Case 5:16-cv-01354-C
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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
1. THE CHEROKEE NATION,
Plaintiff,
1
v.
Case No. CIV-16-1354-C
1. THE DEPARTMENT OF THE
INTERIOR;
2. SALLY JEWELL,
Secretary
of the
Interior;
3. THE BUREAU OF INDIAN AFFAIRS;
4. LAWRENCE ROBERTS, Acting
Assistant Secretary-Indian Affairs;
5. THE OFFICE OF
THE SPECIAL TRUSTEE FOR
AMERICAN INDIANS;
6. VINCENT G. LOGAN, Special Trustee
for American Indians;
7. THE OFFICE OF TRUST FUND
MANAGEMENT;
8. NEIL KORNZE, The Director
of the Bureau of Land Management;
9. THE BUREAU OF LAND
MANAGEMENT;
9. THE OFFICE OF NATURAL
RESOURCES REVENUE; and
10. GREGORY J. GOULD, Director of the
Office of Natural Resources Revenue;
11. THE UNITED STATES
DEPARTMENT OF THE TREASURY;
12. JACOB J. LEW, The Secretary of the
Treasury; and
13. THE UNITED STATES OF AMERICA,
Defendants.
DEMAND FOR
JURY TRIAL
Case 5:16-cv-01354-C
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COMPLAINT
This lawsuit intends to resolve
1.
Cherokee Nation
(herein
the
(herein
the "United States"
bureaus
directly
capacity relating
(hereinafter
and
to
and related
"Nation") brings against
or
through
accounting
the
the
"Government")1
agencies'
claims that the
equitable
the United States of America
and
a
number of its
and bureaus' directors
acting
agencies
and
in their official
the Government's management of the Cherokee Nation's Trust Fund
Fund"), including
the "Trust
money
generating obligations
owed
by
the
Government to the Nation.
Fund, the United
Within the Trust
2.
Nation
land;
including,
inter
alia,
money;
money from surface leases for
States held and
the
from the sale of land
proceeds
agriculture, surface,
leases, sand and gravel leases, businesses, and
town
Nation; buildings; the Nation's records; and
agreements. Each of the items in the Trust Fund
in
managed vast resources
oil and gas
or
profits
for the
from the
mining leases,
coal
lots; income from property owned by
money
are
resulting
from treaties
subject to specific trust
treaties, statutes, regulations, executive orders, and
agency directives
or
other
duties set out
as
generally
described herein.
3.
as a
In this
complaint,
beneficiary
the Nation invokes its
of the Government's
resolution of these claims will
and the Government and
1
right
the
an
accounting
While this is
for the Trust Fund
a
discrete matter, the
working relationship
between the Nation
trusteeship.
strengthen
to
thereby further the opportunity for development and progressive
described separately, "United States"
refers to all defendants, including the United States of America.
Unless listed
or
2
or
"Government"
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Page
activities that benefit the Nation, the communities in which the Nation is
United States
generally.
PA RTIES2
I.
"[T]he
4.
possession
Cherokee
people
and exercise of the
period extending
have existed
appropriate
antiquity beyond
into
rights
[T]hese attributes,
with the
relinquished by the
Cherokee
people,
of the Cherokee Nation,
in full force and
the same, are,
[T]he
Cherokee
claim
against the United
people
distinct national
but
are now
they involve,
have
for
man[.]
never
been
1838.
"[T]he
inherent
with the constitution, laws, and usages of
virtue, and shall continue
as
compromitting,
so
to be in
perpetuity
in any manner, their just
Id.
agreements throughout the years and continue
to enter into
numerous
treaties and other
various agreements. At other
times, the Government unilaterally took control of the Nation's Trust Funds pursuant
regulation,
statute,
administrative
a
in full force and virtue." Resolution of
Aquohee Camp, Aug. 1,
together
in the
sovereignty,
the dates and record and memory of
The Nation and the Government entered into
5.
community,
and essential attributes of
do not intend
States
as a
and franchises which
the Cherokee National Committee at
sovereignty
located, and the
order,
or
to
executive order and without the agreement of
the Nation.
6.
The Nation is
acknowledged by
the United States Government
as
a
federally
recognized Indian Tribe.
2
The Cherokee Nation's claim for an accounting relates only to lands, funds,
monies, and assets owned by the Nation and not to lands, funds, monies, and assets
owned by any individual citizen of the Nation.
3
The Nation's boundaries encompass all
7.
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or
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part of fourteen counties in what is
now
the northeastern part of Oklahoma.
8.
The Cherokees have
The Nation is
one
a
vibrant and
unique cultural, social,
of the so-called "five civilized
and
military heritage.
tribes, along with the Chickasaws,
Choctaws, Creeks, and Seminoles.
The
9.
responsibility
to
discharge
proper
responsibility
for the
of the Interior
Department
account
accounts and records.
bureaus" and
responsibilities,
This
to Indian
obligation
of Interior includes the
Nation, and to
is
for the effective management
provide
of trust
("Interior")
of, and accountability for, the
tribes, including the Nation. The
to
properly
of Interior.
Interior, and she is added hereto
as
undertaken, in part, by
is
Sally
trust
manage assets held in trust
for, manage, and reconcile the Nation's corresponding
responsibility
"sub-agencies"
federal agency with the
a
Jewell is
many of the "sub-
currently
a
Defendant in her official
a
sub-bureau of, and
trust
the
Secretary
capacity,
of
and not
personally.
10.
The Bureau of Indian Affairs is
that has the
responsibility
Lawrence Roberts is
a
The Office of the
Interior that has the
Nation.
as a
capacity,
Special
out
substantial trust
Assistant
agency
currently
within, Interior
responsibilities
Secretary for Indian
to the Nation.
Affairs and is named
as
and not personally.
Trustee for American Indians is
responsibility
Vince Logan is
added hereto
carrying
currently the
defendant in his official
11.
for
an
of
carrying
the
Special
Defendant in his official
out
substantial trust
a
sub-agency
responsibilities
Trustee for American
capacity, and not personally.
4
within
to the
Indians, and he is
The Office of Trust Fund Management is
12.
substantial
13.
Management is
responsibility for the management
the Director of the Bureau of Land
official
capacity,
and not
(MMS).
land, natural
resources,
The
oil,
capacity,
to
accountability
for the proper
including
manage, account
currently
the
capacity,
and not
Secretary
(ONRR) is
Defendant in his
and not
office within Interior that
an
of the former Mineral
Management
and the MMS before it, has substantial
of the Nation's trust assets,
including the management
that may be derived from
revenues
of the ONRR, and he is named hereto
as a
personally.
Treasury ("Treasury") is
discharge
the Nation. The trust
properly
16.
provide
as a
federal agency with the
a
for the effective management of Indian tribal trust funds and
responsibility
to
of the Nation's trust assets. Neil Kornze is
gas, and coal and the
of the
Department
within Interior that has
sub-agency
responsibilities
Gregory Gould is the Director
Defendant in his official
15.
within Interior that has
Management, and is named
currently,
The ONRR
responsibility for the management
that land.
sub-agency
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personally.
succeeded to many of the duties and
of
a
The Office of Natural Resources Revenue
Service
a
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responsibility for the management of the Nation's trust accounts.
The Bureau of Land
substantial
14.
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Case 5:16-cv-01354-C
of trust
responsibilities
responsibilities
of the
behalf of Indian
tribes,
Treasury include the responsibility
for, and reconcile the Nation's
of the
on
Treasuiy, and he is named
Trust Funds.
as a
Jacob Lew is
Defendant in his official
personally.
The United States of America is that
1787, and which articles of constitution
legal entity
came
5
into effect
constituted
on
on
September 17,
March 4, 1789, thereafter
Case 5:16-cv-01354-C
being
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amended and modified from time to time. Pursuant to Article I, Section 8, Clause
Constitution, the United States Congress has the authority for the United States
3 of such
of America "To
regulate
Commerce with
foreign Nations,
and among the several States,
and with the Indian Tribes." Pursuant to that power, the United States of America has
pervasively managed
acknowledged
the Trust
its
and controlled the Trust Funds. The United States of America has
obligation
to account to the
Nation for the management and control of
Funds, including in various treaties and agreements with the Nation, in federal
statutes, and by the decisions of its Courts.
II.
17.
HISTORICAL BACKGROUND AND INTRODUCTION
Trust relations between the Nation and the United States
numerous
were
formalized in
treaties between 1785 and 1871, in later agreements, and in unilateral actions
by Defendants.
18.
The first treaty between the Nation and the United States is the
Hopewell,
and
7 Stat. 18
exchange
Cherokee and
Cherokees
(Nov. 28, 1785), which focuses
provides
were
19.
managing
peace and the treatment,
of prisoners and the enslaved. Article 4 addresses
a
description
to have exclusive control
over
all their affairs in such
this land. The ninth article
maimer as
provides
7 Stat. 39
(July 2, 1791).
This treaty also focuses
Article 4 outlines the borders of the Cherokee Nation
6
the
that
Indians
they think proper."
The second treaty between the Nation and the United States is the
Holston,
of the
agreed
right of regulating the trade with the
of
release,
"hunting grounds"
of this tract of land. The United States
the United States has "the sole and exclusive
and
on
Treaty
on
Treaty
peace between the
boundaries which
of
parties.
were
to
be
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officially marked by the parties.
The Nation
agreed to cede
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any land "to the
right
of' that
boundaiy.
Consideration for the cession included the United States' commitment to pay
the Nation
$1, 000
each year.
Nation that the Nation will maintain
sovereignty
United States
over
to
assurances
Philadelphia,
7 Stat. 42
(Feb. 17, 1792),
United States' annual payment to
Philadelphia,
Holston and
7 Stat. 43
$1, 500 for the lands ceded
Holston land cessions
use"
at Holston.
8
1794).
Cherokee which ended the
Treaty which were
23.
a
second amendment to the
$5, 000 annually, payable
in
"goods
never
It
was a
Chickamauga
(Oct. 2, 1798).
Despite
wars
the
physical
been
by
laid out
or
of
suitable for
Treaty of Tellico
and restated boundaries from the Holston
fully ascertained.
Government's assertion of the
fully
Treaty
of
peace treaty between the United States and Lower
The sixth treaty between the Nation and the United States is the
7 Stat. 62
Treaty
(Art. 3).
The fifth treaty between the Nation and the United States is the
Blockhouse, (Nov.
of
of the land ceded. The fmancial consideration for the
increased to
was
[Cherokee Nation's]
22.
(June 26, 1794), which was
required the mapping
Treaty
which amended the Holston treaty to increase the
The fourth treaty between the Nation and the United States is the
21.
Cherokee
all lands not ceded.
The third treaty between the Nation and the United States is the
20.
the
provides
Article 7
marked
Treaty of
Holston and its
Treaty of Tellico,
amendments, the
boundaries of the Nation's Lands still had not
the United States in the 13 years available to do
Because the United States failed to mark the
boundaries, non-Cherokee settlers
enabled to enter Cherokee land. Additional land cessions
7
were
agreed to,
in
so.
were
exchange for
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Case 5:16-cv-01354-C
the United States'
United States
and
the
a
onetime payment of $5, 000 in
annual payment of $1, 000 in "other
an
annuity already provided for."
of their countly forever."
indicating
it
was
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Article 4 describes the ceded land.
