240 F.3d 1081 (D.C. Cir. 2001)
Elouise Pepion Cobell, et al., Appelleesv.Gale A. Norton, Secretary of the Interior, et al., Appellants
Nos. 00-5081, 00-5084
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 5, 2000Decided February 23, 2001

[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Appeals from the United States District Court  for the District of Columbia (No. 96cv01285)
David C. Shilton, Attorney, U.S. Department of Justice,  argued the cause for appellants.  With him on the briefs were Lois J. Schiffer, Assistant Attorney General, John A. Bryson,  and Charles W. Findlay, Attorneys.
Thaddeus Holt argued the case for appellees.  With him on  the brief were Dennis Gingold, Keith Harper and Lorna K.  Babby.
Before:  Williams, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge:


1
This case involves a class action  suit by beneficiaries of Individual Indian Money ("IIM") trust  accounts against Interior Secretary Gale A. Norton and other  federal officials who serve, in their official capacities, as  trustee-delegates on behalf of the federal government.  IIM  trust beneficiaries filed suit alleging breach of fiduciary  duties.  Specifically, plaintiffs sought a declaratory judgment  delineating appellants' trust obligations to IIM trust beneficiaries and injunctive relief to ensure that such trust obligations are carried out.  After a lengthy trial, the district  court concluded that the federal government and its officers  have been derelict in their duties, and issued a remand to the  Interior and Treasury Departments so that appellants could  discharge their fiduciary obligations.  The district court further retained jurisdiction and ordered appellants to file quarterly reports detailing steps taken in fulfillment of their  duties.  Although the decision did not resolve every issue  raised by plaintiffs, the district court certified the order for  interlocutory appeal.


2
Appellants challenge the district court's delineation of their  trust obligations and assert that the district court exceeded  its authority in ordering equitable relief for plaintiffs.  We  find that the district court had before it ample evidence to  support its finding of ongoing material breaches of appellants'  fiduciary obligations.  Notwithstanding the fact that appellants have taken significant steps towards the discharge of  the federal government's fiduciary obligations, appellants  clearly have yet to fulfill their trust duties.  The relief  ordered was well within the district court's equitable powers. While we order the district court to modify the characterization of some of its findings, we generally affirm its judgment  and order.

I. Background

3
The federal government has substantial trust responsibilities toward Native Americans.  This is undeniable.  Such  duties are grounded in the very nature of the government Indian relationship.  "[A] fiduciary relationship necessarily  arises when the Government assumes ... elaborate control  over forests and property belonging to Indians." United  States v. Mitchell ("Mitchell II"), 463 U.S. 206, 225 (1983).  It  is equally clear that the federal government has failed time  and again to discharge its fiduciary duties.  Here, there is no  dispute that appellants, as trustee-delegates of the federal  government, have failed to discharge fully their fiduciary  obligations.  The issue we confront is whether the district  court properly delineated the contours of the obligations owed  by the Interior Secretary, Treasury Secretary and other  officials, and whether such officials have been so derelict in  their obligations to justify the relief ordered by the district  court.

A. The Government-Indian Trust Relationship

4
The federal government-Indian trust relationship dates  back over a century.  The trusts at issue here were created  over one hundred years ago through an act of Congress, and  have been mismanaged nearly as long.  To appreciate truly  the nature and extent of the government's responsibilities,  and appellants' failure to discharge them, it is necessary to  review the history of the government-Indian trust relationship.


5
Since the founding of this nation, the United States' relationship with the Indian tribes has been contentious and  tragic. America's expansionist impulse in its formative years  led to the removal and relocation of many tribes, often by  treaty but also by force.  See, e.g., Cherokee Nation v.  Georgia, 30 U.S. (5 Pet.) 1 (1831).  Official policy sought to  encourage westward migration of Indian tribes by offering to  exchange unsettled lands in the West for Indian land in the East.  See, e.g., The Indian Removal Act of 1830, ch.  CXLVIII, 4 Stat. 411.  Unofficial policy encouraged the forcible dislocation of Indian tribes.


6
In the second half of the nineteenth century, the policy of  relocation was replaced with one of assimilation.  At that time  the federal government began to divide Indian lands into  individual parcels, taking lands that had been set aside for  Indian tribes and allotting them to individual tribe members. See Felix S. Cohen, Handbook of Federal Indian Law 98  (1982 ed.).  "The objectives of allotment were simple and  clear cut:  to extinguish tribal sovereignty, erase reservation  boundaries, and force assimilation of Indians into the society  at large."  Yakima v. Yakima Indian Nation, 502 U.S. 251,  254 (1992);  see also Muscogee (Creek) Nation v. Hodel, 851  F.2d 1439, 1441 (D.C. Cir. 1988) ("Allotment was justified as a  means of accomplishing the then current policy of assimilation.").  Once tribal lands were allotted in fee to individual  Indians, white settlers could purchase the lands for settlement.  Allottees, by divorcing themselves from the tribal  estate, also became subject to federal and state jurisdiction on  the same terms as other citizens.


7
This assimilationist policy began with individually negotiated treaties and was eventually enacted into federal law with  passage of the General Allotment Act of 1887, also known as  the "Dawes Act," ch. 119, 24 Stat. 388 (as amended at 25  U.S.C. § 331 et seq.).  Under the General Allotment Act,  beneficial title of the allotted lands vested in the United  States as trustee for individual Indians.  The trust was to last  for 25 years or more, at which point a fee patent would issue  to the individual Indian allottee.  During the trust period,  individual accounts were to be set up for each Indian with a  stake in the allotted lands, and the lands would be managed  for the benefit of the individual allottees.  Indians could not  sell, lease, or otherwise burden their allotted lands without  government approval.  Where tribes resisted allotment, it  could be imposed.  See Act of June 28, 1898, ch. 517, 30 Stat.  495 ("Curtis Act").  While the Dawes Act may not have  achieved assimilation, it did result in the widespread transfer  of land from Indians to white settlers.  As the district court found, from 1887 to 1934, an estimated 90 million acres,  accounting for approximately two-thirds of all Indian lands,  left Indian ownership.  Cobell v. Babbitt, 91 F. Supp. 2d 1, 8  (D.D.C. 1999) ("Cobell V").


8
Allotment of tribal lands ceased with enactment of the  Indian Reorganization Act of 1934 ("IRA"), 48 Stat. 984  (codified as amended at 25 U.S.C. § 461 et seq.).  Lands  already allotted remained so, but the IRA provided that  unallotted surplus Indian lands would be returned to tribal  ownership.  25 U.S.C. § 463.  Rather than undo the assimilationist allotment polices, the 1934 Act extended the trust  period for allotted lands indefinitely.  Id. § 462.  The federal  government retained control of lands already allotted but not  yet fee-patented, and thereby retained its fiduciary obligations to administer the trust lands and funds arising therefrom for the benefit of individual Indian beneficiaries.  These  lands form the basis for the Individual Indian Money ("IIM")  accounts that are at the heart of this case.


9
After passage of the IRA, federal Indian policy changed yet  again.  In the 1950s, Congress adopted a "termination policy," whereby it sought to release Indian tribes from federal  supervision and terminate the government-Indian relationship.  As Assistant Interior Secretary Gover testified at trial,  the policy was "specifically" aimed at "severing ... the trust  relationship."  Cobell V, 91 F. Supp. 2d at 8.  In some cases,  the U.S. withdrew recognition of Indian tribes altogether. Id. at 9.


10
The termination policy was no more successful than earlier  assimilation efforts, and was soon replaced with the current  policy of "self-determination and self-governance."  Id. at 9. In 1975 Congress enacted the Indian Self-Determination and  Education Assistance Act, Pub. L. No. 93-638, 88 Stat. 2203  (1975), which, among other things, authorizes tribes to assume some of the management functions currently imposed  on the Bureau of Indian Affairs ("BIA") and Office of Trust  Fund Management.  In particular, a tribe may contract with  BIA to manage trust accounts, including IIM accounts, for  the tribe or its members.  Such contracts must be approved unless BIA determines that the tribe lacks the accounting or  management capabilities to fulfill the contract.  See Cobell V,  91 F. Supp. 2d at 9.  Where such capacity is lacking, BIA is  to assist tribes in developing the necessary capabilities to  manage IIM accounts themselves.  See id.  In sum, because  of BIA's own fiduciary obligations to IIM trust beneficiaries,  it must ensure that a tribe can fulfill the fiduciary obligations  attendant to trust management before transferring control.

B. Federal IIM Trust Responsibilities

11
Because the United States holds IIM lands in trust for  individual Indian beneficiaries, it assumes the fiduciary obligations of a trustee.  " '[W]here the Federal Government  takes on or has control or supervision over tribal monies or  properties, the fiduciary relationship normally exists with  respect to such monies or properties (unless Congress has  provided otherwise) even though nothing is said expressly in  the authorizing or underlying statute (or other fundamental  document) about a trust fund, or a trust or fiduciary connection.' "  United States v. Mitchell ("Mitchell II"), 463 U.S.  206, 225 (1983) (quoting Navajo Tribe of Indians v. United  States, 224 Ct. Cl. 171, 183 (1980)).  As a result of allotment,  individual Indians became beneficiaries of the trust lands, but  lost the right to sell, lease, or burden the property without  the federal government's approval. The federal government  also probates estates related to Indian trust lands and receives and distributes income from the lease of allotted lands. Income generated from the trust lands is to be paid to the  individual beneficiaries.


12
Under current law, the Secretary of the Interior and the  Secretary of the Treasury are the designated trustee delegates for the IIM trust.  Each Secretary, or his designates, has specific fiduciary responsibilities that must be  fulfilled lest the United States breach its fiduciary obligations. Several governmental agencies have specific trust obligations. These include, among others, BIA, Office of Trust Funds  Management ("OTFM"), and Office of the Special Trustee ("OST").  (Their responsibilities are extensively detailed in  the decision below.  See Cobell V, 91 F. Supp. 2d at 9-12.)


