United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 5, 2009 Decided March 17, 2009 

No. 07-5399 

CHEYENNE ARAPAHO TRIBES OF OKLAHOMA, 

APPELLANT

v. 

UNITED STATES OF AMERICA, ET AL., 

APPELLEES

Appeal from the United States District Court 

for the District of Columbia 

(No. 06cv00519) 

Richard J. Grellner argued the cause for appellant. With 

him on the briefs was John P. Racin. 

Mary Gabrielle Sprague, Attorney, U.S. Department of 

Justice, argued the cause for federal appellees. With her on 

the brief were James M. Upton, William Lazarus, and 

Elizabeth A. Peterson, Attorneys. R. Craig Lawrence, 

Assistant U.S. Attorney, entered an appearance. 

Before: SENTELLE, Chief Judge, and ROGERS and 

GRIFFITH, Circuit Judges. 

 Opinion for the Court filed by Circuit Judge GRIFFITH. 
2 

GRIFFITH, Circuit Judge: This appeal involves disputed 

rights to land originally designated as part of a reservation for 

the Cheyenne Arapaho Tribes of Oklahoma and later set apart 

by executive order as a U.S. military installation. The district 

court dismissed the Tribes’ action to quiet title to the land for 

lack of subject matter jurisdiction. The Tribes argue that the 

court erred in dismissing the case prematurely without 

allowing for jurisdictional discovery. Because the Tribes fail 

to specify what facts discovery could produce that would alter 

the jurisdictional analysis, we hold that the district court did 

not abuse its discretion in denying the Tribes’ discovery 

request. 

I. 

The train of events from which this appeal arises was set 

in motion nearly 140 years ago. In 1869, President Ulysses S. 

Grant designated more than five million acres in north-central 

Oklahoma as a reservation for the Cheyenne Arapaho Tribes 

of Oklahoma. Exec. Order (Aug. 10, 1869), reprinted in 1 

INDIAN AFFAIRS: LAWS AND TREATIES 841 (Charles J. 

Kappler ed., 1904). In 1883, President Chester A. Arthur 

carved out 9493 acres from within the reservation “for the 

post of Fort Reno,” which was to be used “for military 

purposes exclusively.” Exec. Order (July 17, 1883), reprinted 

in 1 INDIAN AFFAIRS, supra, at 842–43. The Tribes claim this 

stipulation gave them a reversionary interest that would vest if 

the land was used for anything other than military purposes. 

See Appellant’s Br. at 2. 

After the cavalry abandoned Fort Reno in 1908, the 

Army used the post as a remount service depot, breeding and 

training horses and mules for military use. The Army’s use of 

Fort Reno waned in the 1930s as motor vehicles began to 

replace horses and mules as the predominant form of military 
3 

transportation. In 1937, Congress transferred 1000 acres of 

Fort Reno land to the Department of Justice for use by the 

Bureau of Prisons as a federal reformatory. Act of May 24, 

1937, Pub. L. No. 75-103, 50 Stat. 200. In 1948, Congress 

transferred the remaining 8493 acres to the Department of 

Agriculture (USDA) for “livestock and agricultural” 

purposes, Act of Apr. 21, 1948, Pub. L. No. 80-494, 62 Stat. 

197, and the following year USDA began a cooperative 

research program at Fort Reno studying the selective breeding 

of beef cattle and swine. Pursuant to an agreement with 

USDA, the Army continued to use approximately 600 acres at 

Fort Reno until 1954 to raise and train horses for the Turkish 

army. See J.A. at 55. 

The Tribes allege that the acreage transferred to USDA 

in 1948 was placed on military “standby status” as part of a 

classified agreement with the Army in 1954. Appellant’s 

Reply Br. at 5. The government disputes the confidential 

nature of this arrangement, noting that several newspaper 

articles from 1954 reported that the Army asked USDA to 

keep the buildings and pasture acreage previously used for the 

Turkish aid program ready for possible needs in connection 

with the “Indo China crisis.” See, e.g., Army Asks for 

Retention of Fort Reno by Government for Possible Military 

Need, EL RENO AM., May 20, 1954. 

