Free Answer - District Court of Federal Claims - federal

Case 1:06-cv-00942-LJB

Document 9

Filed 03/27/2007

Page 1 of 12

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________) PASSAMAQUODDY TRIBE,

Case No. No. 06-cv-00942-LJB Judge Lynn J. Bush Electronically filed: March 27, 2007

DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT Defendant, the United States of America, hereby submits the following Answer to the Complaint. Defendant specifically denies each and every allegation of the Complaint that is not otherwise expressly admitted, qualified, or denied in this Answer. The numbered paragraphs of this Answer correspond to the numbered paragraphs of the Complaint. I. "GENERAL NATURE OF THE ACTION" 1. The allegations contained in Paragraph 1 constitute Plaintiff's characterizations of this suit to which no response is required. II. "PARTIES" 2. Defendant admits the allegations contained in the first sentence of Paragraph 2. The remaining allegations of Paragraph 2 consist of Plaintiff's characterizations and conclusions of law, and characterizations of Plaintiff's lawsuit, to which no response is required. The cited statutes speak for themselves and are the best evidence of their contents. 3. As to the allegations contained in Paragraph 3, Defendant admits that the United States holds in trust for Plaintiff certain funds awarded to the Tribe pursuant to the Maine Indian Claims Settlement Act, Pub. L. No. 96-240, 94 Stat. 1785 (codified as amended at 25 U.S.C. §§ 1721-35 (2000)); and that the United States carries out certain legal responsibilities for Plaintiff

Case 1:06-cv-00942-LJB

Document 9

Filed 03/27/2007

Page 2 of 12

through the Secretaries of the Interior and Treasury. The remaining allegations in Paragraph 3 consist of conclusions of law to which no response is required. 4. As to the allegations contained in Paragraph 4, Defendant admits that Dirk Kempthorne is the Secretary of the Interior and that the United States carries out certain legal responsibilities for the Passamaquoddy through the Secretary of the Interior. Defendant denies that Dirk Kempthorne or the Secretary of the Interior is a "party" to this lawsuit. The remaining allegations in Paragraph 4 are conclusions of law to which no response is required. 5. As to the allegations contained in Paragraph 5, Defendant admits that Ross Swimmer is the Special Trustee for American Indians; that he is appointed by the President of the United States with the advice and consent of the Senate; and that the United States carries out certain legal responsibilities for the Passamaquoddy (such as some of those specified in the American Indian Trust Reform Management Reform Act, 25 U.S.C. §§ 4001 et seq.) through the Special Trustee. Defendant denies that Ross Swimmer or the Special Trustee for American Indians is a "party" to this lawsuit. The remaining allegations in Paragraph 5 are conclusions of law to which no response is required. The cited statute speaks for itself and is the best evidence of its contents. 6. As to the allegations contained in Paragraph 6, Defendant admits that Henry M. Paulson is the Secretary of the Treasury. Defendant denies that Mr. Paulson or the Secretary of the Treasury is a "party" to this lawsuit. The remaining allegations in Paragraph 6 consist of conclusions of law to which no response is required. III. "JURISDICTION" 7. Paragraph 7 consists of Plaintiff's characterizations and conclusions of law to which

2

Case 1:06-cv-00942-LJB

Document 9

Filed 03/27/2007

Page 3 of 12

no response is required. The cited statutes speak for themselves and are the best evidence of their contents. 8. Paragraph 8 consists of Plaintiff's characterizations and conclusions of law to which no response is required. The cited statutes and judicial decision speak for themselves and are the best evidence of their contents. IV. "TRUST OBLIGATIONS" 9. As to the allegations contained in Paragraph 9, those allegations consist of characterizations of the contents of the cited case and law review article, which speak for themselves and are the best evidence of their contents. 10. As to the allegations contained in Paragraph 10, Defendant admits that Massachusetts and the Passamaquoddy Tribe entered into a treaty in 1794, and that in 1819 Maine separated from the Commonwealth of Massachusetts and, in 1820, was recognized as a State. The rest of the allegations of Paragraph 10 consist of conclusions of law and characterizations of the cited treaty and judicial decision, which speak for themselves and are the best evidence of their contents. 11. As to the allegations contained in Paragraph 11, Defendant admits that the Passamaquoddy Tribe requested that the Department of the Interior bring suit against the State of Maine in 1972, and that the Tribe filed suit against the Department of the Interior in 1972. As to the remaining allegations of Paragraph 11, those allegations consist of Plaintiff's conclusions of law, characterizations of a report of the House of Representatives and of the cited judicial decisions, which speak for themselves and are the best evidence of their contents; and characterizations of the cited lawsuit in which the Passamaquoddy Tribe was involved, to which

