POPE v. United States

• Court: United States Court of Federal Claims
• Decided: April 28, 2026
• Docket: 24-1873
• Status: Published

Opinion

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________________________________ ) HEIRS OF NOEL POPE, et al., ) ) Plaintiffs, ) No. 24-1873 ) v. ) Filed: April 28, 2026 ) THE UNITED STATES, ) ) Defendant. ) ______________________________________ )

OPINION AND ORDER

Plaintiffs are a group of American Indians who have inherited or may inherit mineral

interests in an approximately 80-acre allotment of land in Eastern Oklahoma (“the Allotment”)

from their common ancestor, Noel Pope. They allege that the federal government breached its

trust duties by failing to properly protect their interests in relation to a 2022 proceeding in which

the District Court of Pittsburg County, Oklahoma, approved an oil and gas lease between Reagan

Smith, Inc. (“Reagan Smith”), an oil and gas company, and certain on the Allotment’s mineral

owners. They also allege such approval amounted to a Fifth Amendment taking, or alternatively,

an illegal exaction. Defendant moved to dismiss Plaintiffs’ Amended Complaint for lack of

jurisdiction and failure to state a claim under Rules 12(b)(1) and 12(b)(6) of the Rules of the United

States Court of Federal Claims (“RCFC”). As explained below, because Plaintiffs fail to

demonstrate jurisdiction under the Indian Tucker Act or on a breach-of-trust theory and because

they fail to state viable takings or illegal exaction claims, Defendant’s motion to dismiss is

GRANTED. I. BACKGROUND

A. Factual Background

In 1887, Congress passed the General Allotment Act, which authorized the federal

government to convert communal tribal land into individually owned private parcels called

allotments. See Pls.’ Am. Compl. ¶ 8, ECF No. 6; see also General Allotment Act of 1887, ch.

119, 24 Stat. 388; United States v. Mitchell, 445 U.S. 535, 542–44 (1980) (describing the statutory

allotment policy as “allot[ing] to each Indian residing on a reservation up to 80 acres of agricultural

land or 160 acres of grazing land found within the reservation”). Noel Pope, whose heirs now

bring suit in this Court, received a restricted-fee allotment in 1903. ECF No. 6 ¶¶ 10–11. The

Allotment consists of 79.13 acres and is located in Pittsburg County, Oklahoma. Id. ¶ 11.

Following Mr. Pope’s death in 1954, the Pope family lost all of the surface interest and a

portion of the mineral interest in the Allotment as the result of a sherriff’s sale in 1959, with the

remainder of the mineral interest going to five of Mr. Pope’s heirs. Id. ¶ 32. This remaining

mineral interest in the Allotment is now owned by 84 descendants of Mr. Pope who have varying

fractional interests based on their relation to their common ancestor. Id.; Oral Arg. Tr. at 43:10–

23, ECF No. 17 (representing that there are 84 total mineral owners). The Allotment was subject

to various oil and gas leases from 1930 to 2006, when the most recent lease prior to the lease at

issue expired. ECF No. 6 ¶¶ 12–16.

In Oklahoma, oil and gas leases on restricted allotments belonging to members of the Five

Civilized Tribes are governed by the Act of 1947, commonly known as the Stigler Act. See Act

of August 4, 1947 (“Stigler Act”), Pub. L. No. 80-336, 61 Stat. 731. 1 The Act requires that any

1 The Stigler Act was amended in 2018 to eliminate the blood quantum requirement to own land in restricted status, see Stigler Act Amendments of 2018, Pub. L. No. 115-399, 132 Stat. 5331, 2 conveyance—including an oil and gas lease—of interests in a restricted allotment be approved by

the Oklahoma district court in the county in which the land is situated. 2 Id. § 1(a). The Act also

sets forth the procedure by which mineral owners and prospective lessees must obtain the

necessary court approval. First, the mineral owners or the prospective lessee must file a petition

for approval of the lease with the appropriate state district court. Id. § 1(b). Next, notice of the

lease approval hearing, which must be set at least 10 days after the filing of the petition, is required

to be published in the county newspaper. Id. Written notice of the hearing must also be given to

a trial attorney 3 of the Department of the Interior in the district in which the petition is filed (in

this case, the Tulsa Field Solicitor’s Office) at least 10 days in advance of the hearing date. Id.

At the hearing itself, the state district court judge has discretion to approve or conditionally

approve the lease if it is in the best interests of the mineral owners, or it may withhold approval.

Id. § 1(c). The mineral owners, referred to in the Act as “grantors,” seeking to lease their interest

to the oil and gas company must be present unless they consent in writing with the trial attorney

that the lease can be approved in their absence. Id. § 1(b). The Stigler Act requires the court to

ensure that the consideration for the lease is paid in full. Id. The Act also allows the trial attorney

to appeal “any order approving conveyances” in accordance with Oklahoma law. Id. § 1(e).

but the relevant statutory language for the purposes of this case remains the same. For ease of reference, this opinion will cite the 1947 version of the Act. 2 Although this opinion refers specifically to oil and gas leases, the Stigler Act’s approval procedure applies to any conveyance of any interest in restricted land in Oklahoma belonging to members of the Five Civilized Tribes, not just mineral leases. 3 While the Stigler Act references a “probate attorney,” the United States Court of Appeals for the Tenth Circuit has recognized that Interior Department trial attorneys appearing in Stigler Act proceedings are “successor[s] to the United States Probate Attorney[s].” Magnan v. Trammell, 719 F.3d 1159, 1175–76 (10th Cir. 2013). 3 The requirements of the Stigler Act are the main subject of this lawsuit. In 2022, Reagan

Smith sought to enter into oil and gas leases with the mineral owners of the Noel Pope allotment.

ECF No. 6 ¶ 21. The leasing manager of Reagan Smith sent a letter on March 14, 2022, to the

Allotment’s mineral owners (although it is unclear how many) with “an initial offer” of a $200 per

acre bonus payment 4 and a 3/16th royalty over a three-year lease term. Id. The leasing manager

enclosed a lease, a verification form, and a W-9 form, and asked the mineral owners to sign the

three forms and return them to Reagan Smith in a postage-paid envelope. Id.

On the same day—March 14, 2022—an attorney representing Reagan Smith filed a petition

with the District Court of Pittsburg County, Oklahoma, for the approval of an oil and gas lease for

the Allotment, naming 58 petitioners who are descendants of Noel Pope. Id. ¶ 17. Appended to

the petition was a notarized verification form representing that “the facts and matters therein

contained are true and correct,” which was signed by one of the 58 petitioners. Id. ¶ 18. The court

set a hearing date for June 22, 2022. Id. ¶ 20. The court’s Notice of Hearing stated that the three-

year lease to Reagan Smith would include a bonus payment of $200 per acre for each petitioner

and a 3/16th royalty in accordance with each respective petitioner’s interest in the property. Id.

On April 4, 2022, the Reagan Smith attorney filed an amended petition with the court, removing

the names of four petitioners and adding 17 others. Id. ¶ 22.

On April 12, 2022, an Interior Department attorney (“Trial Attorney”) entered her

appearance in the case. Id. ¶ 23. Her Combined Entry of Appearance and Acknowledgement of

4 The Court understands the bonus payment as a one-time upfront payment made to mineral owners entering into the oil and gas lease. The bonus payment is separate from the royalty payments made under the lease, which are ongoing and dependent on the amount of oil and gas produced from the Allotment. See, e.g., Order at 20, ECF No. 8-5 (Def.’s Ex. 5) (state court order describing bonus payments as “cash bonus consideration” and, separately, noting a 3/16th royalty payment to lessors). 4 Notice stated that her role, pursuant to the Stigler Act, was “to protect the interests of the Indian

Petitioners owning restricted land.” Id. On April 28, 2022, she sent a letter to a number of the

Allotment’s mineral owners (although it is unclear how many) introducing herself as having “been

assigned to protect [their] restricted Indian interests” and explaining that “[a]ll mineral leases

signed by restricted Indian owners must be approved in state court in the county where the property

is located.” Id. ¶ 24; April 28, 2022 Letter at 2–4, ECF No. 8-3 (Def.’s Ex. 3). She advised them

of the hearing date and time, and enclosed an appraisal of the land, which found “the value of the

mineral interest in this tract to be $200/acre, with a 3/16[th] royalty, for a 3-year term.” ECF No.

8-3 at 2. The Trial Attorney then stated that she successfully negotiated with Reagan Smith` to

increase the bonus payment to $500 per acre. Id. She directed the petitioners to sign a lease and

the verification of the lease approval petition—which the Reagan Smith attorney previously sent

them—before a notary prior to the hearing so that they could be included in the court’s approval

of the lease. Id. at 3. She also urged them to contact her if they did not wish to enter into the lease

so that she could discuss with them “the possible consequences of deciding not to lease when

[their] co-owners have executed leases.” Id.

In the letter, the Trial Attorney also invited petitioners to attend the hearing. Id. She told

petitioners that if they did not plan to attend, she would appear on their behalf, but that they had to

return an enclosed Owner’s Statement Concerning Oil and Gas Lease of Restricted Property so

that her office had written documentation that the absent petitioners consented to the hearing being

held in their absence. Id. The Trial Attorney advised that Reagan Smith would mail the bonus

payment to any absent petitioner within a few business days of the hearing. Id. at 4. Finally, she

explained that petitioners had a right to a private attorney, although the federal government would

not pay for a private attorney’s services. Id.

5 On June 3, 2022, the Reagan Smith attorney filed a second amended petition with the court,

adding 14 more petitioners. ECF No. 6 ¶ 25. Appended to the petition were additional verification

forms from 11 petitioners. Id. ¶ 26. On June 22, 2022, the District Court of Pittsburg County,

Oklahoma, held the lease approval hearing. Id. ¶ 28. Prior to the hearing, the Trial Attorney signed

a Consent to Hearing statement affirming that she consented to a hearing on behalf of 17 listed

individuals who were not present. Id. ¶ 27. According to the transcript of the hearing, three

petitioners were present. See Tr. of Approval Hr’g at 5, ECF No. 8-4 (Def.’s Ex. 4).

During the hearing, the Trial Attorney introduced herself as “[r]epresenting the Secretary

of the Interior for the protection of the Indian interest pursuant to section 1 in the Act of August

4th, 1947 [the Stigler Act].” Id. at 4. The Reagan Smith attorney represented to the court that

there were 20 leases pending approval as of that date. Id. at 5–6 (identifying 17 petitioners’ names,

in addition to the three petitioners present in the courtroom, for a total of 20 petitioners). The

Reagan Smith attorney told the court that there were “over 30 other owners,” but indicated that

Reagan Smith had “been unable to contact them, or had no response to our efforts to lease them

[sic].” Id. at 6. She represented to the court that “if we were to get more leases, we would file a

new proceeding at a later date.” Id. She then read the checks written to each of the 20 petitioners

into the record. Id. at 7–8.

On the same day, the state court judge signed an Order Approving Oil and Gas Lease

(“2022 Order”). See Order at 2–22, ECF No. 8-5 (Def.’s Ex. 5). The 2022 Order listed the names

of 84 petitioners, but 64 of those names were crossed out by hand, leaving a total of 20 petitioners

remaining. Id. at 2–4. It confirmed that the petitioners consented to the hearing even though not

all of them were present, and that the Trial Attorney represented their interests at the hearing. Id.

at 4. In the order, the court made the following finding:

6 The Court . . . finds the Petitioners have executed their Oil and Gas Leases covering all their right, title and interest in and to the lands here involved in favor of Reagan Smith, Inc., for a primary term of three years from date of approval, and as long thereafter as oil, gas and other minerals are produced in paying quantities, for a cash bonus consideration of $200.00 per acre, paid-up, and a 3/16th royalty to lessor as provided in the Oil and Gas Lease. Said Oil and Gas lease was offered for sale at public auction in open court and that Reagan Smith, Inc. was the highest and best bidder therefor, having bid the sum of $502 per acre, including delayed rental, for said Oil and Gas Lease for a term of three years from date of approval, and in addition thereto, the costs of this approval proceeding and attorney fees.