In 1890, the Tribes entered a Cession Agreement, ratified 

by Congress the next year, in which they agreed to relinquish 

their interest in the reservation, subject to the allotment of 

160-acre tracts to individual members of the Tribes. By the 

terms of the agreement, the Tribes agreed to “cede, convey, 

transfer, relinquish, and surrender forever and absolutely, 

without any reservation whatever, express or implied, all their 

claim, title and interest, of every kind and character, in and 

to” specified lands, as well as to “all other lands or tracts of 
4 

country in the Indian territory to which they have or may have 

set up or allege any right, title, interest or claim whatsoever.” 

Cession Agreement, art. II, 26 Stat. 989, 1022–23 (1891). The 

agreement made no mention of any reversionary interest the 

Tribes might have in the Fort Reno land. 

In 1958, the Tribes filed suit with the Indian Claims 

Commission (ICC),1

 arguing they had received an 

unconscionably small consideration for the cession of 

reservation lands, asserting a claim to the reasonable value of 

the 9493 acres of Fort Reno, and seeking “reasonable and fair 

damages for the failure of the Secretary of the Interior to 

require the return of said lands to the use and benefit of [the 

Tribes].” J.A. at 264–65. The claims went to trial in 1965, but 

the Tribes settled for $15 million before the ICC could render 

a decision. See Cheyenne-Arapaho Tribes v. United States, 16 

Ind. Cl. Comm. 162 (1965). The settlement agreement 

contained several finality clauses, including one that read: 

“Entry of final judgment in said amount shall finally dispose 

of all rights, claims or demands which the petitioner has 

asserted or could have asserted with respect to the subject 

matter of these claims.” Id. at 171–72 (quoting Stipulation for 

Entry of Final Judgment). 

In 2006, the Tribes brought suit in district court to quiet 

title to the Fort Reno land, claiming the property was outside 

the scope of the 1891 Cession Agreement and that they held a 

reversionary interest, which vested when the land ceased to be 

used exclusively for military purposes. The United States 

 

1

 Congress established the ICC in 1946 as a quasi-judicial body 

with authority to determine the merits of all Indian claims against 

the United States that accrued prior to its establishment. See Act of 

Aug. 13, 1946, Pub. L. No. 79-726, 60 Stat. 1049. The ICC had 

only a temporary mandate and was abolished in 1978. See Act of 

Oct. 8, 1976, Pub. L. No. 94-465, 90 Stat. 1990. 
5 

moved to dismiss for lack of subject matter jurisdiction on the 

ground that the Tribes’ claim was barred by the twelve-year 

statute of limitations in the Quiet Title Act, 28 U.S.C. 

§ 2409a(g) (2000). The United States moved, in the 

alternative, for summary judgment on its affirmative defense 

that the 1965 settlement of the Tribes’ ICC suit precludes a 

later quiet title action. The Tribes subsequently filed a motion 

under Federal Rule of Civil Procedure 56(f), arguing that the 

district court should not decide the statute of limitations issue 

without first permitting discovery regarding the date on which 

military use of Fort Reno ended and the Tribes’ alleged claim 

to beneficial title accrued. 

The district court denied the Tribes’ Rule 56(f) motion, 

concluding that they failed to “show that additional discovery 

would be beneficial to . . . establishment of jurisdiction.” 

Cheyenne-Arapaho Tribes v. United States, 517 F. Supp. 2d 

365, 374 (D.D.C. 2007) (quoting Med. Solutions, Inc. v. C 

Change Surgical LLC, 468 F. Supp. 2d 130, 135–36 (D.D.C. 

