       In the United States Court of Federal Claims
                                      No. 12-592L

                                 (Filed: April 16, 2015)

************************************** *
QUAPAW TRIBE OF OKLAHOMA,              *
                                       *
                                       *
                    Plaintiff,         *              Indian Tribe Claims for Tribal
                                       *              Trust    Fund    Mismanagement;
v.                                     *              Cross-Motions for Partial Summary
                                       *              Judgment; Fiduciary Duties to
THE UNITED STATES,                     *              Indian Tribes; Breach of Trust; 25
                                       *              U.S.C. § 164.
                    Defendant.         *
                                       *
************************************** *

Nancie G. Marzulla, with whom were Roger J. Marzulla, Marzulla Law, LLC,
Washington, D.C., Stephen R. Ward and John L. Williams, Conner & Winters, LLP, Tulsa,
Oklahoma, Of Counsel, for Plaintiff.

Stephen R. Terrell, Trial Attorney, with whom were John C. Cruden, Assistant Attorney
General, and Peter Kyrn Dykema, Environment and Natural Resources Division, U.S.
Department of Justice, Washington, D.C., Kenneth Dalton, Shani N. Walker, and Karen
Boyd, Office of the Solicitor, U.S. Department of Interior, Thomas Kearns and Rebecca
Saltiel, Office of the Chief Counsel, Bureau of the Fiscal Service, U.S. Department of the
Treasury, Of Counsel, for Defendant.

                       OPINION AND ORDER ON
            CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT

WHEELER, Judge.

       Plaintiff, the Quapaw Tribe of Oklahoma, is a federally recognized Indian nation.
The Quapaw Tribe commenced this action on September 11, 2012 by filing a complaint
for money damages arising from the Government’s alleged breach of fiduciary and trust
obligations owed to the Quapaw Tribe. The complaint contains three causes of action.
       On November 13, 2012, the Government filed a motion for partial dismissal of the
complaint, asserting that the Court lacks subject matter jurisdiction or that Plaintiff had
failed to state claims upon which relief can be granted. On July 16, 2013, the Court
dismissed two of the Quapaw Tribe’s claims, leaving intact only the cause of action for
trust mismanagement and mismanagement of the Quapaw Industrial Park leases. Quapaw
Tribe of Oklahoma v. United States, 111 Fed. Cl. 725 (2013). After months of discovery,
the Government filed a motion for partial summary judgment on December 8, 2014. This
motion focuses on the monetary judgment funds that the Indian Claims Commission
(“ICC”) awarded to the Quapaw Tribe in 1954 as damages for gross underpayment in land
purchases completed in the 1800s. The judgment funds were placed in Government trust
accounts and were to be distributed on a per capita basis to certain Indians of Quapaw blood
and their heirs, identified by an 1890 membership roll. The Government argues that the
Quapaw Tribe is not entitled to recover any unclaimed per capita payments from the ICC
judgment funds because the current Tribe includes adoptees and other persons that are not
the proper heirs or legatees of the Quapaw members listed on the 1890 membership roll.
On January 22, 2015, the Quapaw Tribe filed a response and cross-motion for partial
summary judgment, claiming that the current tribe is the proper recipient of any unclaimed
judgment funds, and that the evidence leaves no material dispute that the judgment fund
was not fully paid.

        The Government filed a reply and response on February 9, 2015, arguing that the
group of individuals entitled to ICC judgment money does not have its own governing body
separate and apart from the Quapaw Tribe’s Business Committee, as required by the statute
governing “restoration to tribal ownership of unclaimed per capita and other individual
payments of tribal trust funds,” 25 U.S.C. § 164. The Government further argues that the
Plaintiff’s cross-motion for summary judgment should fail due to a lack of evidence that
the judgment fund was not fully paid. On February 26, 2015, Plaintiff filed its reply,
arguing that the Secretary of the Interior’s recognition of the Quapaw Tribe’s governing
body is sufficient to satisfy 25 U.S.C. § 164, and that the Quapaw Analysis, described infra
Part I, provides sufficient evidence of nonpayment of the ICC judgment fund. The Court
heard oral argument on these issues on March 25, 2015. The cross-motions for partial
summary judgment are now ripe for decision. The Court finds that the Quapaw Tribe is
the proper recipient of any unclaimed per capita payments from the ICC judgment trust.
However, due to the existence of disputed material facts on whether all of the funds were
paid, the Court denies both motions for partial summary judgment and will reserve these
issues for trial.

