Winnemucca Indian Colony v. United States

United States Court of Appeals
for the Federal Circuit
______________________
WINNEMUCCA INDIAN COLONY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1108
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-01618-KCD, Judge Kathryn C. Davis.
______________________
Decided: October 16, 2025
______________________
N ORBERTO J. CISNEROS , Maddox & Cisneros, LLP, Las
Vegas, NV, argued for plaintiff-appellant. Also repre-
sented by BARBARA MCD ONALD; T REVA J. HEARNE , Reno
Law Group, Reno, NV.
BENJAMIN W. RICHMOND, Environment and Natural
Resources Division, United States Department of Justice,
Boston, MA, argued for defendant-appellee. Also repre-
sented by AMBER BETH BLAHA, T ODD K IM .
______________________
Before L OURIE, D YK, and CUNNINGHAM , Circuit Judges.
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WINNEMUCCA INDIAN COLONY v. US 2
D YK, Circuit Judge.
The Winnemucca Indian Colony (“Colony”) brought
suit against the United States in the Court of Federal
Claims (“Claims Court”) asserting claims based on alleged
statutory violations and breaches of trust duties relating to
tribal land and water rights. The Claims Court dismissed
for lack of jurisdiction. Winnemucca Indian Colony
v. United States, 167 Fed. Cl. 396, 401 (2023) (“Decision”).
The Claims Court determined that some claims were
barred because they failed to identify a money-mandating
source of law, some were time-barred by the statute of lim-
itations, some were barred by 28 U.S.C. § 1500 due to an
earlier filed action in district court, and some otherwise re-
quested equitable relief outside of the Claims Court’s juris-
diction. We affirm.
BACKGROUND
I. Factual Background
The Colony is a federally recognized Indian Tribe lo-
cated in northern Nevada. In 1917, President Woodrow
Wilson set aside 320 acres near Winnemucca, Nevada for
certain Shoshone Indians living in the area, and in 1928,
Congress set aside another 20 acres. Those lands are held
in trust for the Colony. The Bureau of Indian Affairs
(“BIA”) has authority to act on behalf of the United States
with respect to certain trust responsibilities to the Colony.
Members of the Colony elect a Council to represent the Col-
ony’s interests in its interactions with the BIA. Colony
membership is limited to persons who are at least one-
quarter Paiute or Shoshone by blood quantum, are de-
scended from a person listed in a 1916 tribal census, and
have not taken money or land as a result of membership in
another tribe.
On February 22, 2000, then-Chairman of the Council
Glenn Wasson was stabbed to death. The surviving Coun-
cil members split into two factions: the “Wasson group” and
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WINNEMUCCA INDIAN COLONY v. US 3
the “Bills/Ayer group.” Both factions claimed they were the
proper tribal government and entitled to control of the Col-
ony’s assets. The Wasson group claimed the leader of the
Bills/Ayer group, William Bills, did not qualify for tribal
membership because of his lineage and could not serve on
the Council. The factions litigated the leadership dispute
in tribal courts. In 2002, a specially appointed panel of ap-
pellate tribal court judges ruled in favor of the Wasson
group.
For the following decade, the BIA refused to recognize
either faction as the Colony’s government, despite repeated
requests to do so. At one point, the Interior Board of Indian
Appeals, which hears appeals of BIA decisions, ordered the
BIA to recognize a government. The BIA still refused to
recognize a government.
II. The Nevada Action
Subsequently, in August 2011, the Wasson group filed
suit in the U.S. District Court for the District of Nevada,
Winnemucca Indian Colony v. United States, No. 3:11-cv-
622 (“the Nevada action”), seeking injunctive and declara-
tory relief recognizing the Wasson group as the rightful
representatives of the Colony.
In the Nevada action, the Wasson group alleged that
the BIA irreparably harmed the Colony by failing to recog-
nize the Wasson group’s leader as the rightful leader of the
Council and by arbitrarily recognizing William Bills as part
of the Council. The Colony requested a “preliminary and
permanent injunction against the BIA from appointing as
the government of the . . . Colony any person who does not
meet” the council membership requirements, App’x 62,1
and sought a declaratory judgment that a decision failing
1 Citations to “App’x” refer to the appendix filed by
the Colony at Dkt. No. 13.
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WINNEMUCCA INDIAN COLONY v. US 4
to recognize the Wasson group as the government of the
Colony was error.
The allegations in the Nevada action were not limited
to the tribal leadership dispute. The Colony also alleged
unauthorized occupation of its land, including: that the
Colony, including its rightful members, “ha[d] been effec-
tively excluded from its own lands by the BIA”; that the
BIA failed to require other persons to leave the 20-acre par-
cel “even though none of those persons ha[d] authority to
be on the [Colony’s] lands”; and that “[t]he lands of the . . .
