Here are the materials in Two Shields v. United States (Fed. Cl.):

1 Complaint

6-1 US Motion for Summary J

11 Two Shields Opposition

12 Two Shields Motion for Discovery

14 US Reply in Support of Motion for Summary J

15 US Opposition to Motion for Discovery

16 Two Shields Reply in Support of Motion for Discovery

17 US Request for Judicial Notice

17-1 Cobell Fairness Hearing Transcript

18 Two Shields Response to Request for Judicial Notice

19 US Reply in Support of Request for Judicial Notice

20-1 Two Shields Surreply in Opposition to Request for Judicial Notice

25 DCT Order

An excerpt:

This case is one of the myriad of breach of trust claims brought by Native Americans against various federal agencies.1 Paradoxically, the parties present very little in common. Like the proverbial two ships passing in the night,2 plaintiffs and defendant here present the court with two competing narratives that raise entirely different legal issues.

Plaintiffs Ramona Two Shields and Mary Louise Defender Wilson claim that the Bureau of Indian Affairs (“BIA”) breached its fiduciary duty to prudently manage their mineral rights, which are held in trust by the United States. Plaintiffs include a detailed narration of the depredations experienced by their tribes, and characterize the BIA’s alleged breach as “the latest chapter of United States mismanagement or outright abuse regarding the members of the Three Affiliated Tribes.” Compl. ¶ 24. Plaintiffs seek damages on behalf of themselves and their purported class.

Defendant presents an entirely different story. Defendant does not dispute plaintiffs’ characterization of the BIA’s actions; in fact, defendant barely mentions them at all. Rather, defendant argues that the BIA’s alleged misdeeds are immaterial because plaintiffs’ claims have already been litigated and settled. Specifically, defendant argues that plaintiffs’ claims were subsumed by the Cobell class action suit against the United States Department of the Interior (“DOI”), and that plaintiffs’ claims have already been settled pursuant to the $3.4 billion settlement (“Settlement Agreement”) that brought the Cobell suit to a close in 2011, after more than a decade of litigation. According to defendant, plaintiffs forfeited any right to pursue their claims by failing to opt out of the class action Settlement Agreement. Plaintiffs, in contrast, hardly mention Cobell at all in their complaint, and argue in their opposition brief that their claims are entirely unrelated to the Cobell litigation. It is the role of the court to determine which of these two narratives prevails.

This litigation has given rise to a myriad of claims and motions.  Before the court are defendant’s motion for summary judgment as to plaintiffs’ breach of fiduciary claim (Count I), defendant’s motion to dismiss for lack of subject matter jurisdiction plaintiffs’ alternate breach of fiduciary duty claim (Count II), and defendant’s motion to dismiss for failure to state a claim plaintiffs’ legislative takings claim (Count III). Also before the court are plaintiffs’ motion for discovery, defendant’s motion for judicial notice and plaintiffs’ motion for a sur-reply concerning defendant’s motion for judicial notice.

For the following reasons, as fully explained below, the court shall grant defendant’s motion for summary judgment regarding Count I, as well as defendant’s motion to dismiss Counts II and III. Furthermore, the court will deny plaintiffs’ motion for discovery, yet will grant their motion for sur-reply. Finally, defendant’s motion for judicial notice will be granted-in-part.