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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 to the United

States Constitution:

Rules ofthe United States Court of

Federal Claims ("RCFC")

l2(bxl ) (Subject Matter

Jurisdiction);

RCFC 12(bX6) (Failure to State a

Claim Upon Which 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 at the 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,r
Compl. 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 by the Department

in trust for Native Americans. That accounting was required by the American

Indian Trust 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). For the 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 hundreds of 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 a proposed Class Action Settlement Agreement.

Cobell v. Salazar, Civil Action No.96-1258, ECF No. 3660-2. One year 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 as the

'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 a prorated share of any funds left over in the settlement

account after specified payments were made, including attomeys' fees and awards

2 The December 7,2009 Cobett Settlement Agreement provides:

Historical Accounting Class means those individual Indian beneficiaries (exclusive

ofthose who prior to the filing ofthe complaint on June 10,1996 had filed actions

on their own behalf stating a claim for a historical accounting) alive on [September

30, 20091 and who 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.
to the Class Representatives. r Id. at 914-15. In exchange, all class members

released the Department of Interior from liability arising out of prior

mismanagement of their 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 same day, Plaintifffiled a Motion For Leave To Proceed 1n Forma Pauperis

and a Notice 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 a Motion For Extension Of Time 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 of time

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 For Third 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 Settlement Agreement provides:

Trust Administration Class shall mean those individual Indian beneficiaries

(exclusive of persons who filed actions on their own behalf, or a group of

individuals who were certified as a class in a class action, stating a Funds

Administration Claim or a Land Administration Claim prior to the filing of the

Amended Complaint) alive as of [September 30, 2009] and who have or had IIM

Accounts in the 'Electronic Ledger Era' (currently available electronic data in

systems of the Department of the Interior dating from approximately 1985 to the

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 to the September 30,2016 Motion To

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 state the 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 the Tucker 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 against the 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 under the Tucker 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 a substantive 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 a substaltive cause ofaction; ... a plaintiff must identiff a separate

source of substantive law that creates the right to money damages. . . . [T]hat souice must be

'money-mandating."'). Specifically, a plaintiff must demonstrate that the 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] bears the burden of establishing subject mattir jurisdiction by a

preponderance of the evidence.").

2. Standing.

Constitutional standing is a fundamental jurisdictional consideration. See Glass v. (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, . . . applies the same standing requirements enforced by

other federal courts created under Article III.").

To establish standing, a plaintiffmust show that he or 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 invoking jurisdiction, 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.") (crting Lujan v. Defenders of Wildlife,504U.S.555, 561, (1992).

3. Standard Of Review For A Motion To Dismiss, Pursuant To RCFC

12(bXt).

A challenge to 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[.],,

Palmer v. United States,168 F.3d 1310, 1313 (Fed. Cir. 1999); see a/so RCFC 12(b)(t) (,,Every

defense to a claim for relief in any pleading must be asserted in the responsive pleading. . . . But

a party may assert the 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 as true all undisputed facts asserted in the plaintiff s complaint and draw all reasonable

inferences in favor of 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 basis for 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, and a formulaic recitation of the

elements of a cause of action will not do. Factual allegations must be enough to raise a right of

relief above the 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 failure to state a claim upon which

reliefcan be granted is appropriate when the facts asserted by the claimant do not entitie him to a

legal remedy.").

A complaint must "contain sufficient factual matter, accepted as true, to 'state a claim 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 than a 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, a coun 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 Henlw v. 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 than those 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 the August 4, 2016 Complaint to raise three claims:

. wrongful imprisonment, in violation of the 1868 Fort Laramie Treaty's .,Bad Men,,

Clause (Gov't Mot. at 2);

. wrongful civil commitment in violation of the Fourth, Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution (Gov't Mot. at 2): and

o breach of the December 7,2009 Cobell Settlement Agreement (Gov't Mot. at 2).

z. Regarding The August 4, 2016 Complaint's Wrongful

Imprisonment Claim.

The Govemment argues that the court does not have jurisdiction to review the decisions of

a district cou-rt. cov't Mot. at 4. Therefore, to the 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 and 28 u.s.c. $ 2513,5 must allege that plaintiff s conviction has

4 "The United States Court of Federal Claims shall have jurisdiction to render judgment

upon any claim for damages by any person unjustly convicted of an offense against the 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 reversed or 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 set forth in the August 4, 2016 Complaint does not make

any of these allegations. Gov't Mot. at 4.

Likewise, the court does not have jurisdiction to adjudicate the August 4,2016 Complaint's

claim that Plaintiffs wrongful conviction violated the 1868 Fort Laramie Treaty's "Bad Men"

Clause, because Plaintiff did not exhaust his administrative remedies by first filing a claim with

the United States Department of Interior. Gov't Mot. at 4.

b. Regarding The August 4, 2016 Complaint's Wrongful Civil

Commitment Claim.

To the extent the August 4, 2016 Complaint raises a collateral attack on Plaintiffs civil

commitment, the court does not have jurisdiction to adjudicate that claim for 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, because the Fourth, Sixth and

Eighth Amendment, as well as the 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 set aside on the ground that he is not

guilty ofthe offense of which he was convicted, or on new trial or rehearing he

was found 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 no offense against the United States,

or any State, Territory or the District of Columbia, and he did not by misconduct

or neglect cause or bring about his own prosecution.