Colony continue[d] to be occupied by non[-]members of [the
Colony], all allowed and supported by the BIA.” App’x 54
¶¶ 25–27. The Colony sought a declaratory judgment that:
The failure of the BIA . . . [in] allowing any
non[-]members to occupy a possessory interest in
the lands of the Winnemucca Indian Colony to the
exclusion of the Winnemucca Indian Colony mem-
bers and government without proper federal ap-
proval and consent, violates the Non Intercourse
Act, [25 U.S.C. § 177,] is an abuse of discretion, and
is a breach of the trust responsibility owed by the
United States of America to a federally recognized
Tribe[.]
App’x 63.
The Bills/Ayers group intervened in the Nevada action,
arguing that they should be recognized as the legitimate
Council of the Colony and that they had a right to live and
conduct business on Colony lands. Ayer Grp.’s Mot. to In-
tervene at 2–3, Winnemucca Indian Colony v. United
States, No. 3:11-cv-622, Dkt. No. 18 (D. Nev. Sept. 15,
2011).
Following various rulings against the BIA, in 2012, the
district court ordered the BIA to “recognize Thomas Was-
son[, then the leader of the Wasson group,] as the repre-
sentative of the Council until the conclusion of [the
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WINNEMUCCA INDIAN COLONY v. US 5
Nevada] action” and ordered that Mr. Wasson institute a
process for determining membership. S. App’x 431–32.2 In
October 2014, the Colony elected Council members. The
district court ordered the BIA to recognize the election re-
sults, which favored the Wasson group. S. App’x 440. The
BIA did so on December 13, 2014. The Bills/Ayer group
challenged the election results in tribal courts, which dis-
missed the action for lack of jurisdiction. On October 1,
2018, the district court “extend[ed] comity” to the tribal
court rulings. Winnemucca Indian Colony v. United States,
No. 3:11-cv-622, 2018 WL 4714755, at *1 (D. Nev. Oct. 1,
2018). The Bills/Ayer group then appealed to the Ninth
Circuit. The United States did not participate in the ap-
peal.
On June 15, 2020, the Ninth Circuit held that the Ne-
vada district court lacked subject matter jurisdiction, va-
cated the district court’s orders, and remanded with
instructions to dismiss. Winnemucca Indian Colony
v. United States ex rel. Dep’t of the Interior, 819 F. App’x
480, 483 (9th Cir. 2020). The Ninth Circuit issued the
mandate on December 23, 2020. Following the vacatur of
the district court’s orders, the BIA later “continue[d] to rec-
ognize the results of [the Colony’s elections]”—which have
favored the Wasson group—“unless and until a tribal rem-
edy require[d] [it] to change course.” App’x 234 (letter of
the Acting Regional Director of the BIA executed Jan. 11,
2022). The Nevada suit did not resolve any of the trespass
claims.
III. The Claims Court Action
On November 18, 2020, before the Ninth Circuit issued
the mandate in the Nevada action, the Colony filed suit in
2 Citations to “S. App’x” refer to the supplemental
appendix filed by the government with its response brief at
Dkt. No. 18.
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WINNEMUCCA INDIAN COLONY v. US 6
the present case (“the Claims Court action”). The case
comes to us on facts that have been alleged but not adjudi-
cated. “At this stage in the proceedings, we accept the [Col-
ony’s] well-pleaded factual allegations as true.” Bd. of
Supervisors of Issaquena Cnty. v. United States, 84 F.4th
1359, 1362 (Fed. Cir. 2023) (quoting A & D Auto Sales, Inc.
v. United States, 748 F.3d 1142, 1147 (Fed. Cir. 2014)). In
the operative complaint, the Colony included a history of
the leadership dispute, including the various tribal court
actions and the Nevada action. The Colony enumerated
eleven claims for relief, six of which (Counts One, Two,
Three, Five, Six, and Eight) are at issue in this appeal.3
Counts One and Two alleged breaches of duties relat-
ing to various unauthorized encroachments on tribal land
relating to at least one road (“Highland Road”), an electri-
cal substation, and power lines. Count Three alleged a
“[b]reach of [t]rust,” App’x 96, relating to the Colony’s wa-
ter rights due to a nearby development’s diversion of a
stream and its removal of water “from wells from which
water was able to reach the Colony’s lands,” App’x 97
¶ 168. Count Five alleged breaches of trust and violations
of the Indian Non-Intercourse Act, 25 U.S.C. § 177. With
respect to these Counts, the Colony alleged that the gov-
ernment failed to police the 320-acre parcel of land to pre-
vent unauthorized entries and improperly conveyed
interests in the land to others. Count Six alleged other
breaches of fiduciary duties. The Colony alleged that the
government failed to survey or protect from encroachments
the 20-acre portion of the Colony’s lands. The Colony al-
leged that “more than one structure” was placed on the
land by a nearby subdivision, including “a garage, shed,
part of a trailer park, road, and driveway.” App’x 100
3 The Colony has not appealed the dismissals of
Counts Four, Seven, Nine, Ten, and Eleven.