   I.     Factual and Procedural History

      The Court summarized the factual background of this case in its July 16, 2013
opinion on the Government’s motion to dismiss. Quapaw Tribe of Oklahoma¸ 111 Fed.
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Cl. at 727-29. The additional facts relevant to these cross-motions for partial summary
judgment are described below.

       In 1954, the predecessor to this Court upheld the ICC’s award of damages to the
Quapaw Tribe based on the United States’ grossly inadequate payment for the Tribe’s
ancestral lands in Arkansas ceded to the United States by treaty in 1824. Quapaw Tribe of
Indians v. United States, 128 Ct. Cl. 45 (1954), aff’g and rev’g in part, 1 Ind. Cl. Comm.
644 (1951); Pl.’s Resp. at 1. The ICC awarded the Quapaw Tribe $820,024.46, plus
attorneys’ fees and costs. Pl.’s Resp. at 5. Congress appropriated funds to pay the
judgment through the Supplemental Appropriation Act of August 26, 1954. Pub. L. No.
83-663, 68 Stat. 801, 827-28 (1954); see also 25 U.S.C. § 912 (identifying 68 Stat. 801 as
the Act appropriating funds to the Quapaw Indians for the 1954 ICC judgment). The
Secretary of the Interior placed the funds into Treasury Department trust account number
14X7156 in the name of the Quapaw Tribe, and established a second trust account, No.
14X7656, to accumulate four percent annual interest. Pl.’s Resp. at 6.

        The Federal Government recognized the Quapaw Tribe in 1818 when the Tribe
signed a treaty ceding land to the United States. Id. at 7; Decl. of John L. Berrey, Chairman
of Quapaw Tribe (“Berrey Decl.”), at 2. In December 1954, the Quapaw Tribal Council
adopted a resolution that only those persons with Quapaw blood should receive ICC
judgment funds, and selected an 1890 membership roll for use in determining such
heritage. Pl.’s Resp. at 7. In 1956, the Tribe approved a resolution to convert its
governance to an elected body called the Quapaw Tribal Business Committee. Id. at 7-8.
In 1959, Congress approved a plan to distribute the ICC judgment funds, plus interest, to
lineal descendants of the original Quapaw Tribe members listed on the 1890 roll. Id. at 8.
President Eisenhower signed the Distribution Act on July 17, 1959, authorizing the
distribution of the judgment funds to lineal descendants of the Quapaw members listed on
the 1890 roll. Id. at 8-9.

       During 1960 – 1962, all of the principal and interest balances were removed from
the Treasury Department’s trust accounts. Id. at 10. The parties disagree on what happened
to these funds after removal.

       In 2002, the Tribe filed suit in the U.S. District Court for the Northern District of
Oklahoma in a case captioned Quapaw Tribe of Oklahoma (O-Gah-Pah) v. U.S.
Department of the Interior, No. 02-CV-129-H(M) (N.D. Okla.). The Quapaw Tribe
requested an accounting of the historical federal management of the Tribe’s trust assets.
On November 5, 2004, the Quapaw Tribe entered into a settlement agreement with the
United States whereby the parties agreed that Quapaw Information Systems, Inc., a not-
for-profit Tribal entity, would prepare an analysis of the Government’s management of
Tribal assets (“the Quapaw Analysis”). Compl. ¶ 9. The Tribe agreed to dismiss its lawsuit
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and to waive any rights to an accounting of its trust assets up to and including the date of
the settlement agreement. Id. Upon completion of the Quapaw Analysis, the Tribe would
be deemed to have been furnished with an accounting of the Tribe’s trust assets. Id. In
entering into this settlement agreement, the Quapaw Tribe reserved all claims for money
damages arising from past events and transactions. The settlement did not purport to
compromise or waive the claims of any tribe member for money damages. Id. at ¶ 10.

       Between 2004 and 2010, Quapaw Information Systems investigated and prepared
the Quapaw Analysis. Id. at ¶ 11. The team performing this review undertook a
comprehensive examination of files and documents made available by the Office of
Historic Trust Accounting and other agencies to determine whether and to what extent the
Department of Interior met its fiduciary obligations to the Tribe and individual trust
beneficiaries. Id. On June 1, 2010, Quapaw Information Systems completed and
transmitted the Quapaw Analysis Report to the Government. Id. at ¶ 12. On November
19, 2010, the Department of Interior accepted the report as complete. Id. Plaintiff claims
that the Quapaw Analysis identified many pervasive breaches of the Government’s
fiduciary duty to the Quapaw Tribe. Id. at ¶ 13.

