PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

HOMER FLUTE; ROBERT SIMPSON, 

JR.; THOMPSON FLUTE, JR.; 

DOROTHY WOOD, on behalf of 

themselves and all others similarly situated, 

 Plaintiffs - Appellants, 

v. 

THE UNITED STATES OF AMERICA; 

THE DEPARTMENT OF THE INTERIOR; 

THE BUREAU OF INDIAN AFFAIRS, 

 Defendants - Appellees. 

No. 14-1405 

_______________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:13-CV-01836-PAB-CBS)

_________________________________ 

Jason B. Aamodt, Indian & Environmental Law Group, PLLC, Tulsa, Oklahoma 

(Krystina E. Phillips and Dallas L.D. Strimple, Indian & Environmental Law Group, 

PLLC, Tulsa, Oklahoma; Larry Derryberry, Derryberry & Naifeh, LLP, Oklahoma City, 

Oklahoma; and David F. Askman, Askman Law Firm, LLC, Denver, Colorado, with him 

on the briefs), for Plaintiffs-Appellants. 

John Emad Arbab (John C. Cruden, Assistant Attorney General, and John L. Smeltzer, 

with him on the briefs), Environment & Natural Resources Division, United States 

Department of Justice, Washington, D.C., for Defendants-Appellees. 

_________________________________ 

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges. 

_________________________________ 

McHUGH, Circuit Judge. 

FILED 

United States Court of Appeals

Tenth Circuit 

December 22, 2015

Elisabeth A. Shumaker 

Clerk of Court

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_________________________________ 

This case arises out of an ignominious event in the history of this Nation. In 1864, 

the United States Army conducted an unprovoked attack on a group of unarmed Indians, 

who had relocated to an area next to the Sand Creek River in the Territory of Colorado at 

the direction and under the protection of the Territorial Governor. When what has 

become known as the Sand Creek Massacre was over, most of the Indians were dead, 

including many women and children. After an investigation, the United States publicly 

acknowledged its role in the tragedy and agreed to pay reparations to certain survivors of 

the massacre. But those reparations were never paid. 

Plaintiffs are descendants of the victims of the 1864 Sand Creek Massacre and 

bring this action for an accounting of the amounts they allege the U.S. government holds 

in trust for payment of reparations to their ancestors. Because the United States has not 

waived its sovereign immunity, we affirm the district court’s dismissal of such for lack of 

subject matter jurisdiction. 

I. BACKGROUND 

On February 18, 1861, the United States entered into a treaty with the 

Arapaho1

 and Cheyenne Tribes (the Tribes), ceding to the Tribes a tract of land along 

the Sandy Fork of the Arkansas River and promising to protect the Tribes “in the 

quiet and peaceful possession of the said tract of land so reserved for their future 

 1

 Arapaho is alternatively spelled “Arapaho,” “Arapahoe,” and “Arrapahoe” in 

the parties’ briefing and original treaty documents. For consistency, we will use 

“Arapaho” unless directly quoting from a source utilizing an alternate spelling. 

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home, and also their persons and property thereon, during good behavior on their 

part.”2

 Despite this promise, in June 1864, Territorial Governor and Superintendent 

of Indian Affairs John Evans conspired with Colonel John Chivington of the U.S. 

Army to relocate the Tribes to Fort Lyon in the Colorado Territory. When the Tribes 

arrived in late October 1864, the commander of Fort Lyon, Major Scott Anthony, 

gave them permission to camp at nearby Sand Creek and to hunt bison. But he first 

disarmed the Tribes, leaving them with only minimal hunting weapons. 

With the approval of Major Anthony, Colonel Chivington ordered an attack on 

the Tribes settled at Sand Creek. Approximately 700 U.S. troops marched for Sand 

Creek, arriving at sunrise on November 29, 1864. Despite the fact the Indians flew 

both an American flag and a white truce flag over their camp, the U.S. troops 

attacked. Indians attempting to flee or hide were hunted down and killed, and some 

of the attackers then looted and mutilated the bodies. The exact number killed at 

Sand Creek remains unknown, but eyewitness accounts estimate the majority were 

women and children. 

After an investigation, Colonel Chivington and Major Anthony resigned their 

commissions. And on October 14, 1865, the United States entered into the Treaty of 

Little Arkansas, which expresses the United States’ condemnation of “the gross and 

wanton outrages perpetrated against certain bands of Cheyenne and Arrapahoe 

Indians . . . at Sand Creek, Colorado Territory.” See Treaty between the United States 

 2

 Because this appeal is from the grant of a motion to dismiss, we recite the 

facts as alleged in the Plaintiffs’ complaint and in the light most favorable to them. 

See Albers v. Bd. of Cty. Comm’rs, 771 F.3d 697, 699 n.1 (10th Cir. 2014). 