2006)). The court granted the government’s motion to 

dismiss, identifying several points in time—each more than 

twelve years prior to the suit—at which the Tribes “should 

have been reasonably aware” that the United States had taken 

action adverse to their alleged reversionary interest in the Fort 

Reno land. Id. at 371. In a footnote the Court accepted the 

government’s alternative argument that the Tribes lost the 

right to assert their claim under the terms of the 1965 

settlement of their ICC suit. Id. at 372 n.3.2

 

 

2

 The Tribes moved to alter or amend this portion of the judgment 

pursuant to Federal Rule of Civil Procedure 59(e), arguing that the 

ICC lacked jurisdiction over their claims and that the record 

showed the land set aside for Fort Reno was not subject to the ICC 

settlement. The district court denied the motion. Cheyenne-Arapaho 

Tribes v. United States, No. 06-0519 (D.D.C. Nov. 8, 2007). 
6 

This appeal followed. The Tribes argue that the district 

court erred in denying their request for discovery to identify 

continuing military activity at Fort Reno and in concluding 

that the settlement of their ICC suit precludes the present 

quiet title action. We have jurisdiction under 28 U.S.C. 

§ 1291 and review the district court’s denial of the Tribes’ 

discovery request for abuse of discretion. See FC Inv. Group 

LC v. IFX Markets, Ltd., 529 F.3d 1087, 1091 (D.C. Cir. 

2008). Because we conclude that the district court did not 

abuse its discretion in denying jurisdictional discovery and 

that it properly dismissed the case for lack of subject matter 

jurisdiction, we need not consider the Tribes’ arguments 

about the ICC settlement agreement. 

II. 

A. 

The Quiet Title Act, 28 U.S.C. § 2409a, which waives 

the United States’ sovereign immunity for certain quiet title 

actions, is the “exclusive means by which adverse claimants 

[may] challenge the United States’ title to real property.” 

Warren v. United States, 234 F.3d 1331, 1335 (D.C. Cir. 

2000) (alteration in original) (quoting Block v. North Dakota, 

461 U.S. 273, 286 (1983)). Of dispositive relevance here, the 

Act provides that “[a]ny civil action under this 

section . . . shall be barred unless it is commenced within 

twelve years of the date upon which it accrued,” 28 U.S.C. 

§ 2409a(g). An action accrues “on the date the plaintiff or his 

predecessor in interest knew or should have known of the 

claim of the United States.” Id. We apply a “test of 

reasonableness” to determine whether a plaintiff “knew or 

should have known” of a federal claim to real property. D.C. 

Transit Sys., Inc. v. United States, 717 F.2d 1438, 1441 (D.C. 

Cir. 1983). “Knowledge of the claim’s full contours is not 
7 

required. All that is necessary is a reasonable awareness that 

the Government claims some interest adverse to the 

plaintiff’s.” Warren, 234 F.3d at 1335 (quoting Knapp v. 

United States, 636 F.2d 279, 283 (10th Cir. 1980)). 

The Tribes contend that the Act’s statute of limitations 

begins to run only when their reversionary interest in the land 

is triggered, which, according to their theory of the case, 

occurs when the government ceases to use Fort Reno 

exclusively for military purposes. The Tribes do not challenge 

directly the district court’s finding that, on the record before 

it, they knew or should have known more than twelve years 

prior to their suit that the United States claimed the right to 

use Fort Reno land without limitation. Instead, the Tribes 

argue that the district court abused its discretion by refusing to 

allow jurisdictional discovery, which “could well show 

continuing military status in the lands of Fort Reno, such that 

the Tribes’ claimed reversionary interest may not yet have 

accrued.” Appellant’s Br. at 17. The Tribes requested a 

continuance to pursue discovery under Federal Rule of Civil 

Procedure 56(f), which provides that a district court may 

allow for discovery if a party opposing summary judgment 

“shows by affidavit that, for specified reasons, it cannot 

present facts essential to justify its opposition.”3

 The Tribes’ 

supporting affidavit identifies recently declassified documents 

that suggest “the Army fully intended to make continued use 

of the lands for military purposes,” and asserts that further 

discovery could undermine “the Government’s argument the 

Tribe has long been on notice of all the facts relating to their 

claimed reversionary interest in Fort Reno.” J.A. at 356. 

