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### SYLVAN GODFREY. 28 U.S.C. $ 1495 (Damages 

### for Unjust Conviction); 28 U.S.C. $ 25

### l3 (Claims Against the United States for Unjust Conviction); Breach 

### Of Settlement Agreement; 

### Fifth Amendment tothe United StatesConstitution: Rules 

### ofthe United States Court 

### of FederalClaims 

### ("RCFC") 

### l2(bxl ) (Subject Matter Jurisdiction); RCFC 12(bX6) (Failure to State a Claim UponWhich Relief Can Be Granted); RCFC 

### l5(a) (Amending Pleadings Before 

### Trial). Plaintiff,pro se,

:t*i.:t * * * * * * * * * * * * * * * * * 1.* * ,1.* ,** * * * :i* * * * * * {.* Sylvan 

### Godfrey, Marianna, Florida, Plaintiff, 

### pro se. 

### Courtney D. Enlow, United States Department

### of Justice, 

### Civil Division, Washington, D.C., Counsel for the Govemment. 

### MEMORANDUM OPINION AND ORDER 

### GRANTING-IN-PART AND DENYING-IN-PART THE GOVERNMENT'S 

### MOTION TO DISMISS BRADEN, ChiefJudge. 

# I. RELEVANTFACTUALBACKGROIJND.I Sylvan Godfrey 

### is a member 

### of the Sioux Indian 

### Tribe

### of South Dakota, serving a 365- month prison term atthe Federal Corrections Institute 

### ("FCI") in Marianna, 

### Florida. Compl. at 1. Before his imprisonment 

### in20l3, Mr. Godfrey was a

### plaintiff in a class action lawsuit captioned Cobell v. Salazar, United 

### District Court for the 

### District of Columbia, 

### Civil Action No. 96-1285.



## I The relevanl facts discussed 

### herein were derived 

### from 

### Plaintiffs August 

### 4, 2016 Complaint 

### ("Compl."). ECF 

### No. 1. 

# lfntbe @nrte! Statee"@ourt of

# feDersl 

# @[sgftp

Filed: March 

### 20,2017 MAR 2

### 0 2017

28

### u.s.c. g 14e1 

### (ruckerA+Eote3oo.'3t?fit Jurisdiction):

THE 

### I.]NITED STATES,

Defendant.



## ?01q

## ta00 0000 

## !013 h8l,rCompl. 

### at 1,

## 3. The history 

### of the Cobell 

### litigation has been summarized by the 

### United States

Court of Appeals for the 

### District of Columbia Circuit, as

### follows:



## [n 1996], 

### five named 

### plaintiffs ('Class Representatives') initiated a class action lawsuit [in the United States 

### District Court for the 

### District of Columbia,]

. . . seeking

### to compel

### the United States Department 

### of the Interior

### to perform a historical accounting 

### ofthe hundreds of 

### millions of doilars held bythe Department 

### in trust 

### for Native Americans. 

### That accounting was required 

### by the American 

### IndianTrust Fund Management 

### Reform

### Act

### of 1994, Pub.L. 

### No. 103412, 108 Stat. 

### 4239. 

### In 2001, [the United States 

### Court

### of Appeals

### for the District 

### of Columbia 

### Circuit held]

. . .that the Department had unreasonably and 

### unlawfully delayed that statutorily mandated 

### accounting. Cobell v. 

### Norton,240 F.3d 1081, 1105 

### (D.C. 

### Cir.

### 2001). Forthe 

### next decade, the parties,the 

### district court, and Congress 

### all struggled to determine how the Department could feasibly discharge its legal duty to conduct an accounting 

### ofthe hundredsof thousands 

### of'Individual Indian 

### Money' trust accounts under its control.

. . . [On December 

### 7,2009, the parties submitted to the United States 

### District Court for the 

### District of Columbia aproposed Class

### Action Settlement Agreement. Cobell v. Salazar, 

### Civil Action No.96-1258, ECF 

### No. 3660-2. Oneyear later, on December 8,2010, Congress enacted the Claims Resolution 

### Act, Pub.L. 

### No. 111- 

### 291,124 Stat. 3064 (2010), authorizing, 

### ratifring, and 

### confirming the proposed Settlement Agre ement, id. g 101(c)(1).1
Under the Settlement Agreement, each member 

### of what was known asthe 

### 'Historical Accounting Class' received $1,000 in lieu 

### ofan actual accounting.2

. . . 

### A separate class, 

### known as

### the'Trust Administration Class,'received a baseline payment 

### of $500 and aprorated share 

### of anyfunds 

### left over 

### in the settlement account after specified payments were made, including attomeys' fees and awards

2The December 

### 7,2009 Cobett SettlementAgreement provides: Historical Accounting Class means those individual Indian beneficiaries (exclusive ofthose who prior to the

### filing ofthe complaint on June 10,1996 hadfiled actions ontheir own behalf stating aclaimfor ahistorical accounting) alive on [September 30, 20091 andwho had an 