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of America and the Cheyenne and Arrapahoe Tribes of Indians, art. VI, Oct. 14, 

1865, 14 Stat. 703 [hereinafter Treaty of Little Arkansas]. The Treaty of Little 

Arkansas then provides: 

[T]he government being desirous to make some suitable reparation for 

the injuries then done, will grant three hundred an[d] twenty acres of 

land by patent to each of the following-named chiefs of said bands 

. . . and will in like manner grant to each other person of said bands 

made a widow, or who lost a parent upon that occasion, one hundred 

and sixty acres of land, the names of such persons to be ascertained 

under the direction of the Secretary of the Interior . . . . Said lands shall 

be selected under the direction of the Secretary of the Interior within the 

limits of country hereby set apart as a reservation for the Indians parties 

to this treaty . . . . The United States will also pay in United States 

securities, animals, goods, provisions, or such other useful articles as 

may, in the discretion of the Secretary of the Interior, be deemed best 

adapted to the respective wants and conditions of the persons named in 

the schedule hereto annexed, they being present and members of the 

bands who suffered at Sand Creek, . . . as a compensation for property 

belonging to them, and then and there destroyed or taken from them by 

the United States troops aforesaid. 

Id. 

On July 26, 1866, the U.S. Congress appropriated funds to pay the reparations 

detailed in the Treaty of Little Arkansas. The 1866 Indian Appropriations Act 

provides, in relevant part: 

Arapaho and Cheyenne Indians of the Upper Arkansas River. — For 

reimbursing members of the bands of Arapaho and Cheyenne Indians 

who suffered at Sand Creek, . . . to be paid in United States securities, 

animals, goods, provisions, or such other useful articles as the Secretary 

of the Interior may direct, as per sixth article treaty of October 

fourteenth, eighteen hundred and sixty-five, thirty-nine thousand and 

fifty dollars. 

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Act of July 26, 1866, ch. 266, 14 Stat. 255, 276 [hereinafter 1866 Appropriations 

Act]. 

But although the United States promised to pay reparations to the survivors of 

the Sand Creek massacre and appropriated funds with which to do so, it never 

fulfilled its obligations.3

 According to Plaintiffs, the funds appropriated by Congress 

were insufficient to compensate all the victims of the massacre. Moreover, instead of 

paying reparations directly to the affected individuals as directed, the Secretary of the 

Interior (Secretary) paid some of the money directly to the Tribes. What funds were 

not distributed to the Tribes were returned to surplus on August 30, 1872. The United 

States has never provided an accounting of the reparations paid or attempted to 

identify the individuals to whom reparations were still owed. 

 Plaintiffs are descendants of the victims of the Sand Creek massacre. They 

brought a class action on behalf of themselves and others similarly situated, alleging 

the United States acted in the capacity of a trustee over the funds appropriated under 

 3

 On October 28, 1867, the United States entered into another treaty with the 

Tribes. See Treaty between the United States of America and the Cheyenne and 

Arapahoe Tribes of Indians, Oct. 28, 1867, 15 Stat. 593 [hereinafter Treaty of 

Medicine Lodge Creek]. The Treaty of Medicine Lodge Creek purported to establish 

a new reparations scheme for the Tribes “[i]n lieu of all sums of money or other 

annuities provided to be paid to the Indians herein named, under the [Treaty of Little 

Arkansas].” Id. art. X. Although the Treaty of Medicine Lodge Creek would seem to 

supplant the terms of the Treaty of Little Arkansas, Plaintiffs assert the Treaty of 

Medicine Lodge Creek was never properly concluded. We are not required to accept 

as true Plaintiffs’ legal conclusion regarding the status of the Treaty of Medicine 

Lodge Creek. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). But because the 

validity of the Treaty of Medicine Lodge Creek does not alter our analysis in this 

case, we need not determine whether Plaintiffs are correct that it was never properly 

concluded. 

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the Treaty of Little Arkansas and the 1866 Appropriations Act. Plaintiffs argue the 

Defendants are in breach of their trust obligations for failing to provide an accounting 

of the reparations funds held in trust for Plaintiffs’ ancestors. Defendants moved to 

dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. 

Defendants argued, alternatively, that the district court lacked subject matter 

jurisdiction over Plaintiffs’ claims because the United States had not waived its 

sovereign immunity and that Plaintiffs had failed to state a claim for a trust 

accounting because they had failed to establish the existence of a trust relationship. 

The district court dismissed Plaintiffs’ complaint under Rule 12(b)(1), finding it 

lacked jurisdiction because the United States had not waived sovereign immunity. 

This appeal followed. 

II. DISCUSSION 

The United States and its officers enjoy immunity from suit except in instances 

where the United States has expressly waived that protection. United States v. Testan, 

424 U.S. 392, 399 (1976) (“It long has been established . . . that the United States, as 

sovereign, is immune from suit save as it consents to be sued . . . .” (internal 

quotation marks omitted)). And because “[t]his immunity extends to injunctive 

relief,” it bars the relief sought by Plaintiffs here—an order directing the government 

to provide an accounting. See United States v. Murdock Mach. & Eng’g Co. of Utah, 

81 F.3d 922, 929–30 (10th Cir. 1996) (“Thus, if the government has not consented to 

suit, the courts have no jurisdiction to either restrain the government from acting or 

to compel it to act.” (internal quotation marks omitted)). Accordingly, we must 

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determine whether the United States has waived its sovereign immunity to decide if 

the district court correctly dismissed the Plaintiffs’ claims against these Defendants. 

See Fletcher v. United States, 730 F.3d 1206, 1211 n.2 (10th Cir. 2013) (“Of course, 

to sue the government a waiver of sovereign immunity must also be found 

somewhere in the federal code.”); El Paso Natural Gas Co. v. United States, 750 

F.3d 863, 892 (D.C. Cir. 2014) (“Because the Government is a defendant here, the 

Tribe faces three threshold requirements to stating a viable claim for relief at the 

pleading stage: it must establish federal subject matter jurisdiction, a waiver of 

sovereign immunity, and a cause of action.”). 