   II.    Standard of Review

       Summary judgment is appropriate where the evidence demonstrates that there is “no
genuine dispute as to any material fact and that the movant is entitled to judgment as a
matter of law.” RCFC 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–
49 (1986); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283 (Fed. Cir.
2008). A “genuine” dispute is one that “may reasonably be resolved in favor of either
party,” Anderson, 477 U.S. at 250, and a “material” fact is one that “might affect the
outcome of the suit under the governing law[.]” Id. at 248. The moving party carries the
burden of establishing its entitlement to summary judgment. Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). Once that burden is met, the onus shifts to the non-movant to
identify evidence demonstrating a dispute over a material fact that would allow a
reasonable finder of fact to rule in its favor. Anderson, 477 U.S. at 256. It is not necessary
that such evidence be admissible, but mere denials, conclusory statements, or evidence that
is merely colorable will not defeat summary judgment. Celotex, 477 U.S. at 324;
Anderson, 477 U.S. at 249–50.

       In considering a motion for summary judgment, a court does not weigh each side's
evidence but, rather, must draw all inferences in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
Where, as here, the parties have filed cross-motions for summary judgment, the Court
evaluates each motion on its own merits and makes all reasonable inferences against the
party whose motion is under consideration. Marriott Int’l Resorts, L.P. v. United States,
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586 F.3d 962, 968–69 (Fed. Cir. 2009) (internal citation omitted). To the extent a genuine
issue of material fact exists, both motions must be denied. Id. at 969.

   III.      Discussion

          A. Proper Recipient of Any Undistributed Funds

        A threshold issue in the cross-motions for partial summary judgment is whether the
present Quapaw Tribe is entitled to recover any unclaimed per capita payments from the
ICC judgment funds, if any exist. The Government argues that the Quapaw Tribe was not
the intended beneficiary of the trust accounts. Instead, those persons entitled to the trust
payments are the Indians listed on the 1890 roll and their lineal descendants and heirs (“the
1890 heirs”). Def.’s Mot. at 5-6. As a result, the Government argues, the language of 25
U.S.C. § 164 prevents the unclaimed trust fund payments from being credited to the Tribe.
Id. at 8. Thus, because the “group entity” entitled to the ICC judgment funds consists of
only the 1890 heirs and not any adoptees that may comprise the current Tribe, the Tribe
itself is not the lawful recipient of any unclaimed funds. Id. at 8-9. According to the
Government, the 1890 heirs are the only group entitled to unpaid shares, and this group has
no governing body of its own. Id.

       In opposition, Plaintiff argues that the relevant “group entity” under 25 U.S.C. §
164 is the Quapaw Tribe, to which all of the members listed on the 1890 roll belonged.
Pl.’s Resp. at 20-36. Accordingly, Plaintiff contends that the Tribe’s Business Committee
meets the requirements of § 164 as a federally recognized governing body, and that any
unclaimed payments should be credited to the Tribe. Id. at 38-39.

             1. Judgment Fund Trust Beneficiary

        The record in this case supports a conclusion that the ICC judgment was made in
favor of the Quapaw Tribe, not the group of individuals on an 1890 roll. See Quapaw Tribe
of Indians, 128 Ct. Cl. at 47 (“The Quapaw Tribe of Indians has appealed to this court from
a final determination of the Indian Claims Commission . . . allowing certain offsets . . .
from the amount found to be due the tribe.”); H.R. Rep. No. 86-593, at 1 (“The Quapaw
Tribe was awarded a judgment by the Indian Claims Commission on May 7, 1954. . . .”).
On August 26, 1954, Congress passed the Supplemental Appropriation Act to appropriate
$927,668.04 to pay the judgment and related attorneys’ fees. Pub. L. No. 83-663, 68 Stat.
801, 827-28 (1954). Then, following the Court of Claims’ decision upholding the relevant
part of the ICC judgment, Congress authorized distribution of this judgment on a per capita
basis on June 29, 1959. H.R. Rep. No. 86-593. Thus, from the beginning, the
appropriation of the judgment funds was performed and held in trust on behalf of the
Quapaw Tribe, while the distribution was made on a per capita basis to certain Tribal
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members and their heirs. Moreover, the Tribe was involved in drafting and approving the
very distribution scheme that the Government claims prevents it from recovering. See 25
U.S.C. § 911 (“[T]he Secretary shall permit the examination of the applications by the
Quapaw Tribal Business Committee or by persons having a material interest therein for the
purpose of lodging protests against any application.”). The Government’s arguments that
the Quapaw Tribe “cannot demonstrate . . . that it owns, possesses, or has a beneficial
interest in the funds in the ICC Docket No. 14 judgment award accounts,” are without
merit. Def.’s Mot. at 6.

