OPINION AND ORDER
JAMES F. MEROW, Senior Judge.
By statute this court lacks jurisdiction over any suit "for or in respect to" claims that are pending in another court. Defendant's Motion to Dismiss contends that plaintiff's previously-filed district court complaint shares substantially the same operative facts as this, the second-filed action. For the following reasons, because plaintiff's district court litigation was pending at the time the instant matter was filed, and was "for or in respect to the same claim," applying 28 U.S.C. § 1500 (2006) as recently clarified by United States v. Tohono O'Odham Nation, 131 S.Ct. 1723 (2011), defendant's Motion is GRANTED.
Plaintiff, Muscogee (Creek) Nation of Oklahoma ("Muscogee") filed this action on December 28, 2006, alleging defendant has not properly managed its tribal trust assets and seeking damages for breach of trust. One week earlier, on December 20, 2006, Muscogee filed suit in the United States District Court for the District of Columbia against several federal officials. Muscogee (Creek) Nation of Okla. v. Kempthorne,1 No. 1:06-cv-02161, ECF No. 1 (D.D.C.). Muscogee's Complaint in the district court alleges the United States mismanaged tribal funds, land, natural resources and other assets and failed to render adequate accountings. Judicial review of management and record-keeping is requested, as well as an accounting and a reconciliation of trust funds and assets.
Pending before this court is defendant's Motion to Dismiss for Lack of Jurisdiction, ECF No. 32, filed June 13, 2011. Muscogee's Opposition, ECF No. 33, was filed on July 14, 2011. Defendant's Reply, ECF No. 36, was filed on August 1, 2011. Defendant's Notices of Supplemental Legal Authority (ECF Nos. 37, 38, 39 40 and 41) were filed on October 13 and 28, November 18 and 21 and December 2, 2011, respectively.
Legal Standards
A. Jurisdiction
Litigation against the United States requires an explicit waiver of sovereign immunity. "The United States, as sovereign, is immune from suit save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586 (1941). A waiver of immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969).
Moreover, jurisdiction is a threshold foundational requirement. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). Muscogee has the burden of establishing jurisdiction. Keener v. United States, 551 F.3d 1358, 1361 (Fed. Cir. 2009) (citing Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991)); Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)). "The objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006); see also Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) ("[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time." (citing Arbaugh, 546 U.S. at 506)); Diggs v. Dep't of Housing & Urban Dev., ___ F.3d ___, 2011 WL 5153618, at *2 (Fed. Cir. Nov. 1, 2011). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." RCFC 12(h)(3).
B. 28 U.S.C. § 1500
28 U.S.C. § 1500 precludes this court from exercising jurisdiction over a claim if at the time of filing that claim the plaintiff "has pending in any other court" another suit against the United States (or against individuals acting under the authority of the United States) "for or in respect to" that claim.
The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.
In Tohono the Supreme Court clarified that § 1500 "effects a significant jurisdictional limitation" on the CFC, designed to "save the Government from burdens of redundant litigation," 131 S. Ct. at 1729-30, and that for the purposes of § 1500, "[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit." Id. at 1731.
Procedural History
Muscogee's Complaint in the district court was filed on December 20, 2006. On December 28, 2006, Muscogee filed its Complaint in the CFC. The Parties' Joint Motion for Temporary Stay of Litigation was granted on February 21, 2007.2 (Order, ECF No. 6.) The stay was renewed nine times at the request of the parties. (ECF Nos. 8, 15, 17, 20, 22, 25, 27, 30 & 35.)
Defendant's Motion to Dismiss,3 ECF No. 32, contends that Tohono dictates dismissal because Muscogee filed its CFC Complaint for damages for alleged breaches of fiduciary duty and mismanagement of trust assets while its district court case, based on substantially similar operative facts, was pending.
Muscogee's initial objection in its Opposition, ECF No. 33, that defendant's Motion to Dismiss violates the Stay of Litigation, is incorrect. As defendant observes, the parties' latest request for a stay filed July 20, 2011, ECF No. 34, and granted on July 22, 2011, ECF No. 35, extended the stay "through January 25, 2012, except for the limited task of briefing and determining whether the Court has subject-matter jurisdiction over this case." Moreover, in the Parties' Joint Status Report filed July 20, 2011 in the district court action (the latest in a series of seven reporting on related litigation in the CFC, settlement attempts and other matters), consideration of the jurisdictional matters issues presented here was acknowledged:
Notwithstanding the briefing of the Section 1500 issue in the cases pending in the CFC, the parties have jointly requested that the CFC maintain a temporary stay of litigation in each of those cases, except for the limited task of having the Parties complete briefing on the application of Section 1500 so that the CFC can determine whether it has subject-matter jurisdiction over each case.