 

3

 Although Rule 56(f) formally applies only in the context of a 

motion for summary judgment, its discovery standards are also 

appropriate for parties responding to a Rule 12(b)(1) motion to 

dismiss. See Gordon v. Nat’l Youth Work Alliance, 675 F.2d 356, 

360 (D.C. Cir. 1982). 
8 

We hold that the district court did not abuse its discretion 

in denying jurisdictional discovery given the absence of any 

specific indication from the Tribes regarding “what facts 

additional discovery could produce that would affect [the 

court’s] jurisdictional analysis,” Mwani v. bin Laden, 417 

F.3d 1, 17 (D.C. Cir. 2005) (quoting Goodman Holdings v. 

Rafidain Bank, 26 F.3d 1143, 1147 (D.C. Cir. 1994)). The 

Tribes failed to specify how the requested discovery would 

alter the court’s determination that the statute of limitations 

had long since run and extinguished their claim. See Byrd v. 

EPA, 174 F.3d 239, 248 n.8 (D.C. Cir. 1999) (noting that 

conclusory assertions about the potential value of discovery 

are insufficient unless supported by specific discoverable 

facts). The Tribes sought discovery to bring to light any 

“continuing military uses” on the Fort Reno land. J.A. at 357. 

But the Tribes “knew or should have known,” 28 U.S.C. 

§ 2409a(g), that the United States had used the land for 

nonmilitary purposes from actions taken by Congress in 1937 

and 1948 that transferred sections of Fort Reno from the 

Department of War to the Departments of Justice and 

Agriculture. These transfers put the Tribes on notice that the 

government continued to claim the land even though it was no 

longer being used for “military purposes exclusively,” in 

direct conflict with the Tribes’ alleged reversionary interest 

under the 1883 executive order. See Warren, 234 F.3d at 1336 

(finding notice of the government’s claim to real property 

when the President issued a proclamation declaring an island 

reserved for certain uses inconsistent with private 

ownership).4

 At either of those points in time, the Tribes 

 

4

 Moreover, the Tribes’ 1961 Severed Petition to the Indian Claims 

Commission, in which they asked the ICC to “set[] aside the 

jurisdiction of the Department of Agriculture conferred by the Act 

of April 21, 1948,” J.A. at 70, shows that the Tribes had actual 

knowledge of the 1948 transfer of Fort Reno land to USDA. 
9 

should have known of the government’s adverse claim, and 

the statute of limitations began to run. Any additional 

information or documentation regarding partial military uses, 

or suggestion that the land might be used for future military 

purposes, would not change the court’s jurisdictional analysis. 

The Tribes seek to avoid the force of the Quiet Title 

Act’s statute of limitations on the slender reed that their 

alleged reversionary interest in the land accrues only when 

Fort Reno is used for something other than military purposes. 

Putting aside any doubts about whether they in fact possess 

such a reversionary interest, even by its own terms the Tribes’ 

statute of limitations argument fails because the United States 

long ago abandoned exclusive military use of the land. The 

statute of limitation for the Tribes’ claims, if they had any, 

began to run as soon as the government used Fort Reno for 

something other than a military purpose. More than twelve 

years have since elapsed and the Tribes’ quiet title action is 

therefore time-barred. 

B. 

The Tribes also suggest, albeit in a footnote, that even if 

their original quiet title action accrued no later than when 

Congress transferred jurisdiction over Fort Reno to the 

Departments of Justice and Agriculture, discovery might 

show that the United States later abandoned its adverse claim 

by once again devoting Fort Reno to military uses. See

Appellant’s Br. at 17 n.7. In such circumstances, according to 

the Tribes, a new limitations period would begin to run if and 

when the government subsequently reasserted a claim adverse 

to the Tribes’ reversionary interest. In support of this theory, 

the Tribes cite Shultz v. Department of Army, 886 F.2d 

1157 (9th Cir. 1989), in which the Ninth Circuit held that “[i]f 

the government has apparently abandoned any claim it once 
10 

asserted, and then it reasserts a claim, the later assertion is a 

new claim and the statute of limitations for an action based on 

that claim accrues when it is asserted,” id. at 1161. The Shultz

court suggested that if, after physically restricting access to a 

roadway running through part of a military installation, the 

Army thereafter failed for several years to restrict access, 

members of the public who used the road during that time 

might reasonably “believe that the government did not 

continue to claim an interest in the roadway.” Id. Subsequent 

efforts to restrict access would constitute a new claim for 

which a fresh statute of limitations period would only then 

begin to run. Id.

