United States Court of Appeals 

for the Federal Circuit ______________________

INTER-TRIBAL COUNCIL OF ARIZONA, INC.,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________

2019-1758

______________________

Appeal from the United States Court of Federal Claims 

in No. 1:15-cv-00342-NBF, Senior Judge Nancy B. Firestone.

______________________

Decided: April 17, 2020 

______________________

MELODY MCCOY, Native American Rights Fund, Boulder, CO, argued for plaintiff-appellant. 

 PHILLIP SELIGMAN, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by JOSEPH H. HUNT, RUTH A. HARVEY, MICHAEL 

JOHN QUINN; KENNETH A. DALTON, Office of the Solicitor, 

Indian Trust Litigation Office, United States Department 

of the Interior, Washington, DC. 

 ______________________

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2 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES

Before O’MALLEY, MAYER, and WALLACH, Circuit Judges.

WALLACH, Circuit Judge. 

Appellant Inter-Tribal Council of Arizona, Inc. 

(“ITCA”) filed a lawsuit against the United States (“Government”) in the U.S. Court of Federal Claims, alleging 

that the Government breached its fiduciary duties established pursuant to the Arizona-Florida Land Exchange Act

(“AFLEA”), Pub. L. No. 100-696, 102 Stat. 4571, 4577–93

(1988).1 The Government filed a motion to dismiss ITCA’s 

complaint for lack of subject matter jurisdiction and for 

failure to state a claim, pursuant to Rules 12(b)(1) and 

12(b)(6) of the Rules of the U.S. Court of Federal Claims

(“RCFC”), respectively. The Court of Federal Claims 

granted the Government’s motion in part, dismissing two 

of the Complaint’s three claims. Specifically, the court 

found that it lacked jurisdiction over a portion of Claim I,

and that Claim II and the remaining portion of Claim I 

failed to state a claim upon which relief could be granted.

See Inter-Tribal Council of Ariz., Inc. v. United States, 140 

Fed. Cl. 447, 460 (2018); see also J.A. 1 (Partial Final Judgment), 2–8 (Order on Plaintiff’s Motion for Entry of Partial 

Final Judgment).2 

1 ITCA “is a non-profit membership organization” of 

Indian tribes located in Arizona, “provid[ing] a united voice 

for tribal governments . . . with respect to issues of common 

interest and concern.” J.A. 36; see J.A. 623 (“The goals of 

[ITCA] include programs to benefit the member [t]ribes 

and respective [t]ribal members and to improve the social 

and economic life of all Indian [t]ribes and tribal members 

in Arizona.”). 

2 Although the Court of Federal Claims also dismissed “portions” of Claim III of the Complaint, InterCase: 19-1758 Document: 29 Page: 2 Filed: 04/17/2020
INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 3

ITCA appeals. We have jurisdiction pursuant to 28 

U.S.C. § 1295(a)(3). We affirm-in-part and reverse-in-part. 

BACKGROUND3 

I. Factual History 

A. The Phoenix Indian School 

From its inception in 1891, “an off-reservation federal 

Indian elementary and secondary boarding school” (“Phoenix Indian School”) was “operated by” the U.S. Department 

of the Interior’s (“DOI”) Bureau of Indian Affairs, on land 

owned by the Government in Phoenix, Arizona. J.A. 37–

38. The Phoenix Indian School “consisted of [thirty-four]

buildings on over [one-hundred] acres located in the heart 

Tribal Council of Ariz., 140 Fed. Cl. at 460, that decision is 

not before us on appeal, see generally Appellant’s Br. See 

Appellee’s Br. 16 n.6 (“Claim III . . . is pending below and 

is not part of the current appeal.”); see also Spectrum 

Pharm., Inc. v. Sandoz Inc., 802 F.3d 1326, 1333 (Fed. 

Cir. 2015) (explaining that “we will only address the issues 

raised [on appeal]”). 

3 Because “this case was dismissed on the pleadings, 

for the purposes of this appeal, we must take the facts in 

the [C]omplaint as true.” Prasco, LLC v. Medicis Pharm. 

Corp., 537 F.3d 1329, 1334 (Fed. Cir. 2008). Moreover, for 

purposes of its Motion to Dismiss, the Government did not 

dispute the facts asserted by ITCA in the Complaint. See

Motion to Dismiss Second Amended Complaint at 3 n.1, Inter-Tribal Council of Ariz., Inc. v. United States, No. 1:15-

cv-00342-NBF (Fed. Cl. May 16, 2018), ECF No. 59 (“For 

purposes of this brief only, the factual allegations of 

the . . . [C]omplaint are assumed to be true.”). Thus, the

Complaint “sets forth the uncontested factual backdrop for 

this appeal. We recite here the facts pertinent to the issue[s] before us.” Fid. & Guar. Ins. Underwriters, Inc. v. 

United States, 805 F.3d 1082, 1084 (Fed. Cir. 2015). 

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4 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES

of central Phoenix.” J.A. 38. “While open to members of 

tribes nationwide, the Phoenix Indian School primarily 

served tribes located in Arizona.” J.A. 38. In 1987, as part 

of a larger movement to close boarding schools for students 

of Indian tribes, J.A. 38, the Government “determined that 

the Phoenix Indian School was no longer required or 

needed,” J.A. 40, and the school “was closed in 1990,” 

J.A. 50; see AFLEA § 404(a) (requiring the U.S. Secretary 

of the Interior (“Secretary”) to “close the Phoenix Indian . . .

School . . . no earlier than June 1, 1990, and no later than 

September 1, 1990”); see also id. § 401(18) (“‘Secretary’ 

means the Secretary of the Interior.”). 

B. The Arizona-Florida Land Exchange Agreement 

“[S]ince at least 1984,” the Government and Barron 

Collier Co. (“Collier”) “had been discussing . . . the possible 

acquisition by the [Government]” of approximately 108,000 

acres of wetlands owned by Collier in the Florida Everglades. J.A. 38, 246. “Lacking the funds to make an outright purchase of Collier’s Florida lands,” the Government

“offered various surplus property that it held to Collier in 

exchange for the Florida lands.” J.A. 38. “Collier ultimately selected” the property on which the Phoenix Indian 

School was located (“Phoenix Indian School Property”), after which the Government and Collier negotiated an exchange agreement that was executed in May 1988. J.A. 43. 

“The Exchange Agreement provided . . . that approximately [seventy-two] acres of the Phoenix Indian School 

Property would be conveyed to Collier[,]” in exchange for 

Collier’s Florida lands. J.A. 43. “The Exchange Agreement 

[also] provided that Collier would pay $34.9 million in cash 

to the [Government] at closing,” representing the difference in estimated value between the lands exchanged. 

