USCA Case #11-5049 Document #1315223 Filed: 06/24/2011 ...Timbisha Shoshone Tribe v. Salazar, Case No. 1:10-cv-968-GK, on March 1, 2011. Plaintiffs also appeal from an order entered

Case No. 11-5049

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

TIMBISHA SHOSHONE TRIBE, et al.,

Plaintiffs-Appellants,

v.

KENNETH SALAZAR, in his official capacity as the United States Secretary of the Interior, et al.,

Defendants-Appellees.

On Appeal from the United States District Court for the District of Columbia, Case No. 1:10-cv-968-GK (Hon. Gladys Kessler)

ANSWERING BRIEF OF THE DEFENDANTS-APPELLEES

IGNACIA S. MORENO Assistant Attorney General

Of Counsel: MAUREEN E. RUDOLPH JAMES W. PORTER AARON P. AVILA Office of the Solicitor BRIAN C. TOTH U.S. Department of the Interior Attorneys Env’t & Natural Resources Div. THOMAS KEARNS U.S. Department of Justice Office of the Chief Counsel P.O. Box 23795 Financial Management Service Washington, D.C. 20026-3795 U.S. Department of the Treasury (202) 305-0639

USCA Case #11-5049 Document #1315223 Filed: 06/24/2011 Page 1 of 81

i

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties and Amicus. – The plaintiffs-appellants are:

Timbisha Shoshone Tribe, Joe Kennedy, Pauline Esteves, Angie Boland,

Grace Goad, and Madeline Esteves. The defendants-appellees are:

Kenneth Salazar, in his official capacity as Secretary of the Interior; the

United States Department of the Interior; Timothy Geithner, in his

official capacity as Secretary of the Treasury; and the United States

Department of the Treasury. George Gholson participated in the case

as amicus curiae.

B. Ruling Under Review. – This is an appeal from an order

dismissing the plaintiffs’ case, entered by the United States District

Court for the District of Columbia (Honorable Gladys Kessler) in

Timbisha Shoshone Tribe v. Salazar, Case No. 1:10-cv-968-GK, on

March 1, 2011. Plaintiffs also appeal from an order entered

January 20, 2011, denying their motion for a preliminary injunction.

C. Related Cases. – The plaintiffs previously appealed an

interlocutory order denying a preliminary injunction in the same

district court case. That interlocutory appeal, which was docketed as

D.C. Cir. No. 11-5019, was dismissed on April 5, 2011. The undersigned

is not aware of any other related cases.


ii

TABLE OF CONTENTS

PAGE

JURISDICTION ......................................................................................... 1

ISSUES PRESENTED ............................................................................... 1

STATEMENT OF THE CASE ................................................................... 2

STATUTES INVOLVED ............................................................................ 4

STATEMENT OF FACTS .......................................................................... 4

1. Western Shoshone Judgment Fund ........................................ 4

2. The Distribution Act ................................................................ 5

3. Timbisha Tribe’s Leadership Dispute ..................................... 6

4. The Present Litigation ............................................................. 8

SUMMARY OF ARGUMENT .................................................................. 10

ARGUMENT ............................................................................................. 12

I. THE DISTRICT COURT CORRECTLY DISMISSED PLAINTIFFS’ CASE .............................................................. 12

A. Standard of Review ....................................................... 12

B. Plaintiffs Lack The Capacity To Maintain This Suit .. 13

C. Plaintiffs Fail To State A Takings Claim .................... 19

D. Plaintiffs Fail To State An Equal Protection Claim ... 31

II. PLAINTIFFS’ CHALLENGES TO THE PRELIMINARY INJUNCTION DENIAL SHOULD BE REJECTED ............ 38

A. Standard of Review ....................................................... 38


iii

B. The Court Should Not Reach The Propriety Of The Preliminary Injunction Denial ..................................... 38

C. The District Court Did Not Abuse Its Discretion In Denying The Preliminary Injunction ........................... 40

1. Plaintiffs Have Not Shown That Irreparable Injury Would Occur In The Absence Of An Injunction . 40

2. An Injunction Would Be Contrary To The Public Interest And Risks Substantial Harm To Other Interested Parties ................................................ 44

CONCLUSION ......................................................................................... 48

CERTIFICATE OF COMPLIANCE WITH TYPE VOLUME LIMITATION

ADDENDUM

CERTIFICATE OF SERVICE


iv

TABLE OF AUTHORITIES

CASES:

Absentee Del. Tribe v. United States, 21 Ind. Cl. Comm. 369 (1969) ......................................................... 26

Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) ................................................................... 35, 37

Agostini v. Felton, 521 U.S. 203 (1997) ......................................................................... 35

*Alaska Legislative Council v. Babbitt, 181 F.3d 1333 (D.C. Cir. 1999) ....................................................... 18

Amoco Prod. Co. v. Hodel, 815 F.2d 352 (5th Cir. 1987) ........................................................... 24

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ........................................................................... 15

Ark. Dairy Coop. Ass’n, Inc. v. U.S. Dep’t of Agric., 573 F.3d 815 (D.C. Cir. 2009); ........................................................ 38

Bd. County Comm’rs v. Seber, 318 U.S. 705 (1943) ......................................................................... 21

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................... 13

Bembenista v. United States, 866 F.2d 493 (D.C. Cir. 1989) ......................................................... 25

Bourdieu v. Pacific Western Oil Co., 299 U.S. 65 (1936) ........................................................................... 42

* Authorities upon which we chiefly rely are marked with asterisks.


v

Calif. Valley Miwok Tribe v. United States, 515 F.3d 1262 (D.C. Cir. 2008) ....................................................... 14

*Chamber of Commerce v. U.S. Dep’t of Energy, 627 F.2d 289 (D.C. Cir. 1980) ......................................................... 17

Cherokee Freedmen v. United States, 195 Ct. Cl. 39 (1971) ........................................................................ 22

Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902) ................................................................... 20, 28

Cherokee Nation v. United States, 80 Ct. Cl. 1 (1932) ............................................................................ 13

Ciralsky v. C.I.A., 355 F.3d 661 (D.C. Cir. 2004) ........................................................... 1

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ......................................................................... 31

Columbian Rope Co. v. West, 142 F.3d 1313 (D.C. Cir. 1998) ....................................................... 15

D.C. Fed’n of Civic Ass’ns, Inc. v. Volpe, 434 F.2d 436 (D.C. Cir. 1970) ......................................................... 31

Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009) ....................................................... 38

*Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977) ........................................ 19, 26, 28, 30-32, 34, 36

Del. Tribe v. United States, 128 F. Supp. 391 (Ct. Cl. 1955) ....................................................... 26

Delorme v. United States, 354 F.3d 810 (8th Cir. 2004) ........................................................... 30


vi

Dist. 50 United Mine Workers of Am. v. Intl. Union, United Mine Workers of Am., 412 F.2d 165 (D.C. Cir. 1969). ............................ 39

Ellipso, Inc. v. Mann, 480 F.3d 1153 (D.C. Cir. 2007) ....................................................... 41

E. Enterps. v. Apfel, 524 U.S. 498 (1998) ......................................................................... 43

Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136 (D.C. Cir. 2011) ....................................................... 15

Fair Emp’t Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268 (D.C. Cir. 1994) ......................................................... 13

Gritts v. Fisher, 224 U.S. 640 (1912) ......................................................................... 20

Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838 (D.C. Cir. 1982) ......................................................... 39

Hackford v. Babbitt, 14 F.3d 1457 (10th Cir. 1994) ................................................... 13, 15

Holt v. Comm’r of Internal Revenue, 364 F.2d 38 (8th Cir.1966) .............................................................. 18

Hudson v. Hardy, 424 F.2d 854 (D.C. Cir. 1970) ................................................... 39, 40

James v. Watt, 716 F.2d 71 (1st Cir. 1983) ........................................................ 13, 15

*Jasper v. Sawyer, 205 F.2d 700 .................................................................................... 18


vii

Junghans v. Junghans, 112 F.2d 212 (D.C. Cir. 1940) ......................................................... 29

*Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ............................................. 12, 13, 39

Karcher v. May, 484 U.S. 72 (1987) ........................................................................... 16

King v. Ickes, 64 F.2d 979 (D.C. Cir. 1933) ........................................................... 20

Kline v. Cisneros, 76 F.3d 1236 (D.C. Cir. 1996) ......................................................... 24

*Lebeau v. United States, 474 F.3d 1334 (Fed. Cir.) ..................................................... 19, 23-26

Morton v. Mancari, 417 U.S. 535 (1974) ....................................................... 20, 32, 35, 37

Munaf v. Geren, 553 U.S. 674 (2008). ........................................................................ 38

N. Cheyenne Tribe v. Hollowbreast, 425 U.S. 649 (1976) ................................................................... 20, 28

Nat’l Ass’n of Counties v. Baker, 842 F.2d 369 (D.C. Cir. 1988) ......................................................... 24

Narragansett Indian Tribe v. Nat’l Indian Gaming Comm’n, 158 F.3d 1335 (D.C. Cir. 1998). ...................................................... 37

Nat’l Min’g Ass’n v. Kempthorne, 512 F.3d 702 (D.C. Cir. 2008); ........................................................ 40

Nixon v. United States, 978 F.2d 1269 (D.C. Cir. 1992) ....................................................... 19


viii

*Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011 (D.C. Cir. 1991) ....................................................... 17

Preseault v. Interstate Commerce Comm’n, 494 U.S. 1 (1990). ...................................................................... 40, 43

Ramah Navajo School Board, Inc. v. Babbitt, 87 F.3d 1338 (D.C. Cir. 1996) ................................................... 41, 43

Rodriguez de Quijas v. Shearson/ American Exp., Inc., 490 U.S. 477 (1989) ......................................................................... 35

Romer v. Evans, 517 U.S. 620 (1996) ......................................................................... 31

Roth v. King, 449 F.3d 1272 (D.C. Cir. 2006) ................................................. 19, 23

S. Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998) ......................................................................... 20

Seminole Nation v. United States, 316 U.S. 286 (1942) ......................................................................... 14

Shoshone Tribe v. United States, 11 Ind. C1. Comm. 387 (1962) ...................................................... 4, 5

Sherley v. Sebelius, --- F.3d ----, 2011 WL 1599685 (D.C. Cir. April 29, 2011). ............. 47

Simmons v. Seelatsee, 384 U.S. 209 (1966) ......................................................................... 35

Sisseton & Wahpeton Bands of Tribes v. United States, 18 Ind. Cl. Comm. 526-a (1967) ...................................................... 26

Stephens v. Cherokee Nation, 174 U.S. 445 (1899) ................................................................... 20, 28


ix

Student Loan Marketing Ass’n v. Riley, 104 F.3d 397 (D.C. Cir. 1997) ................................................... 43, 44

Timbisha Shoshone Tribe v. U.S. Dep’t of Interior, 2011 WL 1883862 (E.D. Cal. May 16, 2011) .................................... 7

U.S. Air Tour Ass’n v. FAA, 298 F.3d 997 (D.C. Cir. 2002) ................................................... 36, 37

United States v. Dann, 470 U.S. 39 (1985) ....................................................... 4, 5, 23, 27, 29

United States v. Jicarilla Apache Nation, --- S.Ct. ----, 2011 WL 2297786 (June 13, 2011) ............................. 20

United States v. Jim, 409 U.S. 80 (1972) ..................................................................... 20, 28

United States v. Kagama, 118 U.S. 375 (1886) ......................................................................... 21

United States v. Sandoval, 231 U.S. 28 (1913) ........................................................................... 21

United States v. TDC Mgmt. Corp., 288 F.3d 421 (D.C. Cir. 2002) ................................................... 17, 28

W. Shoshone Identifiable Group v. United States, 40 Ind. Cl. Comm. 318 (1977) ............................................... 5, 29, 30

Wichita & Affiliated Tribes of Okla. v. Hodel, 788 F.2d 765 (D.C. Cir. 1986) ................................................... 18, 41

Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365 (2008). ...................................................................... 38

Wisc. Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985). ........................................................ 40


x

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES:

U.S. Const. Art. I, § 8, cl. 3 ...................................................................... 21

U.S. Const. Art. II, § 2, cl. 2 ..................................................................... 21

U.S. Const. Amend. V ............................................................................... 19