Id. at 20. The court further found that the “sale was conducted fairly and the sum bid is not

disproportionate to the value of the leased interests,” and noted that the Trial Attorney did not

object to the lease approval. Id. The court also stated that “[i]f any of the above listed petitioners

have not executed all documents necessary to vest the Court with jurisdiction or to satisfy the

requirements of the Field Solicitor, their leases are conditionally approved subject to furnishing

the required documentation.” Id. at 21. Finally, the court noted that certain petitioners “may wish

to have their bonus payment checks deposited in their 25 C.F.R. [§] 115.701 Individual Indian

Money Accounts,” and if so, the court ordered the Secretary of the Interior (“the Secretary”) to

accept for deposit those bonus payment checks. Id. at 22.

On September 8, 2022, Reagan Smith’s attorney filed proof of delivery of payment to 15

petitioners who did not attend the proceeding in person, five of whom are plaintiffs in this lawsuit.

ECF No. 6 ¶ 37. On June 16, 2023, she filed proof of delivery of payment for two more absent

petitioners, one of whom is a plaintiff in this lawsuit. Id. ¶ 38.

B. The Present Litigation

Plaintiffs filed a Complaint in this Court on November 14, 2024, naming 16 individuals

and the Heirs of Noel Pope as plaintiffs. See Pls.’ Compl., ECF No. 1. Before Defendant

responded, they filed an Amended Complaint on February 21, 2025, adding three additional

individuals as plaintiffs. See ECF No. 6. Plaintiffs bring their claims both as 19 individuals

7 (“Individual Plaintiffs”) under the Tucker Act and as an alleged identifiable group of American

Indians (“Litigation Group”)—which includes the 19 individuals, plus 39 other heirs of Mr. Pope,

totaling 58 members in all—under the Indian Tucker Act. Id. ¶ 6. Each of the 19 Individual

Plaintiffs “either owns, or is expected to inherit, an interest in the mineral estate” of the Allotment.

Id. Six of these individuals entered into leases with Reagan Smith (“Leasing Plaintiffs”), while 13

did not (“Non-Leasing Plaintiffs”). 5 Id. ¶¶ 37–38 (indicating the six individuals for whom Reagan

Smith filed proof of payment for their respective bonus payments). The 39 additional members of

the Litigation Group are “lineal descendants of Noel Pope” who “expressed a desire to join this

lawsuit to advocate for their collective rights as an extended family.” Id. ¶ 6 n.1. Regardless of

their present or future interest, all members of the 58-member Litigation Group “share a family

and cultural connection to the Noel Pope Allotment.” Id. ¶ 6.

Plaintiffs allege five counts. The first three counts are for breach of trust based on

Defendant’s alleged failure to (1) adequately represent owners of the Allotment in relation to the

2022 lease approval proceeding, (2) ensure proper and timely oil and gas lease payments to all

owners of the Allotment, and (3) properly manage oil and gas lease payments related to the

Allotment. Id. ¶¶ 42–59. Counts IV and V, which are brought only by Non-Leasing Plaintiffs,

allege an unconstitutional taking by Defendant under the Fifth Amendment or, in the alternative,

an illegal exaction under the theory that Defendant unlawfully divested Non-Leasing Plaintiffs of

their property interest in the Allotment. Id. ¶¶ 60–70. Plaintiffs seek a declaration that Defendant

is liable for their injuries and losses, an order requiring Defendant to produce an accounting of the

5 Six of the Non-Leasing Plaintiffs’ interests in the Allotment have not yet been probated, so they do not presently have an established interest. ECF No. 6 ¶ 6 (identifying the estates of Pauline Starr, Darcey Fields, Nashoba Harrison, John Pope, Alburey Doss, and LaTavia Doss as not yet probated). 8 monies derived from the Allotment and the disposition of such monies, a determination of damages

owed, an order directing Defendant to pay such damages, and fees and costs. Id. ¶ 71.

As for Count I, Plaintiffs contend that Defendant breached its trust duties because the Trial

Attorney representing the interests of the Allotment’s mineral owners did not object to Reagan

Smith’s attorney filing the petition and amended petitions on their behalf; did not ensure that all

owners of the Allotment consented to the petition or were removed as petitioners; did not

sufficiently advise Plaintiffs as to their property rights and procedural options; and sent the April

28, 2022 letter to some or all of the mineral owners at least six weeks after the petition was filed. 6

Id. ¶¶ 43–45, 48–49. Plaintiffs assert that the Trial Attorney had a “statutory duty” to “counsel

and advise all allottees, adult or minor, having restricted lands of all of their legal rights with

reference to their restricted lands, without charge, and to advise them in the preparation of all

leases authorized by law to be made . . . .” Id. ¶ 46 (citing Act of May 27, 1908 (“Act of 1908”),

Pub. L. No. 60-140, 35 Stat. 312, 314). In Plaintiffs’ view, the Trial Attorney failed to meet this

obligation because, for example, she represented to Plaintiffs that she negotiated a $500 per acre

bonus payment, but did not ensure that the final petition and 2022 Order, which recited a $200 per

acre bonus payment, reflected the agreement. Id. ¶ 48.

Under Count II, Plaintiffs argue that it was also a breach of trust for Defendant not to ensure

some type of payment was made “to all of the allotment owners,” including Non-Leasing

6 Plaintiffs initially alleged that Defendant breached its trust duty because Plaintiffs “had no interaction with any federal official concerning the preparation and filing of the Petition, Amended Petition, and Second Amended Petition, and Plaintiffs did not give their informed consent for the Petition to be filed on their behalf.” ECF No. 6 ¶ 47. In their opposition brief, Plaintiffs retracted this allegation in part and acknowledged that the Trial Attorney did not contact the mineral owners before the lease petition was filed because the Trial Attorney was not aware of the petition before receiving notice of its filing. See Pls.’ Resp. to Mot. to Dismiss at 19, ECF No. 10 (agreeing with Defendant’s statement that under the Stigler Act “there is no duty to represent a mineral estate owner before the Trial Attorney receives notice and is aware of a lease petition”). 9 Plaintiffs. Id. ¶ 52 (emphasis in original). Plaintiffs allege that both the Trial Attorney and the

state court judge were “officials with federal trust duties to be exercised for the benefit of Plaintiffs

and the other owners of the Noel Pope Allotment.” Id. ¶ 51. Thus, in Plaintiffs’ view, the Trial

Attorney or the judge should have either disapproved the lease because only 20 of the possible 84

grantors signed and accepted it, or ensured the lease had a provision including “some type of just

compensation” for Non-Leasing Plaintiffs. 7 Id. ¶ 52. Plaintiffs allege that Non-Leasing Plaintiffs

have not received any payment from Reagan Smith or any other oil and gas operator associated

with the Allotment, and that Non-Leasing Plaintiffs are not aware that Defendant has been

“demanding, collecting, depositing, managing, investing, accounting, and reporting on any

payments” on their behalf. Id. ¶ 54. Plaintiffs further allege that it was a breach of trust to allow

the bonus payments to be made directly to Leasing Plaintiffs rather than requiring that such

payments be made to Defendant and deposited in Individual Indian Money (“IIM”) Accounts. Id.

¶ 56.

Plaintiffs’ third and final breach of trust claim overlaps in part with Count II. Plaintiffs

allege that Defendant breached its trust duty to Plaintiffs by failing to “collect payments, establish

IIM accounts for all eligible Plaintiffs, and manage such IIM accounts for Plaintiffs’ benefit,

including the duty to keep Plaintiffs informed regarding Plaintiffs’ accounts, for every day within

the applicable statute of limitations.” Id. ¶ 58. This claim encompasses payments from not only

Reagan Smith but also from prior lessors of the Allotment’s mineral estate during the last six years,

which Plaintiffs allege should have been made to the Minerals Management Service (“MMS”) at

7 In their opposition, Plaintiffs clarify that they do not claim Defendant has a duty to disapprove leases that lack the consent of every fractional mineral interest owner. ECF No. 10 at 28. Rather, they allege it was a breach of trust and a violation of federal statute for Defendant to approve an oil and gas lease on a restricted Indian allotment without the provision of payments to Non-Leasing Plaintiffs. Id.; see also id. at 30–31. 10 the Interior Department according to the Federal Oil and Gas Royalty Management Act of 1982

(“FOGRMA”), 30 U.S.C. §§ 1701–1759. Id. ¶ 59. Plaintiffs take issue with the fact that any

payments that have been made to the Allotment’s mineral owners have been made via direct

payment, which they allege can be “difficult to monitor and susceptible to abuse by the oil & gas

operators.” Id.

The final two counts relate only to Non-Leasing Plaintiffs. Count IV alleges under a Fifth

Amendment takings theory that the state court’s 2022 Order approving the oil and gas lease

“without requiring Reagan Smith, Inc. to make any payments whatsoever,” id. ¶ 65, to Non-

Leasing Plaintiffs constituted “an unconstitutional taking of private property without just

compensation,” id. ¶ 67. Plaintiffs claim that the 2022 Order, although issued by a state court

judge, was a “federal action” because it “was signed by an official designated to act on such orders

by Congress through federal statute.” Id. ¶ 62. Plaintiffs further allege that actions taken pursuant

to the Stigler Act and other federal statutes evince a public policy of gas exploration and

production, thus satisfying the Fifth Amendment’s “public purpose” requirement. Id. ¶ 63.

In the alternative, Non-Leasing Plaintiffs claim in Count V that Defendant’s actions

constitute an illegal exaction. Id. ¶¶ 69–70. Plaintiffs contend that the 2022 Order divested Non-

Leasing Plaintiffs of their property interest in the Allotment, and that “[n]o statute or federal

regulation allows this uncompensated divestiture.” Id. ¶ 70. On this theory, Plaintiffs insist that

Defendant “illegally required” Non-Leasing Plaintiffs to give their mineral interests to Reagan

Smith without just compensation. Id.

On March 21, 2025, Defendant moved to dismiss the Amended Complaint under RCFC

12(b)(1) and 12(b)(6). See Def.’s Mot. to Dismiss, ECF No. 8. Defendant first argues that the

Court lacks jurisdiction over claims by the Litigation Group because members of that group are

11 members of or are eligible for enrollment in a currently recognized tribe and are therefore not an

“identifiable group of American Indians” for purposes of the Indian Tucker Act. Id. at 23.

Defendant next argues that Plaintiffs’ breach of trust claims should be dismissed for lack of

jurisdiction and for failure to state a claim because: (1) the duties Defendant allegedly violated in

connection with the lease approval proceeding are not statutory trust duties, and Plaintiffs fail to

allege any breach of the limited trust duties found in the Stigler Act, id. at 27–33; (2) there are no

trust duties requiring the Government to obtain unanimous owner consent for oil and gas lease

approvals for restricted allotments or to collect and deposit lease bonus payments in IIM accounts,

id. at 33–39; and (3) there is no duty to unilaterally create IIM accounts for all plaintiffs, and

FOGRMA does not apply here, id. at 39–43. Finally, Defendant urges the Court to dismiss Non-

Leasing Plaintiffs’ Fifth Amendment takings and illegal exaction claims because, under either

theory, they have failed to allege a viable claim. Id. at 43–47.

Plaintiffs filed their response on May 2, 2025, and Defendant replied on May 30, 2025.

See Pls.’ Resp. to Mot. to Dismiss, ECF No. 10; Def.’s Reply in Supp. of Mot. to Dismiss, ECF

No. 11. With the Court’s leave, Plaintiffs filed a Surreply on June 13, 2025. See ECF No. 14.

The Court held oral argument on December 9, 2025. See Min. Entry. The motion is therefore ripe

for decision.

II. LEGAL STANDARDS

A. Jurisdiction of the Court of Federal Claims

Before reaching the merits of a plaintiff’s action, the Court must as a threshold matter

assure itself that subject-matter jurisdiction exists. RCFC 12(b)(1), (h)(3); see Steel Co. v. Citizens

for a Better Env’t, 523 U.S. 83, 94–95 (1998) (affirming that subject-matter jurisdiction “‘spring[s]

from the nature and limits of the judicial power of the United States’ and is ‘inflexible and without

exception’” (quoting Mansfield v. Swan, 111 U.S. 379, 382 (1884))). If the Court at any point 12 determines that it lacks jurisdiction in a matter, the matter must be dismissed. See RCFC 12(h)(3).

