Inter-Tribal Council of Az v. United States

956 F.3d 1328

• Court: Court of Appeals for the Federal Circuit
• Decided: April 17, 2020
• Docket: 19-1758
• Status: Published

Opinion

Case: 19-1758 Document: 29 Page: 1 Filed: 04/17/2020

United States Court of Appeals for the Federal Circuit ______________________

INTER-TRIBAL COUNCIL OF ARIZONA, INC., Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2019-1758 ______________________

Appeal from the United States Court of Federal Claims in No. 1:15-cv-00342-NBF, Senior Judge Nancy B. Fire- stone. ______________________

Decided: April 17, 2020 ______________________

MELODY MCCOY, Native American Rights Fund, Boul- der, CO, argued for plaintiff-appellant.

PHILLIP SELIGMAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, argued for defendant-appellee. Also repre- sented by JOSEPH H. HUNT, RUTH A. HARVEY, MICHAEL JOHN QUINN; KENNETH A. DALTON, Office of the Solicitor, Indian Trust Litigation Office, United States Department of the Interior, Washington, DC. ______________________ Case: 19-1758 Document: 29 Page: 2 Filed: 04/17/2020

Before O’MALLEY, MAYER, and WALLACH, Circuit Judges. WALLACH, Circuit Judge. Appellant Inter-Tribal Council of Arizona, Inc. (“ITCA”) filed a lawsuit against the United States (“Gov- ernment”) in the U.S. Court of Federal Claims, alleging that the Government breached its fiduciary duties estab- lished pursuant to the Arizona-Florida Land Exchange Act (“AFLEA”), Pub. L. No. 100-696, 102 Stat. 4571, 4577–93 (1988). 1 The Government filed a motion to dismiss ITCA’s complaint for lack of subject matter jurisdiction and for failure to state a claim, pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the U.S. Court of Federal Claims (“RCFC”), respectively. The Court of Federal Claims granted the Government’s motion in part, dismissing two of the Complaint’s three claims. Specifically, the court found that it lacked jurisdiction over a portion of Claim I, and that Claim II and the remaining portion of Claim I failed to state a claim upon which relief could be granted. See Inter-Tribal Council of Ariz., Inc. v. United States, 140 Fed. Cl. 447, 460 (2018); see also J.A. 1 (Partial Final Judg- ment), 2–8 (Order on Plaintiff’s Motion for Entry of Partial Final Judgment). 2

1 ITCA “is a non-profit membership organization” of Indian tribes located in Arizona, “provid[ing] a united voice for tribal governments . . . with respect to issues of common interest and concern.” J.A. 36; see J.A. 623 (“The goals of [ITCA] include programs to benefit the member [t]ribes and respective [t]ribal members and to improve the social and economic life of all Indian [t]ribes and tribal members in Arizona.”). 2 Although the Court of Federal Claims also dis- missed “portions” of Claim III of the Complaint, Inter- Case: 19-1758 Document: 29 Page: 3 Filed: 04/17/2020

INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 3

ITCA appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). We affirm-in-part and reverse-in-part. BACKGROUND 3 I. Factual History A. The Phoenix Indian School From its inception in 1891, “an off-reservation federal Indian elementary and secondary boarding school” (“Phoe- nix Indian School”) was “operated by” the U.S. Department of the Interior’s (“DOI”) Bureau of Indian Affairs, on land owned by the Government in Phoenix, Arizona. J.A. 37– 38. The Phoenix Indian School “consisted of [thirty-four] buildings on over [one-hundred] acres located in the heart

Tribal Council of Ariz., 140 Fed. Cl. at 460, that decision is not before us on appeal, see generally Appellant’s Br. See Appellee’s Br. 16 n.6 (“Claim III . . . is pending below and is not part of the current appeal.”); see also Spectrum Pharm., Inc. v. Sandoz Inc., 802 F.3d 1326, 1333 (Fed. Cir. 2015) (explaining that “we will only address the issues raised [on appeal]”). 3 Because “this case was dismissed on the pleadings, for the purposes of this appeal, we must take the facts in the [C]omplaint as true.” Prasco, LLC v. Medicis Pharm. Corp., 537 F.3d 1329, 1334 (Fed. Cir. 2008). Moreover, for purposes of its Motion to Dismiss, the Government did not dispute the facts asserted by ITCA in the Complaint. See Motion to Dismiss Second Amended Complaint at 3 n.1, In- ter-Tribal Council of Ariz., Inc. v. United States, No. 1:15- cv-00342-NBF (Fed. Cl. May 16, 2018), ECF No. 59 (“For purposes of this brief only, the factual allegations of the . . . [C]omplaint are assumed to be true.”). Thus, the Complaint “sets forth the uncontested factual backdrop for this appeal. We recite here the facts pertinent to the is- sue[s] before us.” Fid. & Guar. Ins. Underwriters, Inc. v. United States, 805 F.3d 1082, 1084 (Fed. Cir. 2015). Case: 19-1758 Document: 29 Page: 4 Filed: 04/17/2020

of central Phoenix.” J.A. 38. “While open to members of tribes nationwide, the Phoenix Indian School primarily served tribes located in Arizona.” J.A. 38. In 1987, as part of a larger movement to close boarding schools for students of Indian tribes, J.A. 38, the Government “determined that the Phoenix Indian School was no longer required or needed,” J.A. 40, and the school “was closed in 1990,” J.A. 50; see AFLEA § 404(a) (requiring the U.S. Secretary of the Interior (“Secretary”) to “close the Phoenix Indian . . . School . . . no earlier than June 1, 1990, and no later than September 1, 1990”); see also id. § 401(18) (“‘Secretary’ means the Secretary of the Interior.”). B. The Arizona-Florida Land Exchange Agreement “[S]ince at least 1984,” the Government and Barron Collier Co. (“Collier”) “had been discussing . . . the possible acquisition by the [Government]” of approximately 108,000 acres of wetlands owned by Collier in the Florida Ever- glades. J.A. 38, 246. “Lacking the funds to make an out- right purchase of Collier’s Florida lands,” the Government “offered various surplus property that it held to Collier in exchange for the Florida lands.” J.A. 38. “Collier ulti- mately selected” the property on which the Phoenix Indian School was located (“Phoenix Indian School Property”), af- ter which the Government and Collier negotiated an ex- change agreement that was executed in May 1988. J.A. 43. “The Exchange Agreement provided . . . that approxi- mately [seventy-two] acres of the Phoenix Indian School Property would be conveyed to Collier[,]” in exchange for Collier’s Florida lands. J.A. 43. “The Exchange Agreement [also] provided that Collier would pay $34.9 million in cash to the [Government] at closing,” representing the differ- ence in estimated value between the lands exchanged. J.A. 43–44. In November 1988, Congress enacted the AFLEA, which ratified the Exchange Agreement. See AFLEA § 402(b) (“The Exchange Agreement is ratified and confirmed and sets forth the obligations, duties, and Case: 19-1758 Document: 29 Page: 5 Filed: 04/17/2020

INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 5

responsibilities of the parties to the Exchange Agree- ment.”); see also J.A. 48. 1. The AFLEA The AFLEA established two trust funds: an “Arizona InterTribal Trust Fund” (“AITF”) “for the benefit of Ari- zona Tribes that were members of . . . [ITCA] . . . and the members of such tribes,” AFLEA §§ 401(2), 405(a)(1); and a “Navajo Trust Fund” (“NTF”) “for the benefit of the Nav- ajo Tribe and its members,” id. §§ 401(11), 405(a)(2). 4 The AFLEA required that “Monetary Proceeds,” defined as “the cash amount required to be paid . . . by Collier upon clos- ing,” id. § 401(10), “be paid to the [Government] for deposit in the [AITF] and the [NTF],” id. § 403(a), with 95 percent “of the total amount” allocated to the AITF, and the re- maining 5 percent allocated to the NTF, id. § 405(e). “Trust Income” from the AITF and NTF was to be used only for “supplemental educational and child-welfare programs, ac- tivities, and services for the benefit of” members of ITCA and the Navajo Nation, respectively, as well as “the design, construction, improvement, or repair of related facilities[.]” Id. § 405(d)(2)(A), (B); see id. § 401(21) (“‘Trust Income’ . . . means the interest earned on amounts deposited into [the AITF and NTF] and any amounts paid into each such trust fund in the form of annual Trust Fund Payments.”); see also id. § 401(19) (“‘Trust Fund Payment’ means the pay- ment . . . of the Monetary Proceeds for deposit into . . . the [AITF or NTF], in the form of a lump sum payment or an- nual payments[.]”). Additionally, “[a]n amount equal to 5 percent of the Trust Income” from the AITF and NTF, was to be “paid annually” to ITCA and the Navajo Nation, respectively, “for education, child welfare, community

4 Because the parties use the term “Navajo Nation” to refer to the “Navajo Tribe and its members” as set forth in the AFLEA, see, e.g., Appellant’s Br. 3 n.1; Appellee’s Br. 6 n.2, we do as well. Case: 19-1758 Document: 29 Page: 6 Filed: 04/17/2020

development, and general administrative purposes[.]” Id. § 405(d)(4)(A), (B). The AFLEA permitted the Secretary to “elect to re- ceive” the Monetary Proceeds “in the form of either a lump sum payment or [thirty] annual payments[.]” Id. § 403(b). Relevant here, if the Secretary “elect[ed] to receive” the Monetary Proceeds “in the form of annual payments,” Col- lier was required to make: (1) “[thirty] annual payments equal to the interest due on . . . the Monetary Proceeds[,]” id. § 403(c)(2)(A); and (2) “at the time of the last annual payment, a [principal] payment equal to . . . the Monetary Proceeds[,]” id. § 403(c)(2)(B). Further, if the Monetary Proceeds were to be received pursuant to the annual pay- ment method, the Government, through the Secretary of the Treasury, was required to “hold in trust . . . security provided in accordance with the Trust Fund Payment Agreement.” Id. § 405(c)(2); see id. § 401(20) (“‘Trust Fund Payment Agreement’ means an agreement providing for payment by the Purchaser of annual Trust Fund Payments for deposit into the [AITF] or the [NTF][.]”). 2. The Trust Fund Payment Agreement, Deed of Trust, and Promissory Note “In June 1991, Collier gave preliminary notice of [its] intent to accept [the Government’s] offer on the Phoenix Indian School [P]roperty, but also told [the Government] that it would not proceed with the [Exchange Agreement] unless it could use the annual payment method[.]” J.A. 51. In September 1991, “over objections by” ITCA and the Nav- ajo Nation, the Secretary “agreed to Collier’s demand for the annual payment method.” J.A. 54 (internal quotation marks omitted). In December 1991, Collier accepted the Government’s offer. J.A. 55. Thereafter, Collier and the Case: 19-1758 Document: 29 Page: 7 Filed: 04/17/2020

INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 7

Government proceeded to negotiate the terms of the land exchange. J.A. 55–61. 5 In December 1992, Collier and the DOI executed a Trust Fund Payment Agreement (“TFPA”), J.A. 62; see J.A. 341–468 (TFPA), as well as a deed of trust, J.A. 64; see J.A. 529–99 (Deed of Trust). Consistent with the AFLEA, the TFPA required Collier to provide the Government with a promissory note “for [the] payment of $34.9 million ‘with interest thereon.’” J.A. 62; see J.A. 349; see also J.A. 469– 81 (Promissory Note). Importantly, the TFPA provided that the Deed of Trust and Promissory Note, which were attached as “Exhibits” to the TFPA, “constitute[d]” parts of the “TFPA” “as such term is used in the [AFLEA][.]” J.A. 346. The Promissory Note—executed by Collier in Decem- ber 1992, J.A. 62—required Collier to: (1) make thirty an- nual interest payments of $2,966,500 (“Trust Fund Payments”), reflecting an interest rate of “[8.5] percent . . . per annum” “on the Principal Amount,” J.A. 63, 171; see

5 In October 1992, ITCA filed suit in the U.S. District Court for the District of Arizona (“Arizona District Court”), seeking to enjoin the Government from proceeding with the land exchange. J.A. 67–68; see J.A. 620–46 (ITCA’s Octo- ber 1992 Complaint). Among other concerns, ITCA was worried that the Government had “inadequately collateral- ize[d]” Collier’s payment obligations. J.A. 68. The Arizona District Court denied ITCA’s request for a preliminary in- junction, J.A. 662; see J.A. 68, and in June 1993, granted the Government’s and Collier’s motion to dismiss, J.A. 663; see J.A. 69, finding, inter alia, “that the Secretary[’s] . . . decision regarding the . . . adequacy of the collateral [was] precluded from judicial review,” J.A. 662–63; see J.A. 68– 69. The U.S. Court of Appeals for the Ninth Circuit af- firmed. See Inter Tribal Council of Ariz. v. Babbitt, 51 F.3d 199, 203 (9th Cir. 1995)); see also J.A. 69. Case: 19-1758 Document: 29 Page: 8 Filed: 04/17/2020