13
BIA is responsible for trust land management, including  the approval of leases and land transfers, and income collection.  See id. at 9.  As noted above, BIA is also required to  contract with qualifying tribes for the management of IIM  accounts.  OTFM, with the assistance of the Treasury Department, deposits IIM land revenues, maintains the individual IIM accounts, and ensures that money is distributed to  IIM account holders or special deposit accounts where money  cannot be distributed to the individual account holder.  OST,  created in 1994 by the Indian Trust Fund Management  Reform Act, oversees IIM trust reform efforts.  25 U.S.C.  S S 4042-43.


14
While the Interior Department is responsible for executing  most of the federal government's trust duties, the Treasury  Department has substantial trust responsibilities as well.  In  particular, Treasury holds and invests IIM funds at the  Interior Department's direction and provides accounting and  financial management services.  See Cobell V, 91 F. Supp. 2d  at 11. The Treasury Department maintains only a single  "IIM account" for all IIM funds, rather than individuated  accounts for each individual IIM beneficiary, leaving the  maintenance of individualized accounting records to OTFM. OTFM relies upon the Treasury Department's accounting  records to reconcile its own IIM records.  Of note, when  OTFM issues a check to an IIM trust beneficiary, the amount  is deducted from the relevant fund, even though the money  remains in the Treasury's general account.  Thus, the IIM  beneficiary loses any interest that would be accrued between  issuance and cashing of the check.  The district court found  that while "this time lapse may be short in the private sector,  it can be much longer in the IIM trust context because  OTFM often has incorrect addresses for the recipients."  Id.  at 12.


15
The federal government does not know the precise number  of IIM trust accounts that it is to administer and protect.  At  present, the Interior Department's system contains over 300,000 accounts covering an estimated 11 million acres, but  the Department is unsure whether this is the proper number  of accounts. See id. at 10.1  Plaintiffs claim that the actual  number of accounts is far higher, exceeding 500,000 trust  accounts.  See id.


16
Not only does the Interior Department not know the  proper number of accounts, it does not know the proper  balances for each IIM account, nor does Interior have sufficient records to determine the value of IIM accounts. As the  district court found, "[a]lthough the United States freely  gives out 'balances' to plaintiffs, it admits that currently these  balances cannot be supported by adequate transactional documentation."  Id.  Current account reconciliation procedures  are insufficient to ensure that existing account records, reported account balances, or payments to IIM beneficiaries are  accurate.  As the Interior Secretary testified at trial, the  Department is presently unable to render an accounting for a  majority of the IIM trust beneficiaries.  Trial Transcript at  3762.  As a result, the government regularly issues payments  to trust beneficiaries "in erroneous amounts--from unreconciled accounts--some of which are known to have incorrect  balances." Cobell V, 91 F. Supp. 2d at 6.  Thus, the district  court concluded, and the government does not deny, that "[i]t  is entirely possible that tens of thousands of IIM trust  beneficiaries should be receiving different amounts of money--their own money--than they do today.  Perhaps not. But no one can say...."  Id.


17
C. The Indian Trust Fund Management Reform Act ("1994 Act")


18
Concern over federal mismanagement of the IIM trust  funds is not new.  The General Accounting Office, Interior  Department Inspector General, and Office of Management  and Budget, among others, have all condemned the mismanagement of the IIM trust accounts over the past twenty  years.  See, e.g., U.S. General Accounting Office, Financial  Management:  BIA's Management of the Indian Trust Funds, GAO/T-AIMD-93-4 (1993);  U.S. General Accounting Office,  Financial Management:  Status of BIA's Efforts to Reconcile  Indian Trust Fund Accounts and Implement Management  Improvements, GAO/T-AIMD-94-99 (1994);  Misplaced Trust: The Bureau of Indian Affairs' Mismanagement of the Indian  Trust Fund, H.R. Rep. No. 102-499, at 2-3 (1992) (citing  critiques of IIM trust management by Interior Department  IG, OMB, and others).  Time and again Interior Department  officials pledged to address these concerns.  Yet, as Interior  officials readily acknowledge, there has been little progress at  reforming the management of IIM trust accounts.  See Cobell  V, 91 F. Supp. 2d at 32-33 (citing Interior Department's  factual stipulations);  Trial Transcript at 3768 (testimony of  Interior Secretary Bruce Babbitt acknowledging that "[t]he  fiduciary obligationof the United States government is not  being fulfilled").


19
Beginning in 1988, Congress held oversight hearings on  Interior's management of the Indian trust accounts.  These  hearings led to a report, Misplaced Trust:  The Bureau of  Indian Affairs' Mismanagement of the Indian Trust Fund,  H.R. Rep. No. 102-499 (1992) [hereinafter "Misplaced Trust"],  which harshly criticized the Interior Department's mishandling of the trust accounts.  Consistent with prior analyses,  the report found, "significant, habitual problems in BIA's  ability to fully and accurately account for trust fund moneys,  to properly discharge its fiduciary responsibilities, and to  prudently manage the trust funds."  Id. at 2.  Interior's  persistent failure to meet its obligations led the congressional  investigators to conclude that top officials "have utterly failed  to grasp the human impact of its financial management of the  Indian trust fund."  Id. at 5.  To address these concerns,  Interior commissioned an independent study which determined that reconciling the IIM trust accounts could cost over  $200 million.  See Cobell V, 91 F. Supp. 2d at 13.  Yet "[e]ven  that expenditure would have yielded only a 'reconciliation' of  approximately eighty-five percent reliability."  Id.  Once  again the Interior Department pledged reforms;  once again  there was little improvement.


20
In 1994, Congress enacted the Indian Trust Fund Management Reform Act ("1994 Act"), Pub. L. No. 103-412 (1994). This law recognized the federal government's preexisting  trust responsibilities.2  It further identified some of the Interior Secretary's duties to ensure "proper discharge of the  trust responsibilities of the United States."  25 U.S.C.  § 162a(d).  These "include (but are not limited to) the following":


21
* "Providing adequate systems for accounting for and reporting trust fund balances";


22
*  "Providing adequate controls over receipts and disbursements";


23
* "Providing periodic, timely reconciliations to assure the accuracy of accounts";


24
* "Preparing and supplying ... periodic statements of ... account performance" and balances to account holders;  and


25
* "Establishing consistent, written policies and procedures for trust fund management and accounting."


26
Id.


27
There is no dispute that the federal government owes IIM  beneficiaries--the plaintiffs/appellees--these duties.  The district court so found and the Interior Department conceded as  much at trial.  See, e.g., Cobell V, 91 F. Supp. 2d at 32-33. While arguing that plaintiffs' claims should be evaluated on  the basis of what is contained in the Act alone, the Interior  Department did not dispute that these duties "must be interpreted in light of the common law of trusts and the United  States' Indian policy."  Id. at 33.  Most significantly, the  Interior Department stipulated that many of the duties owed  under the 1994 Act were not being fulfilled.  See id. (listing  Interior Department stipulations).  In other words, the federal government readily acknowledges that it is in breach of at  least some of the fiduciary duties owed to IIM beneficiaries.


28
The Office of the Special Trustee & the High Level Implementation Plan


29
The 1994 Act created the Office of the Special Trustee for  American Indians ("OST") "to provide for more effective  management of, and accountability for the proper discharge  of, the Secretary's trust responsibilities" and ensure proper  reform measures are implemented. 25 U.S.C. § 404(1).  The  Special Trustee ("ST") is a sub-cabinet level officer appointed  by the President and confirmed by the Senate who reports  directly to the Interior Secretary.  Id. § 4042(b).  The ST is  required to develop a "comprehensive strategic plan" for trust  management reform and an appropriate reform timetable to  ensure "proper and efficient discharge of the Secretary's  trust responsibilities."  Id. § 4043(a)(1).  The ST is also to  oversee a "fair an accurate accounting" of the trust accounts  and submit annual reports to Congress.  Id. § 4043(b)(2)(A)  and (f).  Despite these responsibilities, the ST only has  "general oversight" responsibilities;  decision-making authority for IIM trust management remains with the Secretary of  the Interior.  Id. § 4043(b)(1).


30
The first ST under the Act was Paul Homan.  In April  1997, Homan submitted a "strategic plan" to the Secretary  and Congress pursuant to the 1994 Act.  Among other things,  the plan called for the reorganization of Indian trust fund  management and the centralization of record-keeping,  changes that may have required legislative authorization. The Interior Secretary opted to implement portions of the  strategic plan, including the upgrade of computer systems,  the clean-up of trust records, and the elimination of processing backlogs.  The Secretary's plan, known as the High Level  Implementation Plan ("HLIP"), was issued in July 1998.  As  drafted, the HLIP consisted of twelve "subprojects" which  focus on ensuring the accuracy of information regarding the  IIM trust accounts and developing uniform policies and procedures to guide trust management in the future.  These  subprojects included data cleanup, clearing probate backlogs, improving records management, and establishing internal  controls to prevent future mismanagement.


31
The HLIP is designed to overcome numerous gaps and  deficiencies in the Interior Department's record-keeping and  trust management.  Those identified by the district court as  "central" to this case are the following:


32
* Data Cleanup--The records upon which the government must rely to fulfill its trust duties are woefully deficient.  In particular, the Interior Department does not have complete or accurate information on the identities or whereabouts of all trust beneficiaries, nor does the Department have complete land title records.  For instance, as of 1998, there were over 46,000 IIM trust accounts without current addresses for the beneficiary and over 123,000 accounts without a Social Security or Tax Identification number.  To address these concerns, the HLIP calls for the inventorying of existing documents from IIM trust offices around the country and the reconciliation of conflicting records.  However, the trial court found "no written plan" to obtain "missing information" necessary for compiling complete land title records.  Cobell V, 91 F. Supp. 2d at 17.


33
* Probate Backlog--The Bureau of Indian Affairs has a probate backlog of approximately 12,000 cases, some or all of which could affect the payments owed to individual trust beneficiaries.  There is currently "no formal plan" to address this backlog.  There is, however, a "reinvention team" that is to address probate concerns and fractionated interests in land. Id.


34
* Appraisal Program--The trial court found evidence of an estimated 212,000 title defects.  These defects can impact the processing of leases which can, in turn, impact the government's ability to render an accounting for the trust beneficiaries.  Under the HLIP, the Interior Department plans to reduce the  backlog, at least in part, "by re-defining when appraisals are required as a matter of Interior policy." Id. at 18.


