Harvest Institute Freedman Federation, William Warrior v. United States

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

HARVEST INSTITUTE FREEDMAN FEDERATION,
WILLIAM WARRIOR AND BLACK INDIANS UNITED
LEGAL DEFENSE FUND,
Plaintiffs-Appellants,

v.
UNITED STATES,
Defendant-Appellee.

2010-5104

Appeal from the United States Court of Federal
Claims in case no. 06-CV-907, Senior Judge Robert H.
Hodges, Jr.

## ON MOTION

Before GAJARSA, MAYER, AND PROST, Circuit Judges.
GAJARSA, Circuit Judge.

ORDER

The United States moves to summarily affirm the
United States Court of Federal Claims' March 26, 2010

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order denying the appellants' motion for reconsideration
pursuant to 60(b) of the court's Rules. Harvest Institute
Freedman Federation, et al. (Harvest) oppose.

Harvest's initial complaint sought declaratory and
monetary relief for an alleged breach of various post-Civil
War treaties. The treaties at issue were between the
United States and five slave-owning tribes for the purpose
of securing freedmen equal tribe membership. Under
those treaties, if former slaves were made equal members
of the tribe within two years of the treaty's signing, the
United States would apportion money from a trust to the
tribe. If the tribe did not adopt the freedmen within two
years, the United States would hold the money in trust
for freedmen that the United States moved involuntarily.
Two years after their signing, no tribe actually acted in
accordance with the treaty, and the United States did not
remove any freedmen. It was not until the negotiation of
various land allotment agreements between 1898 and
1902 with these tribes that freedman received an allot-
ment of land.

On January 15, 2008, the Court of Federal Claims
dismissed Harvest's complaint. The court held that the
complaint had failed to state a claim because the treaties
asserted did not vest the freedmen with property rights or
impose any obligation on the United States. The court
also held that the statute-of-limitations, 28 U.S.C. § 2501,
would otherwise have barred Harvest's claims because
any alleged claim regarding allocation of land or omission
thereof would have started to accrue no later than 1902.
This court affirmed the judgment without opinion on May
14, 2009.

Harvest subsequently filed a motion for reconsidera-
tion at the Court of Federal Claims, arguing that the
United States Court of Appeals for the District of Colum-

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bia's decision in Cobell v. Salazar, 573 F.3d 808 (D.C. Cir,
2009) created an intervening clarification in controlling
law. On March 26, 2010, the Court of Federal Claims
denied the motion, finding no intervening change in the
law, and Cobell inapplicable to Harvest's complaint.
Harvest filed an appeal seeking review by this court.

The United States urges this court to summarily dis-
pose of this appeal on the grounds that Cobell is indis-
putably not an intervening change of controlling law.
Summary affirmance "is appropriate, inter alia, when the
position of one party is so clearly correct as a matter of
law that no substantial question regarding the outcome of
the appeal exists." Joshua v. United States, 17 F.3d 378,
380 (Fed. Cir. 1994). We agree with the United States
that summary affirmance is warranted here.

Harvest appears to cite the Cobell case as new prece-
dent that alters Federal Claims' judgment by establishing
that the United States had breached fiduciary obligations
to the freedmen and that the statute of limitations does
not run against those claims. We agree with the United
States that the case in question fails to support any of
these propositions. The Cobell class-action suit resulted
in multiple rounds of litigation between the United States
District Court for the District of Columbia and the Dis-
trict of Columbia Circuit. In a decision that predates the
Federal Claim's decision dismissing Harvest's complaint,
the Secretary of the Interior was held to have breached
fiduciary obligations toward beneficiaries of Individual
Indian Money Trust accounts by failing to provide an
adequate historical accounting of proceeds from land
transactions. See generally Cobell v. Norton, 240 F.3d
1081 (D.C. Cir. 2001). The 2009 Cobell decision Harvest
relies on deals solely with issues regarding the proper
scope and methodology for that accounting. Because the
Cobell decision does not involve a money-mandating

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claim, the treaties raised by Harvest in its initial com-
plaint, or the statute of limitations for bringing a claim in
the Court of Federal Claims, the determination that
Cobell was not an intervening change of law is so clearly
correct that summary affirmance is appropriate.

Accordingly,

IT IS ORDERED THAT:

(1) The motion to summarily affirm is granted.

(2) Each side shall bear its own costs.

FOR THE COURT

MAY 2 7 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Percy Squire, Esq.
Elizabeth Ann Peterson, Esq.
s20

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAY 2 7 2011

JAN HORBALY
CLERK