### [Individual Indian Money 

### (.IIM,)] Account[, pursuant 

### to 25 C.F.R. 115.002,1 open 

### during any period between October 

### 25, 1994 and [September 30, 2009], which 

### IIM Account had at least one cash transaction credited 

### to 

### it at any 

### time as 

### long as such credits were 

### not later 

### reversed. Beneficiaries deceased as

### of [September 

### 30, 20091 are included 

### in the 

### Historical Accountins Class only 

### if they had an 

### IIM Account that was open as 

### of [September 30,

### 2009f 

### The estate

## of any Historical Accounting 

### class Member 

## *ho di"r after the [September

### 30,2009] but before distribution is in the Historical Accounting class. Cobell v. Salazar, 

### Civil Action No.96-1258, ECF 

### No. 3660-2 atn

### A.16.

### tothe Class Representatives.

# r Id.

### at

### 914-15. In exchange, 

### all class members



### released

## the Department 

# of Interior 

## from liability arising 

## out

# of prior mismanagement oftheir trust accounts. 1d.

Co be l

### l v. Jew e

### ll, 802 F.3

### d 12, 

### l 6-17 (D.C. Ch. 201 5). 

# IL PROCEDURAL 

### IIISTORY.
On August

### 4,2016, 

### Mr. Godfrey 

### ("Plaintiff') filed a Complaint 

### ("Compl.") in the United States 

### Court 

## of Federal 

### Claims, alleging

### that the Govemment

### violated 

### his statutory and constitutional rights, as

### well as the terms of the December 

### 9,2009 Cobell Settlement Agreement. ECF 

### No. 

### 1. On the sameday, 

### Plaintifffiled a 

### Motion For Leave To Proceed 1n Forma Pauperis and aNotice Of 

### Directly Related Cases. ECF Nos. 2, 4. On September 

### 30,2016, the Government 

### filed a 

### Motion To Dismiss the August 

### 4,2016 Complaint 

### ("Gov't Mot."), pursuant 

### to Rules 

### of the 

### United States 

### Court 

### of Federal Claims 

### ('RCFC) 12(bX1) and 

### 12(b)(6). ECF 

### No.

## 8. Plaintiffs Response 

### to the September 

### 30,2016 Motion was due 

### by October

### 3I, 2016. But, weeks after the deadline, 

### Plaintiff failed to

### file any response or objection 

### with the

### court. Therefore, on December 2,2016,the court issued an Order, instructing 

### Plaintiffto show cause why this case should not be dismissed for failure to prosecute. ECF No. 9.
On December 19, 2016, 

### Plaintifffiled aMotion For Extension OfTime To File Opposition To Defendant's 

### Motion To Dismiss, To Amend 

### complaint, And For

### Third Party Representative ("P1. 

### Mot."). ECF 

### No. 10. On January 

### 3,2016,|he court granted 

### Plaintiff an enlargement oftime 

### to

### file a response to the Govemment's September 

### 30,2016 Motion To Dismiss, but did not rule on the 

### Plaintiff s December 19, 2016 Motion To Amend or Motion ForThird Party Representative. ECF 

### No. 1

### 1. On January 

### 4,2017, the Govemment 

### filed a Response to the pending December 19, 2016 

### Motions. ECF 

### No. 12.



## ' The December 7

### ,2009 Cobell SettlementAgreement provides:
Trust Administration Class shall mean those individual Indian beneficiaries (exclusive of persons who

### filed actions ontheir own behalf, or a group 

### of individuals who were certified as aclass in a class action, stating a Funds Administration Claim or a Land Administration Claim prior tothe

### filing of the Amended Complaint) alive as

### of [September 30, 2009] andwho have or had 

### IIM Accounts in the 'Electronic Ledger 

### Era' (currently available electronic data 

### in systems ofthe Department ofthe Interior dating from approximately 1985 tothe present), as

### well as individual Indians who, as

### of [September 30, 2009], had a recorded or other demonstrable ownership interest in land held in trust or restricted status, regardless of the existence

### ofan 

### IIM Account and resardless

### of the proceeds, 

### ifany, generated from the Land.
Cobell v. Salazar, 

### Civil Action No .96-1258, ECF 

### No. 3660-2 

### atl A.35.On January 18,2017, 

### Plaintiff filed a 

### Motion To

### Alter Or Amend The December 19,2016

Judgment ("PI. Resp."), that the court considers a response tothe September30,2016 

### MotionTo 

### Dismiss. ECF 

### No. 14. Therein, 

### Plaintiff argued that: (1) another case pending before the United States Court 

### of Federal Claims, Redboy 

### v. United States, 

### No. 17-19, is "matedal 

### to 

### [Plaintiffs] ability to statethe

### jurisdiction 

### ofthis court;" (2) the record reflects 

### Plaintiffs effort to oppose the Govemment's Motion To Dismiss; and (3) 

### Plaintiff"lacks the 

### ability to pursue his rights as a

### truly 

### pro se

### litigant," because the 

### staff at FCl-Marianna deprived 

### Victor Fourstar, 

### Plaintiffs "thirdparty representative," 

### ofhis legal

### files. Pl. Resp. at 2. 

# III. DISCUSSION. 

# A. Relevant 

### Legal Standards. 

# 1. Jurisdiction.
The United States Court of Federal Claims has

### jurisdiction under theTucker Act, 28 U.S.C. 

### $ 1491, 

### "to render judgment upon any 

### claim against the 

### United States founded either upon the 

### constitution, or any

### Act of congress 

### or any regulation 

### of an executive department, or upon any express or 

### implied contract 

### with the United States, or

### for liquidated or unliquidated damages 

### in cases not sounding in

### tort." 28

### u.s.c. $ 

### 1a91(a)(l). The Tucker AcL however, is 

### "ajurisdictional statute; 

### it does not create any substantive 

### right enforceable againstthe 

### United States

### for money damages.



### . 

### .

# . [T]he 

### Act merely confers

### jurisdiction upon [the 

### United States 

### Court

### of Federal 

### claims] whenever the substantive right 

### exists." united states v.

### Testan,424IJ.s.3g2,3gs (1976).
To pursue a substantive right undertheTucker

### Act, a

### plaintiff must identifu and plead an independent contractual relationship, constitutional 

### provision, federal statute and./or executive agency regulation that provides a substantive right to money damages. See Todd v. United States, 386 F'3d 1091, 1094 (Fed. Cir. 2004) 

### ("[J]urisdiction under the Tucker Act requires the litigant to identifu asubstantive right for money damages against the United States separite from the Tucker 

### Act[.]"); see also Fisher 

### v. United States, 402 F .3d, 1167, 1172 (Fed.

### Cir. 2005) (en banc) 

### (,,T\e 

### TuckerAct... does not create asubstaltive cause 

### ofaction;



## ... a

### plaintiff must 

### identiff aseparate source

### of substantive 

### law that creates the 

### right to money damages.



### . .

# . [T]hat souice must be 

### 'money-mandating."'). Specifically, a 

### plaintiff must demonstrate thatthe source 

### of substantive 

### law upon

### which he relies "can 

### fairly be interpreted as mandating compensation 

### by the Federal 

### Govemment[.]" Testan, 424 U.S. 

### at

### 400. And, the 

### plaintiff bears 

### the burden

### oi establishing 

### jurisdiction by a preponderance 

### ofthe evidence. see Reynolds v.

### Army &

### Air Force Exch. serv., 

### 846F.2d,746,748 (Fed. 

### Cir. 1988) 

### ("[O]nce the 

### [trial] court's subject matter

### jurisdiction [is] put 

### in question

. .