(D.D.C., Parties' Joint Status Report 5, ECF No. 42.) As for the substance of the Motion to Dismiss, Muscogee denies there is a substantial similarity in operative facts between the two cases.
Discussion
The CFC's jurisdiction under the Indian Tucker Act, 28 U.S.C. § 1505, comprises a limited waiver of sovereign immunity which grants Native American tribes the right to bring suit in this court. United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) ("[T]he Indian Tucker Act[] confers a . . . waiver for Indian tribal claims that `otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe,' § 1505."). The Tucker Act grants the CFC jurisdiction over "any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1). Neither the Tucker Act nor the Indian Tucker Act grants any substantive rights; a plaintiff must establish an independent substantive right to money damages from the United States in order for the case to proceed. See generally United States v. Mitchell, 463 U.S. 206 (1983). In Indian trust cases, the substantive right must be found in statutes from which a trust relationship can be inferred, and from which a money remedy for breach can reasonably be implied. Id. at 217-18.
Despite the existence of a substantive cause of action, § 1500, when applicable as determined in Tohono, divests this court of jurisdiction requiring dismissal of the litigation. The plaintiff in Tohono filed an action in district court against federal officials alleging breaches of fiduciary duty in the management of tribal trust assets and seeking equitable relief including an accounting. 131 S. Ct. at 1727. One day later, the plaintiff filed a complaint in the CFC, asserting nearly identical breaches of fiduciary duties based upon the same tribal assets and sources of fiduciary obligations, but seeking money damages. Id. The CFC dismissed its case, holding that "Section 1500 divests this court of jurisdiction over plaintiff's claim because it arises from the same operative facts and seeks the same relief as the claim in district court."4 Tohono O'odham Nation v. United States, 79 Fed. Cl. 645, 659 (2007). The United States Court of Appeals for the Federal Circuit reversed, holding that § 1500 is applicable only if the claims in both forums "arise from the same operative facts" and "seek the same relief." Tohono O'Odham Nation v. United States, 559 F.3d 1284, 1287 (Fed. Cir. 2009) (quoting Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1551 (Fed. Cir. 1994) (en banc) ("For the Court of Federal Claims to be precluded from hearing a claim under §1500, the claim pending in another court must arise from the same operative facts, and must seek the same relief."). As the relief sought in the CFC action (damages) differed from that sought in the district court (an accounting), the Federal Circuit concluded § 1500 did not apply to deprive the CFC of jurisdiction.
The Supreme Court reversed the Federal Circuit's Opinion in United States v. Tohono O'Odham Nation, 131 S.Ct. 1723 (2011), holding that any difference in requested relief was not determinative of whether two suits are "for or in respect to" the same claim within the meaning of § 1500. "The rule is more straightforward than its complex wording suggests. The CFC has no jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim pending against the United States or its agents." Tohono, 131 S. Ct. at 1727. The Court explained that "[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit." Id. at 1731. The Court held that the statute's use of the phrase "`in respect to' does not resolve all doubt as to the scope of the jurisdictional bar, but `it does make it clear that Congress did not intend the statute to be rendered useless by a narrow concept of identity.' It suggests a broad prohibition, regardless of whether `claim' carries a special or limited meaning."5 Id. at 1728 (quoting Keene, 508 U.S. at 213). The Supreme Court concluded, as the CFC had, that the suits had "substantial overlap in operative facts" based upon the identity of the trust assets and the breaches of fiduciary duty alleged, and commented, "[i]ndeed, it appears that the Nation could have filed two identical complaints, save the caption and prayer for relief, without changing either suit in any significant respect." Id. at 1731. Thus the CFC lacked jurisdiction. When the district court case was either dismissed or "complete[d]," the plaintiff would be "free to file suit again in the CFC if the statute of limitations is no bar." Id. See also Yankton Sioux Tribe v. United States, No. 2009-5027, 2011 WL 3873846, at *1 (Fed. Cir. Sept. 2, 2011) (unpublished decision) ("[T]he Court of Federal Claims lacks jurisdiction if a suit based on substantially the same operative facts is pending in a district court regardless of whether the complaints seek overlapping relief."), aff'g Yankton Sioux Tribe v. United States, 84 Fed. Cl. 225 (2008).
The Supreme Court observed that § 1500 uses "claim" and "cause of action" synonymously. 131 S. Ct. at 1728 (quoting Keene, 508 U.S. at 210). Because "cause of action" refers "simply to facts without regard to judicial remedies," the bar of § 1500 applies to claims arising from the same operative facts. Id. at 1729. That the two actions request different relief is not relevant. Precluding jurisdiction based on substantial factual overlap is "consistent with the doctrine of claim preclusion, or res judicata, which bars `repetitious suits involving the same cause of action.'" Id. at 1730 (quoting Commissioner v. Sunnen, 333 U.S. 591, 597 (1948)). See also Trusted Integration, 659 F.3d at 1164 (noting that the Supreme Court in Tohono "observed. . . that because § 1500 embodies principles of res judicata, determining whether two suits arise from substantially the same operative facts for purposes of that provision can be informed by how claims are defined for res judicata purposes.").
