The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
On May 7, 2010, Defendant Oglala Sioux Tribe ("Tribe") filed a counterclaim. (Docket 75, pp. 12-20). On June 1, 2010, plaintiff Alltel Communications, LLC, filed a motion to dismiss the counterclaim pursuant to Fed. R. Civ. P. 12(b)(6). (Docket 90). The Tribe did not file a response in resistance to the motion to dismiss and in support of its counterclaim.*fn1 The matter is now ripe for resolution by the court. For the reasons stated below, the motion to dismiss the counterclaim is granted.
By its counterclaim, the Tribe claims that it, and it alone, is the owner of the electromagnetic spectrum (also referred to as the "radio spectrum") which exists over the Pine Ridge Indian Reservation. (Docket 75, pp. 12-20). The Tribe seeks both declaratory and injunctive relief, asking the court to prohibit plaintiff from selling or assigning any licensing of this spectrum by the Federal Communications Commission ("FCC") to any other party.*fn2 Id. at pp. 18-19.
Rule 12(b)(6) provides for the dismissal of a counterclaim if the counter-claimant*fn3 has failed to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In evaluating Alltel's Rule 12(b)(6) motion, the court accepts as true all of the factual allegations contained in the Tribe's counterclaim and grants all reasonable inferences in favor of the Tribe as the nonmoving party. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) ("a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' ") (citing Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009). See also Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009) (the court must review "a Rule 12(b)(6) motion to dismiss for failure to state a claim, accepting the facts alleged in the [counterclaim] as true and granting all reasonable inferences in favor of [the Tribe], the nonmoving party.").
"[O]nly a [counterclaim] that states a plausible claim for relief survives a motion to dismiss." Iqbal, 129 S. Ct. at 1950. A court is "not bound to accept as true a legal conclusion couched as a factual allegation." Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007).*fn4 "In assessing a motion under Rule 12(b)(6), a court should . . . not dismiss [a counterclaim] 'unless it appears beyond doubt that the [Tribe] can prove no set of facts in support of [its] claim which would entitle [it] to relief.' " Holloway v. Lockhart, 792 F.2d 760, 761 (8th Cir. 1986) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). For evaluation of this Rule 12(b)(6) motion, the following factual statements taken from the Tribe's counterclaim are deemed true.
The Oglala Sioux Tribe is the democratically-elected government of the Oglala Sioux people, with a governing body duly recognized by the Secretary of Interior. (Docket 75, pp. 12-13, ¶ 1). The Tribe enjoys all of the rights and privileges guaranteed under its existing treaties with the United States in accordance with 25 U.S.C. § 478b. Id. at p. 13, ¶ 2. The Tribe is a party to the Ft. Laramie Treaty of April 29, 1868, 15 Stat. 635 (the "1868 Treaty"). Id. at ¶ 3. Under Article 2 of the 1868 Treaty the United States recognized a territory, which includes the present-day Pine Ridge Indian Reservation, for the Tribe's "absolute and undisturbed use and occupation." Id.
Both the United States and the Tribe are legally bound by the Act of March 2, 1889, ch. 405, 25 Stat. 888 (the "1889 Act"). Id. at p. 15, ¶ 9. Under Section 16 of the 1889 Act, the "exclusive use and occupation" language in Article 2 of the 1868 Treaty was made applicable to the Tribe and the Pine Ridge Indian Reservation. Id. at ¶ 10. Section 16 further provided "the acceptance of this act by the Indians . . . shall be taken and held . . . to confirm in the Indians . . . to their separate and exclusive use and benefit, all the title and interest of every name and nature secured therein" to the Tribe by the 1868 Treaty. Id. at p. 16 (emphasis added in counterclaim).
As indicated above, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555. The Tribe asserts a series of legal conclusions throughout the remainder of its counterclaim. The following allegations prove that point.
Based on the "absolute use and occupation" language of the 1868 Treaty and the 1889 Act, the Tribe alleges it owns "all frequencies of radio spectrum within the Pine Ridge Indian Reservation, including the broadband frequencies allocations purportedly allocated and/or auctioned off by the FCC to . . . Alltel . . . or any other user, buyer or seller of radio spectrum frequencies." (Docket 75, p. 16, ¶ 11). The Tribe alleges this radio spectrum is vested property belonging to the Tribe under the 1868 Treaty, the 1889 Act and the Fifth Amendment. Id. at ¶ 12. The Tribe alleges the radio spectrum is held in trust for the Tribe by the United States. Id. The Tribe asserts it has never ceded ownership of the radio spectrum within the Pine Ridge Indian Reservation to the United States and the United States never accepted a cession of such radio spectrum from the Tribe. Id. at p. 17, ¶ 14. Further, the Tribe alleges the Bureau of Indian Affairs never approved any conveyance of the radio spectrum to any third party. Id. at ¶ 15.
The Tribe alleges the FCC, as an independent agency of the United States, is a trustee of the Tribe. Id. at pp. 16-17, ¶ 13. In this trust capacity, the Tribe claims the FCC cannot allocate, sell or auction off the Tribe's radio spectrum to any third party without complying with the 1868 Treaty. Id. at p. 17, ¶ 14. Thus, the Tribe alleges that it has suffered, or will suffer, injury if its interests in the radio spectrum are not protected by declaratory and injunctive relief from the court. Id. at p. 18, ¶ 17; see also the counterclaim's prayer for relief, ¶ 4 at pp. 18-19.
Before addressing the Tribe's counterclaim, it is necessary to understand the nature of the ...