3

Case 1:06-cv-00942-LJB

Document 9

Filed 03/27/2007

Page 4 of 12

no response is required. 12. As to the allegations contained in Paragraph 12, Defendant admits that in 1977, President Carter appointed a work group to study the Maine Indian land dispute; that the United States Congress enacted the Maine Indian Claims Settlement Act, Pub. L. No. 96-240, 94 Stat. 1785 (codified as amended at 25 U.S.C. §§ 1721-35 (2000)), in October 1980; and that in 1980 An Act to Implement the Maine Indian Claims Settlement became Maine state law. The rest of the allegations contained in Paragraph 12 consist of Plaintiff's conclusions of law and characterizations of the cited statutes and House of Representatives Report, to which no response is required. 13. The allegations of Paragraph 13 consist of Plaintiff's characterizations and conclusions of law and quotation from H.R. Rep. No. 96-1352 to which no response is required. The cited Act and House of Representatives report speak for themselves and are the best evidence of their contents. 14. As to the allegations contained in Paragraph 14, Defendant admits that the United States holds in trust for Plaintiff certain funds awarded to the Tribe pursuant to the Maine Indian Claims Settlement Act, Pub. L. No. 96-240, 94 Stat. 1785 (codified as amended at 25 U.S.C. §§ 1721-35 (2000)). The rest of the allegations of Paragraph 14 consist of Plaintiff's characterizations and conclusions of law and quotation from 25 U.S.C. § 1724(a) to which no response is required. The cited statute speaks for itself and is the best evidence of its contents. 15. The allegations contained in Paragraph 15 consist of Plaintiff's characterizations and conclusions of law and quotation from 25 U.S.C. § 1724(b)(2) to which no response is required. The cited statute speaks for itself and is the best evidence of its contents.

4

Case 1:06-cv-00942-LJB

Document 9

Filed 03/27/2007

Page 5 of 12

16. The allegations contained in Paragraph 16 consist of Plaintiff's characterizations and conclusions of law and quotations from 25 U.S.C. § 1724(c)-(d) to which no response is required. The cited statute speaks for itself and is the best evidence of its contents. The final sentence of Paragraph 16 consists of Plaintiff's characterizations of the allegations of its Complaint, to which no response is required. 17. The allegations contained in Paragraph 17 consist of Plaintiff's characterizations and conclusions of law and quotations from 25 U.S.C. § 1724(g)(2) to which no response is required. The cited statutes speak for themselves and are the best evidence of their contents. 18. The allegations contained in Paragraph 18 consist of Plaintiff's characterizations and conclusions of law and a quotation from Cobell v. Norton, 240 F.3d 1081, 1099 (D.C. Cir. 2001), to which no response is required. The cited judicial decisions speak for themselves and are the best evidence of their contents. 19. The allegations contained in Paragraph 19 consist of Plaintiff's characterizations and conclusions of law to which no response is required. The cited statutes speak for themselves and are the best evidence of their contents. 20. The allegations contained in Paragraph 20 consist of Plaintiff's characterizations and conclusions of law and quotations from Cobell VI, 240 F.3d at 1090, 1096 to which no response is required. The cited statutes and judicial decision speak for themselves and are the best evidence of their contents. 21. The allegations contained in Paragraph 21 consist of Plaintiff's characterizations and conclusions of law and quotation from Cobell VI, 240 F.3d at 1099 to which no response is required. The cited judicial decisions speak for themselves and are the best evidence of their

5

Case 1:06-cv-00942-LJB

Document 9

Filed 03/27/2007

Page 6 of 12

contents. 22. As to the allegations contained in Paragraph 22, Defendant admits that the United States has held and does hold in trust certain assets and funds for the benefit of Plaintiff; however, Defendant avers that the term "The Passamaquoddy Trust land, natural resources, and funds" is vague and ambiguous, such that Defendant cannot formulate a response thereto; and the allegation that such assets "have been held in trust continuously" also is vague and ambiguous, such that the United States cannot formulate a response thereto. 23. The allegations contained in Paragraph 23 consist of Plaintiff's characterizations and conclusions of law to which no response is required. V. "BREACHES OF TRUST BY THE DEFENDANT" 24. The allegations contained in Paragraph 24 consist of Plaintiff's characterizations and conclusions of law to which no response is required. COUNT I 25. Defendant incorporates by reference herein its responses to the allegations in Paragraphs 1-24 of the Complaint. 26. As to the allegations contained in Paragraph 26, the Defendant admits that there are regulations in place which concern the management and administration of Indian trust land and natural resources; however, the terms "comprehensive regulatory framework" and "pervasive control" are vague and ambiguous such that Defendant is unable to formulate a response thereto and/or constitute Plaintiff's characterizations and conclusions of law to which no response is required. Defendant denies that Plaintiff's trust assets are solely "managed" by Defendant, and avers that Plaintiff shares control and management of such trust assets. Defendant further avers