"protection".
agreed to
Filed 11/28/16
goods."
"goods,
The 1798 Tellico
"additional to, and
were
"guarantee[d]
Treaty reaffirmed
forming a part of,
treaties
6, the
and merchandise"
wares
These payments
The United States also
In Article
"in addition to
of the remainder
the
prior treaties,
already subsisting
between
the United States and the Cherokee Nation".
24.
The seventh treaty between the Nation and the United States is the
Tellico,
7 Stat. 288
(Oct. 24, 1804),
in which the Cherokee Nation ceded land
"Wafford's Settlement" and received from the United States
a
Treaty of
containing
commitment to make
payments of $5, 000 (one time) and $1, 000 (annually).
25.
The
eighth treaty
between the Nation and the United States is the
Tellico,
7 Stat. 93
States.
In consideration for the
(Oct.
25
1805),
pay the Nation
"annuity"
$3, 000
cessions, the United States agreed
117 U.S.
26.
meant at
that time
each year after the treaty.
agreed the yearly 'annuity'
amounted to
288, 296, 6 S. Ct. 718,
720
$10, 000.
as
an
well
as a
7 Stat.
Assembly
(Oct. 27, 1805), where
Nation
$3, 000 "annuity."
obligation by
In the year
to pay the
It is
the United States to
1805, the United States
43, 62, 93; Cherokee Tr. Funds,
(1886).
The ninth treaty between the Nation and the United States is the
7 Stat. 95
of
in which the Cherokee Nation ceded land to the United
$3, 000 immediately plus $11, 000 within ninety days,
believed that the term
Treaty
Treaty of Tellico,
the Nation ceded land for the creation of the State
of Tennessee and the United States
8
agreed to pay the
Nation
$1, 600.
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The tenth treaty between the Nation and the United States is the
27.
Washington,
7 Stat. 101
(Jan. 7, 1806).
received total financial consideration of
$2, 000.
In
cotton." Article 4
provides
said reservations"
agreed
to
to be
$10, 000
to
provide
build
out at
the
paid
a
yearly
in
of
grist
installments of
mill "for the
use
the Nation with "a machine for
that the United States "will
(set
Treaty
it, the Cherokee Nation ceded land and
In
addition, the United States agreed
Nation" and the United States
to the
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beginning
of the
secure
to
treaty) "in
of the
cleaning
the Cherokees the title
such
manner as
will be
equitable."
The eleventh treaty between the Nation and the United States is the Elucidation of
28.
a
convention with the Cherokee
Nation,
clarifies the lands Cherokees ceded
7 Stat. 103
by the Washington Treaty
between the Tennessee River and Tennessee
claims to this land, the United States
The Nation reserved
shall become
29.
agreed
access on
Ridge.
to pay
The Elucidation
of 1806 to include the land
In consideration for
$2, 000
upon demand
the land ceded "until
by
by
ceding
remaining
the fullness of settlers it
improper."
nation"
7 Stat. 138
and
Treaty
of
(Mar. 22, 1816), where the Cherokee Nation ceded its last
lands within the limits claimed
"promise[d]
any
the Nation.
The twelfth treaty between the Nation and the United States is the
Washington,
30.
hunting
(Sept. 11, 1807).
engage[d]
by
South Carolina.
The United States
that the State of South Carolina shall pay to the Cherokee
$5, 000.
The thirteenth treaty between the Nation and the United States is the
the Cherokee, 1816, 7 Stat. 139
(Mar. 22, 1816), which attempted
9
Treaty with
to resolve the
dispute
over
the
boundaiy
established
dispute
between Creek and Cherokee
arose
lay
to
a manner
which
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out and mark the
from the
Treaty
that the United States would pay
on
10 of 50
the Coosa River.
This
boundaiy.
of Fort Jackson.
damages
Page
was a
Additionally,
This agreement
resolution to the
Article 5
provided
for losses the Cherokee Nation incurred
as a
result of the Creek Wars.
The fourteenth treaty between the Nation and the United States is the
31.
Chickasaw Council House, 7 Stat. 148
ceded land and the United States
agreed to
of $6, 000 per year for ten years "as
Cherokee
practical
Agency,
$5, 000
as
well
as
eastern
and offered
lands,
provides
7 Stat. 156
as
well
as
one acre
(July 8, 1817).
It
provided
dividing
removed and those who did not.
in the western lands for eveiy
the
that
west
The treaty
provides
were
that the
(to
one acre
yearly "annuity" payments
Nation, shall have "free navigation of all the
Treaty
7 Stat. 195
Agency (1817),
Arkansas.
(Feb. 27, 1819),
ceded in the
left behind. Article 4
between those who
"parties,
which includes
waters mentioned."
which affirms the
but fails to define any western
of the
what became
The sixteenth treaty between the Nation and the United States is the
Washington,
annuity"
fmancial incentives and
emigate
compensation for improvements
method for
a
"an
compensation for any improvements."
assistance to those Cherokees who chose to
Arkansas)
33.
pay the Nation
of
where the Cherokee Nation
The fifteenth treaty between the Nation and the United States is the
32.
the
(Sept. 14, 1816),
Treaty
boundary
Treaty
Treaty of
of the Cherokee
of the Cherokee Reservation in
The Tellico land reservation is "ceded to the United States, in trust for the
10
Case 5:16-cv-01354-C
Cherokee Nation
invested
is hereafter
as
school
as a
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fund;
to be sold
provided in the
by
Page
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the United States and the
fourth article of this
treaty."
proceeds
Article 4 states:
The United States stipulate that the reservations, and the tract reserved for a
school fund, in the first article of this treaty, shall be surveyed and sold in
the same manner, and on the same terms, with the public lands of the
United States, and the proceeds vested, under the direction of the President
of the United States, in the stock of the United States, or such other stock as
he may deem most advantageous to the Cherokee nation. The interest or
dividend on said stock, shall be applied, under his direction, in the manner
which he shall judge best calculated to diffuse the benefits of education
among the Cherokee nation on this side of the Mississippi.
Under Art. 6 of the 1819
paid,
two-thirds to the Cherokees east of the
west of that
to the
34.
Washington Treaty,
river." The
Treaty
also
provides
the
"annuity to the
Mississippi,
for the
Cherokee nation shall be
and one-third to the Cherokees
development
and lease of a
roadway
Unicoy Turnpike Company.
The seventeenth treaty between the Nation and the United States is the
Washington,
7 Stat. 311
(May 6, 1828),
which redraws the western
boundary
Treaty
of the State
of Arkansas, and then establishes the western Cherokee lands to the West of Arkansas
a
"home that shall never, in all future time, be embarrassed
the
lines,
the
extension, in
or
placed over
it the
jurisdiction
of a
Territoiy
any way, of any of the limits of any
or
pledged,
of
to
seven
guarantee it
to
them
granted to
lying West
of the Western
or
promised
as
follows...
the Cherokee Nation "a free and unmolested
boundary
pressed upon by
State" in what
"to possess the
forever, and that guarantee is hereby solemnly
millions of acres of land, to be bounded
States also
be
existing Territory
would later become the State of Oklahoma. The United States
Cherokees, and
nor
as
extended around it
by having
State,
of
use
of the above described limits, and
11
The United
of all the
as
Country
far West
as
the
Case 5:16-cv-01354-C
and their
sovereignty of the United States,
to pay
Filed 11/28/16
right of soil
Cherokee
to be used for various
construct
buildings.
new
extend." The United States
The money the United States
Alphabet).
things, including
In Article
9,
a
a
school fund, to
2-by-6-mile
Gibson,
eighteenth treaty between the Nation
7 Stat. 413
Nation of the
(Feb. 14, 1833),
million acres, the
seven
and the free and unmolested
300,
6 S. Ct.
use
and
saw
shops
and for
promised the Nation
and to
militaiy force."
and the United States is the
Treaty of Ft.
that renewed the United States's guarantee to the
perpetual
outlet for the Nation west of those
lands,
of the country west. Cherokee Tr. Funds, 117 U.S. 288,
718, 722 (1886). The
1833
Treaty
installing "railway
square-mile area of land to be
36.
grist
buy a printing press,
also resolved
between the Cherokee Nation and the Creek Nation. Article 4
blacksmith
a new
agreed
reservation of lands to the United
States is made for Ft. Gibson for the "accommodation of the
The
12 of 50
specified a number of payments (including famously a payment of $500 to
Sequoyah for the
35.
Page
for the value of improvements lost in Arkansas and to build
mill. Article 5
was
Document 1
set
corn
mills."
aside for the "Cherokee
a
boundary
required
Article 6
the
line
dispute
building
of
for
1-
provided
a
Agency."
The nineteenth treaty between the Nation and the United States is The Unratified
Agreement with the
Cherokee of 1835, Sen. Doc. No. 120
unratified document that did not become
removal of the
the 1828
remaining
Treaty
at
(Mar. 14, 1835).
was an
legally binding, but would have provided for the
Eastern Cherokees to the Western lands that
Washington.
This
It would have created
a
identified in
$4.5 Million fund, and would
have commuted the Cherokee Nation's educational aimuities to
12
were
a
fund administered
by
the United States. It also
provided
Mission Station
Fort Gibson if the
as
well
as
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the Nation with
a
Page
reversionary
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interest in the Union
respective reservation were
ever
abandoned.
37.
The twentieth treaty between the Nation and the United States is the
Camp
Holmes
(or the Treaty with the Comanche and others),
It included the Cherokee Nation
and
all the Nation
agreed by
the said Nation
the Cross
Timber,
The
38.
New
or
or
party and
at Article 4
tribes of Indians
tribes have free
parties
(Aug. 24, 1835).
provided that "It is understood
to this
permission to hunt and trap
treaty, that each and all of
in the Great Prairie west of
between the Nation and the United States is the
7 Stat. 478
Echota is very similar to the unratified
Treaty of New Echota ceded
exchange
western
for
$5, 000, 000,
boundary."
"conveyed by patent."
conveyed
of New Echota
The
of land, and the
Treaty of
The second tract is
to
the Nation
Mississippi
use
That patent
provided
that if Ft. Gibson
Nation.
Article 10 created
excepted
the
were
a
acres
approximately 800, 000
in fee
of New
United States in
described in the
was
to
be
reservation at Ft. Gibson.
to
be
acres, which the
Article 3 of the
simple."
abandoned, the land would
"permanent
to the
New Echota states that land
"by patent,
Military
Treaty
of "all the country west of the
provides that all lands, including the "outlet" were
patent."
of
with the Cherokee from March 1835.
The first tract of land is the Seven Million
treaties of 1828 and 1833.
