost ninety-nine years." 1 Pl.'s Compl.**~** 48. Plaintiff also seeks $10,000,000.00 in punitive damages and various forms ofequitable relief , such as an order restraining state law enforcement agencies from exercising jurisdiction within the boundaries ofFmi Peele OnDecember 5, 2016, defendant filed a motion to dismiss for lack of jurisdiction and for failure to state a claim upon which reliefcan be granted, arguing that plaintiffs claims accrued outside this comi's six-year statute of

1 Along with his complaint, plaintiff filed a motion to proceed in Jonna pauperis on August 8, 2016.
1limitations andthatplaintiffis precluded from bringingthese claims due to his participation in the 

### Cobell class-action settlement, which is described in more detail below. 

### See Cobell v. Salazar, No. 96-1285(TFH), 2011WL10676927 (D.D.C. July 27, 2011); Def.'sMot. to Dismiss ("Def.'s Mot.") Ex. 4 (copy of the 

### Cobell settlement agreement). We agree and deem oral argument on this motion unnecessary. Because we find that plaintiffs claims accrued outside ofthis court's six-year statute oflimitations and that, in any event, plaintiffis precluded from bringing these claims due to the 

### Cobell settlement agreement, we grant defendant's motion to dismiss. 

### Prose plaintiffs are afforded latitude in their filings, 

### see, e.g, Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995), and are entitled to a liberal construction of their pleadings. 

### See Haines v. Kerner, 404 U.S. 519, 520 (1972) (requiring that allegations contained in a

### prose complaint be held to "less stringentstandardsthan formal pleadings draftedby lawyers"). That said, the

### prose plaintiffis notrelieved ofhis duty to meetthe court'sjurisdictional requirements. 

### See Henke, 60 F.3d at 799. Beforethe courtconsidersthemerits of a complaint, it must determine the threshold matter of subject-mater jurisdiction. 

### See Steel Co. v. Citizensfor a Better Env 't, 523 U.S. 83, 94-95 (1998). Because we are deciding a motion to dismiss, we construe the allegations in the complaint inthe lightmost favorable to plaintiffand assume all unchallenged factual allegations to be true. 

### See Henke, 60 F.3d at 797. However, the court is not confined to an examination ofthe complaint when considering a motion to dismiss, but may also look to "evidentiary matters outside the pleadings." 

### Schuerman v. United States, 30 Fed. Cl. 420, 425 

### (1994)(quotingCedars-SinaiMed. Ctr. v. Watkins, 11F.3d 1573, 1584(Fed. Cir. 1993)). TheTuckerAct, this court'sprimarygrantof jurisdiction, affordsus the authority to "render judgment upon any claim against the United States founded eitheruponthe Constitution, or any ActofCongress oranyregulation ofan executive department, or upon any express or implied contract with the United States

... in cases not sounding in tort." 28 U.S.C. § 149l(a)(l) (2012). Thus we do nothave general equitablejurisdictionto provide the various nonmonetary relief that plaintiff seeks. Outside the context of a bid protest, equitable relief may only be provided as an incident of and collateral to a moneyjudgment. 

### See James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998). As we discuss in more detail below, plaintiffs complaint does not include allegations that lead to such a circumstance. Accordingly, we do not have jurisdiction over plaintiffs non-monetary claims.
2Plaintiffalso frequently refers to a conspiracy and uses other language that intimates some form ofcriminal conduct on the part ofthe government and its agents. However, we do not havejurisdiction to adjudicate criminal claims. See Huffordv. UnitedStates, 87 Fed. Cl. 696, 702 (2009). Therefore, to the extent that plaintiff is alleging any criminal conduct by government employees, we do not have jurisdiction to entertain such allegations. Similarly, plaintiffs conspiracy claims would fail ifthey were characterized as a tort because this court does not havejurisdiction over cases sounding in tort. 28 U.S.C. § 1491 (excluding cases "sounding in tort"); Gable v. United States, 106 Fed. Cl. 294, 297 (2012) ("The United States Court ofFederal Claims does not have jurisdiction to adjudicate tort claims."). We are also without power to award punitive damages. See Environmental Safety Consultants, Inc. v. United States, 95 Fed. Cl. 77, 98 (2010). We are left with plaintiffs primary claim for compensation, which centers on plaintiffs belief that the United States improperly allowed Roosevelt County, Montana to build County Road 1041 ("CR 1041 ") on a 40- acre individual land allotment held in trust by the United States for plaintiff (the "Trust Land"). Comp!. 