J.A. 470, 473 (“Principal Amount means $34.9 million.” (emphasis omitted)); and (2) “pay . . . the Principal Amount,” J.A. 62; see J.A. 470. Additionally, Collier was required to make thirty annual payments into an annuity (“Annuity”), “sufficient . . . to pay the [Government] a lump sum of [$34.9 million]” “on the completion” of those thirty payments. J.A. 62; see J.A. 351–53. According to the TFPA, the Promissory Note was “secured by the Annuity” and a “Trust Estate” as “defined in the Deed of Trust[.]” J.A. 350; see J.A. 63. The Deed of Trust, in turn, provided that the Trust Estate consisted of fifteen acres of the Phoe- nix Indian School Property (“fifteen-acre Phoenix Indian School Property”), as well as Collier’s development inter- ests in about seven and one-half acres of land located in downtown Phoenix (“Downtown Development Interests”), which Collier acquired in an exchange with the City of Phoenix. J.A. 535–37, 569–74; see J.A. 318 (“The obliga- tions for payment will be secured by liens on Collier’s in- terest in [fifteen] acres of the [Phoenix] Indian School [P]roperty and on about [seven and one-half] acres of down- town Phoenix land that Collier[] will receive as a result of a land exchange with the City of Phoenix.”); see also J.A. 64. 6 The Deed of Trust allowed Collier to request, and re- quired the Government to release, portions of the Trust Es- tate if the value of the property remaining in the Trust Estate exceeded 130 percent of a defined “Release Level

6 Prior to execution of the TFPA, Collier agreed to “exchange[] some of the . . . Phoenix Indian School [P]rop- erty that it [was to] receive[] under the AFLEA with the City of Phoenix” for the Downtown Development Interests. J.A. 64; see J.A. 318. Case: 19-1758 Document: 29 Page: 9 Filed: 04/17/2020

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Amount.” J.A. 560–61; see J.A. 64. 7 The Deed of Trust also included a “Maintenance of Collateral Value” provision, which provided that if, after a partial security release, the “fair value” of the remaining unreleased property falls be- low 130 percent of the Release Level Amount, Collier “shall add to the Trust Estate” U.S. Government-backed securi- ties sufficient in value to “restore the fair value” of the un- released property to 130 percent of the Release Level Amount. J.A. 561; see J.A. 65. Finally, the TFPA, Promis- sory Note, and Deed of Trust each “provide[d] that resort for payment of the [Promissory] Note was to be solely against the Annuity and the Trust Estate[.]” J.A. 66; see J.A. 350 (“[R]esort for payment of the Promissory Note shall be solely against the Annuity and the Trust Es- tate[.]”), 471 (similar), 564 (similar). C. Collier’s Performance and Default In December 1997, Collier began making its required Trust Fund Payments—95 percent of which the Govern- ment “deposited . . . into the AITF”—as well as payments toward the Annuity. J.A. 70. 8 In 1998, and again in 2007, “Collier requested releases of [the] liens” on Collier’s

7 The Deed of Trust defined the “Release Level Amount” as (i) the unpaid principal plus accrued interest on the Promissory Note, less (ii) the value of [U.S.] Gov- ernment-backed Securities and Deposited Monies held in the Trust Estate, and further less, after the expiration of two years from the [c]losing [d]ate . . . (iii) the fair value, at the time of the calculation, of the Annuity. J.A. 560. 8 Collier’s Trust Fund Payments and annuity pay- ments were due December 18 of each year, beginning in 1997 and continuing through 2026. J.A. 508; see J.A. 175, 496, 507–08, 510. Case: 19-1758 Document: 29 Page: 10 Filed: 04/17/2020

Downtown Development Interests, “both of which the [Gov- ernment] granted.” J.A. 71. After the lien release in 2007, “only the [fifteen]-acre Phoenix Indian School [P]roperty remained in the Trust Estate to secure [Collier’s] . . . obli- gations.” J.A. 72. Although the Government “received ap- praisals submitted by Collier” “[i]n connection with the two lien releases,” the Government “did not perform or cause to be performed its own appraisals of the security in the Trust Estate either before or after releasing the liens.” J.A. 71. At that time, the Government also “did not provide notice to ITCA of its decisions to release the liens” on Collier’s Downtown Development Interests, and “did not provide in- formation to ITCA from which ITCA could independently calculate the value of the existing or remaining security that the [Government] held in the Trust Estate[.]” J.A. 72. In December 2012, after making fifteen Trust Fund Payments of $2,966,500, “for a total of $44,497,500[,]” and fifteen annual payments into the Annuity for a total of $9,662,000, J.A. 665; see J.A. 70, Collier met with the DOI to discuss Collier’s remaining payment obligations and “to see if [they] c[ould] find an alternative that would be bene- ficial for all parties involved[,]” J.A. 665. Later that month, Collier failed to make its required Trust Fund Payment to the Government and also failed to make its annual annuity payment. J.A. 74; see J.A. 175. In January 2013, Collier informed the Government of its intent to “no longer make payments,” J.A. 74; see J.A. 665 (Collier explaining that it was “simply not in a position to continue to make payments of such a significant magnitude”), explaining that the value of the fifteen-acre Phoenix Indian School Property had de- creased to a point “far below [Collier’s] remaining obliga- tion[,]” “mak[ing] the economics of the deal untenable for [Collier],” J.A. 665. Specifically, as of January 2013, “the only offer [Collier] ha[d] received” for the property was for $6 million, J.A. 665; see J.A. 74–75, whereas, Collier’s “re- maining obligation consist[ed] of another $44,497,500 in interest payments, and the remaining princip[al] [of] Case: 19-1758 Document: 29 Page: 11 Filed: 04/17/2020

INTER-TRIBAL COUNCIL OF AZ v. UNITED STATES 11

approximately $22 million, for a total of approximately $66.5 million,” J.A. 665; see J.A. 76. Later that month, the DOI sent a letter to Collier, in which the DOI “noted that the value of the [remaining security] appeared to be less than 130 percent of the Release Level Amount,” J.A. 74 (in- ternal quotation marks omitted), and demanded that Col- lier “add to the [T]rust [E]state” additional security, J.A. 731; see J.A. 75. By March 2013, the DOI shared these letters with ITCA, informing ITCA that Collier was in de- fault and that Collier’s obligations were under collateral- ized. J.A. 75. In April 2013, the DOI sent another letter to Collier, in which the DOI “repeated its demand” that Col- lier “supplement the value of the Trust Estate with [U.S.] [G]overnment-backed securities.” J.A. 75. D. The Government Sought to Require Collier to Provide Additional Security In January 2014, the Government filed suit against Collier in the Arizona District Court, “s[eeking] to require Collier to provide additional security to fulfill its contrac- tual promises to the [Government].” J.A. 76 (internal quo- tation marks omitted). 9 The Government alleged that “[s]ince 2007, the value of the [fifteen]-acre [Phoenix] In- dian School [P]roperty ha[d] dropped significantly, and that reduction in value ha[d] left the debt owed by Collier grossly under-collateralized.” J.A. 606; see J.A. 75. Specif- ically, the Government alleged that “Collier [wa]s currently below its required level for collateral by an amount equal to $18,499,556,” and thus “Collier [wa]s required to make additional pledges of collateral in the form of [U.S.]