### . [the 

### plaintiff] bearsthe burden 

### of establishing subject 

### mattirjurisdiction by a preponderance ofthe evidence."). 

# 2. Standing.
Constitutional standing is afundamental

### jurisdictional consideration. See Glassv. (Jnited 

### states,258F.3d 1349, 1355 (Fed.

### cir. 2001) ("The 

### united states constitution limits iudicial oower 

### to the resolution 

### of actual 'cases' 

### or 'controversies.

### "'); see 

### also Myers 

### Investigitive 

### And sec. servs., 

### Inc.v. united states,275 F.3d 1366, 1369 

### (Fed.

### cir.2002) ("tsltanding is a threshold 

### jurisdictional issue."). Although the constitutional standing requirementi are derived from

### Article

### III ofthe United States Constitution, those requirements apply to the United States Court ofFederal



### Clains. See

### Andersonv. United 

### States,344F.3d 1343, 1350 n.1 (Fed. 

### Cir.2003) ("The Court 

### of Federal Claims, though an

### Article I court,

. . .appliesthe same standing requirements enforced 

### by otherfederal courts created under

### Article 

### III.").
To establish standing, a

### plaintiffmust show that heor she suffered, "an 

### injury-in-fact that 

### is both

### fairly traceable 

### to the challenged conduct 

### of the defendant and 

### likely redressable 

### by a favorable 

### judicial decision." Figueroa 

### v. United States,466 

### F.3d 1023, 1029 (Fed. 

### Cir. 2006). 

### The party invokingjurisdiction, bears

### the burden 

### of establishing constitutional 

### standing. See Myers Investigative,2T5 F.3d at 1369 

### ("[T]he party invoking federal 

### jurisdiction bears the burden of establishing 

### [its] elements.") (crtingLujan v. Defenders 

### ofWildlife,504U.S.555, 561, 

### (1992). 

# 3. Standard 

### Of Review 

### For 

### A Motion To Dismiss, 

### PursuantTo RCFC 12(bXt). 

### A challengeto the United States Court 

### ofFederal Claims' "general power to adjudicate 

### in specific areas 

### of substantive 

### law



# . is properly raised 

### by [an 

### RCFC] 

### l2(bx1) motion[.],, Palmerv. United States,168 F.3d 1310, 1313 (Fed. 

### Cir. 1999); see a/so RCFC 

### 12(b)(t) (,,Every defenseto aclaim for 

### relief in any pleading must be asserted in the responsive pleading.

. .

