United States Court of Appeals 

for the Federal Circuit ______________________ 

CROW CREEK SIOUX TRIBE,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2017-2340

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:16-cv-00760-RHH, Senior Judge Robert 

H. Hodges, Jr.

______________________ 

Decided: August 17, 2018

______________________ 

 AUSTIN TIGHE, Nix, Patterson & Roach, LLP, Austin, 

TX, argued for plaintiff-appellant.

 AMBER BETH BLAHA, Environment and Natural Resources Division, United States Department of Justice, 

Washington, DC, argued for defendant-appellee. Also 

represented by JEFFREY H. WOOD, ERIC GRANT, MATTHEW 

LITTLETON. 

______________________ 

Before NEWMAN, DYK, and TARANTO, Circuit Judges.
2 CROW CREEK SIOUX TRIBE v. UNITED STATES

DYK, Circuit Judge.

The Crow Creek Sioux Tribe (“Tribe”) is a federally 

recognized Indian tribe. Its reservation is located in South 

Dakota along the Missouri River. The Tribe filed suit 

against the United States in the Court of Federal Claims 

(“Claims Court”) seeking damages and declaratory and 

injunctive relief for the alleged taking of its water rights 

in violation of the Fifth Amendment, and for the alleged 

mismanagement of its water rights in violation of 25 

U.S.C. § 162a(d)(8). The Claims Court dismissed the case 

for lack of subject-matter jurisdiction. We affirm, concluding that the Tribe has failed to establish, or even allege, 

that it has suffered the requisite injury in fact.

BACKGROUND

The Crow Creek Indian Reservation (“Reservation”) 

was established in central South Dakota in 1863. The

Missouri River overlies the Reservation’s western boundary. See Act of Mar. 2, 1889, ch. 405, § 6, 25 Stat. 888, 

889–90 (1889) (delineating boundaries of the Reservation). 

Under the Supreme Court’s decision in Winters v. 

United States, 207 U.S. 564 (1908), the creation of an 

Indian Reservation carries an implied right to unappropriated water “to the extent needed to accomplish the 

purpose of the reservation.” Cappaert v. United States, 

426 U.S. 128, 138 (1976); see also United States v. New 

Mexico, 438 U.S. 696, 698–700 (1978). These reserved 

rights are known as Winters rights. They arise as an 

implied right from the treaty, federal statute, or executive 

order that set aside the reservation, and they vest on the 

date of the reservation’s creation. See Winters, 207 U.S. at 

576–77; Arizona v. California, 373 U.S. 546, 598 (1963) 

(rejecting the argument that water rights were not reserved because the reservation was created by executive 

order, rather than treaty). The parties agree for purposes 
CROW CREEK SIOUX TRIBE v. UNITED STATES 3

of the motion to dismiss that, pursuant to the Winters

doctrine, the Tribe possesses a perfected right to sufficient 

water to fulfil the Reservation’s purposes.

In June 2016, the Tribe filed suit in the Claims Court 

seeking at least $200 million in damages. The complaint

began by describing various “Background Facts,” including the establishment of the Reservation and the history 

of the Pick-Sloan Plan, a federal flood control project on 

the Missouri River, which involved the construction of the 

Fort Randall Dam and the Big Bend Dam in the mid1900s.1 The complaint also mentioned a 1996 statute that 

established a new trust fund for the Tribe, funded with up 

to $27.5 million in hydroelectric-power revenue from the 

Pick-Sloan Plan, see Crow Creek Sioux Tribe Infrastructure and Development Trust Fund Act of 1996, Pub. L. 

No. 104-223, § 2(a)(7), 110 Stat. 3026, 3027 (1996); highlighted a 2012 settlement between the Tribe and the 

United States unrelated to water rights; and emphasized

the generally poor economic prospects of the Reservation. 

 

1 Construction of the dams resulted in the flooding 

of approximately 15,000 acres of the Reservation. To 

compensate the Tribe for this loss of land, Congress 

enacted two statutes by which the United States acquired 

the flooded land and paid the Tribe and its members more 

than $5 million total “in settlement of all claims, rights, 

and demands of” the Tribe “arising out of” dam construction. Act of Oct. 3, 1962, Pub. L. No. 87-735, § 1(a)(2), 76 

Stat. 704, 704 (1962) (authorizing the acquisition of 

roughly 6,000 acres of Reservation land for the Big Bend 

project); Act of Sept. 2, 1958, Pub. L. No. 85-916, § 1, 72 

Stat. 1766, 1766 (1958) (authorizing the acquisition of

roughly 9,000 acres of Reservation land for the Fort 

Randall project).
4 CROW CREEK SIOUX TRIBE v. UNITED STATES

The complaint then alleged that certain, unspecified 

acts and omissions by the United States—presumably 

including the continued operation of the dams—have

taken the Tribe’s “Winters reserved water rights” without 

just compensation in violation of the Fifth Amendment. 

