## United States Court of Appeals for the Federal Circuit

2007-5020 WESTERN SHOSHONE NATIONAL COUNCIL and TIMBISHA SHOSHONE TRIBE, Plaintiffs-Appellants, and SOUTH FORK BAND, WINNEMUCCA INDIAN COLONY, DANN BAND, BATTLE MOUNTAIN BAND, ELKO BAND and TE-MO AK TRIBE OF WESTERN SHOSHONE INDIANS, Plaintiffs-Appellants,

v. UNITED STATES, Defendant-Appellee.

Treva J. Hearne , Hager & Hearne, of Reno, Nevada, argued for plantiffs-appellants Western Shoshone National Council, et al. With him on the brief was Robert R. Hager

. Jeffrey M. Herman , Herman & Mermelstein, P.A., of Miami, Florida, argued for plaintiffs-appellants South Fork Band, et al. With him on the brief was Stuart S. Mermelstein

. Mark R. Haag , Attorney, Environment and Natu ral Resources Division, United States Department of Justic e, of Washington, DC, argued fo r defendant-appellee. With him on the brief were Ronald J. Tenpas , Acting Assistant Attorney General, and Sara E. Culley , Attorney. Of counsel on the brief was Maria K. Wiseman , Office of the Solicitor, United States Department of the Interior, of Washington, DC. Appealed from: United States Court of Federal Claims Senior Judge Loren A. Smith

## United States Court of Appeals for the Federal Circuit

2007-5020 WESTERN SHOSHONE NATIONAL COUNCIL, and TIMBISHA SHOSHONE TRIBE, Plaintiffs-Appellants, and SOUTH FORK BAND, WINNEMUCCA INDIAN COLONY, DANN BAND, BATTLE MOUNTAIN BAND, ELKO BAND, and TE-M OAK TRIBE OF WESTERN SHOSHONE INDIANS, Plaintiffs-Appellants,

v. UNITED STATES Defendant-Appellee.

Appeal from the United States Court of Federal Claims in case no. 05-CV-558, Senior Judge Loren A. Smith.

__________________ _________ DECIDED: May 22, 2008

__________________ _________ Before RADER, SCHALL, and PROST, Circuit Judges

. RADER, Circuit Judge

. The Western Shoshone seek to invalid ate a 1977 Indian Claims Commission (ICC) judgment awarding com pensation for the taking of the Western Shoshone’s aboriginal lands in Id aho, Utah, Nevada, a nd California. The Western Shoshone also seek additional compensation a nd other relief under the Treaty of Ruby Valley of 1863. The United States Court of Federal Claims granted the Unit ed States’ motion to dismiss the Western Shoshone’s action for lack of s ubject matter jurisdiction and for failure tostate a claim. Because the Appellants filed their challenge twenty-four years after the Court of Claims affirmed t he ICC’s judgment, and because legislation specifically precludes the Appellants’ curr ent challenge, this court affirms

. I The Western Shoshone include numerous tribes or bands of Native American Indians. For all of modern history, the Western Shoshone have occupied land in parts of what are now Idaho, Utah, Nevada, and California. Befo re the westward expansion of the United States, the Western Shoshone lived in extended fam ily groups, or bands, and congregated together for ceremonies and food gathering. Today, the Western Shoshone live in various communities or colonies on the same land. During the Civil War, the Union sought t he natural resources of the West and entered into a series of treatie s with the Indians to ensure access to those resources. Between July and October of 1863, the Union negot iated five treaties with various groups of Shoshone Indians, including the Treaty of Ruby Valley (Treaty) with the Western Shoshone, U.S.-W. Shoshone, Oct. 1, 1863, 18 Stat. 689. See Nw. Bands of Shoshone Indians v. United States , 324 U.S. 335, 340-42 (1945). Article 4 of the Treaty provided that “the Shoshone[] country may be explored and prospected for gold and silver, or other minerals; and when mines are discovered, they may be worked, and mining and agricultural settlements formed . . . .” Article 5 def ined the boundaries of “the country claimed and occupi ed by” the Western Shoshone. Article 6 provided that the President had discretion to force the Western Shoshone to move to reservations within the territory defined by Article 5. An d Article 7 provided that the United States