J.A. 43–44. In November 1988, Congress enacted the 

AFLEA, which ratified the Exchange Agreement. See 

AFLEA § 402(b) (“The Exchange Agreement is ratified and 

confirmed and sets forth the obligations, duties, and 

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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 5

responsibilities of the parties to the Exchange Agreement.”); see also J.A. 48. 

1. The AFLEA

The AFLEA established two trust funds: an “Arizona 

InterTribal Trust Fund” (“AITF”) “for the benefit of Arizona Tribes that were members of . . . [ITCA] . . . and the 

members of such tribes,” AFLEA §§ 401(2), 405(a)(1); and 

a “Navajo Trust Fund” (“NTF”) “for the benefit of the Navajo Tribe and its members,” id. §§ 401(11), 405(a)(2).4 The 

AFLEA required that “Monetary Proceeds,” defined as “the 

cash amount required to be paid . . . by Collier upon closing,” id. § 401(10), “be paid to the [Government] for deposit 

in the [AITF] and the [NTF],” id. § 403(a), with 95 percent

“of the total amount” allocated to the AITF, and the remaining 5 percent allocated to the NTF, id. § 405(e). “Trust 

Income” from the AITF and NTF was to be used only for 

“supplemental educational and child-welfare programs, activities, and services for the benefit of” members of ITCA 

and the Navajo Nation, respectively, as well as “the design, 

construction, improvement, or repair of related facilities[.]” 

Id. § 405(d)(2)(A), (B); see id. § 401(21) (“‘Trust Income’ . . .

means the interest earned on amounts deposited into [the 

AITF and NTF] and any amounts paid into each such trust 

fund in the form of annual Trust Fund Payments.”); see 

also id. § 401(19) (“‘Trust Fund Payment’ means the payment . . . of the Monetary Proceeds for deposit into . . . the 

[AITF or NTF], in the form of a lump sum payment or annual payments[.]”). Additionally, “[a]n amount equal to 

5 percent of the Trust Income” from the AITF and NTF, 

was to be “paid annually” to ITCA and the Navajo Nation, 

respectively, “for education, child welfare, community 

4 Because the parties use the term “Navajo Nation” 

to refer to the “Navajo Tribe and its members” as set forth 

in the AFLEA, see, e.g., Appellant’s Br. 3 n.1; Appellee’s 

Br. 6 n.2, we do as well. 

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6 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES

development, and general administrative purposes[.]” Id.

§ 405(d)(4)(A), (B). 

The AFLEA permitted the Secretary to “elect to receive” the Monetary Proceeds “in the form of either a lump 

sum payment or [thirty] annual payments[.]” Id. § 403(b). 

Relevant here, if the Secretary “elect[ed] to receive” the 

Monetary Proceeds “in the form of annual payments,” Collier was required to make: (1) “[thirty] annual payments 

equal to the interest due on . . . the Monetary Proceeds[,]” 

id. § 403(c)(2)(A); and (2) “at the time of the last annual 

payment, a [principal] payment equal to . . . the Monetary 

Proceeds[,]” id. § 403(c)(2)(B). Further, if the Monetary 

Proceeds were to be received pursuant to the annual payment method, the Government, through the Secretary of 

the Treasury, was required to “hold in trust . . . security 

provided in accordance with the Trust Fund Payment 

Agreement.” Id. § 405(c)(2); see id. § 401(20) (“‘Trust Fund 

Payment Agreement’ means an agreement providing for 

payment by the Purchaser of annual Trust Fund Payments 

for deposit into the [AITF] or the [NTF][.]”). 

2. The Trust Fund Payment Agreement, Deed of Trust, 

and Promissory Note

“In June 1991, Collier gave preliminary notice of [its] 

intent to accept [the Government’s] offer on the Phoenix 

Indian School [P]roperty, but also told [the Government]

that it would not proceed with the [Exchange Agreement]

unless it could use the annual payment method[.]” J.A. 51. 

In September 1991, “over objections by” ITCA and the Navajo Nation, the Secretary “agreed to Collier’s demand for 

the annual payment method.” J.A. 54 (internal quotation 

marks omitted). In December 1991, Collier accepted the 

Government’s offer. J.A. 55. Thereafter, Collier and the 

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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 7

Government proceeded to negotiate the terms of the land 

exchange. J.A. 55–61.5 

In December 1992, Collier and the DOI executed a

Trust Fund Payment Agreement (“TFPA”), J.A. 62; see

J.A. 341–468 (TFPA), as well as a deed of trust, J.A. 64; see

J.A. 529–99 (Deed of Trust). Consistent with the AFLEA, 

the TFPA required Collier to provide the Government with 

a promissory note “for [the] payment of $34.9 million ‘with 

interest thereon.’” J.A. 62; see J.A. 349; see also J.A. 469–

81 (Promissory Note). Importantly, the TFPA provided 

that the Deed of Trust and Promissory Note, which were 

attached as “Exhibits” to the TFPA, “constitute[d]” parts of 

the “TFPA” “as such term is used in the [AFLEA][.]” 

J.A. 346. 

The Promissory Note—executed by Collier in December 1992, J.A. 62—required Collier to: (1) make thirty annual interest payments of $2,966,500 (“Trust Fund 

Payments”), reflecting an interest rate of “[8.5] percent . . .

per annum” “on the Principal Amount,” J.A. 63, 171; see

5 In October 1992, ITCA filed suit in the U.S. District 

Court for the District of Arizona (“Arizona District Court”), 

seeking to enjoin the Government from proceeding with the

land exchange. J.A. 67–68; see J.A. 620–46 (ITCA’s October 1992 Complaint). Among other concerns, ITCA was 

worried that the Government had “inadequately collateralize[d]” Collier’s payment obligations. J.A. 68. The Arizona

District Court denied ITCA’s request for a preliminary injunction, J.A. 662; see J.A. 68, and in June 1993, granted 

the Government’s and Collier’s motion to dismiss, J.A. 663;

see J.A. 69, finding, inter alia, “that the Secretary[’s] . . . 

decision regarding the . . . adequacy of the collateral [was] 

precluded from judicial review,” J.A. 662–63; see J.A. 68–

69. The U.S. Court of Appeals for the Ninth Circuit affirmed. See Inter Tribal Council of Ariz. v. Babbitt, 51 F.3d 

199, 203 (9th Cir. 1995)); see also J.A. 69. 

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8 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES

J.A. 470, 473 (“Principal Amount means $34.9 million.” 

(emphasis omitted)); and (2) “pay . . . the Principal 

Amount,” J.A. 62; see J.A. 470. Additionally, Collier was 

required to make thirty annual payments into an annuity

(“Annuity”), “sufficient . . . to pay the [Government] a lump 

sum of [$34.9 million]” “on the completion” of those thirty

payments. J.A. 62; see J.A. 351–53. According to the 

TFPA, the Promissory Note was “secured by the Annuity”

and a “Trust Estate” as “defined in the Deed of Trust[.]” 