U.S. Const. Amend. XIV, § 1 .................................................................. 31

25 U.S.C. § 70a (1976) .................................................................... 4, 23, 27

25 U.S.C. § 70l(a) (1976) ........................................................................... 37

25 U.S.C. § 479a........................................................................................ 14

25 U.S.C. § 1292(c)(1) ............................................................................... 36

25 U.S.C. § 1292(c)(2) ............................................................................... 36

Indian Tribal Judgment Funds Use or Distribution Act: 25 U.S.C. § 1402(a) ............................................................................ 5

25 U.S.C. § 1402(c) ...................................................................... 5, 23

25 U.S.C. § 1402(d) .......................................................................... 24

28 U.S.C. § 1291.......................................................................................... 1

28 U.S.C. § 1295(a)(2) ............................................................................... 24

28 U.S.C. § 1331.......................................................................................... 1

28 U.S.C. § 1362.......................................................................................... 1

28 U.S.C. § 1491.................................................................................. 40, 43

28 U.S.C. § 2517........................................................................................ 41

31 U.S.C. § 1304(a) ................................................................................... 41

31 U.S.C. § 724a (1976) .................................................................. 2, 23, 29


xi

Judgment Funds Use or Distribution Act, Pub. L. No. 93-134, 87 Stat. 466 .......................................................................................... 22

Annual Appropriations Legislation for the Department of the Interior:

Pub. L. No. 87-578, 76 Stat. 338 (1962) .............................................. 22

Pub. L. No. 88-79, 77 Stat. 100 (1963) ................................................ 22

Pub. L. No. 88-356, 78 Stat. 276 (1964) .............................................. 22

Pub. L. No. 89-52, 79 Stat. 177 (1965) ............................................... 22

Pub. L. No. 89-435, 80 Stat. 173 (1966) .............................................. 22

Pub. L. No. 90-28, 81 Stat. 62 (1967) ................................................. 22

Pub. L. No. 90-425, 82 Stat. 429 (1968) .............................................. 22

Pub. L. No. 91-98, 83 Stat. 150 (1969) ................................................ 22

Pub. L. No. 91-361, 84 Stat. 672 (1970) .............................................. 22

Pub. L. No. 92-76, 85 Stat. 232 (1971) ................................................ 22

Pub. L. No. 92-369, 86 Stat. 511 (1972) .............................................. 22

Indian Tribe List Act of 1994, Pub. L. No. 103-454, § 103(7), 108 Stat. 4791 ............................................................................................ 13, 14

Western Shoshone Claims Distribution Act, Pub. L. No. 108-270, 118 Stat. 805 (2004) ............................................................................... 3

§ 3(b) ....................................................................................................... 5

§ 3(b)(1) ......................................................................................... 3, 5, 26

§ 3(c)(1) ............................................................................................. 6, 26

§ 4(2) ....................................................................................................... 6


xii

Fed. R. App. P. 4(a)(1)(B) ........................................................................... 1

Fed. R. App. P. 43(c)(2) ................................................................. 11, 16, 17

Fed. R. Civ. P. 12(b)(1) ............................................................................... 9

Fed. R. Civ. P. 12(b)(6) ............................................................... 1, 9, 12, 13

Fed. R. Civ. P. 19(b) .................................................................................. 41

OTHER LEGISLATIVE MATERIALS:

H.R. Rep. No. 93-377 (1973) ..................................................................... 22

H.R. Rep. No. 108-299 (2003) ................................................. 23, 33, 45, 46

S. Rep. No. 93-167 (1973) ................................................................... 22, 30

S. Rep. No. 108-151 (2003) ............................................................. 6, 32, 33

S. Rep. No. 275-19 (1981) ......................................................................... 25

150 Cong. Rec. H4610 (2004) ................................................................... 33

150 Cong. Rec. H4612 (2004) ................................................................... 33

150 Cong. Rec. S7495 (2004) ......................................................... 32, 44-46

Western Shoshone Claims Distribution Act: Hearing Before the S. Subcomm. on Indian Affairs on S. 958, 107th Cong. (2002) ............................................................. 33, 34, 45, 46 MISCELLANEOUS:

Cohen’s Handbook of Federal Indian Law (2005 ed.) ............................. 28

RESTATEMENT (SECOND) OF CONFLICT OF LAWS (1971) ........................... 29

7 Charles Alan Wright, et al., Federal Practice and Procedure (3d ed. 2001) ..................................................................................... 42


1

JURISDICTION

Plaintiffs invoked the jurisdiction of the district court pursuant to

28 U.S.C. 1331 and 1362, for claims arising under the Fifth Amendment

to the United States Constitution. JA:12. On March 1, 2011, the

district court dismissed the underlying case in its entirety pursuant to

Fed. R. Civ. P. 12(b)(6). JA:329-330; see also JA:347, JA:353, JA:359.

Plaintiffs filed a notice of appeal on March 4, 2011, which was timely

because it was filed within 60 days of the district court’s dismissal

order. Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction to review

the dismissal order pursuant to 28 U.S.C. 1291. See Ciralsky v. C.I.A.,

355 F.3d 661, 666 (D.C. Cir. 2004).

ISSUES PRESENTED

1. Whether plaintiffs – individuals who are not presently

recognized by the Secretary of the Interior as the official leaders of an

Indian tribe for the purposes of government-to-government relations

with the United States – nonetheless have standing to bring suit on the

tribe’s behalf for alleged injuries to the tribe.

Assuming arguendo that plaintiffs have standing, the following

additional issues are presented:

2. Whether the district court correctly dismissed this case for

the plaintiffs’ failure to state a claim that the 2004 Western Shoshone


2

Distribution Act amounts to a taking of private property without just

compensation in violation of the Fifth Amendment to the United States

Constitution.

3. Whether the district court correctly dismissed this case for

the plaintiffs’ failure to state a claim that the 2004 Western Shoshone

Distribution Act deprives the plaintiffs – individual Indians purporting

to bring suit on behalf of an Indian tribe – of equal protection under the

laws, in violation of the Fifth Amendment to the United States

Constitution.

4. Whether the district court abused its discretion in declining

to enjoin the Secretaries of the Interior and the Treasury from

complying with a congressional mandate to distribute a judgment fund

derived from an award by the Indian Claims Commission.

STATEMENT OF THE CASE

The Indian Claims Commission awarded approximately $26

million to the “Western Shoshone Identifiable Group” in 1977 as

compensation for the United States’ taking of aboriginal lands. In 1979,

the award became final and, pursuant to 31 U.S.C. 724a (1976 Supp.

II), was automatically appropriated and placed into trust for the

Identifiable Group. After several unsuccessful attempts by Congress to

enact a plan for distributing and using the fund, in 2004 Congress


3

enacted the Western Shoshone Claims Distribution Act (“2004 Act”),

Pub. L. No. 108-270, 118 Stat. 805. The 2004 Act directs the Secretary

of the Interior to create a judgment roll consisting of United States

citizens alive on the date of the enactment who have at least one-

quarter degree Western Shoshone blood, and to distribute the fund,

which in 2003 totaled approximately $142 million, to them.

Plaintiffs purport to represent the Timbisha Shoshone Tribe

(“Tribe”), a federally-recognized tribe of Western Shoshones. Plaintiffs

brought suit against the Secretaries of the Interior and the Treasury for

declaratory and injunctive relief, alleging that the 2004 Act deprives the

Tribe of its property without just compensation and that it deprives

them of equal protection under the laws, all in violation of the Fifth

Amendment. Plaintiffs sought a preliminary injunction to prevent the

Secretaries from distributing the fund, which the district court denied.

Plaintiffs filed an interlocutory appeal from the denial of the

preliminary injunction and sought an injunction pending appeal, which

this Court denied. While the interlocutory appeal was pending, the

district court dismissed plaintiffs’ case in its entirety for the failure to

state a claim upon which relief may be granted. This appeal followed.1

1 Once the district court’s dismissal order was entered, the government moved to dismiss plaintiffs’ interlocutory appeal from the preliminary


4

STATUTES INVOLVED

The relevant constitutional and statutory provisions are

reproduced in an addendum to this brief.

STATEMENT OF FACTS

1. Western Shoshone Judgment Fund. – In 1951, various tribes

and groups of Indians, later denominated as the “Western Shoshone

Identifiable Group,” filed a claim in the Indian Claims Commission2

seeking compensation from the United States for the loss of aboriginal

title to certain lands in Nevada and California. See United States v.

Dann, 470 U.S. 39, 41 (1985) (discussing the litigation). Eleven years

later, the Commission entered an order finding that the Identifiable

Group had been “deprived of their lands” in the nineteenth century by

“gradual encroachment by whites, settlers and others,” Shoshone Tribe

v. United States, 11 Ind. C1. Comm. 387, 416 (1962), and later awarded

injunction denial on the grounds that the interlocutory order had merged into the final order of dismissal, thereby divesting the Court of jurisdiction over the interlocutory appeal. This Court granted the government’s motion and dismissed the interlocutory appeal on April 5, 2011.

2Prior to its dissolution in 1978, the Commission had jurisdiction over claims brought on behalf of “an Indian tribe, band, or other identifiable group” of Indians, arising from the taking of aboriginal lands by the United States without payment of agreed upon compensation. 25 U.S.C. 70a (1976).


5

the Identifiable Group approximately $26 million in compensation. W.

Shoshone Identifiable Group v. United States, 40 Ind. Cl. Comm. 318,

453 (1977).

The Court of Claims affirmed the award and certified it to the

General Accounting Office in 1979, which automatically set aside the

amount of the award and deposited it into an interest-bearing trust

account in the United States Treasury. Dann, 470 U.S. at 42. The

process of adopting a plan for distributing a judgment fund obligates

the Secretary of the Interior (“Secretary”) to consult with affected

groups and, if there is consensus, prepare and submit a proposed plan

to Congress. 25 U.S.C. 1402(a). Where, as here, there is no consensus,

the responsibility remains with Congress to enact a distribution plan.

See id. at 1402(c), (d).

2. The Distribution Act. – In 2004, Congress enacted the

Western Shoshone Claims Distribution Act, Pub. L. 108-270, 118 Stat.

805, which required the Secretary of the Interior to establish a roll

consisting of all individuals living on the date of enactment who have at

least a quarter degree of Western Shoshone blood, are United States

citizens, and who were not certified as eligible to receive a per capita

payment from another previously appropriated judgment fund based on

aboriginal land claims. Id., § 3(b). The Act provides that, after


6

establishing the roll, the Secretary shall distribute 100 percent of the

funds in shares “as equal as practicable” to those on the roll. Id.,

§ 3(c)(1). As of June 2003, the judgment fund held approximately $142

million resulting from the original Claims Commission judgment. S.

Rep. No. 108-151, at 2 (2003).3

3. Timbisha Tribe’s Leadership Dispute. – Plaintiffs are

members of the Timbisha Shoshone Tribe, a federally-recognized tribe

of Western Shoshones. JA:13. Additionally, several plaintiffs allege

that they are members of the Tribe’s governing council and that one

plaintiff, Joe Kennedy, is the council’s Chairperson. JA:13-14. Mr.

Kennedy submitted a declaration to the district court stating that he

was elected to the Council in November 2009 and that the Council

elected him to be Chairperson. JA:153. A competing faction, however,

led by George Gholson, also contends that it is the duly elected

leadership of the Tribe. See JA:55, JA:60.

As Kennedy’s declaration acknowledges (JA:162), the Bureau of

Indian Affairs determined in February 2010 that it did not then

recognize any tribal leadership for the purposes of government-to-

3 The Act also distributes, in the form of educational grants, other judgment funds concerning various accounting claims also brought before the Commission. 118 Stat. at 808, § 4(b)(2).


7

government relations with the United States. JA:173-175. Kennedy

administratively appealed that decision to the Assistant Secretary of

the Interior – Indian Affairs (“Assistant Secretary”), and his appeal was

pending when this lawsuit was filed. JA:162; see JA:173.

The same day that the district court dismissed the complaint in

this case, the Assistant Secretary issued a final decision rejecting the

results of elections conducted by the Tribe’s competing factions and

tribal council resolutions purporting to validate the results of one of

those elections. Kennedy v. Pac. Regional Director, Bureau of Indian

Affairs, Ord. by Larry Echo Hawk, Ass’t Sec’y – Indian Affairs, U.S.