United States
Agreement
all land east of the
two tracts
Treaty
This is the fmal Cherokee removal treaty
(Dec. 29, 1835).
where the Cherokees "in the East" agree to removal to the "west." The
The
of
to the western limits of the United States."
twenty-first treaty
Echota,
as a
7 Stat. 474
Treaty
conveyed
Treaty
in "one
And, Article
revert to
3
the Cherokee
fund" for the Cherokee Nation that shall be
13
invested "in
some
safe and most
for the
a
(May 23, 1836)
sum
of Cherokees
this
14 of 50
Article 11 commuted Cherokee Nation annuities for
one-time, lump
"poorer class
Page
stocks of the country for the benefit of
productive public
the whole Cherokee nation."
education into
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
payment. Article 12 also created
as
"poor persons'
shall
remove
fund"
west." In
a
a
fund of $100, 000
supplementary agreement
was
subsumed into the Cherokee National
following
act of union between the Eastern and
fund.
On the 12th of
39.
Western Cherokees
July, 1839,
was
adopted:
the
"Therefore we, the
people composing
the Eastern and
Western Cherokee
Nation, in national convention assembled, by virtue of
unalienable
do
rights,
body politic,
further
River
under the
style
agreed that "all rights
Mississippi,
of the Cherokee
source,
and
hereby solemnly
and titles to
public
public
by this
Cherokee lands
whether inherited from
union." On
Sept. 6,
The Cherokee Nation
on
the east
or
west
of the
our
fathers
unimpaired
1839 the Nation
or
derived from any other
in the Cherokee Nation
adopted
a
written
under the
style
The
twenty-second treaty
of Washington, 9 Stat. 871
patent
to the
one
and title of the Cherokee Nation. Cherokee Tr. Funds, 117
U.S. 288, 305, 6 S. Ct. 718, 725
40.
as
constitution, in
which it is recited that the Eastern and Western Cherokees had become reunited in
body politic,
one
interests which may have vested in either branch
shall henceforward vest entire and
constituted
original
agree to form ourselves into
and title of the Cherokee Nation."
with all other
family,
mutually
our
(1886).
between the Nation and the United States is the
(Aug. 6, 1846).
Cherokee Lands, and
In
light
mismanagement
14
Treaty
of the United States' failure to issue
of the New Echota
Treaty fund,
a
there
was an
Echota
agreement
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
Treaty that the United
States mishandled.
The 1846
for additional payments to the Cherokee Nation,
purchase
of a printing press and
On the 6th of August,
to vacate Fort
subsequent
Gibson.
month.
$20, 000 for the Cherokee
1857, Special Order 114
Pursuant to this
1866,
14 Stat. 799
Nation
was
issued
was
by the
War
Department
abandoned within the
Treaty
By November of the
(July 19, 1866).
Relevant to this
of New
same
year,
the land.
between the Nation and the United States is the
Complaint
for
an
Treaty
accounting,
of
the
in Article 15 that its lands East of 96° may be sold to members of other
Indian Tribes and that those tribes east of the 96°
Nation.
on
alia, for the
School fund.
was
to revert back to the Nation.
twenty-third treaty
agreed
inter
including,
Order, the Fort
the Nation had established the town of Kee-too-wah
The
Treaty of Washington
In accordance with the terms of Article 3 of the
Echota, the property
42.
15 of 50
how the United States would account for the monies from the New
on
provides
41.
Page
The Nation
agreed
were
to
become part of the Cherokee
in Article 16 that tribes may
Cherokee Nation West of the 96°.
Various tribes
purchase
purchased
lands from the
land west of the
96°,
including the Osage Nation.
43.
In
a
separate provision of the Treaty of 1866, the United States took the Cherokee
lands in Kansas "in trust" to sell it "to the
the
appraised
value.
The United States
Cherokee lands in Kansas in
one
highest bidders
was
tract "for
also authorized under the treaty to sell the
cash" for
acre.
44.
The
Treaty of 1866 Article
22
provides:
15
for cash" and at not less than
a sum
not less
than
one
dollar per
Case 5:16-cv-01354-C
Document 1
Filed 11/28/16
Page
16 of 50
The Cherokee national council, or any duly appointed delegation thereof,
shall have the privilege to appoint an agent to examine the accounts of the
nation with the Government of the United States at such time as they may
see proper, and to continue or discharge such agent, and to appoint another,
as may be thought best by such council or delegation; and such agent shall
have free access to all accounts and books in the executive departments
relating to the business of said Cherokee Nation, and an opportunity to
examine the same in the presence of the officer having such books and
papers in charge.
14 Stat. 799
45.
The
(July 19, 1866).
Treaty of 1866 Article
23
provides:
All funds now due the nation, or that may hereafter
their lands by the United States, as hereinbefore
from the sale of
provided for, shall be
invested in the United States registered stocks at their current value, and the
interest on all said funds shall be paid semi-annually on the order of the
Cherokee Nation, and shall be applied to the following purposes, to wit:
Thirty-five per cent, shall be applied for the support of the common-schools
of the nation and educational purposes; fifteen percent for the orphan fund,
and fifty percent for general purposes, including reasonable salaries of
district officers; and the Secretaiy of the Interior, with the approval of the
President of the United States, may pay out of the funds due the nation, on
the order of the national council or a delegation duly authorized by it, such
amount as he may deem necessary to meet outstanding obligations of the
Cherokee Nation, caused by the suspension of the payment of their
annuities, not to exceed the sum of one hundred and fifty thousand dollars.
14 Stat. 799
46.
The
accrue
(July 19, 1866).
Treaty
of 1866, Article 31, reaffirmed all
prior
treaties not inconsistent with
the terms of the 1866 treaty.
47.
The
twenty-fourth treaty between the
Washington,
Treaty
16 Stat. 727
(April 27, 1868).
Nation and the United States is the
This treaty, which
of 1866, relates back to Article 2 of the
800, 000
acres
of additional land
(in
'supplement'
of
to the
Treaty of New Echota that provided for
what became
16
was a
Treaty
Kansas)
to be
patented
to the
Cherokees. The land in
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
question
was
commonly known
and 25 miles wide in what is
50 miles
long
Cherokee
Nation, the Neutral Lands
today
the "Neutral Lands"
set
aside to separate the
Nation reservation from the settlers in what would become Kansas. Because of
by
the United States to protect the Neutral
settlers, and the Neutral Lands
settlement
subject
even
though they
owned
of the treaty with the United States which
Company
made
a
was
contract with the American
a
single
appointed
additional payments
The
time)
was
Browning,
of Kansas
Washington Treaty
seeking
Supreme
Joy, for
1866 it
the
illegal
the
subject
The American
Emigrant
Two
days
He set aside the
he determined that the
Treaty of
October 9, 1867, sold the neutral
same
terms
(down payment,
in the sale to the American
with
Emigrant
of 1868 addressed the conflict between the two
Several homesteaders
title to the land
was
of the Interior James Harlan sold
of the Interior.
on
the
failure
for Defendants to take the land "in
Secretaiy
that he found
competing purchase agreements.
the
it, and then in
Emigrant Company because
cash payment.
over
as
a
Osage
be open to homestead
to
The tract
provided
strip
non-Cherokee
the Cherokee Nation.
Emigrant Company.
lands to his brother-in-law, James F.
Company.
by
down payment with payments to continue in the future.
later, Orville Browning
required
were overrun
some
August 30, 1866, then-Secretary
the Neutral Lands to the American
1866
by
of at least two Civil War battles to control
trust" and to sell it. On
by
considered
were
were
Lands, they
a
Before their sale to the
Kansas.
originally
were
as
17 of 50
Page
they
believed
brought
suit in the District Court
they had rightfully
claimed.
Ultimately
Court held that the United States had title to the Neutral Lands and
successfully conveyed
title to
Joy and resolved the
17
matter in
Joy's
favor.
No mention
was
made of the Nation's
right to
an
accounting for the
Defendants "in trust" pursuant to the
by
(1872).
The Cherokee Nation
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
was
not a
Treaty of
party
Page
18 of 50
sale of the lands which
1866. See Holden
to the
Joy
v.
held
84 U.S. 17
Joy,
though the
case,
were
discusses
case
various Cherokee treaties with Defendants.
During
48.
Cherokee
the Civil War, due to Defendant's failure to
people
and their property, the town of Kee-too-wah
Confederate troops for
soldiers
and, pursuant
re-established
as a
period
a
to
a
January 25,
military post
and
February 1891, by Executive Order,
to
Congress
1870 Executive
acres, would
Order,
the Fort
was
"Wrobably
by
was
Interior estimates
for 7, 680
cemetely (see Executive Order of February 9, 1891) and
supply center for Fort
1871)
were
Sill
made but
no
(see
General Order 22,
accounting
records indicate that Fort Gibson
Starting
49.
and
17 Stat.
The 1872 Act
In
Interior reports
was
comprised
of
The
a
quartermaster depot and
Department of Missouri, September 30,
Nation has been located.
Moreover,
no
did in fact revert to the Nation.
statutes relevant to
Cherokee Trust Funds. The first of these
was
The Act of
98, which provided for the sale of the "Cherokee Strip, which is
two-mile-wide tract of land
length.
formally
Reservations for
Congress began unilaterally passing specific
controlling items within the
May 11, 1872,
a
in 1872,
ever
to the
was
Union
(emphasis added).
acres.
a
by
the United States.
relinquished to Interior.
revert to the Indians."
land reservation for Fort Gibson
wrested
was
by
overtaken
was
Fort Gibson
subsequently occupied by
in 1892 stated that the Fort, which
roughly 5, 500
original
Control of the town
of time.
the
adequately protect
lying
provided that
between Kansas and Oklahoma
along
much of their
all money from the sale of the Cherokee
18
Strip "shall,
Case 5:16-cv-01354-C
without unnecessary
It also
were
be invested in the
delay,
registered
that the sale of lands shall not take
provided
accepted by the
The second
50.
Filed 11/28/16
Document 1
Cherokee national
specific
Act of
council,
or
place
its
Page
19 of 50
five percent
until the
(5%)
U.S. bonds.
provisions
delegation.
relevant to Cherokee Trust Funds
Congress
Act of Feb. 14, 1873, 17 Stat. 437, which at section 4 set apart from the funds
the Cherokee Nation for the creation of three social welfare programs:
to
asylum,
an
and
such rules and
51.
school for
a
regulations
The third
specific
as
indigent persons.
lands to the
Osage
Indians, the
same
52.
The fourth
to the
placed
of
on
Nation "on the books of his
specific
were
the order of the
specific
Aug. 7, 1882,
22 Stat.
Nation to lease the salt
less than
one
Act of
to be
Congress
"paid
legislative
belonging
orphanage,
be created "under
prescribe."
was
The Act
from the sale of Cherokee
Department to
the credit of the Cherokee
relevant to Cherokee Trust Funds
provided
into the
was
The
that funds from the sale of the
Treasury of the United States, and placed
paid
to the treasurer of the
Cherokee
council of the Cherokee Nation."
Act of Congress relevant to Cherokee Trust Funds
was
The Act
349, which provided congressional authority for the Cherokee
deposits
dollar per ton of
Secretaiy of the
The
shall bear interest at the rate of five per cent...
lands
The fifth
to
was
resulting
the funds
credit of the Cherokee Nation, and shall be
Nation,
53.