In defense of its filing sequence, Muscogee explains that until Tohono, it was well-settled that two actions do not present the same "claim" unless they both (1) arise from the same operative facts and (2) seek the same relief. See Loveladies, 27 F.3d at 1551-52; accord Harbuck v. United States, 378 F.3d 1324, 1328 (Fed. Cir. 2004). Accordingly, the two Muscogee suits were relief-driven — seeking disparate remedies — separate paths sanctioned by Loveladies. Moreover, Muscogee adds, its two cases are distinguishable from those in Tohono.
Defendant maintains that Muscogee's district court action and the instant action are based on substantially the same operative facts, thus precluding jurisdiction in this court under Tohono.
In its Motion to Dismiss, defendant reserved the right to contest the jurisdiction of the district court. (Def.'s Mot. Dismiss 11, n.8, ECF No. 32.) Perhaps anticipating possible statute of limitations issues should this CFC case be dismissed followed by the dismissal of the district court litigation, Muscogee's CFC Complaint includes a section titled "Equitable Tolling/Delayed Accrual" with nine paragraphs identifying statutory mandates for audit, reconciliation and accounting and requiring defendant to certify through an independent party, reconciliation of tribal trust funds, as well as legislation providing that "`the statute of limitations shall not commence to run on any claim concerning losses to or mismanagement of trust funds until the affected tribe or individual Indian has been furnished with an accounting of such funds from which the beneficiary can determine whether there has been a loss.'" (CFC Compl. ¶ 26 (quoting Pub. L. 101-512).) It is asserted that a report subsequently performed by the accounting firm of Arthur Andersen was inadequate, incomplete, fraudulently concealed fiduciary breaches and failed to attempt to audit prior to fiscal year 1988. Because of these deficiencies, it is claimed that the full extent of losses and damages could not be ascertained. For these reasons Muscogee asserts, it commenced the district court action for an accounting.
Muscogee does not dispute that both suits allege breaches of trust by the United States, nor that the sources of that trust are the same; Muscogee does not contend there is any substantial disparity in the trust assets underlying both actions — money, land and natural resources. The differences, it is contended, are that the breaches alleged in the district court related to the government's duty to maintain records of account and to provide Muscogee with a full and complete audit or accounting with respect to all trust assets. In contrast, the CFC suit alleges breaches of trust in connection with specific trust transactions — e.g., leasing of real estate at less than fair market value, failure to invest funds prudently, although cautioning that lack of adequate accounting has prevented discovery of additional transactions that may have involved fiduciary lapses.
On December 28, 2006, Muscogee filed a complaint in the CFC alleging breach of fiduciary duty against the USA. The Tribe seeks monetary damages, with interest, due it resulting from the USA's past and present mismanagement of the Tribe's monetary and non-monetary trust assets. The CFC complaint delineates the duties owed by USA which include those duties set forth in 25 C.F.R. §§ 115.01-115, 1001 and 25 U.S.C. § 177 to administer the trust assets with the greatest skill and care which includes the duty to ensure that the Tribe's trust property and funds are protected, preserved and managed as to produce the highest and best use and monetary return (CFC Comp. ¶¶ 12-24). In the CFC, Muscogee seeks to analyze specific trust transactions to establish that the USA's management fell below the applicable standard of care for a prudent trustee. . . .
About a week earlier, on December 20, 2006, Muscogee had filed a separate and different complaint in the District Court, Case No. 1:06-CV-2161-JR, alleging the government breached its narrowly-defined duty to provide a historical accounting of trust activity. At paragraph 22 of the District Court complaint, it is stated that by the Act of December 22, 1987, pub. L. No. 100-202, 101 Stat. 1329, Congress imposed two requirements on defendant: 1) that they audit and reconcile tribal trust funds, and 2) that they provide an accounting of such funds. See also paragraphs 16 and 18 which generally describe the duty of defendant to provide an accurate, complete and timely accounting of trust activity.
(Pl.'s Opp'n Mot. Dismiss 4-5, ECF No. 33.)