The plaintiff bears the burden of establishing, by the preponderance of evidence, the Court’s

jurisdiction over its claim. See Estes Express Lines v. United States, 739 F.3d 689, 692 (Fed. Cir.

2014).

The Tucker Act waives sovereign immunity for and provides the Court with jurisdiction

over a limited set of claims against the United States. 28 U.S.C. § 1491; United States v. Mitchell,

463 U.S. 206, 216 (1983). Specifically, the Tucker Act grants this Court jurisdiction over “any

claim against the United States founded either upon the Constitution, or any Act of Congress or

any regulation of an executive department, or upon any express or implied contract with the United

States.” 28 U.S.C. § 1491(a)(1). The Tucker Act itself does not provide a cause of action. Rick’s

Mushroom Serv. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) (citing United States v.

Testan, 424 U.S. 392, 398 (1976)). For that reason, to satisfy jurisdiction, plaintiffs “must identify

a separate, money-mandating source of substantive law that creates the right to money damages.”

Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (citing Mitchell, 463 U.S. at 216–

17).

Similarly, the Indian Tucker Act, 28 U.S.C. § 1505, provides for a limited waiver of the

Government’s sovereign immunity, granting the Court jurisdiction over “any claim against the

United States . . . in favor of any tribe, band, or other identifiable group of American Indians” if

such claim is either (1) “one arising under the Constitution, laws or treaties of the United States,

or Executive orders of the President,” or (2) “is one which otherwise would be cognizable in the

Court . . . if the claimant were not an Indian tribe, band or group.” 28 U.S.C. § 1505. To establish

Indian Tucker Act jurisdiction under a breach of trust theory, as Plaintiffs allege here, the plaintiff

“must identify a substantive source of law that establishes specific fiduciary or other duties, and

13 allege that the Government has failed to faithfully perform those duties.” United States v. Navajo

Nation (Navajo I), 537 U.S. 488, 506 (2003). The plaintiff must further show that “the substantive

source of law can be fairly interpreted as mandating compensation for damages sustained as a

result of a breach of the duties [that source of law] impose[s].” Hopi Tribe v. United States, 782

F.3d 662, 667 (Fed. Cir. 2015).

On a motion to dismiss for lack of jurisdiction under RCFC 12(b)(1), “a court must accept

as true all undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences

in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.

Cir. 2011) (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). If jurisdictional

facts are disputed, the plaintiff may not rest on mere allegations; instead, he must produce

competent proof sufficient to support his allegations by a preponderance of evidence. McNutt v.

Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936); Taylor v. United States, 303

F.3d 1357, 1359 (Fed. Cir. 2002); see also Indium Corp. of Am. v. Semi-Alloys, Inc., 781 F.2d 879,

884 (Fed. Cir. 1985) (a court may consider “evidentiary matters outside the pleadings” when

assessing a Rule 12(b)(1) dismissal).

B. Failure to State a Claim

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plausibly state a

claim upon which relief can be granted. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet that standard, it “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Id. (quoting Twombly, 550 U.S. at 570). Although a complaint need not contain detailed factual

allegations to raise a plausible claim, a plaintiff must provide “more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at

14 555; see Papasan v. Allain, 478 U.S. 265, 286 (1986) (holding that a court is “not bound to accept

as true a legal conclusion couched as a factual allegation”).

When assessing whether a plaintiff has stated a claim, the Court may consider the

complaint itself, “the written instruments attached to it as exhibits, ‘documents incorporated into

the complaint by reference, and matters of which a court may take judicial notice.’” Todd Constr.,

L.P. v. United States, 94 Fed. Cl. 100, 114 (2010) (quoting Tellabs, Inc. v. Makor Issues & Rts.

Ltd., 551 U.S. 308, 322 (2007)), aff’d, 656 F.3d 1306 (Fed. Cir. 2011).

III. DISCUSSION

As a threshold matter, the Court does not have jurisdiction over the claims brought by the

Litigation Group because the Heirs of Noel Pope, proceeding collectively, are not an “identifiable

group of American Indians” within the meaning of the Indian Tucker Act. As to the 19 Individual

Plaintiffs, the Court concludes that Plaintiffs’ Amended Complaint must be dismissed both for

lack of jurisdiction and for failure to state a claim. As Defendant correctly argues, Plaintiffs’

allegations do not plead a breach by the United States of its duties under the Stigler Act or any

other applicable federal law. Nor do Plaintiffs plausibly allege that Defendant took a property

interest or money from Plaintiffs with respect to the Allotment, which is necessary to state viable

taking and illegal exaction claims, respectively.

A. The Court Lacks Jurisdiction Under the Indian Tucker Act Over the Litigation Group’s Claims.

Plaintiffs allege that the Court has subject-matter jurisdiction over the Litigation Group’s

claims pursuant to the Indian Tucker Act. The Indian Tucker Act grants a limited waiver of

sovereign immunity, providing for the Court’s jurisdiction over any claim against the United States

brought by “any tribe, band, or other identifiable group of American Indians” “arising under the

Constitution, laws or treaties of the United States, or Executive orders of the President, or . . .

15 which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an

Indian tribe, band or group.” 28 U.S.C. § 1505. Plaintiffs assert that they fall into the third

claimant category as an “identifiable group of American Indians” because they “all have an interest

in the Noel Pope Allotment as descendants and heirs of Noel Pope.” ECF No. 6 ¶ 6. The case law

does not bear out Plaintiffs’ claim of Indian Tucker Act jurisdiction.

The “controlling question” in determining whether a group of plaintiffs is permitted to

assert claims as an “identifiable group of American Indians,” within the meaning of the Indian

Tucker Act, “is whether the claimant group can be identified and have a common claim.”

Chippewa Cree Tribe of the Rocky Boy’s Rsrv. v. United States, 69 Fed. Cl. 639, 673 (2006)

(quoting McGhee v. Creek Nation, 122 Ct. Cl. 380, 393 (1952)). In assessing whether a group of

Indian claimants meets this standard, courts have analyzed whether the plaintiffs are pressing a

group claim or simply a collection of individual claims.

Decisions of courts that have found jurisdiction under the Indian Tucker Act demonstrate

that “identifiable group of American Indians” is a specific phrase that is meant to allow groups of

American Indians who are less formally organized than tribes and bands to file an action asserting

their group rights. One scenario in which this arises is when a tribe or band formerly existed but

subsequently disbanded, and the group bringing the claims represents the interests of that

nonexistent tribe or band. See id. (finding that group formerly organized as the Pembina Band of

Chippewa Indians was an “identifiable group” because their tribe, although then-disbanded,

existed when their claim arose); see also Snoqualmie Tribe of Indians v. United States, 372 F.2d

951, 957 (Ct. Cl. 1967) (holding that the Skykomish tribe qualified as an “identifiable group”

because, although it later went out of existence as a tribe, the claims being brought were

“representative” of the tribe). However, where a group still maintains formal organization as

16 members of a tribe or band, courts have declined to find Indian Tucker Act jurisdiction for a

subgroup of that tribe or band. See Osage Tribe of Indians v. United States, 85 Fed. Cl. 162, 166

(2008) (reasoning that Indian Tucker Act jurisdiction was inappropriate because the proposed

intervenors did not lack formal organization as a tribe—they were members of the Osage Nation—

and the Osage Nation was already a party to the litigation representing their interests as

constituents). In short, the focus is on whether the plaintiffs are seeking to represent the common

interests of the purported group where there is no formal tribe or band that is presently doing so or

can presently do so.

Decisions of courts that have not found jurisdiction under the Indian Tucker Act

demonstrate that the phrase “identifiable group of American Indians” does not encompass

plaintiffs who merely seek to press their individual rights, even if such rights spring from a

common source. For instance, Fields v. United States found that five heirs of a deceased member

of the Muskogee Creek Tribe of Indians who sought to recover oil and gas royalties generated

from the decedent’s property did not establish Indian Tucker Act jurisdiction because they brought

the case as “individual Indians.” 423 F.2d 380, 383 (Ct. Cl. 1970). In other words, that their

claims all derived from their status as heirs of the same deceased American Indian did not make

them an “ identifiable group of Indians;” the rights they were pressing were individual rights.

Similarly, in Absentee Shawnee Tribe v. United States, the court did not find Indian Tucker Act

jurisdiction over claims by a subgroup of the Shawnee Tribe who were allegedly induced by the

federal government to sell individual allotments from the tribe’s land to white settlers for “nominal

consideration.” 165 Ct. Cl. 510, 513 (1964). The court emphasized that group rights must be

affected for such jurisdiction to be proper; it is not enough for individuals to have similar claims.

17 See id. at 517 (“Improper inducement of an individual to exercise his right to an allotment might

be an injury to him, but it would not trench upon any group rights.”).

Plaintiffs have not demonstrated that Indian Tucker Act jurisdiction is proper here. As

Defendant correctly argues, the Litigation Group is seeking to vindicate not a collective group

right but rather a collection of related, but distinct, individual claims. ECF No. 8 at 25–26 (citing

Absentee Shawnee Tribe, 165 Ct. Cl. at 517). Like the plaintiffs in Fields, it is not enough that the

Litigation Group shares a common characteristic as descendants of Mr. Pope who have inherited

or stand to inherit a fractional interest in the Allotment. See 423 F.2d at 383. The property interests

they seek to protect are individual to each heir. And the claims they assert are not common among

the group because they depend upon different facts, such as whether the heir has a present or future

interest in the Allotment or whether he or she signed a lease with Reagan Smith. Because Plaintiffs

have not alleged that Defendant’s actions “trench[ed] upon any group rights,” Indian Tucker Act

jurisdiction is inappropriate. Absentee Shawnee Tribe, 165 Ct. Cl. at 517.

The case law on which Plaintiffs rely to establish Indian Tucker Act jurisdiction does not

suggest that heirs of a common Indian ancestor can constitute an “identifiable group of American

Indians.” First, Plaintiffs argue that Wolfchild v. United States, 62 Fed. Cl. 521 (2004), establishes

that Indian Tucker Act jurisdiction is proper for a group of lineal descendants of Indian

beneficiaries. See ECF No. 10 at 12–13. Plaintiffs emphasize that the court in Wolfchild found

jurisdiction even though the group was made up of members of several different federally

recognized tribes. See id. Although it is similar in some respects to the case at hand, Wolfchild

found Indian Tucker Act jurisdiction because the plaintiffs were descendants of an Indian group,

the Mdewakanton Sioux, who no longer existed and thus could not represent the descendants’

interests on their behalf. 62 Fed. Cl. at 540. Thus, as Defendant explains, the plaintiffs were

18 similar to members of a tribe that is no longer federally recognized. See ECF No. 11 at 7 (citing

Wolfchild, 62 Fed. Cl. at 540). Here, the Litigation Group does not consist of members who are

descendants of a tribe or other Indian group that no longer exists; rather, they simply share a

common Indian ancestor and, as a result, an interest in the Allotment. Thus, Wolfchild is

inapposite.

Plaintiffs’ reliance on a second case—Birdbear v. United States, 162 Fed. Cl. 225 (2022)—

similarly misses the mark. Although Birdbear analyzed whether the plaintiffs established

jurisdiction under the Indian Tucker Act by examining whether their claims were based on a source

of law that imposed specific fiduciary or other duties on the government and whether that source

of law was money-mandating, the plaintiffs in that case only pled jurisdiction under the Tucker

Act. See Third Am. Compl. ¶ 14, Birdbear v. United States, No. 16-cv-00075-EDK (Fed. Cl. Aug.

6, 2018), ECF No. 147. The court did not discuss, nor decide, whether the plaintiffs in Birdbear

were an “identifiable group of American Indians” for the purpose of Indian Tucker Act

jurisdiction. Thus, Birdbear offers no support for finding Indian Tucker Act jurisdiction over the

Litigation Group’s claims.