(b) Proofofthe requisite facts shall be by a certificate ofthe court or pardon wherein

such facts are alleged to appear, and other evidence thereof shall not be received.

(c) No pardon or certified copy ofa pardon shall be considered by the United States

court ofFederal claims unless it contains recitals that the pardon was granted after

applicant had exhausted all recourse to the courts and that 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 as the intentional poisoning of the Sioux Indian Reservation's

public drinking water. Gov't Mot. at 4.

The Plaintiff also does not have standing to bring the claims related to 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 a location 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,

not for individual members. Gov't Mot. at 6.

In the altemative, the August 4, 2016 Complaint fails to state a claim 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 provision that 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 deemed to 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 to the Govemment's September 30,2016

Motion To Dismiss. Therein, Plaintiff responds that the "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 the August 4, 20i6 Complaint, because the related case,

RedBoy v. United States, No. 17-19, is "material to [Plaintiffs] ability to state the jurisdiction of

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

3. The Court's Resolution.

The court considers Plaintiff s August 4,2016 complaint to allege that the Govemmenr:

r imprisoned Plaintiff in breach of the I 868 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. 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);

intentionally poisoned the Sioux lndian Reservation's public drinking water and

falsely reported Uranium and Chlorine levels on the Reservation (Compl. at 2-3);

and

o failed to compensate Plaintiff fully as a member of the Historical Accounting Class

in the December 9,2009 Cobell Settlement Agreement (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 render judgment 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 on the ground that he is not guilty of the

offense of which he was convicted or on new trial or rehearing he was found 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 upon the 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 extent that the August 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 to the agent and forwarded to the Commissioner of

Indian Affairs at washington city."'(quoting Fort Laramie Treaty of 1g6g, art. L, 15 Stat. 635)).

The August 4, 2016 Complaint, however, does not allege that Plaintiffhas filed any claim with the

Interior Department. Therefore, to the extent that the August 4, 2016 complaint alleges that Plaintiffs imprisonment violated the Fort Laramie Treaty, the court does not have iurisdiction to

adjudicate that claim.
b. Regarding The August 4, 2016 Complaint's Wrongful Civil

Commitment Claim.

The August 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 its violation.");

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 for jurisdiction[,]

because they do not mandate payment by the Govemment"); Milas v. United States,42Fed,. Cl.

704,710 (1999) ('[The] Sixth Amendment[] [is] not money mandating[.]"), aff d 217 F.3d 854

(Fed. Cir. 1999). Therefore, the court does not have jurisdiction to adjudicate the August 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 a nonfrivolous allegation that it is within 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 under the Takings clause must show that the governrnent, by some specific action, took

a private property interest for a public use without just compensation." Adams v. united states,

391 F.3d 1212, 1218 (Fed. cir. 2004); see atso wyatt v. IJnited states,2Tl F.3d 1090, 1096 (Fed.

Cir. 2001) ("lt is axiomatic that only persons with a valid property interest at the time ofthe taking

are entitled to compensation."). The August 4, 2016 complaint, however, does not allege thit

Plaintiff had a personal property interest in the "Indian land" that escheated to the Government or

the Govemment purchased at an unfair price.

In addition, Plaintiff does not have standing to assert a takings 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 determine whether the claimant has established a property 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 determine whether the claimant has established a DroDerry

interest lor purposes of the Fifth Amendment.''). The August 4. 201 6 complaint does not ailege

that Plaintiff had any valid real property interest in the "Indian land,' at issue. Therefore, the

August 4, 2016 Complaint has failed 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 as the 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 a valid property interest at the 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 a valid real property interest in any of the Sioux land on which the Govemment

allegedly built roads and right-of-ways. Therefore, the August 4, 2016 complaint failed to allege

that Plaintiff is within a potential 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, the August 4, 2016 Complaint does not allege

sufficient facts to establish that Plaintiff has standing 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. ,See 28 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)); see also Keene Corp. v. [Jnited stales, 50g U.s.

200, 214 (1993) ("[T]ort cases axe outside the jurisdiction of the court of Federal claims.").

Whether an action sounds in tort is determined by the character of the underlying dispute, not by

the nomenclature chosen by the p arries. 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

than their form.").

In this case, the August 4,2016 Complaint alleges that the United States intentionally

poisoned the 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 a tort is a'.civil wrong,

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other than breach ofcontract, for which a remedy may be obtained" and that a typical 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 the August 4,2016 Complaint that the 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 a contract,"

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 is whether the 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 a per 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 alleges that the Govemment

breached these terms, because Plaintiff is a member of the Historical Accounting Class, but only

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 that the 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 than the $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 only with the opposing party's written consent or the court's

feave." RCFC 15(a\2). In this case, Plaintiff s December 19,2016 Motion To Amend was filed

eighty days after the 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

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the opposing party's written consent or the court's leave. See RCFC 15(a)(2). On January 4,2017,

the Govemment filed an opposition to the December 19,2016 Motion To Amend.

Of course RCFC 15(a)(2) states that, "[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 to the 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 on the 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 s allegation 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 a motion to dismiss, pwsuant to RCFC 12(bX1). Therefore, the court has determined that

amending the August 4, 2016 Complaint would be futile.

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. 19 2016

Motion For Third Party Representative is denied.

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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, alleging that the 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 to the 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 regard to 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 are denied.

IT IS SO ORDERED.

To Amend and Motion For Third Party

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