We review the district court’s dismissal on sovereign immunity grounds de 

novo. Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013). And we will find 

the government has waived sovereign immunity only when its consent to be sued is 

“unequivocally expressed.” United States v. Nordic Village, Inc., 503 U.S. 30, 33 

(1992) (internal quotation marks omitted). Moreover, statutory text purporting to 

waive governmental immunity is strictly construed “in favor of the sovereign.” Id. at 

34 (internal quotation marks omitted). “If waiver is not unequivocal from the 

[statutory] text, the government retains its sovereign immunity. Legislative history 

cannot supply the necessary unequivocal expression.” Murdock Mach., 81 F.3d at 

930; 14 Charles Alan Wright et al., Federal Practice and Procedure § 3654 (“The 

government will be held to have consented to be sued only if a statute’s text contains 

an unequivocally clear statement of a waiver of sovereign immunity.”). Thus, to 

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pursue their claims against the government or its employees, Plaintiffs must identify 

some statutory text that expressly and unequivocally waives sovereign immunity. 

A. The Appropriations Acts Do Not Unequivocally Waive Sovereign Immunity. 

The Plaintiffs argue the United States’ waiver of sovereign immunity can be 

found in a series of statutes enacted by Congress appropriating funds to the 

Department of Interior, including some funds specifically appropriated for programs 

associated with Indian tribes (the Appropriations Acts).4

 In relevant part, the most 

recent version of the Appropriations Acts states: 

[N]otwithstanding any other provision of law, the statute of limitations 

shall not commence to run on any claim, including any claim in 

litigation pending on the date of the enactment of this Act, concerning 

losses to or mismanagement of trust funds, until the affected tribe or 

individual Indian has been furnished with an accounting of such funds 

from which the beneficiary can determine whether there has been a loss. 

Act of Oct. 30, 2009, Pub. L. No. 111-88, tit. I, 123 Stat. 2904, 2922 [hereinafter 

2009 Act]. According to Plaintiffs, this language both waives the United States’ 

sovereign immunity and defers accrual of their claim until they receive an accounting 

 4

 Plaintiffs also make passing reference to 5 U.S.C. § 702 as a source of the 

district court’s jurisdiction in this case. But as Defendants have correctly argued, § 

702 does not operate retroactively to waive sovereign immunity for claims accruing 

prior to its effective date of October 21, 1976. See United States v. Murdock Mach. & 

Eng’g Co. of Utah, 81 F.3d 922, 929 n.8 (10th Cir. 1996). Plaintiffs have failed to 

address the retroactivity of § 702 or otherwise to demonstrate how § 702 applies to 

waive sovereign immunity for their claims, which arise from actions taken in the 

1860s and 1870s—long before the effective date of § 702. Because Plaintiffs have 

provided no argument or reasoned analysis on appeal supporting their bald assertion 

that § 702 acts to waive sovereign immunity under the facts of this case, we do not 

consider this argument further. 

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of the funds allegedly held in trust by Defendants.5

 We disagree. The Plaintiffs 

improperly conflate the inherent immunity of the sovereign with the general 

limitations on the time in which an action must be brought. 

Notably, the text of the 2009 Act never mentions sovereign immunity. Because 

the act cannot be read as an unequivocal waiver of immunity or an express consent to 

be sued, it cannot provide Plaintiffs with permission to proceed with these claims 

against the government. See Murdock Mach., 81 F.3d at 930. Instead, the plain 

language of the 2009 Act tolls the running of the applicable statute of limitations for 

claims “concerning losses to or mismanagement of trust funds.” 123 Stat. at 2922. 

The statute provides that a plaintiff’s claim will not expire by the mere passage of 

time, but it does nothing to relieve a plaintiff of the independent obligation to 

identify an express waiver of sovereign immunity in order to maintain an action 

against the government. See Fletcher, 730 F.3d at 1211 & n.2 (indicating parties 

bringing a claim for an accounting of Indian trust funds must identify a waiver of 

sovereign immunity). Thus, contrary to Plaintiffs’ position, the 2009 Act—standing 

alone—does not waive Defendants’ sovereign immunity. 

 5

 Congress has included substantially similar language in Department of 

Interior appropriations statutes since 1990. See, e.g., Act of Nov. 5, 1990, Pub. L. No. 

101-512, tit. I, 104 Stat. 1915, 1930; Act of Feb. 20, 2003, Pub. L. No. 108-7, Div. F, 

tit. I, 117 Stat. 11, 236; Act of Dec. 26, 2007, Pub. L. No. 110-161, Div. F, tit. I, 121 

Stat. 1844, 2115.

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B. The Federal Circuit Has Not Interpreted the Appropriations Acts to Include 

a Waiver of Sovereign Immunity. 

Despite the complete absence of an express waiver of sovereign immunity, 

Plaintiffs insist that the 2009 Act authorizes suit against the United States. As 

support, they point to Shoshone Indian Tribe of Wind River Reservation v. United 

States, 364 F.3d 1339 (Fed. Cir. 2004) (Shoshone II). In Shoshone II, Indian plaintiffs 

brought a breach of trust action against the United States, alleging the government 

had mismanaged the tribe’s natural resources. Id. at 1341–42. The government 

argued the tribe’s claims were precluded by the expiration of the applicable statute of 

limitations, id. at 1344, which bars claims in the Court of Federal Claims “unless the 

petition thereon is filed within six years after such claim first accrues,” 28 U.S.C. 

