Fletcher v. United States

Decision Date21 April 2017
Docket NumberNo. 16-5050,16-5050
Citation854 F.3d 1201
Parties William S. FLETCHER, individually, and as member of the Osage Development Council, and on behalf of themselves and all others similarly situated; Juanita W. West; Cora Jean Jech; Betty Woody, Plaintiffs-Appellants, and Charles A. Pratt, individually, and as member of the Osage Development Council, Plaintiff, v. UNITED STATES of America; Department of Interior; Ryan Zinke, in his official capacity as Secretary of the Interior; Bureau of Indian Affairs; Michael S. Black, in his official capacity as Acting Assistant Secretary Indian Affairs, United States Department of the Interior, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Jason B. Aamodt (Dallas L.D. Strimple of Indian and Environmental Law Group, PLLC; J. David Jorgenson and Mark A. Waller of Waller, Jorgenson, Warzynski, PLLC; G. Steven Stidham of Levinson, Smith & Huffman, Tulsa, Oklahoma; Amanda S. Proctor of Shield Law Group, PLLC, Jenks, Oklahoma, with him on the brief), Indian and Environmental Law Group, PLLC; Tulsa, Oklahoma, for Plaintiffs-Appellants.

Anna T. Katselas (Joseph H. Kim and Katherine W. Hazard of U.S. Department of Justice, Environment and Natural Resources Division; John C. Cruden, Assistant Attorney General; Kenneth Dalton, Director, Dondrae Maiden, Ericka Howard and Kristen Kokinos, Attorney-Advisors of

Indian Trust Litigation, Office of the Solicitor, U.S. Department of the Interior, with him on the brief), U.S. Department of Justice, Environment and Natural Resources Division, Washington, D.C., for Defendants-Appellees.

Before KELLY, EBEL, and BACHARACH, Circuit Judges.

KELLY, Circuit Judge.

Plaintiffs-Appellants, a certified class of Osage tribal members who own headrights, appeal from the district court's accounting order made pursuant to 25 U.S.C. § 4011. Fletcher v. United States , 153 F.Supp.3d 1354 (N.D. Okla. 2015). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.


In 1872, Congress established a reservation for the Osage Tribe in present-day Osage County, Oklahoma. Just after the turn of the century, rich deposits of oil, gas, coal, and other minerals were found on the reservation. This discovery prompted Congress to pass the Osage Allotment Act of 1906 (the Act), which severed the reservation's subsurface mineral estate from the surface estate, and placed the mineral estate in a trust for the Osage Tribe with the government as trustee. The Act assigned the Secretary of the Interior (Secretary) to distribute pro rata royalties from the mineral estate to Osage tribal members whose names were recorded on an official roll. These royalty interests are known as headrights. At first, Osage tribal members transferred their headrights to people and entities outside of the Osage tribe, but several subsequent amendments to the Act prohibited that practice. The Act also requires the government to provide an accounting for the trust: "The Secretary shall account for the daily and annual balance of 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 section 162a of this title." 25 U.S.C. § 4011(a).

Plaintiffs brought this action in 20021 and filed a third amended complaint in 2010. In that complaint, Plaintiffs alleged that the government was improperly distributing royalties to non-Osage tribal members, which diluted the royalties for the Osage tribal members—the rightful headright owners. The complaint attributes this misdistribution to the government's mismanagement of the trust assets and the government's failure to perform an accounting pursuant to § 4011. Thus, Plaintiffs sought to compel the government to perform an accounting and to prospectively restrict royalty payments to Osage tribal members and their heirs.

The district court dismissed Plaintiffs' accounting claim because it found that § 4011 only required the government to account for deposits, not withdrawals, and that such an accounting would not support Plaintiffs' misdistribution claim. Fletcher v. United States , No. 02-CV-427-GKF-FHM, 2012 WL 1109090, at *7 (N.D. Okla. Mar. 31, 2012) (unpublished).

We reversed and remanded because an accounting of only the deposits and not the withdrawals would be incomplete and of little use. Fletcher v. United States (Fletcher II ), 730 F.3d 1206, 1212 (10th Cir. 2013). We also provided general guidance about the design of any accounting on remand: the accounting "must give some sense of where money has come from and gone to." Id. at 1215. The trial court's overarching task, we said, is to "balance the often warring (and admittedly incommensurate) considerations of completeness and transparency, on the one hand, and speed, practicality, and cost, on the other." Id. at 1214. We explained that Plaintiffs are "entitled ... to some measure of information about the government's handling of deposits [and] ... disbursements." Id. But the accounting cannot include "information that only loosely relates to [trust beneficiaries'] own personal beneficial interests, or to information that is unlikely (because it is so old, or so de minimis , say) to have a meaningful effect on their beneficial interests." Id. at 1215. We further cautioned that the accounting should not be a "green eye-shade death march through every line of every account over the last one hundred years." Id. at 1214.

[E]quity does not require an accounting so punctilious, so expensive, and so laboriously long in coming that the final volume is released with great fanfare only after generations of beneficiaries have come in and gone out, the Bureau of Indian Affairs has been forced to turn a blind eye to other pressing needs in the Native American community, the public fisc has been thirstily drained, and only the lawyers have grown fat.

