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EXHIBIT 3

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IN TH UNITED STATES COURT OF FEDERAL CLAIMS

(1) UNITED KEETOOW AH BAN OF CHEROKEE INDIANS IN OKLAHOMA Plaintiff,
v.

) )
)

)
)
Case

FILED DEC 292006
No.

)

THE UNITED STATES OF AMERICA,
AND

DIR KEMPTHORNE,
in his offcial capacity as SECRETARY OF THE INTERIOR,
U.S. Department of

the Interior

1849 C Street, N.W. Washington, D.C. 20040

) ) ) ) ) ) ) ) )
)

06-936 L

AND

HENRY M. PAULSON, in his official capacity as SECRETARY OF THE TRASURY
U.S. Department of

the Treasur

1500 Pennsylvania Avenue, N.W. Washington, D.C. 20220
Defendants.

) ) ) ) ) ) ) ) ) )

)
)

COMPLAINT
Nature of Action
1. This is an action for damages and declaratory and injunctive relief brought by the

United Keetoowah Band of Cherokee Indians in Oklahoma ("Keetoowah Cherokees") against

the United States of America ("United States" or "Federal Governent"), which served as
trstee for certain monies, lands and other assets belonging to the Keetoowah Cherokees, and
against the Secretary of Interior and Secretary of the Treasury acting in their official capacities as

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trstee-delegates of the United States. The Keetoowah Cherokees seek a declaratory judgment

delineating the trst duties of the United States to the Keetoowah Cherokees and declaring the
failure of the United States to fulfill its trst duties including but not limited to its duty to protect

the monies, lands and assets of the Keetoowah Cherokees, provide any historical accounting of

trbal monies, lands and other assets or provide a reconciliation report regarding the same. The
Keetoowah Cherokees seek a judgment declaring the transfer and sale of lands with which the

Keetoowah Cherokees had a beneficiary interest by the United States was wrongful and
reinstating the same to the Keetoowah Cherokees. The Keetoowah Cherokees seek an injunction

requiring the United States to fulfill its trst duties, including but not limited to its duty to
provide the Keetoowah Cherokees with an historical accounting of all trbal monies, lands and
other assets that the United States held in trust at any time since the inception of the trst

relationship. The Keetoowah Cherokees seek damages arsing out ofthe above-described acts.

PARTIES
2. Plaintiff, the United Keetoowah Band of Cherokee Indians in Oklahoma, is a

sovereign Indian trbe based in Tahlequah, Oklahoma, acknowledged by the United States as an
Indian tribe, with all the legal rights and responsibilities of a federally recognized Indian trbe.

3. Defendant United States acts as trstee for certin monies, lands and other assets
rightfully belonging to the Keetoowah Cherokees. The United States delegated certain of its

trst responsibilities over such assets to the Secretary of Interior, who is charged by law with
carrng out certain duties and responsibilities of the United States as trstee for the Keetoowah

Cherokees. The United States has also delegated certain of its trst responsibilities to the
Secretary of the Treasury, who, in that capacity, is custodian of fuds held in trst for tne

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Keetoowah Cherokees and has trst responsibilities with regard to the administration of such
fuds as well as the preparation and maintenance of

records in connection with those fuds.

JURISDICTION AN VENUE
4. This Cour has jursdiction over this action pursuant to, inter alia, 28 U.S.C. §§
1331 and 1362; 28 U.S.c. §§ 1491, 1505,2201 and 2202; and 5 U.S.C. §§ 702 and 706. 5. Venue is proper in this cour under 28 U.S.c. § 1391.

The United States is Trustee of Certain Property Belonging to the Keetoowah Cherokee
6. The Keetoowah Cherokees entered into a treaty relationship with the United
States in 1828. In that treaty the United States agreed to hold land in trst for the benefit of

the

whole Cherokee people.
7. This treaty relationship was reaffrmed with a subsequent treaty entered into in

i 846 by the Keetoowah Cherokees and the United States agreeing that lands would be held for
the benefit of the whole Cherokee people.