35
* Computer Systems--The Interior Department does not have computer systems in place capable of tracking trust resources and relevant data.  The current system, known as the "legacy" system, is not capable of performing this function.  The HLIP calls for the acquisition and implementation of two new computer systems to replace the legacy system:  the Trust Fund Accounting System ("TFAS") and the Trust Asset and Accounting Management System ("TAAMS").  Id.


36
* Records Management--The Interior Department acknowledges that adequate record-keeping is essential if the Department is to fulfill its fiduciary obligations to the IIM trust beneficiaries.  Yet, as Interior stipulated at trial, the current record-keeping system is woefully inadequate.  To address this concern, the HLIP establishes a "records management group" to develop a plan for transferring financial records from BIA to OST and maintaining trust records into the future.  Id. at 20-21.


37
Despite OST's substantial responsibilities, Congress did not  provide for funding of OST in the 1994 Act, nor has the  Interior Department sought funding for OST in its departmental budget requests sufficient to meet the ST's estimated  costs.  In January 1999, the Interior Secretary announced his  unilateral reorganization of OST, prompting Homan's resignation.3


38
There are also trust management problems at the Treasury  Department.  In response to plaintiff's charges, the Treasury  Department stipulated to the following problems and remedies:


39
* Illegal Document Policies--The Treasury Department regularly allows the destruction of documents over six years and seven months old in conformity with the National Archives and Records Administration's document destruction schedule.  At present, no effort is made to ensure that IIM trust records or other documents that could be needed to conduct an adequate accounting are preserved.  As a result, IIM trust records necessary for an accounting of the trust accounts have been irretrievably lost.  The Treasury Department has agreed to develop a record retention schedule for trust documents for the purposes of this litigation and into the future.  Id. at 23.


40
* Time Lapse in Fund Availability--There can be a time lapse between the deposit of funds with the Treasury Department and the investment of those funds by the Interior Department on behalf of IIM trust beneficiaries.  The Treasury Department has agreed to facilitate investment when funds are initially deposited.  Id. at 22.


41
* Lost Interest on IIM Checks--According to plaintiffs, some IIM beneficiaries lose interest during the delay between the time a check is issued and when that check can be presented for payment.  Treasury has agreed to conduct a study of the alleged time lapse and resulting lost interest.  Id. at 22-23.


42
The Treasury Department further stipulated to the development of new systems and procedures that could potentially  fulfill the Department's fiduciary obligations.  Id. at 22.

D. District Court Proceedings

43
On June 10, 1996, appellees filed this class-action suit "to  compel performance of trust obligations."  They alleged that the federal government's trustee-delegates, including the Secretaries of the Interior and Treasury, breached the fiduciary  duties owed to plaintiffs by mismanaging the IIM trust  accounts.  On February 4, 1997, the district court certified  the named plaintiffs under Federal Rule of Civil Procedure  23(b)(1)(A) and (b)(2) as class representatives for all present  and former IIM account beneficiaries. Cobell v. Babbitt (Cobell I), 30 F. Supp. 2d 24, 28 (D.D.C. 1998).  On May 5, 1998,  the district court bifurcated the case for trial.  Phase I would  address "fixing the system" or reforming the management  and accounting of the IIM trusts so as to meet the federal  government's fiduciary responsibilities.  Phase II will address  historical accounting of the accounts.


44
On November 5, 1998, the district court rejected the government's motion to dismiss and for summary judgment. The court found that the government waived sovereign immunity pursuant to Section 702 of the Administrative Procedure  Act. Id. at 30-35. The court also dismissed some of plaintiffs'  claims for money damages and held that the government's  fiduciary duties to IIM trust beneficiaries were not ministerial in nature and therefore could not be compelled by mandamus.  Id. at 35-36.


45
Later in 1998, the court held Interior Secretary Bruce  Babbitt, Treasury Secretary Robert Rubin, and Assistant  Interior Secretary Kevin Gover in contempt of court for  failing to comply with the court's production orders and  imposed monetary sanctions.  See Cobell v. Babbitt ("Cobell  II"), 37 F. Supp. 2d 6 (D.D.C. 1999) (holding defendants in  contempt of court for failing to make good faith effort to  comply with discovery order);  Cobell v. Babbitt ("Cobell IV"),  188 F.R.D. 122 (D.D.C. 1999) (awarding sanctions).  As trustee delegates these officials had a clear obligation to maintain  trust records and furnish such records to beneficiaries upon  request, yet they were unable to provide such records and  related documents to the court in response to an Order of  Production.  See Cobell II, 37 F. Supp. 2d at 23.  The district court found that these officials had failed to make a good faith  effort to produce such information.  Indeed, the district court  found that the defendants "proposed a stipulated order to the  court and then immediately improperly instructed their field  personnel on what documents were required to be produced." Id. at 28.  The egregious nature of this conduct was only  compounded by the Treasury Department's contemporaneous  destruction of documents potentially responsive to the court's  production order, and the failure of government officials "to  apprise the court or the plaintiffs of the defendants' unwillingness and self-inflicted inability to comply" with the production orders.  Id. at 28, 31.


46
On June 7, 1999, the district court denied the government's  motion for summary judgment on some of the plaintiffs'  claims.  In addition, the court found that the federal government waived its sovereign immunity against a suit for injunctive and declaratory relief for the breach of trust duties.  See  Cobell v. Babbitt ("Cobell III"), 52 F. Supp. 2d 11 (D.D.C.  1999).


47
The court held a six-week trial on the Indians' claims, and  issued its opinion on December 21, 1999.  After satisfying  itself that it had jurisdiction over plaintiffs' claims, the district  court found that the federal government had breached some  of the fiduciary duties owed to plaintiffs.  Among the district  court's specific conclusions were:


48
* under the 1994 Act defendants must provide IIM trust beneficiaries with "an accurate accounting of all money in the IIM trust held in trust for the benefit of plaintiffs, without regard to when the funds were deposited," Cobell V, 91 F. Supp. 2d at 58;


49
* under the 1994 Act defendants must "retrieve and retain all information concerning the IIM trust that is necessary to render an accurate accounting" for the trust beneficiaries, id.; * the Interior Secretary and Assistant Secretary must "establish written policies and procedures" for:  a) "collecting from outside sources missing information  necessary to render an accurate accounting of the IIM trust";  b) "the retention of IIM-related trust documents necessary" for an accurate accounting;  c) "computer and business systems architecture necessary" for an accurate accounting;  and d) "the staffing of trust management functions necessary" for an accurate accounting, id.;


50
* the Treasury Secretary owes IIM trust beneficiaries "the statutory trust duty to retain IIM trust documents" necessary for an accurate accounting, id.


51
The court further found that the defendants were in violation  of the above-mentioned fiduciary duties, ordered them to  come into compliance with their duties and remanded the  required actions to the defendants for further proceedings  "not inconsistent" with the court's opinion.  Id.  The court  rejected plaintiffs' plea for the appointment of a special  master to oversee the government's compliance with its fiduciary duties.  Id. at 49.


52
The court did not rule for the plaintiffs on all counts,  however.  The court dismissed their pure common-law claims  as well as those claims alleging obstruction of the Special  Trustee.  Id. at 28-31, 51-52.  The court retained continuing  jurisdiction over the case for the next five years, during which  time the defendants are required to submit quarterly status  reports summarizing the government's progress in meeting  its fiduciary duties to the IIM trust beneficiaries.  Id. at 5859.


53
The court certified its order for interlocutory appeal under  28 U.S.C. § 1292(b) "[t]o the extent that the court's order is  not 'otherwise appealable.' "  Cobell V, 91 F. Supp. 2d at 57. The defendants appealed, alleging that the district court  improperly construed the nature and extent of the government's fiduciary duties to IIM trust beneficiaries.  Specifically, appellants take issue with the district court's finding of  specific trust obligations, including a judicially enforceable


54
duty to account, and the district court's conclusion that trust  reforms have been unlawfully withheld or unreasonably delayed.  Further, appellants allege that the district court  lacked sufficient basis to award equitable relief and that the  relief awarded was unwarranted.

II. Jurisdiction
A. Subject Matter Jurisdiction

55
Although appellants have not renewed their jurisdictional  challenge to plaintiffs' claims, we must assure ourselves that  we have jurisdiction.  Plaintiffs' claims allege breach of trust  obligations grounded in federal law and plaintiffs seek enforcement of their federal rights.  Plaintiffs' claims thus  "arise under" the laws of the United States, granting federal  court jurisdiction under 28 U.S.C. § 1331.  See, e.g., Robbins  v. Reagan, 780 F.2d 37, 43 (D.C. Cir. 1985);  Association of  National Advertisers, Inc. v. FTC, 617 F.2d 611, 619 (D.C.  Cir. 1979).

B. Sovereign Immunity

56
The federal government claimed sovereign immunity below,  but did not renew this claim on appeal.  As the court below  noted, section 702 of the Administrative Procedure Act waives  federal officials' sovereign immunity for actions "seeking relief other than money damages" involving a federal official's  action or failure to act.  5 U.S.C. § 702.  Insofar as the  plaintiffs seek specific injunctive and declaratory relief--and,  in particular, seek the accounting to which they are entitled-the government has waived its sovereign immunity under this  provision.  See Bowen v. Massachusetts, 487 U.S. 879, 894-95  (1988).  That plaintiffs rely upon common law trust principles  in pursuit of their claim is immaterial, as here they seek  specific relief otherthan money damages, and federal courts  have jurisdiction to hear such claims under the APA.

C. Final Agency Action

57
Whether there is a final agency action is also a jurisdictional question.  With a few exceptions, if there is no final agency  action, there is no basis for review of the government's decision or policy.  One exception occurs where plaintiffs  claim that a governmental action was unlawfully withheld or  unreasonably delayed.