Strip
were
an
Act of Congress relevant to Cherokee Trust Funds
Act of Feb. 28, 1877, 19 Stat. 265, which
Cherokee
These programs
the national council of the Cherokees may
of March 3, 1873, 17 Stat. 530. It
of the act
west
of the 96°
longitude,
with the lease terms to be not
salt, and with the lease subject
Interior.
19
to
the
approval
of the
The sixth
54.
specific
rights
of the said band in and to the moneys, stocks and
Mississippi River,
permanent annuity fund...
by
can
55.
a
certain other fund,
Ultimately the Supreme
just ground
on
Court
The seventh
specific
Act of
Funds,
Nation to "blood" Cherokees
as
well
distributions, totaling $375, 000,
6 S. Ct.
718,
Congress relevant
Act of Oct. 19, 1888, 25 Stat. 608, which
as
were
The
eighth specific
Act of
held, in the
provided
729
authorized
Funds
was
The
distributions within the
freedmen, Shawnee, and Delaware Indians. The
charged against
the Nation's funds to compensate
Congress
by
other tribes.
relevant to Cherokee Trust Funds
"Western Cherokee Indians" to
certain claims
showing
called the
(1886).
capita
was a
of the Interior
case
lying
[Eastern Band of
to Cherokee Trust
for per
sue
the United States in trust for
by
Act of Feb. 25, 1889, 25 Stat. 694, which
Secretary
The Act
bonds, held by
commonly
Cherokee individuals for the tracts selected from the Cherokee Outlet
56.
was
sales of lands
which the claim of the
rest to share in either of the funds held
the Cherokee Nation". Cherokee Tr.
out of the
Indians, arising
and also in
this statute that there is "no
Cherokees]
20 of 50
the Eastern Band of Cherokee Indians to
permitted
the United States in trust for the Cherokee
west of the
Page
Act of Congress relevant to Cherokee Trust Funds
of Mar. 3, 1883, 22 Stat. 582. It
"to determine the
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
adjudicate
jurisdictional
statute
relating
to a
was
permitting
The
the
report of the
that the United States failed to make certain
required
payments. Citing mistaken understandings, the U.S. Supreme Court ultimately affirmed
a
judgment against
the United States. See United States
(1893).
20
v.
Old
Settlers,
13 S. Ct. 650
Document 1
Case 5:16-cv-01354-C
The ninth
57.
specific
Act
21 of 50
The Act
was
alia, permitted the Cherokee Nation
to
issue
longer than ten years.
The tenth
58.
Page
Act of Congress relevant to Cherokee Trust Funds
of Mar. 1, 1889, 25 Stat. 783, which inter
coal leases for
Filed 11/28/16
specific
Act of Congress relevant to the Cherokee Trust Funds
making appropriations
for the then-current and
contingent
expenses of the Indian
Department, and for fulfilling treaty stipulations with various Indian tribes for the
ending
June
President
30, 1889, and for other purposes, of Mar. 2, 1889,
was
Indian tribes
authorized to
three commissioners to
appoint
25 Stat.
negotiate
owning lands lying west of the ninety-sixth degree
The
was
year
1005, where the
cessions
by
the
of longitude in the Indian
Territory.
The first Presidential Proclamation relevant to Cherokee Trust Funds
59.
Proclamation of
Nation's
was
use
February 17, 1890,
of its
"prejudicial
own
to the
lands in what
public
26 Stat.
was
the
was
1577, which stated that the Cherokee
known
as
the "Cherokee Outlet" for
interests" and the President ordered the cattle
grazing
grazing
on
the Cherokee Nation's Outlet to be removed not later than October 1, 1890.
The eleventh
60.
Act of
specific
May 2, 1890,
Country.
27 Stat.
This contained
Territory "[w]henever the
extinguished and the
61.
The twelfth
Act of March 3,
Act of
Congress
was
The
81, which created the Territory of Oklahoma in Indian
provisions
for the inclusion of the Cherokee Outlet within the
interest of the Cherokee Indians in the land... shall have been
President shall make
specific
1893,
relevant to Cherokee Trust Funds
Act of
27 Stat.
proclamation thereof..
Congress relevant
612, which
was
21
to
Cherokee Trust Funds
was
The
the creation of the Dawes Commission.
Document 1
Case 5:16-cv-01354-C
Additionally,
the United States
agreed
Filed 11/28/16
provide
to
Page
22 of 50
to the Cherokee Nation
account of moneys due the Cherokee Nation under any of the treaties
a
"complete
ratified in the years
1817, 1819, 1825, 1828, 1835-6, 1846, 1866, and 1868, and any laws passed by the
of the United States for the purpose of
Congress
into effect...
when left
on
performed,
even
in the
States,
40 Ct. Cl.
62.
The thirteenth
332
252,
were
a
them,
obtain 5% interest
was
owing
to the
was
Cherokee
the Cherokee Nation. Cherokee Nation
v.
Act of Congress relevant to Cherokee Trust Funds
28 Stat.
United
to earn
The
was
286, which directed certain funds be placed "on the
to the credit of the
Cherokee Nation of Indians" and
interest at 5%.
specific
Act of
Congress
relevant to Cherokee Trust Funds
The Act of March 2, 1895, 28 Stat. 764, which directed the
and make
to
any of
(1905).
specific
The fourteenth
than One Million Dollars
paid to
Treasury Department,
that those funds
63.
was ever
August 15, 1894,
books of the
more
were
or
A liinited review of fmancial information
Treasury.
though
Nation, only $432.28
Act of
said treaties,
The funds from the cession of the outlet
deposit
and
canying
"restatement" of the
accounting completed
Attorney General
was
to review
under The Act of March 3, 1893,
27 Stat. 612.
64.
The fifteenth
specific
Act of Congress relevant to Cherokee Trust Funds
Act of June 10, 1896, 29 Stat. 321, which
provided
additional
the Dawes Commission to continue the United States'
dealings
funding
and
authority
of the Nation's Trust Funds.
The Government's
22
The
for
unethical, illegal, and immoral
with the Cherokee Nation which resulted in the Government's
disposition
was
illegal
actions
wrongful
resulted, for
Case 5:16-cv-01354-C
instance,
in the tribal
Filed 11/28/16
Document 1
23 of 50
Page
"governments" wrongly being referred
to
by
the Government
as
"clubs."
The Cherokee Nation is not
65.
referred to
by the
United States
club, has
a
the Defendants
as
been
a
club, and should
never
been
club. Instead, since time immemorial, the Cherokee
as a
Nation has been and continues to be
against
never
a
has made this claim
sovereign government which
management of the Cherokee Nation's
trustees for the
trust
resources.
66.
The sixteenth
"Curtis Act,
specific
30 Stat. 495
Act of
Congress relevant
(June 28, 1898), which,
to
Cherokee Trust Funds
among other
Section 11 for the allotment of the Cherokee Nation's lands while
to
the Cherokee Nation "oil, coal,
and mineral
asphalt,
Various other tribal reservations
the Nation's
specifically reserving
and
or
made. The United States took
required that
after allotment and reservations
stating
mineral
over
that "no
deposits."
total control of
(expressly providing
missions, schools, and burial grounds) had been fully completed "When such
allotment of the lands of any tribe has been
make full report thereof to the
67.
at
land; its oil, coal, asphalt, and mineral deposits; and all of the Nation's
money. This Act also
for
were
asphalt,
the
things, provided
deposits"
allotment of such lands shall cany the title to such oil, coal,
was
by
them
completed,
said commission shall
Secretaiy of the Interior for his approval."
The second Presidential Proclamation relevant to Cherokee Trust Funds
Proclamation of
July 27, 1898,
Cherokee Nation's saline
reserves
30 Stat.
"public
was
the
1779, where the Government declared the
domain."
23
68.
The seventeenth
specific
Act of
Congress relevant
The Timber and Stone Act, 31 Stat. 660
Cherokee timber
Congress'
Act of
Congress
or
which made it
illegal
to cut
relevant to Cherokee Trust Funds
32 Stat. 716
Agreement,
Agreement specifically
Curtis Act and stated "no Act of
24 of 50
permission from Defendants.
ratification of The Cherokee Allotment
The Cherokee Allotment
1902).
Congress
Page
to Cherokee Trust Funds was
(June 6, 1900),
mine Cherokee stone without
eighteenth specific
The
69.
or
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
was
(July 1,
invalidated Section 13 of the
treaty provision inconsistent with this
agreement shall be in force in said Nation except sections fourteen and twenty-seven of
[the
Curtis
Act]."
The Cherokee Allotment
Agreement
did not invalidate Section 11 of
the Curtis Act.
The nineteenth
70.
specific
The 1906 Act for the Five
control
over
Act of
Tribes,
34 Stat. 137
land records with the U.S.
with Defendant
Interior, placed control
reserved coal and
asphalt
land from
Cherokee Nation with Defendant
the sale of unallotted
money owned
by
Congress relevant
to Cherokee Trust Funds
(Apr. 26, 1906), which,
Courts, placed control
over
alia, placed
the Cherokee Schools
all Cherokee money with Defendant
sale, placed control
over
all
buildings
Interior,
owned
by the
Interior, provided for the continuation of allotment and
lands, authorized Defendant Interior
the
over
inter
was
to
collect and
recover
land
or
Nation, and prohibited the Nation's land from becoming public
land.
71.
The twentieth
specific
Act of Congress relevant to Cherokee Trust Funds
Act of April 30, 1908, 35 Stat. 70, which commanded the
possession of, appraise,
and sell "all
buildings
24
on
lands
was
The
Secretary of the Interior to take
belonging
to the Five
Civilized
Tribes,
now
or
together with the
The
72.
heretofore used for
Apr. 4, 1910,
The
73.
Act of
Congress
relevant to Cherokee Trust Funds
The
Aug. 24, 1912,
to account for the
relevant to Cherokee Trust Funds
required
was
Defendants to account for the
things.
twenty-third specific
The Act of
was
things.
The Act of Mar. 3, 1911, 36 Stat. 1058, that
74.
other tribal purposes,
appertaining thereto...
twenty-second specific Act of Congress
Nation's money, among other
or
25 of 50
269, that required Defendants
36 Stat.
Nation's money, among other
Page
governmental, school,
furniture therein and the land
twenty-first specific
The Act of
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
Act of
relevant to Cherokee Trust Funds
518, which required Defendants
37 Stat.
Nation's money, among other
Congress
and
things,
prohibited
the
to account
expenditure
was
for the
of "tribal funds"
except in certain limited instances.
The
75.
twenty-fourth specific
Act of Congress relevant to Cherokee Trust Funds
The Act of June 30, 1913, 38 Stat. 77, which
shall
cause a
July 1,
76.
The
twenty-fifth specific
August 1, 1914,
prohibited the expenditure
The
Act of
38 Stat.
of the Interior
on or
Congress
relevant to Cherokee Trust Funds
was
582, which abolished the Commissioner of the Five
rents
on
unallotted land and tribal
buildings,
and
of "tribal funds" except in certain limited instances.
twenty-sixth specific
The Act of
"Secretary
1914.
