Tommy Wesley Scott v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TOMMY WESLEY SCOTT,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-2102
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-01603-SSS, Judge Stephen S. Schwartz.
______________________
Decided: April 29, 2024
______________________
T OMMY WESLEY S COTT , Helena, OK, pro se.
ANDREW MARSHALL BERNIE, Environment and Natural
Resources Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by T ODD K IM .
______________________
Before D YK, BRYSON, and STOLL , Circuit Judges.
BRYSON, Circuit Judge.
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SCOTT v. US 2
Appellant Tommy Wesley Scott was convicted of first-
degree murder and is serving two consecutive life sen-
tences in an Oklahoma state prison. He contends that he
is a member of the Muscogee (Creek) Nation and that the
crimes of which he was convicted were committed on the
Cherokee Reservation. Because the Major Crimes Act, 18
U.S.C. §1153(a), grants the United States exclusive juris-
diction over certain crimes, including murder, committed
by Indians on Indian reservations, he argues that the State
of Oklahoma improperly exercised criminal jurisdiction
over him.
Mr. Scott filed an action in the Court of Federal Claims
(“the Claims Court”) seeking relief from the United States
for his improper incarceration in the form of a monetary
award. The Claims Court dismissed his complaint for lack
of jurisdiction. We affirm.
I
Mr. Scott’s conviction was based on a plea of guilty that
he entered in 1993. JA 11. He did not seek to withdraw
his plea or appeal his conviction. In 2020, he filed an ap-
plication for post-conviction relief in Oklahoma state court.
He contended that under the Supreme Court’s decision in
McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), the Oklahoma
state courts lacked jurisdiction over him because he is an
Indian and his crime occurred in “Indian Country.” Under
McGirt, he argued, the United States had exclusive juris-
diction over his offense, and his conviction therefore had to
be vacated.
The state court denied his request for relief. Citing
Tenth Circuit law, the court held that the McGirt case
should not be given retroactive application to void a final
state conviction, such as Mr. Scott’s. App. 11-16. Mr.
Scott’s appeal from that decision was dismissed as un-
timely. App. 17–18.
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SCOTT v. US 3
Mr. Scott then sought habeas corpus relief from a fed-
eral district court in the Northern District of Oklahoma.
That court dismissed the petition on the ground that it was
barred by the one-year statute of limitations for federal ha-
beas corpus petitions in 28 U.S.C. § 2244(d)(1). App. 20–
21.
Shortly thereafter, Mr. Scott filed this action in the
Claims Court. In his complaint, he based his claim for
damages on two treaties entered into between the United
States and the Muskogee (Creek) Nation, in 1832 and 1866.
The 1832 treaty declared that no state or territory would
have the right “to pass laws for the government of [the
Creeks], but they shall be allowed to govern themselves, so
far as may be compatible with the general jurisdiction
which Congress may think proper to exercise over them.”
Treaty with the Creeks, art. 14, 7 Stat. 366, 368 (1832).
The 1866 treaty provided that the Creeks “agree to such
legislation as Congress and the President of the United
States may deem necessary for better administration of
justice and the protection of the rights of person and prop-
erty within the Indian Territory: provided, however, [that]
said legislation shall not in any manner interfere with or
annul their present tribal organization, rights, laws, privi-
leges, and customs.” Treaty with the Creek Indians, art.
10, 14 Stat. 785, 788 (1866).
Mr. Scott alleged in his complaint that because he is an
Indian within the meaning of federal law and was con-
victed of crimes occurring within the boundaries of an In-
dian reservation, those two treaties, together with the
Major Crimes Act, 18 U.S.C. § 1153, and the Indian Civil
Rights Act, 25 U.S.C. §1301 et seq., gave rise to a guarantee
that he would not be subject to state criminal jurisdiction
for his offenses.1 Based on those provisions, he argued that
1 The Major Crimes Act provides that certain crimes
committed by Indians in Indian territory fall within
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SCOTT v. US 4
the federal government had the duty to remedy what he
characterizes as his illegal detention by the Oklahoma De-
partment of Corrections.