58
When the district court rejected the government's motion  to dismiss in November 1998, it held that the HLIP itself  constitutes final agency action.  Cobell I, 30 F. Supp. 2d at 33.  This conclusion was based on a concession made by government counsel at oral argument on the motion.  Id. At trial,  however, appellants argued that there was no final agency  action for the court to review.  Cobell V, 91 F. Supp. 2d at  35-36.  Appellants' new position was that the HLIP was not a  final agency action because it was (and continues to be) a  "work in progress."  Id. at 36.  The court rejected this  argument holding that the preexisting accounting system  used to administer the IIM trust constituted a final agency  action capable of review.  Id.;  see also Cobell I, 30 F. Supp.  2d at 33-34.  It is the existing system, and not any proposed  reform or replacement that "aggrieves plaintiffs today."  Cobell V, 91 F. Supp. 2d at 36.


59
Although the government does not press the issue, this  conclusion by the district court is questionable.  While a  single step or measure is reviewable, an on-going program or  policy is not, in itself, a "final agency action" under the APA. See Lujan v. National Wildlife Federation, 497 U.S. 871, 890  (1990).  A plaintiff "cannot seek wholesale improvement of [a]  program by court decree, rather than in the offices of the  Department or the halls of Congress, where programmatic  improvements are normally made."  Id. at 891.


60
This is not to say that the district court lacked jurisdiction  to hear plaintiffs' claims, however.  Where a federal court has  jurisdiction to hear challenges to an agency action it also has  jurisdiction over claims of unreasonable delay.  See Telecommunications Research and Action Center v. FCC, 750 F.2d  70, 75 (D.C. Cir. 1984).  As this court has noted in the past,  where "an agency is under an unequivocal statutory duty to  act, failure so to act constitutes, in effect, an affirmative act  that triggers 'final agency action' review."  Sierra Club v.  Thomas, 828 F.2d 783, 793 (D.C. Cir. 1987);  see also Public Citizen Health Research Group v. Commissioner, 740 F.2d  21, 32 (D.C. Cir. 1984).  Were it otherwise, agencies could  effectively prevent judicial review of their policy determinations by simply refusing to take final action.


61
In the case at bar, it is clear that the federal government  has been under an obligation to discharge the fiduciary duties  owed to IIM trust beneficiaries for decades.  It is also clear  that refusing to hear plaintiffs' claims could unduly prejudice  their rights as trust beneficiaries.  The district court's findings of fact, largely unchallenged by the government, make  clear that insofar as the federal government owes trust  beneficiaries a duty to maintain records and provide an  accounting, delaying review is tantamount to denying review  altogether.  The district court further concluded that appellants' extensive delay in discharging their fiduciary duties was  unreasonable.  In such circumstances, federal courts may  exercise jurisdiction to compel agency action "unlawfully  withheld or unreasonably denied."  5 U.S.C. § 706.


62
Even assuming, as appellants argue, that the 1994 Act  effectively reset the clock for a finding of unreasonable delay,  appellants' "reasonable time to discharge" its fiduciary obligations "has expired."  Cobell V, 91 F. Supp. 2d. at 48.  The  district court's judgment came down over six years after  passage of the 1994 Act.  During that time, deadlines were  missed, documents destroyed, and, in the words of the district  court, appellants had yet to progress much beyond planting  the "seed" for discharging their fiduciary obligations.  See id.  at 20.  Courts owe substantial deference to agency prerogatives in fulfilling their legal obligations, especially where  Congress intervenes to address longstanding problems, as it  did with the 1994 Act.  But this does not require courts to  turn a blind eye when government officials fail to discharge  their duties.


63
As a general rule, Section 706 of the APA "leaves in the  courts the discretion to decide whether agency delay is unreasonable." Forest Guardians v. Babbitt, 174 F.3d 1178, 1190  (10th Cir. 1999).  The legal standard used to determine  whether agency delay is unreasonable is a question of law to be reviewed de novo by this court.  However, the factual  findings that underlie that determination are only to be  overturned if the district court's findings are clearly erroneous.


64
For good reason, courts are reluctant to upset existing  agency priorities, unless the delay is "egregious."  See Telecommunications Research and Action Center, 750 F.2d at 79. An agency's own timetable for performing its duties in the  absence of a statutory deadline is due "considerable deference."  Sierra Club v. Gorsuch, 715 F.2d 653, 658 (D.C. Cir.  1983).  Moreover, "a finding that delay is unreasonable does  not, alone, justify judicial intervention."  In re Barr Labs.,  Inc., 930 F.2d 72, 75 (D.C. Cir. 1991).4


65
In reviewing an unreasonable delay claim, this court considers four factors:


66
First, "the court should ascertain the length of time that has elapsed since the agency came under a duty to act"....  Second, "the reasonableness of the delay must be judged 'in the context of the statute' which authorizes the agency's action."...  Third, the court must examine the consequences of the agency's delay....  Finally, the court should give due consideration in the balance to "any plea of administrative error, administrative convenience, practical difficulty in carrying out a legislative mandate, or need to prioritize in the face of limited resources."


67
In re International Chemical Workers Union, 958 F.2d 1144,  1149 (D.C. Cir. 1992) (citations omitted).


68
Considering the first two factors, it is beyond question that  the government has delayed fulfilling its trust obligations for  many years.  The district court specifically found that IIM  trust beneficiaries have been denied their rights--in particular their right to an accounting--for decades.  See Cobell V,  91 F. Supp. 2d at 47 (noting that IIM beneficiaries have  waited "a century" for "an accurate accounting" which is the  "most basic fiduciary duty").  That Congress enacted its own  remedial statute to address this unconscionable delay does  not mitigate the egregious amount of time plaintiffs have  waited for, as discussed below, the 1994 Act is not the source  of plaintiffs' rights.  Rather, it is designed to help rectify the  government's longstanding failure.  Given the record before  it, the district court reasonably concluded that absent court  intervention, discharge of the government's fiduciary obligations may yet be far off.


69
Appellants note that the 1994 statute provides no deadlines  for the reforms at issue.  Failure to provide a statutory  timetable may indicate that Congress sought to leave the  timing of reform to agency discretion.  But the lack of a  timetable does not give government officials carte blanche to  ignore their legal obligations.  This is particularly true where,  as here, the act of outlining specific steps toward reform was enacted against a background of agency delay dating back  many years.


70
The district court noted that the consequences of further  agency delay are potentially quite severe.  Documents necessary for a proper accounting and reconciliation have been lost  or destroyed, and the district court found little reason to  believe that this would change in the near future.  "The  longer defendants delay in creating the plans necessary to  render an accounting, the greater the chance that plaintiffs  will never receive an actual accounting of their own trust  money."  Cobell V, 91 F. Supp. 2d at 47.  Given that many  plaintiffs rely upon their IIM trust accounts for their financial  well-being, the injury from delay could cause irreparable  harm to plaintiffs' interests as IIM trust beneficiaries.  Thus  it seems that "the interests at stake are not merely economic  interests in [an administrative scheme], but personal interests  in life and health."  Public Interest Health Research Group v.  Auchter, 702 F.2d 1150, 1156 (D.C. Cir. 1983) (citation omitted).


71
Concern for "administrative convenience" certainly counsels against interfering with the government's reform priorities.  See Grand Canyon Air Tour Coalition v. FAA, 154 F.3d 455, 476 (D.C. Cir. 1998) ("Although the APA gives  courts the authority to 'compel agency action unlawfully  withheld or unreasonably delayed,' we are acutely aware of  the limits of our institutional competence in the highly technical area at issue in this case."(citations omitted)).  Yet neither  a lack of sufficient funds nor administrative complexity, in  and of themselves, justify extensive delay, nor can the government claim that it has become subject to unreasonable  expectations.  Federal officials were aware of their fiduciary  obligations long before the passage of the 1994 Act-let alone  the initiation of this action-and yet little progress has been  made in discharging those duties.  What little progress the  government has made appears more due to the litigation than  diligence in discharging its fiduciary obligations.  See Misplaced Trust H.R. Rep. No. 102-499, at 5 (noting that "the  only thing that seems to stimulate a flurry of activity at the  Bureau [of Indian Affairs] is an impending appearance ...  before a congressional committee").  See also Cobell V, 91  F. Supp. 2d at 20 n.15 (noting that the "positive steps taken  by defendants toward bringing themselves into compliance  with the law" have "not come easily").  For these reasons, we  find no basis for disturbing the district court's conclusion that  appellants unreasonably delayed the discharge of their fiduciary obligations, nor for upsetting the district court's exercise of jurisdiction under 5 U.S.C. § 706 on this basis.

III. Discussion

72
Appellants contend that the district court erred in finding  that the Secretary of the Interior committed "four statutory  breaches of IIM trust duties ... that warrant prospective  relief."  Cobell V, 91 F. Supp. 2d at 40.  They challenge both  the district court's conclusions that specific measures were  required under the 1994 Act for the government to fulfill its  fiduciary obligations and its provision of prospective equitable  relief awarded.  Specifically, the government argues that the  1994 Act does not require the creation of written policies and  procedures covering the four areas identified by the district  court.


73
To the extent that appellants contest the district court's  conclusions defining the federal government's fiduciary obligations to IIM trust beneficiaries, they raise questions of law  that we review de novo.  Yet insofar as appellants challenge  factual findings, we will uphold the district court unless its  findings are clearly erroneous.  Such findings include the  district court's determination whether the steps taken by  appellants in recent years toward fulfilling their legal obligations have been sufficient, or whether there has been  unreasonable delay in discharging the government's fiduciary  duties.


74
Applying these standards, the government is incorrect to  the extent that it assumes that the 1994 Act forms the basis  for its fiduciary obligations.  The 1994 Act did not create  these obligations any more than it created the IIM trust  accounts.  As noted above, the 1994 Act was a remedial  statute designed to ensure more diligent fulfillment of the  government's obligations.  It recognized and reaffirmed what  should be beyond dispute--that the government has longstanding and substantial trust obligations to Indians, particularly to IIM trust beneficiaries, not the least of which is a  duty to account.  While the district court erred in characterizing some specific actions as material breaches that were  themselves merely indicia of appellants' breach, there is  ample evidence in the record to support the district court's  broader conclusion that appellants' failure to take reasonable  steps toward the discharge of their trust obligations constituted a breach of their fiduciary duties.  Once this conclusion  was reached, the district acted well within its power to  provide modest equitable relief, requiring appellants to do  little more than develop plans to ensure proper discharge of  their duties within a reasonable time.  The district court did  not exceed its powers with this order, nor with its decision to  maintain jurisdiction over the case.