J.A. 32. The complaint also alleged that the government 

breached its fiduciary duty to “[a]ppropriately manag[e]

the natural resources located within the boundaries of 

Indian reservations,” 25 U.S.C. § 162a(d)(8), “by the acts 

and omissions described hereinabove, including failing to 

protect, quantify, assert or record Plaintiff’s water rights, 

and instead continuously diverting, retaining, and appropriating that water to others and to Defendant’s own use,” 

J.A. 31. The complaint did not allege that the government’s actions deprived the Tribe of sufficient water to 

fulfill the reservation’s purposes or that those actions 

would cause the Tribe to lack sufficient water in the 

future.

The United States filed a motion to dismiss pursuant 

to Rule 12(b)(1) of the Court of Federal Claims for lack of 

subject-matter jurisdiction. The Claims Court granted the 

motion, noting that Winters only entitles the Tribe to 

sufficient water to fulfill the Reservation’s purposes and

explaining that nothing in the complaint suggests that 

the Tribe is “experienc[ing] a shortage of water” or that its 

water supply from the Missouri River is or will be “insufficient for [the Tribe’s] intended pursuits.” Crow Creek 

Sioux Tribe v. United States, 132 Fed. Cl. 408, 410–11 

(Fed. Cl. 2017). The Claims Court rejected the Tribe’s

argument that its Winters reserved water rights can be

injured by any “taking or diverting [of] waters from the 

Missouri River,” even if the diversion does not cause the 

Tribe to experience any water shortage. Id. at 410. The 

court also noted that, while 25 U.S.C. § 162a(d)(8) “does 

direct the government to manage the natural resources of 

Indian tribes,” the statute “does not direct any specific 
CROW CREEK SIOUX TRIBE v. UNITED STATES 5

actions to be taken by the government in that management.” Id. at 411. The Claims Court therefore dismissed 

the suit for lack of subject-matter jurisdiction because it 

could not “identify an injury to the Tribe that has yet 

occurred.” Id. In various places in the opinion, the Claims 

Court discussed the failure of the complaint to allege 

damages with particularity. Id. at 409–11.

The tribe timely appealed. We have jurisdiction under 

28 U.S.C. § 1295(a)(3). In assessing a motion to dismiss 

for lack of subject-matter jurisdiction, we “must accept as 

true all material allegations of the complaint, and must 

construe the complaint in favor of the complaining party.” 

Warth v. Seldin, 422 U.S. 490, 501 (1975); see also Stephens v. United States, 884 F.3d 1151, 1155 (Fed. Cir. 

2018). 

DISCUSSION

The Tribe initially argues that the Claims Court erred 

in dismissing its action because the Tribe could not calculate damages. We agree with the Tribe that there is no 

need to allege details of the damages calculation in the 

complaint. But the Claims Court’s decision, while it 

sometimes uses the word “damages,” turns on the Tribe’s 

underlying failure to allege an injury in fact. Indeed, the 

Claims Court concludes its opinion by stating that “[t]he 

jurisdictional problem . . . arises from plaintiff's inability 

to identify an injury to the Tribe.” Crow Creek Sioux 

Tribe, 132 Fed. Cl. at 411. We think the Claims Court was 

correct in dismissing the case for lack of subject-matter 

jurisdiction because the Tribe failed to sufficiently allege 

injury.

In order to bring suit in an Article III court, a plaintiff 

must establish constitutional standing. Lujan v. Defs. of 

Wildlife, 504 U.S. 555, 560 (1992). “The Court of Federal 

Claims, though an Article I court . . . applies the same 

standing requirements enforced by other federal courts 
6 CROW CREEK SIOUX TRIBE v. UNITED STATES

created under Article III.” Weeks Marine, Inc. v. United 

States, 575 F.3d 1352, 1358–59 (Fed. Cir. 2009) (quoting

Anderson v. United States, 344 F.3d 1343, 1350 n.1 (Fed.

Cir. 2003)). To establish constitutional standing, a “plaintiff must have (1) suffered an injury in fact, (2) that is 

fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable 

judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 

1547 (2016). Standing requires more than just a “keen 

interest in the issue.” Hollingsworth v. Perry, 570 U.S. 

693, 700 (2013). It requires allegations that the plaintiff 

“personal[ly]” suffered a concrete and particularized 

injury in connection with the conduct about which he 

complains. Spokeo, 136 S. Ct. at 1548. 