Muscogee insists that the fiduciary duties in each case are independent of each other, and that the proof and trial evidence necessary to prevail in the two cases are different. The trial in the district court will be dominated by accounting issues presented by forensic experts on whether the government failed to provide an accounting that comports with fiduciary standards. In contrast, the trial in the CFC will be dominated by evidence relating to the handling of particular trust transactions and assets such as whether specific contracts for the sale of natural resources provided Muscogee with market value, whether leases required fair rentals, whether trust funds received the highest interest available, etc. Expert testimony as to the market value of timber, gravel, land leases, rights of way, etc. will be tendered concerning whether defendant breached its fiduciary duties to Muscogee and if so, the monetary or consequential damages suffered.
That certain facts may be required to establish a legal theory articulated in one complaint but not the other does not prevent a finding that two complaints constitute the same claim for purposes of § 1500. As the Federal Circuit recently explained in Trusted Integration:
since Keene, it has been clear that the legal theories asserted before the district court and the CFC are irrelevant to whether the claims arise from substantially the same operative facts. See Keene Corp., 508 U.S. at 212 (noting that § 1500 bars a subsequent suit even if `the two actions were based on different legal theories....'). Because the same operative facts gave rise to both Count I of the CFC complaint and at least one of the counts in the district court complaint, the CFC correctly concluded that it lacked subject matter jurisdiction over Count I under § 1500.
659 F.3d at 1166 (alteration in original) (footnote omitted).
While the respective complaints may detail different fiduciary failures, the underlying source and scope of trust obligations are the same. It is this substantial factual overlap rather than any difference in remedies, breaches, or requested relief that triggers § 1500. See Tohono, 131 S. Ct. at 1727 (answering affirmatively the inquiry "whether a common factual basis . . . suffices to bar jurisdiction under § 1500"). Analogous to cited res judicata principles, as well as proscriptions against claim splitting, these Indian trust cases simply do not lend themselves to differentiations sufficient to preclude application of § 1500. "The nature of Indian trust cases and the government's trust responsibility owed to Indian tribes does not lend itself to a simple delineation or separation of operative facts as they pertain to the government's various duties owed to Indian tribes." Ak-Chin Indian Cmty. v. United States, 80 Fed. Cl. 305, 320 (2008).
Muscogee has not identified sufficient operative factual differences to distinguish its cases from those in Tohono.6 While the breaches may differ, the trust relationship is the same. Despite some variation in requested relief, legal theories and predicted difference in evidentiary proof, side-by-side parsing of the two Complaints in the Appendix hereto, confirms substantial shared operative facts. That the accounting sought in the district court suit (required incident to fiduciary responsibilities as well as by statute) may be a predicate for at least proof of damages or identification of additional breaches in the CFC action, does not overcome the reality of substantial shared operative facts.
Other CFC cases have reached the same conclusion in similar cases. See Yankton Sioux Tribe v. United States, 84 Fed. Cl. 225 (2008) (holding, despite the plaintiff's contention that the operative facts were distinct in each suit, the plaintiff's federal district court and CFC suits presented substantially the same operative facts and dismissing under § 1500), aff'd, No. 2009-5027, 2011 WL 3873846 (Fed. Cir. Sept. 2, 2011) (unpublished decision); Lower Brule Sioux Tribe v. United States, No. 06-9226, slip op. (Fed. Cl. Dec. 1, 2011); Prairie Band of Potawatomi Indians v. United States, No. 06-921L, 2011 WL 5925328 (Fed. Cl. Nov. 29, 2011); Coeur d'Alene Tribe v. United States, No. 06-940L, 2011 WL 5822177 (Fed. Cl. Nov. 18, 2011); Iowa Tribe of Kan. and Neb. v. United States, No. 06-920L, 2011 WL 5600535 (Fed. Cl. Nov. 17, 2011); Oglala Sioux Tribe v. United States, No. 05-1378L, slip op. (Fed. Cl. Oct. 27, 2011); Winnebago Tribe of Neb. v. United States, No. 06-913L, 2011 WL 5042385 (Fed. Cl. Oct. 25, 2011); Omaha Tribe of Neb. v. United States, No. 06-911L, 2011 WL 4793244 (Fed. Cl. Oct. 7, 2011); Cheyenne River Sioux Tribe v. United States, No. 06-915L, slip op. (Fed. Cl. Oct. 7, 2011) (unpublished order); Stillaguamish Tribe of Indians v. United States, No. 06-916L, slip op. (Fed. Cl. Oct. 7, 2011) (unpublished order); Red Cliff Band of Lake Superior Chippewa Indians v. United States, No. 06-923L, slip op. (Fed. Cl. Sept. 19, 2011) (unpublished order); E. Shawnee Tribe of Okla. v. United States, 82 Fed. Cl. 322 (2008), rev'd, 582 F.3d 1306 (Fed. Cir. 2009), vacated, 131 S.Ct. 2872 (2011); Ak-Chin Indian Cmty. v. United States, 80 Fed. Cl. 305 (2008). See also Stockton E. Water Dist. v. United States, ___ Fed. Cl. ___, 2011 WL 5154463, at *7 (Oct. 31, 2011) (applying Tohono to taking and due process claims).