Tribes, required the collection of
77.
that the
system of bookkeeping to be installed in the Bureau of Indian Affairs"
before
The Act of
required
was
May 18, 1916,
Act of
39 Stat.
Congress
relevant to Cherokee Trust Funds
was
123, which required Defendant Secretary of the
25
Treasury
for "the
to account
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
receipts
to, and
expenditures
Page
which the
"prepare and submit
accounting
before
to
the
Secretary
required
of the Interior
a
the Bureau of
nineteen hundred and seventeen, to meet the
of the Indian
Appropriation
Act
Efficiency
to
system of bookkeeping and
for the Bureau of Indian Affairs that will enable the said
July first,
twenty-six
It also
fiscal year...
ensuing
Secretary of the
from, all tribal funds of
Interior recommends to be made for the benefit of the Indians
Indians for the
26 of 50
Secretary,
requirements
approved June thirtieth,
on or
of section
nineteen hundred and
thirteen...
The
78.
was
twenty-seventh specific
Act of
Congress
relevant to Cherokee Trust Funds
The Act of March 2, 1917, 39 Stat. 969, which authorized
"hearings [to] investigate
the conduct of the Indian Service" and to "to exainine into the conduct and management
of the Bureau of Indian Affairs and all its branches and
administration,
to
agencies,
their
organization
and
examine all books, documents, and papers in the said Bureau of Indian
Affairs...
The
79.
twenty-eighth specific
Act of Congress relevant to Cherokee Trust Funds
The Act of March 3, 1919, 40 Stat. 1316, which waived Defendants'
claims
by the Cherokee Nation.
80.
The
was
twenty-ninth specific
Act of
Congress
immunity for certain
relevant to the Cherokee Trust Funds
The Act of March 19, 1924, 43 Stat. L. 27, which waived Defendants'
certain claims
by the
Cherokee Nation.
26
was
immunity
for
The thirtieth
81.
specific
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
Act of
Congress
Page
relevant to the Cherokee Trust Funds
The Act of April 25, 1932, 47 Stat. 137, which waived Defendants'
claims
by the
82.
The
thirty-first specific
Nation's official
83.
was
for certain
Act of Congress relevant to the Cherokee Trust Funds
authorizing
the
placement
was
of the Cherokee
records, by Defendants, in the offices of the State of Oklahoma's
Society.
The
thirty-second specific
Act of
Congress
relevant to the Cherokee Trust Funds
the Indian Claims Commission Act of 1946, 60 Stat. 1049. It established
certain Indian claims
established
a
procedures
and
84.
immunity
was
Cherokee Nation.
The Act of March 27, 1934, 48 Stat. 501,
Historical
27 of 50
The
statute
the United
against
of limitations
on
a
forum for
States, waived Defendant's immunity,
certain
claims, and provided certain specific
protocols.
thirty-third specific Act of Congress relevant to the
Cherokee Trust Funds
was
The Act of March 30, 1968, 82 Stat. 70, which transferred certain Chilocco Indian School
lands at Chilocco, Oklahoma, to the Cherokee Nation.
85.
was
The
Act of
thirty-fourth specific
Congress
relevant to the Cherokee Trust Funds
The Act of October 21, 1970, 84 Stat. 1074, which transferred certain lands to the
Cherokee Nation.
86.
The
thirty-fifth specific
Act of Congress relevant to the Cherokee Trust Funds
The American Indian Trust Fund
87.
was
The
thirty-sixth specific
Management Reform Act of 1994,
Act of
Congress
108 Stat. 4239.
relevant to the Cherokee Trust Funds
The Act of December 13, 2002, 116 Stat. 2851, which settled claims
27
was
brought by
the
Case 5:16-cv-01354-C
Nation for inaction and
resources
along the
are
a
or
specific
trust lands and
party
to numerous
lawsuits before the Indian
are
identified
173A, 190, 271, 282, 282A-L, and 297. None of
decisions in those lawsuits limit the claim the Nation makes for
an
for restitution in this lawsuit.
or
The Cherokee Nation has been
89.
Defendants of
28 of 50
related to various Cherokee Trust Funds and
Docket Nos. 2, 24, 26, 42, 123, 173,
accounting
Page
Arkansas Riverbed.
Claims Commission which
the claims, orders,
Filed 11/28/16
mismanagement by
The Cherokee Nation has been
88.
by
Document 1
a
party
to numerous lawsuits and
appeals
in other
federal courts that relate to various elements of the Cherokee Trust Fund. Those lawsuits
are
addressed in the
following
Western Cherokee Indians
Nation, 28 Ct. Cl.
Journeycake
Ct. Cl. 138
v.
United
23 S.Ct. 115
Delaware Indians
(1935);
Cherokee Nation
States,
United States
Cherokee Nation, 15 S.Ct. 55
v.
v.
v.
46 S.Ct. 428
Cherokee Nation
v.
v.
(1891); Journeycake
Old
Settlers,
Whitmire
(1894);
Cherokee Nation, 19 S. Ct. 722
(1902);
Delaware Indians
v.
(1905);
United States
v.
Eastern Cherokees
(1945); Cherokee
532, 124 Ct. Cl. 315 (1953); Choctaw Nation
28
v.
Cherokee
13 S.Ct. 650
v.
(1893);
Cherokee Nation, 30
(1899); Cherokee
Nation
(1904); Cherokee
Nation
v.
Nation
(1924); Cherokee
Nation
v.
United States, 82 Ct. Cl. 180
v.
United States, 82 Ct. Cl. 456
United States, 102 Ct. Cl. 720
v.
The
Cherokee Nation, 26 S.Ct. 588
United States, 59 Ct. Cl. 862
(1926);
(1886);
Cherokee Nation, 38 Ct. Cl. 234
Cherokee Nation, 24 S. Ct. 342,
United States, 40 Ct. Cl. 252
(1906);
Cherokee Trust Funds, 6 S.Ct. 718
United States, 27 Ct. Cl. 1
(1893);
(1895); Stephens
Hitchcock,
(1903);
v.
281
v.
orders:
v.
Oklahoma,
(1936);
Cherokee Nation
United States, 109 F.
396 U.S. 620
(1970);
v.
Supp.
United
Case 5:16-cv-01354-C
States
Document 1
Cherokee Nation, 474 F.2d 628
v.
Nation, 480 U.S.
700
(1987).
This Court has
jurisdiction
and 1362; 28 U.S.C.
no
2201 and
claim here for money
Through
91.
a
receives
this
accounting
an
Cherokee
decisions in those lawsuits
or
over
this action pursuant to 28 U.S.C.
2202; and
5 U.S.C.
1331, 1361
702 and 706. The Nation makes
3
appropriations acts, Congress
waived the United States'
suit and deferred accrual of potential claims until each Indian tribe
meaningful accounting.
accounting
suit,
v.
and for restitution in this lawsuit.
Venue is proper in this court under 28 U.S.C.
92.
for
a
United States
damages.
series of
sovereign immunity to
claims, orders
29 of 50
JURISDICTION AND VENUE
III.
90.
an
Page
(Fed. Cir. 1973);
None of the
limit the claim the Nation makes for
Filed 11/28/16
as
well
are
equitable,
as some
and
a
significant part
of the Trust Funds
portions
of the events and omissions
managed by
located within the Western District of Oklahoma,
Government's management of the
1391 because the Nation's claims
Defendants
including
of the Trust Funds
are or
basing
have been
without limitation the
relating
to the
Cherokee
Outlet, the Cherokee Strip, the Cherokee Saline Deposits, and the Chilocco School
Grounds.
3
See Pub. L. No. 102-154, 105 Stat. 990 (1991); Pub. L. 102-381, 106 Stat.
1374 (1992); Pub. L. No. 103-138, 107 Stat. 1379 (1993); Pub. L. No. 103-332, 108 Stat.
2499 (1994); Pub. L. No. 104-134, 110 Stat. 1321 (1996); Pub. L. No. 104-208, 110 Stat.
3009 (1996); Pub. L. No. 105-83, 111 Stat. 1543 (1997); Pub. L. No. 105-277, 112 Stat.
2681 (1998); Pub. L. No. 106-113, 113 Stat. 1501 (1999); Pub. L. No. 106-291, 114 Stat.
922 (2000); Pub. L. No. 107-63, 115 Stat. 414 (2001); Pub. L. No. 108-7, 117 Stat. 11
(2003); Pub. L. No. 108-108, 117 Stat. 1241 (2003); Pub. L. No. 108-447, 118 Stat. 2809
(2004); Pub. L. No. 109-54, 119 Stat. 499 (2005); Pub. L. No. 110-161, 121 Stat. 1844
(2007); Pub. L. No. 111-88, 123 Stat. 2904 (2009).
29
Case 5:16-cv-01354-C
Filed 11/28/16
Document 1
Page
30 of 50
IV.
UNITED STATES' CONTROL OVER THE NATION'S GOVERNMENT AND ASSETS
93.
The Nation's government has been in continual existence since time immemorial
through
the United States
taking control
illegally
over
and
wrongfully
below. Nonetheless,
all of the Nation's property, and
governmental actions,
position
starting
in the late 1890s,
controlled the Cherokee Nation's government,
managing the Nation's
After Oklahoma statehood in 1907, defendants
94.
their
signed
the date this document is
refused to release tribal
affairs.
illegally refused to recognize
tribal
funds, and misinterpreted the law to justify
that the chiefs of the Five Tribes could
only
be
appointed by
federal
officials.
The Nation
95.
adopted
sovereign authority.
authority
a new
Constitution in 1976 pursuant to the Nation's inherent
Prior to 1976, the Nation continued to exercise
but the citizens of the Nation
democracy
in that
they were deprived
free and open elections.
their duties. And,
They were
importantly
were
of the
denied the basic
right to
also denied the
to this
choose their
rights
own
right to remove
governmental
common
public
to any
officials
by
officials who failed in
action, the United States controlled the Tribe's
government and made all choices concerning the Nation's Trust Funds. These actions
were
all found to be contrary to law in
1978).
As
recognized in the Harjo
Harjo
v.
Kleppe,
420 F.
Supp.
1110
(D.C. Cir.
decision:
The available evidence clearly reveals a pattern of action on the part of the
Department and its Bureau of Indian Affairs designed to prevent any tribal
resistance to the Department's methods of administering those Indian
affairs delegated to it by Congress. This attitude, which can only be
characterized as bureaucratic imperialism, manifested itself in deliberate
attempts to frustrate, debilitate, and generally prevent from functioning the
30
tribal governments
April 26, 1906,
34
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
Page
28 of the
expressly preserved by
Stat. 137].
31 of 50
[Five Tribes]
Act
[of
Id. at 1130,
The last
96.
popularly
After his elected term
elected
chief of the Nation
principal
expired, Rogers
was
became the first of many
William C.
Rogers.
federally appointed
chiefs of the Nation.
97.
Tribal affairs continued and when the United States needed
of the
Nation, the President would appoint
providing
sole
such
repository
exercised
a
signature.
These "chiefs"
of the Nation's
complete
control
over
tribal
they
were
deprived
of the
elections.
They were
98.
a
As
were
also denied the
developed by Defendants, whereby
treated
illegally
rights
own
right to remove
a
behalf
common
public
as
the
the United States
funds, sale
or
lease
behalf of the Nation.
on
to any
officials
appointing
appointed
Such individuals included Edward M.