## iJ 17. However plaintiffmay attempt to frame a claim arising out ofthe construction ofCR 1041, it is time-barred. All claims broughtunderthe TuckerAct are subjectto a six-year statute of limitations. 28 U.S.C. § 2501 (2012). In order for this court to entertain plaintiffs suit, he must have filed within six years after his claim accrued. As a general matter, a claim accrues "when all the events have occurred that fix the alleged liability ofthe government and entitle the claimant to institute an action."Ingrum v. UnitedStates, 560 F.3d 1311, 1314 (Fed. Cir. 2009) (citing Alliance of Descendants of Tex. Land Grants v. United States, 37 F.3d 1478, 1481 (Fed. Cir. 1994)). As defendant points out, "an action for breach of fiduciary duty accrues whenthe trust beneficiary knew or should have known ofthe breach." Jones v. United States, 801F.2d1334, 1335 (Fed. Cir. 1986). Defendant attached a satellite image ofCR 1041 dated June 11, 1996-more than 20 years before plaintifffiled suit-as exhibit 3 to its motion to dismiss. In his response, plaintiff described the 20-year-old image as "prima [ facie] evidence of the gran[t]s of right[s] of way[], easements, and the physical County Road 1041 that was illegallyplaced in the middle of [the Trust Land] withoutconsentorjustcompensation."Pl.'sResp. at27. A deeper examination of the factual background is not necessary because we are satisfied that plaintiffknew or should have known about the existence ofCR 1041 no later than June 11, 1996. As a result, plaintiffs claims accrued outside this court's
3six-year statute oflimitations.
In any event,plaintiffis precluded from bringingthese claims duetothe preclusive effect ofhis status as a Trust Administration Class member in the Cobell settlement. To survive a motion to dismiss for failure to state a claim upon which relief can be granted, a plaintiffmust plead plausible facts that "allow[] the courtto draw the reasonable inferencethatthe defendant is liable for the misconduct alleged." Barnes v. United States, 122 Fed. CL 581, 583 (quotingAshcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court will grant a motion to dismiss for failure to state a claim when it is clear that the plaintiff can prove no set of facts that would entitle him to relief. Id. Here, as defendant argues, we find that there is no scenario in which plaintiffcould be entitled to reliefdue to the fact that he waived his claims as a member ofthe Trust Administration Class in the Cobell settlement. The United States CourtofAppeals for theDistrictofColumbia Circuit briefly summarizedthe Cobellclass-actionlitigation and settlement-inwhich plaintiffwas a member ofboth the Historical Accounting Class and the Trust Administration Class-as follows: [F]ive named plaintiffs ("Class Representatives") initiated a class action lawsuit in 1996 seeking to compel the United States Department ofthe Interior to perform a historical accounting ofthe hundreds of millions of dollars held by the Department in trust for Native Americans. That accountingwas required by the American Indian Trust Fund Management Reform Act of 1994, Pub. L. No. 103-412, 108 Stat. 4239. In 2001, [the United States Court of Appeals for the District of Columbia Circuit] affirmed the district court's conclusion that the Department had unreasonably and unlawfully delayed that statutorily mandated accounting. Cobell v. Norton, 240 F.3d 1081, 1105 (D.C. Cir. 2001). For the next decade, the parties, the district court, and Congress all struggled to determine how theDepaitmentcouldfeasibly dischargeits legalduty to conduct an accounting of the hundreds of thousands of "Individual Indian Money" trust accounts under its control.

... We pick up the story in 2010 with the enactment ofthe Claims Resolution Act ("Claims Act"), Pub. L. No. 111-291, 124 Stat. 3064(2010). The Claims Act authorized, ratified, and
4confirmed the parties' comprehensive Settlement Agreement resolving the class action litigation. See id. § 101 ( c)(!)

.... Under the Settlement Agreement, each member ofwhat was known as the "Historical Accounting Class" received $1,000 in lieu of an actual accounting

.... A separate class, known as the "TrustAdministration Class," received a baseline payment of$500 and a prorated share ofany funds left over in the settlement account after specified payments were made

...

. Id. at 914-915. In exchange, all class members released the Department of Interior from liability arising out of prior mismanagement oftheir trust accounts. Id. Cobell v. Jewell, 802 F.3d 12, 16-17 (D.C. Cir. 2015). As defendant points out, plaintiff was a member of the Trust Administration Class and had the ability to opt outbut did not do so. Relevant here, plaintiff received an award as a member of the Trust Administration Class, totaling $1,753 .81. 2 The Cobell settlementagreementprovidedthat "all members of the Trust Administration Class

... shall be deemed to have released, waived and forever dischargedthe [United States] from, and

... shall be deemed to be forever barred and precluded from prosecuting, any and all claims and/or causes ofaction that were, or should have been, asserted in the Amended Complaint when it was filed, on behalfofthe Trust Administration Class

...with respectto
... Land Administration Claims

...." Def.'s Mot. 18, Exh. 4 at 44. The Cobell settlement agreement defines "Land Administration Claims" to include"[fjailure to obtain fair market value for leases, easements, rights-of-way or sales;

... Misappropriation;

... [and] Failure to control, investigate allegations of, or obtain reliefin equity and at law for, trespass, theft, misappropriation, fraud or misconduct regarding Land." Id. at 11-12. Plaintiffreceived an award as a member ofthe Trust Administration Class in the Cobell settlement, and he knew or should have known of the claim he asserts in this action no later than June 11, 1996. He is therefore precluded from pursuing his claims here.

2 Plaintiffs award was subject to a lien. He received a check for $405.90 and the State ofMontana Department ofPublic Health and Human Services Child Support Enforcement Division received the remaining $1,347.91. 5In sum, plaintiffs only claims over which we could conceivably have jurisdiction are outside this comt's six

-year statute oflimitations period and precluded due to plaintiffs participation in the Cobell settlement. Thus plaintiffs complaint must be dismissed. As a result, the following is ordered: 1. Defendant's motion to dismiss pursuant to Rule 12(b)(l) and Rule 12(b)(6) is granted. 2. For good cause shown, plaintiffs motion to proceed in forma pauperis is granted. 3. The Clerk ofCourt is ordered to dismiss the complaint for lack of jurisdiction and enterjudgment accordingly. No costs.

# ~1**/** Senior Judge

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