The Supreme Court has held that each element of 

standing “must be supported in the same way as any 

other matter on which the plaintiff bears the burden of 

proof.” Lujan, 504 U.S. at 561. With this in mind, we join 

the majority of our sister circuits in holding that the

Supreme Court’s “plausibility” requirement for facial 

challenges to claims under Rule 12(b)(6), as set out in Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), also applies to 

facial challenges to subject-matter jurisdiction under Rule 

12(b)(1).2 Thus, “[t]o survive a motion to dismiss [for lack 

 

2 See, e.g. Garling v. EPA, 849 F.3d 1289, 1293 n.3 

(10th Cir. 2017); Hochendoner v. Genzyme Corp., 823 F.3d 

724, 730 (1st Cir. 2016); Silha v. ACT, Inc., 807 F.3d 169, 

173–74 (7th Cir. 2015); In re Schering Plough Corp. 

Intron/Temodar Consumer Class Action, 678 F.3d 235, 

243–44 (3d Cir. 2012); Amidax Trading Grp. v. S.W.I.F.T. 

SCRL, 671 F.3d 140, 145 (2d Cir. 2011) (per curiam);

White v. United States, 601 F.3d 545, 551–52 (6th Cir. 

2010); Stalley v. Catholic Health Initiatives, 509 F.3d 517, 

521 (8th Cir. 2007). We note that RCFC 12(b)(1) and 
CROW CREEK SIOUX TRIBE v. UNITED STATES 7

of standing], a complaint must contain sufficient factual 

matter” that would plausibly establish standing if accepted as true. Iqbal, 556 U.S. at 678 (citing Twombly, 550 

U.S. at 570). “Threadbare recitals of the elements of 

[standing], supported by mere conclusory statements, do 

not suffice.” Id. 

The question here is whether the Tribe has sufficiently alleged injury in fact, which the Supreme Court has 

characterized as “a hard floor of Article III jurisdiction.” 

Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009). 

To establish injury in fact, “a plaintiff must show that he 

or she suffered ‘an invasion of a legally protected interest’ 

that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 136 S. Ct. 

at 1548 (quoting Lujan, 504 U.S. at 560). The Tribe 

acknowledges that the Winters doctrine is the sole source 

of the legally protected interest asserted in this case—

both for the takings claim and the statutory claim. Oral 

Arg. 00:30–00:50; J.A. 14. The question is whether the 

Tribe has sufficiently alleged injury to those rights. 

The Tribe argues that various government actions 

and inactions with respect to the Missouri River, including the operation of the Pick-Sloan dams, constitute a 

taking of the Tribe’s Winters water rights under the Fifth 

Amendment and a breach of the government’s fiduciary 

duty under 25 U.S.C. § 162a(d)(8) to “appropriately manage[]” the Tribe’s vested, Winters water rights, and thereby amount to an injury-in-fact. The Fifth Amendment’s

Takings Clause requires just compensation for the taking 

of property. Section 162a generally concerns the Secretary 

of the Interior’s responsibility for management of Indian 

trust funds and expenditure of money collected from 

 

FRCP 12(b)(1) are substantially the same for these purposes.
8 CROW CREEK SIOUX TRIBE v. UNITED STATES

irrigation projects, but it also states that “[t]he Secretary’s proper discharge of the trust responsibilities of the 

United States shall include . . . [a]ppropriately managing 

the natural resources located within the boundaries of 

Indian reservations.” 25 U.S.C. § 162a(d)(8). The Tribe’s 

breach of trust claim is based on the view that its Winters 

water rights count as “natural resources” under 

§ 162a(d)(8), and the government has a statutory duty to 

“appropriately manage” those Winters water rights.

While it is clear that the tribe possesses Winters

rights, it is not clear whether those rights are protected 

by § 162a(d)(8). Because § 162a(d)(8) does not define 

“appropriate management” of natural resources and does 

not assign the Secretary any standards or specific obligations as to natural resources, the government argues that

§ 162a(d)(8) is not the kind of “specific rights-creating or 

duty-imposing statutory or regulatory prescription[]” 

required to support jurisdiction under the Indian Tucker 

Act. United States v. Navajo Nation, 537 U.S. 488, 506–

07, 514 (2003) (holding that the Indian Mineral Leasing 

Act does not give the Secretary sufficient specific responsibilities to support Indian Tucker Act jurisdiction). But 

we need not decide that question. If § 162a(d)(8) does not 

cover Winters rights, the Tribe has suffered no injury 

under the statute. And even if Winters rights are “natural 

resources” for purposes of the statute, the Tribe still has 

not established standing. 