The Claims Court dismissed Mr. Scott’s complaint for
lack of jurisdiction. At the outset, the court characterized
Mr. Scott’s complaint as raising, in essence, a collateral at-
tack on his state court conviction, since his request for mon-
etary relief was based on his claim that his conviction was
invalid. The Claims Court rejected that contention on the
ground that the Court of Federal Claims is not authorized
to grant habeas corpus relief or to review the judgments of
state and federal courts with regard to the validity of state
court convictions or the lawfulness of state court incarcer-
ation. App. 2.
The Claims Court further held that Mr. Scott’s claim
was not within the court’s jurisdiction because it was not
based on a “money-mandating” law, i.e., a law that can
fairly be interpreted as mandating compensation by the
federal government for damages sustained. Id. In partic-
ular, the court held that neither the Indian Civil Rights Act
nor the Major Crimes Act is a money-mandating statute.
Id. Although the court noted that it has jurisdiction to en-
force the federal statute proving a monetary remedy for
claims of unjust conviction, 28 U.S.C. § 2513(a)(1), that
statute applies only to federal prisoners, and not to state
prisoners such as Mr. Scott.
exclusive federal jurisdiction. The Indian Civil Rights Act
acknowledges “the inherent power of Indian tribes, hereby
recognized and affirmed, to exercise criminal jurisdiction
over all Indians,” 25 U.S.C. § 1301(2), and contains various
provisions affecting the allocation of criminal jurisdiction
among state, federal, and tribal courts, see id. §§ 1301(f),
1303, 1304, 1321, 1323–26.
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SCOTT v. US 5
Finally, the court held that none of the treaty language
on which Mr. Scott relies could be interpreted as requiring
the federal government to provide monetary relief for un-
lawful state imprisonment. App. 3.2
II
The Claims Court is a court of limited jurisdiction. The
jurisdictional statute that applies to this case is the Tucker
Act, 28 U.S.C. § 1491(a)(1), which grants the court jurisdic-
tion over claims against the United States “founded either
upon the Constitution, or an Act of Congress or regulation
of an executive department, or upon any express or implied
contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort.”3 As
the Claims Court observed, in order for the court to have
jurisdiction under the Tucker Act, the plaintiff must be
able to point to a “money-mandating” statute or other pro-
vision that requires the federal government to compensate
the plaintiff for an injury other than one sounding in tort.
2 In the aftermath of the McGirt decision, the Claims
Court has addressed several other claims from Oklahoma
state inmates similar to Mr. Scott’s and has resolved them
all consistently with the Claims Court’s ruling in this case.
See Cramer v. United States, No. 23-37C, 2023 WL 3072541
(Ct. Fed. Cl. Apr. 25, 2023); Greene v. United States, No.
22-1064, 2023 WL 3072565 (Ct. Fed. Cl. Apr. 25, 2023);
Williamson v. United States, No. 23-263C, 2023 WL
3032952 (Ct. Fed. Cl. Apr. 20, 2023); Moore v. United
States, 163 Fed. Cl. 591 (2022).
3 In his complaint, Mr. Scott invoked the so-called
Little Tucker Act, 28 U.S.C. § 1346, which provides the
Claims Court with jurisdiction, concurrent with district
courts, over certain damages actions, not sounding in tort,
“not exceeding $10,000 in amount.” Because Mr. Scott has
sought a much greater recovery than that, we treat his
complaint as having invoked the Tucker Act instead.
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SCOTT v. US 6
See United States v. Navajo Nation, 556 US. 287, 290
(2009) (To establish jurisdiction, a plaintiff must identify a
separate source of law that “can fairly be interpreted as
mandating compensation by the Federal Government.”
(quoting United States v. Testan, 424 U.S. 392, 400 (1976)).
Mr. Scott’s theory is that he is not pursuing a collateral
attack on his conviction, but is alleging the breach of a
“treaty/contract that [he] would not be subject to state law
when a crime occurs on an Indian reservation.” App. 5.
Referring to four nineteenth century treaties with the
Creek and Cherokee tribes,4 he argues that “the treaties’
provision can fairly be interpreted as ‘money-mandating’
when viewed through the lens of treaty interpretation.” Id.
at 5–6.
In effect, Mr. Scott contends that the treaty language
on which he relies constitutes a promise by the United
States that persons in Mr. Scott’s position would not be
subject to state prosecution, and that in the event of a
breach of that promise, the federal government would be
required to compensate the affected individuals for the re-
sulting injury.