§ 2501. The tribe argued the 2003 version of the Appropriations Acts rescued the 

otherwise expired claims for misappropriation of trust assets by providing that they 

did not accrue until after the government had provided an accounting. Shoshone II, 

364 F.3d at 1344. 

In addressing the tribe’s arguments, the Federal Circuit stated, “By the plain 

language of the [2003 version of the Appropriations Acts], Congress has expressly 

waived its sovereign immunity and deferred the accrual of the Tribes’ cause of action 

until an accounting is provided.” Id. at 1346. Plaintiffs seize upon this language to 

argue the 2009 Act constitutes a waiver of immunity. We are not persuaded. 

First, Shoshone II arose in the context of claims under the Tucker Act (28 

U.S.C. § 1491) and the Indian Tucker Act (28 U.S.C. § 1505), which each contain 

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language expressly waiving sovereign immunity for claims seeking money damages. 

Shoshone Indian Tribe of Wind River Reservation, Wyo. v. United States, 51 Fed. Cl. 

60, 62 (2001) (Shoshone I). The Court of Federal Claims had already determined in 

Shoshone I that the United States had waived its sovereign immunity under those 

statutes. Id. The issue in Shoshone II was the impact of the Appropriations Acts on 

claims under the Tucker Act and Indian Tucker Act that would have been barred 

under the statute of limitations normally applicable. Shoshone II, 364 F.3d at 1345–

46; Shoshone I, 51 Fed. Cl. at 62–63. Here, unlike in Shoshone II, the Plaintiffs have 

not identified a statute other than the Appropriations Acts that expressly waives 

sovereign immunity with respect to their claims. 

Second, although the language Plaintiffs cull from the Federal Circuit’s 

Shoshone II decision may be imprecise, placing that single sentence in context 

clarifies that the court was not equating a statute tolling a limitations period with one 

expressly waiving sovereign immunity. Rather, the Federal Circuit’s discussion of 

the Appropriations Acts is focused on how statutes of limitations—and statutes 

modifying limitations periods—act as conditions on waivers of sovereign immunity. 

Shoshone II, 364 F.3d at 1346 (“The statute of limitations provision of 28 U.S.C. 

§ 2501 places an express limit on the Government’s waiver of sovereign immunity for 

every claim within the jurisdiction of the Court of Federal Claims.” (emphasis 

added)). Under the court’s analysis, the express waivers of sovereign immunity in the 

Tucker Act and the Indian Tucker Act were effective only for claims filed within the 

applicable limitations period. Because the Appropriations Acts prevented the accrual 

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of the Indians’ claims, it effectively tolled the statute of limitations, thereby causing 

the express waivers of sovereign immunity contained in the Tucker Act and Indian 

Tucker Act to remain viable. Id. at 1347. When placed in context, the Federal 

Circuit’s statement that the Appropriations Act both waives sovereign immunity and 

defers the running of the statute of limitations makes sense. Without the tolling of the 

statute of limitations, the claims would be stale and the waiver of immunity in the 

Tucker and Indian Tucker Acts would no longer be effective. 

Accordingly, we do not read Shoshone II as holding that the Appropriations 

Acts’ impact on the running of the applicable statute of limitations can also serve as 

an express waiver of sovereign immunity in the absence of an independent statutory 

waiver of immunity. Instead, we read Shoshone II as recognizing that a plaintiff must 

satisfy two separate obligations to pursue a claim against the government: (1) the 

identification of an express waiver of sovereign immunity; and (2) the initiation of a 

suit against the government before the statute of limitations for the plaintiff’s claim 

runs and effectively negates that waiver. 

Third, even if we agreed with Plaintiffs’ reading of Shoshone II, we could not 

follow the Federal Circuit. To do so would be inconsistent with the well-established 

rule—found in both Supreme Court and Tenth Circuit precedent—that waivers of 

sovereign immunity must be unequivocally expressed. See Nordic Village, 503 U.S. 

at 33; Murdock Mach., 81 F.3d at 930. Thus, the Plaintiffs must identify express 

statutory language waiving immunity, and any ambiguity in that language must be 

construed in favor of the sovereign and therefore in favor of immunity. Nordic 

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Village, 503 U.S. at 34. Against the backdrop of this precedent, the 2009 Act does 

not waive the United States’ immunity from Plaintiffs’ claims. 

Finally, we think it axiomatic that statutes of limitations and statutes affecting 

sovereign immunity are distinct. A party may well have a valid claim that is not 

barred by any statute of limitations, but if the government has not waived immunity, 

we lack jurisdiction to consider the claim. Conversely, if the government waives 

immunity as to a class of claims, a plaintiff may still be barred from bringing the 

claim by the expiration of the applicable limitations period. Statutes of limitations—

which protect defendants generally from stale claims—and sovereign immunity—

which recognizes the unique power of the sovereign to decide whether and for what 

types of claims it will consent to be sued—are separate concepts and each must be 

met to pursue claims against the government. Even if the 2009 Act were applicable 

here, Plaintiffs could meet only one of these requirements because the Act contains 

no express waiver of sovereign immunity. 