2007-5020 2would compensate the West ern Shoshone $5,000 per year for twenty years for agreeing to the Treaty’s terms. In 1946, Congress enacted the Indian Cl aims Commission Act (ICCA), codified as amended at 25 U.S.C. § 70 et. seq. (1976 ed.), to settle the Indian tribes' historical claims against the United States for the taking of land and rela ted actions. In sum, the ICCA undertook to “dispose of the I ndian claims problem with finality.” United States v. Dann , 470 U.S. 39, 45 (1985) (quot ing H.R. Rep. No. 79-1466, at 10 (1945)). The ICCA gave the ICC exclusive jurisdiction to hear claims brought within five years of the passage of the Act. Secti on 12 of the ICCA provided: The Commission shall receive claims for a period of five years after the date of the approval of this Act and no claim existi ng before such date but not presented within such period may thereafter be submitted to any court or administrative agency for considerat ion, nor will such claim thereafter be entertained by the Congress. 25 U.S.C. § 70k (1976). As a result, Indian claims existing on August 13, 1946 had to be filed by August 13, 1951 or be barred forever. See United States v. Lower Sioux Indian Cmty. , 519 F.2d 1378, 1383 (Ct. Cl. 1975); see also Navajo Tribe of Indians v. United States , 601 F.2d 536, 538 (Ct. Cl. 1979) (“The a pplicable statute of limitations in the [ICCA] is a jurisdictional limitation upon the authority of the Commission to consider claims.”). In 1951, various Shoshone tribes, including the Appellant Te-Moak Band of the Western Shoshone, filed a joint petition with the ICC for the alleged taking of over 80 million acres of land, including the territory described in the Treaty of Ruby Valley. Shoshone Nation v. United States , 11 Ind. Cl. Comm. 387, 397, 419 (1962); see also Dann , 470 U.S. at 41-42. The petitioners also s ought an accounting. See Te-Moak Bands of W. Shoshone Indians v. United States , 18 Cl. Ct. 82, 83 (1989).

2007-5020 3The ICC “found that the Western Shosh ones were separate from the other Shoshones and that the Te-Moak Bands were representative of the Western Shoshones.” Te-Moak , 18 Cl. Ct. at 84 (citations om itted). As a result, the ICC “required the Te-Moak Bands to file a separate amended petition on behalf of the Western Shoshones.” Id. In 1962, the ICC found that the United States had effect ively taken the Western Shoshone lands by allowing se ttlers and other non-native Am ericans to encroach upon the lands; the parties later stipulated that the Western Shoshone’ s aboriginal title was extinguished on July 1, 1872. Shoshone Nation , 11 Ind. Cl. Comm. at 416; see also TeMoak Band of W. Shoshone Indians v. United States , 593 F.2d 994, 996 (Ct. Cl. 1979). In 1972, the ICC determined t he value of taken Western Shoshone property to be $26,145,189.89, including $4,604, 00.00 for minerals extracted from the land in Nevada before the date of the taking. See Te-Moak Band , 593 F.2d at 996. In 1974, a group of Western Shoshone I ndians called the Western Shoshone Legal Defense and Educat ion Fund Association (Association) attempted to intervene in the ICC proceedings. The Association, whic h the federal government did not formally recognize, contended that its l ands were never taken, and that the Te-Moak Bands and the United States had collude d to treat the title as exti nguished. The Association attempted to repudiate all sums that the Commission awarded to the Western Shoshone. Instead the Associat ion contended that its constit uents still held legal title to the property. The ICC dismissed the intervent ion as untimely. The United States Court of Claims affirmed the decision. W. Shoshone Legal Def. & Educ. Ass’n v. United