The problem is that the complaint fails to allege that 

the government action has caused injury to the Tribe’s 

Winters rights. As discussed above, the Supreme Court 

held in Winters that the establishment of an Indian 

reservation impliedly reserves the amount of water necessary to fulfill the purposes of the reservation. 207 U.S. at 

576–77. Winters arose out of a dispute between Indians 

residing on the Fort Belknap Reservation and upstream, 

non-Indian water users who had constructed dams divert-
CROW CREEK SIOUX TRIBE v. UNITED STATES 9

ing the water that otherwise would have flowed through 

the reservation. Id. at 565–67. The United States, in its 

capacity as trustee, sought to enjoin the diversions, but 

the upstream users claimed paramount water rights 

based on state water law that followed the priorappropriation doctrine. Id. at 568–69. The Winters Court 

held that the Indians actually possessed the superior 

water right because the 1888 treaty establishing the Fort 

Belknap Reservation had also impliedly reserved water 

sufficient to fulfill the purposes of the reservation. Id. at 

576–77. This implied water right was justified, in the 

Court's view, because Congress would have had no good 

reason to reserve land for Indians without also reserving 

their right to sufficient water for the reservation's purpose—which was, in that case, to encourage Indians to 

adopt an agricultural (and thus irrigation-dependent) way 

of life. Id. at 576. 

The scope of Winters reserved water rights, like their 

existence, turns on the reservation’s need for water. The 

amount of water reserved is “that amount of water necessary to fulfill the purpose of the reservation, no more.” 

Cappaert, 426 U.S. at 141; see also New Mexico, 438 U.S. 

at 700 n.4; Arizona, 373 U.S. at 600–01. In Winters itself, 

the purpose of the reservation was agricultural in nature, 

207 U.S. at 576, but other cases have noted fishing and 

hunting as a purpose of the reservation as well, see United 

States v. Adair, 723 F.2d 1394, 1410 (9th Cir. 1983) 

(identifying Winters rights as to “a quantity of the water 

flowing through the reservation not only for the purpose 

of supporting Klamath agriculture, but also for the purpose of maintaining the [Klamath] Tribe’s treaty right to 

hunt and fish on reservation lands”).

Thus, water is only reserved for the Tribe under Winters “to the extent needed to accomplish the purpose of the 

reservation.” Gila River Pima-Maricopa Indian Cmty. v. 

United States, 695 F.2d 559, 561 (Fed. Cir. 1982); see also
10 CROW CREEK SIOUX TRIBE v. UNITED STATES

Cappaert, 426 U.S. at 141. The facts alleged in the complaint, taken as true, suggest that government action, 

including operation of the Pick-Sloan dams, generally 

affects water flows on the Missouri River. But the complaint does not allege that the amount of water flowing by 

the Reservation and available for the Tribe’s use is insufficient to fulfill the purposes of the Reservation or will be 

insufficient in the future. The Tribe therefore has failed to 

allege injury in fact, as necessary to demonstrate standing.

The Tribe argues that, because its Winters rights 

vested at the founding of the Reservation, any subsequent 

action affecting the waters of the Missouri River constitutes an injury of those rights, even if the action does not 

affect the Tribe’s ability to draw sufficient water to fulfill 

the purposes of the Reservation. In the Tribe’s view, 

“[w]hen the Government took and used the Tribe’s water 

and water rights—whether the Tribe was using that 

water at the time or not, and despite the natural flow 

continuing along the river’s banks—it breached its duty 

under 162a(d)(8) to appropriately manage the water, and 

alternatively, violated the Takings Clause by taking a 

fully vested property interest from the Tribe.” Appellant 

Br. 34. 

In so arguing, the Tribe appears to misunderstand 

what its water rights entail. As noted above, Winters, the

sole source of the water rights asserted in this case, only 

entitles tribes to “that amount of water necessary to fulfill 

the purpose of the reservation, no more.” Cappaert, 426 

U.S. at 141. And because water rights are usufructuary in 

nature—meaning that the property right “consists not so 

much of the fluid itself as the advantage of its use”—the

Tribe has no right to any particular molecules of water, 

either on the Reservation or up- or downstream, that may 

have been used or diverted by the government. Casitas 

Mun. Water Dist. v. United States, 708 F.3d 1340, 1353 
CROW CREEK SIOUX TRIBE v. UNITED STATES 11

(Fed. Cir. 2013). The Tribe’s Winters rights, which give 

the Tribe the right to use sufficient water to fulfill the 

purposes of the Reservation, simply cannot be injured by 

government action that does not affect the Tribe’s ability 

to use sufficient water to fulfill the purposes of the Reservation. The complaint in this case does not allege that the 

challenged government action has such an effect.

CONCLUSION

Because the Tribe failed to allege an injury in fact, we 

affirm the Claims Court’s dismissal for lack of subjectmatter jurisdiction. 

AFFIRMED

COSTS

No costs.