Plaintiffs make a final argument in their Surreply, asserting that the plain language of the

Indian Tucker Act supports their contention that they are an “identifiable group of American

Indians.” ECF No. 14 at 5–6. Though largely undeveloped in briefing, Plaintiffs also suggested

at oral argument that because Plaintiffs are a group of American Indians, and because they are

identifiable by their relation to Noel Pope, they should be considered an “identifiable group of

American Indians.” ECF No. 17 at 43:1–9. The issue with this approach is that it has no limiting

principle. By Plaintiffs’ logic, any number of American Indians greater than one could be said to

make up a “group,” and any group could be said to be “identifiable” by any kind of characteristic

19 that they share. As discussed above, while the case law recognizes that the phrase “identifiable

groups of American Indians” was meant to expand jurisdiction to claims of unorganized or

informal groups, it nonetheless suggests that the phrase is still tailored to groups of American

Indians seeking to press their group rights. See Fields, 423 F.2d at 383; cf. Chippewa Cree, 69

Fed. Cl. at 672. In common parlance, the Litigation Group may be a “group,” but it does not assert

claims premised on a group right necessary to invoke Indian Tucker Act jurisdiction.

B. Plaintiffs Fail to Allege a Breach of Trust Claim Sufficient to Invoke the Court’s Tucker Act Jurisdiction.

Although the Court concludes that it does not have jurisdiction under the Indian Tucker

Act to entertain claims by the Litigation Group, that finding does not preclude the Court from

considering the same claims as to the 19 Individual Plaintiffs under the Tucker Act. 8 The first

three of the five claims asserted allege violations of Defendant’s trust duties.

To determine the Court’s jurisdiction over breach of trust claims under the Tucker Act, the

United States Court of Appeals for the Federal Circuit applies a two-pronged test. Under the first

prong, the plaintiff “must identify a substantive source of law that establishes specific fiduciary or

other duties, and allege that the Government has failed to faithfully perform those duties.” Navajo

I, 537 U.S. at 506. “[A] statute or regulation that recites a general trust relationship between the

8 Defendant does not contest that the Court has subject-matter jurisdiction under the Tucker Act over the claims asserted by the 19 Individual Plaintiffs. See ECF No. 17 at 5:2–6 (acknowledging that case can go forward for 19 Individual Plaintiffs under the Tucker Act). However, the Court questions whether six of the 19 Plaintiffs, who stand to inherit an interest in the Allotment from a deceased family member whose estate is not yet probated, have a present legal interest sufficient to confer standing. See ECF No. 6 ¶ 6 (identifying the not-yet-probated estates of deceased interest owners); see also Biden v. Nebraska, 600 U.S. 477, 489 (2023) (explaining that to have standing “the plaintiff must have suffered an injury in fact—a concrete and imminent harm to a legally protected interest, like property or money”). But because the other 13 Individual Plaintiffs allegedly have a current legal interest in the Allotment, and therefore standing, dismissal is not warranted. Biden, 600 U.S. at 489 (“If at least one plaintiff has standing, the suit may proceed.” (citing Rumsfeld v. Forum for Acad. & Institutional Rts., Inc., 547 U.S. 47, 52 n.2 (2006))). 20 United States and the Indian People is not enough to establish any particular trust duty.” Hopi

Tribe, 782 F.3d at 667. Rather, “the analysis must train on specific rights-creating or duty-

imposing statutory or regulatory prescriptions.” Navajo I, 537 U.S. at 506. Under the second

prong, the plaintiff must show that “the substantive source of law can be fairly interpreted as

mandating compensation for damages sustained as a result of a breach of the duties [that source of

law] impose[s].” Hopi Tribe, 782 F.3d at 667.

All of Plaintiffs’ breach of trust claims fail to satisfy the first prong of the relevant test. 9

Plaintiffs identify the Stigler Act as the principal source of law establishing trust duties that

Defendant, in their view, failed to perform. See ECF No. 10 at 28–39. While the Stigler Act does

impose some limited duties that could satisfy prong one of the Navajo I test, Plaintiffs do not allege

that Defendant failed to fulfill those duties here. And Plaintiffs have not identified any other

“treaty, statute, or regulation,” Arizona v. Navajo Nation, 599 U.S. 555, 563–64 (2023), that

establishes an obligation for the United States to take the actions Plaintiffs claim it should have

taken. Although Plaintiffs attempt to support their claims by relying on other sources of law, such

as the Act of 1908, the Act of January 26, 1933 (“Act of 1933”), Pub. L. No. 72-322, 47 Stat. 777,

and FOGRMA, these statutes, too, do not satisfy prong one because they are either outdated or

inapplicable. Accordingly, the Court lacks jurisdiction over Plaintiffs’ breach of trust claims.

1. The Stigler Act Does Not Impose the Duties that Plaintiffs Allege Defendant Breached.

Count I alleges that the Trial Attorney’s purported failure to adequately represent allotment

owners in relation to the 2022 lease approval proceeding constituted a breach of Defendant’s trust

duties under the Stigler Act. To determine whether the Government owed a particular fiduciary

9 Defendant does not advance at this stage of the litigation, and thus the Court does not consider, a prong-two argument. See ECF No. 17 at 6:22–8:12. 21 duty to Plaintiffs under the Stigler Act, “the analysis must train on specific rights-creating or duty-

imposing . . . prescriptions” in the statute. Navajo I, 537 U.S. at 506. “[W]here the relevant statute

cannot be fairly read as imposing the specific fiduciary duty alleged to be breached, the Court has

refused to impose the obligation on the government.” Ramona Two Shields v. United States, 820

F.3d 1324, 1332–33 (Fed. Cir. 2016).

Here, Plaintiffs allege that the Stigler Act imposed a duty on Defendant, first, to object to

the fact that the attorney for Reagan Smith filed the petition (and amended petitions) initiating the

lease approval proceeding on behalf of the Allotment’s owners, without the consent of Plaintiffs,

“despite an obvious conflict of interest” as legal counsel for the proposed oil and gas lessee and,

second, to ensure payment of the negotiated bonus ($500/acre) to Leasing Plaintiffs. ECF No. 10

at 21–22; see ECF No. 6 ¶¶ 43, 48–49. Although the Stigler Act undisputedly imposes some

limited trust duties on Interior Department attorneys related to their involvement in lease approval

proceedings, see ECF No. 8 at 14–15, nothing in the Stigler Act imposes the obligations Plaintiffs

allege. Thus, Plaintiffs fail to demonstrate the existence of a trust duty that Defendant breached.

Regarding the first alleged duty, Plaintiffs specifically take issue with the fact that the

practice for initiating oil and gas lease approval proceedings under the Stigler Act usually involves

an oil and gas company attorney filing a petition on behalf of the mineral owners, which presents

a potential dual-representation problem. ECF No. 10 at 19–21; see ECF No. 6 ¶ 49.

Acknowledging that the Stigler Act did not require the Trial Attorney to prepare and file the

petition, ECF No. 10 at 21, Plaintiffs claim instead that “upon entering such a proceeding, [the

Trial Attorney] should have objected in some manner to such an obviously unethical and

potentially harmful process that is fraught with the danger of unfair dealing.” Id. at 20. Plaintiffs

22 do not cite, nor is this Court aware of, any provision of the Stigler Act that would have required

the Trial Attorney to object in such an instance.

Instead, Plaintiffs cite Walker v. United States, 663 F. Supp. 258 (E.D. Okla. 1987), a

Federal Tort Claims Act case in which the federal district court found that an Interior Department

attorney breached his fiduciary duties to represent the Indian landowner’s interests in an oil and

gas lease approval proceeding held pursuant to the Stigler Act. Walker identified the same dual-

representation problem that Plaintiffs object to here and even went so far as to suggest regulatory

reform in its opinion. Id. at 262 (noting that the “recognized and customary procedure for

commencing approval hearings creates an inherent conflict of interest by the attorney’s apparent

dual representation”); id. at 263 (suggesting that “[i]t is the Department of Interior’s responsibility

to change this procedure”). Notwithstanding the court’s criticism of the customary practice of

initiating Stigler Act proceedings, it cited no statutory language requiring the Interior Department

attorney to file the petition or object to a petition filed by an attorney retained by the adverse party.

The statutory duties it found were violated related to the Government’s complete failure to

represent the best interests of the Indian landowner. See id. at 262 (finding that the Interior

Department attorney relied on another private attorney, also employed by the oil and gas company,

to represent the Indian landowner “rather than assume the duty himself”). For example, the court

held that the Interior Department attorney failed to diligently represent the landowner at the

hearing, obtain a current appraisal of the land, advise the landowner of current oil and gas

production on the property, and recommend competitive bidding. See id. at 267.

Moreover, Walker is distinct from the case at hand because the court there found tort

liability. Although it frequently discussed the Government’s statutory duties, given that the Stigler

Act provides for an Interior Department attorney to appear in lease approval proceedings, it did

23 not consider the Government’s liability under a breach of trust claim using the relevant two-prong

analysis of Navajo I. This is important because, unlike a duty of care sufficient to state a tort claim,

only a fiduciary duty flowing from rights-creating or duty-imposing statutory or regulatory

language can state a breach of trust claim. See United States v. Jicarilla Apache Nation, 564 U.S.

162, 165 (2011) (“The trust obligations of the United States to the Indian tribes are established and

governed by statute rather than the common law . . . .”); Hopi Tribe, 782 F.3d at 667 (“[T]he United

States is only subject to those fiduciary duties that it specifically accepts by statute or regulation.”).

The Walker court viewed the Government’s duty through the lens of an attorney-client relationship

between the Interior Department attorney and Indian landowner “with all the attend[a]nt legally

imposed obligations that a fiduciary relationship creates.” 663 F. Supp. at 267. However,

“[c]ommon law principles—which are often used to define the contours of a fiduciary relationship

in other contexts—cannot serve such a purpose at th[e] [first] stage” of the Navajo I jurisdictional

analysis. Confederated Tribes & Bands of Yakama Nation v. United States, 171 Fed. Cl. 692, 705

(2024) (citing Jicarilla Apache Nation, 564 U.S. at 185).

Looking at the statutory language of the Stigler Act, Defendant did not breach a “specific

rights-creating or duty-imposing statutory or regulatory prescription[]” by not objecting to the

Reagan Smith attorney’s filing of the lease petition because the Stigler Act does not impose such

a duty on Defendant. Navajo I, 537 U.S. at 506. Instead, as Plaintiffs admitted at oral argument,

the Trial Attorney fulfilled her obligations under the Stigler Act. ECF No. 17 at 59:3–8 (expressing

disappointment with “the system” and stating that the Trial Attorney “was doing exactly what she

was told to do and what every federal attorney in the Department of the Interior does when they’re

assigned to one of these cases”); see ECF No. 14 at 8–9 (describing the Trial Attorney as “an

individual federal attorney who was just following Defendant’s policies and procedures”).

24 Plaintiffs’ disagreement with the procedures established by the Stigler Act—although they reflect

the Walker court’s frustration with those same procedures—cannot state the basis for a breach of

trust claim under the Tucker Act. Without a specific statutory duty, there can be no breach.

Ramona Two Shields, 820 F.3d at 1332–33.

Plaintiffs attempt to save their claim by arguing that they allege violations of Defendant’s

“broader duty to provide adequate legal representation in all aspects of the Stigler Act’s lease-

approval proceedings.” ECF No. 10 at 22. Relying on the Stigler Act’s predecessor, the Act of

1933, Plaintiffs argue that Interior Department attorneys have a “duty . . . to appear and represent

any restricted member of the Five Civilized Tribes before the county courts of any county in the

State of Oklahoma, or before any appellate court thereof, in any matter in which said restricted

Indians may have an interest.” Id. (quoting Act of 1933 § 8). As Defendant points out and

Plaintiffs later concede, the provision of the Act of 1933 to which Plaintiffs cite was repealed by

the Stigler Act. See ECF No. 11 at 11 (citing the Stigler Act § 12, which reads: “Sections 1 and 8

of the Act of January 27, 1933 (47 Stat. 777), are hereby repealed”); see also ECF No. 14 at 6

(acknowledging error in basing Plaintiffs’ argument on a repealed provision of law).