2007-5020 4States, 35 Ind. Cl. Comm. 457 (1975), aff’d , 531 F.2d 495 (Ct. Cl.), cert. denied , 429 U.S. 885 (1976). In 1977, the Appellant Te-Moak Band atte mpted to change its position, asserting that it still held title to the claimed land on behalf of the Western Shoshone. See TeMoak Band , 593 F.2d at 996. The Te-Moak Ba nd also retained new counsel and moved for a stay of the proceedings. Id. at 997. The ICC denied the motion to stay and entered a final judgment awarding the Western Shos hone $26,145,189.89. Te-Moak Bands of W. Shoshone Indi ans ex rel. W. Shoshone Nation v. United States , 40 Ind. Cl. Comm. 318 (1977), aff'd , 593 F.2d 994 (Ct. Cl.), cert. denied , 444 U.S. 973 (1979). In 1979, the Court of Claims affirmed the award. Te-Moak Band , 593 F.2d 994. The Clerk of the Court of Claims cert ified the award to the Gene ral Accounting Office, which deposited the amount of the award into an interest- bearing trust account for the Western Shoshone on December 6, 1979. Dann , 470 U.S. at 42. In 1987, the Appellant Timbisha S hoshone Tribe and two other Western Shoshone tribes sought to intervene with the accounting claims. This action asserted that the United States owed the Western S hoshone all revenues gen erated by the land until at least 1979. Te-Moak Bands , 18 Cl. Ct. at 83-85. Fu rthermore, the intervenors sought a general accounting for the United States’ al leged misuse of revenues from the land, which had been held in tr ust by the United States. Id. at 84-85. The Court of Claims denied the motion to intervene as untimely. Id. at 89. In 2004, Congress passed and the Presiden t signed into law provisions for the distribution of the ICC awar d from the trust account. Western Shoshone Claims Distribution Act, Pub. L. No . 108-270, 118 Stat. 805 (2004). The Act provides “for the

2007-5020 5use and distribution of the funds awarded to t he Western Shoshone,” and authorizes the Secretary of the Interior to pr omulgate implementi ng regulations. Id. § 5. In 2007, the Secretary issued regulations t hat establish an enrol lment process to allow individuals to apply for a share of the Western Shoshone aw ard in the trust account. 72 Fed. Reg. 9,836 (Mar. 5, 2007). The Appellants include two groups of Western Shosh one tribes and bands. The first group includes the South Fork Band, Winnemuca Indian Colony, Dann Band, Battle Mountain Band, Elko Band, and Te-Moak Tribe of West ern Shoshone Indians (South Fork Band). The second group includes the Western Shoshone National Council and Timbisha Shoshone Tribe (National Council). The Appellants originally file d their action in the U.S. District Court for the District of Columbia in 2003. The district court gr anted the United States’ motion to transfer all but one of the claims to t he Court of Federal Claims. * W. Shoshone Nat’l Council v. United States , 357 F. Supp. 2d 172 (D.D.C. 2004). The plaintiffs filed a Second Amended Complaint (Complaint) with the Court of Federal Claims that alleged five claims. Count I seeks declaratory relief that the judgment of the ICC is void under Rule of the Court of Federal Claims (RCFC) 60(b)(4). As an alternative to Count I, Count II alleges that the Western S hoshone are entitled to pre-j udgment interest on the ICC’s award. Count III seeks royalties on miner als mined and extracted un der the Treaty of Ruby Valley. Count IV seeks an accounting of the proceeds from the United States’ use

* The district court transferred the remain ing claim for quiet title to the U.S. District Court for the District of Nevada , which subsequently denied the claim. W. Shoshone Nat’l Counse l v. United States , 415 F. Supp. 2d 1201, 1207 (D. Nev. 2006). The National Council and South Fork Band are appealing that dec ision to the Ninth Circuit. See W. Shoshone , Nos. 06-16252 and 06-16214 (9th Cir.) (consolidated).