          2. Unclaimed Funds Under 25 U.S.C. § 164

       The language of 25 U.S.C. § 164 provides:

       [T]he share of an individual member of an Indian tribe or group in a
       per capita or other distribution . . . of Indian tribal or group funds held
       in trust by the United States, . . . and any interest earned on such share
       that is properly creditable to the individual shall be restored to tribal
       ownership if for any reason such share cannot be paid to the individual
       entitled thereto and remains unclaimed for a period of six years from
       the date of the administrative directive to make the payment, or one
       year from September 22, 1961, whichever occurs later[.]

The statute continues, however:

       Provided, That if such individual is a member of an Indian tribe or
       group that has no governing body recognized by the Secretary of the
       Interior as authorized to act on behalf of the tribe or group, such
       unpaid share and interest shall be regarded as not capable of
       restoration to a tribal or group entity and shall be deposited in the
       general fund of the Treasury of the United States.

25 U.S.C. § 164. Despite the Government’s attempt to stretch the meaning of § 164
unreasonably, the mandate of the statute is unambiguous: if a judgment award is made to
an Indian Tribe, and distribution is to be made on a per capita basis to individual members
of the Tribe, any unclaimed or undistributed individual funds shall be credited to the Tribe,
subject to the conditions set forth in the statute. Contrary to the Government’s position,
the statute does not define the relevant group or tribe as an association of individuals that
exists separate and apart from the awardee Tribe. Such a reading strains the statute’s plain
language and is at odds with its purpose. Subsets of Indian tribes are unlikely to have
federally recognized governing bodies apart from those of the tribes. Most, if not all, per
capita distributions to Indians will be premised on those individuals’ membership in a
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certain tribe, so any requirement that the subset of individuals itself has a federally
recognized governing body effectively limits § 164 recovery to circumstances where the
per capita individuals comprise the entire tribe as it exists at the time of recovery. Thus,
the Government’s reading of the statute creates an unreasonable scheme that would prevent
a tribe from recovery merely for adding a single new member after the creation of a trust
fund distribution scheme. That the subsequent adoption of new members should prevent a
tribe from recovering trust funds to which it is otherwise entitled creates a perverse
incentive and a false choice between communal inclusion and economic recovery. The
Court declines to read this incentive into an otherwise unambiguous statute.

        As this Court reasoned in Chippewa Cree Tribe of Rocky Boy’s Reservation v.
United States (Hewitt, J.), “statutes that direct the government in the manner tribal funds
are to be distributed do not create individual rights; where the tribe or group is the conduit
through which benefits are distributed, ‘the primary recipient [is] still the tribe or band.’”
73 Fed. Cl. 154, 160 (2006) (quoting Hebah v. United States, 428 F.2d 1334, 1337-38, 192
Ct. Cl. 785 (1970)). The logic of Chippewa Cree applies to the circumstances here. As
previously explained, the Tribe is the original and primary recipient of the ICC judgment,
and remains so despite the creation of a per capita distribution scheme.

       Further, the Government provides no legal support for its argument that § 164
applies to a pro forma group of individuals that is somehow created when per capita
distributions are made to some, but not all, Tribal members. Instead, the Government
merely assumes that the group of Quapaw Indians on the 1890 roll and their heirs require
their own governing body, separate and apart from the Tribe’s governing body, in order to
receive any unclaimed judgment funds. The Government ignores the fact that the fund was
awarded to the Tribe in the first place, and only upon distribution of the fund was it decided
that per capita payments would be made. Based upon the plain meaning of § 164, any
unsuccessful per capita payments should be credited to the Tribe in satisfaction of the
judgment it obtained against the Government for unconscionable land purchases in the
early 1800s.

      The Court finds no material facts in dispute on this issue and holds that any
unclaimed judgment funds are properly credited to the Quapaw Tribe under the plain
language of 25 U.S.C. § 164.

       B. Distribution of the Funds

        The remaining issue is whether the Quapaw Tribe is entitled to recover all or some
of the judgment funds that it alleges the Government failed to pay. Specifically, a factual
question remains as to whether the judgment funds were actually and fully paid to the
proper recipients by 1963. In order to rule on this issue on cross-motions for summary
judgment, the Court must be satisfied that there remains no genuine dispute as to any
                                              7
material fact. A material fact is any fact that might affect the outcome of the suit. Given
the continuing and material dispute over the accounting of the judgment funds, the Court
is unwilling to grant summary judgment to either party. A discussion of this factual dispute
follows.