C. Even if the Appropriations Acts Waived Sovereign Immunity, Such Waiver 

Would Not Be Applicable Here. 

As discussed, the Appropriations Acts do not waive sovereign immunity. But 

even if Plaintiffs were correct that the 2009 Act did contain an express waiver of 

sovereign immunity, we would nonetheless lack subject matter jurisdiction to 

consider Plaintiffs’ claims. On its face, the 2009 Act applies only to claims 

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“concerning losses to or mismanagement of trust funds.” 6 2009 Act, 123 Stat. at 

2922 (emphasis added). The act thus presupposes the existence of a trust relationship 

between a plaintiff and the United States. As explained below, the Treaty of Little 

Arkansas and the 1866 Appropriations Act did not create a trust relationship between 

Plaintiffs and Defendants. And because no trust relationship ever existed, any 

purported waiver of sovereign immunity contained in the 2009 Act would not apply 

to Plaintiffs’ claims. 

1. The Government’s Assumption of the Fiduciary Duties Associated with 

a Trust Relationship Must Be Established by Express Statutory or 

Regulatory Language. 

The Supreme Court and the Tenth Circuit have recognized a general trust 

relationship between the U.S. government and Indian tribes. See, e.g., United States 

v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2324 (2011); Fletcher v. United States, 

730 F.3d 1206, 1208 (10th Cir. 2013). The Supreme Court has cautioned, however, 

that this general trust relationship “is not comparable to a private trust relationship” 

with all of its attendant fiduciary obligations. Jicarilla, 131 S. Ct. at 2323 (internal 

quotation marks omitted). Rather, the trust relationship between the U.S. government 

 6

 The act, on its face, also is limited to claims for “losses to or 

mismanagement” of trust funds. 2009 Act, Pub. L. No. 111-88, tit. I, 123 Stat. 2904, 

2922. Thus, it is unclear that it would apply to Plaintiffs’ claim for a trust 

accounting, particularly where Plaintiffs have expressly disavowed any claim for 

damages stemming from the loss or mismanagement of trust funds. And reading the 

2009 Act to encompass Plaintiffs’ claim for an accounting would mean the statute 

tolls the accrual of claims for a trust accounting until after an accounting has been 

provided, thereby making the right to seek an accounting eternal. But we need not 

decide this issue because we conclude the 2009 Act does not apply to Plaintiffs’ 

claims in the absence of a trust relationship. 

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and Indian tribes is a creature of statute. Id. That is, “Congress may style its relations 

with the Indians a ‘trust’ without assuming all the fiduciary duties of a private 

trustee, creating a trust relationship that is ‘limited’ or ‘bare’ compared to a trust 

relationship between private parties at common law.” Id. Thus, “[t]he government’s 

relationship with and duties to Native American tribes are generally defined in the 

first instance by applicable statutes and regulations.” Fletcher, 730 F.3d at 1208 

(internal quotation marks omitted). 

Notwithstanding this distinction, common-law trust obligations remain 

relevant to our analysis. Specifically, we look “to common-law principles to inform 

our interpretation of statutes and to determine the scope of liability that Congress has 

imposed.” Jicarilla, 131 S. Ct. at 2325. “But the applicable statutes and regulations 

establish [the] fiduciary relationship and define the contours of the United States’ 

fiduciary responsibilities.” Id. (alteration in original) (internal quotation marks 

omitted). Thus, these common-law principles come into play only if a plaintiff can 

first “identify a specific, applicable, trust-creating statute or regulation that the 

Government violated.” Id. (internal quotation marks omitted). 

In a series of cases, the Supreme Court has established the basic contours of 

the statutory language sufficient to create a fiduciary trust relationship between the 

government and Indian tribes. First, in United States v. Mitchell, 445 U.S. 535 (1980) 

(Mitchell I), the Court considered whether the Indian General Allotment Act of 1887 

authorized an award of damages against the United States for mismanagement of 

forests held in trust for Indian tribes. Id. at 536–37. Under the General Allotment 

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Act, the government retains title to lands allotted to individual Indians for grazing 

and agriculture for a period of 25 years “in trust for the sole use and benefit of the 

Indian to whom such allotment shall have been made.” Id. at 540–41 (emphasis 

added). The plaintiffs sued the government, alleging it had breached its fiduciary 

duties by improperly managing forest land held in trust. Id. at 537. The Supreme 

Court rejected the plaintiffs’ claims, holding the General Allotment Act “created only 

a limited trust relationship . . . that does not impose any duty upon the Government to 

manage timber resources” because the act did not “unambiguously provide that the 

United States has undertaken full fiduciary responsibilities as to the management of 

allotted lands.” Id. at 542. Accordingly, the Supreme Court concluded that any right 

to recover from the government for mismanagement of the allotted forest lands had to 

be found in sources other than the General Allotment Act. Id. at 546. The Supreme 

Court then remanded the matter to the Court of Claims for further proceedings 

consistent with its decision. Id. 

In a subsequent appeal after remand, the tribes followed the Supreme Court’s 

direction by identifying statutes other than the General Allotment Act, which they 

argued established a trust relationship. See generally United States v. Mitchell, 463 

U.S. 206 (1983) (Mitchell II). Specifically, in Mitchell II, the Indian tribe relied on 

statutes which established a comprehensive framework within which the federal 

government managed Indian timber resources “based upon the Secretary’s 

consideration of the needs and best interests of the Indian [landowner] and his heirs.” 

