NRS | Native Americans | Current Work of NRS Involving Indian Law Litigation
John R. Sand & Gravel
The six-year statute of limitations for cases filed under the Indian Tucker Act, 28 U.S.C § 1505, or individual Indian claims filed under the Tucker Act, 28 U.S.C. § 1491(a), is set forth in 28 U.S.C. § 2501. The Supreme Court in John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008), reaffirmed a long line of Supreme Court cases that held that this statute of limitations is jurisdictional and cannot be waived. The limitations period of six years applies in the Court of Federal Claims does not allow for equitable tolling and the Court of Federal Claims is forbidden from considering whether certain equitable considerations warrant extending a limitations period. The limitations period is a condition of the waiver of sovereign immunity and must be strictly construed and exceptions are not to be implied. See Soriano v. United States, 352 U.S. 270, 276 (1957).
First Accrual
Statutes of limitations are to be applied against the claims of Indian tribes and individual Indians in the same manner as against any other litigant seeking legal redress or relief from the government. Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576 (Fed. Cir. 1988). The statute begins to run when the “claim first accrues.” 28 U.S.C. § 2501. . A claim against the United States first accrues on the date when all the events have occurred which fix the liability of the government and entitle the claimant to institute the action. Kinsey v. United States, 852 F.2d 556, 557 (Fed. Cir. 1988). Jones v. United States, 801 F.2d 1334, 1336 (Fed. Cir. 1986) (actions inconsistent with trust obligations amount to a repudiation of the trust entitling a tribe or individual Indian to initiate an action).
The first accrues when the operative facts exist and are not inherently unknowable. Menominee Tribe v. United States, 726 F.2d 718, 720-22 (Fed. Cir. 1984). This was true even for highly complex forest management claims for breach of trust. Id. (claims of improper undercutting of timber); Mitchell v. United States, 10 Cl. Ct. 63, 67 (1986). Where government activities are open and notorious the claimant is "on inquiry as to its possible injury." Coastal Petroleum Corp. v. United States, 228 Ct. Cl. 864, 867 (1981). Indians cannot bring stale claims if the facts were "also available to the Indians if they sought advice." Menominee Tribe v. United States, at 720. Although this may require the Indians "to launch an inquiry, and discover through their agents the facts underlying" their claims, if the facts were all available, " . . . the running of the statute of limitations would not be tolled as if they were 'unknowable.'" Id. at p. 721, citing Affiliated Ute Citizens v. United States, 199 Ct. Cl. 1004-1005 (1972) (breach of trust for improper distribution of Indian monies, operative "facts were all available" on date of distribution.) "The statute of limitations applies to Indians the same as anyone else." Ft. Mojave Tribe v. United States, 210 Ct. Cl. 727, 728 (1976). Thus, "the objective criteria of concealment and inherent knowableness of the facts determine the commencement of the statute of limitations." Coastal Petroleum, supra at 866.
Inquiry notice is evaluated by an objective standard. Fallini v. United States, 56 F.3d 1378, 1380 (Fed. Cir. 1995). This objective standard applies equally to Indian breach of trust claims. San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1350 (Fed. Cir. 2011). A trust beneficiary's subjective ignorance of the law or facts giving rise to its claim, even if predicated on misleading statements relating to those legal rights, does not toll the accrual of the statute of limitations. Catawba Indian Tribe of South Carolina v. United States, 982 F.2d 1564, 1572 (Fed. Cir.1993) (declining to suspend accrual date when “all the relevant facts were known. It was the meaning of the law that was misunderstood”).
Continuing Claim Doctrine
It is recognized that the statute of limitations may not bar certain continuing claims, but “[i]n order for the continuing claim doctrine to apply, the plaintiff’s claim must be inherently susceptible to being broken down into a series of independent and distinct events or wrongs, each having its own associated damages * * *. ” Brown Parks Estates v. United States, 127 F.3d 1449, 1458 (Fed. Cir. 1997). “[A] claim based upon a single distinct event, which may have continued ill effects later on, is not a continuing claim.” Id. at 1456. In 1986, the Claims Court ruled that the "continuing claim" doctrine applied to the Quinault allottees' claim that BIA had done a very poor job of ensuring regeneration of their commercial timber. Mitchell v. United States, 10 Cl. Ct. 787, 789 (1986). The Court held the doctrine applied to Indian breach of trust claims in those situations where the Bureau of Indian Affairs (BIA) had continuously breached an ongoing trust obligation; here, BIA had allegedly breached the ongoing duty to manage Indian commercial timber on a sustained yield basis.
But a continuing claim doctrine does not revive a claim of lingering damages for the past commission of a wrong, and only permits a recovery for damages within the six years prior to the initiation of a suit. See Hopland Band of Pomo Indians, at 1580-81. For example, in the context of the Mitchell regeneration duty, the United States would not be responsible for correcting the ill effects of time barred resource mismanagement decisions. In Brown Parks, the plaintiffs, owners of rental properties, alleged that the government owed them money from the failure to properly adjust rates under Section 8 housing contracts. Id. at 1455. They claimed that these initial breaches caused later years’ rents to be too low, as adjustments were always based on the previous year’s rent. Id. When they sued more than six years after the last of the allegedly improper adjustments, the plaintiffs alleged that the continuing claim doctrine applied because the failure to make the initial rate adjustments led to lower rates in subsequent years, including in the six years before the filing of the suit. Id. This Court held that the continuing claim doctrine did not apply. Id. at 1457. The court reasoned that it was not a case of “recurring, individual actionable wrongs” because the asserted wrongs within the six-year period flowed from the original breach of contract before the six-year period. Id. at 1457-58.
The Indian Trust Accounting Statute
Beginning in Fiscal Year 1990, the appropriations acts for the Department of the Interior have all provided that the statute of limitations on claims concerning the management of Indian trust funds shall not begin to run until the government has furnished the owner of the funds an accounting of these funds. Each such annual provision is referred to as the "Indian Trust Accounting Statute" ("ICAS") for that particular year. In 2004, the Federal Circuit construed the 2003 ICAS and ruled that the tolling of the statute of limitations applied only to claims for alleged mismanagement of trust funds — not claims for mismanagement of non-monetary trust property. Shoshone Indian Tribe of the Wind River Reservation v. United States, 364 F.3d 1339 (Fed. Cir. 2004), cert. denied, 544 U.S. 973 (2005). This ruling effectively preserves the United States’ statute of limitations defense to the claims of alleged mismanagement of tribal lands and natural resources held in trust.