J.A. 350; see J.A. 63. The Deed of Trust, in turn, provided 

that the Trust Estate consisted of fifteen acres of the Phoenix Indian School Property (“fifteen-acre Phoenix Indian 

School Property”), as well as Collier’s development interests in about seven and one-half acres of land located in 

downtown Phoenix (“Downtown Development Interests”), 

which Collier acquired in an exchange with the City of 

Phoenix. J.A. 535–37, 569–74; see J.A. 318 (“The obligations for payment will be secured by liens on Collier’s interest in [fifteen] acres of the [Phoenix] Indian School 

[P]roperty and on about [seven and one-half] acres of downtown Phoenix land that Collier[] will receive as a result of 

a land exchange with the City of Phoenix.”); see also 

J.A. 64.6 

The Deed of Trust allowed Collier to request, and required the Government to release, portions of the Trust Estate if the value of the property remaining in the Trust 

Estate exceeded 130 percent of a defined “Release Level

6 Prior to execution of the TFPA, Collier agreed to 

“exchange[] some of the . . . Phoenix Indian School [P]roperty that it [was to] receive[] under the AFLEA with the

City of Phoenix” for the Downtown Development Interests. 

J.A. 64; see J.A. 318. 

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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 9

Amount.” J.A. 560–61; see J.A. 64.7 The Deed of Trust also 

included a “Maintenance of Collateral Value” provision, 

which provided that if, after a partial security release, the 

“fair value” of the remaining unreleased property falls below 130 percent of the Release Level Amount, Collier “shall 

add to the Trust Estate” U.S. Government-backed securities sufficient in value to “restore the fair value” of the unreleased property to 130 percent of the Release Level 

Amount. J.A. 561; see J.A. 65. Finally, the TFPA, Promissory Note, and Deed of Trust each “provide[d] that resort 

for payment of the [Promissory] Note was to be solely 

against the Annuity and the Trust Estate[.]” J.A. 66; see

J.A. 350 (“[R]esort for payment of the Promissory Note 

shall be solely against the Annuity and the Trust Estate[.]”), 471 (similar), 564 (similar). 

C. Collier’s Performance and Default 

In December 1997, Collier began making its required

Trust Fund Payments—95 percent of which the Government “deposited . . . into the AITF”—as well as payments 

toward the Annuity. J.A. 70.8 In 1998, and again in 2007, 

“Collier requested releases of [the] liens” on Collier’s 

7 The Deed of Trust defined the “Release Level 

Amount” as 

(i) the unpaid principal plus accrued interest on the 

Promissory Note, less (ii) the value of [U.S.] Government-backed Securities and Deposited Monies 

held in the Trust Estate, and further less, after the 

expiration of two years from the [c]losing [d]ate . . .

(iii) the fair value, at the time of the calculation, of 

the Annuity. 

J.A. 560. 

8 Collier’s Trust Fund Payments and annuity payments were due December 18 of each year, beginning in 

1997 and continuing through 2026. J.A. 508; see J.A. 175, 

496, 507–08, 510. 

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10 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES

Downtown Development Interests, “both of which the [Government] granted.” J.A. 71. After the lien release in 2007, 

“only the [fifteen]-acre Phoenix Indian School [P]roperty 

remained in the Trust Estate to secure [Collier’s] . . . obligations.” J.A. 72. Although the Government “received appraisals submitted by Collier” “[i]n connection with the two 

lien releases,” the Government “did not perform or cause to 

be performed its own appraisals of the security in the Trust 

Estate either before or after releasing the liens.” J.A. 71. 

At that time, the Government also “did not provide notice 

to ITCA of its decisions to release the liens” on Collier’s 

Downtown Development Interests, and “did not provide information to ITCA from which ITCA could independently 

calculate the value of the existing or remaining security 

that the [Government] held in the Trust Estate[.]” J.A. 72. 

In December 2012, after making fifteen Trust Fund 

Payments of $2,966,500, “for a total of $44,497,500[,]” and 

fifteen annual payments into the Annuity for a total of 

$9,662,000, J.A. 665; see J.A. 70, Collier met with the DOI 

to discuss Collier’s remaining payment obligations and “to 

see if [they] c[ould] find an alternative that would be beneficial for all parties involved[,]” J.A. 665. Later that month, 

Collier failed to make its required Trust Fund Payment to 

the Government and also failed to make its annual annuity 

payment. J.A. 74; see J.A. 175. In January 2013, Collier 

informed the Government of its intent to “no longer make 

payments,” J.A. 74; see J.A. 665 (Collier explaining that it 

was “simply not in a position to continue to make payments 

of such a significant magnitude”), explaining that the value 

of the fifteen-acre Phoenix Indian School Property had decreased to a point “far below [Collier’s] remaining obligation[,]” “mak[ing] the economics of the deal untenable for 

[Collier],” J.A. 665. Specifically, as of January 2013, “the 

only offer [Collier] ha[d] received” for the property was for 

$6 million, J.A. 665; see J.A. 74–75, whereas, Collier’s “remaining obligation consist[ed] of another $44,497,500 in 

interest payments, and the remaining princip[al] [of] 

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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 11

approximately $22 million, for a total of approximately 

$66.5 million,” J.A. 665; see J.A. 76. Later that month, the 

DOI sent a letter to Collier, in which the DOI “noted that 

the value of the [remaining security] appeared to be less 

than 130 percent of the Release Level Amount,” J.A. 74 (internal quotation marks omitted), and demanded that Collier “add to the [T]rust [E]state” additional security, 

J.A. 731; see J.A. 75. By March 2013, the DOI shared these

letters with ITCA, informing ITCA that Collier was in default and that Collier’s obligations were under collateralized. J.A. 75. In April 2013, the DOI sent another letter to 

Collier, in which the DOI “repeated its demand” that Collier “supplement the value of the Trust Estate with [U.S.] 

[G]overnment-backed securities.” J.A. 75. 

D. The Government Sought to Require Collier to Provide 

Additional Security 

In January 2014, the Government filed suit against 

Collier in the Arizona District Court, “s[eeking] to require 

Collier to provide additional security to fulfill its contractual promises to the [Government].” J.A. 76 (internal quotation marks omitted).9 The Government alleged that 

“[s]ince 2007, the value of the [fifteen]-acre [Phoenix] Indian School [P]roperty ha[d] dropped significantly, and 

that reduction in value ha[d] left the debt owed by Collier 

grossly under-collateralized.” J.A. 606; see J.A. 75. Specifically, the Government alleged that “Collier [wa]s currently 

below its required level for collateral by an amount equal 

to $18,499,556,” and thus “Collier [wa]s required to make 

additional pledges of collateral in the form of [U.S.] 