Defendants
democracy in
by
that
free and open
officials who failed in their duties.
process of
Defendants
of tribal
of claims
prosecution
by
though
even
budgets, expenditure
to choose their
result, and for example,
singular day.
were
denied the basic
right
on
"chief' for the Nation for the purpose of
governmental authority
of tribal assets, collection of debts, and
The citizens of the Nation
a
signature
a
an
"Chief for
a
individual
Frye, Richard
B.
as
a
Day"
"chief' for
Choate, Charles
a
J.
Hunt, Oliver H.P. Brewer, Jr., and William W. Hastings.
99.
The United States did not
require
its
appointed
chiefs to maintain any records of
their actions. In 1906 the United States took control of the Nation's records. When the
passed
a new
constitution in the 1970s, the United States returned
31
few, if any, records
memorializing the
the
actions taken
prior nearly seventy years,
records from times
prior
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
by United
nor
to 1907
Page
States Government
on
32 of 50
behalf of the Nation for
did the United States return to the Nation the
complete
that the United States took from the Nation.
Instead,
of the Nation's records in various
Defendants took the Nation's
records, placed
federal
other of the Nation's records in the historical archives of
repositories
and
placed
the State of Oklahoma. The United States
actions taken in the
Nation's
name
governmental
powers,
nor
has the United States
always had,
and continue to
acknowledged
Defendants have
Nation with
sought
a
record of the
illegally usurped
to restore the
the
historical
UNITED STATES' TRUSTEESHIP
the Nation for their management and control
101.
provided the
keep from the Nation.
V.
Defendants have
never
of the Nation after the United States
records which it continues to
100.
some
their
have,
a
continuing duty to account to
Cherokee Trust Funds.
over
duty
to account to
the Cherokee Nation
on
numerous occasions:
A.
In the
Treaty of Washington,
States
agreed
to account
9 Stat. 871
(Aug. 6, 1846)
the United
for the monies from the New Echota
Treaty
that the United States mishandled.
B.
In the
Treaty of
with the
C.
1866 the United States
ability to inspect any
In The Act of Mar.
provide
to
agreed
to
provide
of its accounts at any time
the Nation
(Art. 22).
3, 1893, 27 Stat. 612, the United States agreed
the Cherokee Nation
a
"complete
account
to
of moneys due the
Cherokee Nation under any of the treaties ratified in the years 1817,
32
Document 1
Case 5:16-cv-01354-C
Filed 11/28/16
Page
33 of 50
1819, 1825, 1828, 1835-6, 1846, 1866, and 1868, and any laws passed
by
the
Congress
treaties,
D.
or
of the United States for the purpose of
canying
said
any of them, into effect
The Act of Mar. 2, 1895, 28 Stat. 764, directed the
review and make
a
"restatement" of the
Attorney General
accounting completed
to
under
The Act of Mar. 3, 1893, 27 Stat. 612.
E.
The Act of
Apr. 4, 1910,
36 Stat.
269, required Defendants
to account
for the Nation's money, among other things.
F.
The Act of Mar. 3, 1911, 36 Stat. 1058,
for the Nation's money, among other
G.
required
things.
The Act of Aug. 24, 1912, 37 Stat. 518,
required
for the Nation's money, among other
expenditure
H.
The Act of June 30, 1913, 38 Stat. 77,
cause
a
Treasury to
Indians
It also
and
prohibited
required that the "Secretary
on or
before
July 1,
The Act of May 18, 1916, 39 Stat. 123,
Secretary
things,
system of bookkeeping
Bureau of Indian Affairs"
the
Defendants to account
the
of "tribal funds" except in certain limited instances.
Interior shall
I.
Defendants to account
account for "the
to be
of the
installed in the
1914.
required Defendant Secretary
receipts to,
and
expenditures
of
which the
of the Interior recommends to be made for the benefit of the
from, all tribal funds of Indians for the ensuing fiscal year
required
Secretary of the
the Bureau of
Interior
a
Efficiency
to
"prepare
and submit to the
system of bookkeeping and accounting for the
33
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
Page
Bureau of Indian Affairs that will enable the said
July first,
Secretaiy,
nineteen hundred and seventeen, to meet the
twenty-six
section
34 of 50
of the Indian
Appropriation
Act
on or
before
of
requirements
June
approved
thirtieth, nineteen hundred and thirteen
J.
The American Indian Trust Fund
Interior to "account for the
by
Reform Act of 1994, 108
preexisting requirement
Stat. 4239, restates the
trust
Management
daily
are
Secretary
of the
and annual balance of all funds held in
the United States for the benefit of
individual Indian which
for the
deposited
an
Indian tribe
or
an
invested pursuant to section
or
162a of this title."
K.
The American Indian Trust Fund
Stat. 4239,
requires
provided the
possible
L.
the
Secretaiy
of the
4239,
[Cherokee Nation's] funds
restates
and
trust fund
resources
to the earliest
possible
as
date
Management Reform Act of 1994,
108
alia, provide "adequate systems for accounting for
inter
natural
complete accounting
Secretaiy of the Interior's longstanding
the
obligation to,
reporting
108
of the Interior to attest that it has
Cherokee Nation with "as full and
The American Indian Trust Fund
Stat.
Management Reform Act of 1994,
balances, and
to
"[a]ppropriately manag[e]
the
located within the boundaries of Indian reservations
and trust lands" which
are a
part of the Cherokee Trust Fund.
34
M.
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
Page
35 of 50
The Indian Trust Asset Reform Act of 2016, Pub L. 114-178, reaffirms
the United States' duties to the Cherokee Nation under the treaties and
laws set out herein, while
have thus far not
Trust
continuing
implemented
to
modify the
federal systems that
regarding
the federal trust duties
Funds, including the United States' duty
to account for
the
the Trust
Funds.
N.
regulations, manuals, directives, policies,
Other federal statutes,
orders
impose
a
duty
on
and
the United States to account to the Nation for
the United States' management the Cherokee Trust Funds.
102.
In
1898, the United States passed the Curtis Act which required
changes relating to the lands, assets,
103.
In
and funds of the
1902, the Cherokee Nation ratified
concerning the manner of allotment set out by the
104.
The Curtis Act and the 1902
lands to its Citizens under
to
a
lands of the Cherokee
established
4
by the
Nation,
to
to one
agreement with the United States
Curtis Act.
by the
as
the allotment of the Nation's
Government. Tribal citizens
hundred and ten
conform
acres
Government survey, which land may be selected
35
were
of the average allottable
nearly as may be to the
Act of June 28, 1898, 30 Stat. 495.
number of
Nation.4
Agreement required
process conducted
receive, "land equal in value
an
a
areas
by
and boundaries
each allottee
so as
Document 1
Case 5:16-cv-01354-C
to
include his
Filed 11/28/16
Page
36 of 50
improvements."5 During the first half of the 20th Centmy, the Government
allotted the Nation's lands.
105.
No
106.
No
Nation.
accounting for the
allotment of the Nation's lands
provided to the Nation.
was
for reservations from the Nation's lands
accounting
Such reservations
were
made
churches. Some of these reservations
for,
inter
was
provided
to the
alio, cemeteries, schools, missions, and
provided the
Nation with
a
reversionary interest
the lands if the land ceased to be used for its reserved purpose
or was
in
otherwise
abandoned.
107.
and
Following
referred to
as
"surplus
during
the process of
lands" that
were
owned
Government for the Nation's benefit. To
Surplus
108.
Lands has been
The Government
Surplus
Lands
beneficiary
as
provided by the
was
not
allotment, the
date,
Government sold property
by
the Nation but
no
accounting
managed in
for the
trust
disposition
by the
of these
Government to the Nation.
authorized to
dispose
of the Nation's interest in these
part of the property interests equitably owned by the Nation, qua
of the Government's
trusteeship,
in the
manner
in which these lands
were
disposed.
109.
The Curtis Act reserved oil and gas and minerals
Cherokee Nation. The oil and gas and minerals
by the
Curtis Act
5
belong to the
1902
underlying
(hereinafter,
"Mineral
Cherokee Nation. The Government
Agreement at
11.
36
allotted land to the
was
Assets")
not
reserved
authorized to
dispose
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
of the Nation's interest in the Mineral Assets that
Page
were
37 of 50
reserved
by
the Curtis
Act.
1906 Act for the Five Tribes
110.
Later, the
111.
It is believed that
not know
of the Nation's lands
some
exactly what lands were
112.
Within the Trust
Nation
including,
inter
coal and mineral
permitted the
sale of certain lands.
were never
sold, but the Nation does
sold and not sold.
Fund, the United States held and managed
vast resources for the
alia, land, surface leases for agriculture, oil and gas mining leases,
leases, sand and gravel leases, businesses,
town
lots, income from
property owned by the Nation, and monetary funds.
113.
The United States
never
provided a full
and
complete accounting to
the Nation for
its management of the Trust Fund.
RELEVANT FEDERAL ACCOUNTING ACTIVITIES
V.
AND FINANCIAL CONCEPTS
114.
The General
issues
accounting pronouncements
Accounting
Office
("GAO") is
an
relevant to various
agency of the United States that
departments
and activities of the
federal government.
115.
On information and
transactions
accounting
involving
records
the Nation's property
were
such transactions and
belief, when the United
not
created
by the
States received funds in respect to
interests, the appropriate financial and
United States to
accurately record
dealings involving the Nation's properties
37
and assets.
or
disclose
116.
Accordingly,
the United States must correct all
accounting and financial records
other transactions
117.
to
Page
38 of 50
(and incomplete)
erroneous
accurately reflect details
of transfers,
deposits,
and all
involving the Nation's properties held in trust by the United States.
SSFAS No. 5 is
methodology
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
for federal
one
source
of federal financial
entities, such
as
Interior,
regulations
to follow
with
that addresses the
regard to accounting
to
the Nation.
118.
Accordingly,
Government
responsibility to bear the
depleted as
a
obligated
is
to
for
account
and
recognize
its
estimated costs to restore the Nation's trust funds that have been
result of the Government's failure to account for
or
manage the Trust Funds
in accordance with the Government's trust duties.
119.
Until very
sovereignty,
managing
when the Nation
Interior and its
and the
use
including
to exercise
Congress required the
more
responsibilities
United States to
of its inherent
responsibility
the management of mineral
of Cherokee land for economic
The Government has substantial
Fund. In 1994,
began
took upon themselves the
sub-agencies
the Nation's resources,
development,
120.
recently
exploration
of
and
development.
for the management of the Trust
provide
the
Nation, and all other
Native American Indian Tribes, with reconciled account statements for their Tribal Trust
Accounts
121.
by September 30,
As recited
1995.
herein, the United States committed
to
provide
an
accounting
Nation of the Trust Fund, at least twice per year.
122.
The 1994 Reform Act
was
codified at 25 U.S.C.