## . But a party may assertthe

### following defenses by 

### motion: (1) lack 

### of subject-matter

### jurisdiction[.]"). When considering whether

### to dismiss an action 

### for lack 

### of subject matter

### jurisdiction, "a court must accept astrue all undisputed facts asserted in the

### plaintiff scomplaint and draw all reasonable inferences 

### in favorof the

### plaintiff." Trusted 

### Integration, Inc. 

### v. united states, 659 F.3d 1159, 1163 (Fed. Cir. 2011). 

# 4. Standard

### Of Review 

### For

### A Motion To Dismiss, 

### pursuant 

### To RCFC 12(bX6). 

### A claim is subject to dismissal under RCFC 12(bX6), 

### if it does not provide a basisfor the court

### to grant 

### relief. see 

### Bell

### Atl. Corp.v. Twombly,550 

## u.s. 544, 555-56 (2007) 

### (.,[A weltpleaded 

### complaintl requires more than labels and conclusions, andaformulaic recitation 

### of the elements

### of a cause

### of action 

### will not

### do. Factual allegations must be enoughto raise a 

### right

### of relief abovethe speculative level, on the assumption that 

### all the allegations 

### in the complaint are true (even 

### if doubtful in

### fact)." (intemal citations omitted)); see a/s o Lindsay v. United siates,295 F.3d 1252,1257 (Fed. Cir.2002) 

### ("A motion to dismiss

. . .for failureto state aclaim uponwhich 

### reliefcan be granted is appropriate when thefacts asserted by the claimant do not entitie him to a legal remedy."). 

### A complaint must "contain sufficient factual matter, accepted astrue, 

### to 'state aclaim to relief that is plausible on its

### face."'Ashnofr v.

### Iqbal,556u.s.66t,679 (2009) 

### (quotingTwombly, 550 U.S. at

### 570). The allegations contained 

### in a complaint also must indicate

### to the court that there 

### is "more thana sheer 

### possibility that a defendant has acted 

### unlawfirlly. 1d. ..Threadbare recitals 

### of the elements 

### of a cause 

### of action, supported 

### by mere conclusory statements,do not 

### suffice." 1d. To determine whether a complaint states a plausible 

### claim

### foi relief, acoun musr engage 

### in a context-specific analysis and 

### "draw on its

### judicial experience and common sense.,'Id.

### at678-79. The court, however, must construe the allegations of the complaint in the light most

favorable to the 

### plaintiff. See Henlwv. United States, 60 F.3d 795, 797 (Fed. 

### Cir. 1995).



# 5. Standard Of Review 

### For Pra Se

### Litigants.
Pro se 

### plaintiffs' pleadings are held 

### to a less stringent standard thanthose 

### of litigants represented

### by counsel. See Haines 

### v. 

### Kerner,404 U.S. 519,520 (1972) 

### (holding that 

### pro se complaints, 

### "however 

### inartfully pleaded," are 

### held

### to "less stringent standards 

### than formal pleadings drafted 

### by 

### lawyers"). The court

### traditionally examines the record 

### "to see

## if [apro se] 

### plaintiff has a cause

### of action somewhere 

### displayed." Ruderer

### v. United States, 412 F.2d 1285, 1292 (Ct. 

### Cl. 1969). Nevertheless, 

### while the court may excuse ambiguities in a

### pro se

### plaintiff s complaint, the court "does not excuse [a

### complainfs] 

### failures." Henke,60 F.3d 

### at799. 

# B, The 

### Government's September 30, 2016 

### Motion To Dismiss, 

### Pursuant To RCFC 12@Xr) 

### and 12(b)(6). 

# 1. The 

### Government's 

### Argument.
The Govemment reads theAugust 4, 2016 Complaint to raise three claims:



# . wrongful imprisonment, inviolation ofthe 1868 Fort Laramie Treaty's .,Bad Men,, Clause 

### (Gov't Mot. at2);



# . wrongful 

### civil commitment 

### in violation 

### of the Fourth, 

### Fifth, Sixth, Eighth and Fourteenth Amendments to the United StatesConstitution 

### (Gov't Mot. at2): and 

# o breach of the December 

### 7,2009 Cobell SettlementAgreement 

### (Gov't Mot. at2). 

# z. Regarding 

## The August

# 4, 2016 Complaint's Wrongful Imprisonment Claim.
The Govemment arguesthat the court does not have

### jurisdiction to review the decisions

### of adistrict cou-rt. 

### cov't Mot. at

### 4. Therefore, tothe extent the Augusr 

### 4.2016 Complaint raises a collateral attack on PlaintifPs conviction, the court does not have

### jurisdiction to adjudicate that 

### claim. Gov't Mot. at 4. 

### In addition, the Govemment argues that a money damages claim for 

### wrongful conviction, 

### filed under 28

### u.s.c. g 14954 and28

### u.s.c. $ 2513,5 must allegethat

### plaintiff sconviction has

4 

### "The United States Court 

### of Federal Claims shall have

### jurisdiction to render judgment upon any

### claimfor damages 

### by any person 

### unjustly convicted 

### of an offense againstthe United States and 

### imprisoned." 28 U.S.C. g 1495.

5

### Title 28 U.S.C. $ 2513, provides: (a)

### Any person suing under section 1495

### ofthis title must allege and prove that:been reversedor set aside on the ground that he is not

### guilty or at new 

### trial or rehearing he was

found not 

### guilty, or that he has been pardoned upon the stated ground 

### of innocence. 

### Gov't Mot. at

### 4. But, the wrongful conviction claim setforth in theAugust 4, 2016 Complaint does not make any of theseallegations. 

### Gov't Mot. at 4. Likewise, the court does not have

### jurisdiction to adjudicate the August 4,2016 Complaint's 

### claim that 

### Plaintiffs wrongful convictionviolated 

### the 1868 

### Fort Laramie Treaty's 

### "Bad Men" Clause, because 

### Plaintiff did not exhaust his administrative remedies 

### by

### firstfiling a claim 

### with the United States Department of 

### Interior. Gov't Mot. at4.



# b. Regarding 

### The August4, 2016 

### Complaint's

### Wrongful Civil Commitment Claim.
To the extent theAugust 4, 2016 Complaint raises a collateral attack on 

### Plaintiffs civil commitment, the court does not have

### jurisdiction to adjudicate that 

### claimfor the reasons stated 

### above. Gov't Mot. at

# 4. Moreover,

### the court does

### not have

### jurisdiction 

### to adjudicate the constitutional violations alleged 

### in the August

### 4, 2016 

### Complunt, becausethe Fourth, Sixth and Eighth Amendment, as

### well asthe Due Process Clauses of the 

### Fifth and Fourteenth Amendments are not money-mandating. 

### Gov't Mot. at 5.

(1) 

### His conviction has been reversed 

### or setaside on the ground that he 

### is not 

### guilty 

### ofthe offense ofwhich he was convicted, or on new

### trial or rehearing he wasfound not

### guilty of such offense, as appears

### from the record or certificate 

### of the court setting aside 

### or reversing such 

### conviction, 

### or that he has been pardoned upon the stated

### gound of innocence and unjust conviction and (2) He did not cornmit any of the acts charged or his acts, deeds, or omissions in connection 

### with such charge constituted nooffense against the United States, or any State, Territory or the District of Columbia, and hedid not by misconduct or neglect cause or bring about his own prosecution. (b) 

### Proofofthe requisite facts shall be by acertificate 

### ofthe court or pardonwherein such facts areallegedto appear, and other evidencethereof shall not be received. (c) No pardon or certified copy 

### ofa pardon shall be considered bythe United States 

### court ofFederal 

### claims unless 

### it contains recitals that the pardonwas granted after applicant had exhausted all recourse tothe courts andthat the time for any court to exercise its

### jurisdiction had expired.
28 U.S.C. g

### 2s13(a){c).

# c. Regarding 

### The August 

### 4, 2016 

### Complaint's Breach 

### Of The December 7,2009 Cobell Settlement 

### Agreement Claim.
The Government argues that the court does not have

### jurisdiction to adjudicate tort claims against the 

### United States, such asthe intentional poisoning 

### of the Sioux Indian Reservation's public drinking 

### water. Gov't Mot. at4.
The 

### Plaintiff also does not have standing to bring the claims relatedto the Govemment's use

### of Sioux Reservation lands, the 

### building of roads on the Sioux Reservation, and the alleged poisoning 

### of the Sioux Reservation's water system, because 

### Plaintiff does 

### not allege that any wrongdoing has occurred in alocation or in a manner that

### will affect his person or 

### property.

### Gov't Mot. at

## 6. In addition, 

### Plaintiff lacks standing 

### to pwsue claims

### for violations 

### of the Cobell Settlement Agreement, because that agreement provides for payment to a Native American tribe, notfor individual members. 