9 The Government “sought to recover only four $2.9 million [Trust Fund] [P]ayments, reflecting payments missed for the years 2012, 2013, 2014[,] and 2015,” J.A. 76 (emphasis omitted), but “did not take into account the $2.9 million annual [Trust Fund] [P]ayments due . . . each year after 2015 and until 2026,” J.A. 77. Case: 19-1758 Document: 29 Page: 12 Filed: 04/17/2020

Government-backed securities in th[at] amount . . . to achieve the minimum level of 130[ percent] of the Release Level Amount anticipated as of December 31, 2015.” J.A. 78. The Government and Collier “stipulated that the value of the [fifteen-acre] Phoenix Indian School [P]roperty (based on appraisals as of September 15, 2015) was $25 million,” and that “[a]ccording to the [Government], the value of the Annuity as of November 30, 2015[,] was approximately $13.3 million.” J.A. 76. In August 2016, the Arizona District Court “ordered [Collier] to render specific performance . . . by providing to the [Government] . . . [U.S.] [G]overnment-backed securities as added Trust Es- tate collateral[,]” and further ordered that “[t]he fair mar- ket value of the securities upon performance shall be the sum of (a) $20,452,281.00 and (b) $10,565.00 multiplied by the number of calendar days between July 22, 2016[,] and the date of performance.” J.A. 784; see J.A. 79–80. In September 2016, the Arizona District Court stayed execution of its judgment, pending resolution of post-trial motions, J.A. 973; and, in October 2016, the Arizona Dis- trict Court stayed litigation, “except as to settlement re- lated purposes[,]” based upon a “tentative” settlement agreement between the parties, J.A. 974. In July 2017, the Government and Collier “reached and executed” a settle- ment agreement, J.A. 80, after which the Arizona District Court “terminated [the case] in its entirety with preju- dice[,]” J.A. 81. The Government “reported . . . that the . . . settlement ha[d] a projected gross recovery of $54.5 million, consisting of $16 million cash, $13.5 million in [the] [A]nnuity, and [the fifteen-acre] Phoenix [Indian School Property] with a 2015 appraised value of $25 million.” J.A. 81. Pursuant to the settlement agreement, in July 2017, Collier paid “$16 million in cash” to the Govern- ment. J.A. 81. In 2018, the General Services Administra- tion sold the fifteen-acre Phoenix Indian School Property for $18.5 million. J.A. 85. Case: 19-1758 Document: 29 Page: 13 Filed: 04/17/2020

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II. Procedural History In April 2015, ITCA filed a lawsuit against the Govern- ment in the Court of Federal Claims, alleging that the Gov- ernment breached its fiduciary duties established pursuant to the AFLEA. J.A. 86–91. The Complaint con- sisted of three claims. Relevant here, Claim I generally al- leged “breaches of fiduciary obligations [on the part of the Government] regarding the [AFLEA]’s Trust Fund Pay- ments security requirements,” J.A. 86 (capitalization nor- malized); see J.A. 86–89, and Claim II generally alleged “breaches of fiduciary obligations [on the part of the Gov- ernment] to collect, deposit[,] and make Trust Fund Pay- ments required by the [AFLEA] for which earnings have been lost,” J.A. 89 (capitalization normalized); see J.A. 89– 90. In May 2018, the Government filed its Motion to Dis- miss the Complaint for lack of subject matter jurisdiction and for failure to state a claim, pursuant to Rules 12(b)(1) and 12(b)(6) of the RCFC, respectively. See Motion to Dis- miss Second Amended Complaint, Inter-Tribal Council of Ariz., Inc. v. United States, No. 1:15-cv-00342-NBF (Fed. Cl. May 16, 2018), ECF No. 59. 10 In October 2018, the Court of Federal Claims granted the Government’s motion in part, dismissing Claim I for lack of subject matter juris- diction and for failure to state a claim, and Claim II for failure to state a claim. See Inter-Tribal Council of Ariz., 140 Fed. Cl. at 460.

10 Rules 12(b)(1) and 12(b)(6) of the RCFC provide that “a party may assert the following defenses by motion: (1) lack of subject matter jurisdiction; . . . [and] (6) failure to state a claim upon which relief can be granted[,]” respec- tively. Case: 19-1758 Document: 29 Page: 14 Filed: 04/17/2020

DISCUSSION I. Standard of Review and Legal Standard “A plaintiff bears the burden of establishing subject- matter jurisdiction by a preponderance of the evidence.” M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (citation omitted). “We review de novo a grant or denial of a motion to dismiss for lack of jurisdiction.” Hopi Tribe v. United States, 782 F.3d 662, 666 (Fed. Cir. 2015). Likewise, “[w]e review the . . . grant of a motion to dismiss for failure to state a claim de novo.” Prairie Cty., Mont. v. United States, 782 F.3d 685, 688 (Fed. Cir. 2015) (citation omitted) (italicization normalized). In either case, “[w]e take all factual allegations in the com- plaint as true and construe the facts in the light most fa- vorable to the non-moving party.” Jones v. United States, 846 F.3d 1343, 1351 (Fed. Cir. 2017); see Pixton v. B & B Plastics, Inc., 291 F.3d 1324, 1326 (Fed. Cir. 2002) (apply- ing the same standard “[w]hen a party has moved to dis- miss for lack of subject matter jurisdiction”). A complaint should not be dismissed for failure to state a claim, “unless the complaint fails to ‘state a claim to relief that is plausi- ble on its face.’” K-Tech Telecomms., Inc. v. Time Warner Cable, Inc., 714 F.3d 1277, 1282 (Fed. Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he Supreme Court has established a two-part test for determining jurisdiction under the Indian Tucker Act.” Hopi Tribe, 782 F.3d at 667 (citing United States v. Navajo Nation (Navajo Nation II), 556 U.S. 287, 290 (2009)); see 28 U.S.C. § 1505 (Indian Tucker Act) (providing, in relevant part, that the Court of Federal Claims has jurisdiction over claims against the Government by Indian tribes “whenever such claim[s] . . . aris[e] under the . . . laws . . . of the United States”). “First, the tribe ‘must identify a substan- tive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties.’” Navajo Nation II, 556 Case: 19-1758 Document: 29 Page: 15 Filed: 04/17/2020