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WINNEMUCCA INDIAN COLONY v. US 7
¶ 196. In Count Eight, the Colony sought equitable relief,
demanding documents and an accounting.
The government moved to dismiss. The Claims Court
dismissed all of the claims, relying on various overlapping
theories. First, the Claims Court determined that
Count Three and part of Count Six4 failed to state a claim
upon which relief can be granted because those claims did
not identify violations of a money-mandating source of law
as required to bring a suit against the United States for
damages under the Tucker Act, 28 U.S.C. § 1491, and the
Indian Tucker Act, 28 U.S.C. § 1505. Second, the Claims
Court found that Counts One, Two,5 Three, Five, and Six
were time-barred by the statute of limitations, 28 U.S.C.
§ 2501. Third, the Claims Court determined it lacked ju-
risdiction over all of the Counts at issue on appeal under
28 U.S.C. § 1500, because the claims were substantially
the same as the claims in the then-pending Nevada action.
See United States v. Tohono O’Odham Nation, 563 U.S.
307, 311 (2011) (explaining that section 1500 bars the
Claims Court from having jurisdiction over a claim “if the
plaintiff has another suit for or in respect to that claim
pending against the United States or its agents”). Fourth,
4 The Claims Court “conclude[d] that Count Six
should be dismissed in part for failure to state a claim upon
which relief can be granted to the extent the claim rests on
allegations other than those related to physical encroach-
ments onto Colony lands.” Decision at 414.
5 Count Two asserts a claim based on “a road along-
side the lands of the Winnemucca Indian Colony,” but does
not explicitly name the road. App’x 95 ¶ 158. The Claims
Court’s statute-of-limitations determination as to
Count Two applies to “Highland Road,” a road named else-
where in the operative complaint. Decision at 415 n.10; see
App’x 94–95 ¶ 152. There is no contention on appeal that
the road identified in Count Two is not Highland Road.
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WINNEMUCCA INDIAN COLONY v. US 8
the Claims Court determined that Count Eight’s request
for equitable relief was outside of the court’s jurisdiction,
because it depended on jurisdiction over the other Counts.
The Claims Court entered judgment on August 28,
2023. The Colony appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
D ISCUSSION
We review de novo the Claims Court’s dismissal of a
complaint for lack of jurisdiction. Fletcher v. United States,
26 F.4th 1314, 1321 (Fed. Cir. 2022). The plaintiff bears
the burden of establishing jurisdiction. Id. In deciding a
motion to dismiss for lack of subject matter jurisdiction, the
court accepts as true all uncontroverted factual allegations
in the complaint, construing them in the light most favor-
able to the plaintiff. Id.
The Colony challenges each of the Claims Court’s rea-
sons for dismissing the Counts at issue on appeal. We start
with the Claims Court’s dismissal for lack of a money-man-
dating fiduciary duty, then turn to the time bar, then the
dismissal pursuant to section 1500, and finally the issue of
equitable relief.
I. Money Mandate
The Claims Court dismissed Count Three and part of
Count Six for failing to identify violations of money-man-
dating fiduciary duties. We do not disturb the Claims
Court’s dismissal of part of Count Six because the Colony
did not challenge that portion of the Claims Court’s deci-
sion in its opening brief.6 We affirm the Claims Court’s
dismissal of Count Three.
6 The Claims Court dismissed portions of Count Six,
including the Colony’s contentions “regarding surveying,
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WINNEMUCCA INDIAN COLONY v. US 9
While the United States has a “‘general trust relation-
ship . . . [with] the Indian people,’” for the Claims Court to
have jurisdiction over a claim for breach of trust or breach
of fiduciary duty, a plaintiff “must identify a substantive
source of law that establishes specific fiduciary or other du-
ties.” United States v. Navajo Nation, 537 U.S. 488, 506
(2003) (“Navajo I”) (quoting United States v. Mitchell,
463 U.S. 206, 225 (1983)). The “substantive source of law”
must be one that “‘can fairly be interpreted as mandating
compensation for damages sustained as a result of a breach
of [specific fiduciary or other] duties,’” and, to establish ju-
risdiction, the plaintiff must allege that the “[g]overnment
has failed faithfully to perform those duties.” Id. (quoting
Mitchell, 463 U.S. at 219).
In Count Three, titled “Breach of Trust – Water,” the
Colony alleged that the government allowed a third-party
development company “to divert a stream and remove wa-
ter from wells from which water was able to reach the Col-
ony’s lands” and hold that water in upstream wells and
holding tanks, such that “there is no available water or wa-
ter rights located on the 320 acres” of the Colony’s land.
