White Mountain Apache Tribe of Arizona v. United States

4 Cl. Ct. 586, 1984 U.S. Claims LEXIS 1490
United States Court of Claims·Decided February 13, 1984·No. No. 22-H·Published·Cited by 5 cases

Opinion

ORDER

NETTESHEIM, Judge.

In a “Motion Joining All Fiscal Claims and Accounting Issues As Ordered by This Court,” plaintiff White Mountain Apache Tribe of Arizona (“plaintiff”) requested on January 12, 1984, that this court allow plaintiff to reject an accounting report prepared by the Government in 1975, which report was the subject of a trial in 1978, as to which requested findings and post-trial briefs have not been filed. The legal section of plaintiff’s motion cites no case law and contains only two references to treatises on res judicata, which doctrine has nothing to do with plaintiff’s motion. Defendant has opposed and plaintiff has replied.

Plaintiff’s motion seeks a declaration:

1) that no trial has occurred on “the adequacy or acceptability” of a July 31, 1975 GSA Indian Trust Accounting Division, Office of Finance Disbursement Accounting Report (the “GSA Report”);
2) that the GSA Report is not an accounting;
3) that defendant is obligated to “account” to plaintiff for all funds received and disbursements made for the benefit of plaintiff;
4) that defendant is obligated to account to plaintiff for funds which it should have received except for defendant’s “maladministration” and “corruption”; and
5) that such an accounting must be delivered to plaintiff for the years 1871 to 1946 and to date.

FACTS

The issue for decision concerns the position the GSA Report1 and the 1978 trial thereon occupy in the current posture of the case. The GSA Report accounted for disbursements of tribal funds for the then-two plaintiff tribes from 1897-1946 and for the receipts which had created the funds. Seventy one of the 118 exceptions to the GSA Report were tried in 1978.

The 1978 trial was conducted within definite parameters established by Judge Lloyd Fletcher’s order on June 13, 1977:

This trial will be limited to the issues relative to the liability, if any, of defendant to restore to plaintiff’s respective IMPL [Indian Moneys Proceeds of Labor] accounts (principal and interest) funds which plaintiffs claim were improperly or illegally disbursed therefrom by defendant prior to August 14, 1946, including issues as to improper or illegal disbursements presented by plaintiffs’ Exceptions Nos. 11-88, 93, 94, 98, 100, 103, 107, 110 and 117.

In the latter half of the nineteenth century, after concluding peace treaties with various Indian tribes, the United States undertook pursuant to executive order and statutory authority to establish IMPL accounts for each tribe. Pursuant to Judge Fletcher’s order, the 1978 trial covered the management of disbursements from the two plaintiff tribes’ IMPL accounts. In fact, defendant objected before the 1978 trial to what it perceived as an attempt in plaintiffs’ Exception No. 117 to broaden the scope of the trial beyond the IMPL accounts, and plaintiffs complained that de[588] fendant misunderstood their position and insisted that the 1978 trial, including Exception No. 117, include only disbursements from the IMPL accounts, not damages for property mismanagement.

After the 1978 trial, proposed findings of fact were filed by defendant as to the co-plaintiff San Carlos Apache Tribe, but not with respect to plaintiff. Proceedings were stayed while settlement offers were considered. Eventually, the San Carlos Apache Tribe accepted settlement and departed the case, leaving the White Mountain Apache Tribe. Consideration of settlement continued and failed. In January 1983 the case was assigned to this court, and proceedings once again began to move forward.

Referring to the 1978 trial, Robert C. Brauchli (plaintiff’s “second counsel”) in a pleading filed on June 13, 1983, stated that some fiscal claims were not addressed therein, specifically for the years 1871-1897 and 1946-1983 (present). According to second counsel, plaintiff was ready to attempt settlement of the issues tried in the 1978 trial by October 1, 1983, and, failing that result, he stated that the parties would require at least two years to file post-trial briefs on the 1978 trial. Plaintiff reiterated its position as to the scope of the 1978 trial in a joint status report filed on August 5, 1983.

On June 15, 1983, the court ordered that “[t]he scope of the trial in this case shall exclude claims referred to as the fiscal claims.” Plaintiff on November 2, 1983, filed a motion for reconsideration of this order with an attached proposed order. This motion generally complained that not all the exceptions to the GSA Report had been tried.

Plaintiff’s second counsel suggested in his motion for reconsideration that plaintiff had theories for claims on fiscal matters beyond the scope of the GSA Report. Specifically, second counsel noted that the 1978 trial did not include: 1) government accounts; 2) individual Indian money accounts; 3) special deposit accounts; 4) other accounts; 5) failure of defendant to place funds in the proper account; 6) failure to credit interest where interest was due; 7) any other failure to deal properly with plaintiff’s funds; 8) IMPL account disbursements from 1883 to 1898; 9) Indian monies not taken into the United States Treasury from 1871 to 1883; 10) sale of plaintiff’s natural resources from 1883 to 1898; and 11) sale of plaintiff’s hay, barley, corn, and wood from 1871 to 1898. Second counsel also averred that several motions for accounting and supplemental accounting reports were held in abeyance during the 1978 trial and subsequent settlement negotiations. Further, second counsel took the position that defendant was under an obligation to account for all types of monies received by defendant pursuant to a March 20, 1974 order of the Indian Claims Commission. Defendant did not oppose plaintiff’s motion.

By November 7, 1983 William H. Veeder (plaintiff’s “present counsel”) had entered his appearance. On that date plaintiff’s motion was granted and the proposed order was adopted. (The order entered on November 7,1983 will be referred to herein as the “reconsideration order” to distinguish it from another order entered that date which dealt primarily with plaintiff’s claims for mismanagement of natural resources.)

Paragraph 2 of the reconsideration order, in part, repeated the language concerning the scope of the 1978 trial contained in Trial Judge Fletcher’s June 13, 1977 order, quoted supra p. 587:

The 1978 Trial in Docket 22-H was limited in its scope to the issues relative to the liability, if any, of the Defendant to restore to Plaintiff’s respective IMPL accounts (principal and interest) funds which Plaintiff claim were improperly or illegally disbursed therefrom by Defendant prior to August 14, 1946, including the issues as to improper or illegal disbursements presented by Plaintiff’s Exceptions Nos. 11 thought [sic] 88, 93, 94, 98, 100, 103, 107, 110 and 117.

Further, paragraph 5 of the reconsideration order provided:

In the interest of joining all fiscal claims and accounting issues, the Plain[589] tiff is hereby ordered to renew or file any additional motions for an accounting or accountings by Defendant of all tribal funds, not tried in 1978, by the 15th of January, 1984.

DISCUSSION

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White Mountain Apache Tribe of Arizona v. United States, 4 Cl. Ct. 586, 1984 U.S. Claims LEXIS 1490 (cc 1984).

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