Dep’t of Interior (March 1, 2011), available at: http://timbisha.com/

images/stories/Order_signed32011.pdf (visited June 24, 2011). The

Assistant Secretary concluded that Interior would recognize Gholson’s

government for 120 days for the purposes of carrying out government-

to-government relations and conducting a special election. Id. at 11.4

According to the Tribe’s public web site, a special election was

conducted in April 2011, and the results were certified and submitted to

Interior. See http://timbisha.com/ (visited June 24, 2011). According to 4 Plaintiffs challenged the Assistant Secretary’s decision in federal court, where they recently failed to obtain a preliminary injunction against that decision. See Timbisha Shoshone Tribe v. U.S. Dep’t of Interior, 2011 WL 1883862 (E.D. Cal. May 16, 2011).


8

the results on the Tribe’s web site, plaintiff Kennedy received the fewest

votes of any candidate. See id.

4. The Present Litigation. – Plaintiffs filed a complaint – both

in their individual and alleged official capacities as members of the

Tribal Council – purporting to bring suit on behalf of the Tribe to

challenge the constitutionality of the Distribution Act, claiming that it

takes tribal property without just compensation and that it deprives

plaintiffs of the equal protection of the laws. Plaintiffs moved for a

preliminary injunction to prevent the Secretaries of the Interior and the

Treasury from carrying out the distribution mandated by the Act, which

the district court denied. JA:251; see also JA:262. Plaintiffs filed a

notice of appeal from the preliminary injunction denial (JA:326),

docketed as case number 11-5019, and moved for an emergency

injunction pending appeal, which this Court denied.5

5 After this Court denied the plaintiffs’ motion for injunction pending appeal, Interior distributed approximately $69.8 million of the fund to over 3,000 individuals. See http://www.bia.gov/idc/groups/xregwestern/ documents/text/idc013454.pdf (visited June 2, 2011). The agency is in the process of reviewing appeals from individuals claiming to be eligible and has a target date of resolving them by December 2011, so as to complete the distribution of the fund (approximately $127 million remaining) this year. See id. at 1, 3 (¶¶ 8, 10).


9

While the appeal from the preliminary injunction denial was

pending, the district court dismissed the plaintiffs’ case in its entirety

pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state

a claim. JA:329-330; see also JA:347, JA:353, JA:359. Gholson had

filed an amicus brief supporting the United States’ dismissal request.

JA:55-62. As a preliminary matter, the court’s order addressed several

threshold arguments that the government raised under Federal Rule of

Civil Procedure 12(b)(1). First, the court ruled that it had jurisdiction

over the takings claim, concluding that such a claim did not have to be

brought in the Court of Federal Claims. JA:340-341. Next, the court

concluded that the allegations in the plaintiffs’ complaint, which the

court stated that it must accept as true, were “sufficient to survive a

motion to dismiss for lack of standing . . . .” JA:345.

After rejecting the government’s Rule 12(b)(1) arguments, the

court granted dismissal based on the government’s Rule 12(b)(6)

arguments. First, the court concluded that the plaintiffs failed to state

a claim against the Secretary of the Treasury (JA:347) – a conclusion

that the plaintiffs do not challenge on appeal. Next, the court concluded

that plaintiffs failed to state a claim for which relief can be granted

under the Fifth Amendment’s Takings Clause, because the Tribe “does

not have a property interest in the Fund . . . .” JA:353. Finally, in


10

evaluating plaintiffs’ equal protection claim, the court concluded that

rational basis review was the proper standard (JA:356) and further

rejected plaintiffs’ “policy arguments in favor of a different distribution

formula,” stating that “they do not invalidate the rationality or

reasonableness of Congress’s actions.” JA:358. Accordingly, the court

concluded that the plaintiffs “failed to state a claim for which relief can

be granted for denial of equal protection of the law” and granted the

government’s motion to dismiss in full. JA:359; see also JA:329-330.

Plaintiffs filed a timely notice of appeal from the dismissal order.6

SUMMARY OF ARGUMENT

As a preliminary matter, plaintiffs have not demonstrated that

they have the authority to maintain this suit. Plaintiff Kennedy and

his co-plaintiffs allege that they are Council members purporting to

represent the Tribe. But at no time in this litigation has the Secretary

recognized them as the Tribe’s leadership for the purposes of

government-to-government relations. And although the district court

concluded that the plaintiffs had standing based on the allegations in

their complaint, that was at a time when there was no recognized

6 As mentioned supra at 3-4 n.1, plaintiffs’ separate appeal from the interlocutory order denying a preliminary injunction was dismissed over their objection.


11

leadership at all. Regardless of plaintiffs’ ability to allege standing

during a time when there was no recognized tribal government,

Interior has now recognized another competing tribal faction, led by

Gholson, as the Tribe’s valid leaders. Because plaintiffs brought suit in

their official capacities, their successor, Gholson, should be substituted

automatically pursuant to Fed. R. App. P. 43(c)(2). Further, the appeal

should be dismissed on prudential mootness grounds because Gholson,

who participated in the district court litigation as amicus curiae,

supported dismissal of the plaintiffs’ complaint. Thus, the posture of

the plaintiffs in this appeal significantly differs from that in the original

dispute. Nor can the plaintiffs maintain suit in their individual

capacities: although their claims are premised on the notion that the

fund contains tribal property, plaintiffs concede (Br. 12) that individual

tribal members do not have any ownership interest in such property.

In addition to their lack of authority to maintain this suit, the

plaintiffs also have failed to state a claim upon which relief may be

granted. Pursuant to its plenary power to legislate in the field of Indian

affairs, especially when managing Indian property, Congress has

retained the authority to enact plans for distributing Indian Claims

Commission judgment funds, and may alter the plan at any time before

distribution. Congress’s power and retained authority in this regard


12

are inconsistent with the plaintiffs’ contention that they have a

property right in the judgment fund prior to distribution, which, if

taken, is compensable under the Fifth Amendment. Further, the

underlying judgment at issue here was in favor of the Western

Shoshone Identifiable Group of Indians – not any tribe in particular.

Plaintiffs are therefore mistaken insofar as they claim a vested interest

in that judgment.

Nor have plaintiffs stated an equal protection claim. The

Supreme Court has reviewed an equal protection challenge to another

distribution act and concluded that such legislation must be upheld as

long as any special treatment can be tied rationally to the fulfillment of

Congress’s unique obligation toward the Indians. That test is easily

met here, as the 2004 Act legitimately seeks to avoid delay and to

further administrative efficiency in compensating the descendants of

those who suffered an actionable deprivation more than a century ago.

ARGUMENT

I. THE DISTRICT COURT CORRECTLY DISMISSED PLAINTIFFS’ CASE A. Standard of Review

This Court reviews de novo the sufficiency of a complaint under

Federal Rule of Civil Procedure 12(b)(6). Kaemmerling v. Lappin, 553


13

F.3d 669, 676 (D.C. Cir. 2008); see also Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) (reviewing plaintiffs’ 12(b)(6) motion).

B. Plaintiffs Lack The Capacity To Maintain This Suit

Initially, plaintiffs have failed to demonstrate that they have the

legal capacity to maintain this lawsuit. Ordinarily, a plaintiff must

assert his own legal interests, rather than those of third parties. Fair

Emp’t Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268,

1277 (D.C. Cir. 1994). In the Indian law context, tribal members –

including dissenting factions within a tribe – may not assert claims on

behalf of a tribe. See James v. Watt, 716 F.2d 71, 72 (1st Cir. 1983); see

also Hackford v. Babbitt, 14 F.3d 1457, 1466 (10th Cir. 1994)

(individuals lack standing to sue concerning management of tribal

assets). Even where a case is captioned in the name of a tribe, the suit

cannot be maintained as such if the plaintiffs “ha[ve] no authority to act

for the [tribe] and bring suits in its name.” Cherokee Nation v. United

States, 80 Ct. Cl. 1, 3 (1932).

When Interior recognizes a tribe pursuant to the Indian

Reorganization Act, as it has done for the Timbisha, the tribe is placed

on a list that “is used by the various departments and agencies of the

United States to determine the eligibility of certain groups to receive

services from the United States.” Federally Recognized Indian Tribe


14

List Act of 1994, Pub. L. No. 103-454, § 103(7), 108 Stat. 4791, 4792

(codified as 25 U.S.C. 479a note). Among the Secretary’s

responsibilities to such tribes is to ensure that a tribe’s representatives,

with whom the Secretary conducts government-to-government

relations, are valid representatives of the tribe as a whole. See Calif.

Valley Miwok Tribe v. United States, 515 F.3d 1262, 1267 (D.C. Cir.

2008). Such responsibility “ensur[es] that the will of tribal members is

not thwarted by rogue leaders when it comes to decisions affecting

federal benefits.” Id.; see also Seminole Nation v. United States, 316

U.S. 286, 297 (1942) (“Payment of funds at the request of a tribal

council which, to the knowledge of the Government officers charged

with the administration of Indian affairs . . . , was composed of

representatives faithless to their own people and without integrity

would be a clear breach of the Government’s fiduciary obligation.”).

Here, as plaintiffs recognize (JA:162), the Tribe’s leadership was

contested at the time suit was filed, and Interior did not recognize any

entity as the appropriate tribal government. See JA:173; see also

JA:64, JA:65. Accordingly, we argued to the district court that

plaintiffs had no authority to bring suit on the Tribe’s behalf. See


15

James, 716 F.2d at 72; Hackford, 14 F.3d at 1466.7 The district court

disagreed, concluding that the government “fail[ed] to provide legal

support for [the] theory that standing to represent tribal interests is

premised on [the Bureau of Indian Affairs’] recognition” of a tribal

government. JA:343. But even if the district court correctly determined

that plaintiffs had standing at the time of their complaint, intervening

events have divested plaintiffs of their capacity to maintain suit on the

Tribe’s behalf.

As plaintiffs mention (Br. 24 n.6), the Assistant Secretary issued a

final decision on March 1, 2011, recognizing the Gholson’s government

for 120 days, for the purposes of carrying out government-to-

government relations and conducting a special election. See http://

www.timbisha.com/images/stories/Order_signed32011.pdf (visited

June 24, 2011), at 11. Although the plaintiffs were permitted by the

7 Although one plaintiff had an administrative appeal pending before the agency to recognize him as the tribal leader (JA:162, JA:173, JA:175), that appeal was resolved against him, as discussed infra. And, of course, justiciability must be evaluated throughout the lawsuit. Columbian Rope Co. v. West, 142 F.3d 1313, 1316 (D.C. Cir. 1998) (for Article III jurisdiction, it is well-established that “‘[a]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’”) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)). Cf. Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1141 (D.C. Cir. 2011) (evaluating standing at the time suit was filed).


16

district court to bring suit here in their official capacities, the effect of

the Assistant Secretary’s decision is that the plaintiffs must now be

replaced automatically pursuant to Federal Rule of Appellate Procedure

43(c)(2), which provides that “[w]hen a public officer who is a party to

an appeal . . . in an official capacity . . . ceases to hold office, the action

does not abate. The public officer’s successor is automatically

substituted as a party.” Fed. R. App. P. 43(c)(2).

Because amicus is recognized by the United States as the official

head of the Tribe (at least until the results of the special election are

evaluated by Interior for the purpose of conducting government-to-

government relations), amicus is automatically substituted in the

lawsuit, as is his associated Council.8 See Karcher v. May, 484 U.S. 72,

77 (1987) (“[Appellants] intervened in this lawsuit in their official

capacities . . . . They do not appeal the judgment in those capacities.

Indeed, they could not, for they no longer hold those offices.”).

Furthermore, because amicus supported dismissal of the lawsuit (JA:55,

8 According to the Tribe’s public web site, a special election was conducted in late April 2011, and the results were certified and submitted to Interior. See http://timbisha.com/ (visited May 31, 2011). The lead plaintiff, Mr. Kennedy, received the fewest votes of any candidate. Id. Interior, however, has not yet had the occasion to determine whether to recognize the results of the election for purposes of conducting government-to-government relations with the Tribe.


17

JA:62), the appeal is now highly attenuated from the original dispute

and should be dismissed on that ground. See Penthouse Int’l, Ltd. v.