38
4044, which
states:
to the
Case 5:16-cv-01354-C
Filed 11/28/16
Document 1
Page
39 of 50
The Secretaiy shall transmit to the Committee on Natural Resources of the
House of Representatives and the Committee on Indian Affairs of the
Senate, by May 31, 1996, a report identifying for each tribal trust fund
account for which the Secretary is responsible a balance reconciled as of
September 30, 1995. In canying out this section, the Secretary shall consult
with the Special Trustee. The report shall include--
(1)
a
description
of the
Secretary's methodology
in
reconciling
trust
fund
accounts;
(2) attestations by each account holder that--
(A) the Secretary has provided the account holder with as full and
complete accounting as possible of the account holder's funds to the
earliest possible date, and that the account holder accepts the balance
as reconciled by the Secretaiy; or
the account holder disputes the balance of the account holder's
reconciled by the Secretaiy and statement explaining why
the account holder disputes the Secretary's reconciled balance; and
(B)
account as
(3) a statement by the Secretary with regard to each account balance
disputed by the account holder outlining efforts the Secretary will
undertake to resolve the dispute.
123.
Even while
Congress required
Defendants to account, the Bureau
preliminary assessment of its duty to reconcile
a
part of that assessment, Defendants decided
period
1973-1992. Defendants
subsequently
124.
Defendants also later
agreed
reconciliation
project.
Even
though
upon
the
agreed
upon
project required
procedures
a
trust fund transactions in March 1992. As
to
only perform reconciliation
decided to add the time
"procedures"
period
for the time
1993-1995.
that would be used in the
the Federal Government's contractor for this
reconciliation, Arthur Anderson, stated in the report that
that the reconciliation
began
an
accounting
was
to the Nation for its Trust
did not allow Arthur Anderson
required accounting to the Nation.
39
transmitted to the Nation
or
Interior to
Funds,
provide
the
125.
Beyond
was
required by
"procedures"
Defendants' admission that the reconciliation
the 1994 Reform Act, there
for the reconciliation
failure to
perform
limitation
on
did not
place
but stated the
to
the
project,
accounting
the reconciliation
a
temporal
accounting
project
limitation
assets,
analyze
were
and in the
required by
as
to the
was
40 of 50
not the
accounting
project
itself These include:
the 1994 Reform Act;
responsibility
to
(ii)
1972-1992
provide
an
a
(i)
a
scope
(Congress
accounting,
possible date"); (iii)
a
failure
and investment of the tribal trust accounts; and
Interior's and Interior's
that
many deficiencies in Defendants'
should extend back to "the earliest
including the mineral
Page
20-year time period
Interior's
on
properly analyze the management
failure to
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
(iv)
a
sub-agency's management of the Nation's trust
and estate assets held in trust for the Nation.
VI.
CAUSE OF ACTION
FIRST COUNT: ACCOUNTING
Paragraphs
127.
The Nation has substantial interests in Trust Funds that
the United States
Funds
were
1
through
incorporated by reference.
126.
or
125
have been
obtained
are
subject
are
to the United States'
variously by treaty,
held, and managed, by
trusteeship.
other agreements,
or
These Trust
by congressional
or
administrative action.
128.
The United States is
required
managed by the United States,
trusteeship, including
129.
The fact that
or
to
provide
an
accounting
which have otherwise been
of the Trust Funds held
subject to the United
or
States'
all elements of the Trust Fund described herein.
an
accounting
has not been
management of the Trust Fund constitutes
an
40
provided by
the United States for the
illegal deprivation
of the Nation's interests
and has
impermissibly impacted the Nation's ability to
provide greatly needed services
130.
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
An
example
of
a
accounted for is the saline
and economic
Page
41 of 50
govern itself and its
people,
or
to
development in the Nation's community.
portion
of the Trust Fund that the United States has not
deposits
described herein. In 1893, the President of the United
States, by proclamation took the Nation's saline deposits and sold them notwithstanding
the
Aug. 7,
1882 Act
express, limited
provided that
provisions
which
for the moneys received have
131.
An additional
federal statutes
example,
mandating
of June 28, 1898
ever
requiring
the
leasing
of "said salines shall continue"
were
not at issue. No
been
provided to the
Cherokee
the United States acted
action
benefiting
among other
the
things
accounting
as a
subject to
for those actions
nor
Nation.6
trustee
Nation, including
pursuant
inter alia:
to
specific
1) The
Act
that mineral interests be reserved to the
Cherokee Nation, all lands not reserved under the statute be allotted to the members of
the Cherokee
Nation; 2) The
Act of June 6, 1900, 31 Stat. 66,
1903, 32 Stat. 774, prohibiting cutting of Timber
26, 1906, which placed control
over
Cherokee
all
buildings
amended
placed
on
lands; 3) The
land records with the U.S. Courts,
the Cherokee Schools with Defendant Interior,
money with Defendant
over
over
on
as
control
January 21,
Act of April
placed
over
control
all Cherokee
Interior, reserved coal and asphalt land from sale, placed control
owned
by
the Cherokee Nation with Defendant
6
Interior, provided for
While the Saline Deposits are referenced, they are only one example of the
Government's failure and refusal to account for the management of the Nation's Trust
Funds. The demand for an accounting relates to the Nation's entire Trust Funds
including, without limitation, all lands owned by the Nation which the Government sold
at least in part to pay money or other items to the Nation; all leases; all minerals; all
rights of navigation; all rights to hunt and fish; and all moneys.
41
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
the continuation of allotment and the sale of unallotted
Interior to collect and
Nation's land from
leasing of land, oil,
provide
an
land
or
money owned
gas, town
an
accounting for all
as
by
42 of 50
lands, authorized Defendant
Nation, and prohibited the
the
4) various regulations permitting the
lots, and buildings.
Order from this Court
compelling
elements of the Trust Funds that
examples
are
the United States to
held
or
have been held
Nation, including without limitation those
the United States qua trustee for the
elements described
and
becoming public land;
The Nation seeks
132.
by
recover
Page
of the Trust Fund.'
SECOND COUNT:
ACCOUNTING AS A FEDERAL TRUST RESPONSIBILITY
133.
Paragraphs
A.
134.
1
through
132
are
incorporated by reference.
ACCOUNTING
Where the Government takes
Funds,
a
respect
to
fiduciary relationship
on or
has control
or
supervision
over
the Trust
exists between the Government and the Nation with
such Trust Funds, and the
obligation
to manage
the Trust Funds must, at
a
minimum, comport with statutory directives.
135.
25 U.S.C.
4011
provides:
7
Until the United States provides an accounting to the Nation for the
management of the Nation's Trust Funds the Nation cannot present a claim for the
damages that may result from the United States' potential breaches of obligations to the
Nation. Accordingly, no claim is presented for money damages in this action because the
Nation has never been provided the accounting that would support such a claim.
However, the Nation reserves the right to bring such a claim for money damages in the
future should an accounting demonstrate such a claim or claims to be appropriate, and if
restitution of the Cherokee Trust fund in this litigation does not provide complete relief to
the Nation for the United States' refusal to account.
42
Case 5:16-cv-01354-C
a) Requirement to
Document 1
Filed 11/28/16
Page
43 of 50
account
The Secretaiy shall account for the daily and annual balance of all funds
held in trust by the United States for the benefit of an Indian tribe or an
individual Indian which are deposited or invested pursuant to The Act of
June 24, 1938 (25 U.S.C. 162a).
Periodic statement of performance
(b)
Not later than 20 business
days after the close of a calendar quarter, the
statement
a
of performance to each Indian tribe and
shall
provide
Secretary
individual with respect to whom funds are deposited or invested pursuant to
The Act of June 24, 1938 (25 U.S.C. 162a). The statement, for the period
concerned, shall identify-(I) the source, type, and status of the funds;
(2) the beginning balance;
(3) the gains and losses;
(4) receipts and disbursements; and
(5) the ending balance.
(c) Annual audit
The Secretary shall cause to be conducted an annual audit on a fiscal year
basis of all funds held in trust by the United States for the benefit of an
Indian tribe or an individual Indian which are deposited or invested
pursuant to The Act of June 24, 1938 (25 U.S.C. 162a), and shall include a
letter relating to the audit in the first statement of performance provided
under subsection (b) of this section after the completion of the audit.
136.
Interior has failed to
U.S.C.
provide
4011 and 25 U.S.0
to
the Nation any of the
4044, and the United States has failed
accounting required by the Treaties, agreements,
137.
The Nation is
required
to
provide
an
seeking
an
accounting
and statutes
as
set out
Order from this Court
whereby
of Trust Funds that
held
United States qua trustee for the Nation
B.
accounting required by
as
are
or
to
the United States is
have been held
MANAGING ASSETS IN THE NATION'S BEST INTERESTS
the
herein.
required by treaties, agreements,
43
provide
25
by
the
and statutes.
Document 1
Case 5:16-cv-01354-C
138.
Interior
generally,
and its
Filed 11/28/16
sub-agencies specifically,
None of the
requirements
being implemented by
out
set out in 25 U.S.C.
Interior. These
44 of 50
have been and
charged with the trust responsibility for managing the Nation's
139.
Page
currently
Trust Funds.
162a have been
obligations include,
are
without
or are
adequately
limitation, those
set
herein.
140.
Interior has not and is not
reporting
on
the Nation's financial
providing adequate systems
for
accounting
balances, including the accrual of proper
for and
amounts of
interest.
141.
Interior has not and is not
providing adequate
disbursements from the Nation's accounts that
142.
Interior has not
reconciliations to
143.
is not
including the
over
receipts
and
managed or controlled by Interior.
are
providing
the
Nation with
periodic, timely
the accuracy of accounts.
Interior has not and is not
accounts,
144.
assure
and
controls
determining
accurate cash balances in the Nation's
accrual of proper amounts of interest.
Interior has not and is not
statements of its account
preparing
performance
and
supplying
the Nation with
periodic
and with balances of its account available
on a
daily basis.
145.
Interior has not and is not
for trust fund management and
146.
147.
written
accounting for the Nation's
Interior has not and is not
for trust fund management and
establishing consistent,
and
procedures
accounts
providing adequate staffmg, supervision,
accounting for the
Interior has not and is not
policies
and
traiiiing
Nation's accounts.
appropriately managing the Nation's natural resources.
44
Case 5:16-cv-01354-C
Filed 11/28/16
Page
The Nation has substantial interests in Trust Funds that
148.
and
Document 1
managed by
the United States.
other agreements,
or
These interests
action.
by congressional
manage the Tribe's trust assets, accounts and
provide
a
were
Nation, constitutes
a
and have been
are
obtained
held,
variously by treaty,
The United States' failure to
properly
funds, coupled with Interior's refusal
complete accounting of the federal management
of the Cherokee
45 of 50
to
Trust Funds in the best interest
breach of Defendant's trust
responsibility
to
the
Tribe.
149.
As
a
remedy,
the Nation seeks
an
injunction requiring that the United States:
Provide the Nation with as full and complete an accounting as possible of
the Nation's funds, assets and natural resources to the earliest possible date.
(1)
Provide adequate systems for
trust fund balances.
(2)
accounting
for and
reporting
the Nation's
Provide adequate controls over receipts and disbursements from the
(3)
Nation's funds that are managed or controlled.
Provide periodic, timely reconciliations to assure the
(4)
managed or controlled for the Nation by the United States.
Determine accurate cash balances
(5)
managed by the United States.
Prepare and supply the
(6)
performance and with balances
on a daily basis.
Establish
management and
(7)
accuracy of accounts
in the Nation's accounts that
Nation with periodic statements of its account
of its account and make such statements available
consistent, written policies and procedures for
accounting
are
trust
fund
of the Nation's accounts.
Provide adequate staffmg, supervision, and
management and accounting for the Nation's accounts.
(8)
training
for trust fund
manage the natural resources located within the boundaries
of the Cherokee Nation in accordance with statutory and regulatory requirements.
(9)
Appropriately
45
(10)
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
Page
46 of 50
Restore those Cherokee Trust Funds for which the United States cannot
account.
THIRD COUNT:
AN
ADMINISTRATIVE PROCEDURE ACT CLAIM
ACCOUNTING AS
150.
Paragraphs
151.
Interior has not and is not
1
through
149
are
incorporated by reference.
providing adequate systems
for
accounting
for and
reporting the Nation's trust fund balances.
152.
Interior has not and is not
providing adequate
disbursements from the Nation's accounts that
153.
Interior has not
reconciliations to
154.
assure
and
is not
are
controls
over
receipts
and
managed or controlled by Interior.
providing
Nation with
the
periodic, timely
the accuracy of accounts.
Interior has not and is not
determining
accurate cash balances in the Nation's
accounts.
155.
Interior has not and is not
statements of
its account
preparing
performance
and
supplying
the Nation with
periodic
and with balances of its account available
on a
daily basis.
156.
for trust fund management and
157.
establishing consistent,
Interior has not and is not
accounting for the Nation's
Interior has not and is not
for trust fund management and
Interior has not and is not
159.
Interior has not
policies
and
procedures
accounts.
providing adequate staffmg, supervision,
accounting for the Nation's
158.
possible
written
and
training
accounts.
appropriately managing the Nation's natural resources.
provided
the Nation with
of the Nation's funds to the earliest
as
possible
46
full and
date.
complete accounting
as
Case 5:16-cv-01354-C
160.
well
Filed 11/28/16
Document 1
Page
47 of 50
Because the United States breached any and each of these duties set out herein
as
other
obligations specifically
set forth in
as
treaties, other statutes, regulations, and
orders, the United States, through its agencies and sub-bureaus has acted contrary
statutoly obligations and the Plaintiffs
to
entitled to review thereof under 5 U.S.C.
are
702.
161.
Accordingly,
arbitrarily,
and
the United States,
capriciously,
through
its
agencies
and sub-bureaus has acted
and such action constitutes final agency action and the
withholding of agency action that is required.
162.
As
a
remedy,
the Nation seek
an
injunction requiring that the United
States:
Provide the Nation with as full and complete accounting as possible of the
Nation's funds, assets and natural resources to the earliest possible date.
(1)
Provide adequate systems for
trust fund balances.
(2)
accounting
for and
reporting
the Nation's
Provide adequate controls over receipts and disbursements from the
Nation's funds that are managed or controlled.
(3)
Provide periodic, timely reconciliations to assure the
(4)
managed or controlled for the Nation by the United States.
Determine accurate cash
(5)
managed by the United States.
accuracy of accounts
balances in the Nation's accounts that
are
Prepare and supply the Nation with periodic statements of its account
(6)
performance and with balances of its account and make such statements available
on a daily basis.
Establish
management and
(7)
trust
fund
for trust
fund
consistent, written policies and procedures for
accounting
of the Nation's accounts.
Provide adequate staffing, supervision, and
management and accounting for the Nation's accounts.
(8)
47
training
Filed 11/28/16
Document 1
Case 5:16-cv-01354-C
manage the natural
Page
48 of 50
located within the boundaries
of Indian reservations and trust lands in accordance with statutory and regulatory
(9)
Appropriately
resources
requirements.
(10)
Restore those Cherokee Trust Funds for which the United States cannot
account.
RELIEF
REQUESTED
Wherefore, the Nation requests the relief set
that this Court order Defendants to make
the Trust Funds
wasted, lost,
seeks its costs of suit
to
or
including,
Justice Act and under
herein. The Nation also requests
whole, restore, replenish, reconstitute,
unaccounted for
without
out
by
the Government.
or
repair
The Nation also
limitation, attorneys' fees under the Equal Access
general principles
of law and
equity,
and the fees and costs of
expert assistance. The Nation also requests that this Court provide all other relief as this
Court deems necessary and
equitable.
48
Case 5:16-cv-01354-C
Document 1
Filed 11/28/16
Respectfully submitted
Page
49 of 50
this
28th Day of November, 2016,
fa d Hembree, 0 z A No. 14739
Attorney General
Chrissi Nimmo, OBA No. 22248
Assistant Attorney General
Chad Harsha, OBA No. 31579
Assistant Attorney General
Courtney Jordan, OBA No. 31982
Assistant Attorney General
John Young, OBA No. 31889
Assistant Attorney General
THE CHEROKEE NATION OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 948
Tahlequah, OK 74465-0948
Tel 918-456-0671
Fax 918 458-5580
iodd-hembree [email protected]
Email
kLeA
Sara Elizabeth Hill, OBA No, 20072
Secretary of the Environment and Natural
Resources
CHEROKEE NATION OFFICE OF THE
ENVIRONMENT AND NATURAL RESOURCES
P.O. Box 948
Tahlequah, OK 74465-0948
Tel 918-207-3836
Fax 918-458-6142
Email
sarah-hill.richerokee.org
49
Case 5:16-cv-01354-C
Document 1
Filed 11/28/16
Page
50 of 50
David F Askman, CO Bar No. 44423
Michael Frandina, CO Bar No. 42116
ASKMAN LAW FIRM LLC
1543 Champa Street, Suite 400
Denver, Colorado 80202
Tel 720-407-4331
[email protected]
[email protected]
Michael Goodstein, DC Bar No. 469156
Anne Lynch
Toby Munoz
HUNSUCKER GOODSTEIN, PC
5335 Wisconsin Ave. N.W.
Suite 360
Washington, DC 20015
Tel 202-895-5380
Email
[email protected]
[email protected]
Jason B. Aamodt, OBA No. 16974
Deanna Hartley, OBA No. 19272
Krystina E. Phillips, OBA No. 30111
Dallas L.D. Strimple, OBA No. 30266
INDIAN AND ENVIRONMENTAL LAW GROUP
204 Reunion Center
Nine East Fourth Street
Tulsa, Oklahoma 74103
Tel 918-347-6169
Email
jason@iaelaw. com
deannaa@iaelaw. corn
krystina@iaelaw. corn
dallas@iaelaw. com
50
Case 5:16-cv-01354-C Document 1-1 Filed 11/28/16 Page 1 of 2
CIVIL COVER SHEET
JS 44 (Rev. 11/15)
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
CHEROKEE NATION
DEPARTMENT OF THE INTERIOR, et al.
Cherokee County, et al
(b) County of Residence of First Listed Plaintiff
County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES)
NOTE:
(c) Attorneys (Firm Name, Address, and Telephone Number)
Jason B. Aamodt, Todd Hembree, Sara Hill, Dave Askman & M.
Goodstein - 9 East 4th St., Ste. 204, Tulsa, OK. 74103 918-347-6169
II. BASIS OF JURISDICTION (Place an “X” in One Box Only)
’ 1
U.S. Government
Plaintiff
’ 3
Federal Question
(U.S. Government Not a Party)
’ 2
U.S. Government
Defendant
’ 4
Diversity
(Indicate Citizenship of Parties in Item III)
(IN U.S. PLAINTIFF CASES ONLY)
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only)
PTF
Citizen of This State
’ 1
DEF
’ 1
and One Box for Defendant)
PTF
DEF
Incorporated or Principal Place
’ 4
’ 4
of Business In This State
Citizen of Another State
’ 2
’
2
Incorporated and Principal Place
of Business In Another State
’ 5
’ 5
Citizen or Subject of a
Foreign Country
’ 3
’
3
Foreign Nation
’ 6
’ 6
IV. NATURE OF SUIT (Place an “X” in One Box Only)
CONTRACT
’
’
’
’
’
’
’
’
’
’
’
’
TORTS
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veteran’s Benefits
160 Stockholders’ Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
’
’
’
’
’
’
’
PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers’
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education
FORFEITURE/PENALTY
PERSONAL INJURY
’ 365 Personal Injury Product Liability
’ 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
’ 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
’ 370 Other Fraud
’ 371 Truth in Lending
’ 380 Other Personal
Property Damage
’ 385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
’ 463 Alien Detainee
’ 510 Motions to Vacate
Sentence
’ 530 General
’ 535 Death Penalty
Other:
’ 540 Mandamus & Other
’ 550 Civil Rights
’ 555 Prison Condition
’ 560 Civil Detainee Conditions of
Confinement
’ 625 Drug Related Seizure
of Property 21 USC 881
’ 690 Other
BANKRUPTCY
’ 422 Appeal 28 USC 158
’ 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
’ 820 Copyrights
’ 830 Patent
’ 840 Trademark
LABOR
’ 710 Fair Labor Standards
Act
’ 720 Labor/Management
Relations
’ 740 Railway Labor Act
’ 751 Family and Medical
Leave Act
’ 790 Other Labor Litigation
’ 791 Employee Retirement
Income Security Act
’
’
’
’
’
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS
’ 870 Taxes (U.S. Plaintiff
or Defendant)
’ 871 IRS—Third Party
26 USC 7609
IMMIGRATION
’ 462 Naturalization Application
’ 465 Other Immigration
Actions
OTHER STATUTES
’ 375 False Claims Act
’ 376 Qui Tam (31 USC
3729(a))
’ 400 State Reapportionment
’ 410 Antitrust
’ 430 Banks and Banking
’ 450 Commerce
’ 460 Deportation
’ 470 Racketeer Influenced and
Corrupt Organizations
’ 480 Consumer Credit
’ 490 Cable/Sat TV
’ 850 Securities/Commodities/
Exchange
’ 890 Other Statutory Actions
’ 891 Agricultural Acts
’ 893 Environmental Matters
’ 895 Freedom of Information
Act
’ 896 Arbitration
’ 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
’ 950 Constitutionality of
State Statutes
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original
Proceeding
’ 2 Removed from
State Court
’ 3
Remanded from
Appellate Court
’ 4 Reinstated or
Reopened
’ 5 Transferred from
Another District
(specify)
’ 6 Multidistrict
Litigation
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
5 USC Sec 702,706
VI. CAUSE OF ACTION Brief description of cause:
Breach of trust for failure to account
’ CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE
CHECK YES only if demanded in complaint:
’ Yes
’ No
JURY DEMAND:
DEMAND $
0.00
DOCKET NUMBER
SIGNATURE OF ATTORNEY OF RECORD
/s/ Jason B. Aamodt, Esq.
11/28/2016
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
APPLYING IFP
JUDGE
MAG. JUDGE
JS 44 Reverse (Rev. 11/15)
Case 5:16-cv-01354-C Document 1-1 Filed 11/28/16 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)
(b)
(c)
Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II.
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV.
Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.
V.
Origin. Place an "X" in one of the six boxes.
Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.
When this box is checked, do not check (5) above.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII.
Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.