Id. at 222, 224 (internal quotation marks omitted). And the Office of Indian Affairs 

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had promulgated extensive regulations governing its management of “Indian forests 

so as to obtain the greatest revenue for the Indians consistent with a proper protection 

and improvement of the forests.” Id. at 220. The Court concluded the statutes and 

regulations at issue “clearly establish[ed] fiduciary obligations of the Government in 

the management and operation of Indian lands and resources,” and further held the 

tribes could pursue a claim for damages based on the breach of that trust obligation. 

Id. at 226. 

From Mitchell I and Mitchell II it is apparent that “neither the general trust 

relationship between the federal government and Indian Tribes nor the mere 

invocation of trust language in a statute (as in the Allotment Act) is sufficient to 

create a cause of action for breach of trust.” El Paso Natural Gas Co. v. United 

States, 750 F.3d 863, 893 (D.C. Cir. 2014). Rather, our inquiry must focus on the 

express language of the statute or regulation to determine whether it expressly creates 

rights or imposes duties of a fiduciary nature. Id. at 894 (“[T]he analysis must train 

on specific rights-creating or duty-imposing statutory or regulatory prescriptions.”). 

In a subsequent pair of companion cases, United States v. Navajo Nation, 537 

U.S. 488 (2003) (Navajo I), and United States v. White Mountain Apache Tribe, 537 

U.S. 465 (2003), the Supreme Court further elaborated on these principles. In Navajo 

I, the tribe sought money damages against the government, arguing the Secretary had 

breached his fiduciary obligations by obtaining a substandard royalty rate for certain 

coal leases on Indian land. 537 U.S. at 493. The tribe relied on the Indian Mineral 

Leasing Act of 1938 (IMLA) as the source of the Secretary’s fiduciary obligations. 

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Id. Examining the statutory language, the Court concluded IMLA did not impose 

fiduciary obligations on the Secretary. Id. at 507. Instead, IMLA merely required the 

Secretary’s approval of coal leases negotiated by Indian tribes and third parties. Id.

The Court also noted that the text of IMLA was even less compelling than that found 

insufficient to create a fiduciary obligation in Mitchell I because no provision of 

IMLA or its implementing regulations contained any trust language with respect to 

coal leases. Id. at 508. 

In contrast, in White Mountain, the Court allowed the Indians’ claim for 

breach of trust to proceed. There, the tribes relied on the “1960 Act,” which provided 

that the United States would hold the former Fort Apache Military Reservation in 

trust for the White Mountain Apache Tribe. 537 U.S. at 468–69. The 1960 Act also 

specifically reserved the right of the Secretary “to use any part of the land and 

improvements for administrative or school purposes for as long as they are needed 

for the purpose.” Id. at 469. The Secretary exercised its rights to use the land, and the 

tribe eventually brought suit, arguing the Secretary had breached its fiduciary 

obligation to maintain and preserve trust property. Id. Despite the brevity of the 1960 

Act, the Court held its language went “beyond a bare trust and permit[ted] a fair 

inference that the Government is subject to duties as a trustee.” Id. at 474. Important 

to the Court’s reasoning, the 1960 Act vested the Secretary with “discretionary 

authority to make direct use of portions of the trust corpus.” Id. at 475. 

Collectively, these cases stand for the proposition that an Indian plaintiff 

asserting the existence of a trust and the breach of corresponding fiduciary 

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obligations “must first identify a substantive source of law that establishes that 

specific fiduciary duty.” El Paso, 750 F.3d at 895 (emphasis and internal quotation 

marks omitted). Although a statute’s invocation of trust language is not dispositive, it 

can be informative. See id. And while control over property belonging to Indian 

tribes can be a factor in our analysis, “the real question is whether the particular 

statute or regulation establishes rights and duties that characterize a conventional 

fiduciary relationship.” Id. 

2. Plaintiffs Have Failed to Identify Express Statutory or Regulatory 

Language that Imposes Fiduciary Duties on the Government with Respect 

to the Sand Creek Reparations. 

Plaintiffs rely on Article VI of the Treaty of Little Arkansas and the 1866 

Appropriations Act as the substantive sources of law establishing fiduciary 

obligations on the United States. Article VI granted 320 acres of land to each of the 

named chiefs of the Tribes and 160 acres of land to “each other person of said bands 

made a widow, or who lost a parent” during the massacre, with “the names of such 

persons to be ascertained under the direction of the Secretary of the Interior.” Treaty 

of Little Arkansas, art. VI. These grants of land expressly prohibited any leases, 

alienations, or devises for a period of 50 years. Id. In addition, the United States 

promised to pay reparations “in United States securities, animals, goods, provisions, 

or such other useful articles as may, in the discretion of the Secretary of the Interior, 

be deemed best adapted to the respective wants and conditions of the persons named 

in the schedule hereto annexed.” Id. These payments were to be made “as a 

compensation for property belonging to them, and then and there destroyed or taken 

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from them by the United States troops.” Id. Congress subsequently appropriated 

$39,050 to pay these reparations. 1866 Appropriations Act, 14 Stat. at 276. 