Mr. Scott’s theory is unpersuasive. The Claims Court
can assert jurisdiction over claims grounded in treaties be-
tween the United States and Indian nations, which are re-
garded as “essentially a contract between two sovereign
nations.” Washington v. Wash. State Com. Passenger Fish-
ing Vessel Ass’n, 443 U.S. 658, 675 (1979); Tsosie v. United
4 In addition to the two treaties he identified in his
complaint, the Treaty with the Creeks, 7 Stat. 366 (1832),
and the Treaty with the Creek Indians, 14 Stat. 785 (June
14, 1866), Mr. Scott in his brief on appeal has also referred
to the Treaty with the Cherokees, 7 Stat. 478 (Dec. 29,
1835), and the Treaty with the Cherokee Indians, 14 Stat.
799 (July 19, 1866). App. 6.
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SCOTT v. US 7
States, 825 F.2d 393, 401 (Fed. Cir. 1987) (a treaty between
the United States and Indian nations is “a species of con-
tract.”). Because breach of contract claims generally carry
“a presumption that money damages are available,” such
claims normally fall within the reach of the Tucker Act.
Holmes v. United States, 657 F.3d 1303, 1314 (Fed. Cir.
2014). But “[t]he government’s consent to suit under the
Tucker Act does not extend to every contract.” Id. The con-
tract “must be between the plaintiff and the government
and entitle the plaintiff to money damages in the event of
the government’s breach of that contract.” Ransom v.
United States, 900 F.2d 242, 244 (Fed. Cir. 1990).
Those requirements are not satisfied here, for several
reasons. First, the treaty provisions Mr. Scott cites in his
complaint are not money-mandating. The language from
article 10 of the 1866 treaty on which Mr. Scott relies,
Treaty with the Creek Indians, 14 Stat. 785, 788 (June 14,
1866), permits Congress to enact legislation that it “may
deem necessary for the better administration of justice and
the protection of the rights of persons and property within
the Indian territory,” provided that the legislation “shall
not in any manner interfere with or annul their present
tribal organization, rights, laws, privileges and customs.”
Article 14 of the 1832 treaty on which he relies, Treaty with
the Creeks, 7 Stat. 366, 368 (Mar. 24, 1832), provides that
no state may “pass laws for the government of [the
Creeks].” Nowhere do those treaties suggest that the fed-
eral government must pay damages to individuals claiming
injury from the breach of those provisions of the treaties.5
5 An example of a treaty provision that was held to give
rise to an individual’s claim for money damages is found in
the “bad men” provision of the 1868 treaties with various
tribes, including the Navajo Nation. That provision, which
was held to be money-mandating in Tsosie, 825 F.2d at 401,
stated that “[i]f bad men among the white, or among other
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SCOTT v. US 8
In his brief in this court, App. 6, Mr. Scott cites two
other treaty provisions, article 5 of the Treaty with the
Cherokees, 7 Stat. 478, 481 (Dec. 29, 1835), and articles 26
and 27 of the Treaty with the Cherokee Indians, 14 Stat.
799, 806 (July 19, 1866). In article 5 of the 1835 treaty, the
United States promised that
the lands ceded to the Cherokee Nation shall, in no
future time, without their consent, be included,
within the territorial limits or jurisdiction of any
State or Territory. But they shall secure to the
Cherokee Nation the right by their national coun-
cils to make and carry into effect all such laws as
they may deem necessary for the government and
protection of the persons and property within their
own country belonging to their people or such per-
son as have connected themselves with them.
7 Stat. at 481. Articles 26 and 27 of the 1866 treaty pro-
vided that the United States would protect the people of
the Cherokee Nation from “all unauthorized citizens of the
United States who may attempt to settle on their lands or
reside in their territory,” and that it would be “the duty of
the United States Indian agent for the Cherokees to have
such persons, not lawfully residing or sojourning therein,
removed from the nation.” 14 Stat. at 806.