Whether in connection with a request for an accounting (or a better accounting) or a determination of compensatory damages, the court would be presented with evidence in connection with the government's management and administration of tribal assets. The nature of Indian trust cases and the government's trust responsibilities do not segment into distinct operative facts or trust duties, irrespective of remedies sought.
Unlike regulatory disputes, suits brought by Indian tribes, claiming a breach of trust, do not neatly separate between the exclusively injunctive relief typical in a district court APA review of agency action on the one hand, and, on the other hand, a suit here for money damages flowing from the consequences of that agency action. In substance, the action for breach of trust in this court is an equitable proceeding that produces a monetary remedy. Thus while the court has jurisdiction because of the demand for money, the process for getting to that relief is fundamentally equitable, meaning that there is potential overlap of both the accounting and money aspects of the two complaints.
Tohono, 79 Fed. Cl. at 657.
Moreover, it is not the case that jurisdiction for an equitable accounting in all instances rests solely with district courts such that Muscogee had no choice but to file in the federal district court to obtain an accounting. Rather, "`the court has the power to require an accounting in aid of its jurisdiction to render a money judgment on that claim.'" Id. at 653 (citing Klamath & Modoc Tribes v. United States, 174 Ct. Cl. 483, 490-91 (1966)). As the court observed in the original Tohono opinion, assuming the existence of a trust as well as a breach, then "[t]he United States, as trustee, would have to meet plaintiff's prima facie case of breach with a full accounting for its conduct. In short, assuming this action were to proceed in this court, and plaintiff satisfied its burdens of proof, what would ensue would amount to an accounting, albeit in aid of judgment." Id. at 653. While the scope of available accounting relief in the CFC is not before the court, it is sufficient to note the likelihood of substantial evidentiary overlap in this regard. See Tohono, 131 S.Ct. 1735 n.5 (Sotomayor, J., concurring).
Indeed, despite its contention that the district court suit will be dominated by accounting issues, Muscogee also requests declaratory and mandatory injunctive relief to compel the government to manage tribal assets and trust funds in "full compliance with all applicable law and with their duties as the Plaintiff's guardian and trustee." (D.D.C. Compl. ¶ 36, ECF No. 1.)
Accordingly, for the foregoing reasons, the court finds that Muscogee's district court complaint and its subsequently-filed CFC complaint involve substantially the same operative facts for purposes of § 1500.7
CONCLUSION
Accordingly, for the above-stated reasons, defendant's Motion to Dismiss for Lack of Jurisdiction, ECF No. 32, filed June 13, 2011, is GRANTED. Muscogee's Complaint, ECF No. 1, is dismissed for lack of subject-matter jurisdiction pursuant to 28 U.S.C. § 1500. The Clerk is directed to enter judgment accordingly.
It is so ORDERED.
APPENDIX A
INTRODUCTION, PARTIES, JURISDICTION, AND STATEMENT OF FACTS
DISTRICT COURT COMPLAINT (ECF No. 1) COURT OF FEDERAL CLAIMS
COMPLAINT (ECF No. 1)
"This is an action by [Muscogee] for an accounting "This is an action for money damages, with interest,
and a reconciliation of its trust funds, for equitable against the Defendant, United States of America. This
relief, and for such other relief as the Court deems cases arises out of Defendant's breaches and
appropriate." continuing breaches of its constitutional, statutory,
(D.D.C. Comp. ¶ 1.) regulatory, treaty, common law and other legal,
accounting, fiduciary and management duties owed to
[Muscogee] to generate, invest and manage
[Muscogee's] tribal trust assets and property in the
manner prescribed by applicable law."
(CFC Compl. ¶ 1.)
"[Muscogee] is a federally recognized Indian tribe, "[Muscogee] is a federally recognized Indian tribe,
recognized by the United States as a sovereign Indian recognized by the United States as a sovereign Indian
tribe with legal rights and responsibilities. tribe with legal rights and responsibilities.
[Muscogee] has a governing body duly recognized by [Muscogee] has a governing body duly recognized by
the Secretary of the Interior. [Muscogee] is also the Secretary of the Interior. [Muscogee] is also
recognized by the United States as a Tribe which is recognized by the United States as a Tribe which is
eligible for the special programs and services provided eligible for the special programs and services provided
by the United States to Indians because of their status by the United States to Indians because of their status
as Indians, and because of [Muscogee's] treaties and as Indians, and because of [Muscogee's] treaties and
other agreements with the United States." agreements with the United States, various Acts of
(Id. ¶ 2.) Congress and federal common law."
