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,
UNITED STATES OF AMERICA; DEPARTMENT OF INTERIOR; RYAN ZINKE, in his official capacity as Secretary of the Interior;[*] BUREAUOF INDIAN AFFAIRS; MICHAEL S. BLACK, in his official capacity as Acting Assistant Secretary Indian Affairs, United States Department of the Interior, [**]Defendants-Appellees. and CHARLES A. PRATT, individually, and as member of the Osage Development Council, Plaintiff,
FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OKLAHOMA (D.C. No. 4:02-CV-00427-GKF-PJC)
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.
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
KELLY, EBEL, and BACHARACH, Circuit Judges.
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
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).
brought this action in 2002 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.
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).
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
Id. at 1215.
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 ...