### Gov't Mot. at 6.
In the altemative, the August 4,2016Complaint failsto state aclaim upon which relief can be granted, pursuant to RCFC 12(bX6). 

### Gov'tMot. 

### at7. TheAugust4,20l6 Complaint does not 

### identi$ any statutory 

### or contractual 

### provision, 

### or condition 

### of the December 

### 7, 2009 Cobelt Settlement Agreement, that entitles 

### Plaintiff to more than 

### $880. Gov't Mot. at

### 8. Nor does the August 

### 4,2016 complaint 

### identifl any 

### provisionthat prohibits the Govemment

### from building roads on the Sioux Reservation. 

### Finally, the terms 

### ofthe Settlement Agreement state that class members, such as 

### Plaintiff, "shall be deemedto have released,waived and forever dischareed" the Government

### from land administration claims, such as rhe 

### clajm alleged 

### in rhe

### Augusl;. 2016 

### Complaint

### that 

### the Govemment 

### unlawfully 

### built roads 

### on the Sioux Reservation and./or appropriated the Reservation's natural resources. 

### Gov't Mot. at 9. 

# 2. PlaintifPsResponse.



### on January 18,2017, 

### Plaintiff filed a 

### Motion To

### Alter 

### or Amend 

### rhe December 

### 19,2016 Judgment, that the court considers 

### Plaintiff s Response tothe Govemment's September 

### 30,2016 

### Motion To 

### Dismiss. Therein, 

### Plaintiff respondsthatthe "record reflects 

### [Plaintiff s] efforts to oppose the defendant's motion to 

### dismiss[.]" pl. Resp. at

## 2. In addition, 

### plaintiff requested that 

### the court grant 

### him leave

### to amend 

### theAugust

### 4,

### 20i6 Complaint, because the related case, RedBoy 

### v. United States, 

### No. 17-19, is "material 

### to 

### [Plaintiffs] ability to statethe

### jurisdiction 

### of this

### court[.]" Pl. Resp. at 2.



# 3. The 

### Court's Resolution.
The court considers 

### Plaintiff sAugust

### 4,2016 complaint to allege that the Govemmenr: 

# r imprisoned 

### Plaintiff in breach ofthe I868 Fort Laramie Treaty's "Bad Men" clause (Compl. at 3); 

# o certified 

### Plaintiff 

### for

## civil commitment 

### in violation 

### of the Fourth, 

### Fifth, sixth, Eighth and Fourteenth Amendments to the United states 

### constitution 

### (comol. at 4):denied 

### Plaintiff economically viable use

### of Indian Land resources through 

### unfair 

### Iand purchasing 

### and escheatrnent 

## of "fractionated" 

### Indian Land allotments (Compl. at2); 

### built roads on 

### "Godfrey's Sioux Indian Reservation"

### without Just Compensation, 

### violating 25 U.S.C. $$318(a), 

### 323-25 andthe 

### Fifth Amendment 

### to the United States Constitution (Compl. at2); intentionally poisoned the 

### Sioux lndian Reservation's 

### public drinking water and falsely reported Uranium and Chlorine levels onthe Reservation (Compl. at

### 2-3); and 

# o failed to compensate 

### Plaintiff 

### fully as amember of the Historical Accounting Class in the December 

### 9,2009 Cobell SettlementAgreement (Compl. at 1-2). 

# a. Regarding

## The August

# 4, 2016 Complaint's Wrongful Conviction Claim.
The United states

### court of Federal 

### claims has 

### "jurisdiction to renderjudgment upon any claim 

### for damages by any person unjustly convicted

### ofan offense against the United States and 

### imprisoned." 28 U.S.C. g 1495. But, 

### [a]ny person 

### suing under 

### section 1495

### of this

### title must allege 

### that



## . . 

## . [h]is conviction has been reversed or set aside onthe ground that he is not

### guilty of the offense 

### of which hewas convicted or on new 

### trial or rehearing hewasfound not 

### guilty ofsuch offense, as appears from the record or certificate 

### ofthe court settins aside or reversing such conviction, or that he has been pardoned uponthe statei ground ofinnocence and unjust conviction.
28 

### u.S.C. $

### 2s13(a)(l).

The August 4, 2016 Complaint does not allege that 

### Plaintiffs conviction was reversed, set aside, or 

### pardoned. Therefbre, to

### the extentthat theAugust 

### 4,2016 complaint claims money damages for an unjust conviction, t}le court does not have

### jurisdiction to adjudicate that claim. In addition, the court does not havejurisdiction to adjudicate alleged violations 

### ofthe 1868 

### Fort Laramie 

### Treaty's 

### "Bad 

### Men" clause, unless 

### plaintiff has exhausted 

## his available administrative remedies before the United States Department of Inte 

### rior. See 

### Elkv. Ilnited States, 

### 70 Fed.

## cl. 405,407 (2006) 

### ('As a condition

### to receiving reimbursement, 

### the [Fort Laramie] Treaty 

### plainly requires that 

### 'proof [be] made tothe agent andforwarded to the Commissioner 

### of Indian

### Affairs atwashington 

### city."'(quoting Fort LaramieTreaty 

### of 1g6g, art. 

### L, 15 Stat. 635)). The August 4, 2016Complaint, however, does not allege that 

### Plaintiffhas filed any claimwith the 

### Interior Department. Therefore,

### to the extent that the 

### August 4, 2016 

### complaint alleges that 

### Plaintiffs imprisonmentviolatedthe Fort LaramieTreaty, the court does not have iurisdiction to adjudicate that claim.