Plaintiffs also rely on Heckman v. United States, 224 U.S. 413 (1912), to support their

claim that Defendant has a broader trust duty to Plaintiffs than what is specifically outlined in the

Stigler Act. See ECF No. 10 at 22–23. Heckman, however, is similarly inapplicable because it

interpreted another predecessor of the Stigler Act, the Act of 1908. See 224 U.S. at 442–43

(discussing authority of the Secretary under the Act of 1908 § 6 to institute suits on behalf of Five

Tribe allotees to cancel conveyances made in violation of the Act). It is true that the Act of 1908

specifically assigned the Secretary the “duty to counsel and advise all allottees [of the Five

Civilized Tribes] . . . having restricted lands of their legal rights with reference to their restricted

25 lands, without charge, and to advise them in the preparation of all leases.” Act of 1908 § 6. Since

1908, however, Congress has significantly cabined the duty of Interior Department attorneys

representing the interests of Five Tribe allottees by eliminating the attorney’s duty to counsel and

advise. See Walker, 663 F. Supp. at 268 (“The progression of Congressional enactments

demonstrate an intent by Congress to restrict and narrow the duties of the government’s

attorney.”). It also transferred the authority that the Secretary once had to approve oil and gas

leases on restricted allotments to the state court. Compare Act of 1908 § 2 (“That leases of

restricted lands for oil, gas or other mining purposes . . . may be made, with the approval of the

Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and

not otherwise . . . .”) with Act of 1933 § 8 (“[N]o conveyance of any interest in land of any full-

blood Indian heir shall be valid unless approved in open [county] court . . . .”). Thus, any broader

trust duty imposed under the Act of 1908 cannot form the basis for Plaintiffs’ breach of trust claim

under the narrower Stigler Act. And Plaintiffs’ invocation of a general trust relationship between

the Government and Five Tribe allotees seeking to convey interests in restricted lands also cannot

support their claim. See Arizona, 599 U.S. at 572 (Thomas, J., concurring) (explaining that “tribes’

legal claims against the Government must be based on specific provisions of positive law, not

merely an amorphous ‘trust relationship’”).

Comparison to United States v. Mitchell is illustrative. There, the United States Supreme

Court found that federal statutes and regulations imposed fiduciary duties upon the United States

as to tribal land that had been managed by the Interior Department for decades. 463 U.S. at 222.

In Mitchell, the Supreme Court ruled that the federal government owed a specific trust duty to the

tribe because the government agency supervised and controlled the day-to-day process of

harvesting tribal timber and the statute at issue, 25 U.S.C. § 162(a), authorized the Secretary of the

26 Interior “to invest tribal and individual Indian funds held in trust . . . if deemed advisable and for

the best interest of the Indians.” 463 U.S. at 222 n.24. Unlike here, where the Stigler Act imposes

only limited duties on Defendant with respect to oil and gas leasing on restricted land, in Mitchell

“[v]irtually every stage of the process [was] under federal control.” Id. at 222. The scope of

federal involvement in oil and gas leases subject to the Stigler Act is much narrower. The Act

defined only a limited role for the Trial Attorney to represent Plaintiffs’ interests in relation to the

lease approval hearing, and it was the state court that determined the fairness of the leases before

it. See Stigler Act § 1.

The second duty that Plaintiffs allege Defendant breached—a duty to “ensure payment”—

is similarly absent from the Stigler Act. ECF No. 10 at 21–22; see ECF No. 6 ¶¶ 48–49. In their

response brief, Plaintiffs clarify that their claim is not “that they were due any particular bonus

payment,” but rather that “they did not receive adequate legal representation, where the Trial

Attorney communicated to at least some Indian owners that the bonus payment would be

$500/acre, then failed to change any of the leases, amend the Petition, file a Proposed Order, or

ask the judge for clarification in the final order to reflect a $500/acre bonus payment.” ECF No.

10 at 26.

Like their allegation that the Trial Attorney should have objected to the Reagan Smith

attorney’s filing of the petition, Plaintiffs’ allegation that the Trial Attorney had a duty to ensure

that the $500 per acre bonus payment was incorporated into certain legal documents has no basis

in the Stigler Act. The Stigler Act does not prescribe specific duties of Interior Department

attorneys with respect to lease or payment terms; all it requires is that the Interior Department

attorney be provided notice of and be present at the hearing. The relevant section of the Stigler

Act reads:

27 The grantor shall be present at said hearing and examined in open court before such conveyance shall be approved, unless the grantor and the probate attorney shall consent in writing that such hearing may be had and such conveyance approved in the absence of the grantor, and the court must be satisfied that the consideration has been paid in full.

Stigler Act § 1(b). The Act also gives the Interior Department attorney the right to appeal a lease

approval order but does not mandate that the attorney do so. Stigler Act § 1(e). As Defendant

points out, the statute does not create the duties that Plaintiffs allege the Trial Attorney breached.

See ECF No. 8 at 32. A duty to ensure that the lease, petition, or approval order reflects the final

negotiated bonus payment does not appear in the Act. 10 Without pointing to any “specific rights-

creating or duty-imposing statutory or regulatory prescriptions” regarding these claims, the Court

cannot find a breach of trust. United States v. Navajo Nation (Navajo II), 556 U.S. 287, 301 (2009).

Rather, the only provision of the Stigler Act that speaks to payment specifies that “the

court,” not the Interior Department attorney, “must be satisfied that the consideration has been

paid in full.” Stigler Act § 1(b). Thus, the statute can be read as creating a duty for the state court

to ensure that Reagan Smith rendered the negotiated payment to Leasing Plaintiffs. The Amended

Complaint’s allegations seem to be directed only against the actions of the Trial Attorney rather

than the state court judge, but at oral argument Plaintiffs suggested that the state court should be

considered a federal actor and that it breached its duties under the Stigler Act. See ECF No. 17 at

54:24–55:5 (asserting that the state court judge was “working as a federal representative because

Congress, in the Stigler Act, assigned these judges the duty to perform a federal function”). To be

sure, Plaintiffs are not permitted to amend their complaint through new allegations raised in

10 This absence of duty is evinced by Plaintiffs’ own reasoning: that “nothing in the federal statutes or state court procedures would have prevented the U.S. Trial Attorney from filing an amended petition.” ECF No. 14 at 12. The Court agrees; the Trial Attorney was not prohibited from doing more to advance the interests of Plaintiffs. However, a lack of prohibition is not an affirmative duty. 28 connection with their response to Defendant’s motion to dismiss. See Davis v. United States, 108

Fed. Cl. 331, 337 n.4 (2012) (“[I]t is axiomatic that the complaint may not be amended by the

briefs in opposition to a motion to dismiss.” (citation omitted)).

But even assuming that Count I can be read as alleging a breach of duty by the state court

judge rather than the Trial Attorney, Plaintiffs’ allegation fails to state a plausible claim for relief.

The transcript of the lease approval hearing reflects that the Trial Attorney informed the court of

Reagan Smith’s agreement to increase the bonus payment to $500 per acre, and the checks written

to each of the Leasing Plaintiffs were read into the record. ECF No. 8-4 at 6–8. Proof of Delivery,

certifying proof of payment to all absent Leasing Plaintiffs, was filed after the conclusion of the

hearing. See ECF No. 6 ¶¶ 37–38. The 2022 Order reflects the court’s approval of the leases,

which stated consideration of $200 per acre and a 3/16th royalty, and documents that during the

lease approval proceeding Reagan Smith bid the highest and best offer of $502 per acre, including

delayed rental. ECF No. 8-5 at 20. Thus, as to Leasing Plaintiffs, the allegations and documents

incorporated by reference in the Amended Complaint, as well as other public court documents,

plainly demonstrate the state court’s satisfaction that the bonus payments “ha[d] been paid in full.”

Stigler Act § 1(b). The Stigler Act did not require anything more of the state court. Id. Because

the Stigler Act did not mandate further affirmative steps by the state court with regard to lease

bonus payments, assuming arguendo that the Amended Complaint contains such allegations,

Plaintiffs fail to state a plausible claim that the court breached a statutory trust duty. 11

11 Plaintiffs take issue with whether the checks reflected the $500-per-acre bonus payment amount. See ECF No. 10 at 26–27; ECF No. 11 at 16. As they point out, using the $502 figure documented in the 2022 Order, the amounts of some checks read into the approval hearing record exceed what would be due to Leasing Plaintiffs. But Defendant can hardly be said to have plausibly breached its duty to ensure payment in full if Plaintiffs were paid amounts at or in excess of the negotiated bonus payment. 29 Plaintiffs’ Amended Complaint does not identify any statutory duties that Defendant failed

to perform. Accordingly, the Court lacks jurisdiction over Count I because it fails under prong

one of the breach of trust analysis.

2. Count II Does Not Identify Statutory Duties that Could Form the Basis for Plaintiffs’ Claim.

Plaintiffs’ second count alleges that Defendant breached trust duties owed to Plaintiffs by

failing to ensure proper and timely oil and gas lease payments to all mineral owners of the

Allotment, including Non-Leasing Plaintiffs. The alleged duties in Count II can be separated into

two general categories: (1) a duty to ensure the lease justly compensated Non-Leasing Plaintiffs,

ECF No. 6 ¶¶ 52, 54; and (2) a duty to collect rent and royalty payments and deposit such payments

into IIM accounts, id. ¶ 56. 12 Like Count I, Count II also fails under the first prong of the breach

of trust test because Plaintiffs allege that Defendant breached duties under the Stigler Act that are

not enumerated in the statute.

The first category of Count II claims—which rest on an alleged duty to ensure lease

payments to Non-Leasing Plaintiffs—has no basis in the Stigler Act. According to Plaintiffs,

because only 20 out of 84 of the Allotment’s mineral owners signed leases with Reagan Smith, the

Trial Attorney failed to fulfill her trust duty by not ensuring provision of lease payments to Non-

Leasing Plaintiffs. See ECF No. 10 at 28. Plaintiffs, however, point to no specific trust duty in

the Stigler Act requiring Defendant to ensure compensation for Non-Leasing Plaintiffs. Nor can

the Act reasonably be read to impose such duty.

12 Count II of Plaintiffs’ Amended Complaint also alleges that Defendant had a duty to object to or disapprove of leases that lacked the consent of all mineral owners. See ECF No. 6 ¶¶ 51–56. Plaintiffs clarified in their response brief that their breach of trust claim is not based on those allegations. See ECF No. 10 at 21 (“Nor do Plaintiffs claim that it was [a] breach of trust to not have obtained the consent of all mineral interest owners . . . .”); id. at 28 (“Plaintiffs do not claim, as Defendant states, that the United States has a duty to ‘disapprove leases that lack the consent of every fractional owner.’”). 30 Section 1 of the Stigler Act requires state court approval of a conveyance, including an oil

and gas lease, of any interest in a restricted allotment of a member of the Five Civilized Tribes.

Thus, the parties to the conveyance are the relevant parties in the approval proceeding. This

conclusion is further borne out by the procedures set forth in the Act, which require the “grantor”

(i.e., the mineral owner seeking to transfer his interest) to be present at the lease approval hearing

or to consent to the hearing occurring in his absence. See Stigler Act § 1. Section 1 also

specifically refers to the “grantee” (i.e., the party seeking to receive the mineral owner’s interest),

whose obligation it is to bear the fees and costs of the approval proceeding. See id. Notably, the

Act includes no provisions addressing mineral owners of the subject allotment who are not

“grantors.” This language indicates that the duties of the Trial Attorney attendant to the lease

approval proceeding apply only to mineral owners who are seeking approval to enter into the oil

and gas leases at issue. The Act cannot be read to impose any duties on the Trial Attorney related

to mineral owners who, like Non-Leasing Plaintiffs, did not enter into leases with the oil and gas

company.

Plaintiffs’ reliance on Section 4 of the Stigler Act is also misplaced. See ECF No. 14 at 6–

8. Section 4 states that Interior Department attorneys “are authorized to appear and represent any

restricted member of the Five Civilized Tribes in Oklahoma before any of the courts of the State

of Oklahoma in any matter in which the said restricted Indian may have an interest.” Stigler Act

§ 4. Plaintiffs maintain that because the term “any restricted member” in Section 4 is broader than

the term “grantors” in Section 1 of the Act, the Trial Attorney had a duty to represent and protect

the interests of Non-Leasing Plaintiffs in the lease approval proceeding. See ECF No. 14 at 9.