Meese, 939 F.2d 1011, 1019 (D.C. Cir. 1991); Chamber of Commerce v.

U.S. Dep’t of Energy, 627 F.2d 289, 291 (D.C. Cir. 1980) (permitting

dismissal where a given controversy, though “not actually moot, is so

attenuated that considerations of prudence and comity for coordinate

branches of government counsel the court to stay its hand, and to

withhold relief it has the power to grant”). 9

Insofar as plaintiffs might be attempting to maintain suit in their

individual capacities, they still lack standing. Plaintiffs’ claims are

premised upon the contention that the United States has taken tribal

property. For example, their takings claim alleges that an undivided

share of the fund is “the private property of the Plaintiff Timbisha

9 Plaintiffs argue that if there was a factual dispute as to their standing, the district court should have held an evidentiary hearing. Br. 25. But there is no such factual dispute. The Assistant Secretary’s decision is not at issue here, and the pertinent rule, Fed. R. App. P. 43(c)(2), requires substitution “automatically.” Nor, for that matter, did plaintiffs request a hearing before the district court. See JA:118-152, JA:278-283, JA:317-319. Plaintiffs have therefore waived their right to make such a request to this Court in the first instance. See United States v. TDC Mgmt. Corp., 288 F.3d 421, 425 (D.C. Cir. 2002). Regardless, Interior’s subsequent recognition of the government of amicus (for limited purposes) divests plaintiffs of the ability to maintain suit in whatever official capacities they might have held.


18

Shoshone Tribe.” JA:20. Similarly, their equal protection claim alleges

that the Act denies plaintiffs, “based upon Plaintiffs’ Indian ancestry or

race . . . the right to just compensation for a taking.” JA:21. Plaintiffs

concede, however, that “[p]roperty belonging to a tribe does not belong

to the members of the tribe.” Br. 12. And that principle is in

agreement with this Court’s precedent that “‘[n]o individual Indian has

title or an enforceable right in tribal property.’” Wichita & Affiliated

Tribes of Okla. v. Hodel, 788 F.2d 765, 779 (D.C. Cir. 1986) (quoting

Holt v. Comm’r of Internal Revenue, 364 F.2d 38, 41 (8th Cir.1966)).

Plaintiffs therefore do not have standing in their individual capacities

to assert any rights as to what they allege is the Tribe’s property –

either for purposes of their takings or equal protection claims. See

Alaska Legislative Council v. Babbitt, 181 F.3d 1333, 1339 (D.C. Cir.

1999) (“For the purpose of establishing standing, it is not enough

merely to claim discrimination. The plaintiffs must be able to trace the

discrimination to some ‘distinct and palpable’ injury to them.”)

(emphasis added); see also Jasper v. Sawyer, 205 F.2d 700, 701-702

(D.C. Cir. 1953) (plaintiff lacked standing to enjoin taking of property

for use as an airport where “[n]one of appellant’s property is sought to

be condemned”).


19

Even if plaintiffs could establish their standing, however, their

complaint was properly dismissed because, as set forth infra, they have

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

C. Plaintiffs Fail To State A Takings Claim

The Fifth Amendment provides that “private property” shall not

“be taken for public use, without just compensation.” U.S. CONST.

amend. V. To demonstrate a Fifth Amendment takings claim, plaintiffs

must possess a compensable property interest. Nixon v. United States,

978 F.2d 1269, 1275 (D.C. Cir. 1992). Where the government creates

what is alleged to be an entitlement, however, and retains the power to

alter it, there is no compensable “property” right, and any subsequent

alteration is not a taking. See Roth v. King, 449 F.3d 1272, 1286 (D.C.

Cir. 2006) (citation omitted).

Congress retains the power to revise the allocation of an Indian

Claims Commission judgment fund at any time before a distribution

has been made. See Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 90

(1977); see also Lebeau v. United States, 474 F.3d 1334, 1343 (Fed.

Cir.), cert. denied, 551 U.S. 1146 (2007). That power, which stems from

Congress’s broad constitutional authority to manage property held in

trust for Indians, is consistent with the Supreme Court’s recognition of

Congress’s authority to alter the distribution of other types of property


20

held in trust for Indians. See N. Cheyenne Tribe v. Hollowbreast, 425

U.S. 649, 653-56 (1976) (recognizing “the wide ranging congressional

power to alter allotment plans until those plans are executed”); United

States v. Jim, 409 U.S. 80, 82-83 (1972) (finding it “was well within the

power of Congress” to alter the distributional scheme for royalties from

oil and gas leases); Gritts v. Fisher, 224 U.S. 640, 648 (1912)

(distribution of land allotments). Congress’s authority in this regard

includes the power to determine the members of a tribe entitled to

receive proportionate shares of tribal funds. See Cherokee Nation v.

Hitchcock, 187 U.S. 294, 306-307 (1902); Stephens v. Cherokee Nation,

174 U.S. 445, 488 (1899).

Congress, pursuant to its “plenary power over Indian affairs,”

defines the responsibilities of federal agencies to carry out the delegated

functions concerning the management of property held in trust for

tribes. See S. Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998);

King v. Ickes, 64 F.2d 979 (D.C. Cir. 1933); see also United States v.

Jicarilla Apache Nation, --- S.Ct. ----, 2011 WL 2297786, at *11

(June 13, 2011). The federal government’s authority in this area is

“drawn both explicitly and implicitly from the Constitution itself.”

Morton v. Mancari, 417 U.S. 535, 551-52 (1974). To begin, the

Constitution gives Congress the power to “regulate Commerce” with


21

Indian tribes, U.S. CONST. art. I, § 8, cl. 3, and also gives the President

authority to “make Treaties” with tribes. U.S. CONST. art. II, § 2, cl. 2.

The “existence of federal power to regulate and protect the Indians

and their property” is also implicit in the structure of the Constitution.

Bd. County Comm’rs v. Seber, 318 U.S. 705, 715 (1943). “In the

exercise of the war and treaty powers, the United States overcame the

Indians and took possession of their lands, sometimes by force, leaving

them . . . needing protection . . . . Of necessity, the United States

assumed the duty of furnishing that protection, and with it the

authority to do all that was required to perform that obligation.” Id.

Thus, “[n]ot only does the Constitution expressly authorize Congress to

regulate commerce with the Indian tribes, but long continued legislative

and executive usage and an unbroken current of judicial decisions have

attributed to the United States . . . the power and the duty of exercising

a fostering care and protection over all dependent Indian communities.”

United States v. Sandoval, 231 U.S. 28, 45-46 (1913); see also United

States v. Kagama, 118 U.S. 375, 384-85 (1886).

Pursuant to this broad authority, Congress in the mid-1960s

began including in each annual appropriation to Interior a proviso that

“funds derived from appropriations in satisfaction of awards of the

Indian Claims Commission and the Court of Claims shall not be


22

available . . . until after legislation has been enacted that sets forth the

purposes for which said funds will be used.” Pub. L. No. 88-356, 78

Stat. 276 (1964). Similar provisos were included in subsequent years,10

thereby establishing a congressional policy that recipients of Indian

Claims Commission judgment awards must obtain authorizing

legislation to permit distribution or expenditure of those funds. See

H.R. Rep. No. 93-377, at 4 (1973); S. Rep. No. 93-167, at 1 (1973)

(acknowledging the “current Congressional policy”). Contemporary

courts recognized that Congress had by that time “taken upon itself . . .

this function of defining the individuals or classes who are to share in a

judgment under the [Indian Claims Commission] Act.” Cherokee

Freedmen v. United States, 195 Ct. Cl. 39, 46-47 (1971).

In 1973, Congress ended the practice of using annual

appropriation laws to restrict the distribution of judgment funds

legislation, and instead codified the policy in the United States Code by

enacting the Judgment Funds Use or Distribution Act, Pub. L. No. 93-

134, 87 Stat. 466. Under the Act, if circumstances do not permit the 10 See Pub. L. No. 92-369, 86 Stat. 511 (1972); Pub. L. No. 92-76, 85 Stat. 232 (1971); Pub. L. No. 91-361, 84 Stat. 672 (1970); Pub. L. No. 91-98, 83 Stat. 150 (1969); Pub. L. No. 90-425, 82 Stat. 429 (1968); Pub. L. No. 90-28, 81 Stat. 62 (1967); Pub. L. No. 89-435, 80 Stat. 173 (1966); Pub. L. No. 89-52, 79 Stat. 177 (1965); see also Pub. L. No. 88-79, 77 Stat. 100 (1963); Pub. L. No. 87-578, 76 Stat. 338 (1962).


23

Secretary to reach consensus and prepare a proposed distribution plan

within a fixed period of time, then Congress must establish a plan

through legislation. See 25 U.S.C. 1402(c), (d). Because the requisite

time for the Western Shoshone judgment fund passed without

consensus as to a plan to be proposed by the Secretary, the authority to

establish a distribution scheme was left exclusively to Congress. Ibid.11

In creating the Commission and waiving the government’s

sovereign immunity to suit,12 Congress granted permission for tribes,

bands, and other identifiable groups of Indians to seek judgments on

claims for which, absent private bills, they would have had no redress.

At the same time, Congress retained its authority to determine how to

allocate such judgments. Such retained authority prevents plaintiffs

from having a compensable property interest in the distribution of the

fund. See Lebeau, 474 F.3d at 1343; see also Roth, 449 F.3d at 1286.

11 The judgment in favor of the Western Shoshone Identifiable Group became final in 1979, which had the effect of automatically setting aside the amount of the award and depositing it in a trust account in the United States Treasury pursuant to the former 31 U.S.C. 724a (1976 Supp. II). See Dann, 470 U.S. at 42. Development of a distribution plan by the Secretary required consultation with members of the Identifiable Group, however, and disagreement within the group – including further litigation by some who believed that their title had not been extinguished by the Commission’s judgment – hindered that effort. See id. at 42-44; see also H.R. Rep. No. 108-299, at 5 (2003).

12 25 U.S.C. 70a (1976)


24

For similar reasons, the Federal Circuit has concluded that there

is no vested right to distribution of a judgment fund until distribution

actually occurs. See Lebeau, 474 F.3d at 1343.13 And that court’s case

law is controlling on district courts within this Circuit on takings claims

brought under the Little Tucker Act, given that the Federal Circuit

“shall have exclusive jurisdiction” over appeals in such cases. 28 U.S.C.

1295(a)(2); see also Kline v. Cisneros, 76 F.3d 1236, 1239-40 (D.C. Cir.

1996). While the Federal Circuit’s decisions are, of course, not binding

on this Court, there is no reason to reach a different conclusion than in

Lebeau merely because plaintiffs’ takings claim was not pleaded under

the Little Tucker Act. Indeed, a contrary result would make the

substantive law concerning plaintiffs’ purported rights turn upon their

pleading style. But “in the ‘murky’ area of Tucker Act jurisprudence . . .

one of the few clearly established principles is that the substance of the

pleadings must prevail over their form.” Nat’l Ass’n of Counties v.

Baker, 842 F.2d 369, 373 (D.C. Cir. 1988) (quoting Amoco Prod. Co. v.

Hodel, 815 F.2d 352, 361 (5th Cir. 1987)). And this Court has

13 Plaintiffs argue that the Judgment Fund Use or Distribution Act provides a procedure for distributing awards to tribes and individual members “with the consent of the tribes.” Br. 14. The statute expressly provides, however, that legislation may be enacted even where tribes do not consent to the proposed distribution plan. See 25 U.S.C. 1402(d).


25

recognized that in enacting Section 1295(a)(2), Congress “did ‘not

intend[ ] to create forum shopping opportunities between the Federal

Circuit and the regional courts of appeals,’ and it did not want federal

court jurisdiction to be ‘manipulated’ by artful pleading. Rather, it

expected ‘the integrity of the jurisdiction of the federal courts of appeals’

to be ensured.” Bembenista v. United States, 866 F.2d 493, 497 (D.C.

Cir. 1989) (quoting S. Rep. No. 275, 19–20 (1981) (internal citation

omitted).

Plaintiffs argue that the holding in Lebeau, that there is no vested

right to a judgment fund except once distribution occurs, is inapplicable

here because Lebeau involved individual, rather than tribal plaintiffs.

