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Timbisha Shoshone Tribe, et al v. Kenneth Salazar

March 1, 2011


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiffs, who are a federally recognized Indian Tribe, citizens or members of the Tribe, and members of its Tribal Council, bring this action against Kenneth Salazar in his official capacity as Secretary of the Department of the Interior; the Department of the Interior; Timothy Geithner in his official capacity as Secretary of the Department of the Treasury; and the Department of the Treasury. Plaintiffs seek declaratory and injunctive relief on the grounds that the Western Shoshone Claims Distribution Act, Pub. L. No. 108-27, 118 Stat. 805 (2004), orders an unconstitutional taking of tribal property and denies equal protection of the law under the Fifth Amendment of the Constitution. This matter is before the Court on Defendants' Motion to Dismiss [Dkt. No. 9]. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, the Motion to Dismiss is granted.


A. Factual Background*fn1

This case concerns the proper distribution of a fund set aside for the benefit of the nations and tribes constituting the Western Shoshone Identifiable Group, of which Plaintiff Timbisha Shoshone Tribe ("the Tribe") is a member. On August 15, 1977, the Indian Claims Commission ("ICC") determined that the United States should pay the Western Shoshone Identifiable Group $26,145,189.89 ("the Fund") in compensation for the taking of a large area of the Western Shoshone homeland in Nevada and California. See W. Shoshone Identifiable Group v. United States, 40 Ind. Cl. Comm. 318, 387 (1977) ("the ICC decision"). Pursuant to the ICC decision, the Fund was appropriated and put into trust at the Treasury Department. The Fund has remained in the custody of the Treasury Department, earning interest, ever since.

The delay in distributing this award results from the particular manner in which ICC judgment funds are parceled out. Under 25 U.S.C. § 1401 et seq., after money is appropriated to pay the judgment funds, the Secretary of the Interior must devise a plan for distributing the funds among the potential beneficiaries and submit that plan to Congress. The plan becomes effective unless Congress enacts a joint resolution disapproving of the plan within 60 days of its submission. Id. at § 1405(a). However, "[i]n cases where the Secretary has to submit a plan dividing judgment funds between two or more beneficiary entities, he shall obtain the consent of the tribal governments involved to the proposed division. If the Secretary cannot obtain such consent within one hundred and eighty days after appropriation of the funds for the award or within one hundred and eighty days of January 12, 1983, he shall submit proposed legislation to the Congress."

Id. at § 1402(d). In such cases, therefore, Congress must act to distribute the award.

After the money relevant to this case was appropriated, the Western Shoshone Tribes, including the Timbisha Shoshone, declined to seek distribution of the Fund and instead demanded partial return of the underlying land for which the Fund was intended to provide compensation.*fn2 Because the Secretary was unable to obtain the tribes' consent to distribute the monies, the Fund sat undisturbed, waiting for Congress to pass a distribution act.

In 2004, Congress resolved to distribute the Fund by passing the Western Shoshone Claims Distribution Act ("the Distribution Act"), Pub. L. No. 108-27, 118 Stat. 805 (2004). The Distribution Act directs the Secretary of the Interior to establish a roll consisting of individuals with at least one-quarter degree of Western Shoshone blood who are citizens of the United States and living on the date of enactment of the Distribution Act, but who are not eligible to receive a per capita payment from any other judgment fund based on an aboriginal land claim. The Secretary of the Interior is then to distribute the award directly to these individuals and not to any tribal entities.

Plaintiffs, individuals claiming to represent the Tribe, brought this action to challenge the Distribution Act. Plaintiffs' Complaint alleges that the Distribution Act violates the Takings Clause of the Fifth Amendment and denies equal protection of the law under the Fifth Amendment by seizing tribal property----the Fund----and distributing it to individuals rather than the Tribe.

B. Procedural Background

On June 10, 2010, Plaintiffs filed their Complaint [Dkt. No. 1]. On October 22, 2010, Defendants filed their Motion to Dismiss [Dkt. No. 9]. On November 22, 2010, the Court granted a Motion for Leave to File an Amicus Curiae Brief in Support of Defendants' Motion to Dismiss ("Amicus Curiae") [Dkt. No. 16] filed by George Gholson, who claims that he, and not the Plaintiffs, is a member of the legitimate Tribal Council of the Timbisha Shoshone Tribe. On December 17, 2010, Plaintiffs opposed Defendants' Motion to Dismiss [Dkt. No. 18]. On January 7, 2011, Defendants filed a Reply [Dkt. No. 23].

On January 5, 2011, prior to the filing of Defendants' Reply, Plaintiffs filed a Motion for Preliminary Injunction [Dkt. No. 21], asking the Court to preliminarily enjoin the first phase of distributions of the Fund, which Defendants indicated would occur sometime in February. On January 20, 2011, the Court heard oral argument on both the Motion for Preliminary Injunction and the Motion to Dismiss. After hearing argument, and for the reasons stated on the record in open court, the Court denied Plaintiff's Motion for Preliminary Injunction [Dkt. No. 26].


Defendants ask the Court to dismiss Plaintiffs' claims under Rules 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), Plaintiffs bear the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction. See Shuler v. U.S., 531 F.3d 930, 932 (D.C. Cir. 2008). In reviewing a motion to dismiss for lack of subject matter jurisdiction, the Court must accept as true all of the factual allegations set forth in the Complaint; however, such allegations "will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wilbur v. CIA, 273 F. Supp. 2d 119, 122 (D.D.C. 2003)(citations and quotations omitted). The Court may rest its decision on its own resolution of disputed facts. Id.

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[ ] [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563. A complaint will not suffice, however, if it "tenders 'naked assertions' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009) (citing Twombly, 550 U.S. at 557).

Under the Twombly standard, a "court deciding a motion to dismiss must not make any judgment about the probability of the plaintiffs' success . . . must assume all the allegations in the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotation marks and citations omitted).


Defendants make a number arguments in favor of dismissal. Under Rule 12(b)(1), Defendants contend that Plaintiffs cannot establish jurisdiction because (1) Defendants have not waived sovereign immunity and (2) Plaintiffs' takings claim must be brought in the Court of Federal Claims. Additionally, the Amicus Curiae brief submitted by George Gholson and endorsed by the Defendants in their Reply and at oral argument submits that, due to political strife within the Timbisha Shoshone Tribe, Plaintiffs lack standing to bring a lawsuit on behalf of the Tribe. Under Rule 12(b)(6), Defendants argue (1) that Plaintiffs have failed to make allegations supporting a claim against the Treasury Department and Secretary of the Treasury, (2) that Plaintiffs cannot set forth a property interest sufficient for a takings claim, and (3) that Plaintiffs have failed to state a claim for denial of equal protection. Each argument will be considered in turn.

A. Plaintiffs Have Made Sufficient Allegations to Survive a Motion to Dismiss Under Rule 12(b)(1)

1. Sovereign Immunity Does Not Bar Plaintiffs' Claims

Defendants argue that Plaintiffs have failed to demonstrate that Defendants have waived their sovereign immunity. Defs.' Mot.

6. Defendants contend that 28 U.S.C. ยงยง 1331 and 1362, upon which Plaintiffs rely to invoke the jurisdiction of this Court, do not waive the United States' ...

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