A. The Trust Relationship

75
There is no doubt that the federal government has a longstanding fiduciary obligation to IIM trust beneficiaries. "[T]he law is 'well established that the Government in its dealings with Indian tribal property acts in a fiduciary capacity.' "  Lincoln v. Vigil, 508 U.S. 182, 194 (1993) (quoting  United States v. Cherokee Nation of Oklahoma, 480 U.S. 700,  707 (1987)).  In the leading case on Indian trust responsibilities, United States v. Mitchell ("Mitchell II"), the Supreme  Court was clear:


76
A fiduciary relationship necessarily arises when the Government assumes such elaborate control over forests and property belonging to Indians.  All of the necessary elements of a common-law trust are present:  a trustee (the United States), a beneficiary (the Indian allottees), and a trust corpus (Indian timber, lands, and funds).


77
463 U.S. 206, 225 (1983) (citing Restatement (Second) of  Trusts S 2, cmt. h (1959)).


78
This rule operates as a presumption.  See Loudner v.  United States, 108 F.3d 896, 900 (8th Cir. 1997) (" '[T]here is a  presumption that absent explicit language to the contrary, all  funds held by the United States for Indian tribes are held in  trust.' " (quoting Rogers v. United States, 697 F.2d 886, 890  (9th Cir. 1983))).  Therefore, courts correctly recognize a  trust relationship even where it is not explicitly laid out by  statute.  Specifically, " 'where the Federal Government takes  on or has control or supervision over tribal monies or properties, the fiduciary relationship normally exists with respect to  such monies or properties (unless Congress has provided  otherwise) even though nothing is said expressly in the  authorizing or underlying statute (or other fundamental document) about a trust fund, or a trust or fiduciary connection.' " Mitchell II, 463 U.S. at 225 (quoting Navajo Tribe of Indians  v. United States, 224 Ct. Cl. 171, 183 (1980)).


79
It is no doubt true that "the government's fiduciary responsibilities necessarily depend on the substantive laws creating  those obligations."  Shoshone-Bannock Tribes v. Reno, 56  F.3d 1476, 1482 (D.C. Cir. 1995);  see also Mitchell II, 463  U.S. at 224 (the relevant statutes and regulations "define the  contours of the United States' fiduciary responsibilities."); National Wildlife Federation v. Andrus, 642 F.2d 589, 611  (D.C. Cir. 1980) ("[A] trust responsibilitycan only arise from a statute, treaty, or executive order." (citation omitted)). This does not mean that the failure to specify the precise  nature of the fiduciary obligation or to enumerate the trustee's duties absolves the government of its responsibilities.  It  is well understood that "[t]he extent of [a trustee's] duties  and powers is determined by the trust instrument and the  rules of law which are applicable."  Restatement (Second) of  Trusts § 201, at 442 (1959).  It is the nature of any instrument that establishes a trust relationship that many of the  duties and powers are implied therein.  They arise from the  nature of the relationship established.


80
While the government's obligations are rooted in and outlined by the relevant statutes and treaties, they are largely  defined in traditional equitable terms.  "Where Congress  uses terms that have accumulated settled meaning under  either equity or the common law, a court must infer, unless  the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms."  NLRB v.  Amax Coal Co., 453 U.S. 322, 329 (1981).  Courts "must infer  that Congress intended to impose on trustees traditional  fiduciary duties unless Congress has unequivocally expressed  an intent to the contrary."  Id. at 330.  Much as the Supreme  Court has regularly turned to the Restatement and other  authorities to construe trust responsibilities, it is appropriate  for the district court to consult similar sources.


81
Despite the imposition of fiduciary duties, federal officials  retain a substantial amount of discretion to order their priorities.  In Lincoln v. Vigil, for example, the Supreme Court  held that the government's fiduciary relationship with Indians  "could not limit" an agency's discretion "to reorder its priorities" as among beneficiaries.  508 U.S. 182, 195 (1993).  In  Lincoln, the Court rejected a challenge to the Indian Health  Service's decision to discontinue a health program for handicapped Indian children in one region of the country in order  to devote greater resources to a national program.  Nonetheless, the Secretary "cannot escape his role as trustee by  donning the mantle of administrator" to claim that courts  must defer to his expertise and delegated authority.  Jicarilla Apache Tribe v. Supron Energy Corp., 728 F.2d 1555, 1567 (10th Cir. 1984) (Seymour, J., concurring in part and dissenting in part), adopted as majority opinion as modified en  banc, 782 F.2d 855 (10th Cir. 1986).


82
The Secretary has an "overriding duty ... to deal fairly  with Indians."  Morton v. Ruiz, 415 U.S. 199, 236 (1974). This duty necessarily constrains the Secretary's discretion. When faced with several policy choices, an administrator is  generally allowed to select any reasonable option.  Yet this is  not the case when acting as a fiduciary for Indian beneficiaries as "stricter standards apply to federal agencies when  administering Indian programs."  Jicarilla, 728 F.2d at 1567. Summarizing federal case law on fiduciary obligations owed to  Indian tribes, the Tenth Circuit concluded that where "the  Secretary is obligated to act as a fiduciary ... his actions  must not merely meet the minimal requirements of administrative law, but must also pass scrutiny under the more  stringent standards demanded of a fiduciary."  Id. at 1563. The federal government has "charged itself with moral obligations of the highest responsibility and trust" in its relationships with Indians, and its conduct "should therefore be  judged by the most exacting fiduciary standards."  Seminole  Nation v. United States, 316 U.S. 286, 297 (1942);  cf.  Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1445 n.8 (D.C.  Cir. 1988) (giving "careful consideration to Interior's interpretation" of the Oklahoma Indian Welfare Act, but not deferring  to it).

B. The 1994 Act

83
The crux of appellants' argument is that there was no  material breach of their fiduciary obligations as defined by  the 1994 Act.  Specifically, appellants contend that the district court found obligations beyond those enumerated in the  Act, when Congress had intended that OST would determine  the proper content and timing of policies and procedures to  discharge appellants' fiduciary obligations.  Therefore, insofar as this process has yet to be completed, appellants  contend that there is no basis for the district court to find  that appellants unlawfully withheld or unreasonably delayed  discharge of their obligations.


84
The fundamental problem with appellants' claims is the  premise that their duties are solely defined by the 1994 Act. The Indian Trust Fund Management Reform Act reaffirmed  and clarified preexisting duties;  it did not create them.  It  further sought to remedy the government's long-standing  failure to discharge its trust obligations;  it did not define and  limit the extent of appellants' obligations. While appellants  are right to quibble with some of the district court's specific  findings, the premise upon which much of their appeal rests is  unsustainable.


85
The trust nature of the federal government's IIM responsibilities was recognized long before passage of the 1994 Act.  See Felix S. Cohen, Handbook of Federal Indian Law, 630-31  (1982 ed.).  As early as 1831, the Supreme Court recognized  that the relationship between Indians and the federal government was like "that of a ward to his guardian."  Cherokee  Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831) (Marshall,  C.J.).  Half a century later, in upholding a statute placing  certain crimes between Indians under federal jurisdiction, the  Court again noted that "Indian tribes are the wards of the  nation" and reaffirmed that the federal government owes  Indians a "duty of protection."  United States v. Kagama, 118  U.S. 375, 383, 384 (1886).  The fiduciary nature of the government's duty was made explicit in Seminole Nation v. United  States, 316 U.S. 286 (1942).  In Seminole Nation the Court  applied the "most exacting fiduciary standards" of the common law in assessing the government's discharge of its duties. Id. at 297.  And in Mitchell II, the Court reiterated the  existence of a "general trust relationship" which imposes  "distinctive obligation[s]" in addition to those established by  statute.  463 U.S. at 225 (citation omitted).


86
Enactment of the Indian Trust Fund Management Reform  Act in 1994 did not alter the nature or scope of the fiduciary  duties owed by the government to IIM trust beneficiaries. Rather, by its very terms the 1994 Act identified a portion of  the government's specific obligations and created additional  means to ensure that the obligations would be carried out. Indeed, the 1994 Act explicitly reaffirmed the Interior Secretary's obligation to fulfill the "trust responsibilities of the United States."  25 U.S.C. § 1629(d).  From this express  language, "we must infer that Congress intended to impose  on trustees traditional fiduciary duties unless Congress has  unequivocally expressed an intent to the contrary."  NLRB v.  Amax Coal Co., 453 U.S. 322, 330 (1981).


87
Section 101 of the 1994 Act states that the Interior Secretary's "proper discharge of the trust responsibilities shall  include (but are not limited to)" eight enumerated actions, 25  U.S.C. § 1629(d) (emphasis added).  In other words, the  government has other trust responsibilities not enumerated in  the 1994 Act.  See Puerto Rico Mari. Shipping Auth. v. ICC,  645 F.2d 1102, 1112 n.26 (D.C. Cir. 1981) ("It is hornbook law  that the use of the word 'including' indicates that the specified  list ... that follows is illustrative, not exclusive."  (citation  omitted)).  Moreover, applicable canons of statutory construction counsel against interpreting a statute creating a new  remedy to eliminate prior remedies and in favor of construing  a statute affecting Indians in a manner favorable to Indians. See 2B § 50.05 Sutherland, Statutory Construction, at 109  (5th ed. Norman J. Singer ed. 1992);  see also Rosebud Sioux  Tribe v. Kneip, 430 U.S. 584 (1977);  United States v. Santa  Fe Pacific R.R. Co., 314 U.S. 339 (1941).


88
Section 101 of the 1994 Act does not create "trust responsibilities of the United States."  Rather it lists some of the  means through which the Secretary shall discharge these  preexisting duties.  For instance, the first listed duty is  "[p]roviding adequate systems for accounting for and reporting trust fund balances."  25 U.S.C. § 162a(d)(1).  This would  not be necessary to discharge the government's trust responsibilities were not the government already obliged to account  for and report trust fund balances.  Rather than exhaust the  list of duties owed by the federal government to IIM trust  beneficiaries, the 1994 Act clarified and augmented aspects of  the government's preexisting obligations to facilitate their  fulfillment.