9 The Government “sought to recover only four

$2.9 million [Trust Fund] [P]ayments, reflecting payments 

missed for the years 2012, 2013, 2014[,] and 2015,” J.A. 76 

(emphasis omitted), but “did not take into account the 

$2.9 million annual [Trust Fund] [P]ayments due . . . each 

year after 2015 and until 2026,” J.A. 77. 

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12 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES

Government-backed securities in th[at] amount . . . to 

achieve the minimum level of 130[ percent] of the Release 

Level Amount anticipated as of December 31, 2015.”

J.A. 78. The Government and Collier “stipulated that the 

value of the [fifteen-acre] Phoenix Indian School [P]roperty 

(based on appraisals as of September 15, 2015) was 

$25 million,” and that “[a]ccording to the [Government], 

the value of the Annuity as of November 30, 2015[,] was 

approximately $13.3 million.” J.A. 76. In August 2016, the 

Arizona District Court “ordered [Collier] to render specific 

performance . . . by providing to the [Government] . . .

[U.S.] [G]overnment-backed securities as added Trust Estate collateral[,]” and further ordered that “[t]he fair market value of the securities upon performance shall be the 

sum of (a) $20,452,281.00 and (b) $10,565.00 multiplied by 

the number of calendar days between July 22, 2016[,] and 

the date of performance.” J.A. 784; see J.A. 79–80. 

In September 2016, the Arizona District Court stayed 

execution of its judgment, pending resolution of post-trial 

motions, J.A. 973; and, in October 2016, the Arizona District Court stayed litigation, “except as to settlement related purposes[,]” based upon a “tentative” settlement 

agreement between the parties, J.A. 974. In July 2017, the 

Government and Collier “reached and executed” a settlement agreement, J.A. 80, after which the Arizona District 

Court “terminated [the case] in its entirety with prejudice[,]” J.A. 81. The Government “reported . . . that the . . .

settlement ha[d] a projected gross recovery of $54.5 million, 

consisting of $16 million cash, $13.5 million in [the] 

[A]nnuity, and [the fifteen-acre] Phoenix [Indian School 

Property] with a 2015 appraised value of $25 million.” 

J.A. 81. Pursuant to the settlement agreement, in 

July 2017, Collier paid “$16 million in cash” to the Government. J.A. 81. In 2018, the General Services Administration sold the fifteen-acre Phoenix Indian School Property 

for $18.5 million. J.A. 85. 

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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 13

II. Procedural History 

In April 2015, ITCA filed a lawsuit against the Government in the Court of Federal Claims, alleging that the Government breached its fiduciary duties established 

pursuant to the AFLEA. J.A. 86–91. The Complaint consisted of three claims. Relevant here, Claim I generally alleged “breaches of fiduciary obligations [on the part of the 

Government] regarding the [AFLEA]’s Trust Fund Payments security requirements,” J.A. 86 (capitalization normalized); see J.A. 86–89, and Claim II generally alleged

“breaches of fiduciary obligations [on the part of the Government] to collect, deposit[,] and make Trust Fund Payments required by the [AFLEA] for which earnings have 

been lost,” J.A. 89 (capitalization normalized); see J.A. 89–

90. In May 2018, the Government filed its Motion to Dismiss the Complaint for lack of subject matter jurisdiction 

and for failure to state a claim, pursuant to Rules 12(b)(1) 

and 12(b)(6) of the RCFC, respectively. See Motion to Dismiss Second Amended Complaint, Inter-Tribal Council of 

Ariz., Inc. v. United States, No. 1:15-cv-00342-NBF (Fed. 

Cl. May 16, 2018), ECF No. 59.10 In October 2018, the 

Court of Federal Claims granted the Government’s motion 

in part, dismissing Claim I for lack of subject matter jurisdiction and for failure to state a claim, and Claim II for 

failure to state a claim. See Inter-Tribal Council of Ariz., 

140 Fed. Cl. at 460. 

10 Rules 12(b)(1) and 12(b)(6) of the RCFC provide 

that “a party may assert the following defenses by motion: 

(1) lack of subject matter jurisdiction; . . . [and] (6) failure 

to state a claim upon which relief can be granted[,]” respectively. 

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14 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES

DISCUSSION 

I. Standard of Review and Legal Standard 

“A plaintiff bears the burden of establishing subjectmatter jurisdiction by a preponderance of the evidence.” 

M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 

1323, 1327 (Fed. Cir. 2010) (citation omitted). “We review 

de novo a grant or denial of a motion to dismiss for lack of 

jurisdiction.” Hopi Tribe v. United States, 782 F.3d 662, 

666 (Fed. Cir. 2015). Likewise, “[w]e review the . . . grant 

of a motion to dismiss for failure to state a claim de novo.” 

Prairie Cty., Mont. v. United States, 782 F.3d 685, 688 (Fed. 

Cir. 2015) (citation omitted) (italicization normalized). In 

either case, “[w]e take all factual allegations in the complaint as true and construe the facts in the light most favorable to the non-moving party.” Jones v. United States, 

846 F.3d 1343, 1351 (Fed. Cir. 2017); see Pixton v. B & B 

Plastics, Inc., 291 F.3d 1324, 1326 (Fed. Cir. 2002) (applying the same standard “[w]hen a party has moved to dismiss for lack of subject matter jurisdiction”). A complaint 

should not be dismissed for failure to state a claim, “unless 

the complaint fails to ‘state a claim to relief that is plausible on its face.’” K-Tech Telecomms., Inc. v. Time Warner 

Cable, Inc., 714 F.3d 1277, 1282 (Fed. Cir. 2013) (quoting 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“[T]he Supreme Court has established a two-part test 

for determining jurisdiction under the Indian Tucker Act.” 

Hopi Tribe, 782 F.3d at 667 (citing United States v. Navajo 

Nation (Navajo Nation II), 556 U.S. 287, 290 (2009)); see 28 

U.S.C. § 1505 (Indian Tucker Act) (providing, in relevant 

part, that the Court of Federal Claims has jurisdiction over 

claims against the Government by Indian tribes “whenever 

such claim[s] . . . aris[e] under the . . . laws . . . of the 

United States”). “First, the tribe ‘must identify a substantive source of law that establishes specific fiduciary or 

other duties, and allege that the Government has failed 

faithfully to perform those duties.’” Navajo Nation II, 556 

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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 15

U.S. at 290 (quoting United States v. Navajo Nation (Navajo Nation I), 537 U.S. 488, 506 (2003)). “At th[is] first step, 

a statute or regulation that recites a general trust relationship between the [Government] and the Indian [tribes] is 

not enough to establish any particular trust duty.” Hopi 

Tribe, 782 F.3d at 667. “Indian [t]ribes, moreover, cannot 

simply rely on common law duties imposed on a trustee; 

instead, tribes must point to specific statutes [or] regulations that ‘establish the fiduciary relationship and define 

the contours of the [Government’s] fiduciary responsibilities.’” Shoshone Indian Tribe of Wind River Reservation, 

Wyo. v. United States, 672 F.3d 1021, 1039–40 (Fed. 