The Tribes fail to mention that the Ninth Circuit later 

limited its abandonment-and-new-claim holding to “claim[s] 

of an easement,” concluding that “a reasonable plaintiff could 

not believe that the United States had abandoned its claim of a 

possessory interest in public lands merely because it failed to 

enforce restrictions upon public access,” Kingman Reef Atoll 

Invs., LLC v. United States, 541 F.3d 1189, 1199 (9th Cir. 

2008) (“It is well established that the United States does not 

abandon its claims to property by inaction.”). The Eighth 

Circuit has likewise concluded that the United States does not 

abandon a claim to property for purposes of § 2409a(g) unless 

it “clearly and unequivocally abandons its interest” through 

some official action. Spirit Lake Tribe v. North Dakota, 262 

F.3d 732, 739 (8th Cir. 2001). This standard is supported by 

the Quiet Title Act itself, which established a method for the 

United States to disclaim its interest in real property by filing 

a formal disclaimer with the court. See 28 U.S.C. § 2409a(e). 

The Tribes’ assertion that further discovery might show 

express abandonment of the government’s claims to Fort 

Reno is unavailing because the materials the Tribes seek 

would not demonstrate abandonment of the United States’ 
11 

interest in the land. The only document to which the Tribes’ 

discovery affidavit specifically refers is a transcript of 1954 

hearings conducted by two congressmen in El Reno, 

Oklahoma. The Tribes suggest the transcript might show that 

the congressmen either made representations contrary to the 

United States’ continuing adverse interest in the property or 

“obscured the actual nature and status of the Fort Reno 

lands.” J.A. at 357. But nothing said by government 

representatives during such hearings, which were open to 

tribal members and the subject of several newspaper reports, 

could undermine the official actions taken by Congress in 

1937 and 1948 demonstrating the United States’ property 

interest in Fort Reno. See Kingman Reef, 541 F.3d at 1200 

(holding that one may not reasonably decide whether the 

United States has abandoned a claim to property on the basis 

of informal remarks of government officials); cf. Warren, 234 

F.3d at 1338 (noting that in many circumstances “the 

Government cannot abandon property without congressional 

authorization”).5

The United States asserted claims to Fort Reno that were 

adverse to the Tribes’ alleged reversionary interest in the land 

by acts of Congress transferring parts of the property to 

 

5

 Similarly, the type of internal agency documents upon which the 

Tribes rely, see, e.g., Appellant’s Reply Br. at 4–6, are insufficient 

to indicate abandonment of government claims of interest in 

property. See Kingman Reef, 541 F.3d at 1200 (“[W]here the 

United States’s claim of interest in property stems from formal 

actions of the legislative or executive branch, a person could not 

reasonably conclude that . . . internal agency memoranda could 

eliminate the cloud upon the property’s title.”); Spirit Lake Tribe, 

262 F.3d at 740–42 (holding that an internal memorandum authored 

by an Associate Solicitor in the Department of Interior could not 

establish abandonment of property because “intra-office 

memoranda do not bind the government”). 
12 

nonmilitary entities and uses. The Tribes fail to show that 

jurisdictional discovery would (or could) uncover specific 

evidence of official abandonment unavailable through other 

means. The district court thus was well within its discretion to 

deny the Tribes’ discovery request. 

III. 

We affirm the district court’s denial of the Tribes’ 

motion for a continuance to permit discovery. Because the 

district court correctly determined that it lacked subject matter 

jurisdiction over the Tribes’ claims, we do not reach the 

court’s alternative conclusion that the 1965 settlement of the 

Tribes’ ICC suit also bars their present action. 

So ordered.