89
This view of the federal government's fiduciary duties is  supported by Mitchell II which held that "a fiduciary relationship necessarily arises when the government assumes such elaborate control over ... property belonging to Indians"--in particular where, as here, "[a]ll of the necessary  elements of a common-law trust are present."  463 U.S. at  225.  The general "contours" of the government's obligations  may be defined by statute, but the interstices must be filled  in through reference to general trust law.  While Mitchell II  involved a claim for damages, nothing in that decision or  other Indian cases would imply that appellants are not entitled to declaratory or injunctive relief.  Such remedies are  the traditional ones for violations of trust duties.


90
Appellants imply that the district court did not show sufficient deference to their roles as administrative officials  charged with developing and implementing policies and procedures to ensure the discharge of the federal government's  obligations.  Appellants thus imply, but do not argue, that  their interpretation of the 1994 Act, and the obligations that it  imposes, is due deference under Chevron U.S.A. Inc. v.  NRDC, 467 U.S. 837 (1984).  Assuming that the 1994 Act is  ambiguous, this does not enable the government to escape  liability by interpreting away its fiduciary obligations.  While  ordinarily we defer to an agency's interpretations of ambiguous statutes entrusted to it for administration, Chevron deference is not applicable in this case.  The governing canon of  construction requires that "statutes are to be construed liberally in favor of the Indians, with ambiguous provisions  interpreted to their benefit."  Montana v. Blackfeet Tribe of  Indians, 471 U.S. 759, 766 (1985).  Therefore, even where the  ambiguous statute is one entrusted to an agency, we give the  agency's interpretation "careful consideration" but "we do not  defer to it."  Muscogee (Creek) Nation v. Hodel, 851 F.2d  1439, 1445 n.8 (D.C. Cir. 1988).  This departure from the  Chevron norm arises from the fact that the rule of liberally  construing statutes to the benefit of the Indians arises not  from ordinary exegesis, but "from principles of equitable  obligations and normative rules of behavior," applicable to the  trust relationship between the United States and the Native  American people.  Albuquerque Indian Rights v. Lujan, 930  F.2d 49, 59 (D.C. Cir. 1991);  see also County of Oneida v.  Oneida Indian Nation of New York State, 470 U.S. 226, 24748 (1985) (Court resolves ambiguity in favor of Indian claims); Pueblo of Sandia v. Babbitt, 231 F.3d 878, 880 (D.C. Cir.  2000).  Thus, even if the statutory language did not make  clear that the government's duties predate and extend beyond  those enumerated in the 1994 Act, the Interior Department  would retain its fiduciary obligations to IIM trust beneficiaries.

C. Duty to Account

91
Holding that appellants' fiduciary duties predate the 1994  Act does not dispose of all their claims.  Having determined  the source of appellants' obligations, we must now consider  what those duties entail, at least with respect to the claims at  hand.  Specifically, we must consider the nature and extent of  the fiduciary duty to account appellants owe to IIM trust  beneficiaries.


92
Appellants' challenge focuses on the district court's conclusion that the IIM trust beneficiaries are entitled to a complete historical accounting of their trust accounts.  The government maintains that no such right is conferred by the 1994  Act.  Rather, the Act delegates responsibility for determining  the nature and scope of an accounting to the Interior Department.  The accounting required by Section 102 of the Act is  merely a prospective right and, according to appellants, "does  not speak to the extent to which the Secretary must inquire  into the correctness of past transactions."  Reply Brief for  Appellants at 17.  While appellants concede that "some type  of review of past transactions may indeed be necessary to  accurately state opening balances," this does not mean that  the plaintiffs have a judicially enforceable right to a complete  historical accounting.  Id.  Even were the plaintiffs entitled  to such an accounting, appellants contend that the Interior  Department, and not the court, would have the authority to  determine the nature and scope of the accounting.


93
Contrary to appellants' claims, Section 102 of the 1994 Act  makes clear that the Interior Secretary owes IIM trust  beneficiaries an accounting for "all funds held in trust by the  United States for the benefit of an Indian tribe or an individual Indian which are deposited or invested pursuant to the Act of June 24, 1938."  25 U.S.C. § 4011(a) (emphasis added). "All funds" means all funds, irrespective of when they were  deposited (or at least so long as they were deposited after the  Act of June 24, 1938).  Therefore, the 1994 Act reaffirms the  government's preexisting fiduciary duty to perform a complete historical accounting of trust fund assets.


94
Appellants place substantial weight on the fact that Title  III of the 1994 Act instructs the ST to oversee any accounting  or account reconciliation conducted by Interior.  Under Section 303(b)(2)(A) the ST "shall monitor the reconciliation" of  trust accounts and ensure that there is "a fair and accurate  accounting of all trust accounts."  Id. § 4043(b)(2)(A).  Further, Section 304 of the Act requires the Interior Secretary to  report on any account reconciliation that takes place and what  steps will be taken to resolve disputes over account balances. Id. § 4044.  Section 101 of the Act, on the other hand,  specifies numerous actions that must be taken by the government, but does not dictate the nature or scope of any accounting.  See id. § 162a(d).


95
Yet Title III of the 1994 Act does not vindicate the government's position as these provisions merely detail the oversight  functions of the ST, not the fiduciary responsibilities of the  federal government.  The language in Title III, if anything,  supports plaintiffs' claims, as it requires the ST to "ensure"  that BIA "provides the account holders, with a fair and  accurate accounting of all trust accounts." Id. § 4043(b)(2)(A)  (emphasis added).  Appellants never explain how one can give  a fair and accurate accounting of all accounts without first  reconciling the accounts, taking into account past deposits,  withdrawals, and accruals.  Indeed, the government's own  expert acknowledged that one could not determine an accurate account balance without confirming historical account  balances.


96
Even were the language of the 1994 Act ambiguous, this  would not redeem appellants' position, as we follow the same  rules of construction with regard to Indian trust expectations  discussed above.  Courts "must be guided by that 'eminently  sound and vital canon' that 'statutes passed for the benefit of Indian tribes ... are to be liberally construed, doubtful  expressions being resolved in favor of the Indians.' "  Bryan  v. Itasca County, 426 U.S. 373, 392 (1976) (citations omitted); see also Alaska Pacific Fisheries v. United States, 248 U.S.  78, 89 (1918) ("[s]tatutes passed for the benefit of dependent  Indian tribes ... are to be liberally construed, doubtful  expressions being resolved in favor of the Indians.");  Muscogee (Creek) Nation, 851 F.3d at 1445 n.8 (courts should  consider, but not defer, to agency interpretations of statutes  concerning the federal government's obligations to Indians); Jicarilla, 728 F.2d at 1563 ("[W]henever doubt or ambiguity  exists in federal statutes or regulations, such doubt is resolved in favor of the tribes.").  Again, as we noted above, the  canon of liberality of construction in favor of the Indians acts  with its "special strength" even where a federal agency would  in other cases enjoy the implied authority to implement  ambiguous statutory language supporting a competing interpretation.  Albuquerque Indian Rights, 930 F.2d at 59;  see  also Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766  (1985) (noting that "the standard principles of statutory construction do not have their usual force in cases involving  Indian law").


97
Not only does the 1994 Act plainly reaffirm the government's preexisting duty to provide an accounting to IIM trust  beneficiaries, but it is plain that such an obligation inheres in  the trust relationship itself.  "The obligation of a trustee to  provide an accounting is a fundamental principle governing  the subject of trust administration."  White Mountain  Apache Tribe of Arizona v. United States, 26 Cl. Ct. 446, 448  (1992) (citing G.T. Bogert, Trusts § 141, at 494 (6th ed.  1987)).


98
The 1994 Act requires that the Interior Department perform an "adequate" accounting.  This indicates that the accounting must be sufficient to serve the purposes for which a  trust accounting is typically conducted.  By this standard, the  district court's conclusion that the management of a trust and  rendering of an adequate accounting requires the locating and  retention of records, operational computer systems, and adequate staffing was, in plaintiffs' words, "self-evident."  Anything less would produce an inadequate accounting.


99
This conclusion is reinforced by basic common law trust  principles.  It is black-letter trust law that "[a]n accounting  necessarily requires a full disclosure and description of each  item of property constituting the corpus of the trust at its  inception." Engelsmann v. Holekamp, 402 S.W.2d 382, 391  (Mo. 1966);  see also Black's Law Dictionary (7th ed. 1999)  (defining accounting as "the report of all items of property,  income, and expenses" prepared by the trustee for the beneficiary). Under traditional equitable trust principles, "[t]he  trustee's report must contain sufficient information for the  beneficiary readily to ascertain whether the trust has been  faithfully carried out."  White Mountain Apache Tribe, 26 Cl.  Ct. at 449.


100
Appellants maintain that even if an accounting is required,  the district court overstepped its bounds by defining the  nature of the accounting required.  This argument both misrepresents the district court's opinion and misconstrues the  relevant trust law principles.  The district court made clear  that it was "not ruling upon what specific form of accounting,  if any," is required by the 1994 Act or the government's  preexisting fiduciary obligation.  Cobell V, 91 F. Supp. 2d at  40, n.32.  Rather, it noted that an accounting is, in fact,  required, and that such an accounting must be "of all money  in the IIM trust held in trust for the benefit of plaintiffs,  without regard to when the funds were deposited."  Id. at 58. The district court explicitly left open the choice of how the  accounting would be conducted, and whether certain accounting methods, such as statistical sampling or something else,  would be appropriate.  Such decisions are properly left in the  hands of administrative agencies.


101
Claiming the role of administrator, however, does not absolve the government of its enforceable obligations to the IIM  trust beneficiaries.  As noted above, appellants may not  escape from their fiduciary obligations by appealing to their  roles as administrators of a federal program.  In those capacities, they are trustee delegates of the federal government  who owe substantial fiduciary duties to IIM trust beneficiaries.  "If the Secretary is obligated to act as a fiduciary ...  then his actions must not merely meet the minimal requirements of administrative law, but must also pass scrutiny  under the more stringent standards demanded of a fiduciary." Jicarilla, 728 F.2d at 1563.