Cir. 2012) (quoting United States v. Jicarilla Apache Nation, 564 U.S. 162, 177 (2011)). 

Second, “the [trial] court must . . . 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 imposes.” Navajo Nation II, 556 U.S. at 291 (internal quotation marks, alterations, and citation omitted). “At th[is]

second step . . . , common-law trust principles come into 

play.” Hopi Tribe, 782 F.3d at 668. Specifically, “principles 

of trust law might be relevant ‘in drawing the inference 

that Congress intended damages to remedy a breach.’” 

Navajo Nation II, 556 U.S. at 291 (quoting United States v. 

White Mountain Apache Tribe, 537 U.S. 465, 477 (2003)). 

Indeed, the Supreme Court “ha[s] consistently recognized 

that the existence of a trust relationship between the [Government] and an . . . Indian tribe includes as a fundamental incident the right of an injured beneficiary to sue the 

trustee for damages resulting from a breach of the trust.” 

United States v. Mitchell, 463 U.S. 206, 226 (1983); see id.

(“Given the existence of a trust relationship, it naturally 

follows that the Government should be liable in damages 

for the breach of its fiduciary duties.”). 

Finally, “[t]he jurisdiction of the Court of Federal 

Claims is limited by the six-year statute of limitations of 

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16 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES

28 U.S.C. § 2501.” Rocky Mountain Helium, LLC v. United 

States, 841 F.3d 1320, 1325 (Fed. Cir. 2016); see 28 U.S.C. 

§ 2501 (“Every claim of which the . . . Court of Federal 

Claims has jurisdiction shall be barred unless the petition 

thereon is filed within six years after such claim first accrues.”); see also Martinez v. United States, 333 F.3d 1295, 

1316 (Fed. Cir. 2003) (“It is well established that statutes 

of limitations for causes of action against the United 

States, being conditions of the waiver of sovereign immunity, are jurisdictional in nature.”). Relevant here, “[a]

cause of action for breach of trust traditionally accrues 

when the trustee ‘repudiates’ the trust and the beneficiary 

has knowledge of that repudiation.” Shoshone Indian 

Tribe, 364 F.3d at 1348 (citation omitted). “A trustee may 

repudiate the trust by express words or by taking actions 

inconsistent with his responsibilities as trustee.” Id. (citation omitted). While “[t]he beneficiary . . . may bring [an] 

action as soon as he learns that the trustee has failed to 

fulfill his responsibilities,” “[i]t is often the case . . . that the 

trustee can breach his fiduciary responsibilities of managing trust property without placing the beneficiary on notice 

that a breach has occurred.” Id. “It is therefore common 

for the statute of limitations to not commence to run 

against the beneficiaries until a final accounting has occurred that establishes the deficit of the trust.” Id. (citation omitted). 

II. The Court of Federal Claims Improperly Dismissed a 

Portion of Claim I of the Complaint

The Court of Federal Claims dismissed Claim I of the

Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the 

RCFC. See Inter-Tribal Council of Ariz., 140 Fed. Cl. 

at 455–57, 460. Specifically, as to Claim I’s allegation that 

the Government “failed to ensure . . . adequate security for 

the entire amount of the trust fund obligations . . . , when 

it negotiated the TFPA in 1992[,]” id. at 455, the Court of 

Federal Claims concluded that, “[b]ecause ITCA clearly 

knew about the terms of the TFPA and the amount of 

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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 17

security that Collier was required to hold more than six 

years before [ITCA] filed [its] lawsuit,” that portion of 

Claim I “is barred by the six-year statute of limitations,” 

id. at 457; see 28 U.S.C. § 2501. As to the remaining allegations of Claim I, viz., that the Government failed to 

maintain “sufficient” or “adequate” security in the Trust 

Estate over time, id. at 455, the Court of Federal Claims 

concluded that the Government was not “required . . . to do 

anything more than it did in filing suit . . . to obtain the 

additional security from Collier. . . . Therefore, ITCA has 

not stated a claim for relief in [Claim] I[,]” Id. at 457. 

ITCA contends that the Court of Federal Claims erred 

on both grounds of dismissal. First, ITCA argues that the 

Court of Federal Claims erred by “fail[ing] to interpret correctly the express and unambiguous terms and structure of 

the [AFLEA],” as well as ignoring and misinterpreting “key 

terms in the TFPA and related documents,” which “led the 

[Court of Federal Claims] to conclude” that the Government was “authorized . . . to hold less security than was 

needed to secure all the Trust Fund Payments required by 

the [AFLEA].” Appellant’s Br. 9. Second, the Court of Federal Claims also erred, ITCA argues, in concluding that 

ITCA failed to file its lawsuit within the six-year statute of 

limitations period following “the execution of the 

TFPA . . . , despite the continuing nature of the security obligations imposed under the [AFLEA], and the fact that 

ITCA had no means by which to know the dollar value of 

the security[.]” Id. at 9–10. 

As discussed below, we agree with ITCA, and find that 

the Court of Federal Claims erred in dismissing the failureto-maintain-sufficient-security portion of Claim I at this 

stage of the proceedings. As to the remainder of Claim I, 

however, we agree with the Court of Federal Claims that

it should be dismissed. 

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18 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES

A. The Government’s Alleged Failure to Maintain 

Sufficient Security in the Trust Estate 

Beginning with the first step of the Supreme Court’s 

two-part jurisdictional test, we must initially consider 

whether ITCA has identified a “‘substantive source of law’”

that establishes a specific fiduciary duty. Navajo Nation II, 556 U.S. at 290 (quoting Navajo Nation I, 537 U.S. 

at 506). Section 405(c)(2) of the AFLEA, which ITCA identified in the Complaint as imposing a fiduciary duty upon 

the Government, see, e.g., J.A. 50, 64, provides that if, as 

was the case, the Monetary Proceeds were to be received

“in the form of annual payments[,]” the Government “shall 

hold in trust the security provided in accordance with the 

[TFPA][.]” The TFPA, in turn, defines the security to be 

held, as well as the security’s intended purpose. Specifically, the TFPA required Collier to pay both the Principal 

Amount and “interest thereon[,]” J.A. 349, 470 (Promissory 

Note) (“Collier . . . promises to pay . . . the Principal 

Amount . . . with interest thereon[.]”), and the Government 

was required to hold the Annuity and Trust Estate as security against those payment obligations, J.A. 350 (“The 

parties acknowledge that the Promissory Note . . . is secured by the Annuity, and the ‘Trust Estate[.]’”).11 The 