Br. at 10-11. That distinction is unimportant, however, and was not

mentioned as part of the Federal Circuit’s reasoning in Lebeau. Rather,

the decision in that case turns on Congress’s plenary power to modify

the distribution scheme, i.e., the fact that the plaintiffs’ “right to their

per capita share of the Judgment Fund was always subject to

modification by Congress until distribution of their share occurred.”

Lebeau, 474 F.3d at 1343.

Additionally, the plaintiffs here and in Lebeau are similarly-

situated because none were actually the recipients of the judgment.

Here, the Tribe is but one of many constituents of the “Western


26

Shoshone Identifiable Group” to whom Congress might have chosen to

distribute the funds.14 Similarly, in Lebeau, the plaintiffs were

descendants of the members of the named holders of the judgment, the

Sisseton and Wahpeton Sioux Tribes, rather than the judgment holders

themselves. 474 F.3d at 1336; see Sisseton & Wahpeton Bands of

Tribes v. United States, 18 Ind. Cl. Comm. 526-a (1967) (judgment).15

This distinction between the actual holders of the judgment and the

descendants of their members is fatal to plaintiffs’ argument, because

although they assert that courts have characterized judgment funds as

belonging “to the tribe or tribes awarded the judgment,” (Br. 11

(emphasis added)), the plaintiffs never mention that they themselves

were not actually awarded the judgment.

14 Instead, Congress directed a per capita distribution to “individuals” on the judgment roll established by the Secretary. Pub. L. No. 108-270, §§ 3(b)(1), 3(c)(1), 118 Stat. 806.

15 Likewise, the holders of the judgment in Weeks were also tribes: the Absentee Delaware Tribe of Oklahoma (represented by individual relators) and the Delaware Tribe of Indians. See Absentee Del. Tribe v. United States, 21 Ind. Cl. Comm. 369 (1969); see also Del. Tribe v. United States, 128 F. Supp. 391, 398-99 (Ct. Cl. 1955) (affirming participation by both tribes). The fact that Weeks refers to the judgment in that case as “tribal property,” therefore, reflects the fact that the judgment at issue ran to those tribes. 430 U.S. at 85. That label does not apply here, as plaintiffs contend (e.g., Br. 12), because the judgment was in favor of an identifiable group, not any specific tribe.


27

Plaintiffs argue that they have a vested property right because the

fund stems from an award by the Commission, which has the same

legal effect of a final judgment by the former Court of Claims. Br. at 6-

9. That argument suffers from several flaws. For one, plaintiffs were

not the holders of the judgment. The original judgment was entered

“for and on behalf of the Western Shoshone Identifiable Group.” 40 Ind.

Cl. Comm. at 453 (emphasis added). That is consistent with the Indian

Claims Commission Act, which permitted claims on behalf of

identifiable groups. 25 U.S.C. 70a (1976).16 The judgment did not run

to the Timbisha Shoshone Tribe or to any other recognized tribe of

Shoshone Indians.

For the same reason, it is the Identifiable Group, not any one

particular tribe or subset of individuals, that may have been the

16 Plaintiffs’ reliance upon a statement in the government’s brief in Dann that the “Western Shoshones” have a vested right to beneficial ownership of the fund does not help them. Br. at 9. The government’s brief in Dann makes clear that the litigation before the Commission “was an action seeking an award on behalf of a common tribal entity, the Western Shoshone Identifiable Group,” and notes that the government’s liability is to that single “claimant.” Dann, U.S. Br., 1984 WL 565954, at 24 n.12, 27. And although the United States acknowledged that it “may not convert the trust fund to its own purposes” absent payment of just compensation (id. at 23, emphasis added), the fund here is not being converted to the government’s use but is being distributed to individual Western Shoshones consistent with the judgment.


28

beneficial owner of the fund at the time of the Court of Claims

judgment. That was clarified when Congress enacted the 2004 Act,

which specified the class of beneficiaries who would receive the

distribution. But determining the beneficiaries was entirely within

Congress’s power. See Weeks, 430 U.S. at 84; Hollowbreast, 425 U.S. at

653-56; Jim, 409 U.S. at 82-83; see also Hitchcock, 187 U.S. at 306-07;

Stephens, 174 U.S. at 488. As observed by the leading Indian law

treatise:

Congress has the power to determine the members of the tribe entitled to receive proportionate shares of tribal lands or funds. This general power also includes the right to establish procedures to determine tribal membership for the distribution of damage claim awards if there is an appropriation satisfying the judgment and if per capita distribution of the judgment is intended by Congress.

Cohen’s Handbook of Federal Indian Law, 456 § 5.06(7) (2005 ed.).

Nor are plaintiffs correct (Br. 7-8) in implying that there is a

separation of powers problem in this arrangement. As a threshold

matter, plaintiffs never raised such an argument in the district court

and have not provided any reason why this Court should consider the

issue in the first instance. TDC Mgmt. Corp., 288 F.3d at 425.

Regardless, plaintiffs’ argument (Br. 7-8) that the 2004 Act violates the

separation of powers doctrine by altering a final judgment fails. The


29

judgment at issue was satisfied more than 30 years ago when money

was automatically set aside in trust on behalf of the Western Shoshone

Identifiable Group. See Dann, 470 U.S. at 42; see also 31 U.S.C. 724a

(1976 Supp. II) (automatically appropriating such monies after the

judgment is certified as final). And, generally speaking, judgments are

no longer enforceable once they have been satisfied. See, e.g., Junghans

v. Junghans, 112 F.2d 212, 213 (D.C. Cir. 1940) (“[T]he original

judgment remains enforceable until it is satisfied.”) (emphasis added);

see also RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 116 (1971) (“A

judgment will not be enforced in other states if the judgment has been

discharged by payment or otherwise . . . .”). Thus, there was no

outstanding judgment left to be altered – just a fund to be managed

and, when required by Congress, distributed.

Plaintiffs effectively recognize as much insofar as they have

already sued the United States in the Court of Federal Claims, alleging

that the government breached its trust obligation by mismanaging the

fund. See W. Shoshone Identifiable Group v. United States, No. 06-896

(Fed. Cl. Nov. 24, 2009) (Br. 51-52 (Addendum II)). But while

management of the fund is the responsibility of the Executive Branch,

determining the proper distribution of that fund is a quintessentially

legislative task, in which Congress has considerable discretion. See


30

Weeks, 430 U.S. at 84-85; see also Delorme v. United States, 354 F.3d

810, 816-17 (8th Cir. 2004). Further, the courts’ willingness to defer to

Congress’s judgment in this area makes sense. As one former Assistant

Secretary pointed out, the identification of beneficiaries “often demands

intense research in the cultural and political history of the involved

group or groups. This is a task that neither the Indian Claims

Commission nor the Court of Claims is equipped to handle.” S. Rep. No.

93-167, at 5 (1973).

Plaintiffs attempt to support their argument that the Tribe has a

vested right to the fund’s distribution by citing an unpublished

interlocutory order in a separate lawsuit before the Court of Federal

Claims rejecting the government’s argument that the Tribe failed to

state a claim for Interior’s alleged breach of trust in managing the fund.

Br. 9 (citing W. Shoshone Identifiable Group v. United States, No. 06-

896 (Fed. Cl. Nov. 24, 2009), slip op. at 14). That order, however, does

not address whether plaintiffs have a vested property right in the

judgment fund. Indeed, the Court of Federal Claims noted that “its

holding did not, in this case, require the Tribal Plaintiffs to have vested

interests in the proceeds of the distribution of the Western Shoshone

tribal trust funds.” Br. 53 (Addendum II). In contrast, plaintiffs here

claim to have a vested interest in the proceeds of distribution – a


31

contention directly at issue and rejected by the Federal Circuit in

Lebeau.

D. Plaintiffs Fail To State An Equal Protection Claim

As a guarantee of the Fifth Amendment’s right to due process,

Congress shall not “deny to any person within its jurisdiction the equal

protection of the laws.” U.S. CONST. amend. XIV, § 1; see Weeks, 430

U.S. at 75 n.1 (stating that Fifth Amendment equal protection claims

are cognizable under the Due Process Clause). The essence of equal

protection is that “all persons similarly situated should be treated

alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439

(1985). That requirement must coexist, however, “with the practical

necessity that most legislation classifies for one purpose or another,

with resulting disadvantage to various groups or persons.” Romer v.

Evans, 517 U.S. 620, 631 (1996); see also D.C. Fed’n of Civic Ass’ns, Inc.

v. Volpe, 434 F.2d 436, 439 (D.C. Cir. 1970) (“it is not every legislative

discrimination between similarly situated groups which is violative of

equal protection guarantees”).

When considering equal protection claims regarding distribution

acts, courts “defer to congressional determination of what is the best or

most efficient use for which tribal funds should be employed” and

should not disturb that legislative choice “‘[a]s long as the special


32

treatment can be tied rationally to the fulfillment of Congress’ unique

obligation toward the Indians.’” Weeks, 430 U.S. at 84, 85 (quoting

Mancari, 417 U.S. at 555).

The 2004 Act satisfies rational basis review because it serves the

legitimate purpose of “avoid[ing] undue delay, administrative difficulty,

and potentially unmeritorious claims.” Weeks, 430 U.S. at 89. The

distribution will compensate the Western Shoshone Identifiable Group

for a century-old wrong. See 11 Ind. C1. Comm. at 416 (finding that the

Western Shoshones were “deprived of their lands” in the nineteenth

century by “gradual encroachment by whites, settlers and others.”); see

also S. Rep. No. 108-151, at 2 (noting that the award represented “the

1872 value of the lands allegedly taken”). Indeed, the Senate bill’s

sponsor, Senator Reid, noted in his floor remarks after passage of the

bill that “Thousands of Indians will benefit from this fund,” many of

whom “live in such desperate straits . . . . Large numbers are on

welfare. The places they live in are very difficult.” 150 Cong. Rec.

S7495 (2004).

As in Weeks, the central purpose of the legislation is to avoid any

further delay in payment. The original lawsuit was brought before the

Commission approximately sixty years ago, in 1951, and the judgment

was entered and appropriated more than thirty years ago, in 1979, and


33

has been accruing interest ever since. As the Senate Report noted, “[n]o

distribution of these funds ha[d] yet occurred” prior to the passage of

the Act. S. Rep. No. 108-151, at 2. The House Report concluded, flatly,

that “[d]elaying the distribution of the funds is unreasonable and

unfair.” H.R. Rep. No. 108-299, at 5.

Senator Reid’s remarks emphasized the consequences of delay:

“Thousands of Indians have waited. Some . . . are gone. They will

never receive the benefit of this legislation, only their families will.”

150 Cong. Rec. at S7495. The sponsor of the legislation in the House of

Representatives, Representative Gibbons, who counts Western

Shoshones among his constituents, also took note of the delay,

observing: “For nearly 3 decades, the men and women of the Shoshone

Tribe have waited for access to these funds.” 150 Cong. Rec. H4610,

4612 (2004). Similar observations were made by the chairman of the

Te-Moak tribe (the representative of Western Shoshones in the Indian

Claims Commission suit) in testimony before the Senate Subcommittee

on Indian Affairs. He stated that the “people have waited long enough,”

and that the “committee of our tribal members has passed away

without benefiting from this money that was set aside for them.”

Western Shoshone Claims Distribution Act: Hearing Before the S.

Subcomm. on Indian Affairs on S. 958, 107th Cong. 19 (2002) (“S.


34

Subcomm. Hearing”) (statement of Felix Ike). Based on such a

legislative record, it is apparent that Congress rationally sought to

further the legitimate purpose of distributing funds that would benefit

the Western Shoshones without any further delay.

Plaintiffs argue that the government did not explain why avoiding

delay is a legitimate rationale “for taking a money fund belonging to the

tribes and giving it to others.” Br. 22. That is an incorrect

characterization of what the Distribution Act does, however and, in any

event, it ignores the unique nature of an Indian Claims Commission

judgment fund. As explained supra, the award is intended as

compensation for a wrong that occurred over a hundred years ago.