(Id. ¶ 2.)
Defendants are the Secretary of the Interior, "charged The defendant is the United States of America.1
by law with carrying out the duties and responsibilities (Id. ¶ 3.)
of the United States as trustee for [Muscogee];" the
Secretary of the Treasury, "the custodian of
[Muscogee's] trust funds ... responsible for the
administration of those funds and for the preparation
and maintenance of records in connection with those
funds;" and the Special Trustee for American Indians,
with duties and responsibilities "detailed in the Act of
October 25, 1994, Pub. L. No. 103-412, 108 Stat.
4239."
(Id. ¶¶ 3, 4 & 5.)
Jurisdictional grounds include 28 U.S.C. §§ 1331 and "This Court has jurisdiction over the subject matter of
1362 as well as treaties and other federal statutes this action under the Tucker Act, 28 U.S.C. § 1491
governing the legal relationship with the United and the Indian Tucker Act 28 U.S.C. § 1505 in that
States. 28 U.S.C. § 1361 and 5 U.S.C. §§ 702, 704 this action involves claims brought by an Indian tribe
and 706 are also invoked to compel federal officers to ... for money damages arising, under the constitution,
perform duties owed to Muscogee. laws, treaties and regulations of the United States,
(Id. ¶ 6.) Executive Orders of the President and federal common
law governing the administration and management of
property and assets held by the United States in trust
for [Muscogee].... The Court also has jurisdiction
over the subject matter under the Constitution of the
United States and the American Indian Trust Fund
Management Reform Act of 1994, 25 U.S.C. § 4001 et
seq., ... which requires, in part, the Defendant to
provide [Muscogee] with a full and complete
accounting to the earliest possible date. 25 U.S.C.
4044."
(Id. ¶ 4.)
"[Muscogee] is a party to, and/or the successor in Muscogee is the beneficial owner of certain monies
interest to, the signatories of certain Indian treaties currently or previously held in trust by the United
with the United States and it is the beneficial owner of States, land valuable for grazing, agriculture and
certain monies currently or previously held in trust for recreational uses, and other assets held in trust. Trust
[Muscogee] by the United States, as well as of certain assets also include the natural resources on that land,
land and other trust assets, title to which is held in including water, timber, hunting and fishing, oil, gas,
trust by the United States for the benefit of the Tribe. coal, salt and a variety of mineral reserves.
[Muscogee] is also the owner of the natural resources (Id. ¶ 9.)2
located on their land held in trust and managed by the
United States, including, among others: water, timber,
and a variety of mineral reserves. [Muscogee's] trust
holdings also include land which is valuable for
grazing, agricultural and recreational use, and for other
purposes."
(Id. ¶ 8.)
Defendant has "approved, among others: (A) "Defendant has assumed control and management
agreements for the use and extraction of natural over the trust property and trust resources of
resources which are or were located on [Muscogee's] [Muscogee].... Defendant has approved leases,
trust property, (B) leases of [Muscogee's] trust lands, easements, rights of way and other conveyances of the
(C) easements across [Muscogee's] trust land, (D) property and the resources which are located upon it.
grazing permits on [Muscogee's] trust land, and (E) Defendant has also approved various third party uses
other grants, to third parties, of the authority to use and taking of said land and resources. In so doing the
certain of [Muscogee's] trust lands and natural Defendant assumed responsibility for the collection,
resources for specific purposes ... [and] in certain deposit and investment of the income generated or
limited instances, conveyed the title ... to third parties which should have been by such conveyances and use
and ... approved the use of certain of [Muscogee's] rights."
trust lands for Federal purposes. By granting these (Id. ¶ 13.)
rights, the Defendant ... assumed the legal
responsibility for the collection of fair and equitable
compensation for those conveyances or uses
including, but not limited to: royalty payments,
grazing fees, rents, purchase prices, and such other
fees and payments as are or were appropriate."
(Id. ¶ 12.)
"Under the terms of its treaties, and under other "Congress has granted the Secretary of the Interior the
applicable law, tribal land held in trust and the tribal authority to approve certain limited conveyances of
resources located on those trust lands are inalienable certain interests in [Muscogee's] trust lands and trust
except as authorized by Congress, or by the terms and resources, including but not limited to: leases,
conditions of [Muscogee's] treaties with the United easements, rights of way, resource harvesting and
States.... Congress has granted the Secretary of the resource use agreements. Federal law establishes the
Interior the authority to approve conveyances of terms and conditions under which such conveyances
certain interests in [Muscogee's] trust lands and trust may be made. Federal law also generally requires that
resources, including but not limited to: leases, compensation be paid to [Muscogee] for the
easements, rights of way, resource harvesting and conveyance and/or use of its trust lands and trust
resource use agreements. Federal law establishes the resources."
terms and conditions under which such conveyances (Id. ¶ 10.)
may be made. Federal law also generally requires that
compensation be paid to [Muscogee] for the
conveyance and the use of tribal lands and tribal trust
resources."