# b. Regarding 

### The August 

### 4, 2016 

### Complaint's

### Wrongful Civil Commitment Claim.
TheAugust 

### 4, 2016 Complaint alleges 

### that 

### Plaintiff was

### wrongfully certified 

### for 

### civil commitment 

### in violation of the Fourth, 

### Fifth, Sixth, Eighth and Fourteenth Amendments 

### to the United States 

### Constitution. Compl. at

### 4. But, the Fourth, Sixth and Eighth Amendments, and the Due Process Clauses

### of the 

### Fifth and Fourteenth Amendments axe 

### not money 

### mandating. See Trafuy v. United States,so3 F.3d 1339, 1340 (Fed. Cir. 2007) 

### ('[T]he Eighth Amendment is not a 'money-mandating' 

### provision[.]"); see also Brown 

### v. United States,105 F.3d 621,623 (Fed. Cir. 1997) 

### ("[T]he Fourth Amendment does not mandate the payment

### of money 

### for itsviolation."); Leblanc 

### v. United States, 50 

### F.3d 1025, 1028 (Fed. 

### Cir. 1995) 

### (holding that the 

### Due Process Clauses 

### of the 

### Fifth and Fourteenth Amendments are 

### not 

### "a sufficient basis 

### forjurisdiction[,] becausethey do not mandate payment by the Govemment"); 

### Milas v. United States,42Fed,. 

### Cl. 704,710 (1999) 

### ('[The] Sixth Amendment[] 

### [is] not money mandating[.]"), 

### affd 217 F.3d 854 (Fed. 

### Cir. 1999). Therefore, the court does not have

### jurisdiction to adjudicate theAugust 

### 4,2016 Complaint's wrongful 

### civil commitment claims.



# c. Regarding The August 4, 2016 

### Complaint's Escheatment 

### And Unfair Purchase-Price 

### Claim. 

### The August 

## 4, 2016 

### complaint alleges

### that 

### the Govemment denied 

### plaintiff "all economically viable use 

### [ofl Indian land resources and enjoyment 

### of Indian land on a long term basis through 

### unfair land purchasing compensation and escheatment 

### of fractionated Indian land 

### allotments[.]" compl. at

### 2. "In determining whether the [court] has

### jurisdiction, [the court must determine] that 

### the [relevantj claim is founded upon a money-mandating sowce 

### and [that] the 

### plaintiffhas made anonfrivolous allegation that it iswithin the class 

### ofplaintiffs entitled to recover under the money-mandating source." Jan's Helicopter sem., Inc. v. 

### F.A.A.,525 F.3d 

### l2gg,13og (Fed. 

## cir. 2008) (emphasis 

### added). Although the Takings clause 

### is money-mandating, .,[a] claimant undertheTakings clause must show thatthe governrnent, by some specific action, took a private property interest 

### for a public usewithout 

### just compensation." Adams 

### v. united states, 391 F.3d 1212, 1218 (Fed.

### cir. 2004); seeatso wyatt v. IJnited

### states,2Tl F.3d 1090, 1096 (Fed. Cir. 2001) 

### ("lt isaxiomatic that only persons 

### with avalid property interest atthetime 

### ofthe taking are entitled 

### to compensation."). The August 

### 4, 2016 

### complaint, however, does not allege 

### thit Plaintiff had apersonal property interest in the "Indian land" that escheatedtothe Government or the Govemment purchased at an unfair price. 

### In addition, 

### Plaintiff does 

### not have standing

### to assert 

### atakings claims based 

### on the escheatrnent and 

### unfair purchase-price 

### of "lndian 

### land."At a 

### minimum, standing requires the 

### plaintiff 

## to suffer 

### "an invasion 

## of a legally protected 

### interest

### which 

## is



# . .

### ioncrete and 

### particularized." 

### Lujan, 504 U.S. at

### 560. Accordingly, 

### in Fifth Amendment takings claims, the court must determinewhetherthe claimant has established aproperty interest as a

### thrishold maner. see Am. Pelagic 

### Fishing co., L.p. v. 

### united states,3Tg F.3d, 1363, 1372 (Fed.

### cir. 200a). 

### (.,[A]s a threshold matter, 

### the court must determinewhether 

### the claimant has established 

### a DroDerry interest lor purposes 

### of the 

### Fifth Amendment.''). The August 4. 2016

### complaint does not ailege that 

### Plaintiff had any

### valid real property interest 

### in the 

### "Indian land,' 

### at 

### issue. Therefore, the August 4, 2016 Complaint hasfailed to allege an "invasion to a legally protected interest', that is particularized.



### l0

# d. Regarding The 

### August 4, 2016 

### Complaint's Road 

### Construction And 

### Right-Of-Way Claim. 

### "In determining whether the [court] has

### jurisdiction, [the court must determine]that the [relevant] 

### claim is founded upon a money-mandating sowce and 

### [that] the 

### plaintiff has made a nonfrivolous allegation that 

### it is

### within the class of 

### plaintiffs entitled to recover under the moneymandating 

### source." Jan's Helicopter 

### Serv.,525 F.3d 

### at 1309 (emphasis

### added). The August 4, 2016 Complaint alleges that the Government 

### built roads on Sioux Indian Reservation without Just Compensation 

### in violation of the 

### Fifth Amendment's Takings Clause and 25 U.S.C. $$ 318(a), 

### 323-25. Compl at

### 2. These provisions are money-mandating. See

### Jan's Helicopter 

### Serv.,525 F.3d

### at 1309 

### ("[T]he Takings Clause 

### is a money-mandating source

### for purposes

### of Tucker

### Act jurisdiction."); see also 25 U.S.C. $ 325 

### ('No grant 

### of a 

### righrof-way shall be made without the payment 

### of such compensation asthe Secretary of the Interior shall determine to be

### just."). But, these provisions only compensate individuals 

### with a private property interest 

### in land. See 

### ll'yatt, 271 F.3d at 1096 

### ("It is axiomatic that only persons 

### with avalid property interest atthe time of the taking are entitled to compensation."); see also 25 U.S.C. $ 325 ("The compensation received on behalf