Consequently, there “necessarily is a large measure of arbitrariness in

distributing an award for a century-old wrong” that would attend any

distribution scheme, given that one could “regard the distribution as a

windfall for whichever beneficiaries are now favored.” Weeks, 430 U.S.

at 91 (Blackmun, J., concurring). It is precisely such “difficulty in

determining the appropriate standards for the selection of those who

are to receive the benefits,” however, that counsels in favor of deferring

to the legislature’s choice. Ibid. Regardless, the Act distributes the

funds to Western Shoshones, a legitimate purpose given that the

judgment was in favor of the Identifiable Group of such Indians. And it


35

would be permissible to compensate some Western Shoshones but not

others. See id. at 84 (“Congress may choose to differentiate among

groups of Indians in the same tribe in making a distribution”) (citing

Simmons v. Seelatsee, 384 U.S. 209 (1966)).

Plaintiffs contend (Br. at 16) that the Supreme Court’s application

of rational basis review to distribution acts does not survive Adarand

Constructors, Inc. v. Peña, 515 U.S. 200 (1995), which applied strict

scrutiny to a legislative classification that on its face discriminated

based on race. No court, however, has applied Adarand to a

distribution act. Prior to Adarand, the Supreme Court reviewed a

distribution act and upheld it under rational basis review in Weeks.

The Weeks case, therefore, provides the appropriate standard of review.

Plaintiffs’ argument would require this Court to conclude that

Weeks has been overruled sub silentio by Adarand. However, it is the

Supreme Court’s prerogative alone to overrule its own precedent. See

Agostini v. Felton, 521 U.S. 203, 237 (1997) (citing Rodriguez de Quijas

v. Shearson/ American Exp., Inc., 490 U.S. 477, 484 (1989)). This Court

has recognized as much in the Indian law context, when it concluded

that it lacks the power to decide whether Adarand implicitly overruled

Mancari. See U.S. Air Tour Ass’n v. FAA, 298 F.3d 997, 1012 n.8 (D.C.


36

Cir. 2002). Similarly, the Court should decline the plaintiffs’ invitation

to decide that Adarand implicitly overruled Weeks.

The inconsistencies in plaintiffs’ argument are highlighted by

their attempt to distinguish Weeks, which applied rational basis

scrutiny to Indian classifications in a distribution act, from the current

case. Plaintiffs contend that Weeks was a “non-racial equal protection

challenge” (Br. 13), but that contention overlooks the fact that the

statute at issue in the case did refer to ancestry. Specifically, the

eligibility for distribution of funds in Weeks turned on whether an

individual’s name “or the name of a lineal ancestor” appeared on certain

lists approved by the Secretary. See 25 U.S.C. 1292(c)(1), (2).

To the extent that either the statute at issue in Weeks or the 2004

Act does mention ancestry, however, that is not the statute’s primary

classification. Rather, as the district court here recognized, the

“Distribution Act classifies the persons affected . . . in terms of their

relationship to the [Indian Claims Commission] decision.” JA:356.

Indeed, the plaintiffs’ argument that the 2004 Act is a racial

classification ignores that the Commission’s existence itself arose from

the United States’ political relationship with Indians, as Congress in

creating the Commission sought to redress claims by tribes, identifiable

groups, and bands of Indians that were “existing as distinct entities.”


37

25 U.S.C. 70l (a) (1976). Even the plaintiffs here recognized that the

government’s political relationship Indians legitimately warrants

rational basis review. See JA:355 (quoting plaintiffs’ opposition to

dismissal). And “this circuit has continued to apply Mancari post ̶

Adarand,” U.S. Air Tour Ass’n, 298 F.3d at 1012 n.8, explaining that

“ordinary rational basis scrutiny applies to Indian classifications just as

it does to other non-suspect classifications under equal protection

analysis.” Narragansett Indian Tribe v. Nat’l Indian Gaming Comm’n,

158 F.3d 1335, 1340 (D.C. Cir. 1998). That Congress must determine

the best manner of compensating the descendants of those once

belonging to those political entities should not transform the

Distribution Act into a racially-based statute.

In sum, Plaintiffs’ attempt to distinguish Weeks fails. In both

cases, the relevant statute directed distribution of judgment funds to

persons who could prove particular facts regarding their ancestry. The

Weeks Court applied rational basis review and upheld the distribution

act at issue in that case. The same standard of review is mandated

here, and the 2004 Act should be upheld.


38

II. PLAINTIFFS’ CHALLENGES TO THE PRELIMINARY INJUNCTION DENIAL SHOULD BE REJECTED A. Standard of Review

A preliminary injunction is an “extraordinary and drastic remedy”

that is “never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-

90 (2008). Before granting such relief, a district court must consider

whether: “(1) the plaintiff has a substantial likelihood of success on the

merits; (2) the plaintiff would suffer irreparable injury were an

injunction not granted; (3) an injunction would substantially injure

other interested parties; and (4) the grant of an injunction would

further the public interest.” Ark. Dairy Coop. Ass’n, Inc. v. U.S. Dep’t of

Agric., 573 F.3d 815, 821 (D.C. Cir. 2009); see Winter v. Natural Res.

Def. Council, Inc., 129 S. Ct. 365, 374 (2008). This Court reviews a

district court’s denial of a preliminary injunction for abuse of discretion

and reviews the district court’s legal conclusions de novo. Davis v.

Pension Ben. Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009).

B. The Court Should Not Reach The Propriety Of The Preliminary Injunction Denial

In addition to challenging the district court’s dismissal order on

the merits, the plaintiffs argue that the district court abused its

discretion in denying plaintiffs’ preliminary injunction motion. Br. 23-


39

30. Assuming that this Court affirms the dismissal order, however, it

should not reach the propriety of the preliminary injunction denial,

because that question became moot upon entry of the final order of

dismissal. As explained supra, the district court finally resolved the

plaintiffs’ complaint by dismissing it for lack of merit. But the purpose

of a preliminary injunction is only to preserve the status quo pending

the outcome of litigation. Dist. 50, United Mine Workers of Am. v. Intl.

Union, United Mine Workers of Am., 412 F.2d 165, 168 (D.C. Cir. 1969).

Accordingly, “[d]ismissal of the case moots [a plaintiff’s] appeal from the

district court’s denial of his motion for a preliminary injunction, as he

no longer has a potential claim or continuing litigation and [this Court

has] adjudged him unsuccessful on the merits of his case.”

Kaemmerling, 553 F.3d at 686.17 But if the Court is nonetheless

17 If this Court were to find that the district court’s decision on the merits was in error, a remand to the district court to reconsider the propriety of injunctive relief would be appropriate. And the district court could entertain a new request for a preliminary injunction at that time. Two partial distributions of the fund have occurred since the district court denied the preliminary injunction, and it is possible that additional distributions might occur prior to a decision in this appeal, possibly rendering the case moot. The district court is the proper forum for addressing that question in the first instance. See Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 846 (D.C. Cir. 1982) (remanding for findings on mootness where “[u]pon the record before us, we are unable to determine whether injunctive relief on the bid award is still realistically a remedy”); see also Hudson v. Hardy, 424 F.2d 854,


40

inclined to address the preliminary injunction denial, we show below

that the district court did not abuse its discretion.

C. The District Court Did Not Abuse Its Discretion In Denying The Preliminary Injunction

1. Plaintiffs Have Not Shown That Irreparable Injury Would Occur In The Absence Of An Injunction

Monetary loss is usually not an irreparable injury supporting

injunctive relief where a plaintiff has another adequate remedy at law.

See Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). Insofar

as plaintiffs claim a taking, that action “is only unconstitutional if the

government fails to pay just compensation, and the Tucker Act [28

U.S.C. 1491] provides for such a remedy.” Nat’l Min’g Ass’n v.

Kempthorne, 512 F.3d 702, 711 (D.C. Cir. 2008); see also Preseault v.

Interstate Commerce Comm’n, 494 U.S. 1, 11-12 (1990). Were they to

satisfy all other prerequisites (e.g., standing) and demonstrate a valid,

vested property interest that had been taken, plaintiffs “can pursue

their takings claim in the United States Court of Federal Claims.” Nat’l

Min’g Ass’n, 512 F.3d at 711.

Plaintiffs argue that a damages suit would be barred because

other tribes having an interest in the fund would be necessary parties

855-56 (D.C. Cir. 1970) (issue of mootness that may turn on non-record facts was “best presented to the District Court on remand”).


41

that could not be joined due to their sovereign immunity from suit. Br.

26. That is not necessarily correct, however, because the United States

often adequately represents non-party tribes’ interests. See Ramah

Navajo School Board, Inc. v. Babbitt, 87 F.3d 1338, 1351-52 (D.C. Cir.

1996) (challenge to distribution by Interior of a fixed sum of money

among non-party tribes, where Interior lacked authority to give one

non-party tribe a greater share than another).18 And here, the other

tribes would have no more a vested interest in the proceeds of the

distribution than would the plaintiffs, for the reasons explained supra.

Even where tribes are necessary parties, however, dismissal is not

automatic just because the tribes have sovereign immunity. Cf. Wichita

& Affiliated Tribes of Okla., 788 F.2d at 771-72, 774 (noting the

importance of sovereign immunity but nonetheless noting that court

must engage in balancing test under Fed. R. Civ. P. 19(b) to determine

18 Nor, as plaintiffs argue (Br. 27), is there a relevant threat here that an equity interest in a fund might be extinguished if assets are not preliminarily frozen. Although it might be necessary to freeze the assets of a private party “because it assist[s] the ultimate equitable relief of rescission,” Ellipso, Inc. v. Mann, 480 F.3d 1153, 1160 (D.C. Cir. 2007), rescission would be unnecessary for a Tucker Act judgment. Instead, the money would be paid, pursuant to 28 U.S.C. 2517, from a general appropriation established for satisfying judgments by the Court of Federal Claims against the government. See 31 U.S.C. 1304(a).


42

if tribes are indispensible).19 Indeed, courts are “extremely reluctant to

grant motions to dismiss based on nonjoinder and, in general, dismissal

will be ordered only when the defect cannot be cured and serious

prejudice or inefficiency will result.” 7 Charles Alan Wright, et al.,

Federal Practice and Procedure § 1609, at 130 (3d ed. 2001) (“Wright

and Miller”); see also Bourdieu v. Pacific Western Oil Co., 299 U.S. 65,

70-71 (1936) (courts of equity will “strain hard” to decide the merits

without prejudice to the rights of necessary but absent parties).

The trial court would need to conclude, after making a fact-specific

inquiry “in equity and good conscience” whether the action should

proceed in the other tribes’ absence, after considering the extent to

which the other tribes would be prejudiced; the extent to which any

such prejudice could be lessened or avoided by protective provisions or

shaping of relief in the judgment; whether a judgment rendered in the

other tribes’ absence would be adequate; and whether a plaintiff would

have other remedies if the action were dismissed. See R. Ct. Fed. Cl.

19(b). Because such an inquiry is highly fact-specific and depends upon

pragmatic considerations, see Wright & Miller, § 1601 at 15, it cannot

be said that a suit for just compensation would necessarily be dismissed 19The relevant portions of Rule 19 of the Court of Federal Claims are identical to those in the Federal Rules of Civil Procedure.


43

for failure to join other tribes as indispensible parties. See, e.g.,

Ramah, 87 F.3d at 1351-52.

Plaintiffs argue (Br. 26) that injunctive relief is appropriate

because they have no remedy at law and that just compensation under

the Tucker Act, 28 U.S.C. 1491, is unavailable. Plaintiffs are correct

that under this Court’s precedent, “in cases involving straightforward

mandates of cash payment to the government, courts may reasonably

infer either that Tucker Act jurisdiction has been withdrawn or at least

that any continued availability does not wipe out equitable jurisdiction.”

Student Loan Marketing Ass’n v. Riley, 104 F.3d 397, 402 (D.C. Cir.

1997) (emphasis added); see also E. Enterps. v. Apfel, 524 U.S. 498, 521

(1998) (plurality opinion, concluding that the “presumption of Tucker

Act availability must be reversed” in such circumstances).

But the 2004 Act is hardly a “straightforward mandate[],” id., such

that it can reasonably be inferred that “Congress has in the [statute]

withdrawn the Tucker Act grant of jurisdiction to the [Claims Court] to

hear a suit involving the [statute] ‘founded . . . upon the Constitution.’”