As Trustee the United States is Bound by Fiduciary Responsibilties Concerning the Management of Tribal Assets Held in Trust for the Benefit of the Keetoowah Cherokees
8. As trstee for the Keetoowah Cherokees, the United States has a fiduciary

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relationship with the Tribe and obligations of the highest responsibility to administer Keetoowah

Cherokees trbal trst assets with the greatest skill and care possessed by the trustee.
9. As trstee for the Keetoowah Cherokees, the United States owes the Tribe the

trst duties imposed upon a trstee at common law. These duties include but are not limited to
the duty to properly administer the trst; to administer the trst solely in the interest of the

Keetoowah Cherokees; to keep and render clear and accurate accounts with respect to the
administration of the trst; to fuish complete and accurate information to the Keetoowah

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Cherokees as to the natue and amount of trst assets; to exercise the proper care and skill in the

administration of the trst; to preserve the trst assets and protect them from loss or damage; to
keep the trst assets of the Keetoowah Cherokees separate from other propert not subject to the

trust; to properly deposit the trst fuds of the Keetoowah Cherokees; and make the assets of the
trst productive for the benefit of the Keetoowah Cherokees.

10. The United States also has certin statutory duties to the Keetoowah Cherokees
that, in some cases, reaffrm the pre-existing trst duties imposed upon the United States at
to the duty to (1) prudently invest trst

common law. These duties include but are not limited

funds; (2) audit and reconcile Keetoowah Cherokees' trbal trst fuds, (3) provide the

Keetoowah Cherokees with an accounting of such funds; and (4) certify, through an independent
part, the results of the reconciliation of the Keetoowah Cherokees' trbal trst fuds as the most
complete reconciliation possible of such fuds. Acts of

Dec. 22, 1987, Pub. L. No. 100-202; 101

Stat. 1329; Oct. 23, 1989, Pub. L. No. 101-121, 103 Stat. 701; Nov. 5, 1990, Pub. L. No. 101-

512, 104 Stat. 1915, and Nov. 3, 1991, Pub. L. No. 102-154, 105 Stat. 990.
11. As trstee for the Keetoowah Cherokees, the United States owes the trbe
fiduciary duties including but not limited to providing periodic, timely accountings of trbal trst

fuds, and the duty to cause an annual audit of all trbal trst fuds to be conducted. 25 U.S.C.
§ 4011; 25 U.S.C. § 162a(d).

12. Congress fuher acknowledged the duty of the United States to discharge its

fiduciary responsibilities in a prudent manner when Congress preserved the rights of trbes
generally to sue for mismanagement until accounting of trst fuds can be completed directing

the statute of limitations "shall not commence to run on nay claim concerning losses to or
mismanagement of trst fuds until the affected trbe or individual Indian has been furnished

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with an accounting of such fuds from which the beneficiary can determine whether there has
been a loss." See Act of Nov. 5, 1990, Pub. L. No. 101-512, 104 Stat. 1915; Act of

Nov. 13,

1991, Pub. L. No. 102-154, 105 Stat. 990; Act of Oct. 5, 1992, Pub. L. No. 102-381, 106 Stat.
1374; Act of

Nov. 11, 1993; Pub. L. No. 103-138, 107 Stat. 1379; Act ofSepL 30,1994, Pub. L.

No. 103-332, 108 Stat. 2499; Act of Apr. 26, 1996, Pub. L. No. 104-134, 110 Stat. 1321; Act of
Sept. 30, 1996, Pub. L. No. 104-208, 110 Stat. 3009; Act of

Nov. 14, 1997, Pub. L. No. 105-83,
Nov. 29, 1999,

111 Stat. 1543; Act of

Oct. 21, 1998, Pub. L. No. 105-227, 112 Stat. 2681; Act of

Pub. L. No. 106-113, 113 Stat. 1501; Act of Oct. 11,2000, Pub. L. No. 106-291, 114 Stat. 922;
Act of Nov. 5,2001, Pub. L. No. 107-63, 115 Stat. 414; Act of

Feb. 2003, Pub. L. No. 108-17,

11 7 Stat. 11.

The United States has Failed to Fulfil Its Trust Duties to the Keetoowah Cherokees
13. The United States has failed to fulfill its trst duties to the Keetoowah Cherokees.