### of the 

### Indian owners shall be disposed 

### of under rules and regulations 

### to be prescribed by the Secretary 

### ofthe Interior." (emphasis added)). The

### August4,2016 Complaint does not allege that 

### Plaintiffhad avalid real property interest 

### in any ofthe Sioux land onwhich the Govemment allegedly 

### built roads and 

### right-of-ways. Therefore, the August 4, 2016 

### complaint failedto allege that 

### Plaintiff is

### within apotential class 

### ofindividuals entitled to recover under the Takinss Clause or 25 U.S.C. $$ 318(a), 323--25. 

### In addition, 

### for the reasons stated above, theAugust 4, 2016 Complaint does not allege sufficient facts

### to establish that 

### Plaintiff hasstanding 

### to assert a 

### Fifth Amendment takings claim based 

### on the Govemment's construction

## of roads 

### and right-of-ways 

### on the sioux Indian Reservation. 

# e. Regarding 

## The August

## 4, 2016 Comptaint's Intentional Poisoning 

### Of The Sioux Reservation 

### Drinking Water.
The United States Court 

### of Federal Claims does not have

### jurisdiction to adjudicate cases sounding 

### in

### tort. ,See28 

### u.s.c. g 1491(a)(1) 

### ("The United states 

### courr of Federal 

### claims shall have

### jurisdiction to renderjudgment upon any claim against the United States founded either upon the 

### constitution, or any

### Act of congress or any regulation 

### ofan executive department, 

### or upon any express or implied contract 

### with the United States, or for iiquidated or unliquidated damages in cases not sounding in

### tort." (emphasis added)); seealso Keene Corp. v. [Jnited stales, 50g 

### U.s. 200, 214 (1993) 

### ("[T]ort cases axeoutside the

### jurisdiction 

### of the

### court of Federal 

### claims."). Whether an action sounds in tort is determined bythe character ofthe underlying dispute, not by the nomenclature chosen bythe parries. see Brazos Elec. Power co-op., Inc. v. 

### united States, 144 F.3d 784, 787 (Fed.

## cir. 1998) 

### ("[w]e customarily 

### look to the substance 

### ofthe pleadings rather thantheir

### form."). 

### In this case, the August 

### 4,2016 Complaint alleges that the 

### United States intentionally poisonedthe Sioux Reservation's public drinking water, 

### but a

### "civil wrong arising from exposure to a

### toxic substance" sounds in

### tort. ,See Toxic Tort, BLAcK's LAw DrcrroNARy (10th ed.2014); see also Tort, BLACK's LAw DrcrroNARy (1Oth ed.2014) (explaining that atort is

### a'.civil wrong,


## llother than breach ofcontract, for which a remedy may be obtained" and that atypical tort involves

an "intentional act resulting 

### in 

### harm"). Therefore, the court has determined that 

### it does not have 

### jurisdiction to adjudicate the claim alleged in theAugust

### 4,2016 Complaint thatthe Govemment intentionally poisoned the Sioux Reservation's public drinking water.



# f. Regarding 

### The August 

### 4, 2006 

### Complaint's Breach 

## Of The December 9, 2009 Cobell Settlement Agreement 

### Claim. 

### "[W]hen a breach 

### of contract 

### claim 

### is brought 

### in the [United States] 

### Court 

### of Federal Claims under the Tucker Act, the 

### plaintiff comes armed with the presumption that money damages are available, so that normally no further 

### inquiry is 

### required." Holmes v. United States,657 F.3d 1303, 1314 (Fed. 

### Cir. 2011). Because 

### "it is axiomatic that a settlement agreement is acontract," the presumption 

### ofTucker Act

### jurisdiction also applies to claims alleging a breach 

### ofa settlement agreement. See 

### Grecov. Dep't of the

### Arny,852F.2d 558,560 (Fed. 

### Cir. 1988). That is 

### notto say, that the 

### United States

### Court

### of Federal Claims has

### jurisdiction 

### to adjudicate every claim alleging such a breach. See Rick's Mushroom Service, Inc.

### v. United 

### States,52l F.3d 1338, 1343 (Fed. Cir. 2008) ("The govemment's consent to suit under the Tucker Act does not extend to every contract [or settlement agreement]."). The key element iswhetherthe settlement agreement 

### "could fairly be interpreted as contemplating money damages." Holmes,657 F.3d at 1315.
The December 

### 9,2009 Cobell Settlement Agreement provides that, ,,each member of the Historical Accounting class shall be paid aper capita amount 

### of $1,000.00 after Final Approval. This

### will be a per-person, not a per-account, 

### payment." Cobell v. Salazar, 

### Civil Action No. 96- 1258, ECF 

### No. 3660-2 at

### fl E.3a. The August 

### 4, 2016 

### complaint allegesthatthe Govemment breached these terms, because 

### Plaintiff is a member of the Historical Accounting Class, butonly received

### $880. Compl. 

### at 

## 1-2. Under these circumstances, the court has determined that the December

### 9,2009 Cobell Settlement Agreement 

### could 

### fairly be interpreted as contemplating 

### money damages

## in the event

### thatthe Government 

### underpaid

### a member

## of the Historical Accounting Class.


### The Government argues 

### that 

### Plaintiff "does 

### not identifr any statutory 

### or contractual provision, 

### or condition 

### of the settlement agreement,that entitled 

### him to more thanthe $gg0 he allegedly 

### received." 

### Gov't Mot. at

## 8. But, 

### this argument is

### without merit on 

### its

### face. Plaintiff alleges that he is a member 

### of the Historical Accounting Class and the December 

### 9,2009 Cobelt Settlement Agreement unambiguously entitles members

### of that class 

### to $1,000 

### in compensation. $ 120 more than the $880 

### Plaintiff allegedly received. 

# c. Plaintiffs December 19' 2016 

### Motion To 

### Amend 

### complaint And Motion For 

### Third Party Representative.
Under 

### RCFC l5(a)(1), a party may amend a pleading once as a matter 

### of course, 

### within twenty-one days after service

### ofa motion, pursuant to RCFC 

### l2(b). "In all other cases [however] a 

### party may amend 

### its pleading 

### onlywith the opposing 

### party's written consent 

### or the court's 

### feave." RCFC 

### 15(a\2). Inthis case, 

### Plaintiff s December 19,2016 

### MotionTo Amend was

### filed eighty daysafterthe Govemment's september 

### 30,2016 Motion To Dismiss, 

### pusuant to RCFC 

### 12(bxl) and 

### 12(b)(6). Therefore, 

### Plaintiff may amend the August 4, 2016 

### complaint only

### with

t2the opposing party's written consent or the court's leave. See RCFC 15(a)(2). On January 