There are two problems with this line of reasoning. First, Section 1 of the Stigler Act specifically

controls the lease approval proceeding at issue here, and thus its language identifying “grantors”

31 as the individuals in the proceeding qualifies the Trial Attorney’s specific duties with respect to

that proceeding. 13 Second, Section 4 of the Stigler Act did not impose any additional duties on the

Trial Attorney, as it states only that Interior Department attorneys “are authorized” to appear and

represent any restricted member, not that they are obligated to do so. Stigler Act § 4 (emphasis

added). Nor does the language specify any specific duties imposed on the attorney in the event

the Government chooses to exercise that authority. Section 4’s general, permissive language

cannot be the basis for the trust duties alleged by Plaintiffs. See Arizona, 599 U.S. at 563–64 (“The

Federal Government owes judicially enforceable duties to a tribe only to the extent it expressly

accepts those responsibilities.”) (internal quotation marks omitted).

In addition to their Section 4 argument, Plaintiffs again make the argument that Defendant

owes a broader, general trust obligation to the owners of restricted fee allotments of the Five

Civilized Tribes. See ECF No. 10 at 29. They argue that the Trial Attorney breached this duty

because she failed to act in the “best interests” of Non-Leasing Plaintiffs. 14 ECF No. 17 at 48:13–

13 Plaintiffs’ argument that the word “grantors” should be interpreted as “potential grantors” is unavailing. ECF No. 14 at 9–11. Read as a whole, the statute indicates that the Trial Attorney appeared at the hearing to protect the best interests of only those allotment owners who signed leases. The use of “any restricted member” in Section 4 contrasts with “grantor” in Section 1, suggesting that the different sections of the statute refer to different groups—the latter being more inclusive than the former. See Pulsifer v. United States, 601 U.S. 124, 149 (2024) (“In a given statute, the same term usually has the same meaning and different terms usually have different meanings.” (quoting A. Scalia & B. Garner, Reading Law 170–71 (2012)). Indeed, Congress would likely have used the term “potential grantors,” or possibly a term as broad as “any restricted member,” had it intended Section 1 to encompass all potential lessors with interests in the allotment subject to the lease. Id. 14 Much of Plaintiffs’ argument on this point is normative. See ECF No. 10 at 30 (“It would have been relatively easy to protect all of the Indian owners.”); id. at 31 (describing legislation that applies to the Fort Berthold Indian Reservation and suggesting that “[a] similar scheme could have been implemented in this case to provide that every owner, whether or not they consented, would receive a distribution”); id. at 24 (suggesting that the Trial Attorney “could have asked the state court judge . . . to include in his Order a production-based provision for all non-leasing owners”). Such policy concerns are better addressed to Congress and the Interior Department. For the 32 18. As noted above, Plaintiffs’ argument ignores the fact that the trust duty of the United States

toward restricted fee allotment owners of the Five Civilized Tribes has narrowed since the initial

policy of allotment. As they acknowledge, the main legal authority underlying Plaintiffs’ assertion

of this broad duty—Heckman—“pre-dates the Stigler Act of 1947.” ECF No. 10 at 29. Interpreting

the Act of 1908, Heckman defined the United States’ duty to restricted fee allotment owners as

“safeguarding the individual ownership of allottees through suitable restrictions which were

designed to secure them in their possession and to prevent their exploitation.” 224 U.S. at 432–

33. With the passage of the Act of 1933 and then the Stigler Act, that duty has narrowed. See

Walker, 663 F. Supp. at 267–68; see also Act of 1933 § 8 (transferring authority to approve oil and

gas leases from the Secretary to the state courts). Thus, instead of demonstrating that the United

States presently has a broad trust duty toward restricted fee allotment owners, Plaintiffs’ invocation

of Heckman only serves to highlight that the trust duty was much broader in 1912 (the year of the

Heckman decision) than it is today. Cf. Jicarilla Apache Nation, 564 U.S. at 176 (acknowledging

that over time Congress has “defined and redefined the [general] trust relationship” between the

Government and the Indian people through a series of new and amended statutes). Plaintiffs also

rely on Choctaw Nation v. United States, 121 F. Supp. 206 (Ct. Cl. 1954), to suggest that Defendant

has a broad duty to act in the best interest of allotment owners. See ECF No. 10 at 29–30. This

case similarly fails to persuade because it simply described the purpose of the original Choctaw

allotment agreement; it did not comment on the limited duties described in the Stigler Act.

Choctaw Nation, 121 F. Supp. at 208–09.

Court’s purposes, they are irrelevant to the analysis of whether Defendant breached specific duties defined in the relevant statute. See Navajo II, 556 U.S. at 302 (plaintiffs must “identify a specific, applicable, trust-creating statute or regulation that the Government violated”). 33 In any event, even if the trust obligation was as broad as Plaintiffs suggest, a statute stating

a “general trust relationship” between the United States and Indian tribes is not sufficient to support

a breach of trust claim. Jicarilla Apache Nation, 564 U.S. at 176; see id. at 178. The Court cannot

impose a specific trust duty on the Government unless the duty is established in the relevant statute,

Ramona Two Shields, 820 F.3d at 1332–33, and here, the Stigler Act does not include a specific

duty to ensure lease payments to Non-Leasing Plaintiffs. Because the Court cannot infer trust

duties not found in the text of a treaty, statute, or regulation, Plaintiffs’ claim must fail.

The second category of Plaintiffs’ Count II claims fares no better. In category two,

Plaintiffs claim that Defendant breached its trust duties because it did not manage the lease monies

paid to Leasing Plaintiffs by collecting and depositing payments into IIM accounts. ECF No. 6 ¶

56. To understand how the payments were to be made under the leases in question here, the Court

looks to the language of the 2022 Order approving the leases. The 2022 Order states:

This Court hereby finds that the bonus payment checks to the restricted Indian mineral owners in this cause of action constitute monies directly derived from the use of restricted fee lands that are paid directly to the Secretary on behalf of the account holder as contemplated by 25 C.F.R. 115.702. Further, this court having been advised that certain of the restricted Indian mineral owners may wish to have their bonus payment checks deposited in their 25 C.F.R. 115.701 Individual Indian Money Accounts, pursuant to 25 C.F.R. 115.702 the Secretary of the Interior is hereby ordered to accept for deposit those bonus payment checks so designated on the face thereof.

ECF No. 8-5 at 20–21. The 2022 Order directs the Secretary to accept the bonus payment checks

only insofar as “certain of the restricted Indian mineral owners may wish to have their bonus

payment checks deposited in their 25 C.F.R. [§] 115.702 Individual Indian Money Accounts.” Id.

Thus, the Order contemplated that some individuals may prefer to have the Secretary safeguard

their bonus payments—if “those bonus payment checks [were] so designated on the face

thereof”—but did not require all the bonus payments be deposited into IIM accounts. Id. Plaintiffs

34 do not allege that any of the bonus payment checks were designated for deposit into the Leasing

Plaintiffs’ IIM accounts. According to the transcript from the 2022 lease approval proceeding, the

Reagan Smith attorney read the checks for each Leasing Plaintiff into the record, all of which were

payable to the individual plaintiffs, not the Secretary. See ECF No. 8-4 at 7–8.

The procedure outlined in the 2022 Order reflects what Defendant correctly argues: that

Defendant had no duty to affirmatively and unilaterally establish IIM accounts for every mineral

owner and deposit the lease payments therein. See ECF No. 8 at 32–33 (“the restricted Indian

mineral owners may wish to have their bonus payment checks deposited into their . . . [IIM]

Accounts”) (emphasis added)). The regulation referenced in the Order requires the Bureau of

Indian Affairs (“BIA”) to accept certain specific sources of money on behalf of tribes or tribal

members, but the bonus payments here do not fall into those categories. See 25 C.F.R. § 115.702

(2001). 15 Thus, although the Order permits mineral owners to have their bonus payments

deposited in IIM accounts, it does not require them (or the Secretary) to do so. Furthermore, there

is no duty in the Stigler Act requiring the Government to collect and deposit grantors’ lease

payments into IIM accounts. The only duty relating to payments that appears in the Stigler Act is

the requirement that the court presiding over the conveyance approval proceeding “must be

satisfied that consideration has been paid in full.” Stigler Act § 1(b). The Stigler Act does not

15 This regulatory provision mandates that the BIA accept “[f]unds derived directly from trust lands, restricted fee lands, or trust resources that are presented to the Secretary, on behalf of the tribe or individual Indian owner(s) as required by contract (i.e., direct pay) and returned by mail to the payor as undeliverable.” This language indicates that the funds that the BIA must accept for deposit into a trust account include lease payments related to a restricted allotment that the payor (here, the lessee) tried to pay the individual Indian landowner but could not because the payment was returned as undeliverable. Plaintiffs have not alleged that Defendant failed to accept payments that were sent to Plaintiffs but returned as undeliverable. Therefore, as a matter of law, the funds at issue here are not a source of money that the BIA is statutorily required to accept on behalf of Plaintiffs. 35 specify that any particular payment method must be used, nor that payment must be made to the

Secretary rather than the grantor. Thus, because Defendant did not “expressly accept[],” Jicarilla

Apache Nation, 564 U.S. at 177, the obligation to collect and deposit oil and gas bonus payments

or royalties into IIM accounts for Leasing Plaintiffs, there is no specific trust duty to enforce and

thus no jurisdiction over Count II.

3. FOGRMA Does Not Apply.

Count III mirrors the second category of Count II claims but relies on a different statute.

Count III alleges that Defendant failed to fulfill its purported duties to collect lease payments for

Plaintiffs, establish IIM accounts for all eligible Plaintiffs, and manage such IIM accounts. ECF

No. 6 ¶¶ 57–59. Plaintiffs base these allegations on the federal government’s duties to Indian

landowners under FOGRMA. Id. ¶ 59. FOGRMA is a federal statute aimed at improving the

Secretary’s oversight of oil and gas production on federal and Indian land subject to federal mineral

leasing laws. See 30 U.S.C. § 1701(a). The stated purposes of FOGRMA are: (1) clarifying the

responsibilities and obligations of lessees, operators, and other persons involved in the

transportation or sale of oil and gas from the federal and Indian lands and the Outer Continental

Shelf; (2) clarifying the responsibilities of the Secretary to maintain a royalty management system

for such leases; (3) requiring enforcement of disbursement of oil and gas revenues; (4) fulfilling

the United States’ trust responsibility; and (5) developing an efficient federal royalty management

system. Id. § 1701(b).

Plaintiffs assert that Defendant had a duty under FOGRMA to establish IIM accounts for

all Plaintiffs—both Leasing and Non-Leasing. See ECF No. 6 ¶¶ 56–59. Accordingly, Plaintiffs

take issue with the fact that Defendant permitted “payments to be made directly to the restricted

Indian landowners.” Id. ¶ 59. Instead, Plaintiffs allege, Defendant should have ensured that

Reagan Smith “sen[t] all associated payments to the MMS [Minerals Management Service] to be 36 deposited into IIM accounts and managed there for Plaintiffs’ benefit.” Id. Plaintiffs allege that

“[s]ince at least 1982, royalty, rent and bonus payments, and accompanying reports, should have

been made to the [MMS] at the Department of the Interior, which is charged with the responsibility

under [FOGRMA] . . . for accounting for payments on Indian lands.” Id. Acknowledging the

Court’s statute of limitations under 28 U.S.C. § 2501, Count III’s breach of trust claim is limited

to Defendant’s failure to carry out these purported duties during the six years preceding the

Complaint. Id. ¶ 58.

The fatal flaw with Plaintiffs’ Count III allegations is that FOGRMA does not apply to

Stigler Act leases. And because FOGRMA does not apply, Defendant had no duty to unilaterally

create IIM accounts for all Plaintiffs. Reasoning that because FOGRMA applies only to leases

approved by the United States “under a mineral leasing law” that is “administered by the

Secretary,” Defendant contends that FOGRMA is inapplicable to Stigler Act leases because the

Stigler Act is not administered by the Secretary. See ECF No. 11 at 41 (citing 30 U.S.C. §§

1712(a), 1702(5), 1702(8)). Thus, “any of the duties found in [FOGRMA] do not apply.” Id. at

20. The Court agrees.

“[T]he starting point for interpreting a statute is the language of the statute itself.”