6

Case 1:06-cv-00942-LJB

Document 9

Filed 03/27/2007

Page 7 of 12

that the respective extents of Plaintiff's and of Defendant's control and management of such trust property also are set forth in the provisions of and the regulations implementing statutes respecting tribal property held in trust. 27. As to the allegations contained in paragraph 27, Defendant avers that the terms "a complete and accurate accounting," and "complete and accurate accounting of management of the natural resources of the Passamaquoddy," as used by Plaintiff, are vague and ambiguous, such that Defendant is unable to formulate a response thereto, see, e.g., Bogert & Bogert, Trusts and Trustees §§ 965-968 (rev. 2d ed. 1982). Notwithstanding such ambiguity, Defendant denies that the Secretary of the Treasury has any obligation to provide an accounting to Plaintiff. As to the allegations in the second sentence of Paragraph 27, Defendant avers that the term "complete" is vague and ambiguous such that Defendant is unable to formulate a response thereto. Defendant avers that Interior has furnished and continues to furnish Plaintiff with financial and accounting data and documentation, including, (a) prior to 1995, reports entitled "Summary and Detail of Trust Fund Statements;" (b) in 1996, a report entitled "Tribal Trust Funds Reconciliation Project, Agreed-Upon Procedures and Findings Report for the Passamaquoddy Tribe of Maine," which set forth the results of Interior's project to reconcile tribal trust accounts for Fiscal Years 1981-1992; and ( c ) from 1995 to the present, periodic statements of account or performance for Plaintiff's trust fund monies received by Defendant. Further, Defendant avers that additional information regarding Plaintiff's trust assets has historically been, and is, available to it upon request. Further, Plaintiff's allegations in the second sentence consist of characterizations and conclusions of law to which no response is required. 28. The allegations contained in Paragraph 28 consist of Plaintiff's characterizations and

7

Case 1:06-cv-00942-LJB

Document 9

Filed 03/27/2007

Page 8 of 12

conclusions of law and of the relief it requests, to which no response is required. 29. The allegations of Paragraph 29 consist of Plaintiff's characterizations and conclusions of law and of the relief it requests to which no response is required. COUNT II 30. In response to the allegations of Paragraph 30, Defendant incorporates herein by reference its responses to Paragraphs 1-29 of the Complaint. 31. As to the allegations contained in the first sentence of Paragraph 31, Defendant admits that the United States has held in trust certain monies derived from judgments entered on claims Plaintiff has brought against the United States and certain settlement funds. As to the allegations contained in the second sentence of Paragraph 31, Defendant admits that there are statutes and regulations in place which concern the management, distribution and investment of judgment funds and that the United States manages such funds in accordance with applicable law. The Defendant avers, however, that the term "pervasive" is vague and ambiguous such that Defendant is unable to formulate a response thereto and/or constitutes a conclusion of law to which no response is required. The allegations contained in the last sentence of Paragraph 31 consist of Plaintiff's characterization of Chippewa Cree Tribe of the Rocky Boy's Reservation v. United States, 69 Fed. Cl. 639, 656 (2006) and conclusions of law to which no response is required. The cited judicial decision speaks for itself and is the best evidence of its contents. 32. As to the allegations contained in paragraph 32, Defendant avers that the term "a complete and accurate accounting," as used by Plaintiff, is vague and ambiguous, such that Defendant is unable to formulate a response thereto, see, e.g., Bogert & Bogert, Trusts and Trustees §§ 965-968 (rev. 2d ed. 1982). Notwithstanding such ambiguity, Defendant denies that