Id. at 1215.

With this guidance in mind, the district court ordered that the accounting (1) "run from the first quarter of 2002 until the last available quarter;" (2) "be divided and organized either by month or by quarter;" (3) "state the date and dollar amount of each receipt and distribution;" (4) "briefly identify and describe the source of each trust receipt (i.e., the name of the payer/lessee and the contract number for the oil and/or gas lease on which the payment is made);" (5) "state the name of the individual or organization to whom each trust distribution was made;" (6) "state the headright interest that each beneficiary possessed at the time of distribution" for headright distributions; and (7) "state the amount of interest income generated from the tribal trust account and the date on which such interest was credited to the account." Fletcher , 153 F.Supp.3d at 1372.

Both parties filed Rule 59(e) motions to alter or amend the judgment. Fletcher v. United States , No. 02-CV-427-GKF-PJC, 2016 WL 927196, at *1 (Mar. 11, 2016) (unpublished). The court granted the government's motion, in which the government sought more time to complete the accounting. Id. at *2–3. The court denied in part and granted in part Plaintiffs' motion. Id. at *3–4. It refused to expand the scope of the accounting to include more detail and to start in 1906 (proposals the district court had already rejected), but granted Plaintiffs' request to have the accounting deadline run from the entry of the court's judgment, rather than from after the appeal. See id.


Plaintiffs challenge the district court's ruling as to the time period and scope of the accounting. They argue (1) the accounting should go back to 1906 (when the headrights were created) as opposed to 2002 (when the litigation started); and (2) the government should be required to give a more detailed accounting. We afford the district court "considerable discretion" in fashioning an accounting. Fletcher II , 730 F.3d at 1214.

A. The Time Period of the Accounting

The district court did not abuse its discretion when it ordered the accounting to run from 2002. At various times in this suit, Plaintiffs have requested three different commencement dates: 2002, 1906, and 1972. Before the district court2 and before this court in Fletcher I 3 and Fletcher II ,4 Plaintiffs stated that the accounting should span from 2002 to the last available quarter. They now contend that the accounting should start in 1906, and that their requests that the accounting run from 2002 were made in the context of the misdistribution claim, which has since been dismissed without prejudice. But the misdistribution claim and the accounting claim are intertwined; Plaintiffs maintained in multiple proceedings that the accounting claim is merely a means to later sue for misdistribution.5 Indeed, we noted in Fletcher II that "[P]laintiffs ultimately hope to prove that the government has sent money to persons ineligible to receive headright shares ... and, in this way, improperly diminished their pro rata share." 730 F.3d at 1215. Even now Plaintiffs state that they will likely bring back their misdistribution claim after the government performs the accounting. See Aplt. Reply Br. at 1.

Plaintiffs argue that the government "should be ordered either ... to account fully for the period beginning in 1906, or ... bear the burden to show that it literally cannot do so." Aplt. Br. at 25. This proposal directly contradicts our guidance in Fletcher II : to avoid "[a] green eye-shade death march through every line of every account over the last one hundred years ." 730 F.3d at 1214 (emphasis added). Plaintiffs acknowledge that the government "does not possess sufficient records to provide a 109-year accounting," and have "[n]o doubt" such an accounting would be expensive. Aplt. Br. at 22. Yet, they request such an expansive accounting because they argue the government, as a trustee, should not gain any advantage from its failure to account. Id. at 19. But district courts must be reasonable, not punitive, when sitting in equity, and requiring the government to sift...

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5 cases
  • Fletcher v. United States
    • United States
    • U.S. Claims Court
    • 7 Diciembre 2020
    ...go back to 1906, instead of 2002, and that the government should give a "more detailed accounting." Fletcher v. United States, 854 F.3d 1201, 1204-05 (10th Cir. 2017) ("Fletcher III"). The Tenth Circuit held that the District Court did not abuse its discretion in determining the time period......
  • Fletcher v. United States
    • United States
    • U.S. District Court — Northern District of Oklahoma
    • 21 Febrero 2019
    ...uncover additional evidence of misdistribution, the increased expense to do so is not justified." Fletcher v. United States, 854 F.3d 1201, 1207 (10th Cir. 2017) (hereinafter, Fletcher III). In their initial motion for attorney fees and costs under EAJA, plaintiffs requested $1,835,665.19 i......
  • Fletcher v. United States
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • 24 Febrero 2022
    ...in Oklahoma Territory, and for Other Purposes, Pub. L. No. 59-321, 34 Stat. 539 (1906) (1906 Act); see Fletcher v. United States , 854 F.3d 1201, 1203 (10th Cir. 2017) ( Fletcher 2017 ); Osage Tribe of Indians of Okla. v. United States , 68 Fed. Cl. 322, 323 (2005) ( Osage 2005 ).With the 1......
  • Fletcher v. United States
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 14 Febrero 2020
    ...might uncover additional evidence of misdistribution, the increased expense to do so is not justified." Fletcher v. United States, 854 F.3d 1201, 1207 (10th Cir. 2017). Having reached the end of this fifteen-year litigation, Plaintiffs filed a motion for attorney fees and costs under the EA......
  • Request a trial to view additional results

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