11 The parties dispute whether the security to be held 

by the Government was intended to secure all thirty years 

of required annual interest payments, i.e., Trust Fund Payments, or only accrued interest. ITCA contends, for example, that “all of the unpaid annual payments” were to be 

secured to “ensur[e] that all annual payments and the final 

payment were fully secured throughout the [thirty]-year 

period.” Appellant’s Br. 18. To support its position, ITCA 

relies on the Government’s purported admission before the 

Arizona District Court that the security was intended to 

secure “any and all unpaid annual payments for the entire 

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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 19

[thirty]-year period[,]” id. at 18 n.7, and on DOI statements 

that “ma[k]e clear [that the DOI] understood the [Government] had to secure both the $34.9 million final payment 

at the end of the [thirty]-year period and the annual payments[,]” id. at 13 (citing J.A. 202 (a DOI attorney explaining that “we’re not only securing the $35 million at the end 

of the [thirty-]year period but we also want to secure payments of those annual interest payments”)); see J.A. 246 

(the Assistant Secretary for Fish and Wildlife and Parks 

explaining that the DOI and Collier “must execute” an 

agreement “to secure [thirty] years of interest payments

and a final payment of $34.9 million for the Indian trust 

funds”). The Government contends, however, that “such 

individual opinions cannot, as a matter of law, create a 

duty for the [Government][,]” Appellee’s Br. 26, and that 

“ITCA falsely claims that the [Government] took a position 

in its litigation with Collier that the Deed of Trust’s accrued interest provision covers all [thirty] years of payments[,]” id. at 27 n.7. While we acknowledge that Collier, 

as part of its payment obligations under the TFPA, undertook to pay “thirty . . . consecutive annual interest payments[,]” J.A. 470; see also AFLEA § 403(c)(2)(A) (requiring 

Collier to make “[thirty] annual payments equal to the interest due on . . . the Monetary Proceeds”), we take no position on the issue of whether the security to be held by the 

Government was intended to secure all thirty years of required annual interest payments, as this issue is not material to our present determination, and also because the 

Court of Federal Claims did not pass on this issue below,

see generally Inter-Tribal Council of Ariz., 140 Fed. Cl. 

at 454–60. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) 

(“It is the general rule, of course, that a federal appellate 

court does not consider an issue not passed upon below.”). 

Although we expect this issue will ultimately need to be 

resolved, for purposes of this appeal, it is enough that the 

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20 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES

AFLEA confirms this purpose, and demonstrates Congress’s expectation that the security was to be maintained 

at a level sufficient to secure Collier’s payment obligations. 

See, e.g., AFLEA § 402(h)(3)(D)(ii) (requiring “[a]ny [other] 

person seeking to acquire” the Phoenix Indian School Property to provide “evidence” of “collateral . . . adequate to secure the payment obligations . . . under the [TFPA]”), 

(5)(B)(iii) (requiring the Secretary to “exclude from consideration any [other] offer . . . fail[ing] to identify collateral 

that is adequate to secure the [payment] obligations under 

the [TFPA]”). The Deed of Trust—which was expressly 

made part of the TFPA, J.A. 346—makes this expectation 

explicit by requiring the “fair value” of the Trust Estate to 

be maintained at or above 130 percent of the Release Level 

Amount, J.A. 561. Finally, the AFLEA provides that Collier’s payments, and interest earned thereon, were to be 

“used” exclusively “for the benefit of,” or paid directly to,

ITCA and the Navajo Nation. Id. § 405(d)(2), (4). Thus, 

the AFLEA, in combination with the TFPA, “defines a fiduciary relationship” by providing that the Government was 

to “hold in trust” security, at a level adequate to secure Collier’s payment obligations, for the benefit of ITCA and the 

Navajo Nation. White Mountain Apache Tribe, 537 U.S. 

at 474.12 

Government has acknowledged that Collier’s debt had become “grossly under-collateralized.” J.A. 606. 

12 The Assistant Secretary for Indian Affairs 

acknowledged this fiduciary relationship when, in September 1991, he explained to the Secretary that one of the 

“most important factors to be considered in analyzing [Collier’s payment] options,” was the “degree of security provided [to] the [DOI] in fulfilling its trust responsibilities to 

the beneficiaries of the trust,” J.A. 224, and again in 

March 1992, when, in discussing a “collateral agreement to 

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Moreover, the Deed of Trust invested the Government

with discretionary control over the level of security held in 

trust, by, for example, granting the Government exclusive 

authority to “release or reconvey” all or any portion of the 

Trust Estate “at any time at [its] option[.]” J.A. 547; see

J.A. 547 (granting the Government authority to “take or 

release any other or additional security”); see also White 

Mountain Apache Tribe, 537 U.S. at 466 (explaining that 

because “[t]he statute expressly defines a fiduciary relationship . . . , then proceeds to invest the [Government]

with discretionary authority” over “the trust corpus[,]” it 

“permits a fair inference that the Government is subject to 

duties as a trustee”); Hopi Tribe, 782 F.3d at 668 (“[B]y using trust language in conjunction with an authorization of 

plenary control of the [property], Congress clearly accepted 

a fiduciary duty to exercise that authority with the care 

charged to a trustee at common law.”). While the Deed of 

Trust also provided Collier with the “right to require” the 

Government to release portions of the Trust Estate, Collier’s right was expressly limited, J.A. 561, and the Government otherwise maintained “full responsibility to manage 

[the level of security held in trust] for the benefit of the Indians[,]” Mitchell, 463 U.S. at 224. Accordingly, ITCA identified a “substantive source of law”—AFLEA § 405(c)(2)—

secure the Indian’s interest” with Collier, the Assistant 

Secretary explained that ITCA and the Navajo Nation, 

“[a]s the beneficiaries of the[] proceeds, . . . ha[d] a major 

concern regarding the security of th[e] anticipated flow of 

income over the next thirty years[,]” and that while the Secretary had tried to “accommodate Collier” in negotiating 

acceptable collateral, the Secretary was required to “fully 

meet[] . . . his trust responsibilities to the Indian tribes,” 

including the “obligation to protect the Indian tribes’ financial interest[,]” J.A. 263. 

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22 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES

in the Complaint that establishes a specific fiduciary duty. 

Navajo Nation II, 556 U.S. at 290. 