Preseault, 494 U.S. at 12 (emphasis, citation omitted). One purpose of

the Indian Claims Commission was to resolve with finality the claims

for compensation arising out of events more than a century ago. And it

took Congress 25 years to establish the distribution plan in the 2004


44

Act, even after the Commission’s award to the Western Shoshone

Identifiable Group became final. Given the history of the fund at issue

and the Commission’s purpose of bringing finality to Indian tribes’ long-

held claims, it would be unreasonable to infer that Congress would

rather have the distribution plan enjoined and its will not effectuated.

And while under this Court’s precedent, a Tucker Act remedy does not

necessarily “wipe out” the availability of equitable relief, Riley, 104 F.3d

at 402, it should factor into the balance of the equities.

Finally, plaintiffs’ argument (Br. 28) that constitutional injuries

are irreparable harm per se collapses the irreparable harm inquiry into

that of the merits, which fails for the same reasons explained supra.

2. An Injunction Would Be Contrary To The Public Interest And Risks Substantial Harm To Other

Interested Parties

As explained supra, the legislative record indicates that

distribution will benefit thousands of individual Western Shoshone,

many of whom are in serious economic need. See, e.g., 150 Cong. Rec.

at S7495 (2004). An injunction would delay the completion of a

distribution plan mandated by Congress and supported by a majority of

Western Shoshones. The Senate Subcommittee heard testimony from

the Assistant Secretary that three of the four successor tribes to the

original representative before the Indian Claims Commission and two


45

other tribes with a significant number of members of Western Shoshone

descent, had enacted resolutions supporting the distribution plan, and

that Interior believed that the legislation “reflects the wishes of the vast

majority of the Western Shoshone people.” S. Subcomm. Hearing at 14

(statement of Neal A. McCaleb); see also H.R. Rep. 108-299, at 5.

Also testifying before the Subcommittee was the co-chair of a

steering committee of individual Western Shoshones who stated that

the committee, which for four years had investigated the extent of

support for a distribution, took two polls of Western Shoshones, in both

of which a majority favored distribution. Id. at 21 (statement of Nancy

Stewart). In the later poll, 65 percent of eligible adults voted, and 91

percent favored distribution. Ibid. The chair of the Te-Moak tribe also

testified that the “majority of Western Shoshone voters clearly support

distribution as described in the [Act].” Id. at 19.

An injunction would result in additional delay in completing the

full payment for thousands of Western Shoshones who are currently on

the judgment roll and, potentially, for the approximately 500

individuals whose appeals of eligibility are still in the process of being

resolved by Interior. It has already been more than 30 years since the

judgment fund was appropriated, and as noted in the legislative

history, some beneficiaries died before seeing any benefit. See 150


46

Cong. Rec. at S7495; S. Subcomm. Hearing at 19. As the district court

stated, the “delay in disbursement of the funds has been extraordinary.”

JA:259; see also H. Rep. No. 108-299, at 5 (delaying distribution “is

unreasonable and unfair”).

The purpose of the Indian Claims Commission was to provide

finality, and the district court recognized that such interest in finality

counseled in favor of allowing the distribution, stating that “this long-

standing dispute needs to be resolved one way or the other . . . It is time

for the judgment, which has been in existence for more than 20 years, to

get disbursed.” JA:260. Further, as the district court pointed out,

withholding distribution would affect several thousand persons

currently on the judgment roll, whereas denial of an injunction would

arguably affect only a couple hundred members constituting the

plaintiff tribe. JA:261.

Since the district court’s order, Interior has made a partial

distribution of approximately $69 million of the funds to more than

3,000 individuals. See http://www.bia.gov/idc/groups/xregwestern/

documents/text/idc013454.pdf (visited June 24, 2011). The agency is

currently processing approximately 500 appeals of its determinations

concerning eligibility for the distribution, with a target date of resolving

those appeals by December 2011. See id. at 1, 3 (¶ 8). Approximately


47

$127 million remains in the judgment fund. Id. at 3 ¶ 10. Enjoining

Interior from distributing the remainder of that money would harm

those individuals whose administrative appeals might eventually be

resolved in their favor.

An injunction would also harm those who received the partial

payment earlier this year and who might receive additional money from

the judgment fund, depending on how many more people are

determined to be eligible once Interior makes final decisions resolving

their appeals. Thus, enjoining Interior is not in the public interest

because it “would in fact upend the status quo” rather than preserve it,

barring “further disbursements” to individuals who, having already

received a partial distribution of the funds, might reasonably be

expecting an additional payment that would be delayed by an

injunction. See Sherley v. Sebelius, --- F.3d ----, 2011 WL 1599685, at

*10 (D.C. Cir. April 29, 2011). In sum, neither the public interest nor

the balance of harms favors an injunction.


48

CONCLUSION

For the foregoing reasons, the appeal should be dismissed or

alternatively, the district court’s judgment should be affirmed.

Respectfully submitted, IGNACIA S. MORENO Assistant Attorney General

Of Counsel: /s/ Brian C. Toth______________ JAMES W. PORTER MAUREEN E. RUDOLPH Office of the Solicitor AARON P. AVILA U.S. Department of the Interior BRIAN C. TOTH AttorneysTHOMAS KEARNS Environment & Natural Office of the Chief Counsel Resources Division Financial Management Service U.S. Department of Justice U.S. Department of the Treasury P.O. Box 23795 Washington, D.C. 20026-3795June 2011 (202) 305-0639 # 90-2-4-13151 [email protected] Counsel for Defendants-Appellees


CERTIFICATE OF COMPLIANCE WITH TYPE VOLUME LIMITATION

This brief complies with the type volume limitation set forth in

Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure because it

contains 10,620 words (as counted by word processing software).

/s/ Brian C. Toth_______________ BRIAN C. TOTH Attorney U.S. Department of Justice Environment & Natural Resources Division P.O. Box 23795 (L’Enfant Station) Washington, DC 20026 (202) 305-0639 [email protected] Counsel for Defendants-Appellees


ADDENDUM


STATUTORY ADDENDUM

U.S. CONSTITUTION

Amendment V ................................................................................ A-1 Amendment XIV ............................................................................ A-2

Western Shoshone Claims Distribution Act,

Pub. L. No. 108-270, 118 Stat. 805 (2004) .................................... A-3 Title 25, United States Code

Section 70a (1976) ....................................................................... A-11 Section 70l (a) (1976) ................................................................... A-13 Section 1402 ................................................................................. A-14

Title 31, United States Code

Section 724a (1976 Supp. II) ....................................................... A-16


A-1

U.S. CONSTITUTION, Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


A-2

U.S. CONSTITUTION, Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

* * *


A-3

PUBLIC LAW 108-270—JULY 7, 2004 118 STAT. 805

Public Law 108-270 108th Congress

An Act To provide for the use and distribution of the funds awarded to the

Western Shoshone identifiable group under Indian Claims Commission Docket Numbers 326-A-1, 326-A-3, and 326-K, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the “Western Shoshone Claims Distribution Act”. SEC. 2. DEFINITIONS.

In this Act: (1) COMMITTEE.--The term “Committee” means the

administrative committee established under section 4(c)(1). (2) WESTERN SHOSHONE JOINT JUDGMENT FUNDS.--The term

“Western Shoshone joint judgment funds” means-- (A) the funds appropriated in satisfaction of the

judgment awards granted to the Western Shoshone Indians in Docket Numbers 326-A-1 and 326-A-3 before the United States Court of Claims; and

(B) all interest earned on those funds. (3) WESTERN SHOSHONE JUDGMENT FUNDS.--The term

“Western Shoshone judgment funds” means-- (A) the funds appropriated in satisfaction of the

judgment award granted to the Western Shoshone Indians in Docket Number 326-K before the Indian Claims Commission; and

(B) all interest earned on those funds.


A-4

(4) JUDGMENT ROLL.--The term “judgment roll” means the Western Shoshone judgment roll established by the Secretary under section 3(b)(1).

(5) SECRETARY.--The term “Secretary” means the Secretary of the Interior.

(6) TRUST FUND.--The term “Trust Fund” means the Western Shoshone Educational Trust Fund established under section 4(b)(1).

(7) WESTERN SHOSHONE MEMBER.--The term “Western Shoshone member” means an individual who--

(A)(i) appears on the judgment roll; or (ii) is the lineal descendant of an individual appearing on

the roll; and (B)(i) satisfies all eligibility criteria established by the

Committee under section 4(c)(4)(D)(iii);

[118 STAT. 806] (ii) meets any application requirements established by

the Committee; and (iii) agrees to use funds distributed in accordance with

section 4(b)(2)(B) for educational purposes approved by the Committee.

SEC. 3. DISTRIBUTION OF WESTERN SHOSHONE JUDGMENT FUNDS.

(a) IN GENERAL.--The Western Shoshone judgment funds shall be distributed in accordance with this section.

(b) JUDGMENT ROLL.-- (1) IN GENERAL.--The Secretary shall establish a Western

Shoshone judgment roll consisting of all individuals who-- (A) have at least 1/4 degree of Western Shoshone blood; (B) are citizens of the United States; and (C) are living on the date of enactment of this Act. (2) INELIGIBLE INDIVIDUALS.--Any individual that is certified

by the Secretary to be eligible to receive a per capita payment from any other judgment fund based on an aboriginal land claim


A-5

awarded by the Indian Claims Commission, the United States Claims Court, or the United States Court of Federal Claims, that was appropriated on or before the date of enactment of this Act, shall not be listed on the judgment roll.

(3) REGULATIONS REGARDING JUDGMENT ROLL.--The Secretary shall--

(A) publish in the Federal Register all regulations governing the establishment of the judgment roll; and

(B) use any documents acceptable to the Secretary in establishing proof of eligibility of an individual to--

(i) be listed on the judgment roll; and (ii) receive a per capita payment under this Act.

(4) FINALITY OF DETERMINATION.--The determination of the Secretary on an application of an individual to be listed on the judgment roll shall be final. (c) DISTRIBUTION.--

(1) IN GENERAL.--On establishment of the judgment roll, the Secretary shall make a per capita distribution of 100 percent of the Western Shoshone judgment funds, in shares as equal as practicable, to each person listed on the judgment roll.

(2) REQUIREMENTS FOR DISTRIBUTION PAYMENTS.-- (A) LIVING COMPETENT INDIVIDUALS.--The per capita

share of a living, competent individual who is 19 years or older on the date of distribution of the Western Shoshone judgment funds under paragraph (1) shall be paid directly to the individual.

(B) LIVING, LEGALLY INCOMPETENT INDIVIDUALS.--The per capita share of a living, legally incompetent individual shall be administered in accordance with regulations promulgated and procedures established by the Secretary under section 3(b)(3) of the Indian Tribal Judgment Funds Use or Distribution Act (25 U.S.C. 1403(b)(3)).

(C) DECEASED INDIVIDUALS.--The per capita share of an individual who is deceased as of the date of distribution of the Western Shoshone judgment funds under paragraph (1) shall be paid to the heirs and legatees of the individual

[118 STAT. 807]


A-6

in accordance with regulations promulgated by the Secretary.

(D) INDIVIDUALS UNDER THE AGE OF 19.--The per capita share of an individual who is not yet 19 years of age on the date of distribution of the Western Shoshone judgment funds under paragraph (1) shall be--

(i) held by the Secretary in a supervised individual Indian money account; and

(ii) distributed to the individual-- (I) after the individual has reached the age

of 18 years; and (II) in 4 equal payments (including interest

earned on the per capita share), to be made-- (aa) with respect to the first payment,

on the eighteenth birthday of the individual (or, if the individual is already 18 years of age, as soon as practicable after the date of establishment of the Indian money account of the individual); and

(bb) with respect to the 3 remaining payments, not later than 90 days after each of the 3 subsequent birthdays of the individual.

(3) APPLICABLE LAW.--Notwithstanding section 7 of the Indian Tribal Judgment Funds Use or Distribution Act (25 U.S.C. 1407), a per capita share (or the availability of that share) paid under this section shall not--

(A) be subject to Federal or State income taxation; (B) be considered to be income or resources for any

purpose; or (C) be used as a basis for denying or reducing financial

assistance or any other benefit to which a household or Western Shoshone member would otherwise be entitled to receive under--

(i) the Social Security Act (42 U.S.C. 301 et seq.); or


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(ii) any other Federal or federally-assisted program.