102
Appellants also argue that whatever right to an accounting  plaintiffs may have, the district court erred insofar as it  determined that such a right was judicially enforceable.  The  only action for an accounting that could be judicially compelled, according to the government, would be an accounting  accompanying an action for money damages in the court of  claims under the Tucker Act.  According to appellants,  Mitchell II provides that plaintiffs can seek monetary damages in a Tucker Act claim, but not declaratory or injunctive  relief because these "prospective equitable remedies are totally inadequate."  463 U.S. at 227.  No common law claim for  an accounting is cognizable, and even if it were, such a claim  has been waived by the plaintiffs' failure to file a cross-appeal  on that claim.


103
Here again, appellants misconstrue the relevant case law. We have already determined that there is federal jurisdiction  to hear plaintiffs' claims insofar as the federal government  has unreasonably delayed or unlawfully withheld performance  of its trust duties.  Federal courts have repeatedly recognized the right of Native Americans to seek relief for breaches of fiduciary obligations, including suits for monetary damages under the Tucker Act where prospective remedies would  be inadequate.  Indeed, this is the clear import of Mitchell II. See 463 U.S. at 226 n.31, 227.  "It is fundamental that an  action for accounting is an equitable claim and that courts of  equity have original jurisdiction to compel an accounting."  Klamath and Modoc Tribes v. United States, 174 Ct. Cl. 483,  487 (1966).


104
This position should not come as a surprise to appellants,  as it has been the official position of the federal government. In 1996 (prior to the filing of the initial complaint in this case)  the Interior Department's Solicitor issued an opinion that  government trustees have an "affirmative duty ... to make a  full and proper accounting."  Nothing in the 1994 Act, nor  any other federal statute, acts to limit or alter this right.

D. Breach

105
Based upon the foregoing facts and recognition of the  federal government's broad fiduciary obligations to IIM trust  beneficiaries, particularly a duty to render a complete and  accurate historical accounting, the district court found several  specific breaches on the part of appellants.  Specifically, the  district court found that a) appellants failed to provide plaintiffs with "an accurate accounting of all money in the IIM  trust held in trust for the benefit of plaintiffs, without regard  to when the funds were deposited";  b) appellants in both the  Interior and Treasury Department failed to "retrieve and  retain all information concerning the IIM trust that is necessary to render an accurate accounting" for the trust beneficiaries;  c) the Interior Secretary and Assistant Secretary failed  to "establish written policies and procedures" for collecting  and retaining necessary documents and information, implementing "computer and business systems architecture necessary" and ensuring sufficient "staffing of trust management  functions" to fulfill such obligations.  Cobell V, 91  F. Supp. 2d at 58. As discussed separately below, the court  also found that the Treasury Secretary failed to retain IIM  trust documents necessary for an accurate accounting. Id.


106
Appellants do not contest the district court's factual findings;  appellants have failed to do what the district court  concluded they failed to do.  Nor do appellants forcefully  maintain that those steps which they have taken toward  discharging their fiduciary obligations come anywhere close  to those steps necessary to fulfill the obligation to provide an  accounting.  Even were these findings challenged, there is  more than enough substantial evidence to support the district  court's findings in this regard.


107
Appellants do object to the district court's conclusions,  however.  Specifically, appellants argue that the district court  found specific breaches of obligations that do not exist.  Save  for the first breach listed--that of failing to render an accounting--appellants have a point.  While there is a specific  duty to provide a complete accounting, there is no specific  duty to, for example, implement particular policies or retrieve information either in the 1994 Act or elsewhere.  This does  not vindicate appellants' position, however, for while appellants may not have breached a specific duty to perform the  particular tasks identified by the district court, such as implementing a IIM trust management computer system, appellants' failure to take such steps provides ample support for  the district court's ultimate conclusion that appellants have  unreasonably delayed the discharge of their fiduciary obligations to IIM beneficiaries, and that there is little reason to  believe that, absent court intervention, these duties will be  discharged any time soon.


108
The government's broad duty to provide a complete historical accounting to IIM beneficiaries necessarily imposes substantial subsidiary duties on those government officials with  responsibility for ensuring that an accounting can and will  take place.  In particular, it imposes obligations on those who  administer the IIM trust lands and funds to, among other  things, maintain and complete existing records, recover missing records where possible, and develop plans and procedures  sufficient to ensure that all aspects of the accounting process  are carried out.  As the district court concluded, this may  well include an obligation to develop or obtain computer  software capable of tracking and reconciling fund data, hire  staff sufficient to execute management duties, and implement  specific plans to ensure that all reasonable efforts are made  to provide the most complete and accurate historical accounting of IIM trust funds that is possible.  The failure to  implement a computer system is not itself the breach.  Rather it is indicative of appellants' failure to discharge their  fiduciary obligations in a reasonably prompt manner.  It is  the latter which constitutes the breach.


109
There are similar problems with some of the district court's  other specific findings of breach.  For instance, one provision  in Section 101 of the 1994 Act requires "[e]stablishing consistent, written policies and procedures for trust fund management and accounting."  25 U.S.C. § 162a(d)(6).  Another  requires the Interior Secretary to provide "adequate staffing  ... for trust fund management and accounting."  Id.  § 162a(d)(7).  The district court concluded that the Department of Interior had breached a duty to have "written policies  and procedures for the staffing of trust management functions."  Cobell V, 91 F. Supp. 2d at 40.  This may technically  overstate the case.  There may not literally be a duty to have  such written policies and procedures.  Were there a means of  ensuring discharge of appellants' fiduciary obligations absent  such steps, there would be no breach.  Nonetheless, though  the failure to take such steps may not constitute a breach, it  surely provides substantial evidence that such a breach has  occurred.


110
In sum, there are numerous provisions of the 1994 Act  which appellants, by their own stipulation, are unable to meet. Most significantly, the government cannot provide an adequate accounting or reconciliation and does not provide the  required reports to IIM trust beneficiaries, nor did the  district court find any basis for believing that such obligations  would soon be met. Thus the district court's conclusions that  certain types of policies and plans would be necessary for the  government to discharge its fiduciary obligations are sustainable.  It is clear that the federal government will be unable to  provide an adequate accounting without computer systems,  staffing, and document retention policies that are adequate  for the task.  At the same time, defendants should be afforded sufficient discretion in determining the precise route they  take, so long as this threshold is met.  The actual legal  breach is the failure to provide an accounting, not its failure  to take the discrete individual steps that would facilitate an  accounting.  Thus, while the district court must amend its  opinion on remand to account for this distinction, there is no  need to alter the district court's order, as the bottom line is  the same:  By failing to take reasonable steps toward the  discharge of the federal government's fiduciary obligations to  IIM trust beneficiaries, appellants breached their duties.

E. The Treasury Department

111
Appellants specifically object to the district court's decision  to award relief against the Treasury Department.  Treasury  stipulated it would take actions to preserve trust-related  documents, which the district court acknowledged might "satisfactorily discharge" the Department's duties.  Cobell V, 91  F. Supp. 2d at 51.  Moreover, appellants argue, there is no  proof that the documents destroyed by the Treasury Department included anything "necessary" to render an accounting  of the IIM trust accounts.  At a more fundamental level, the  government challenges the court's finding of any breach by  the Treasury Department for failing to retain trust-related  documents. While the 1994 Act does impose obligations upon  the Treasury Department, there are no enumerated document retention obligations in the Act.  Congress gave no  indication that the government's trust responsibilities required it to alter the record destruction schedules set for the  Treasury Department by the National Archives and Records  Administration ("NARA").


112
Appellants have stipulated that the federal government is  the IIM beneficiaries' trustee and that the Treasury Secretary is a trustee-delegate.  A trustee is required to preserve  those documents necessary to fulfill the trustee's obligations  to trust beneficiaries. This includes maintaining those documents that are necessary for an accounting.  Therefore,  insofar as the Treasury Department has records and documents that are necessary to perform an adequate accounting,  the district court was correct in holding that the Department  must maintain these records.  The Treasury Department's  failure to maintain such documents is a breach of its fiduciary  duty.  The destruction of potentially relevant IIM-related  trust documents that may have been necessary for a complete  accounting is clear evidence that the Department committed  such a breach.  See id. at 50 n.35 (citing Pls. Ex. 152,  Treasury Declarations Re:  Document Destruction, June 18,  1999).5  As noted above, in the context of Indian trust obligations "the Government, in both its executive and legislative  branches, is held to a high standard of conduct, one consonant  with its 'moral obligations of the highest obligation and trust.' "  Jicarilla, 728 F.2d at 1563 (quoting Seminole Nation v. United States, 316 U.S. at 297).


113
Although the NARA guidelines direct the Treasury Department to destroy check records more than six years and seven  months old, this cannot excuse the Treasury Department  from its fiduciary obligations under the 1994 Act.  Another  agency's development, in consultation with the Treasury Department, of document retention regulations which allow for  the destruction of trust-related documents cannot relieve the  Treasury Department of its responsibilities.  Not only are  NARA's record retention schedules modified regularly to  account to each agency's particular needs at a given point in  time, but NARA typically approves the record retention  schedule proposed by the agency.  Thus, there is no basis for  Treasury to contend that it was unable to maintain the  records under federal rules.

F. Relief

114
Upon concluding that appellants committed several substantial breaches of their fiduciary obligations to IIM beneficiaries, the district court issued an order to compel those  actions which had been unlawfully withheld or unreasonably  delayed. Specifically, the district court remanded the required  actions to appellants so that they may begin to discharge the  duties found by the court.  Furthermore, the court retained  jurisdiction over the matter in order to "ensure that defendants are diligently taking steps to rectify the continuing  breaches of trust."  Cobell V, 91 F. Supp. 2d at 58.  Finally,  the court ordered that appellants prepare a revised HLIP  and file "quarterly status reports setting forth and explaining  the steps that defendants have taken to rectify the breaches  of trust declared by the court."  Id. at 59.


115
There is no question that appellants have made significant  steps toward the discharge of the federal government's fiduciary obligations.  See, e.g., id. at 18 (noting acquisition of  Trust Fund Accounting System (TFAS) software);  id. at 20  & n.15 (noting development of high-level records management  plan).  The district court, however, as the finder of fact,  heard substantial evidence that these efforts were, at best, a day late and a dollar short.  Thus, while appellants acquired  new computer systems to track trust resources, inadequate  efforts were made to ensure that the data entered into the  new systems would be accurate.  See id. at 18-19, 48-49. The district court reasonably concluded that appellants had  unreasonably delayed the discharge of these duties by failing  to ensure the provision of a complete historical accounting. As explained in detail above, this court is duly deferential to  the burdens under which administrative agencies must operate, and recognizes that courts should not disrupt their  timetables and priorities lightly.  Nonetheless, there is ample  evidence that appellants unreasonably delayed their actions to  the detriment of IIM beneficiaries, to whom appellants owe  the highest fiduciary obligations.


116
Appellants maintain that there is no basis in law for the  district court to provide the relief granted in its decision, even  if legal violations of appellants' fiduciary obligations occurred. Specifically, insofar as plaintiffs sought relief under the APA,  the district court exceeded its power by ordering the Interior  and Treasury Departments to take the specific actions toward  fulfilling their fiduciary obligations.  Moreover, insofar as the  court's injunctive commands resemble mandamus, they are  precluded given the lack of a "clear, ministerial duty" that  could be enforced in such a fashion.  Appellants' arguments  are unavailing.


117
Federal courts have repeatedly recognized the right of  Native Americans to seek relief for breaches of fiduciary  obligations, including suits for monetary damages under the  Tucker Act where prospective remedies would be inadequate. See United States v. Mitchell ("Mitchell II"),463 U.S. 206,  226 n.31, 227 (1983).  "It is fundamental that an action for  accounting is an equitable claim and that courts of equity  have original jurisdiction to compel an accounting." Klamath  and Modoc Tribes v. United States, 174 Ct. Cl. 483, 487  (1966).6


118
In Mitchell II, the Supreme Court (and the federal government) simply assumed that Indian beneficiaries could pursue  equitable relief against the government for its breach of  fiduciary duties.  At issue was whether beneficiaries could  seek monetary damages where injunctive or declaratory relief would be insufficient.  Mitchell II, 463 U.S. at 227. Indeed, the district court only considered such relief.  Therefore, there is no basis for concluding that plaintiffs are  somehow precluded from seeking an historical accounting,  provided that they can overcome the relevant jurisdictional  requirements discussed below.


119
More importantly, the district court acted well within its  broad equitable powers in ordering specific relief.  "[I]f a  right of action exists to enforce a federal right and Congress  is silent on the question of remedies, a federal court may  order any appropriate relief."  Franklin v. Gwinnett County  Public Schools, 503 U.S. 60, 69 (1992) (emphasis added).  As  this court has concluded in other contexts, "courts are presumed to possess the full range of remedial powers--legal as  well as equitable--unless Congress has expressly restricted  their exercise."  Crocker v. Piedmont Aviation, Inc., 49 F.3d  735, 749 (D.C. Cir. 1995).  This means that the district court  has substantial ability to order that relief which is necessary  to cure the appellants' legal transgressions:


120
The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it.  The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.


121
Hecht Co. v. Bowles, 321 U.S. 321, 329-30 (1944);  see also  Brown v. Board of Education ("Brown II"), 349 U.S. 294, 300  (1955) ("Traditionally, equity has been characterized by a  practical flexibility in shaping its remedies and by a facility  for adjusting and reconciling public and private needs." (footnote omitted)).


122
"Once a right and a violation have been shown, the scope of  a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable  remedies." Swann v. Charlotte-Mecklenburg Bd. of Educ.,  402 U.S. 1, 15 (1971).  Because the agencies involved delayed  performance of their legal obligations, the court was justified  in fashioning equitable relief that would ensure the vindication of plaintiffs' rights.  That this case involves decades-old  Indian trust funds rather than segregated schools does not  change the nature of the court's remedial powers.


123
One factor the district court cites in support of its ordered  relief is the government's "historical record of recalcitrance"  in performing its trust duties.  Cobell V, 91 F. Supp. 2d at 54. Additionally, the APA confers authority on the court to order  agency action that has been unlawfully withheld or unreasonably delayed.  At the same time, the court properly notes  that it "cannot 'become ... enmeshed in the minutiae' of  agency administration."  Id. (quoting Bell v. Wolfish, 441  U.S. 520, 562 (1979)). It is proper for a court to allow the  government "the opportunity to cure the breaches of trust  declared" by the court.  Id.


124
The federal government characterizes the ordered relief-the promulgation of regular reports and updates to the court  while it retains jurisdiction--as excessive interference in the  federal government's administration of the IIM trust.  Because there are no clear, specific "ministerial" duties, the  government contends, there should not be mandatory injunctive relief akin to that provided in a writ of mandamus. These are sound legal principles.  However, the district  court's ordered relief is relatively modest.  The government  must develop written policies and procedures, but the court  does not tell the government what these procedures must  entail.  This seems consonant with the judicial policy of  granting agencies that have acted in an unlawful manner  "discretion to determine in the first instance," how to bring  themselves into compliance.  Global Van Lines, Inc. v. ICC,  804 F.2d 1293, 1305 n.95 (D.C. Cir. 1986).  As the district  court noted, in such cases "the proper course is to remand the  case for further agency consideration in harmony with the  court's holding."  Cobell V, 91 F. Supp. 2d at 54-55 n.36  (citation omitted).


125
The level of oversight proposed by the district court may  well be in excess of that countenanced in the typical delay  case, but so too is the magnitude of government malfeasance  and potential prejudice to the plaintiffs' class.  Given the  history of destruction of documents and loss of information  necessary to conduct an historical accounting, the failure of  the government to act could place anything approaching an  adequate accounting beyond plaintiffs' reach.  This fact, combined with the longstanding inability or unwillingness of  government officials to discharge their fiduciary obligations,  excuse court oversight that might be excessive in an ordinary  case.


126
The government is correct that the court imposed continual  reporting requirements that may be in excess of that which  would be minimally required to discharge the government's  duties.  However, it does not seem that the district court's  remedies are disproportionate to the nature of the government's breach.  Moreover, while the court should (and did)  remand to the agency for the proper discharge of its obligations, the court should not abdicate its responsibility to  ensure that its instructions are followed.  This would seem  particularly appropriate where, as here, there is a record of  agency recalcitrance and resistance to the fulfillment of its  legal duties.  See In re Center for Auto Safety, 793 F.2d 1346,  1354 (D.C. Cir. 1986).  While a court's retaining of jurisdiction of five years may be unusual, federal courts regularly  retain jurisdiction until a federal agency has complied with its  legal obligations, and have the authority to compel regular  progress reports in the meantime.  See, e.g., In re United  Mine Workers of Amer. Int'l Union, 190 F.3d 545, 546 (D.C.  Cir. 1999) (retaining jurisdiction and requiring status reports  pending completion of agency action);  Northern States Power  Co. v. U.S. Dep't of Energy, 128 F.3d 754, 760 (D.C. Cir. 1997)  (retaining jurisdiction pending agency's compliance with  court's mandate);  Air Line Pilots Ass'n, Int'l v. CAB, 750  F.2d 81, 88-89 (D.C. Cir. 1984) (retaining jurisdiction and  ordering periodic progress reports).  Of course, nothing prohibits the appellants from moving for reconsideration should they be able to demonstrate at some time in the future that  adequate compliance has been achieved.

G. Future Proceedings

127
This case is on appeal from the first of two trial phases.  In  its initial scheduling order of May, 5, 1998, the district court  announced its intention to hold a second phase of the trial for  the purpose of "correcting the accounts."  In its opinion, the  district court explained what this entails:  "In general terms,  [the second phase] will involve the government bringing  forward its proof on IIM trust balances and thenplaintiffs  making exceptions to that proof."  Cobell V, 91 F. Supp. 2d at  31.  The district court also identified "significant legal issues"  to be resolved in the second phase, such as whether relevant  statutes of limitations preclude some of plaintiffs' claims, the  use of statistical sampling, and the precise scope of the  certified class.  Id. at 31 n.22.  Presumably, the district court  plans to wait until a proper accounting can be performed, at  which point it will assess appellants' compliance with their  fiduciary obligations.


128
Although appellants object to the second phase of the trial,  they do so largely on the grounds that IIM beneficiaries have  no judicially enforceable right to an accounting at all--a claim  with which we dispose above.  Until the district court has  undertaken the second phase of the trial, and specific objections to its actions or jurisdiction are brought, it is premature  for this court to rule on the precise scope of the district  court's planned proceedings.  Nonetheless, we expect the  district court to be mindful of the limits of its jurisdiction.  It  remains to be seen whether in preparing to do an accounting  the Department takes steps so defective that they would  necessarily delay rather than accelerate the ultimate provision of an adequate accounting, and the detection of such  steps would fit within the court's jurisdiction to monitor the  Department's remedying of the delay;  beyond that, supervision of the Department's conduct in preparing an accounting  may well be beyond the district court's jurisdiction.  Again,  however, until these proceedings have begun, and specific objections are brought, these are questions we cannot address.

IV. Conclusion

129
The Interior Department has failed to discharge the fiduciary duties it owes to IIM beneficiaries for decades.  Despite  passage of the 1994 Act, the Department is still unable to  execute the most fundamental of trust duties--an accurate  accounting.  While the district court may have mischaracterized some of the government's specific obligations, its broader  conclusion that government officials breached their obligations to IIM beneficiaries is in accordance with the law and  well-supported by the evidentiary record.  Therefore, we  affirm the order of the district court and remand the case to  that court for further proceedings.



Notes:


1
 Note that these figures are in addition to land and accounts held  in trust for tribes.


2
 That the law recognized, rather than created, the government's  IIM trust duties is clear from the Act's text and structure. Indeed,  Title I of the Act is titled "Recognition of Trust Responsibility."


3
 Thomas Thompson was acting ST at the time of trial. In  February 2000, then-President Clinton nominated Thomas N. Slonaker for the position, who at the time of briefing was awaiting  Senate confirmation.


4
 But see Forest Guardians, 174 F.3d at 1191 ("once a court  deems agency delay unreasonable, it must compel agency action.").


5
 The Special Master's Report released after trial, but prior to the  court's decision, detailed additional cases in which Treasury failed  to safeguard documents potentially necessary for an accounting.


6
 This is distinct from the question whether the district court can  itself perform the required accounting, as we discuss below.