Consumer Prod. Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 108 (1980). FOGRMA defines

a “lease” as “any contract . . . approved by the United States under a mineral leasing law that

authorizes exploration for, extraction of, or removal of oil or gas.” 30 U.S.C. § 1702(5).

FOGRMA defines “mineral leasing law” as “any Federal law administered by the Secretary

authorizing the disposition under lease of oil or gas.” Id. § 1702(8).

The Stigler Act is not a federal law “administered by the Secretary.” Rather, in relevant

part, the Stigler Act governs conveyances of any interest in certain restricted Indian allotments in

37 Oklahoma and mandates state court approval of such conveyances pursuant to an approval

procedure. See Stigler Act § 1(a). Conveyances subject to the Stigler Act can include oil and gas

or mineral leases, but the statute is not directed solely at such leases. See id. (applying to all

conveyances “of any interest” in restricted land). And although the Interior Department has a role

in the approval process, only the state court (not the Secretary) is authorized to approve the

conveyances at issue. See id. Because the Stigler Act by its terms is not “administered by the

Secretary,” it is not a “mineral leasing law” subject to the requirements of FOGRMA.

The Indian Long-Term Leasing Act (“ILTLA”), 25 U.S.C. § 396, which is a “mineral

leasing law” subject to FOGRMA, is a useful comparison to demonstrate that the Stigler Act, by

its plain terms, is not a law to which FOGRMA applies. Unlike the Stigler Act, the ILTLA governs

most oil and gas development on Indian allotments and specifically authorizes “[a]ll lands allotted

to Indians in severalty” to “be leased [by the allottee] for mining purposes for any term of years as

may be deemed advisable by the Secretary of the Interior.” 25 U.S.C. § 396; see Birdbear, 178

Fed. Cl. at 93 (citing Birdbear v. United States, 162 Fed. Cl. 225, 234 (2022)) (summarizing

statutory and regulatory framework applicable to oil and gas leasing under ILTLA). Unlike the

Stigler Act, the ILTLA authorizes the Secretary “to perform any and all acts and make such rules

and regulations as may be necessary for the purpose of carrying the provisions of this section into

full force and effect.” 25 U.S.C. § 396. Confirming what is clear from the language of the ILTLA,

the Secretary’s implementing regulation acknowledges that FOGRMA applies to leases approved

under the Act. See 25 C.F.R. § 212.6 (1996) (“The functions of MMS for reporting, accounting,

and auditing are found in 30 CFR chapter II, subchapters A and C, which apply to leases approved

under this part.”). Notably, the ILTLA specifically excludes allotments of the Five Civilized

Tribes. 25 U.S.C. § 396.

38 Prior unsuccessful legislative reform further supports the conclusion that FOGRMA does

not apply to leases subject to the Stigler Act. As Defendant points out, a proposed bill introduced

in the House of Representatives in 2001, known as the Five Nations Indian Law Reform Act,

sought to eliminate state court approval of Stigler Act leases and instead give the Secretary

“exclusive jurisdiction to approve conveyances and leases of restricted property.” ECF No. 8 at

43 (quoting Five Nations Indian Law Reform Act, H.R. 2880, 107th Cong. § 201 (2001)). Once

approved, the bill would have required the Secretary to “exercise all the duties and responsibilities

of the Secretary under [FOGRMA].” H.R. 2880, 107th Cong. § 207(b). If the Stigler Act could

be interpreted as “a mineral leasing law,” there would have been no reason to amend the Act to

expressly apply the requirements of FOGRMA. The fact that H.R. 2880 sought to transfer from

the state court to the Secretary the authority to approve conveyances of restricted Indian lands and

to require the Secretary to fulfill his duties under FOGRMA suggests that the Secretary does not

“administer” the Stigler Act under the current statutory framework.

Plaintiffs attempt to rely on other sections of the Stigler Act to demonstrate that the Act is

“administered by the Secretary,” in particular Sections 5 and 11. See ECF No. 10 at 38. Section

5 reads:

That all funds and securities now held by, or which may hereafter come under the supervision of the Secretary of the Interior, belonging to and only so long as belonging to Indians of the Five Civilized Tribes in Oklahoma of one-half or more Indian blood, enrolled or unenrolled, are hereby declared to be restricted and shall remain subject to the jurisdiction of said Secretary until otherwise provided by Congress, subject to expenditure in the meantime for the use and benefit of the individual Indians to whom such funds and securities belong, under such rules and regulations as said Secretary may prescribe.

Stigler Act § 5. Section 11 of the Stigler Act states that “no order of the Corporation Commission

affecting restricted Indian land shall be valid as to such land until submitted to and approved by

the Secretary of the Interior or his duly authorized representative.” Id. § 11.

39 As Defendant correctly argues, see ECF No. 11 at 21, Section 5 applies generally to

restricted “funds and securities” of the Five Civilized Tribes; it does not specifically address

income derived from oil and gas leases on restricted allotments. Stigler Act § 5. Nor does it

require the Secretary to collect and manage payments related to such leases on behalf of allotees.

Rather, it simply retains the Secretary’s jurisdiction over restricted funds and securities that were

already in the Secretary’s possession “or which may hereafter come under the supervision of the

Secretary.” Id. Section 11, on the other hand, merely requires Secretary approval before orders

of the Oklahoma Corporation Commission become valid as to restricted allotments subject to the

Act. Plaintiffs fail to explain how and when commission orders affect oil and gas leases on

restricted allotments. The Court, however, sees nothing in Sections 5 or 11 of the Stigler Act to

suggest that any involvement by the Secretary equates to administration of the Act or that the

Secretary approves, manages, or oversees oil and gas leases subject to the Stigler Act.

Because FOGRMA is inapplicable to Stigler Act leases, Plaintiffs’ claim that Defendant

breached its FOGRMA duties in connection with the leases in question here fails under prong one

of Navajo I. This count must likewise be dismissed for lack of jurisdiction.

C. Plaintiffs Fail to Allege a Cognizable Fifth Amendment Taking.

The remaining claims are asserted by only Non-Leasing Plaintiffs. They allege that

Defendant effectuated a taking of their property interests because the 2022 Order approving the

leases at issue did not require Reagan Smith to make any payments to Non-Leasing Plaintiffs.

ECF No. 6 ¶ 65; see id. ¶¶ 60–67. As Defendant correctly argues, this allegation fails to plausibly

state a viable takings claim.

The Takings Clause of the Fifth Amendment guarantees that the federal government will

not take private property “for public use, without just compensation.” U.S. Const. amend. V, cl.

4. In deciding a takings claim, the Court must first determine “whether the claimant has identified 40 a cognizable Fifth Amendment property interest that is asserted to be the subject of the taking.”

Acceptance Ins. v. United States, 583 F.3d 849, 854 (Fed. Cir. 2009). Once it determines that the

claimant possesses a valid property interest, the Court can turn to the question of “whether that

property interest was taken.” Id.

Here, Non-Leasing Plaintiffs who have alleged a present ownership interest in the

Allotment have stated a cognizable Fifth Amendment property interest. As Plaintiffs observe, the

relevant property interest that was allegedly taken is Non-Leasing Plaintiffs’ right to recover

income from an oil and gas lease based on their fractional interest in the Allotment. 16 See ECF

No. 10 at 42; see also United States v. Craft, 536 U.S. 274, 280 (2002) (recognizing that “[t]enants

in common have . . . the right to use the property, to exclude third parties from it, and to receive a

portion of any income produced from it”). Non-Leasing Plaintiffs could have entered into a lease

with Reagan Smith, so it logically follows that Non-Leasing Plaintiffs have a right to receive

income from a similar lease arrangement. 17 Thus, Non-Leasing Plaintiffs’ allegations satisfy the

first prong of the takings test. Cienega Gardens v. United States, 331 F.3d 1319, 1329 (Fed. Cir.

2003) (“[T]here is also ample precedent for acknowledging a property interest in contract rights

under the Fifth Amendment.”).

16 Defendant initially contended that the relevant property right was Non-Leasing Plaintiffs’ right to exclude Leasing Plaintiffs from leasing the property to Reagan Smith. See ECF No. 8 at 36. After Plaintiffs clarified the property interest allegedly taken, Defendant conceded that the right to receive lease income could be the relevant property interest for the purpose of the takings analysis here, but that even so, there was no evidence of Defendant’s interference with that property right. See ECF No. 17 at 35:22–36:8. 17 Defendant acknowledged as much at oral argument. See ECF No. 17 at 30:15–31:23 (indicating that Non-Leasing Plaintiffs have a right to receive a portion of the income generated by their undivided fractional interest in the Allotment). 41 The Court next turns to the second prong: whether Non-Leasing Plaintiffs’ property interest

was taken. Acceptance Ins., 583 F.3d at 854. It is at this step that Plaintiffs’ theory falters because

Defendant did not affirmatively take anything from Non-Leasing Plaintiffs and any inaction on the

part of Defendant cannot be the basis for a takings claim. Indeed, Non-Leasing Plaintiffs maintain

their relevant property interests in the Allotment and have available state court remedies to address

the alleged harm.

First, Plaintiffs’ takings claim cannot succeed because Defendant did not take Non-Leasing

Plaintiffs’ property interest in the Allotment. As Defendant points out, Oklahoma common law

holds that owners of undivided partial interests in oil and gas, like Plaintiffs, are tenants in

common. Anderson v. Dyco Petroleum Corp., 782 P.2d 1367, 1371 (Okla. 1989); Mood v.

Wagner, 23 P.2d 633, 635 (Okla. 1933); see ECF No. 6 ¶ 65 (referring to Non-Leasing Plaintiffs

as having “owned an undivided, partial interest in the natural gas and other mineral resources” of

the Allotment). “As cotenants each is entitled to market production from the [common property]

and the sale of gas to a purchaser by one or more cotenants without consent of other cotenants is

lawful.” Dyco Petroleum, 782 P.2d at 1371; see Wagner, 23 P.2d at 635 (holding that “each tenant

in common had the right to execute a separate lease which is effective as to his portion of the

common property”); see also Wolfe v. Stanford, 64 P.2d 335, 339 (Okla. 1937) (recognizing that

mineral conveyance by cotenant did not affect partition rights of non-consenting interest owner).

In short, under Oklahoma law, Non-Leasing Plaintiffs did not have a right to be made part of the

leases between Reagan Smith and Leasing Plaintiffs, and those leases did not impinge on the

undivided fractional property interests of Non-Leasing Plaintiffs.

Moreover, Oklahoma law provides Non-Leasing Plaintiffs an available remedy. It

recognizes that cotenants who lease their oil and gas interests “must account to a non-producing

42 cotenant for the market value of the production less any reasonable and necessary expenses of

developing, extracting and marketing.” Dyco Petroleum, 782 P.2d at 1373 (describing other

equitable remedies utilized by the industry and courts); see Harrell v. Samson Res. Co., 980 P.2d

99, 105–07 (Okla. 1998) (same). Here, Plaintiffs allege that neither Reagan Smith nor Leasing

Plaintiffs have made payments to Non-Leasing Plaintiffs, or to Defendant on Non-Leasing

Plaintiffs’ behalf, for their mineral interests. ECF No. 6 ¶ 66. But to the extent that Reagan Smith

or Leasing Plaintiffs did not abide by the relevant state law obligations, Non-Leasing Plaintiffs

have the right to pursue a remedy in Oklahoma state court. See ECF No. 17 at 49:23–50:11

(admitting that “maybe they [Non-Leasing Plaintiffs] do” have an action in state court against

Reagan Smith). The actions or inactions of Reagan Smith or Leasing Plaintiffs, however, do not

give rise to a takings claim against Defendant. 18 See All. of Descendants of Tx. Land Grants v.

United States, 37 F.3d 1748, 1482 (1994) (holding that an action by a third party “is not a specific

taking action of the United States” and “create[s] no liability for the United States”).