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U.S. at 290 (quoting United States v. Navajo Nation (Nav- ajo Nation I), 537 U.S. 488, 506 (2003)). “At th[is] first step, a statute or regulation that recites a general trust relation- ship between the [Government] and the Indian [tribes] is not enough to establish any particular trust duty.” Hopi Tribe, 782 F.3d at 667. “Indian [t]ribes, moreover, cannot simply rely on common law duties imposed on a trustee; instead, tribes must point to specific statutes [or] regula- tions that ‘establish the fiduciary relationship and define the contours of the [Government’s] fiduciary responsibili- ties.’” Shoshone Indian Tribe of Wind River Reservation, Wyo. v. United States, 672 F.3d 1021, 1039–40 (Fed. Cir. 2012) (quoting United States v. Jicarilla Apache Na- tion, 564 U.S. 162, 177 (2011)). Second, “the [trial] court must . . . determine whether the relevant source of substantive law can fairly be inter- preted as mandating compensation for damages sustained as a result of a breach of the duties the governing law im- poses.” Navajo Nation II, 556 U.S. at 291 (internal quota- tion marks, alterations, and citation omitted). “At th[is] second step . . . , common-law trust principles come into play.” Hopi Tribe, 782 F.3d at 668. Specifically, “principles of trust law might be relevant ‘in drawing the inference that Congress intended damages to remedy a breach.’” Navajo Nation II, 556 U.S. at 291 (quoting United States v. White Mountain Apache Tribe, 537 U.S. 465, 477 (2003)). Indeed, the Supreme Court “ha[s] consistently recognized that the existence of a trust relationship between the [Gov- ernment] and an . . . Indian tribe includes as a fundamen- tal incident the right of an injured beneficiary to sue the trustee for damages resulting from a breach of the trust.” United States v. Mitchell, 463 U.S. 206, 226 (1983); see id. (“Given the existence of a trust relationship, it naturally follows that the Government should be liable in damages for the breach of its fiduciary duties.”). Finally, “[t]he jurisdiction of the Court of Federal Claims is limited by the six-year statute of limitations of Case: 19-1758 Document: 29 Page: 16 Filed: 04/17/2020

28 U.S.C. § 2501.” Rocky Mountain Helium, LLC v. United States, 841 F.3d 1320, 1325 (Fed. Cir. 2016); see 28 U.S.C. § 2501 (“Every claim of which the . . . Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first ac- crues.”); see also Martinez v. United States, 333 F.3d 1295, 1316 (Fed. Cir. 2003) (“It is well established that statutes of limitations for causes of action against the United States, being conditions of the waiver of sovereign immun- ity, are jurisdictional in nature.”). Relevant here, “[a] cause of action for breach of trust traditionally accrues when the trustee ‘repudiates’ the trust and the beneficiary has knowledge of that repudiation.” Shoshone Indian Tribe, 364 F.3d at 1348 (citation omitted). “A trustee may repudiate the trust by express words or by taking actions inconsistent with his responsibilities as trustee.” Id. (cita- tion omitted). While “[t]he beneficiary . . . may bring [an] action as soon as he learns that the trustee has failed to fulfill his responsibilities,” “[i]t is often the case . . . that the trustee can breach his fiduciary responsibilities of manag- ing trust property without placing the beneficiary on notice that a breach has occurred.” Id. “It is therefore common for the statute of limitations to not commence to run against the beneficiaries until a final accounting has oc- curred that establishes the deficit of the trust.” Id. (cita- tion omitted). II. The Court of Federal Claims Improperly Dismissed a Portion of Claim I of the Complaint The Court of Federal Claims dismissed Claim I of the Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the RCFC. See Inter-Tribal Council of Ariz., 140 Fed. Cl. at 455–57, 460. Specifically, as to Claim I’s allegation that the Government “failed to ensure . . . adequate security for the entire amount of the trust fund obligations . . . , when it negotiated the TFPA in 1992[,]” id. at 455, the Court of Federal Claims concluded that, “[b]ecause ITCA clearly knew about the terms of the TFPA and the amount of Case: 19-1758 Document: 29 Page: 17 Filed: 04/17/2020

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security that Collier was required to hold more than six years before [ITCA] filed [its] lawsuit,” that portion of Claim I “is barred by the six-year statute of limitations,” id. at 457; see 28 U.S.C. § 2501. As to the remaining alle- gations of Claim I, viz., that the Government failed to maintain “sufficient” or “adequate” security in the Trust Estate over time, id. at 455, the Court of Federal Claims concluded that the Government was not “required . . . to do anything more than it did in filing suit . . . to obtain the additional security from Collier. . . . Therefore, ITCA has not stated a claim for relief in [Claim] I[,]” Id. at 457. ITCA contends that the Court of Federal Claims erred on both grounds of dismissal. First, ITCA argues that the Court of Federal Claims erred by “fail[ing] to interpret cor- rectly the express and unambiguous terms and structure of the [AFLEA],” as well as ignoring and misinterpreting “key terms in the TFPA and related documents,” which “led the [Court of Federal Claims] to conclude” that the Govern- ment was “authorized . . . to hold less security than was needed to secure all the Trust Fund Payments required by the [AFLEA].” Appellant’s Br. 9. Second, the Court of Fed- eral Claims also erred, ITCA argues, in concluding that ITCA failed to file its lawsuit within the six-year statute of limitations period following “the execution of the TFPA . . . , despite the continuing nature of the security ob- ligations imposed under the [AFLEA], and the fact that ITCA had no means by which to know the dollar value of the security[.]” Id. at 9–10. As discussed below, we agree with ITCA, and find that the Court of Federal Claims erred in dismissing the failure- to-maintain-sufficient-security portion of Claim I at this stage of the proceedings. As to the remainder of Claim I, however, we agree with the Court of Federal Claims that it should be dismissed. Case: 19-1758 Document: 29 Page: 18 Filed: 04/17/2020

A. The Government’s Alleged Failure to Maintain Sufficient Security in the Trust Estate Beginning with the first step of the Supreme Court’s two-part jurisdictional test, we must initially consider whether ITCA has identified a “‘substantive source of law’” that establishes a specific fiduciary duty. Navajo Na- tion II, 556 U.S. at 290 (quoting Navajo Nation I, 537 U.S. at 506). Section 405(c)(2) of the AFLEA, which ITCA iden- tified in the Complaint as imposing a fiduciary duty upon the Government, see, e.g., J.A. 50, 64, provides that if, as was the case, the Monetary Proceeds were to be received “in the form of annual payments[,]” the Government “shall hold in trust the security provided in accordance with the [TFPA][.]” The TFPA, in turn, defines the security to be held, as well as the security’s intended purpose. Specifi- cally, the TFPA required Collier to pay both the Principal Amount and “interest thereon[,]” J.A. 349, 470 (Promissory Note) (“Collier . . . promises to pay . . . the Principal Amount . . . with interest thereon[.]”), and the Government was required to hold the Annuity and Trust Estate as se- curity against those payment obligations, J.A. 350 (“The parties acknowledge that the Promissory Note . . . is se- cured by the Annuity, and the ‘Trust Estate[.]’”). 11 The

11 The parties dispute whether the security to be held by the Government was intended to secure all thirty years of required annual interest payments, i.e., Trust Fund Pay- ments, or only accrued interest. ITCA contends, for exam- ple, that “all of the unpaid annual payments” were to be secured to “ensur[e] that all annual payments and the final payment were fully secured throughout the [thirty]-year period.” Appellant’s Br. 18. To support its position, ITCA relies on the Government’s purported admission before the Arizona District Court that the security was intended to secure “any and all unpaid annual payments for the entire Case: 19-1758 Document: 29 Page: 19 Filed: 04/17/2020

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[thirty]-year period[,]” id. at 18 n.7, and on DOI statements that “ma[k]e clear [that the DOI] understood the [Govern- ment] had to secure both the $34.9 million final payment at the end of the [thirty]-year period and the annual pay- ments[,]” id. at 13 (citing J.A. 202 (a DOI attorney explain- ing that “we’re not only securing the $35 million at the end of the [thirty-]year period but we also want to secure pay- ments of those annual interest payments”)); see J.A. 246 (the Assistant Secretary for Fish and Wildlife and Parks explaining that the DOI and Collier “must execute” an agreement “to secure [thirty] years of interest payments and a final payment of $34.9 million for the Indian trust funds”). The Government contends, however, that “such individual opinions cannot, as a matter of law, create a duty for the [Government][,]” Appellee’s Br. 26, and that “ITCA falsely claims that the [Government] took a position in its litigation with Collier that the Deed of Trust’s ac- crued interest provision covers all [thirty] years of pay- ments[,]” id. at 27 n.7. While we acknowledge that Collier, as part of its payment obligations under the TFPA, under- took to pay “thirty . . . consecutive annual interest pay- ments[,]” J.A. 470; see also AFLEA § 403(c)(2)(A) (requiring Collier to make “[thirty] annual payments equal to the in- terest due on . . . the Monetary Proceeds”), we take no po- sition on the issue of whether the security to be held by the Government was intended to secure all thirty years of re- quired annual interest payments, as this issue is not mate- rial to our present determination, and also because the Court of Federal Claims did not pass on this issue below, see generally Inter-Tribal Council of Ariz., 140 Fed. Cl. at 454–60. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.”). Although we expect this issue will ultimately need to be resolved, for purposes of this appeal, it is enough that the Case: 19-1758 Document: 29 Page: 20 Filed: 04/17/2020

AFLEA confirms this purpose, and demonstrates Con- gress’s expectation that the security was to be maintained at a level sufficient to secure Collier’s payment obligations. See, e.g., AFLEA § 402(h)(3)(D)(ii) (requiring “[a]ny [other] person seeking to acquire” the Phoenix Indian School Prop- erty to provide “evidence” of “collateral . . . adequate to se- cure the payment obligations . . . under the [TFPA]”), (5)(B)(iii) (requiring the Secretary to “exclude from consid- eration any [other] offer . . . fail[ing] to identify collateral that is adequate to secure the [payment] obligations under the [TFPA]”). The Deed of Trust—which was expressly made part of the TFPA, J.A. 346—makes this expectation explicit by requiring the “fair value” of the Trust Estate to be maintained at or above 130 percent of the Release Level Amount, J.A. 561. Finally, the AFLEA provides that Col- lier’s payments, and interest earned thereon, were to be “used” exclusively “for the benefit of,” or paid directly to, ITCA and the Navajo Nation. Id. § 405(d)(2), (4). Thus, the AFLEA, in combination with the TFPA, “defines a fidu- ciary relationship” by providing that the Government was to “hold in trust” security, at a level adequate to secure Col- lier’s payment obligations, for the benefit of ITCA and the Navajo Nation. White Mountain Apache Tribe, 537 U.S. at 474. 12

Government has acknowledged that Collier’s debt had be- come “grossly under-collateralized.” J.A. 606. 12 The Assistant Secretary for Indian Affairs acknowledged this fiduciary relationship when, in Septem- ber 1991, he explained to the Secretary that one of the “most important factors to be considered in analyzing [Col- lier’s payment] options,” was the “degree of security pro- vided [to] the [DOI] in fulfilling its trust responsibilities to the beneficiaries of the trust,” J.A. 224, and again in March 1992, when, in discussing a “collateral agreement to Case: 19-1758 Document: 29 Page: 21 Filed: 04/17/2020

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Moreover, the Deed of Trust invested the Government with discretionary control over the level of security held in trust, by, for example, granting the Government exclusive authority to “release or reconvey” all or any portion of the Trust Estate “at any time at [its] option[.]” J.A. 547; see J.A. 547 (granting the Government authority to “take or release any other or additional security”); see also White Mountain Apache Tribe, 537 U.S. at 466 (explaining that because “[t]he statute expressly defines a fiduciary rela- tionship . . . , then proceeds to invest the [Government] with discretionary authority” over “the trust corpus[,]” it “permits a fair inference that the Government is subject to duties as a trustee”); Hopi Tribe, 782 F.3d at 668 (“[B]y us- ing trust language in conjunction with an authorization of plenary control of the [property], Congress clearly accepted a fiduciary duty to exercise that authority with the care charged to a trustee at common law.”). While the Deed of Trust also provided Collier with the “right to require” the Government to release portions of the Trust Estate, Col- lier’s right was expressly limited, J.A. 561, and the Govern- ment otherwise maintained “full responsibility to manage [the level of security held in trust] for the benefit of the In- dians[,]” Mitchell, 463 U.S. at 224. Accordingly, ITCA iden- tified a “substantive source of law”—AFLEA § 405(c)(2)—

secure the Indian’s interest” with Collier, the Assistant Secretary explained that ITCA and the Navajo Nation, “[a]s the beneficiaries of the[] proceeds, . . . ha[d] a major concern regarding the security of th[e] anticipated flow of income over the next thirty years[,]” and that while the Sec- retary had tried to “accommodate Collier” in negotiating acceptable collateral, the Secretary was required to “fully meet[] . . . his trust responsibilities to the Indian tribes,” including the “obligation to protect the Indian tribes’ finan- cial interest[,]” J.A. 263. Case: 19-1758 Document: 29 Page: 22 Filed: 04/17/2020

in the Complaint that establishes a specific fiduciary duty. Navajo Nation II, 556 U.S. at 290. Next, as part of the first step of the Supreme Court’s jurisdictional test, we must also consider whether ITCA al- leged that the Government has “failed to faithfully per- form” its fiduciary duty. Id. Claim I of the Complaint does exactly this, alleging that the Government breached its fi- duciary obligations by failing to maintain “sufficient secu- rity in the Trust Estate[.]” J.A. 87; see J.A. 87–88. The Government’s representations to the Arizona District Court support this allegation, as the Government acknowl- edged that the value of the Trust Estate fell below the Re- lease Level Amount “sometime after” the Government released liens on Collier’s Downtown Development Inter- ests in 2007, J.A. 72, and that by January 2014, “the debt owed by Collier [had become] grossly under-collateralized,” J.A. 606; see J.A. 74–75. In fact, by as early as March 2012, the value of the Trust Estate had decreased to a point “far below” the value of Collier’s “remaining obligation[s].” J.A. 665; see J.A. 74–75. While the Government has at- tributed this to a “decline in [property] value[s]” caused by the economic downturn of 2008, J.A. 72; see J.A. 75, it ap- pears to be the result of much more. ITCA alleged, for ex- ample, that the Government released the liens on Collier’s Downtown Development Interests without “per- form[ing] . . . its own appraisals of the security in the Trust Estate[,]” or otherwise “determin[ing] whether sufficient security would remain . . . in the Trust Estate to secure [Collier’s] obligations.” J.A. 71; see J.A. 72. 13 ITCA further