Next, as part of the first step of the Supreme Court’s 

jurisdictional test, we must also consider whether ITCA alleged that the Government has “failed to faithfully perform” its fiduciary duty. Id. Claim I of the Complaint does 

exactly this, alleging that the Government breached its fiduciary obligations by failing to maintain “sufficient security in the Trust Estate[.]” J.A. 87; see J.A. 87–88. The 

Government’s representations to the Arizona District 

Court support this allegation, as the Government acknowledged that the value of the Trust Estate fell below the Release Level Amount “sometime after” the Government 

released liens on Collier’s Downtown Development Interests in 2007, J.A. 72, and that by January 2014, “the debt 

owed by Collier [had become] grossly under-collateralized,” 

J.A. 606; see J.A. 74–75. In fact, by as early as March 2012, 

the value of the Trust Estate had decreased to a point “far 

below” the value of Collier’s “remaining obligation[s].” 

J.A. 665; see J.A. 74–75. While the Government has attributed this to a “decline in [property] value[s]” caused by 

the economic downturn of 2008, J.A. 72; see J.A. 75, it appears to be the result of much more. ITCA alleged, for example, that the Government released the liens on Collier’s 

Downtown Development Interests without “perform[ing] . . . its own appraisals of the security in the Trust 

Estate[,]” or otherwise “determin[ing] whether sufficient 

security would remain . . . in the Trust Estate to secure 

[Collier’s] obligations.” J.A. 71; see J.A. 72.13 ITCA further 

13 The Government contends, and ITCA agrees, that 

“under the [TFPA]” Collier had an “obligation . . . to monitor the level of security” remaining in the Trust Estate. 

Oral Arg. at 24:18–24:23, 30:53–31:05, http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2019-1758.mp3. 

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alleged that, despite Collier’s obligation to “restore the fair 

value” of the Trust Estate to 130 percent of the Release 

Level Amount, J.A. 561, the Government “did not demand 

that Collier substitute security at any time up to and before 

the lien releases . . . or even after the economic downturn,” 

J.A. 73. Instead, the Government “only demanded that

Collier provide substitute security after Collier defaulted,” 

J.A. 73, at which point Collier’s obligations had already become substantially—if not “grossly,” J.A. 606—under collateralized, and “economic[ally] . . . untenable,” J.A. 665. 

Finally, ITCA alleged that the Government “did not provide notice to ITCA of its decisions to release the liens[,]” 

and “did not provide information to ITCA from which ITCA 

could independently calculate the value of the existing or 

remaining security that the [Government] held in the 

Trust Estate, either before or after releasing the liens.” 

J.A. 72. In fact, it was not until March 2013, that the Government disclosed to ITCA that Collier had defaulted and 

that Collier’s obligations were under collateralized. 

J.A. 75; see Oral Arg. at 7:37–8:00. 

If proven, ITCA’s allegations would demonstrate a 

breach of the Government’s fiduciary duty to “hold in trust 

the security” against Collier’s payment obligations, including the duty to preserve the property held in trust, see 

White Mountain Apache Tribe v. United States, 249 F.3d

Even assuming that such an obligation exists, a matter 

about which the TFPA is silent, see generally J.A. 341–468, 

any such obligation is separate and distinct from those imposed on the Government pursuant to the AFLEA, and 

does not, and indeed cannot, relieve the Government of obligations arising from its statutory fiduciary duty, see Connolly v. Pension Ben. Guar. Corp., 475 U.S. 211, 224 (1986) 

(“If the . . . statute is otherwise within the powers of Congress, . . . its application may not be defeated by private 

contractual provisions.”). 

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24 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES

1364, 1378 (Fed. Cir. 2001) (“Under the common law of 

trusts, it is indisputable that a trustee has an affirmative 

duty to act reasonably to preserve the trust property.”); see 

also Restatement (Third) of Trusts § 77 (2007) (“The trustee has a duty to administer the trust as a prudent person 

would, in light of the purposes, terms, and other circumstances of the trust.”), as well as the duty to provide ITCA 

with pertinent information, see In re United States, 590 

F.3d 1305, 1312 (Fed. Cir. 2009) (“[T]he fiduciary has a 

duty to disclose all information related to trust management to the beneficiary.”); see also Restatement (Third) of 

Trusts § 82 cmt. d (2007) (A trustee has an “affirmative” 

duty to “inform . . . beneficiaries of important developments and information that appear reasonably necessary 

for the beneficiaries to be aware of in order to protect their 

interests.”). This is especially so, in light of the “most exacting fiduciary standards” by which the Government is to 

conduct itself “in its relationship with . . . Indian beneficiaries.” Shoshone Indian Tribe, 364 F.3d at 1348 (internal 

quotation marks and citation omitted). 

Two particular allegations make the Government’s 

purported conduct in this case particularly troubling. 

First, after the lien release in 2007, only real property, viz., 

the fifteen-acre Phoenix Indian School Property, remained 

in the Trust Estate, J.A. 72, a practice which the Government, in September 1991, cautioned against, J.A. 203–204 

(DOI officials advising against “real estate as part of the 

security” because “[n]obody knows what [real] property is 

going to be worth [ten]–[fifteen] years from now. It[’]s 

tough to get rid of [real] property in a bad market” and 

“even in a good market [it] isn’t all that liquid”), 211 (a DOI 

attorney explaining that “[b]ased upon my experience . . . , 

I become concerned about a portfolio that proposes exclusively in real estate”). Indeed, as the Assistant Secretary 

for Indian Affairs explained to the Secretary that same 

month, “because of the uncertain value of the [Phoenix Indian School] [P]roperty . . . , securing the full amount of the 

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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 25

Indian trust funds with the property would not be adequate 

in meeting our trust responsibilities.” J.A. 226. Second, 

“Collier’s debt was ‘nonrecourse,’” J.A. 66, such that when 

Collier defaulted, the Government was required to “solely 

resort to, and proceed in rem against” the security held by 

the Government, J.A. 471; see J.A. 350 (similar), 564 (similar). Accordingly, ITCA alleged that the Government has 

“failed to faithfully perform” its fiduciary duty. Navajo Nation II, 556 U.S. at 290. 

Turning to the second step of the Supreme Court’s jurisdictional test, we must determine whether the AFLEA 

“can be fairly interpreted as mandating compensation for 

the [G]overnment’s fiduciary wrongs[.]” Id. at 292 (internal quotation marks and citation omitted). Here, because 

the AFLEA “clearly establish[es] fiduciary obligations of 

the Government in the management” of the security to be 

held in trust, “[it] can fairly be interpreted as mandating 

compensation by the . . . Government for damages sustained” by ITCA. Mitchell, 463 U.S. at 226. Moreover, if 

ITCA is precluded from recovery for the Government’s 

breach of its fiduciary duty, the Government’s failure to 

timely provide information to ITCA has rendered “prospective equitable remedies . . . totally inadequate.” Id. at 227; 

see id. (“In addition, by the time government mismanagement becomes apparent, the damage to Indian resources 

may be so severe that a prospective remedy may be next to 

worthless.”); see also id. (“A trusteeship would mean little 

if the beneficiaries were required to supervise the day-today management of their estate by their trustee or else be 

precluded from recovery for mismanagement.”). Accordingly, the AFLEA “can be fairly interpreted as mandating 

compensation for the [G]overnment’s fiduciary wrongs[.]” 