Plaintiffs argue that the treaty, in combination with the appropriation of funds, 

created an enforceable trust relationship such that they are now entitled to an 

accounting from the Secretary. But neither the treaty nor the 1866 Appropriations Act 

contains any express trust language. At best, Plaintiffs point to language 

appropriating a sum of money for the Secretary’s use in paying reparations to 

specific individuals according to the Secretary’s assessment of that individual’s 

“wants and conditions.” This language represents only an obligation to make a onetime payment to specific individuals who were directly injured by the loss of family 

members or property during the massacre. Cf. Mitchell II, 463 U.S. at 222, 224 

(holding that statutes which established a comprehensive framework for management 

of Indian timber resources for the benefit of the Indian landowner “and his heirs,” 

created a fiduciary trust relationship). There is no indication from the language of 

either the treaty or the 1866 Appropriations Act that Congress intended to create 

ongoing fiduciary obligations to these individuals or their heirs. And unlike Mitchell 

II, there is nothing in either the treaty or the 1866 Appropriations Act that 

contemplates the government’s management of Indian property under an elaborate 

regulatory scheme which directs the government to do so in the best interests of the 

current and future beneficiaries of the proceeds from the resources on that property. 

Nor do these congressional directives contemplate the government’s direct use of real 

property held in trust for an Indian tribe, as was the case in White Mountain. See 537 

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U.S. at 475. Instead, they simply direct the Secretary to make a one-time expenditure 

of money in a particular manner. 

Not every allocation of funds for a particular purpose creates fiduciary 

obligations enforceable by the heirs of the intended recipients of those funds. Nor 

does every grant of discretionary authority in the dispersal of allocated funds create 

such fiduciary obligations. In this case, there is no forward-looking statutory 

language or regulatory scheme establishing specific fiduciary obligations on the part 

of the Secretary. In Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009), the 

Federal Circuit rejected a claim that similar acts appropriating funds to be paid to 

Indians established an enforceable trust relationship. In 1862, a group of Minnesota 

Sioux rebelled against the United States. Id. at 1232. During the uprising, a subset of 

the Sioux, the Mdewakantons, remained peaceful. Id. In appreciation, Congress 

authorized the Secretary to set aside allotments of land for the Mdewakantons. Id.

Through a series of appropriations, Congress subsequently authorized funds to be 

used for the benefit of the Mdewakantons. Id. at 1233–34. The plaintiffs argued these 

appropriations acts created a trust for the Mdewakantons and their descendants. Id. at 

1236. The Federal Circuit disagreed: 

Although the Appropriations Acts impose some limited 

restrictions as to how the appropriated funds are to be spent, those 

restrictions are consistent with the kinds of directions that are routinely 

contained in appropriations statutes dictating that the appropriated funds 

are to be spent for a particular purpose. The simple statutory directives 

as to the expenditures authorized by the Appropriations Acts do not 

evidence an intention on Congress’s part to create a legal relationship 

between the Secretary of the Interior and the . . . Mdewakantons in 

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22 

which the Secretary was assigned particular duties as trustee and the 

Mdewakantons were given enforceable rights as trust beneficiaries. 

Id. at 1238. 

The Wolfchild court’s reasoning is persuasive. The simple act of appropriating 

funds for a particular purpose does not imply that Congress intended to create an 

enforceable trust relationship. Were we to hold otherwise, any act in which Congress 

directed funds to be expended in a particular manner would create enforceable 

fiduciary obligations vis-à-vis the beneficiaries of such funds and their descendants. 

Such a result is directly contrary to the Supreme Court’s direction that the statute 

must contain express language creating such fiduciary obligations to create an 

enforceable trust. 

Finally, Plaintiffs attempt to avoid the clear holdings of Mitchell I, Mitchell II, 

Navajo I, and White Mountain because these cases involved claims for damages, not 

claims for a trust accounting. Plaintiffs’ argument misses the mark. In order for 

Plaintiffs to claim any right to a trust accounting, there must first be a trust. The 

Supreme Court’s precedents in Mitchell I, Mitchell II, Navajo I, and White Mountain

establish the guidelines by which we determine whether a statute or regulation 

creates a trust relationship. As discussed, the relevant treaty and statute here did not. 

Without a trust, there is no right to a trust accounting. 

III. CONCLUSION 

 To proceed against the government, the Plaintiffs must identify an express 

waiver of its sovereign immunity. Although the Appropriations Acts effectively toll 

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23 

the running of the statute of limitations, they contain no express language waiving 

sovereign immunity. Even if the Appropriations Acts could be read to expressly 

waive immunity, they are limited to claims for misappropriation of trust assets. 

Neither the Treaty of Little Arkansas nor the 1866 Appropriations Act imposes 

fiduciary trust obligations on the government. And in the absence of such a trust 

relationship, any purported waiver of immunity contained in the 2009 Act is 

inapplicable to Plaintiffs’ claims. As such, even if we agreed with Plaintiffs that the 

2009 Act expressly waives the United States’ immunity, it could not do so in this 

case. Accordingly, Plaintiffs have not identified a waiver of the United States’ 

sovereign immunity. Absent such a waiver, the courts lack the power to grant 

Plaintiffs relief, and we therefore AFFIRM the district court’s dismissal of this action 

for lack of subject matter jurisdiction. 

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No. 14-1405, Flute v. United States 

PHILLIPS, Circuit Judge, concurring: 

 I agree with the majority that the United States hasn’t waived its 

sovereign immunity. But I disagree with the majority’s conclusion that the plaintiffs 

have failed to demonstrate a trust relationship between the Tribes and the United 

States. The majority frames the precedent as requiring both trust language and 

language indicating that Congress intended to create ongoing fiduciary duties and 

finds both lacking here. I can’t agree. 