       In its motion for partial summary judgment, the Government states as fact that “the
funds in ICC Docket No. 14 principal (x7156) and its corresponding interest account
(x7656) were disbursed in Fiscal Years 1960 and 1961.” Def.’s Mot. at 4. Insofar as this
statement suggests the funds were properly paid out to the Indian recipients, Plaintiff and
the Government genuinely dispute this fact. See Def.’s Resp. at 5; Pl.’s Resp. at 17. The
Government cites to three sources to support its theory that the funds were actually and
properly disbursed. First, the Government argues that the Tribe admitted to receiving the
funds at a meeting of the Tribal General Council on July 16, 1962, when a Tribe
representative stated, “[t]he past year was a most eventful year with the payment of the
Quapaw funds. Adults were paid while the children’s funds were held in trust.” Def.’s
Resp. at 5; Appendix. Ex. 2. Second, the Government points to evidence that Individual
Indian Money account ledgers show $900.00 per capita payments were made into trust
accounts for minors. Supplemental Appendix of Exhibits, Ex. 7. Lastly, the Government
argues that Treasury accounting records show that all of the funds in the judgment award
accounts were “disbursed” by 1962, and could only have lawfully been disbursed in
accordance with the Distribution Act. Def.’s Resp. at 6; Appendix Exs. 4 & 5.

        In opposition, Plaintiff argues that some or all of the payments were never made,
pointing to the Quapaw Analysis. This government-approved analysis concluded that
approximately 25 percent of the distributions were unaccounted for and could not have
been made. Pl.’s Reply at 11. Plaintiff also points to a lack of accounting records for
nearly 1,100 alleged distributions by the Government, arguing that the Government’s
Exhibit 7 only shows payments in trust for 88 minor individuals. Pl.’s Reply at 15-16; Pl.’s
Mot. to Strike Ex. 7 at 3. Plaintiff also disputes the import of the July 16, 1962 meeting
minutes quoted by the Government, claiming instead that the minutes show a lack of
payment. First, Plaintiff points to the language describing the judgment amount of
$1,029,599.88 as “Total to Distribute,” suggesting that it had not yet been distributed. Pl.’s
Ex. 32, Report of a Meeting of Quapaw General Council (“Ex. 32, Meeting Minutes”) at
3. Second, Plaintiff cites language expressing frustration where a Tribal representative
describes the Tribe’s attempt to have a voice “in the individual funds of the Quapaw funds
as a whole,” but then states, “[w]e were not successful because as I understand it the funds
are still in trust.” Ex. 32, Meeting Minutes at 3; Pl.’s Reply at 17. Third, Plaintiff cites to
evidence that the Quapaw Tribal Council requested an audit of the General Accounting
Office regarding “considerable inefficiencies” in the payments. Pl.’s Reply at 17-18.
Lastly, Plaintiff quotes a Government official from the Bureau of Indian Affairs who was


                                              8
present at the 1962 meeting and noted that he “hadn’t seen a Quapaw Indian that wasn’t
mad,” suggesting anger over nonpayment. Id. at 18.

        In deciding the cross-motions for partial summary judgment on this issue, the Court
considered at least two factors. Foremost, the Court notes that fact discovery was still
ongoing in this case when the motions were filed. As of March 31, 2015, the Government
anticipated producing over 452,000 document images to Plaintiff before the close of fact
discovery on April 16, 2015. Gov.’s Status Report, Dkt. No. 81, at 5. The Court declines
to draw evidentiary conclusions when material facts are in dispute and ongoing discovery
may yet shed more light on the issues. Second, the Court must consider the parties’
respective burdens. To prevail at the summary judgment stage, Plaintiff must sufficiently
allege a breach of trust by the Government through affirmative evidence of nonpayment so
that the finder of fact could not reasonably rule in favor of the Government. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986). The Court finds that the
Government’s evidence of accounting records and meeting minutes sufficiently rebuts
Plaintiff’s argument so as to create a continuing and genuine dispute. On the other hand,
the Government has not convinced the Court that records of emptied Treasury accounts
and presumptions of regularity are sufficient to decide this issue. Plaintiff’s evidence of
meeting minutes and the conclusions of the Quapaw Analysis satisfy the Court, again, that
the issue is in genuine dispute. Therefore, the Court denies both motions for partial
summary judgment on the question of whether the Tribe is entitled to recover some or all
of the trust funds.

   IV.     Conclusion

       For the reasons set forth above, the Court finds that the Quapaw Tribe is the proper
recipient of any undistributed ICC judgment funds in this case. However, both the
Government’s Motion and Plaintiff’s Cross-Motion for Partial Summary Judgment are
DENIED.

         IT IS SO ORDERED.

                                                s/ Thomas C. Wheeler
                                                THOMAS C. WHEELER
                                                Judge




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