(4) UNPAID FUNDS.--The Secretary shall add to the Western Shoshone joint judgment funds held in the Trust Fund under section 4(b)(1)--

(A) all per capita shares (including interest earned on those shares) of living competent adults listed on the judgment roll that remain unpaid as of the date that is--

(i) 6 years after the date of distribution of the Western Shoshone judgment funds under paragraph (1); or

(ii) in the case of an individual described in paragraph (2)(D), 6 years after the date on which the individual reaches 18 years of age; and (B) any other residual principal and interest funds

remaining after the distribution under paragraph (1) is complete.

SEC. 4. DISTRIBUTION OF WESTERN SHOSHONE JOINT JUDGMENT FUNDS.

(a) IN GENERAL.--The Western Shoshone joint judgment funds shall be distributed in accordance with this section.

[118 STAT. 808]

(b) WESTERN SHOSHONE EDUCATIONAL TRUST FUND.--

(1) ESTABLISHMENT.--Not later than 120 days after the date of enactment of this Act, the Secretary shall establish in the Treasury of the United States, for the benefit of Western Shoshone members, a trust fund to be known as the “Western Shoshone Educational Trust Fund”, consisting of–

(A) the Western Shoshone joint judgment funds; and (B) the funds added under section 3(b)(4).

(2) AMOUNTS IN TRUST FUND.--With respect to amounts in the Trust fund--

(A) the principal amount-- (i) shall not be expended or disbursed; and


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(ii) shall be invested in accordance with section 1 of the Act of June 24, 1938 (25 U.S.C. 162a); and (B) all interest income earned on the principal amount

after the date of establishment of the Trust fund-- (i) shall be distributed by the Committee--

(I) to Western Shoshone members in accordance with this Act, to be used as educational grants or for other forms of educational assistance determined appropriate by the Committee; and

(II) to pay the reasonable and necessary expenses of the Committee (as defined in the written rules and procedures of the Committee); but (ii) shall not be distributed under this paragraph

on a per capita basis. (c) ADMINISTRATIVE COMMITTEE.--

(1) ESTABLISHMENT.--There is established an administrative committee to oversee the distribution of educational grants and assistance under subsection (b)(2).

(2) MEMBERSHIP.--The Committee shall be composed of 7 members, of which--

(A) 1 member shall represent the Western Shoshone Te-Moak Tribe and be appointed by that Tribe;

(B) 1 member shall represent the Duckwater Shoshone Tribe and be appointed by that Tribe;

(C) 1 member shall represent the Yomba Shoshone Tribe and be appointed by that Tribe;

(D) 1 member shall represent the Ely Shoshone Tribe and be appointed by that Tribe;

(E) 1 member shall represent the Western Shoshone Committee of the Duck Valley Reservation and be appointed by that Committee;

(F) 1 member shall represent the Fallon Band of Western Shoshone and be appointed by that Band; and

(G) 1 member shall represent the general public and be appointed by the Secretary. (3) TERM.--


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(A) IN GENERAL.--Each member of the Committee shall serve a term of 4 years.

(B) VACANCIES.--If a vacancy remains unfilled in the membership of the Committee for a period of more than 60 days--

(i) the Committee shall appoint a temporary replacement from among qualified members of the organization for which the replacement is being made; and

[118 STAT. 809]

(ii) that member shall serve until such time as

the organization (or, in the case of a member described in paragraph (2)(G), the Secretary) designates a permanent replacement.

(4) DUTIES.--The Committee shall-- (A) distribute interest funds from the Trust Fund

under subsection (b)(2)(B)(i); (B) for each fiscal year, compile a list of names of all

individuals approved to receive those funds; (C) ensure that those funds are used in a manner

consistent with this Act; (D) develop written rules and procedures, subject to the

approval of the Secretary, that cover such matters as-- (i) operating procedures; (ii) rules of conduct; (iii) eligibility criteria for receipt of funds under

subsection (b)(2)(B)(i); (iv) application selection procedures; (v) procedures for appeals to decisions of the

Committee; (vi) fund disbursement procedures; and (vii) fund recoupment procedures;

(E) carry out financial management in accordance with paragraph (6); and

(F) in accordance with subsection (b)(2)(C)(ii), use a portion of the interest funds from the Trust Fund to pay the


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reasonable and necessary expenses of the Committee (including per diem rates for attendance at meetings that are equal to those paid to Federal employees in the same geographic location), except that not more than $100,000 of those funds may be used to develop written rules and procedures described in subparagraph (D).

(5) JURISDICTION OF TRIBAL COURTS.--At the discretion of the Committee and with the approval of the appropriate tribal government, a tribal court, or a court of Indian offenses operated under section 11 of title 25, Code of Federal Regulations (or a successor regulation), shall have jurisdiction to hear an appeal of a decision of the Committee.

(6) FINANCIAL MANAGEMENT.-- (A) FINANCIAL STATEMENT.--The Committee shall employ an

independent certified public accountant to prepare a financial statement for each fiscal year that discloses--

(i) the operating expenses of the Committee for the fiscal year; and

(ii) the total amount of funds disbursed under subsection (b)(2)(B)(i) for the fiscal year. (B) DISTRIBUTION OF INFORMATION.--For each fiscal year, the

Committee shall provide to the Secretary, to each organization represented on the Committee, and, on the request of a Western Shoshone member, to the Western Shoshone member, a copy of--

(i) the financial statement prepared under subparagraph (A); and

(ii) the list of names compiled under paragraph (4)(B).

[118 STAT. 810]

(d) CONSULTATION.--The Secretary shall consult with the Committee on the management and investment of the funds distributed under this section. SEC. 5. REGULATIONS.

The Secretary may promulgate such regulations as are necessary to carry out this Act. Approved July 7, 2004.


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25 U.S.C. 70a (1976) § 70a. Jurisdiction; claims considered; offsets and counterclaims

The Commission shall hear and determine the following claims against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska: (1) claims in law or equity arising under the Constitution, laws, treaties of the United States, and Executive orders of the President; (2) all other claims in law or equity, including those sounding in tort, with respect to which the claimant would have been entitled to sue in a court of the United States if the United States was subject to suit; (3) claims which would result if the treaties, contracts, and agreements between the claimant and the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity; (4) claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant; and (5) claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity. No claim accruing after August 13, 1946, shall be considered by the Commission.

All claims hereunder may be heard and determined by the Commission notwithstanding any statute of limitations or laches, but all other defenses shall be available to the United States.

In determining the quantum of relief the Commission shall make appropriate deductions for all payments made by the United States on the claim, and for all other offsets, counterclaims, and demands that would be allowable in a suit brought in the Court of Claims under section 1491 of title 28: Provided, That expenditures for food, rations, or provisions shall not be deemed payments on the claim. The Commission may also inquire into and consider all money or property given to or funds expended gratuitously for the benefit of the claimant and if It finds that the nature of the claim and the entire course of dealings and accounts between the United States and the claimant in good conscience warrants such action, may set off all or part of such expenditures against any award made to the claimant, except that it is


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declared to be the policy of Congress that monies spent for the removal of the claimant from one place to another at the request of the United States, or for agency or other administrative, educational, health or highway purposes, or for expenditures made prior to the date of the law, treaty or Executive Order under which the claim arose, or for expenditures made pursuant to sections 461, 462, 463, 464, 465, 466 to 470, 471 to 473, 474, 475, 476 to 478, and 479 of this title, save expenditures made under section 465 of this title, or for expenditures under any emergency appropriation or allotment made subsequent to March 4, 1933, and generally applicable throughout the United States for relief in stricken agricultural areas, relief from distress caused by unemployment and conditions resulting therefrom, the prosecution of public work and public projects for the relief of unemployment or to increase employment, and for work relief (including the Civil Works Program) shall not be a proper offset against any award.


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25 U.S.C. 70l (a) (1976) § 70l. Notice to tribes; investigation of claims; availability of data

(a) As soon as practicable the Commission shall send a written explanation of the provisions of this chapter to the recognized head of each Indian tribe and band, and to any other identifiable groups of American Indians existing as distinct entities, residing within the territorial limits of the United States and Alaska, and to the superintendents of all Indian agencies, who shall promulgate the same, and shall request that a detailed statement of all claims be sent to the Commission, together with the names of aged or invalid Indians from whom depositions should be taken immediately and a summary of their proposed testimonies.

* * *


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25 U.S.C. 1402 § 1402. Plan for use or distribution of funds (a) Preparation and submission to Congress by Secretary of the Interior; contents; copy to affected Indian tribe Within one year after appropriation of funds to pay a judgment of the Indian Claims Commission or the United States Court of Federal Claims to any Indian tribe, the Secretary of the Interior shall prepare and submit to Congress a plan for the use and distribution of the funds. Such plan shall include identification of the present-day beneficiaries, a formula for the division of the funds among two or more beneficiary entities if such is warranted, and a proposal for the use and distribution of the funds. The Secretary shall simultaneously submit a copy of such plan to each affected tribe or group. (b) Time for preparation and submission of plan With respect to judgments, for which funds have been appropriated prior to January 12, 1983, but for which use or distribution has not been authorized by enactment of legislation or by an effective plan under this chapter, the Secretary shall prepare and submit such plans within one year of January 12, 1983. (c) Submission of proposed legislation and report to Congress In any case where the Secretary determines that the circumstances do not permit the preparation and submission of a plan as provided in this chapter, he shall submit to the Congress within the one-year period proposed legislation to authorize use or distribution of such funds, together with a report thereon. (d) Submission of proposed legislation and report to Congress in absence of consent of tribal governments to division of judgment funds between two or more beneficiary entities


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In 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 as provided in subsection (c) of this section. (e) Extension of time for preparation and submission of plan An extension of the one-year period, not to exceed one hundred and eighty days, may be requested by the Secretary or by the affected Indian tribe, submitting such request to the committees through the Secretary, and any such request will be subject to the approval of both the Senate Committee on Indian Affairs and the United States House of Representatives Committee on Natural Resources.


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31 U.S.C. 724a (1976 Supp. II) § 724a. Appropriations for payment of judgments and compromise settlements against the United States There are appropriated, out of any money in the Treasury not otherwise appropriated, such sums as may be necessary for the payment, not otherwise provided for, as certified by the Comptroller General, of final judgments, awards, and compromise settlements, which are payable in accordance with the terms of section 2414, 2517, 2672, or 2677 of title 28, sections 215, 216, and 217 of this title, awards rendered by the Indian Claims Commission, and amounts (in excess of the amounts payable from agency appropriations) of claims determined meritorious under section 2733 or 2734 of title 10, section 715 of title 32, and section 2473 of title 42, together with such interest and costs as may be specified in such judgments or otherwise authorized by law: Provided, That interest on a judgment of a district court to which the provisions of section 2411(b) of title 28 apply, payable from this appropriation, shall be paid only when such judgment becomes final after review on appeal or petition by the United States, and then only from the date of the filing of the transcript thereof in the General Accounting Office to the date of the mandate of affirmance (except that in cases reviewed by the Supreme Court interest shall not be allowed beyond the term of the Court at which the judgment was affirmed): Provided further, That interest on a judgment rendered by the Court of Claims, payable from this appropriation, in accordance with subsection 2516(b) of title 28, shall be computed from the date of the filing of the transcript thereof in the General Accounting Office * * *


CERTIFICATE OF SERVICE

On June 24, 2011, the ANSWERING BRIEF OF THE FEDERAL

DEFENDANTS-APPELLEES was filed with the Court’s Appellate Case

Management / Electronic Case Filing System, which will serve notice of

such filing on the following:

Robert Timothy Coulter Philomena Kebec [email protected] [email protected]

Paper copies are being sent to the following by first class mail:

Robert T. Coulter Indian Law Resource Center 602 North Ewing Street Helena, Montana 59601 David Marc Kairys 1719 North Broad Street Philadelphia, PA 19122

/s/ Brian C. Toth_______________ BRIAN C. TOTH Attorney U.S. Department of Justice Environment & Natural Resources Division P.O. Box 23795 (L’Enfant Station) Washington, DC 20026 (202) 305-0639 [email protected] Counsel for Defendants-Appellees


Documents

USCA Case #11-5049 Document #1315223 Filed: 06/24/2011 ...Timbisha Shoshone Tribe v. Salazar, Case No. 1:10-cv-968-GK, on March 1, 2011. Plaintiffs also appeal from an order entered