(Id. ¶ 9.)
"Because the United States holds [Muscogee's] trust "Because the United States holds [Muscogee's] trust
lands, trust resources and the proceeds generated by or lands, trust resources and the proceeds generated by
from the use, sale, or taking of said resources in trust, and from the use, sale, or taking of said resources in
it has assumed the obligations of a trustee.... As trust, it has assumed the obligations of a trustee . . . .
trustee, the United States has a fiduciary relationship As trustee, the United States has a fiduciary duty to
with [Muscogee] and an obligation to administer the [Muscogee] and an obligation to administer the trust
trust with the greatest skill and care possessed by the with the greatest skill and care possessed by a trustee.
trustee." The United States has charged itself with a moral
(Id. ¶ 14.) obligation of the highest responsibility and trust in its
"The trust obligation of the United States includes, conduct with Indian tribes and its conduct should
among other duties, the duty to ensure that tribal trust therefore be judged by the most exacting fiduciary
property and trust funds are protected, preserved and standards. . . . This includes a duty to insure that the
managed so as to produce the highest and best use and tribal trust property, funds and assets are protected,
return to the tribal owner consistent with the trust preserved and managed in full compliance with the
character of the property. Said duty requires the Defendant's duties and applicable law."
United States to further insure that [Muscogee] is (Id. ¶ 14.)
afforded its full rights to compensation."
(Id. ¶ 15.)
"Defendant and his predecessors have, when they took
office, assumed the responsibility for the collection of
the payments...and...have assumed the responsibility
for the investment of the corpus of the trust, including
the trust assets, the income that was and is being
generated by [Muscogee's] trust lands, and trust
resources and by the other trust monies paid to
[Muscogee]."
(Id. ¶ 13.)
"The trust obligations of the United States also include "The trust obligation of the United States includes,
... the duty to: (A) collect the trust funds rightfully among other duties, the duty to insure that tribal trust
owed to [Muscogee]; (B) create trust accounts to hold property and trust funds are protected, preserved and
those funds[;] (C) insure that the monies owed or paid managed so as to insure the highest and best use of
for the loss or use of tribal lands and trust resources those assets and where applicable the highest revenue
are placed into those accounts[;] (D) maintain to the tribal owner consistent with the trust character
adequate records with respect to [Muscogee's] trust of the property. Said duty requires the United States
property[;] (E) maintain adequate systems and controls to further insure that [Muscogee] is afforded its full
to guard against errors or dishonesty; (F) provide rights to compensation for any taking of trust assets as
regular and accurate accountings to [Muscogee] as the required by the Constitution of the United States and
trust beneficiary; (G) refrain from self-dealing or other applicable law, and that it administer those
benefiting from the management of the trust property; duties with the greatest skill and care possessed by a
(H) insure the Federal Government's compliance with trustee."
the protections afforded [Muscogee] under the (Id. ¶ 16.)
Constitution of the United States and other applicable "The Defendant . . . also has the responsibility to:
law [;] and (I) to consult with [Muscogee] regarding A. Provide adequate systems for accounting
the management of its trust property." for and reporting trust fund balances;
(Id. ¶ 16.) B. Providing adequate controls over receipts
"Congress imposed two requirements on the and disbursements;
Defendants: (1) that they audit and reconcile tribal C. Providing periodic and timely
trust funds, and (2) that they provide the tribes with an reconciliations to insure the accuracy of
accounting of such funds. Congress reaffirmed these accounts;
two mandates in subsequent statutes.... Congress D. To determine accurate cash balances;
further required that the Defendants certify, through an E. To prepare and supply account holders with
independent party, the results of the reconciliation of periodic statements of their account
tribal trust funds as the most complete reconciliation performance and with balances of their
possible of such funds. The Arthur Anderson report account to be available on a daily basis;
clearly and admittedly does not meet these F. To establish consistent, written policies and
requirements." procedures for trust fund management and
(Id. ¶ 22.) accounting;
G. To provide adequate staffing, supervision
and training for trust funds management and
accounting; and
H. To appropriately manage the natural
resources located within the boundaries of
Indian reservations and trust lands."
(Id. ¶ 17.)