Navajo Nation II, 556 U.S. at 292. 

Finally, because the Government failed to disclose to 

ITCA that Collier had defaulted and that Collier’s obligations were under collateralized until March 2013, J.A. 75; 

see Oral Arg. at 7:37–8:00, the statute of limitations did not 

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26 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES

commence to run against ITCA before that time, see Shoshone Indian Tribe, 364 F.3d at 1348.14 Thus, Claim I, 

originally filed in April 2015, J.A. 86, was brought well 

within the six-year statute of limitations on claims brought 

against the Government in the Court of Federal Claims, see 

28 U.S.C. § 2501. Indeed, the Court of Federal Claims 

agreed that “this portion of Claim I is not time barred.” Inter-Tribal Council of Ariz., 140 Fed. Cl. at 457; see id. (“As 

to th[at] portion of Claim I, that is ITCA’s claim that the 

[G]overnment breached its trust obligation by failing to ensure that Collier maintained sufficient collateral as required by the Deed of Trust when the collateral amount fell 

below 130[ percent] of the Release Level Amount when it 

released liens in 1998 and 2007 as well as when Collier defaulted in 2013, the [C]ourt [of Federal Claims] finds this 

portion of Claim I is not time barred[.]”). Accordingly, the 

portion of Claim I that arises from the Government’s alleged breach of its fiduciary duty to “hold in trust the security” against Collier’s payment obligations, see, e.g., 

J.A. 87–88, states a claim over which the Court of Federal 

Claims has jurisdiction, and upon which relief can be 

granted. We therefore find that the Court of Federal 

Claims erred in dismissing the failure-to-maintain-sufficient-security portion of Claim I of the Complaint. 

14 It is unclear from the record whether the letters 

provided to ITCA in March 2013, were sufficient to permit 

ITCA to “establish[] the deficit of the trust.” See Shoshone 

Indian Tribe, 364 F.3d at 1348. Thus, ITCA’s claim for 

breach of the Government’s fiduciary duty may have accrued at an even later date. Either way, ITCA filed the 

Complaint well within the statutory limitations period. 

J.A. 86. 

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B. The Government’s Alleged Failure to Ensure Adequate 

Security When it Negotiated the TFPA 

ITCA did not cite, and we have not found, support in 

the AFLEA, case law, or otherwise, for the proposition that 

the Government’s fiduciary duty to “hold in trust” the security against Collier’s payment obligations, imposes a concurrent duty on the Government to “negotiate terms in the 

TFPA and related documents to ensure adequate security” 

as ITCA alleged. J.A. 87. See generally Appellant’s Br. Regardless, the TFPA was executed, and ITCA was made 

aware of the TFPA’s terms, well before the six-year statute 

of limitations on claims brought against the Government 

in the Court of Federal Claims. J.A. 62, 67–68; see 28

U.S.C. § 2501; see also Hopeland Band of Pomo Indians v. 

United States, 855 F.2d 1573, 1576 (Fed. Cir. 1988) (explaining that § 2501 applies to “Indian tribes in the same 

manner as against any other litigant seeking legal redress 

or relief from the [G]overnment”). Accordingly, to the extent Claim I arises from the Government’s alleged failure 

to ensure adequate security when it negotiated the TFPA, 

the Court of Federal Claims properly dismissed Claim I of 

the Complaint. 

III. The Court of Federal Claims Properly Dismissed 

Claim II of the Complaint

The Court of Federal Claims dismissed Claim II of the

Complaint pursuant to Rule 12(b)(6) of the RCFC. See Inter-Tribal Council of Ariz., 140 Fed. Cl. at 457–58, 460. 

Specifically, the Court of Federal Claims found that the 

AFLEA “does not impose any obligation on the [G]overnment to make payments if Collier fails to make payments. . . . Therefore, [Claim II] must be dismissed for 

failure to state a claim upon which relief can be granted.” 

Id. at 458 (internal quotation marks, alterations, and citation omitted). ITCA contends, however, that the Court of 

Federal Claims “ignored the [AFLEA]’s mandates and 

erred under applicable case law . . . when it dismissed 

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28 INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES

ITCA’s claim for damages based upon the [Government’s] 

failure under the [AFLEA] to collect and pay all of the 

[AFLEA]’s required remaining annual payments and the 

full final payment after Collier’s default.” Appellant’s 

Br. 10. We disagree with ITCA. 

Claim II fails to state a claim upon which relief can be 

granted. Relevant to Claim II, ITCA contends that the 

AFLEA “required the [Government] to collect from Collier 

all Trust Fund Payments required under the [AFLEA], and 

that the [Government’s] failure to collect all of the payments is a breach of trust for which the [Government] is 

liable.” Appellant’s Br. 26 (emphasis omitted). Specifically, ITCA alleged in the Complaint, that the Government 

“has not collected [or made] . . . any Trust Fund Payments—annual or final—from Collier since 2011.” J.A. 74; 

see J.A. 89. However, ITCA did not cite, and we have not 

found, support in the AFLEA, case law, or otherwise, for 

the imposition of a duty consistent with this allegation. Instead, those portions of the AFLEA cited by ITCA for support, requiring, for example, that “[t]he Monetary Proceeds 

shall be paid to the [Government],” AFLEA § 403(a), impose, at most, a duty upon Collier, not the Government. In 

fact, § 403(c)(2) explicitly provides that the “Purchaser,” defined as “Collier,” id. § 401(16), “shall make” the requisite 

payments under the annual payment method.15 Moreover, 

ITCA’s reliance on Shoshone Indian Tribe to argue that despite “the lack of express collection duties,” “provisions 

mandating payments from third parties imply the 

[G]overnment’s collection duties,” Appellant’s Br. 28, is 

misplaced. Shoshone Indian Tribe concerned regulations 

15 During oral argument, ITCA acknowledged the 

lack of any explicit duty of the Government to collect Collier’s Trust Fund Payments in the AFLEA, arguing instead, that any such duty “would be . . . implicit.” Oral Arg. 

at 2:58–3:14. 

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INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 29

that required the “Government [to] collect[] . . . all payments[.]” 364 F.3d at 1350. No such requirement or obligation is present in this case. Accordingly, because 

Claim II fails to state a claim upon which relief can be 

granted, the Court of Federal Claims properly dismissed 

Claim II of the Complaint. 

CONCLUSION 

We have considered the parties’ remaining arguments 

and find them unpersuasive. Accordingly, the Partial Final Judgment of the U.S. Court of Federal Claims is 

AFFIRMED-IN-PART AND REVERSED-IN-PART 

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