Among other things, the United States has never rendered an accounting to the Keetoowah
Cherokees of the trbal assets that the United States holds or held in trst for the benefit of the
Keetoowah Cherokees. The United States, as trstee, has also failed to establish any effective
system for providing regular or periodic accountings of trbal trst monies, lands and other

assets. As a consequence, the United States, as trstee, has failed to keep the Keetoowah
Cherokees properly informed as to the status of

the Keetoowah Cherokee's trst assets under the

control and management of the United States, the income the trst assets have produced and the
allocation and disposal of such assets.
14. As a trstee, the United States is required to perform the trst and fiduciary duties
described above, including the duty to safely invest the trbal fuds for the benefit of the

Keetoowah Cherokees, at regular intervals, provide the Keetoowah Cherokees with an
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accounting of such assets. The United States has provided no such accounting to the Keetoowah

and, as a consequence, has failed to properly discharge its trstee fiduciary duties.
15. As a trstee, the United States is required to perform the trst and fiduciary duties
described above, including the duty to pay all proceeds derived from the sales of lands in trst

for the benefit of the Keetoowah Cherokees into the Treasur for the benefit of the Keetoowah

Cherokees. The United States has not paid proceeds from the sales of land belonging to the
Keetoowah Cherokees into the Treasury in trst for the benefit of

the Keetoowah Cherokees and,

as a results, has failed to fulfill its obligations as trstee for the Keetoowah Cherokees.

Count One
16. The Keetoowah Cherokees realleges and incorporates by reference the allegations
contained in paragraphs 1 through 15 above.

17. Through varous treaties and acts of Congress, and by its actions, the United
States holds monies, lands and other assets in trst for the benefit of the Keetoowah Cherokees.

18. Because the United States holds monies, lands ands other assets in trst for the
Keetoowah Cherokees, it has assumed the fiduciar obligations of a trstee at common law.

19. The United States has also enacted regulations through which it exercises
elaborate and pervasive control over certain monies, lands and other assets of the Keetoowah

Cherokees. When the United States assumes elaborate control or supervision over the assets of a

Tribe, a trst relationship arises between the United States and the Tribe with respect to such
assets. See United States v. Mitchell, 463 US 206 (1983).
20. As trstee for the Keetoowah Cherokees, the United States owes the trbe the

duties imposed upon a trstee at common law. See Cobell v. Norton, 283 F. Supp.2d 66 (D.D.C.

2003). The obligation to provide the Keetoowah Cherokee, as beneficiary of the trst, an

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accounting is a fundamental obligation of the traditional trst relationship. Such an accounting
requires a full disclosure and description of each item of property constituting the corpus of the
trst at its inception, and must contain suffcient information for the beneficiary to readily

ascertain whether the trust has been faithfully carred out. See Cobell v. Norton, 240 F.3d 1081
(D.C. Cir. 2001).

21. The United States has failed to fulfill its trst duties by failing, among other
things, to provide the Keetoowah Cherokees with an accounting of the trbal trst assets at

regular intervals. The United States also failed to fulfill its trst duties to the Keetoowah
Cherokees by failing to properly collect, deposit, and invest fuds deriving from such trbal
assets.

22. The Keetoowah Cherokees have been damaged by the United States' breach of its
fiduciary duties to the trbe in an amount to be determined at tral but which, upon information

and belief, exceeds $1,000,000.
WHEREFORE, the Plaintiff

Keetoowah Cherokees prays:

1. For an award of damages in excess of $1 ,000,000 to the Keetoowah Cherokees, in

an amount to be determined at tral, and any costs of bringing this action including but not

limited to attorney's fees and the fees and costs of expert assistance.
2. For such other and further relief as may be just and equitable.

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Dated:

Oklahoma City, Oklahoma
December 29, 2006

Steven W. Bugg James C. McMilin Michael D. McClintock McAfee & Taft A Professional Corporation Tenth Floor, Two Leadership Square 211 N. Robinson Avenue Oklahoma City, OK 73102-7103
405/235-9621
405/235-0439 (Fax)

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ATTORNEYS FOR PLAINTIFF UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA