Tony Lamonte Greene, Billie Wayne Byrd v. United States

United States Court of Appeals
for the Federal Circuit
______________________
TONY LAMONTE GREENE, BILLIE WAYNE BYRD,
Plaintiffs-Appellants
ANTHONY MICHAEL JACKSON, WILLIAM
GEORGE COODEY, II, GARRY WAYNE WILSON,
LARRY DOAK, ROBERT LEE SMALLEN, CHAVIS
LENARD DAY, DANIEL CODY WATKINS,
Plaintiffs
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1898, 2023-1954
______________________
Appeals from the United States Court of Federal
Claims in Nos. 1:22-cv-01064-KCD, 1:22-cv-01185-KCD,
Judge Kathryn C. Davis.
______________________
Decided: April 29, 2024
______________________
T ONY L AMONTE G REENE, Helena, OK, pro se.
BILLIE WAYNE BYRD, Helena, OK, pro se.
RAFIQUE O MAR ANDERSON, Commercial Litigation
Branch, Civil Division, United States Department of
Case: 23-1898 Document: 28 Page: 1 Filed: 04/29/2024

-- 1 of 10 --

GREENE v. US 2
Justice, Washington, DC, for defendant-appellee. Also rep-
resented by BRIAN M. BOYNTON, P ATRICIA M. MCC ARTHY ,
F RANKLIN E. WHITE, J R.
______________________
Before D YK, BRYSON, and STOLL , Circuit Judges.
BRYSON, Circuit Judge.
The appellants, Tony Lamonte Greene and Billie
Wayne Byrd, are incarcerated in a state prison in Okla-
homa. They and their seven co-plaintiffs filed actions in
the Court of Federal Claims (“the Claims Court”) contend-
ing that their imprisonment is unlawful and seeking relief
in the form of monetary compensation from the United
States. The Claims Court dismissed the plaintiffs’ actions
for lack of jurisdiction, and the two appellants brought this
appeal. We affirm.
I
The plaintiffs allege that they are members of the
Cherokee Nation and that under certain treaties between
the Cherokee Nation and the United States, the State of
Oklahoma lacked jurisdiction to prosecute and incarcerate
them. As a remedy, they each seek $100 per day for unau-
thorized detention and more than $1,000,000 in compensa-
tory and punitive damages.
The appellants base their lawsuits on the Supreme
Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452
(2020). In McGirt, the Court held that Oklahoma state
courts lack jurisdiction over Indians who commit crimes in
areas designated as “Indian Country.” For that reason, the
appellants contend, their convictions are invalid. They
each assert that the federal government is liable for the in-
juries they have suffered and should be required to com-
pensate them through monetary awards.
As the basis for their theory that the federal govern-
ment is liable for their unlawful incarcerations, the
Case: 23-1898 Document: 28 Page: 2 Filed: 04/29/2024

-- 2 of 10 --

GREENE v. US 3
appellants’ complaints relied on certain provisions of two
nineteenth century treaties between the United States and
the Cherokee Nation: article 5 of the Treaty with the Cher-
okees, 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). Article 5 of the 1835 treaty provides
that the Cherokee Nation shall have the right to enact laws
for the protection of its people. 7 Stat. at 481. Articles 26
and 27 of the 1866 treaty provide that the United States
shall remove citizens who unlawfully settle on Cherokee
land. 14 Stat. at 806.
In their response to the government’s motion to dismiss
in the Claims Court, the appellants added references to ar-
ticle 3 of the 1835 treaty and article 13 of the 1866 treaty.
Article 3 of the 1835 treaty secures, for the United States,
the right to use Cherokee natural resources so long as in-
dividuals are compensated for any losses. 7 Stat. at 480–
81. Article 13 of the 1866 treaty provides that Cherokee
tribunals shall retain jurisdiction over cases arising within
Cherokee territory. 14 Stat. at 803.
The Claims Court dismissed the appellants’ com-
plaints. It held that it lacked jurisdiction over their claims
because the appellants failed to show that the treaties on
which they relied gave rise to a personal right to monetary
relief on their part in the event of a breach of the covenants
relating to the exercise of civil and criminal jurisdiction
within the Cherokee Nation.
The court explained that claims based on treaties with
Indian nations, unlike treaties with foreign nations, can
fall within the jurisdiction of the Claims Court because
they are treated as “a species of contract.” Tsosie v. United
Case: 23-1898 Document: 28 Page: 3 Filed: 04/29/2024

