White Mountain Apache Tribe v. United States

9 Cl. Ct. 1, 1985 U.S. Claims LEXIS 916
United States Court of Claims·Decided September 20, 1985·No. No. 22-H·Published·Cited by 3 cases

Opinion

ORDER

NETTESHEIM, Judge.

Plaintiff White Mountain Apache Tribe of Arizona (“plaintiff”) moved for a supplemental accounting. Defendant has responded and also moved over plaintiff’s objection to dismiss certain exceptions. Ruling on this matter was deferred pending appellate review of a judgment terminating this litigation. See White Mountain Apache Tribe v. United States, 6 Cl.Ct. 575, 577 n. 2 (1984), vacated & remanded, Nos. 85-895 & 85-1348 (Fed.Cir. Aug. 7, 1985).

FACTS

The motion under consideration is plaintiff’s second opportunity to comply with an order allowing it to request a supplemental accounting. Plaintiff’s first motion, wholly noncompliant, was the subject of an order entered on February 13, 1984, in White Mountain Apache Tribe v. United States, 4 Cl.Ct. 586 (1984) (“the February 1984 accounting order”). Paragraph 4 of that order required plaintiff to file “a motion requiring defendant to provide a further supplemental accounting with respect to all fiscal claims that were not the subject of the 1978 trial ... [and] that were the subject of plaintiff’s November 2, 1983 motion for reconsideration....” 4 Cl.Ct. at 590. Paragraphs 2 and 3 of the February 1984 accounting order imposed additional parameters on the scope of plaintiff’s request for [2]*2a supplemental accounting by limiting fiscal claims in the case “to those years prior to August 14, 1946,” 4 Cl.Ct. at 590, and by providing that “[a]ll disbursement claims from IMPL [Indian Moneys Proceeds of Labor] accounts before August 14, 1946, shall not be the subject of further proof.” Id.

On March 1, 1984, plaintiff filed its motion pursuant to this order. Defendant responded to plaintiff’s motion on June 1, 1984, and simultaneously moved to dismiss certain exceptions taken by plaintiff to a July 31,1975 GSA Indian Trust Accounting Division, Office of Finance and Disbursement Accounting Report (the “1975 GSA Report”). The 1975 GSA Report was a supplemental accounting to another GSA Report dated November 6, 1970. Plaintiff's exceptions to the 1975 GSA Report i were filed on November 28, 1975. Defendant moves to dismiss exception nos. 1(b), 2(b), 3(b), 4(a), 5(a), 8, 9, 10(a), 104,108, and 118 on the ground that these exceptions fail to state claims upon which relief can be granted. Defendant’s response and motion were followed by plaintiff’s reply brief on August 1, 1984. Appended to plaintiff’s reply are the affidavits of (1) Mary Clark-son Endfield, July 27, 1984, a member and current secretary of plaintiff tribe and former secretary to William Donner, Superintendent of the Fort Apache Indian Agency, Bureau of Indian Affairs (the “BIA”) from June 1944 until October 3, 1949; (2) Hal Butler, July 30, 1984, the son of a logging contractor who contracted with the BIA; and (3) Paul J. Gillis, August 1, 1984, a certified public accountant specializing in Indian fiscal matters.

Due to the wide scope of plaintiff’s supplemental accounting requests and exceptions previously taken and the factual particularities and arguments associated therewith, the requests are described as each is ruled on in order to avoid unnecessary repetition.

DISCUSSION

Plaintiff has placed limitations on its likelihood of either prevailing on its motion for supplemental accounting or successfully opposing defendant’s motion to dismiss. First, plaintiff habitually contravenes paragraphs 2 and 3 of the February 1984 accounting order by requesting supplemental accountings concerning fiscal claims arising after August 13, 1946, and seeking material related to disbursement claims from IMPL accounts. Secondly, plaintiff has burdened an analysis of the motions at issue by failing, in its reply, to separate its arguments concerning the supplemental accounting and the exceptions it took to the 1975 GSA Report. Moreover, plaintiff argues in generalized terms and through wholesale incorporation by reference of affidavits to bolster its accounting requests when they must be presented with clarity and specificity. White Mountain Apache Tribe, 4 Cl.Ct. at 589 (citing Three Affiliated Tribes v. United States, 37 Ind. Cl.Comm. 129, 131 (1975), and Colorado River Indian Tribes v. United States, 36 Ind.Cl.Comm. 425, 426 (1975)) (“The court is not prepared to order defendant to prepare further accountings without specific requests therefor.”).

Plaintiff was given leave to file another request for a supplemental accounting not because the opportunity was required by statute, decisional law, or the facts; rather, the court in its discretion determined that the record would be better served by so providing. This is plaintiff’s second attempt to state its requests for a supplemental accounting. In addition, the accountings in this case were rendered well over a decade ago. It is reasonable in these circumstances to require that the need for each of the requests as to which plaintiff seeks a supplemental accounting be justified. Cf. Blackfeet & Gros Ventre Tribes v. United States, 32 Ind.Cl.Comm. 65, 85 & n. 1 (1973).

Motion for Supplemental Accounting

I.-V. Appropriations Under the Act of 18691

Plaintiff seeks an accounting for “annual appropriations, disbursements, and other disposition[s] of funds appropriated” under the Act of April 10, 1869, ch. 16, 16 Stat. 13 (1869) (the “Act”), and subsequent acts of a similar nature. Plf’s Mot. filed Mar. 1, 1984, at 3. Under the Act, Congress appropriated funds which were to be disbursed by agents of the Government. Section 4 of the Act

[3]*3[enabled] the President to maintain the peace among and with the various tribes, bands, and parties of Indians, and to promote civilization among said Indians, bring them, where practicable, upon reservations, relieve their necessities, and encourage their efforts at self-support____

16 Stat. 40. Section 4,16 Stat. 40, required that a report “be made in detail to Congress” of all expenditures under the $2,000,000 appropriation authorized by the Act. Further, a board of commissioners, in conjunction with the Secretary of Interior, was to exercise control over disbursement of the appropriations.

In its response to plaintiffs renewed request, defendant contends that the Government is not required to account for congressional appropriations, Blackfeet & Gros Ventre Tribes v. United States, 32 Ind.Cl.Comm. at 90-92, and that plaintiff has failed to show that the Act or any subsequent related act specifically imposed an accounting obligation on the Government with respect to the White Mountain Apache Tribe. Plaintiff has not even attempted to refute either of these contentions with authority that the Act imposed accounting obligations upon defendant. In fact, after propounding its request, plaintiff makes no mention of the Act. Plaintiffs virtual abandonment of its request justifies its denial.

VI. A. & B. Treasury Cash Cards for IMPL Accounts

Plaintiff seeks copies of Treasury cash cards for plaintiffs IMPL principal and interest accounts for the years 1883-1951 and 1930-1951, respectively.2

In its response defendant contends that the workpapers supporting the 1975 GSA Report contain substantially the information that plaintiff now requests. This, however, is not true.

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