2007-5020 6of the land. And Count V seeks damages for breach of fiduciary duties arising from the alleged mismanagement of t he land and for failure to act in accordance with the rights and duties allegedly created under t he Treaty of Ruby Valley. The Court of Federal Claims dismiss ed the claims under RCFC 12(b)(1) and 12(b)(6). W. Shoshone Nat’l Counc il v. United States , 73 Fed. Cl. 59 (2006). The court held that Count I was untimely as a moti on under RCFC 60(b)(4) or as an independent action. The court also held that Count I failed to state a claim under RCFC 60(b) because in prior litigation f ederal courts had considered and rejected the Appellants' contentions. The court dismissed Count II for lack of subject matter jurisdiction and for failure to state a claim, finding that the ICC judgment addressed all of the Shoshone aboriginal title claims and that the Treaty of Ruby Valley did not recognize fee title. The court dismissed Count III for lack of jurisd iction, finding that t he claim was within the exclusive jurisdiction of the ICC and barred by the finality provision of the ICCA, which it determined had not been repealed when the ICC was terminated in 1978. The court also dismissed Count IV for lack of subject matter jurisdiction, becaus e it found that the Government’s liability had not been established. Finally, the court dismissed Count V as untimely under the six-year statute of limitations prov ided by 28 U.S.C. § 2501. The South Fork Band and National Council f iled separate notices of appeal, both of which were timely under Fed. R. App. P. 4( a)(1)(B). This court has jurisdiction under 28 U.S.C. § 1295(a)(3).

2007-5020 7II This court reviews de novo t he Court of Federal Claims’ dismissal of a complaint for lack of jurisdiction under RCFC 12(b)(1) or for failure to state a claim under RCFC 12(b)(6). Samish Indian Nati on v. United States , 419 F.3d 1355, 1363 (Fed. Cir. 2005); Boise Cascade Corp. v. United States , 296 F.3d 1339, 1343 (Fed. Cir. 2002). Like the trial court, in considering a motion to dismis s, this court accepts as true all well-pleaded allegations of fact, construed in the light most favorable to the nonmoving party. Bradley v. Chiron Corp. , 136 F.3d 1317, 1321-22 (Fed. Cir . 1998). This court also reviews without deference the trial co urt’s statutory interpretation. W. Co. of N. Am. v. United States , 323 F.3d 1024, 1029 (Fed. Cir. 2003). In Count I of their Complaint, the Wester n Shoshone seek to set aside the ICC’s judgment under RCFC 60(b) bec ause the ICC allegedly deni ed them due process in reaching its judgment. The Ap pellants allege that the Bur eau of Indian Affairs refused to accept a notice of discharge of the Te-Moak Band’s counsel, after the counsel— contrary to the Te-Moak Band’s new instru ctions—continued to pursue a claim that the Western Shoshone’s land had been taken and t heir aboriginal title extinguished. RCFC 60(b) provides: On motion and upon such terms as are ju st, the court may relieve a party or a party’s legal r epresentative from a fi nal judgment, order, or proceeding for the following reasons: . . . (4) the judgment is void . . . . The motion shall be made within a reasonab le time . . . . This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment . . . . R. Ct. Fed. Cl. (60)(b) (2007).

2007-5020 8The Western Shoshone advance two theories to try to set aside the ICC’s judgment. They argue that the judgment is void under RCFC 60(b)(4), or that Count I is an “independent action” which should re lieve them from judgment. In 1977, twenty-six years after filing a pet ition with the ICC and five years after the ICC determined the value of their property, the Te-Moak Band sought to change counsel and its position on t he question of the taking of tr ibal land. The ICC considered but denied the Te-Moak Band’s motion to stay the proceedings for this purpose. Instead the ICC entered final judgment. The Court of Claims affirmed the ICC’s judgment in 1979. Twenty-four years passed before the Western Shoshone filed this complaint in 2003. Twenty-four years is not a reasonable time to have waited to challenge the Court of Claims’ affirmance. Conf ronted with a much shorter delay, this court's predecessor, the United States Court of Claims deni ed a similar procedural challenge in Pueblo of Santo Domingo v. United States , 647 F.2d 1087 (Ct. Cl. 1981). In Pueblo of Santo Domingo , an Indian tribe sought to withdraw from a 1969 stipulation because the tribe’s counsel had allegedly acted contrary to t he tribe’s instructions. In 1973, the ICC entered judgment with respect to the taken Indian property, and the Court of Claims affirmed the judgment on appeal in 1975. The tribe sought aga in to withdraw from the stipulation in 1980. Id. at 1088. The Court of Claims found that Ct. Cl. Rule 152(b) governed the tribe’s motion to set aside the stipulation as void. Id. at 1089. The predecessor to RCFC 60(b), Ct. Cl. Rule 152(b) “commands that the motion shall be made within a ‘reasonable time.’” Id. (citing Andrade v. United States , 485 F.2d 660, 664 (Ct. Cl. 1973)). The Court of Claims enforced the ti meliness requirement

2007-5020 9strictly because “Congress has expressed it s desire that the special Indian claims litigation be wound up by having terminated the operatio ns of the ICC in 1978.” Id. As a result, the court held that the tribe’s atte mpt “to withdraw from a stipulation entered nearly twelve years ago falls egregiously ou tside the permissible range of delay.” Id. This court has adopted as its own law t he decisions of the Court of Claims. See Coltec Indus. v. United States , 454 F.3d 1340, 1344 (Fed. Cir. 2006). In view of Pueblo of Santo Domingo and the Appellants’ tw enty-four year delay, the “reasonable time” requirement of RCFC 60(b) bars the Appellants’ tardy challenge under RCFC 60(b)(4). This court detects nothing in the record or ar guments in this case t hat compel departure from the rule and guidance in Pueblo of Santo Domingo

. The National Council argues that an "i ndependent action" like Count I is not subject to the timeliness requirement of RCF C 60(b). Even construing Count I as an independent action (which this court does not accept), this claim would still confront a problem with the statute of limitations in 28 U.S.C. § 2501. Section 2501 provides: “Every claim of which the Unit ed States Court of Federal Claim s has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 28 U.S.C. § 2501 (2006). Count I challenges alleged procedural defects in ICC proceedings before the Court of Claims’ a ffirmance in 1979. Thus, the National Council’s claim first accrued well outside the si x-year statute of lim itations of § 2501. The National Council suggests that the claim did not accrue because the ICC did not submit a final report of its judgment to Congress. The National Council purports to have only recently discovered this fact. T hese allegations, howeve r, do not alter the accrual date for this claim. The United St ates Court of Claims affirmed the Western

2007-5020 10Shoshone judgment in 1979. The Western Shoshone Distr ibution Act authorized distribution of the General Accounting Offi ce trust account according to the ICC judgment. Thus, the Court of Claims, t he United States Cong ress, and the General Accounting Office have treated the ICC judgm ent as final for decades. None of these institutions or their actions dep ended on submission of a final r eport from ICC. Further, as the Court of Claims pointed out, a 19 78 ICC Final Report ( and a 1990 book that reproduced a chart from that final ICC report) fully disclose that the ICC did not intend to issue a report to Congress reiterating that the Western Shoshone case was complete. The absence of a final report s hould have been apparent for decades. See Fallini v. United States , 56 F.3d 1378, 1380 (Fed. Cir. 1995) (“T he question whether the pertinent events have occurred is determined under an obj ective standard; a plaintiff does not have to possess actual knowledge of all the relevant facts in order for the cause of action to accrue.” (citation omitted)). Because this court finds that Count I is untimely either under RCFC 60(b)(4) or as an independent action, the Court of Federal Claims lacked subject matter jurisdiction over the claim. The trial court thus appropr iately dismissed it under RCFC 12(b)(1). As a result, this court does not reach whether Count I fails to state a claim under RCFC 12(b)(6). As an alternative to Count I, in Count II the Western Shoshone seek to recover $14 billion as pre-judgm ent interest on the ICC’s award from the stipulated date of the taking, 1872, until the date of the award. The Appellant s do not challenge on appeal the Court of Federal Claims’ findi ng that the ICC judgment fu lly compensated the Western