Even when viewed in light of the principle that ambi-
guity or silence in agreements between the United States
and a Native American tribe must be read to the tribe’s
benefit, Hagen v. Utah, 510 U.S. 399, 423–24 (1994), the
treaty provisions on which Mr. Scott relies cannot be said
people subject to the authority of the United States, shall
commit any wrong upon the person or property of the Indi-
ans, the United States will . . . reimburse the injured per-
sons for the loss sustained.” Navajo Treaty of June 1, 1868,
15 Stat. 667–68.
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SCOTT v. US 9
to be money-mandating. The cited portions of the two trea-
ties with the Cherokees guaranteed to the Cherokee Nation
the right of self-government. But those passages do not
provide for monetary compensation for a breach of the
promises made by the United States. As such, the asserted
breach of those provisions does not give rise to jurisdiction
under the Tucker Act. Navajo Nation, 556 U.S. at 290.
Second, to the extent the treaty provisions at issue are
deemed contractual in nature, they reflect agreements be-
tween the United States and the tribes. The agreements
addressed the respective rights of sovereignty of the two
contracting parties; they did not create contract-based
rights in individuals, the breach of which could give rise to
monetary remedies for those individual complainants. A
treaty between the United States and an Indian Tribe “can-
not provide a basis for the Tucker Act's contract-based ju-
risdiction” where the plaintiff “has not alleged that he was
a party to the alleged contract or in privity with a party
that was.” Landreth v. United States, 797 F. App'x 521,
524 (Fed. Cir. 2020).
Mr. Scott has not identified any legal obligation owed
by the United States to persons over whom Oklahoma has
improperly exercised criminal jurisdiction. His incarcera-
tion is the result of state prosecution, not the product of any
action by the federal government. His theory, as expressed
in his complaint, is that “the United States had an obliga-
tion to protect [him] from state law.” Not having done so,
he argues, the federal government must “remedy the illegal
detention” to which he and others similarly situated are
subject, and to do so by the payment of money damages.
Nothing in the treaties on which Mr. Scott relies sug-
gests that the federal government agreed to be held liable
for damages in the event that a state sought to exercise
criminal jurisdiction within Indian territories. See Arizona
v. Navajo Nation, 599 U.S. 555, 564 (2023) (holding that a
treaty which “set apart a reservation for the use and
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SCOTT v. US 10
occupation of the Navajo tribe” did not impose a “duty on
the United States to take affirmative steps to secure water
for the tribe.”). In particular, there is nothing in the trea-
ties to indicate that, if a state enacted legislation governing
conduct in Indian territory, the federal government would
be required to pay damages to individuals claiming injury
from that action.
Third, the claim at issue in this case arises in the con-
text of a criminal proceeding. As this court has noted,
“breach of contract arising out of the criminal justice sys-
tem does not ordinarily give rise to an action under the
Tucker Act for damages.” Sanders v. United States, 252
F.3d 1329, 1335 (Fed. Cir. 2001) (finding no jurisdiction
over a claim seeking money damages for an alleged breach
by a federal prosecutor of a stipulated agreement not to ob-
ject to the plaintiff’s continued release on bail); Podlucky v.
United States, No. 2021-2226, 2022 WL 1791065, at *2
(Fed. Cir. June 2, 2022). As this court explained in Sand-
ers, “enforcing and policing the criminal law is assigned to
the courts of general jurisdiction and not” the Claims
Court. 252 F.3d at 1335.
The Sanders line of cases is a specific application of the
general principle that “Tucker Act jurisdiction may . . . be
lacking if relief for breach of contract could be entirely non-
monetary.” Higbie v. United States, 778 F.3d 990, 993 (Fed.
Cir. 2015). While the treaties at issue in this case can be
regarded as contractual in nature, they are contracts in
which any remedies for breach would be non-monetary in
nature and would not be the form of remedy that the
Claims Court is authorized to grant.6
6 An exception to that principle is found in 28 U.S.C.
§§ 2513(a)(1) and 1495, which respectively create a cause
of action for money damages against the United States for
“unjust conviction and wrongful imprisonment” under
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SCOTT v. US 11
Because Mr. Scott’s claim does not fall within the reach
of the Tucker Act, we agree with the Claims Court that it
lacked jurisdiction to address his demand for damages
from the United States attributable to his prosecution and
incarceration by the State of Oklahoma.
AFFIRMED
COSTS
No costs.
certain circumstances and confer jurisdiction on the Court
of Federal Claims “for damages by any person unjustly con-
victed of an offense against the United States and impris-
oned.” That statute does not apply to state prisoners such
as Mr. Scott.
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