 The majority places undue emphasis on the absence of express trust 

language. See Maj. Op. at 20. But Supreme Court precedent favors function over 

form. No magic words are necessary for the United States to create a trust with 

Indian tribes or tribal members. In fact, in United States v. Mitchell (Mitchell I), 445 

U.S. 535, 542–45 (1980), the Court concluded that the use of the words “in trust” was 

not dispositive. There the Court held that the statute at issue1

 created “only a limited 

trust relationship between the United States and the allottee” that did not lead to 

enforceable duties, because the statute did “not unambiguously provide that the 

United States has undertaken full fiduciary responsibilities as to the management of 

allotted lands.” Id. at 542. In United States v. Mitchell (Mitchell II), 463 U.S. 206 

(1983), the Court again addressed the difference between form and function in the 

trust setting: 

 1

 This statute was the General Allotment Act of 1887, 24 Stat. 388, as 

amended, 25 U.S.C. § 331 et seq. See Maj. Op. at 15–16. 

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2 

“[W]here the Federal Government takes on or has control or 

supervision over tribal monies or properties, the fiduciary relationship 

normally exists with respect to such monies or properties (unless 

Congress has provided otherwise) even though nothing is said expressly 

in the authorizing or underlying statute (or other fundamental document) 

about a trust fund, or a trust or fiduciary connection.” 

Id. at 225 (alteration in original) (quoting Navajo Tribe of Indians v. United 

States, 624 F.2d 981, 987 (Ct. Cl. 1980)). The inquiry should focus on whether “[a]ll 

of the necessary elements of a common-law trust are present: a trustee (the United 

States), a beneficiary (the Indian allottees), and a trust corpus (Indian timber, lands, 

and funds).” Id.

 Similarly, the Court focused on function in United States v. Navajo 

Nation, 537 U.S. 488 (2003). While the Court noted that “no provision of the [Indian 

Mineral Leasing Act of 1938, 52 Stat. 347, 25 U.S.C. § 396a et seq.,] or its 

regulations contains any trust language with respect to coal leasing,” the inquiry did 

not end there. Navajo Nation, 537 U.S. at 508 (emphasis in original). Rather, the 

Court focused on whether Congress gave the United States managerial control over 

the Indians’ resources. Id. The Court focused on whether the Secretary of the Interior 

was “assigned a comprehensive managerial role” or “expressly invested with 

responsibility to secure the needs and best interests of the Indian owner and his 

heirs.” Id. at 507–08 (internal quotation marks omitted). Finally, in United States v. 

White Mountain Apache Tribe, 537 U.S. 465 (2003), the court noted that “[w]here, as 

in Mitchell II, the relevant sources of substantive law create ‘[a]ll of the necessary 

elements of a common-law trust,’ there is no need to look elsewhere for the source of 

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3 

a trust relationship.” Id. at 474 n.3 (second alteration in original) (citation omitted) 

(quoting Mitchell II, 463 U.S. at 225). 

 Thus, while the existence or absence of trust language is persuasive, it is 

not dispositive. The existence of fiduciary obligations and the presence of commonlaw trust elements can suffice to create an enforceable trust. Here, the relationship 

between the United States and the Tribes established by the treaty and the 1866 

Appropriations Act has “all of the necessary elements of a common law trust”: a 

trustee, the United States; a beneficiary, the members of the Tribes; and a trust 

corpus, the $39,050 appropriated to pay the obligations under the treaty.2 Mitchell II, 

463 U.S. at 225. Additionally, the United States exercised managerial control over 

the funds: under the treaty’s express language, the Secretary will pay the Tribe 

members “in United States securities, animals, goods, provisions, or such other 

useful articles as may, in the discretion of the Secretary of the Interior, be deemed 

best adapted to the respective wants and conditions” of the Tribe members affected. 

Treaty Between the United States of America and the Cheyenne and Arrapahoe 

Tribes of Indians, art. VI, Oct. 14, 1865, 14 Stat. 703, 706. This language is similar 

to language that the Mitchell II Court found “directly support[ed] the existence of a 

fiduciary relationship.” Mitchell II, 463 U.S. at 224. There, the statute “expressly 

 2

 I disagree with the majority’s classification of the appropriated funds as “a 

one-time payment.” Maj. Op. at 20. Here, the money was not appropriated for 

immediate, direct payment to the qualified tribal members. Rather, Congress 

appropriated the money to the Secretary to spend on their behalf at his discretion 

until he used the full amount. Until all of the money appropriated was paid out on 

behalf of the Tribe members, I believe that the money is still held in trust. 

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4 

mandate[d] that sales of timber from Indian trust lands be based upon the Secretary’s 

consideration of ‘the needs and best interests of the Indian owner and his heirs’ and 

that proceeds from such sales be paid to owners ‘or disposed of for their benefit.’” Id.

(quoting 25 U.S.C. § 406(a)). Undeniably, the Secretary here was “expressly invested 

with responsibility to secure the needs and best interests of the Indian owner and his 

heirs” under the plain language of the treaty. See Navajo Nation, 537 U.S. at 507–08 

(internal quotation marks omitted). I would find that there is a trust here. 

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