-- 3 of 10 --

GREENE v. US 4
States, 825 F.2d 393, 401 (Fed. Cir. 1987).1 While a breach
of contract claim against the United States can generally
be bought in the Court of Federal Claims under the Tucker
Act, 28 U.S.C. § 1491(a)(1), that principle does not apply
when the contract is not of a type that normally involves
purely monetary relief. In that setting, the court held, the
plaintiff must demonstrate that the contract contains pro-
visions that can reasonably be inferred to mandate com-
pensation by the United States. App. 23 (citing Holmes v.
United States, 657 F.3d 1303, 1315 (Fed. Cir. 2011)).
The Claims Court then examined the treaties on which
the appellants relied and concluded that, with respect to
the provisions dealing with the scope of civil and criminal
jurisdiction, the treaties were not money-mandating. App.
27–29. The court observed that none of the treaty provi-
sions on which the appellants relied “impose[d] any specific
fiduciary or other duties on the United States,” nor did they
“contain language that contemplates an award of money
damages for the breach of any such duties.” App. 29. With
respect to the portion of the 1835 treaty providing for the
payment of “just compensation” by the United States, the
court observed that the provision relied on by the appel-
lants applied only when the United States is exercising its
right to make and establish posts and roads in Cherokee
country. App. 30.
From the Claims Court’s dismissal order, the appel-
lants took this appeal.2
1 Claims arising under treaties with foreign nations
are expressly excluded from the jurisdiction of the Claims
Court. See 28 U.S.C. § 1502.
2 In the aftermath of the McGirt decision, the Claims
Court has addressed several other claims from Oklahoma
state inmates similar to the appellants’ and has resolved
them all consistently with the court’s ruling in this case.
Case: 23-1898 Document: 28 Page: 4 Filed: 04/29/2024

-- 4 of 10 --

GREENE v. US 5
II
The Claims Court is a court of limited jurisdiction. The
jurisdictional statute that applies to this case is the Tucker
Act, which grants the Claims Court jurisdiction over claims
against the United States “founded either upon the Consti-
tution, 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 dam-
ages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1).
As the Claims Court observed, for the court to have juris-
diction under the Tucker Act, the plaintiff must be able to
point to a “money-mandating” statute or other provision
that requires the federal government to compensate the
plaintiff for an injury other than one sounding in tort. See
United States v. Navajo Nation, 556 US. 287, 290 (2009)
(To establish jurisdiction, a plaintiff must identify a sepa-
rate source of law that “can fairly be interpreted as man-
dating compensation by the Federal Government” (quoting
United States v. Testan, 424 U.S. 392, 400 (1976))).
Referring to the 1835 and 1866 treaties with the Cher-
okee tribes, the appellants argue that the treaties’ provi-
sions can fairly be interpreted as “money-mandating.”
Appellants’ Br. 2 (incorporating App. 4–5 by reference). In
effect, the appellants contend that the treaty language on
which they rely constitutes a promise by the United States
that persons in their position would not be subject to state
prosecution, and that in the event of a breach of that
See Scott v. United States, No. 22-1603C, 2023 WL 3455725
(Ct. Fed. Cl. May 15, 2023); Cramer v. United States, No.
23-37C, 2023 WL 3072541 (Ct. Fed. Cl. Apr. 25, 2023); Wil-
liamson v. United States, No. 23-263C, 2023 WL 3032952
(Ct. Fed. Cl. Apr. 20, 2023); Moore v. United States, 163
Fed. Cl. 591 (2022).
Case: 23-1898 Document: 28 Page: 5 Filed: 04/29/2024

-- 5 of 10 --

GREENE v. US 6
promise, the federal government would be required to com-
pensate the affected individuals for the resulting injury.
That theory is unpersuasive. The Claims Court can as-
sert jurisdiction over claims grounded in treaties between
the United States and Indian nations, which are regarded
as “essentially a contract between two sovereign nations.”
Washington v. Wash. State Com. Passenger Fishing Vessel
Ass’n, 443 U.S. 658, 675 (1979); Tsosie, 825 F.2d at 401 (a
treaty between the United States and Indian nations is “a
species of contract”). 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 contract “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 the appellants rely
upon are not money-mandating. In their brief, appellants
cite article 5 of the 1835 treaty and articles 26 and 27 of the
1866 treaty. 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.
Case: 23-1898 Document: 28 Page: 6 Filed: 04/29/2024