"[T]rust obligations of the United States include
... the duty to: (a) exercise opportunities to obtain
monetary benefits from [Muscogee's] trust land and
resources, (b) enter into reasonable contracts to advance
those opportunities, (c) timely collect the trust funds
rightly owed to [Muscogee], (d) timely create trust
accounts to hold those funds, (e) insure that the monies
owed or paid for the loss or use of trust lands and
resources are placed in those accounts in a timely manner,
(f) maintain adequate records with respect to
[Muscogee's] trust property, (e) [sic] maintain adequate
systems and controls to guard against error or dishonesty,
(g) provide regular and accurate accountings to
[Muscogee] as the trust beneficiary, (h) refrain from
self-dealing or benefiting from the management of the trust
property, (l) [sic] insure the Federal Government's
compliance with the protections afforded [Muscogee]
under the Constitution of the United States and other
applicable law, and (j) consult with [Muscogee] regarding
the management of its trust property."
(Id. ¶ 18.)
"Defendants have never rendered a full, accurate or "For at least the past several decades, Defendant's
timely audit or accounting to [Muscogee] of its trust accounting for, management of, and exercise of other
assets, or provided [Muscogee] with a clear statement fiduciary responsibilities and control over Indian trust
as to the origin or use of all of the funds in each of funds has been thoroughly examined and highly
those accounts.... Defendants have kept and continue criticized by private entities, various government
to keep [Muscogee], who is the trust beneficiary, agencies, Congress and the courts. Problems
uninformed as to: (A) the trust property, trust funds identified include, but are not limited to, the
and trust resources it owns or owned, (B) the income Defendant's inability to account for funds due to its
and interest that [Muscogee's] currently owned and loss of or failure to keep records, undue delays in
previously owned trust property, resources and funds making investments, and poor investment decision-making,
have produced, and (C) what disposition — if any — has such as investing in failed financial
been made of that income; and (D) whether the United institutions. The Defendant's continuing widespread
States has properly managed [Muscogee's] trust and well-documented Indian trust fund
assets." mismanagement, and other breaches of trust have
(Id. ¶ 18.) affected and continue to affect [Muscogee's] trust
"[M]ismanagement ... has resulted in losses to assets and have caused and continue to cause
[Muscogee], a trust beneficiary. However, the extent monetary losses to [Muscogee]."
of the losses is unknown to [Muscogee] at this time (Id. ¶ 21.)
because the Defendants have: "Defendant has failed to keep records of and/or has
(A) failed to provide [Muscogee] with a full failed to keep proper records regarding [Muscogee's]
and complete accounting of the source of its trust accounts and assets, and that these failures
trust funds, continue to this day. Defendant has never provided
(B) failed to provide [Muscogee] with an [Muscogee] with a full and meaningful accounting of
accurate accounting of the amount contained its trust assets and trust funds. Indeed, before filing
in each of its accounts, and the few reports that this action, [Muscogee] filed a complaint in the United
it has provided, like the one prepared by States District Court captioned as 1:06-CV-0261JR
Arthur Anderson, are incomplete and [sic], demanding a full accounting of its trust
inaccurate, accounts, trust assets and trust property. To date, the
(C) failed to provide [Muscogee] with a Defendant has failed to provide that accounting or
comprehensive statement of the use and other sufficient information which would otherwise
investment of its trust funds and the interest afford [Muscogee] the ability to determine whether,
earned on those dollars, and to what extent, it has suffered a loss as a result of
(D) failed to maintain accurate books and the Defendant's continual negligence, wrongdoing or
records of [Muscogee's] account, other breaches of trust."
(E) lost and destroyed relevant trust account (Id. ¶ 22.)
records, "Defendant has failed to obtain and continues to fail to
(F) failed or refused to disclose known losses, obtain the maximum investment return possible . . . on
or unmade or incomplete payments to [Muscogee's] trust funds. This breach of fiduciary
[Muscogee] ..., duty has caused and continues to cause monetary loss
(G) failed or refused to reimburse trust to [Muscogee]."
beneficiaries for losses to their trust funds, and (Id. ¶ 23.)
(H) failed to properly create certain trust "Complaints voiced by tribal leaders and other third
accounts and deposit the appropriate monies in parties led the Congress of the United States to
those accounts." undertake an investigation into Defendant's
(Id. ¶ 21.) management and oversight over tribal trust accounts.
"To date, the Defendants have failed to provide E.g. Cobell [v. Norton, 240] F. 3d 1081 (D.C. Cir.
[Muscogee] with a full, accurate and timely 2001). Congress has recognized the gross breaches of
accounting of its trust funds and have failed to meet trust here complained of, as have the General
their other statutory and legal obligations to Accounting Office and the Office of Management and
[Muscogee] leaving them in clear breach of their trust Budget. The Office of Management and Budget
responsibility." consistently placed the financial management of
(Id. ¶ 26.) Indian trust funds, including those belonging to the
[Muscogee], as a `high risk liability' to the United
States."
(Id. ¶ 24.)