### 4,2017,

the Govemment 

### filed anoppositiontothe December 19,2016 

### Motion To Amend. Of course RCFC 15(a)(2) statesthat, 

### "[t]he court should freely give leave [to amend]when 

### justice so 

### requires." But, the court may exercise its discretion to deny leave, 

### if it finds evidence 

### of "undue delay, bad

### faith or 

### dilatory motive on the part 

### of the movant, repeated failure 

### to cure deficiencies by amendments previously allowed, undue prejudice tothe opposing party by virtue of allowance of the amendment, 

### [or]

### futility of amendment." Foman v. 

### Davis,371U.S. 178, 182 

### (1962). "When a 

### party faces the 

### possibility 

### of being denied leave

### to amend on the ground

### of futility, that party must

. . .proffer sufficient facts supporting the amended pleading that the claim 

### could survive 

### a dispositive 

### pretrial 

### motion." Kemin Foods, 

### L.C. v. Pigmentos Vegetales 

### Del centro s.A. de 

### C.v.,464 F.3d 1339, 1354-55 (Fed. 

### Cir.2006). 

### Plaintiff s December 19,2016 

### Motion To Amend states that,
the herein facts support 

### [] a prima facie case

### for the

### jurisdiction 

### of this court by South Dakota Sioux Chad S.Two 

### Hearts. In 

### light of [Plaintiff s] owning allottee shares 

### in Indian Land onthe Standing Rock Indian Reservation 

### in North Dakota 

### for which he 

### is also being exploited as a Native American through the Cobelt v. Jewell 

### lndian Trust settlement, 

### [Plaintiff] asserts that 

### it is proper

### for the court to 

### allow [Plaintiff] to amend his complaint. 

### Pl. Mot. at 3.
The December 19,2016 

### Motion, however, does not cure any

### of the

### jurisdictional defects in the August 4, 2016 

### Complaint. Whether the court has

### jurisdiction to adjudicate the claims 

### in a Complaint filed by 

### Mr. Two Hearts does not affect whether the court has

### jurisdiction to adjudicate the claims alleged in the August 4, 2016 

### Complaint. Similarly, 

### Plaintiff sallegation that ire owns land 

### in North Dakota, does not affect the court's 

### jurisdiction to adjudicate 

## tle August 

### 4, 2016 

### complaint's taking and 28

### u.s.c. $$ 31s(a), 

### 32315 claims, that are based on the Govemment,s alleged conduct regarding the Sioux Indian Reservation 

### in South Dakota. For these reasons,the amendments proposed in the December 19,2016 

### Motion would not survive amotion to dismiss, pwsuant to RCFC 12(bX1). Therefore, the court has determinedthat amending theAugust 4, 2016 Complaint would befutile. 

# D. Plaintiffs December 19,2016 

### Motion f,'or

### Third party Representative. RCFC 83.1(a)(3) states that, 

### "[a]n individual who is not an attomey may represent oneself 

### or a member 

### of one's immediate

### family, but may not represent a corporation, an entity, 

### or any other person 

### in any proceeding before this 

### court." In the Decembe 

## r 19,2016 

### Motion 

## ior 'I.hird Party Representative, 

### Plaintiff requests that the court appoint 

### Victor Fourstar a his legal counsel. Pl. 

### Mot.

## at2. The December 19,2016 

### Motion, however, does 

### not allege that 

### Mr. Fourstar 

### is a licensed attorney, nor that he is a member of 

### plaintiff s immediate 

### family. Indeed, t11e December 19,2016 

### Motion advises the court that 

### Mr. Fourstar might enroll 

### in law 

### ichool after he is released from prison on December

### 9,2016. 

### Pl.Mot.at3. For these reasons,

### plainti{f s December. 192016 

### Motion For Third Party Representative is denied.

l3

# ry. CONCLUSION.
For these reasons, the Government's September 30, 2016 

### Motion To Dismiss, pursuant to 

### RCFC 12(bX1) and 

### RCFC 12(bX6), 

### is granted 

### with regard 

### to the August 

### 4,2016 Complaint's claims, allegingthatthe Government:



# . wrongfully imprisoned 

### Plaintiff in breach of the 1868 Fort Laramie Treaty's 

### "Bad Men" Clause (Compl. at 3); 

# o certified 

### Plaintiff 

### for Civil Commitnent 

### in violation 

### of the Fourth, 

### Fifth, Sixth, Eighth and Fourteenth Amendments tothe 

### United States Constitution (Compl. at 4); 

# o denied 

### Plaintiff economically viable use

### of Indian Land resources through 

### unfair 

### land purchasing 

### and escheafinent

## of "fractionated" 

### Indian Land allotments (Compl. at 2);



# . built roads on 

### "Godfrey's Sioux Indian Reservation"

### without Just Compensation, 

### violating 25 U.S.C. $$ 318(a), 

### 323-25 and

### the 

### Fifth Amendment 

### to the United States Constitution (Compl. at 2); and



# . intentionally poisoned the 

### Sioux Indian Reservation's 

### public drinking water and falsely reported Uranium and Chlorine level on the Reservation (Compl. at

### 2-3).
The Govemment's September 

### 30,2016 Motion To Dismiss, pursuant 

### to RCFC 12(bX1) and RCFC 12(bX6), is denied 

### with regardto the August

### 4,2016 Complaint's claim, alleging that the Govemment 

### failed

### to compensate 

### Plaintiff 

### fully as a member 

### of the 

### Historical Accounting Class in the Cobell Setllement Agreement. Compl. at 1-2. 

### Plaintiff

## s December 

### 19. 2016 Motion Representative aredenied. 

### IT IS SO

### ORDERED. 

## To Amend and 

### Motion 

### For Third Party

t4