-- 6 of 10 --

GREENE v. US 7
7 Stat. at 481. Articles 26 and 27 of the 1866 treaty provide
that the United States shall protect the people of the Cher-
okee 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, re-
moved from the nation.” 14 Stat. at 806. Neither provision
contemplates a monetary remedy should it be breached.
The two other treaty provisions that appellants cited in
their complaints likewise do not provide for money dam-
ages in the event of breach. Article 3 of the 1835 treaty
provides that the United States shall always have “the
right to make and establish roads and forts and the free
use of as much land, timber, fuel and materials of all kinds
for the construction and support of the same as may be nec-
essary; provided that if the private rights of individuals are
interfered with, a just compensation therefor shall be
made.” 7 Stat. at 480–81. While that provision is money-
mandating, it applies only to the payment of just compen-
sation for private property taken from individuals.
Article 13 of the 1866 treaty provides as follows:
The Cherokees also agree that a court or courts
may be established by the United States in said ter-
ritory, with such jurisdiction and organized in such
manner as may be prescribed by law: Provided,
that the judicial tribunals of the nation shall be al-
lowed to retain exclusive jurisdiction in all civil and
criminal cases arising within their country in
which members of the nation, by nativity or adop-
tion, shall be the only parties, or where the cause
of action shall arise in the Cherokee nation, except
as otherwise provided in this treaty.
Case: 23-1898 Document: 28 Page: 7 Filed: 04/29/2024

-- 7 of 10 --

GREENE v. US 8
14 Stat. at 803. That provision does not create a right to
money damages for an individual asserting that his prose-
cution violates that provision of the treaty.3
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 the appellants rely cannot be
said to be money-mandating. The cited portions of the two
treaties with the Cherokees guarantee the right of self-gov-
ernment to the Cherokee Nation. 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
3 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 provi-
sion, 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 people subject to the authority of the United
States, shall commit any wrong upon the person or prop-
erty of the Indians, the United States will . . . reimburse
the injured persons for the loss sustained.” Navajo Treaty
of June 1, 1868, 15 Stat. 667–68.
Case: 23-1898 Document: 28 Page: 8 Filed: 04/29/2024

-- 8 of 10 --

GREENE v. US 9
jurisdiction” 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).
The appellants have not identified any legal obligation
owed by the United States to persons over whom Oklahoma
has improperly exercised criminal jurisdiction. Their in-
carceration is the result of state prosecution, not the prod-
uct of any action by the federal government. Their theory
is that the United States had an obligation to protect them
from state law. Not having done so, they argue, the federal
government must remedy the illegal detention to which
they and others similarly situated are subject, and to do so
by the payment of money damages.
Nothing in the treaties on which the appellants rely
suggests that the federal government agreed to be held li-
able for damages in the event that a state sought to exer-
cise criminal jurisdiction within Indian territories. See
Arizona v. Navajo Nation, 599 U.S. 555, 564 (2023) (hold-
ing that a treaty which “set apart a reservation for the use
and occupation of the Navajo tribe” did not impose a “duty
on the United States to take affirmative steps to secure wa-
ter for the tribe”). In particular, there is nothing in the
treaties to indicate that, if a state enacted legislation gov-
erning 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.
Case: 23-1898 Document: 28 Page: 9 Filed: 04/29/2024

-- 9 of 10 --

GREENE v. US 10
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.4
Because the appellants’ claim does not fall within the
reach of the Tucker Act, we agree with the Claims Court
that it lacked jurisdiction to address their demand for dam-
ages from the United States attributable to their prosecu-
tion and incarceration by the State of Oklahoma.
AFFIRMED
COSTS
No costs.
4 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 cer-
tain 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. Greene and Mr. Byrd.
Case: 23-1898 Document: 28 Page: 10 Filed: 04/29/2024

-- 10 of 10 --