Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

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EXHIBIT 1

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IN THE UNITED STATES DISTRCT COURT FOR THE EASTERN DISTRCT IN OKLAHOMA

(1) UNITED KEETOOW AH BAND )
OF CHEROKEE INDIANS IN OKLAHOMA, )
)

Plaintiff,
v.

) ) ) )
) )

Case

No. 9 -RA W ClV06-55
WH&llI
DEC 2920
WUiam 8. Gu

THE UNITED STATES OF AMERICA,
AND

DIR KEMPTHORN,
in his offcial capacity as SECRETARY OF THE INTERIOR,
U.S. Departent of

) ) ) ) )
)

the Interior

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

) ) ) )
) -

Cie, U.S. Olstr Co
By'

Oeø Cl

HENRYM. PAULSON, JR., in his offcial capacity as SECRETARY OF THE TREASURY U.S. Departent ofthe Treasur 1500 Pennsylvania Avenue, N.W.
Washington, D.C. 20220,

) ) ) ) ) )
)-

Defendants.

)

COMPLAINT
Nature of Action
1. This is an action for 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

certin monies, lands and other assets belonging to the Keetoowah Cherokees, and against the

Secretar of Interior and Secretary of the Treasur acting in their offcial capacities as trsteedelegates of the United States. The Keetoowah Cherokees seek a declaratory judgment

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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 tribal monies, lands and
other assets that the United States held in trt at any time since the inception of the trst

relationship. The Keetoowah Cherokees seek damages arising out of the 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 trbe, with all the legal rights and responsibilities of a federally recognized Indian tribe.

3. Defendant United States acts as trstee for certain 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 trust responsibilities to the
Secretary of the Treasur, who, in that capacity, is custodian of fuds held in trst for the

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

records in connection with those fuds.

JURISDICTION AND VENUE

4. This Cour has jursdiction over this action pursuant to 28 U.S.C. §§ 1331 and
1362; 28 U.S.C. §§ 2201 and 2202; and 5 U.S.C. §§ 702 and 706.
5. Venue is proper in this court under 28 U.S.C. § 1391.
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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

1846 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

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 trstee.
9. As trtee for the Keetoowah Cherokees, the United States owes the Tribe the

trt 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

Cherokees as to the natue and amount of trst assets; to exercise the proper care and skil in the
administration of the trt; to preserve the trst assets and protect them from loss or damage; to

keep the trst assets of the Keetoowah Cherokees separate from other property not subject to the
trst; to properly deposit the trst fuds of the Keetoowah Cherokees; and make the assets of the
trt productive for the benefit of

the Keetoowah Cherokees.

10. The United States also has certain statutory duties to the Keetoowah Cherokees
that, in some cases, reaffrm the pre-existing trust duties imposed upon the United States at

common law. These duties include but are not limited to the duty to (1) safely invest trst funds;

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

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Cherokees with an accounting of such fuds; and (4) certify, though an independent party, the
results of the reconciliation of the Keetoowah Cherokees' tribal trst fuds as the most complete
reconcilation 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.
Ii. As trstee for the Keetoowah Cherokees, the United States owes the tribe
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 maner 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 ru on any claim concerning losses to or
mismanagement of trt fuds until the affected trbe or individual Indian has been furnished
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 of

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

Act of

Nov. 5, 2001, Pub. L. No. 107-63, 115 Stat. 414; Act of

11 7 Stat. 1 1.

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The United States has Failed to Fulfill 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 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 fiduciar 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
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 Treasury for the benefit of the Keetoowah

Cherokees. The United States has not paid proceeds from the sale of lands belonging to the
Keetoowah Cherokees into the Treasury in trst for the benefit of the Keetoowah Cherokees and,
as results, has failed to fulfill its obligations as trstee for the Keetoowah Cherokees.
Count One - Declaratory Judgment Delineating

the Trust Duties that the United States Owes the Keetoowah Cherokees
16. The Keetoowah Cherokees realleges and incorporates by reference the allegations
contained in paragraphs 1 through 15 above.

17. Though various 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.

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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 certin 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 arses 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 beneficiar of the trst, an

accounting is a fudamental 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
ascertin whether the trst has been faithfully cared 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 failng to properly collect, deposit, and invest fuds deriving from such trbal
assets.

22. The Keetoowah Cherokees is entitled to a declaratory judgment that the United

States owes the Keetoowah Cherokees the duties of a trstee at common law, including the duty
to provide the Keetoowah Cherokees with an accounting of trt assets at regular intervals. The

Keetoowah Cherokees is entitled to a declaratory judgment that the United States has failed to
fulfill its common law duties of trstee, including the duty to provide the Keetoowah Cherokees
with an accounting of

trst assets at regular intervals.

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23. 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.

Count Two: Injunction Compellng the United States to Fulfil Its Trust Responsibilties to the Keetoowah Cherokees, Including a Historical Accounting of the Tribe's Trusts
23. The Keetoowah Cherokees realleges and incorporates by reference the allegations
contained in paragraphs 1 though 22 above.

24. The United States' continuing failure to fulfill its trst responsibilities to the
Keetoowah Cherokees, including the failure to provide an accounting of trst assets at regular
intervals, wil cause the Keetoowah Cherokees irreparable injur, as the Keetoowah Cherokees'
trst assets wil continue to be mismanaged, and records necessary for a proper accounting have

been and wil continue to be lost or destroyed, depriving the Keetoowah Cherokees of the
information essential to determining whether the Tribe's trst assets have been properly

administered.

25. Upon information and belief, the United States' failure to fulfill its trst
responsibilties to the Keetoowah Cherokees has deprived the Keetoowah Cherokees of principal
and investment income derived from the Keetoowah Cherokees' trst assets. The extent of such
losses canot be determined until a complete and proper historical accounting of the trbal assets

held in trst by the United States is performed.
26. The Keetoowah Cherokees is entitled to injunctive relief requiring the United

States to fulfill its trst responsibilities to the Keetoowah Cherokees, including providing the
Keetoowah Cherokees with historical accounting of all Keetoowah Cherokees' tribal trt assets.
WHEREFORE, the Plaintiff

Keetoowah Cherokees prays:

1. For a declaration delineating the trst duties that the United States, as trustee,

owes the Keetoowah Cherokees.

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2. For a declaration that the United States has failed to fulfill its trst duties as
trstee to the Keetoowah Cherokees, including the failure to provide the Keetoowah Cherokees

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with accountings of its trbal trst assets at regular intervals.

3. For an injunction requiring the United States to fulfill its trst duties to the
Keetoowah Cherokees, including providing the Keetoowah Cherokees within a reasonable time a

historical accounting of all trbal assets that have been held in trst by the United States at any
time.
4. 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.
5. For such other and further relief as may be just and equitable.

Dated this 29th day of

December, 2006.

Oklahoma City, OK

.~:b?~1I
. McMillin, OBA #17206 Michael D. McClintock, OBA # 18105 McAfee & Taft A Professional Corporation
ioth Floor, Two Leadership Squae
211 Nort Robinson

Oklahoma City, OK 73102
Telephone: (405) 235-9621 Facsimile: (405) 235-0439

ATTORNEYS FOR THE UNITED

KEETOOW AH BAN OF CHEROKEE INDIAS IN OKLAHOMA

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