App’x 96–97. On appeal, the Colony argues dismissal of
Count Three was improper because the Winters doctrine
recognition of a tribal government, and the smoke-shop op-
eration,” for failure to fit within the scope of a money-man-
dating source of law. Decision at 414. In its opening brief,
the Colony only challenged the Claims Court’s “finding
that a money mandate did not support Plaintiff-Appellant’s
third claim,” Appellant’s Br. 8 (emphasis added), and did
not challenge the dismissal of this portion of Count Six for
failure to identify a money-mandating source of law. Argu-
ments not raised by an appellant in its opening brief on ap-
peal are forfeited. McIntosh v. Dep’t of Def., 53 F.4th 630,
641 (Fed. Cir. 2022).
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and 25 C.F.R. § 152.22 establish the required fiduciary
duty and money mandate. We disagree.
Under the Winters doctrine, the “Federal Government’s
reservation of land for an Indian tribe . . . implicitly re-
serves the right to use needed water from various sources.”
Arizona v. Navajo Nation, 599 U.S. 555, 561 (2023) (citing
Winters v. United States, 207 U.S. 564, 576–77 (1908)).
The Colony appears to argue that the government must
take affirmative actions on the Colony’s behalf to protect
its Winters water rights from third-party actions taking
place outside of the Colony’s land. But the Winters doctrine
is a common law doctrine that does not, on its own, create
a trust obligation.
The Supreme Court addressed this issue in Arizona
v. Navajo Nation, 599 U.S. 555 (2023). There, the Navajo
Nation filed suit seeking to compel the United States gov-
ernment to take affirmative steps to secure needed water
for the tribe. 599 U.S. at 558–59. The Court held that the
1868 treaty establishing the Navajo Reservation reserved
necessary water to accomplish the purpose of the Reserva-
tion but did not require the government to take affirmative
steps to secure water for the tribe. Id. at 566. The Court
held it would not “‘apply common-law trust principles’ to
infer duties not found in the text of a treaty, statute, or
regulation.” Id. (quoting United States v. Jicarilla Apache
Nation, 564 U.S. 162, 178 (2011)); see also id. at 564 n.1.
Thus, “[t]o maintain [a breach-of-trust] claim here, the
[Colony] must establish, among other things, that the text
of a treaty, statute, or regulation imposed certain duties on
the United States.” Id. at 563–64.
The Colony primarily points to 25 C.F.R. § 152.22 as
providing the rights-creating duty found necessary in Nav-
ajo I, but that regulation does not mention water rights or
establish any governmental duty relevant to the diversion
of tribal water. The regulation states that “land owned by
an Indian tribe may only be conveyed where specific
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WINNEMUCCA INDIAN COLONY v. US 11
statutory authority exists and then only with the approval
of the Secretary,” unless Congress provides otherwise.
25 C.F.R. § 152.22(b). Such language does not establish a
money-mandating duty relevant to Count Three. The Col-
ony has not identified any other “treaty, statute, or regula-
tion,” Arizona, 599 U.S. at 563–64, that establishes an
obligation for the United States to stop third-party actions
relating to water rights.
We addressed a similar situation in Ute Indian Tribe
of the Uintah & Ouray Indian Reservation v. United States,
99 F.4th 1353 (Fed. Cir. 2024). There, the Tribe alleged
that the government had “duties in trust to secure new wa-
ter for the Tribe, including by constructing new water stor-
age infrastructure.” Id. at 1364–65. The Tribe pointed to
the Winters doctrine and federal statutes as imposing those
duties. Id. at 1365–66. We held that the statutes did not
impose trust duties to secure water for the tribe because
the general instruction of one of the statutes to “otherwise
protect the rights and interests of the Indians” was not spe-
cific enough to create trust duties. Id. at 1366, 1371. Here,
too, we see no obligation for the government to take action
with respect to the alleged diversion of tribal water.
Because the Colony fails to identify the source of an af-
firmative duty for the government to intercede, we affirm
the Claims Court’s dismissal of Count Three for lack of ju-
risdiction.
II. Statute of Limitations
We next turn to the Claims Court’s dismissal of
Counts One, Two, Five, and the remaining portion of Six as
time-barred under 28 U.S.C. § 2501. The statute of limita-
tions in section 2501 is jurisdictional and requires that a
claim be filed “within six years after such claim first ac-
crues.” 28 U.S.C. § 2501; Chemehuevi Indian Tribe
v. United States, 104 F.4th 1314, 1321 (Fed. Cir. 2024).
The Colony filed suit on November 18, 2020, so for its
claims to be timely, they must have accrued on or after
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WINNEMUCCA INDIAN COLONY v. US 12
November 18, 2014 (the “critical date”). For the purposes
of section 2501, a cause of action against the government
accrues “when all the events which fix the government’s al-
leged liability have occurred and the plaintiff was or should
have been aware of their existence.” Hopland Band of
Pomo Indians v. United States, 855 F.2d 1573, 1577
(Fed. Cir. 1988).
As further detailed below, Counts One, Two, Five, and
the portion of Six at issue on appeal alleged various physi-
cal encroachments on the Colony’s land, trespasses and
continued use of those encroachments, and that the gov-
ernment breached its trust duties to the Colony by failing
to act to prevent those encroachments and trespasses.
Count One alleged that the BIA allowed the construction
of Highland Road across Colony land “without the approval
of the Colony and without compensation to the Colony” and
“without obtaining proper approvals or consent for the
right-of-way from the Tribe,” and that the government has
continued to “allow[] the City of Winnemucca to continue
to use and maintain” the road. App’x 94–95 ¶¶ 152–54.
The Colony also alleged that “the City of Winnemucca ap-
proved a subdivision for ingress and egress from a back
parking lot over Colony lands without any approvals, con-
sent or compensation to the Colony.” App’x 95 ¶ 154.
Count Two alleged that the government allowed an energy
company to “construct an electrical substation and place
overhead power lines upon Colony land” and “grade a road
alongside the lands of the . . . Colony without authorization
or notice to the Colony which road . . . caused erosion and
disruption to the lands of the Colony,” and that the govern-
ment allowed the energy company to “continue to use the
power lines . . . without authorization . . . .” App’x 95–96
¶¶ 158–59. Count Five alleged breaches of trust and viola-
tions of the Indian Non-Intercourse Act related to the en-
croachments—namely, that the Colony “ha[d] not
consented to the conveyance of any property interest in the
Colony lands”; that the government failed to “protect[] . . .
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WINNEMUCCA INDIAN COLONY v. US 13
the lands from encroachment” and failed to “properly po-
lice[] the lands”; and that, as a result, the Colony was enti-
tled to damages for the “failure to receive funds for the
rights of way being utilized” for the encroachments detailed
in Counts One and Two (in addition to other damages).
App’x 99–100 ¶¶ 188–91. The portion of Count Six at issue
on appeal alleged breaches of fiduciary duties—namely,
that the government failed to protect the 20-acre parcel
from encroachments including “a garage, shed, part of a
trailer park, road, and driveway”; that the Colony was en-
titled to damages for “loss of energy and use” resulting from
those encroachments; and that the government “fail[ed] to
police and protect the lands from encroachment and tres-
pass.” App’x 100–101 ¶¶ 196–99.
The Colony argues its claims were timely because
(1) the claims did not accrue until the United States repu-
diated its trust relationship with the Colony, which oc-
curred in 2015 at earliest; (2) the claims did not accrue
until the United States provides an accounting; (3) the
claims did not accrue until the tribe was recognized by the
BIA on December 13, 2014; and (4) the continuing claims
doctrine applies.
The Colony’s first three arguments are unpersuasive.
First, the government was not required to provide a formal
statement repudiating the trust for the Colony’s claims to
accrue in this case. As we explained in San Carlos Apache
Tribe v. United States, an explicit repudiation is not re-
quired for a claim of breach of fiduciary duty to accrue
where the circumstances are “objectively sufficient to no-
tify the Tribe of the alleged breach.” 639 F.3d 1346, 1355
(Fed. Cir. 2011). That is the case here. The Colony fails to
explain why the physical presence of the encroachments
would not be “objectively sufficient to notify” the Colony of
the alleged breaches.
Second, the Colony has not identified a common law re-
quirement that a party be provided with an accounting
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WINNEMUCCA INDIAN COLONY v. US 14
before its claim accrues in situations involving physical en-
croachments, such as those alleged by the Colony. The Col-
ony points to Shoshone Indian Tribe of the Wind River
Reservation v. United States, 364 F.3d 1339 (Fed. Cir.
2004) (“Shoshone I”), for the principle that “the statute of
limitations [does] not commence to run against the benefi-
ciaries until a final accounting has occurred that estab-
lishes the deficit of the trust.” Appellant’s Br. 16 (quoting
Shoshone I, 364 F.3d at 1348). But Shoshone I involved
claims of mismanagement of tribal trust funds, where a
beneficiary would not be aware that a breach of fiduciary
duty had occurred until an accounting had been provided.
See Shoshone I, 364 F.3d at 1342, 1344. As we explained
in San Carlos Apache Tribe, that principle does not apply
where, as here, a final accounting is unnecessary to put the
Colony on notice of the accrual of its claim. 639 F.3d
at 1355.
Third, the timing of the recognition of certain tribal
leadership does not change the limitations period here.
The Colony primarily points to Samish Indian Nation
v. United States, 419 F.3d 1355 (Fed. Cir. 2005) to support
its position. There, we held that the Samish’s claims did
not accrue until they received a ruling recognizing the ex-
istence of the tribe. Id. at 1369. But here, the parties do
not dispute that the Colony has been recognized for the en-
tirety of the limitations period—it is only the Colony’s lead-
ership that has been in dispute. In this case, there is no
question about the official recognition of the Colony as an
existing tribe, and the Colony’s leadership dispute does not
affect the accrual of its claims.7
7 The Claims Court acknowledged that the Colony’s
argument could, at best, “be construed as a claim that the
lack of a BIA-recognized council created a ‘legal disability’
for the Colony that prevented it from filing an action, in
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We now turn to the Colony’s fourth argument, regard-
ing the continuing claims doctrine. The continuing claims
doctrine allows “later arising claims even if the statute of
limitations has lapsed for earlier events.” Tamerlane, Ltd.
v. United States, 550 F.3d 1135, 1145 (Fed. Cir. 2008) (ci-
tation omitted). It applies where a plaintiff’s claim is “in-
herently susceptible to being broken down into a series of
independent and distinct events or wrongs, each having its
own associated damages.” Brown Park Ests.-Fairfield Dev.
Co. v. United States, 127 F.3d 1449, 1456 (Fed. Cir. 1997).
“The continuing claims doctrine has been applied when the
government owes a continuing duty to the plaintiffs. In
such cases, each time the government breaches that duty,
a new cause of action arises.” Boling v. United States,
220 F.3d 1365, 1373 (Fed. Cir. 2000). The doctrine does not
apply to single events that have continuing negative ef-
fects. Brown Park, 127 F.3d at 1456.
In order to avoid the statute of limitations, the Colony
must establish that its claims accrued on or after Novem-
ber 18, 2014, i.e., within six years of the filing of the com-
plaint on November 18, 2020. As described earlier,
Counts One, Two, Five, and the remaining portion of Six
allege various physical encroachments on the tribe’s land
and the government’s failure to act to prevent those en-
croachments. The physical encroachments include:
which case § 2501 would entitle it to additional time to
bring suit.” Decision at 417; see 28 U.S.C. § 2501 (“A peti-
tion on the claim of a person under legal disability . . . at
the time the claim accrues may be filed within three years
after the disability ceases.”). The Colony does not raise
that argument on appeal. Oral Arg. at 11:02–11:07 (“Our
theories have not gone under legal disability [in the ap-
peal].”).
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WINNEMUCCA INDIAN COLONY v. US 16
• “a two-lane, partially paved road called High-
land Road,” App’x 94–95 ¶ 152;
• ingress and egress easements granted to a
neighboring subdivision;
• an electrical substation;
• overhead power lines; and
• several structures, including “a garage, shed,
part of a trailer park, road, and driveway,” alleg-
edly “placed on the Colony’s land by a subdivi-
sion located adjacent to the [20-acre plot of the
Colony’s land],” App’x 100 ¶ 196.
The Claims Court found that the first four of these en-
croachments—the Highland Road, the ingress/egress for
the neighboring subdivision, the electrical substation and
the overhead power lines—were already constructed as of
2013, i.e., before the critical date. The Colony does not
challenge that factual finding on appeal. The Claims Court
also determined that the Colony had not met its burden to
demonstrate that the allegations regarding the structures
on the 20-acre plot occurred within the limitations period.
The court’s conclusion was based in part on satellite images
from 2013, “which reveal[ed] the existence of a trailer park,
road, driveway, sheds, and other structures” on the plot.
Decision at 420. On appeal, the Colony does not dispute
that the structures identified in the 2013 satellite photos
were the same structures it referenced in Count Six of its
complaint, see App’x 100 ¶ 196, nor does it dispute that the
structures existed as of 2013. Accordingly, to the extent
that the Colony’s claims are based on the original encroach-
ment of the structures on the Colony’s land, we see no error
in the Claims Court’s conclusion that those claims are
barred by the statute of limitations.
The Colony’s allegations also, however, raise more dif-
ficult questions as to the continued use and maintenance
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WINNEMUCCA INDIAN COLONY v. US 17
of the physical encroachments.8 The Colony argues that its
claims are not limited to physical encroachments and that
“individual instances of trespass have occurred . . .
within . . . the limitations period.” Appellant’s Br. 23. In
its complaint, the Colony alleged that the government
“fail[ed] to police and protect [the Colony’s] lands from en-
croachment and trespass.” App’x 101 ¶ 199; see also
App’x 84 ¶ 81 (referring to the BIA’s “continuing failure to
secure the lands and resources of the Colony”); App’x 99–
100 ¶ 190 (alleging that the government failed to remove
trespassers and “affirmatively conveyed the possessory in-
terest of the land be held by [sic] trespassers”). The Colony
specifically alleged that the government “allowed the City
of Winnemucca to continue to use and maintain” Highland
8 In this connection, the Colony asserts that the gov-
ernment has a trust duty to eject trespassers or prevent
trespass on tribal land. The Claims Court did not answer
this question. The court explained that “[t]he Indian Long-
Term Leasing Act[, 25 U.S.C. § 415,] requires the Govern-
ment to approve leases of Indian land,” that the Act and its
implementing regulations “impose on the Government
money-mandating fiduciary duties in the tribal leasing
context,” and that the Act thus “supplie[d] a money-man-
dating source of law” to the extent the Colony alleged that
the government “mismanaged the leasing of residential
properties on the Colony’s land.” Decision at 413 (citing
Brown v. United States, 86 F.3d 1554, 1562–63 (Fed. Cir.
1996)). It did not address whether the government has a
continuing duty to otherwise stop trespasses to tribal land.
On appeal, the Colony argues that the Indian Long-Term
Leasing Act and its implementing regulations establish
such a duty, relying primarily on Nulankeyutmonen
Nkihtaqmikon v. Impson, 503 F.3d 18 (1st Cir. 2007) to
support its theory. Appellant’s Reply Br. 16–17. The gov-
ernment disagrees.
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WINNEMUCCA INDIAN COLONY v. US 18
Road, App’x 95 ¶ 153, and “allowed [an energy company] to
continue to use the power lines.” App’x 95–96 ¶ 159.
The Colony argues that the Claims Court erred in
treating all of the trespass allegations as “continued ill ef-
fects” of the physical encroachment allegations. Decision
at 418 (citation omitted). The Colony’s trespass allegations
appear to rely on a continuing trespass theory like the one
we addressed in Shoshone Indian Tribe of Wind River Res-
ervation v. United States, 672 F.3d 1021 (Fed. Cir. 2012)
(“Shoshone II”). Under that theory, “each trespass is its
own cause of action with its own six-year statute of limita-
tions.” Id. at 1035. Accordingly, the Colony argues that
“[a]ssuming the Government had a duty to eject the tres-
passers, every time the Government failed to remove the
trespassers, a new cause of action arose.” Appellant’s
Br. 24 (quoting Shoshone II, 672 F.3d at 1035 n.9). The
Colony’s theory thus seems to be that it could still timely
bring suit for any such injuries incurred on or after Novem-
ber 18, 2014 (i.e., within six years of filing suit in the
Claims Court).
While this case raises important and difficult questions
as to the scope of the continuing claims doctrine, we think
it inadvisable to resolve those questions now, given the
sparse record and limited briefing on the issues. We need
not decide whether the Colony’s theories as to the continu-
ing claims doctrine are correct, because, as discussed in the
following section, we affirm the dismissal of these claims
on other grounds.
III. Section 1500
Section 1500 provides that the Claims Court “shall not
have jurisdiction of any claim for or in respect to which the
plaintiff or his assignee has pending in any other court any
suit or process against the United States.” 28 U.S.C.
§ 1500. The statute’s aim is to “save the Government from
burdens of redundant litigation.” Tohono O’Odham,
563 U.S. at 315. “[T]o determine whether § 1500 applies, a
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WINNEMUCCA INDIAN COLONY v. US 19
court must make two inquiries: (1) whether there is an ear-
lier-filed ‘suit or process’ pending in another court, and, if
so, (2) whether the claims asserted in the earlier-filed case
are ‘for or in respect to’ the same claim(s) asserted in the
later-filed Court of Federal Claims action.” Res. Invs., Inc.
v. United States, 785 F.3d 660, 664 (Fed. Cir. 2015) (quot-
ing Brandt v. United States, 710 F.3d 1369, 1374 (Fed. Cir.
2013)).
Since the Nevada action was filed first and remained
pending when this suit was filed, only the second inquiry
is in dispute in this appeal. “Two suits are for or in respect
to the same claim . . . if they are based on substantially the
same operative facts, regardless of the relief sought in each
suit.” Tohono O’Odham, 563 U.S. at 317. If the sec-
tion 1500 bar applies, it attached “when plaintiffs filed
their Claims Court action,” and we must therefore “com-
pare the operative facts asserted at the time the two com-
plaints were filed.” Cent. Pines Land Co. v. United States,
697 F.3d 1360, 1364 (Fed. Cir. 2012); see also Keene Corp.
v. United States, 508 U.S. 200, 207–09 (1993). The Colony
argues that the Nevada action did not involve substantially
the same set of facts as the Claims Court action and so the
Claims Court erred in determining it lacked jurisdiction
over Counts One, Two, Three, Five, Six, and Eight pursu-
ant to 28 U.S.C. § 1500.9
9 The government argues that the Colony forfeited
this argument by failing to raise it to the Claims Court. To
the extent the Colony failed to properly preserve its argu-
ment for appeal, we exercise our discretion to consider it in
the first instance. Medtronic, Inc. v. Teleflex Innovations
S.À.R.L., 68 F.4th 1298, 1305 (Fed. Cir. 2023) (“[E]ven if
an issue was not presented below, there is no absolute bar
to considering and deciding the issue on appeal, as forfei-
ture is a matter of discretion.”); Singleton v. Wulff,
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WINNEMUCCA INDIAN COLONY v. US 20
We need not reach the Colony’s section 1500 argu-
ments as to many of the appealed claims because, as ex-
plained above, we affirm the dismissal of those claims on
other grounds. As to the surviving claims concerning con-
tinuing trespass—the portions of Counts One, Two, Five,
and Six that are alleged to have accrued on or after Novem-
ber 18, 2014—we affirm the Claims Court’s dismissal un-
der section 1500.10
The Supreme Court examined section 1500 in Tohono
O’Odham. There, the tribal nation filed two complaints,
one in district court and one in the Claims Court, that “al-
leged almost identical violations of fiduciary duty, for
which it requested money damages.” 563 U.S. at 310. The
Court determined that “the substantial overlap in opera-
tive facts” triggered section 1500’s jurisdictional bar. Id.
at 318.
Here, much of the subject matter of the Nevada com-
plaint, such as the BIA’s failure to resolve the tribal lead-
ership dispute, may be ultimately irrelevant to the
disposition of the surviving claims, which involve third-
party encroachments and related trespasses. The problem
for the Colony is that the Nevada action included signifi-
cant and broad allegations of trespass and occupation.
428 U.S. 106, 121 (1976) (“The matter of what questions
may be taken up and resolved for the first time on appeal
is one left primarily to the discretion of the courts of ap-
peals, to be exercised on the facts of individual cases.”).
10 The government acknowledges that section 1500 is
applied on a claim-by-claim basis. Oral Arg. at 15:57–
16:04 (admitting that “[i]f there are counts [in the Claims
Court complaint] that don’t involve overlap [with the Ne-
vada complaint], then the section 1500 bar wouldn’t ap-
ply”).
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WINNEMUCCA INDIAN COLONY v. US 21
Those allegations are sufficient to trigger section 1500 and
bar the surviving claims.
In the Nevada complaint, the Colony alleged that the
BIA “allowed and supported” “[t]he lands of the . . . Colony
[to] continue to be occupied by non[-]members of [the Col-
ony],” App’x 54 ¶ 27, and that “[t]here ha[d] been no federal
consent to convey any interest in the . . . Colony lands in-
cluding any possessory interest,” App’x 56 ¶ 36. These al-
legations are operative facts in the Claims Court
complaint. As described earlier, the complaint here alleges
claims that the government allowed continuing trespasses
on tribal land. These overlapping facts “are not mere back-
ground facts; they are critical to [the Colony’s] claims in
both actions.” Cent. Pines, 697 F.3d at 1365. We thus con-
clude that the appealed portions of Counts One, Two, Five,
and Six that are alleged to have accrued on or after Novem-
ber 18, 2014, are barred by section 1500, and affirm the
Claims Court’s dismissals under that section.
This ruling does not, of course, bar the Colony from in-
itiating a new lawsuit covering the subject matter of the
continuing trespass allegations and, in that suit, attempt-
ing to overcome any statute of limitations bar. Res. Invs.,
785 F.3d at 670 (holding that plaintiff’s claims were barred
by section 1500 but noting that plaintiff could have earlier
“dismissed and refiled its Claims Court action” following
the conclusion of the barring district court action).
IV. Equitable Relief
In Count Eight, the Colony demands equitable relief in
the form of “[d]ocuments and [an a]ccounting.” App’x 102.
The Claims Court determined that such a request was out-
side its jurisdiction.
The Claims Court generally does not have jurisdiction
to grant equitable relief, subject to a few exceptions, such
as when the equitable relief is “ancillary to claims for mon-
etary relief over which [the Claims Court] has jurisdiction.”
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WINNEMUCCA INDIAN COLONY v. US 22
Nat’l Air Traffic Controllers Ass’n v. United States,
160 F.3d 714, 716 (Fed. Cir. 1998). The Colony appears to
acknowledge that Count Eight rises and falls with the de-
termination of jurisdiction over its substantive claims. See
Appellant’s Reply Br. 24–25. Because none of the Colony’s
claims for monetary relief remain pending, we affirm the
Claims Court’s dismissal of Count Eight.
CONCLUSION
For the foregoing reasons, we affirm the Claims Court’s
dismissal of the Colony’s complaint.
AFFIRMED
COSTS
No costs.
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