2007-5020 11Shoshone for extinguishing thei r aboriginal title. The Appel lants argue they are entitled to interest based on treaty title. Aboriginal title is the right to exclusiv e possession that Indian tribes hold as the occupants of the land when the Un ited States arrived. Treaty title is the equivalent of fee title that the United States has acquir ed by treaty. A taking of property held under treaty title requires compens ation under the Fifth Amendm ent, including interest. See Seneca Nation of Indians v. New York , 206 F. Supp. 2d 448 (W.D.N.Y. 2002) (discussing the distinction betwe en aboriginal and treaty title); Three Affiliated Tribes of Ft. Berthold Reservation v. United States , 390 F.2d 686, 690 (Ct. Cl. 1968) (“Interest from the time of taking is automatically included in order to satisfy the demands of the Fifth Amendment.” (citations omitted)). Thus, this court must inqu ire whether the Treaty of R uby Valley recognized that the Western Shoshone held fee title. The United States Supreme Court has addressed that question and determined that the Treaty did not recognize such title. Instead of acknowledging “any exclusiv e use and occupancy right or title of the Indians,” the Treaty was “a treaty of peace and amity with stipulated annu ities for the purposes of accomplishing those objects and achieving that end.” Nw. Bands , 324 U.S. at 346. As the United States Court of Appeals for the Ninth Circuit re cognized, the Treaty “acknowledged the territories claimed by the Shoshones without ‘recogn izing’ title so as to establish a property interest com pensable under the Fi fth Amendment.” United States v. Dann , 873 F.2d 1189, 1200 n.8 (9 th Cir. 1989) (citing Nw. Bands , 324 U.S. at 348).

2007-5020 12Appellants argue that t he Supreme Court in Northwestern Bands interpreted only the Box Elder Treaty, not the Treaty of Ruby Valley. Appellants seek to distinguish those two treaties because the former included an amendment that expressly stated that treaty title was not conveyed, while the latter treaty did not. To the contrary, the Supreme Court’s reasoning and conclusions cover the Treaty of Ruby Valley. In Northwestern Bands , the Supreme Court discussed all of the treaties in which the Union entered with the Shoshone Indians in 1863 that were “similar in form.” 324 U.S. at 343. The Court specifically referenced the Western Shoshone treaty and stated that “nowhere in any of the series of treaties is there a spec ific acknowledgment of Indian title or right of occupancy.” Id. at 348. The Supreme Cour t read the amendment to the Box Elder Treaty, but it did not find that the amendm ent’s absence from the Treaty of Ruby Valley implied that the Union intended to convey title. Moreover, this court does not find any l anguage in the Treaty of Ruby Valley that suggests that the Union intended to convey ti tle to the Western Shos hone. As Article 6 of the Treaty reflects, the Union merely permitted the Western Shoshone to continue occupying the lands defined by Article 5. Permissive occupation does not imply a grant of title. See Tee-Hit-Ton Indians v. United States , 348 U.S. 272, 278-79 (1955) (finding that for the Government to convey rights “there must be the def inite intention by congressional action or aut hority to accord legal rights, not merely permissive occupation”). Further, the United States’ actions after adopting the Treaty are inconsistent with an interpretation that the Treaty of Ruby Va lley conveyed title. Rather, the United States’ actions confirm that it considered the territory covered by the Treaty to be in the

2007-5020 13public domain. “School lands were granted. National forests were freely created. The lands were opened to public settlement under the homestead laws . . . .” Nw. Bands , 324 U.S. at 346 (citations omitted). The Un ited States administered the territory “as though no Indian land titl es were involved.” Id. ; see also Te-Moak Bands , 18 Cl. Ct. at 83. Because the Treaty of Ruby Valley did not recognize that the Western Shoshone held fee title in the disputed territory, this court agrees with the Cour t of Federal Claims that Count II fails to stat e a claim under RCFC 12(b)(6). In Count III, the Western Shoshone s eek royalties on minerals mined and extracted under the Treaty of Ruby Valley. The Government argues in part that the finality provision of the ICCA bars the Appellants’ claim for royalties. The South Fork Band responds that ICCA does not bar Count III because the Treaty of Ruby Valley is ambiguous with respect to the payment of royalties after 1882, and that Count III seeks royalties that accrued after 1946. The finality provision of the ICCA provides: “A final determination against a claimant made and reported in accordance with the Act shall forever bar any further claim or demand against the Un ited States arising out of the matter involved in the controversy.” 25 U.S.C. § 70u(b) (1976) (omitted 1978). The ICC found that the Western Shoshone’s aboriginal title had been extinguis hed in 1872 and awarded the Western Shoshone $26,145,189.89 fo r all claims arising out of territory described in the Treaty of Ruby Valley and to which they claimed aboriginal title. The Court of Claims affirmed the ICC determination. The award included $4,604,600 for minerals extract ed from the land in Nevada bef ore the taking. Thus, the

2007-5020 14ICC conclusively resolved the Wester n Shoshone’s claim for royalties. Cf. Dann , 873 F.2d at 1200 (finding on remand from the Supreme Court t hat the ICC’s judgment with respect to the Treaty of Ruby Valley and the Western Shoshone’s interest in the territory described in it barred the Danns from “asserting the tribal titl e to grazing rights just as clearly as it bars their asse rting title to the lands”); W. Shoshone Nat’l Council v. Molini , 951 F.2d 200, 203 (9th Cir. 1991) (“The Commission's general finding that title had been extinguished therefore also operates to bar the Shoshone from asserting hunting and fishing rights based on the Treaty of Ruby Va lley.” (citation omitted)). Because the finality provision of the ICCA limits the Gove rnment’s waiver of sovereign immunity, and because that provision bars Coun t III, the Court of Claims co rrectly dismissed the claim for lack of subject matter juri sdiction under RCFC 12(b)(1). Counts IV and V fail for the same reason. Count IV seeks an accounting of the proceeds from the Government’s use of the land described in the Treaty of Ruby Valley. Count V seeks damages for the Government’s alleged breach of fiduciary duty arising from the alleged mismanagement of the land described in the Treaty and for failure to act in accordance with the rights and dut ies allegedly created under the Treaty. Assuming that the Treaty im posed a fiduciary duty on the Government, the finality provision of the ICCA and the Court of Claims’ affirmance of the ICC’s final determination with respect to the Western S hoshone’s aboriginal rights to the territory extinguished any claim for an accounting or br each of fiduciary duty with respect to that territory or such revenue. Indeed, t he Te-Moak Bands included a claim for an accounting in their original petition to the ICC. The ICC considered that claim in reaching its final determination, and, as discussed above, in 1987 the Court of Claims

2007-5020 152007-5020 16 dismissed as untimely a mo tion by the Appellant Ti mbisha Shoshone Tribe and two other Western Shoshone tribes to interv ene to pursue accounting claims allegedly arising after the 1946 cutoff date prescribed by the ICCA. See Te-Moak Bands of W. Shoshone , 18 Cl. Ct. at 83-85, 89. This court therefore affirms the Court of Federal Claims’ dismissal of the Appellants’ claims under RCF C 12(b)(1) and 12(b)(6).

AFFIRMED

COSTS Each party shall bear its own costs.