United States Court of Appeals for the Federal Circuit ______________________

UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN RESERVATION, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2021-1880 ______________________

Appeal from the United States Court of Federal Claims in No. 1:18-cv-00359-RHH, Senior Judge Robert H. Hodges, Jr, Judge Armando O. Bonilla. ______________________

Decided: April 25, 2024 ______________________

MICHAEL W. HOLDITCH, Patterson Earnhart Real Bird & Wilson LLP, Louisville, CO, argued for plaintiff-appel- lant. Also represented by FRANCES C. BASSETT.

ANDREW MARSHALL BERNIE, Appellate Section, Envi- ronment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for de- fendant-appellee. Also represented by TODD KIM. ______________________

Before DYK, REYNA, and STARK, Circuit Judges. Case: 21-1880 Document: 54 Page: 2 Filed: 04/25/2024

2 UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US

Opinion for the court filed by Circuit Judge DYK. Opinion concurring-in-part and dissenting-in-part filed by Circuit Judge REYNA. DYK, Circuit Judge. Plaintiff Ute Indian Tribe of the Uintah and Ouray In- dian Reservation (“Tribe”) brought suit against the United States in the Court of Federal Claims (“Claims Court”) as- serting various claims concerning water rights and water- related infrastructure. The First Amended Complaint (“Complaint”) alleged that the United States breached du- ties of trust by mismanaging water rights and mismanag- ing water infrastructure held by the United States and operated for the Tribe, breached contracts with the Tribe, and effected unconstitutional takings of the Tribe’s prop- erty. The Claims Court held that the Tribe had not identi- fied a trust-creating source of law and dismissed all the breach of trust claims, held that one breach of contract claim was barred by a 2012 settlement agreement, and found the remaining breach of contract and takings claims time barred. We hold that the Winters doctrine and the 1899 Act do not sufficiently establish trust duties to support Indian Tucker Act jurisdiction with respect to the Tribe’s claims that the United States has a duty to construct new infra- structure and secure new water for the Tribe, but that the 1906 Act imposes trust duties on the United States suffi- cient to support a claim at least with respect to manage- ment of existing water infrastructure. Thus, as to the trust claims, we affirm in part and vacate and remand in part. With respect to one breach of contract claim, we affirm in part and vacate and remand in part. With respect to the takings claims and the other breach of contract claim, we affirm the dismissal. Case: 21-1880 Document: 54 Page: 3 Filed: 04/25/2024

UTE INDIAN TRIBE OF THE UINTAH & OURAY INDIAN v. US 3

BACKGROUND I. Historical Background The Tribe is a federally recognized and sovereign In- dian Tribe that was organized into its present form under the Indian Reorganization Act of 1934. 25 U.S.C. § 5101 et seq. The Tribe occupies the Uintah and Ouray Indian Res- ervation (“Reservation”), which encompasses about four million acres in the Green River Basin of northeastern Utah and lies within the drainage of the Colorado River Basin. Approximately half of the Reservation was estab- lished by an 1861 Executive Order that was confirmed by an Act of Congress instructing the superintendent of In- dian affairs for the territory of Utah to “collect and settle all or so many of the Indians of said territory as may be