8

Case 1:06-cv-00942-LJB

Document 9

Filed 03/27/2007

Page 9 of 12

the Secretary of the Treasury has any obligation to provide an accounting to Plaintiff. Further, Defendant avers that Interior has furnished and continues to furnish Plaintiff with financial and accounting data and documentation, including, (a) prior to 1995, reports entitled "Summary and Detail of Trust Fund Statements;" (b) in 1996, a report entitled "Tribal Trust Funds Reconciliation Project, Agreed-Upon Procedures and Findings Report for the Passamaquoddy Tribe of Maine," which set forth the results of Interior's project to reconcile tribal trust accounts for Fiscal Years 1981-1992; and ( c ) from 1995 to the present, periodic statements of account or performance for Plaintiff's trust fund monies received by Defendant. Further, Defendant avers that additional information regarding Plaintiff's trust assets, including judgment fund monies and settlement funds, has historically been, and is, available to it upon request. 33. The allegations contained in Paragraph 33 consist of Plaintiff's characterizations and conclusions of law to which no response is required. 34. The allegations of Paragraph 34 consist of Plaintiff's characterizations and conclusions of law and of the relief it requests to which no response is required. 35. Paragraph 35 of the Complaint does not contain any allegations or other text, and

therefore no response is required. COUNT III 36. In response to the allegations of Paragraph 36, Defendant incorporates herein by reference its responses to Paragraphs 1-34 of the Complaint. 37. As to the allegations contained in the first sentence of Paragraph 37, Defendant avers that the term "pervasive" is vague and ambiguous such that Defendant is unable to formulate a response thereto and/or constitutes a conclusion of law to which response is required. Likewise,

9

Case 1:06-cv-00942-LJB

Document 9

Filed 03/27/2007

Page 10 of 12

Defendant avers that the phrase "agreements regarding land and natural resources and judgment and settlement funds" also is vague and ambiguous such that Defendant is unable to formulate a response thereto. Notwithstanding such ambiguities, Defendant admits that the United States has held in trust certain judgment and settlement funds, and proceeds derived from tribal land and natural resources. The allegations contained in the remainder of Paragraph 37 consist of Plaintiff's characterizations of the cited statutes and judicial decision and legal conclusions to which no response is required. The cited statutes and judicial decision speak for themselves and are the best evidence of their contents. 38. The allegations contained in Paragraph 38 consist of Plaintiff's characterizations and conclusions of law to which no response is required. 39. The allegations in the first, third, fourth, and fifth sentences of Paragraph 39 consist of Plaintiff's characterizations and conclusions of law and of the relief it requests to which no response is required. The cited statutes and judicial decision speak for themselves and are the best evidence of their contents. As to the allegations contained in the second sentence, the phrase "at a low rate of interest" is vague such that Defendant is unable to formulate a response thereto. 40. The allegations of Paragraph 40 consist of Plaintiff's characterizations and conclusions of law and of the relief it requests to which no response is required The remainder of the Complaint is Plaintiff's Prayer for Relief, to which no response is required.

AFFIRMATIVE DEFENSES 1. Plaintiff asserts claims that are barred, in whole or in part, by the Statute of

10

Case 1:06-cv-00942-LJB

Document 9

Filed 03/27/2007

Page 11 of 12

Limitations, 28 U.S.C. § 2401. 2. To the extent that Plaintiff asserts claims that existed on or before August 12, 1946, those claims are barred by the Indian Claims Commission Act of August 13, 1946, 60 Stat. 1049, as amended (formerly 25 U.S.C. §§ 70 et seq.). 3. Plaintiff asserts claims that are barred, in whole or in part, by the doctrines of laches, equitable estoppel, waiver and consent, and other equitable defenses. 4. To the extent that Plaintiff asserts claims that it or its privies asserted or could have asserted in a prior adjudication in which a court of competent jurisdiction entered a final judgment, those claims are barred in whole or in part by the doctrines of res judicata and/or collateral estoppel. 5. Plaintiff asserts certain claims over which this Court lacks jurisdiction, pursuant to 28 U.S.C. § 1500, among other provisions. 6. Plaintiff fails to state a claim upon which relief can be granted.

Respectfully submitted this 27th day of March, 2007.

MATTHEW McKEOWN Acting Assistant Attorney General ` s/Laura M.L. Maroldy LAURA M.L. MAROLDY Trial Attorney United States Department of Justice Environment and Natural Resources Division P. O. Box 663 Washington, D.C. 20044-0663 Phone: (202) 514-4565 11

Case 1:06-cv-00942-LJB

Document 9

Filed 03/27/2007

Page 12 of 12

Fax: (202) 353-2021 E-mail: [email protected]

Attorney of Record for Defendant OF COUNSEL: MARTIN J. LALONDE Senior Counsel United States Department of Justice Environment and Natural Resources Division P. O. Box 663 Washington, D.C. 20044-0663 THOMAS KEARNS Office of the Solicitor United States Department of the Interior Washington, D.C. 20240 Teresa E. Dawson Office of Chief Counsel Financial Management Service United States Department of the Treasury Washington, DC 20240

12