18 Courts have recognized Fifth Amendment takings liability for the actions of third parties but only where the “third party is acting as the government’s agent or the government’s influence over the third party was coercive rather than merely persuasive.” A & D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1154 (Fed. Cir. 2014). To be considered the Government’s agent, the third party must be acting on behalf of the Government. See Hendler v. United States, 952 F.2d 1364, 1378–79 (Fed. Cir. 1991) (finding an agency relationship where state officials had been authorized by the federal government to carry out environmental tests on the plaintiffs’ land). For the Government’s influence over the third party to be coercive, it must exhibit qualities of “irresistible pressure,” Turney v. United States, 126 Ct. Cl. 202, 207–08 (1953), aff’d, 115 F. Supp. 457 (1953), rather than mere “friendly persuasion,” Langenegger v. United States, 756 F.2d 1565, 1572 (Fed. Cir. 1985). Plaintiffs do not allege that Reagan Smith was acting as an agent for or under the coercive influence of Defendant when it entered into the subject leases, and courts have found that mere governmental approval or authorization of third-party actions is insufficient to state a basis for takings liability. See, e.g., Berry v. United States, 159 Fed. Cl. 844, 849 (2022), aff’d, No. 2022-2031, 2024 WL 852819 (Fed. Cir. Feb. 29, 2024); L & W Constr. LLC v. United States, 148 Fed. Cl. 417, 422–23 (2020). 43 Plaintiffs do not dispute Defendant’s reading of binding Oklahoma case law but instead

contend that the existence of a state law remedy does not preclude them from bringing a Fifth

Amendment taking claim in this Court. See ECF No. 10 at 44 (citing Knick v. Twp. of Scott, Pa.,

588 U.S. 180, 190 (2019)). The Court agrees with that general statement of the law. Unlike in

Knick, however, the state law remedies in Oklahoma are not merely alternate procedures for

seeking compensation for an alleged taking by the government. See 588 U.S. at 187 (identifying

the question presented as whether the plaintiff had to seek compensation through a state court

inverse condemnation claim before proceeding to federal court on a constitutional taking claim

under 42 U.S.C. § 1983). The Court must look to Oklahoma law in the instant matter to determine

whether Plaintiffs have plausibly alleged a Fifth Amendment taking at all—i.e., whether Plaintiffs

have a cognizable property right and, if so, whether it was taken. See Piszel v. United States, 833

F.3d 1366, 1376 (Fed. Cir. 2016) (holding that the existence of an alternative remedy was “highly

relevant to the takings analysis” in that case). Where the state law does not support the allegation

that Defendant took Non-Leasing Plaintiffs’ property interest, and Plaintiffs retain the “full range

of remedies associated with any [] property right they possessed,” they fail to allege a cognizable

Fifth Amendment takings claim. Castle v. United States, 301 F.3d 1328, 1342 (Fed. Cir. 2002)

(finding that because “the plaintiffs retained the full range of remedies associated with any

contractual property right they possessed[,]” the government action “did not constitute a taking of

the contract”).

Second, contrary to Plaintiffs’ argument, the 2022 Order by its plain terms merely

permitted Leasing Plaintiffs and Reagan Smith to enter into the leases; it did nothing to “prevent[]”

Non-Leasing Plaintiffs from also leasing their interest in the Allotment or sharing in any income

received by Leasing Plaintiffs. ECF No. 10 at 43; see ECF No. 8-5 at 20–21. The 2022 Order was

44 completely silent on the rights of Non-Leasing Plaintiffs precisely because they were not parties

to the leases at issue in the lease approval proceeding. Indeed, Plaintiffs do not allege that the state

court’s approval of the leases prohibited Non-Leasing Plaintiffs from executing additional leases

with Reagan Smith or recovering from Reagan Smith or their cotenants for any compensation due.

See ECF No. 8-4 at 6 (statement of Reagan Smith attorney at the approval proceeding indicating

that the lessee would file new leases for approval with the court if leases with additional allotment

owners arose in the future). As a result, Non-Leasing Plaintiffs do not plausibly allege the loss of

any property right in the Allotment due to the 2022 Order. See Castle, 301 F.3d at 1342.

Even accepting as true that the 2022 Order prevented Non-Leasing Plaintiffs from

receiving a share of the royalty income by failing to require Reagan Smith to make payments to

them, such allegation does not state a cognizable takings claim because it is grounded on

Defendant’s alleged inaction or failure to act. Plaintiffs seem to argue that either the state court

judge and/or the Trial Attorney should have ensured that a certain quantum of mineral interest

owners were included in the leases and that the 2022 Order provided compensation to Non-Leasing

Plaintiffs. See ECF No. 17 at 61:3–13 (asserting that the Trial Attorney should have found “at

least half” but preferably “all[] of the owners” and ensured that they entered into leases); see also

ECF No. 6 ¶¶ 2, 52, 54, 65. The problem with this argument—beyond the fact that there is no

requirement under Oklahoma law that a certain number of cotenants enter into an oil and gas lease,

a point Plaintiffs concede, see ECF No. 10 at 42—is that “takings liability does not arise from

government inaction or failure to act.” St. Bernard Par. Gov’t v. United States, 887 F.3d 1354,

1361 (Fed. Cir. 2018). Rather, the Government must affirmatively act to take a claimant’s property

rights. Id. at 1362; see also L & W Constr. LLC v. United States, 148 Fed. Cl. 417, 422 (2020).

Plaintiffs allege no such affirmative action here.

45 D. Plaintiffs’ Alternative Illegal Exaction Claim Also Fails.

Finally, Plaintiffs alternatively argue that Defendant’s actions constituted an illegal

exaction of Non-Leasing Plaintiffs’ property. ECF No. 6 ¶¶ 68–70. Defendant counters that Non-

Leasing Plaintiffs cannot state a viable illegal exaction claim because they fail to allege any of the

essential elements of such a claim. See ECF No. 8 at 46–47. Under the Federal Circuit’s precedent,

illegal exaction claims must plausibly allege that: (1) money or its effect has either been taken by

or given to the Government; and (2) in obtaining these funds, the Government violated a statutory,

regulatory, or constitutional provision. See id. (citing Boeing Co. v. United States, 968 F.3d 1371,

1383 (Fed. Cir. 2020)). The Court agrees with Defendant that Plaintiffs’ allegations fail to satisfy

both prongs of the illegal exaction test.

First, illegal exaction claims typically allege that “money . . . was ‘improperly paid,

exacted, or taken from the claimant.’” Mod. Sportsman, LLC v. United States, 176 Fed. Cl. 567,

573 (2025) (emphasis in original) (quoting Eastport S.S. Corp. v. United States, 372 F.3d 1002,

1007 (Ct. Cl. 1967)). “The phrase ‘in effect’ . . . simply refers to cases where the government

gained money even though the money did not flow directly from the plaintiff to the government.”

Id. at 574 (emphases in original). Although at least one court has recognized that the exaction of

property may state an illegal exaction claim, it did so where the Government proceeded to sell the

exacted property. See Bowman v. United States, 35 Fed. Cl. 397, 401 (1996). In Modern

Sportsman, the court emphasized the importance of the fact that the Government allegedly gained

money in Bowman through sale proceeds. 176 Fed. Cl. at 574. Although the seizure of personal

and real property in Bowman did not constitute a payment to the Government, money was exacted

from the plaintiff “in effect” because the Government “received money in return” due to the sale.

Id. (emphases in original) (citing Bowman, 35 Fed. Cl. at 401). Absent similar allegations that the

Government gained money through sale proceeds, Modern Sportsman found no viable illegal 46 exaction claim was stated where a new federal rule required the plaintiffs to either destroy or

surrender to the Government certain personal property. Id.

Here, Plaintiffs fail to allege that they paid any money directly to Defendant. Rather,

similar to their takings claim, Plaintiffs assert only that the 2022 Order “divested [Non-Leasing

Plaintiffs] of their property interest” in the Allotment. ECF No. 6 ¶ 70. At best then, they allege

an “in effect” payment. There is no allegation, however, that Defendant took Non-Leasing

Plaintiffs’ mineral interests and sold them for money, or that money flowed directly or indirectly

to Defendant as a result of the 2022 Order approving the leases. Indeed, the United States was not

a party to the leases at issue. As other courts have held, the alleged loss of property alone does not

constitute an “in effect” payment of money sufficient to state an illegal exaction claim. See Mod.

Sportsman, 176 Fed. Cl. at 574.

Perhaps recognizing that no money went into Defendant’s pockets, Plaintiffs further allege

that Defendant “illegally required the [Non-Leasing Plaintiffs] to provide their property (mineral

interests) without compensation to a third party (Reagan Smith, Inc.).” ECF No. 6 ¶ 71. Or, as

Plaintiffs argue in their Sur-Reply, the 2022 Order “directed that the entire income produced by

the lease, including the portion of royalties which should have been paid to non-leasing Plaintiffs,

instead be paid only to the minority of owners who signed the lease.” ECF No. 14 at 17. Whether

the relevant third party is Reagan Smith or Leasing Plaintiffs, the facts alleged in the Amended

Complaint do not plausibly state a third-party illegal exaction claim. Plaintiffs do not allege they

paid money or its effect to Reagan Smith or Leasing Plaintiffs at Defendant’s direction. See

Aerolineas Argentinas v. United States, 77 F.3d 1564, 1573 (Fed. Cir. 1996) (holding that airlines

stated illegal exaction claim where government directed airlines to pay for expenses of asylum

seekers (e.g., hotel costs, meals, security, etc.) in contravention of statute obligating the

47 Government to bear such costs). Nor do they allege that Defendant directed Reagan Smith or any

plaintiff to enter into the leases at issue. The only federal involvement in the leases occurred in

relation to the lease approval proceeding, in which the Trial Attorney appeared pursuant to the

Stigler Act. As explained above, the Act sets forth a mandatory lease approval process for private

parties seeking to voluntarily convey property interests in restricted allotments. Framed in the

proper context, the 2022 Order did not direct any action, so much as approve actions agreed to

among private parties.

More fundamentally, however, even in cases where the Government expressly directed a

third party to take an action that interfered with a plaintiff’s property right, no illegal exaction

claim is stated where the allegations do not concern the payment of money by the plaintiff. See

Piszel, 833 F.3d at 1382 (explaining that government direction not to pay plaintiff his

contractually-mandated severance was not an exaction “because there was no payment” of money

by plaintiff). For the same reason, courts have found no exaction where government action

allegedly resulted in lost opportunities for the plaintiff to make money. See Eastport, 372 F.2d at

1009 (holding illegal exaction theory cannot be premised on recovery of business losses); Westfed

Holdings, Inc. v. United States, 52 Fed. Cl. 135, 153 (2002) (“The doctrine of illegal exaction

requires compensation for actual payments of money and has never, to the court’s knowledge,

been applied to compensate a plaintiff for lost opportunities to make money.”).

Second, even assuming arguendo that Plaintiffs plausibly allege an exaction of money,

directly or in effect, they have not plausibly alleged that the exaction was unlawful. As explained

above, the Amended Complaint does not identify any statute, regulation, or constitutional

provision with respect to the lease approval proceeding that Defendant plausibly violated. See

supra § III.B; see Boeing, 968 F.3d at 1383. And since Plaintiffs base their illegal exaction claim

48 on the lease approval proceeding, see ECF No. 14 at 18, Plaintiffs cannot establish element two of

an illegal exaction. See Boeing, 968 F.3d at 1383; see also Mod. Sportsman, 176 Fed. Cl. at 573–

74 (describing difference between self-money-mandating illegal exaction claims and illegal

exaction claims based on a money-mandating source of law). Just as the Amended Complaint

does not sufficiently plead facts stating a breach of statutory trust duties based on the 2022 lease

approval proceeding, it does not plausibly plead an illegal exaction claim based on that proceeding.

IV. CONCLUSION

For these reasons, the Court GRANTS Defendant’s Motion to Dismiss (ECF No. 8). This

matter is DISMISSED under RCFC 12(b)(1) for lack of jurisdiction and RCFC 12(b)(6) for failure

to state a claim upon which relief can be granted. The Clerk is directed to enter judgment

accordingly.

SO ORDERED.

Dated: April 28, 2026 /s/ Kathryn C. Davis KATHRYN C. DAVIS Judge