13 The Government contends, and ITCA agrees, that “under the [TFPA]” Collier had an “obligation . . . to moni- tor the level of security” remaining in the Trust Estate. Oral Arg. at 24:18–24:23, 30:53–31:05, http://oralargu- ments.cafc.uscourts.gov/default.aspx?fl=2019-1758.mp3. Case: 19-1758 Document: 29 Page: 23 Filed: 04/17/2020

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alleged that, despite Collier’s obligation to “restore the fair value” of the Trust Estate to 130 percent of the Release Level Amount, J.A. 561, the Government “did not demand that Collier substitute security at any time up to and before the lien releases . . . or even after the economic downturn,” J.A. 73. Instead, the Government “only demanded that Collier provide substitute security after Collier defaulted,” J.A. 73, at which point Collier’s obligations had already be- come substantially—if not “grossly,” J.A. 606—under col- lateralized, and “economic[ally] . . . untenable,” J.A. 665. Finally, ITCA alleged that the Government “did not pro- vide notice to ITCA of its decisions to release the liens[,]” and “did not provide information to ITCA from which ITCA could independently calculate the value of the existing or remaining security that the [Government] held in the Trust Estate, either before or after releasing the liens.” J.A. 72. In fact, it was not until March 2013, that the Gov- ernment disclosed to ITCA that Collier had defaulted and that Collier’s obligations were under collateralized. J.A. 75; see Oral Arg. at 7:37–8:00. If proven, ITCA’s allegations would demonstrate a breach of the Government’s fiduciary duty to “hold in trust the security” against Collier’s payment obligations, includ- ing the duty to preserve the property held in trust, see White Mountain Apache Tribe v. United States, 249 F.3d

Even assuming that such an obligation exists, a matter about which the TFPA is silent, see generally J.A. 341–468, any such obligation is separate and distinct from those im- posed on the Government pursuant to the AFLEA, and does not, and indeed cannot, relieve the Government of ob- ligations arising from its statutory fiduciary duty, see Con- nolly v. Pension Ben. Guar. Corp., 475 U.S. 211, 224 (1986) (“If the . . . statute is otherwise within the powers of Con- gress, . . . its application may not be defeated by private contractual provisions.”). Case: 19-1758 Document: 29 Page: 24 Filed: 04/17/2020

1364, 1378 (Fed. Cir. 2001) (“Under the common law of trusts, it is indisputable that a trustee has an affirmative duty to act reasonably to preserve the trust property.”); see also Restatement (Third) of Trusts § 77 (2007) (“The trus- tee has a duty to administer the trust as a prudent person would, in light of the purposes, terms, and other circum- stances of the trust.”), as well as the duty to provide ITCA with pertinent information, see In re United States, 590 F.3d 1305, 1312 (Fed. Cir. 2009) (“[T]he fiduciary has a duty to disclose all information related to trust manage- ment to the beneficiary.”); see also Restatement (Third) of Trusts § 82 cmt. d (2007) (A trustee has an “affirmative” duty to “inform . . . beneficiaries of important develop- ments and information that appear reasonably necessary for the beneficiaries to be aware of in order to protect their interests.”). This is especially so, in light of the “most ex- acting fiduciary standards” by which the Government is to conduct itself “in its relationship with . . . Indian benefi- ciaries.” Shoshone Indian Tribe, 364 F.3d at 1348 (internal quotation marks and citation omitted). Two particular allegations make the Government’s purported conduct in this case particularly troubling. First, after the lien release in 2007, only real property, viz., the fifteen-acre Phoenix Indian School Property, remained in the Trust Estate, J.A. 72, a practice which the Govern- ment, in September 1991, cautioned against, J.A. 203–204 (DOI officials advising against “real estate as part of the security” because “[n]obody knows what [real] property is going to be worth [ten]–[fifteen] years from now. It[’]s tough to get rid of [real] property in a bad market” and “even in a good market [it] isn’t all that liquid”), 211 (a DOI attorney explaining that “[b]ased upon my experience . . . , I become concerned about a portfolio that proposes exclu- sively in real estate”). Indeed, as the Assistant Secretary for Indian Affairs explained to the Secretary that same month, “because of the uncertain value of the [Phoenix In- dian School] [P]roperty . . . , securing the full amount of the Case: 19-1758 Document: 29 Page: 25 Filed: 04/17/2020

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Indian trust funds with the property would not be adequate in meeting our trust responsibilities.” J.A. 226. Second, “Collier’s debt was ‘nonrecourse,’” J.A. 66, such that when Collier defaulted, the Government was required to “solely resort to, and proceed in rem against” the security held by the Government, J.A. 471; see J.A. 350 (similar), 564 (sim- ilar). Accordingly, ITCA alleged that the Government has “failed to faithfully perform” its fiduciary duty. Navajo Na- tion II, 556 U.S. at 290. Turning to the second step of the Supreme Court’s ju- risdictional test, we must determine whether the AFLEA “can be fairly interpreted as mandating compensation for the [G]overnment’s fiduciary wrongs[.]” Id. at 292 (inter- nal quotation marks and citation omitted). Here, because the AFLEA “clearly establish[es] fiduciary obligations of the Government in the management” of the security to be held in trust, “[it] can fairly be interpreted as mandating compensation by the . . . Government for damages sus- tained” by ITCA. Mitchell, 463 U.S. at 226. Moreover, if ITCA is precluded from recovery for the Government’s breach of its fiduciary duty, the Government’s failure to timely provide information to ITCA has rendered “prospec- tive equitable remedies . . . totally inadequate.” Id. at 227; see id. (“In addition, by the time government mismanage- ment becomes apparent, the damage to Indian resources may be so severe that a prospective remedy may be next to worthless.”); see also id. (“A trusteeship would mean little if the beneficiaries were required to supervise the day-to- day management of their estate by their trustee or else be precluded from recovery for mismanagement.”). Accord- ingly, the AFLEA “can be fairly interpreted as mandating compensation for the [G]overnment’s fiduciary wrongs[.]” Navajo Nation II, 556 U.S. at 292. Finally, because the Government failed to disclose to ITCA that Collier had defaulted and that Collier’s obliga- tions were under collateralized until March 2013, J.A. 75; see Oral Arg. at 7:37–8:00, the statute of limitations did not Case: 19-1758 Document: 29 Page: 26 Filed: 04/17/2020

commence to run against ITCA before that time, see Sho- shone Indian Tribe, 364 F.3d at 1348. 14 Thus, Claim I, originally filed in April 2015, J.A. 86, was brought well within the six-year statute of limitations on claims brought against the Government in the Court of Federal Claims, see 28 U.S.C. § 2501. Indeed, the Court of Federal Claims agreed that “this portion of Claim I is not time barred.” In- ter-Tribal Council of Ariz., 140 Fed. Cl. at 457; see id. (“As to th[at] portion of Claim I, that is ITCA’s claim that the [G]overnment breached its trust obligation by failing to en- sure that Collier maintained sufficient collateral as re- quired by the Deed of Trust when the collateral amount fell below 130[ percent] of the Release Level Amount when it released liens in 1998 and 2007 as well as when Collier de- faulted in 2013, the [C]ourt [of Federal Claims] finds this portion of Claim I is not time barred[.]”). Accordingly, the portion of Claim I that arises from the Government’s al- leged breach of its fiduciary duty to “hold in trust the secu- rity” against Collier’s payment obligations, see, e.g., J.A. 87–88, states a claim over which the Court of Federal Claims has jurisdiction, and upon which relief can be granted. We therefore find that the Court of Federal Claims erred in dismissing the failure-to-maintain-suffi- cient-security portion of Claim I of the Complaint.

14 It is unclear from the record whether the letters provided to ITCA in March 2013, were sufficient to permit ITCA to “establish[] the deficit of the trust.” See Shoshone Indian Tribe, 364 F.3d at 1348. Thus, ITCA’s claim for breach of the Government’s fiduciary duty may have ac- crued at an even later date. Either way, ITCA filed the Complaint well within the statutory limitations period. J.A. 86. Case: 19-1758 Document: 29 Page: 27 Filed: 04/17/2020

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B. The Government’s Alleged Failure to Ensure Adequate Security When it Negotiated the TFPA ITCA did not cite, and we have not found, support in the AFLEA, case law, or otherwise, for the proposition that the Government’s fiduciary duty to “hold in trust” the se- curity against Collier’s payment obligations, imposes a con- current duty on the Government to “negotiate terms in the TFPA and related documents to ensure adequate security” as ITCA alleged. J.A. 87. See generally Appellant’s Br. Re- gardless, the TFPA was executed, and ITCA was made aware of the TFPA’s terms, well before the six-year statute of limitations on claims brought against the Government in the Court of Federal Claims. J.A. 62, 67–68; see 28 U.S.C. § 2501; see also Hopeland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576 (Fed. Cir. 1988) (ex- plaining that § 2501 applies to “Indian tribes in the same manner as against any other litigant seeking legal redress or relief from the [G]overnment”). Accordingly, to the ex- tent Claim I arises from the Government’s alleged failure to ensure adequate security when it negotiated the TFPA, the Court of Federal Claims properly dismissed Claim I of the Complaint. III. The Court of Federal Claims Properly Dismissed Claim II of the Complaint The Court of Federal Claims dismissed Claim II of the Complaint pursuant to Rule 12(b)(6) of the RCFC. See In- ter-Tribal Council of Ariz., 140 Fed. Cl. at 457–58, 460. Specifically, the Court of Federal Claims found that the AFLEA “does not impose any obligation on the [G]overn- ment to make payments if Collier fails to make pay- ments. . . . Therefore, [Claim II] must be dismissed for failure to state a claim upon which relief can be granted.” Id. at 458 (internal quotation marks, alterations, and cita- tion omitted). ITCA contends, however, that the Court of Federal Claims “ignored the [AFLEA]’s mandates and erred under applicable case law . . . when it dismissed Case: 19-1758 Document: 29 Page: 28 Filed: 04/17/2020

ITCA’s claim for damages based upon the [Government’s] failure under the [AFLEA] to collect and pay all of the [AFLEA]’s required remaining annual payments and the full final payment after Collier’s default.” Appellant’s Br. 10. We disagree with ITCA. Claim II fails to state a claim upon which relief can be granted. Relevant to Claim II, ITCA contends that the AFLEA “required the [Government] to collect from Collier all Trust Fund Payments required under the [AFLEA], and that the [Government’s] failure to collect all of the pay- ments is a breach of trust for which the [Government] is liable.” Appellant’s Br. 26 (emphasis omitted). Specifi- cally, ITCA alleged in the Complaint, that the Government “has not collected [or made] . . . any Trust Fund Pay- ments—annual or final—from Collier since 2011.” J.A. 74; see J.A. 89. However, ITCA did not cite, and we have not found, support in the AFLEA, case law, or otherwise, for the imposition of a duty consistent with this allegation. In- stead, those portions of the AFLEA cited by ITCA for sup- port, requiring, for example, that “[t]he Monetary Proceeds shall be paid to the [Government],” AFLEA § 403(a), im- pose, at most, a duty upon Collier, not the Government. In fact, § 403(c)(2) explicitly provides that the “Purchaser,” de- fined as “Collier,” id. § 401(16), “shall make” the requisite payments under the annual payment method. 15 Moreover, ITCA’s reliance on Shoshone Indian Tribe to argue that de- spite “the lack of express collection duties,” “provisions mandating payments from third parties imply the [G]overnment’s collection duties,” Appellant’s Br. 28, is misplaced. Shoshone Indian Tribe concerned regulations

15 During oral argument, ITCA acknowledged the lack of any explicit duty of the Government to collect Col- lier’s Trust Fund Payments in the AFLEA, arguing in- stead, that any such duty “would be . . . implicit.” Oral Arg. at 2:58–3:14. Case: 19-1758 Document: 29 Page: 29 Filed: 04/17/2020

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that required the “Government [to] collect[] . . . all pay- ments[.]” 364 F.3d at 1350. No such requirement or obli- gation is present in this case. Accordingly, because Claim II fails to state a claim upon which relief can be granted, the Court of Federal Claims properly dismissed Claim II of the Complaint. CONCLUSION We have considered the parties’ remaining arguments and find them unpersuasive. Accordingly, the Partial Fi- nal Judgment of the U.S. Court of Federal Claims is AFFIRMED-IN-PART AND REVERSED-IN-PART