May 30, 2017

Tenth Circuit: Descendants of Sand Creek Massacre Victims Not Entitled to Reparations Accounting

The Tenth Circuit Court of Appeals issued its opinion in Flute v. United States on Tuesday, December 22, 2015.

As described by the Tenth Circuit, this case arose “out of an ignominious event in the history of this Nation.” In 1864, the United States Army conducted an unprovoked attack on a group of unarmed Indians of the Arapaho and Cheyenne Tribes, who had relocated to an area next to the Sand Creek River in the Territory of Colorado at the direction and under the protection of the Territorial Governor and Superintendent of Indian Affairs, John Evans. When what has become known as the Sand Creek Massacre was over, most of the Indians were dead, including many women and children.

After an investigation, the United States publicly acknowledged its role in the tragedy and agreed to pay reparations to certain survivors of the massacre. On October 14, 1865, the United States entered into the Treaty of Little Arkansas, which expresses the United States’ condemnation of “the gross and wanton outrages perpetrated against certain bands of Cheyenne and Arrapahoe Indians . . . at Sand Creek, Colorado Territory.” On July 26, 1866, the U.S. Congress appropriated funds to pay the reparations detailed in the Treaty of Little Arkansas.

According to Plaintiffs, the funds appropriated by Congress were insufficient to compensate all the victims of the massacre. Moreover, instead of paying reparations directly to the affected individuals as directed, the Secretary of the Interior paid some of the money directly to the Tribes. What funds were not distributed to the Tribes were returned to surplus on August 30, 1872. The United States has never provided an accounting of the reparations paid or attempted to identify the individuals to whom reparations were still owed.

Plaintiffs are descendants of the victims of the Sand Creek Massacre. They brought a class action on behalf of themselves and others similarly situated, alleging the United States acted in the capacity of a trustee over the funds appropriated under the Treaty of Little Arkansas and the 1866 Appropriations Act. Plaintiffs argue the Defendants are in breach of their trust obligations for failing to provide an accounting of the reparations funds held in trust for Plaintiffs’ ancestors. The district court dismissed Plaintiffs’ complaint under Rule 12(b)(1), finding it lacked jurisdiction because the United States had not waived sovereign immunity. This appeal followed.

The Tenth Circuit began its analysis with a discussion of sovereign immunity. The sovereign immunity enjoyed by the United States and its officers extends to injunctive relief, and therefore, it bars the relief sought by Plaintiffs here—an order directing the government to provide an accounting. Thus, to proceed against the government, the Plaintiffs must identify some statutory text that expressly and unequivocally waives sovereign immunity.

The Plaintiffs argued the United States’ waiver of sovereign immunity can be found in a series of statutes enacted by Congress appropriating funds to the Department of Interior (the most recent of which occurred in a 2009 appropriations act, hereinafter “2009 Act”), including some funds specifically appropriated for programs associated with Indian tribes (hereinafter collectively referred to as “the Appropriations Acts”). The Tenth Circuit held the 2009 Act, standing alone, does not waive sovereign immunity as the text of the 2009 Act never mentions sovereign immunity, nor does the 2009 Act relieve a plaintiff of the independent obligation to identify an express waiver of sovereign immunity in order to maintain an action against the government.

Second, despite the complete absence of an express waiver of sovereign immunity, Plaintiffs insisted that the 2009 Act constitutes a waiver of sovereign immunity, relying on the Federal Circuit Case Shoshone II. The court rejected Plaintiffs’ interpretation of Shoshone II, reasoning a plaintiff must satisfy two separate requirements to pursue a claim against the government: (1) identification of an express waiver of sovereign immunity, and (2) initiation of the suit before the statute of limitations for the plaintiff’s claim runs and effectively negates that waiver. Even if the 2009 Act were applicable here, the Tenth Circuit reasoned, Plaintiffs could meet only one of these requirements because the 2009 Act contains no express waiver of sovereign immunity.

Third, the Plaintiffs argued that the Treaty of Little Arkansas, in combination with the Appropriations Acts, created an enforceable trust relationship such that they are now entitled to an accounting from the Secretary of the Interior. The court rejected this argument, noting the Appropriations Acts are limited to claims for misappropriation of trust assets, and neither the Treaty of Little Arkansas nor the 1866 Appropriations Act imposes fiduciary trust obligations on the government. And in the absence of such a trust relationship, any purported waiver of immunity contained in the 2009 Act is inapplicable to Plaintiffs’ claims. As such, even if we agreed with Plaintiffs that the 2009 Act expressly waives the United States’ immunity, the court stated, it could not do so in this case. Accordingly, Plaintiffs were unable to identify a waiver of the United States’ sovereign immunity. Absent such a waiver, the courts lack the power to grant Plaintiffs relief, the Tenth Circuit held, thereby affirming the district court’s dismissal of the action for lack of subject matter jurisdiction.

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