Chickasaw Nation v. Department of the Interior (120 F. Supp. 3d 1190, 2014)

ORDER

LEE R. WEST, UNITED STATES DISTRICT JUDGE

Since the Treaty of Hopewell was signed on January 3, 1786, by The Choctaw Nation (“Choctaw Nation”) and on January 10, 1786, by The Chickasaw Nation (“Chickasaw Nation”), wherein the United States of America acknowledged that the Choctaw Nation and the Chickasaw Nation were “to be under-[its] protection,” 7 Stat. 21, Article 2; e.g,, 7 Stat. 24, Article 2, “the United States has held in trust for thefse] Nations vast resources including, inter alia, land, minerals, and monetary funds.”. Doc. 91 at 8, ¶23. In the third amended complaint filed in this matter, plaintiffs Chickasaw Nation and Choctaw Nation (collectively “Nations”) have alleged that despite this protective trust relationship and although “specifically charged with a duty to fully and completely account for its fidelity in the management of trust assets,” id., the federal government has “never accounted to the Nations for its management of any of these lands, assets or funds[.]” Id. ¶ 24. It instead

illegally began the process of appointing the [Nations’] chief executives ... and subsequently ... illegally disbanded the Nations’ legislatures, ... [thereby gaining] total control over the- Nations, their governments, their property, their funds and their claims[,]

id at 19, ¶ 50,

did not require ... its appointed chiefs and governors [to] maintain any records of them actions on behalf of the Nations[,] -

id at 21, ¶ 57, and as to any documents that did exist, “took [such] control,” id at 22, ¶ 57, of the same that by

the 1970s, there were few, if any, records memorializing the actions taken by these federally appointed executives on behalf of the Nations.

Id.

“[l]nvok[ing] their right ... as a beneficiary of th[is] ... trusteeship,” id. at 1, 11,-the Nations have brought this action “to resolve accounting and related equitable claims . .■. [arising from] the [federal government’s] . >. management of the Nations’ assets and funds.” Id. In their prayer for relief, the Nations have requested both declaratory and injunctive relief, including an order that compels the defendants to provide “a full and complete accounting ... [of] all funds, assets, lands, investments, claims, and natural resources placed in[ ] .... trust ... for the [Nations’] benefit....” Id. at 43.

On May 4, 2010, the Court divided the litigation into phases. The instant phase, Phase I, concerns the Nations’ “trust accounting' and trust management claims that pre-date 1946,” Doc. 100 at 1, ¶ (l)(b), and the matter now comes before the Court on the Motion for Dismissal or, in the Alternative, for Summary Judgment filed pursuant to Rules 12 and 56, F.R.CivJ?., by the defendants, as named in the third amended complaint: United States of America, Department of Interior (“DOI”), Kenneth Salazar, then-Secretary of the Interior (“Secretary”), Bureau of Indian Affairs (“BIA”), Larry Echohawk, then-Assistant Secretary for Indian Affairs, • Office of the Special Trustee for American Indians, Donna M. Erwin, Principal Deputy Special Trustee for American Indians, Office of Trust Fund Management, Dianne Moran,. Acting Director of Trust Fund Management, Bureau of Land Management, Bob Abbey, then-Director of the Bureau of Land Management, Bureau of Ocean Energy Management, Regulation and Enforcement (“BOEMRE”), Michael Bromwich, BOEMRE Director, Department of the Treasury and Timothy F. Geithner, then Secretary of the Treasury.

The defendants’ jurisdictional challenges are governed by Rule 12(b)(1), F.R.Civ.P. A motion filed under this rule is considered ““a “speaking motion” and can include references to evidence extraneous to the [third amended.] complaint’'without converting [the motion] ... to a motion [governed by Rule- 56, supra].” Breakthrough Management Group. Inc. v. Chukchansi Gold Casino and Resort, 629 F.3d 1173, 1188 (10th Cir.2011) (quoting Wheeler v. Hurdman, 825 F.2d 257, 259 n, 5 (10th Cir.1987))(other citation omitted). The Court may therefore exercise “wide discretion ... [and] allow affidavits[ and] documents ... to resolve disputed jurisdictional facts under [Rule] 12(b)(l)[, supra].” Wheeler, 825 F.2d at 259 n. 5.

The defendants have also cited Rule 12(c), F.R.Civ.P. A motion for judgment on the pleadings filed pursuant to this rule is analyzed under the same standard applicable to a motion to dismiss for failure to state a claim for relief filed pursuant to Rule 12(b)(6), F.R.Civ.P. E.g., Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir.2000). Under Rule 12(b)(6), supra, and thus, under Rule 12(c), supra, the Court must accept all well-pleaded factual allegations in the plaintiffs’ amended pleading as true and construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favdrable to the Nations. To survive a request for dismissal under Rules 12(b)(6) and 12(c), supra, the third amended “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

As to those matters that are governed by Rule 56, supra, also cited by the defendants, summary judgment must be granted “if the ... [defendants, as the moving parties,] show[] that there is no genuine dispute as to any material fact and [that they are] ... entitled to judgment as a matter of law.” Rule 56(a), supra. At this stage of the litigation, the Court does “not ... weigh the evidence and determine the truth of the matter----” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the Court must only decide “whether there is a genuine issue for trial ... [and] there is no [triable] issue ... unless there is sufficient evidence favoring the nonmoving part[ies] for a jury to return a verdict for th[ose] parties]. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. 2505 (citations omitted). The Court’s inquiry must be whether the evidence, when viewed “through the prism of the substantive evidentiary burden,” id. at 254, 106 S.Ct. 2505, “presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52, 106 S.Ct. 2505.

“In making this determination, ... [the Court must] ‘examine the record and all reasonable inferences that might be drawn from it in the light most favorable to the [Nations, as the] non-moving parties].’” Pinkerton v. Colorado Department of Transportation, 563 F.3d 1052, 1058 (10th Cir.2009)(quoting T-Mobile Central, LLC v. Unified Government of Wyandotte County, 546 F.3d 1299, 1306 (10th Cir.2008) (citations omitted)). That is to say, in addition to the undisputed facts, the Court must accept the Nations’ version of the facts but only to the extent the disputed facts are supported by the record and are not based upon mere conclusory allegations. In addressing the issues raised by the parties, the Court, to the extent applicable, has followed the outline set forth in the parties’ proposed findings of fact and conclusions of law, as revised and supplemented. See Docs. 169, 170, 173, 174.

The Chickasaw Nation first adopted a written constitution that outlined its government organization in 1846. That document was thereafter amended on several occasions. In 1867, a new constitution was adopted that remained in effect until 1983 (“1867 Constitution”). See Doc. at 91 at 10, IT 28; Doc.119-6.

Under the 1867 Constitution, “[t]he powers of the [g]overnment ... [were] divided into three distinct departments.” Id. at 5, Article III, Section 1. The judicial department was comprised of a supreme court, district courts, and if necessary, county courts. See id. at 14, Article VI, Section 1. “The Supreme Executive power ... [was] vested in a Chief Magistrate, who [would be called] ... ‘The Governor of the Chickasaw Nation,’ ” id. at 10, Article V, Section 1, and-who had the “power to enforce the laws.... ” Id. at 11, Article V, Section 6.

The third department created by the 1867 Constitution had two branches, a house of representatives and a senate. E.g., id. at 7, Article IV, Section 1. The house of representatives and the senate formed “the [legislature of the Chickasaw Nation,” id., which, the Nations have alleged, was empowered inter alia “to order the commencement of legal and equitable claims when necessary to protect the [Chickasaw] Nation’s[] rights, privileges or interests.” Doc. 91 at 10, ¶29. Such power, according to the Nations, included authorizing prior to 1911 “the hiring of attorneys to prosecute claims ... to protect the assets of the [Chickasaw] Nation[ ] from loss and exploitation.” Id. at 10-11, ¶ 29; e.g., Doc. 160-2.

The Choctaw Nation began operating -under- a written constitution in 1838. That document, which was- thereafter twice amended, was replaced in January 1860, and that version of the constitution remained in effect until 1983 (“1860 Constitution”). See Doc. 91 at 9, ¶27; Doc. 119-5. The 1860 Constitution, like the Chickasaw Nation’s 1867 Constitution, distributed the' “powers of government ... into three ... departments,” id. at 5, Article II, Section 1 — the judicial department, the legislative department and the executive department. See id. at 6.

“The judicial power ... [was] vested in one Supreme Court, [and] in circuit and county courts,” id. at 8, Article IV, Section 1, while “[t]he supreme executive power of the Choctaw Nation ... [was] vested in one principar chief.” Doc. 119-5 at 10, Article V, Section 1. The principal chief would serve two-year terrhs and would “not be eligible for ... office for more than two terms in succession.”' Id.

“The legislative power ... [was] vested in a general council which ... consisted] of a senate and house of representatives. ...” Id. at 6, Article .ill, Section 1. The Nations have alleged that the Choctaw Nation’s general council like the legislature of the Chickasaw Nation “had the power to order 'the commencement of legal and equitable claims when necessary to protect the [that] Nationfs] rights, privileges or interests,” Doc. 91 at 10, ¶ 29, and it too, according to the Nations had authorized, prior to 1911, “the hiring of attorneys to prosecute claims and ... protect the assets of the [Choctaw] Nation[ ] from loss and exploitation.” Id. at 10-11, ¶ 29; e.g., Doc. 160-3.

While the Choctaw Nation’s 1860 Constitution and the Chickasaw Nation’s 1867 Constitution were in force and effect, the United States Congress in 1893 created a three-member commission, commonly referred to as the “Dawes Commission” after United States Senator Henry L. Dawes, the.Commission’s chairman and a “leading congressional proponent of allotment and assimilation.”. Harjo v. Kleppe, 420 F.Supp. 1110, 1111 (D.D.C.1976), aff'd sub nom. Harjo v. Andrus, 581 F.2d 949 (D.C.Cir.1978).. The purpose of the Dawes Commission was to negotiate with the Nations as well as the Cherokee, Creek and Seminole Nations, “the so-called ‘Five Civilized Tribes,’ ” Doc. 91 at 2, ¶ 4, regarding the allotment and allocation of tribal land. E.g., Seminole Nation v. United States, 78 Ct.Cl. 455, 1933 WL 1802 *8 (1933),(Dawes Commission clothed with jurisdiction to negotiate with Five Civilized Tribes); Act of March 3, 1893, § 16, 27 Stat. 612, 645 (President authorized to. appoint commission to enter into negotiations with Five Civilized Tribes).

The negotiations proved unsuccessful, and Congress thereafter passed the Curtis Act, 30 Stat. 495, 646, in June 1898. This legislation, officially named “An Act for the protection of the people of the Indian Territory, and for other purposes,” ratified the Atoka Agreement as well as enabled the then-five members of the Dawes Commission to “assemble] rolls of tribal members, allot[ ] ... the lands owned by the Nations to the enrolled members, and ... [sell] the unallotted land — ” Doc. 91 at 11, ¶ 31. In performing these tasks, the Commission was charged "with “identifying] land , that was principally valuable for agriculture, timber, and minerals,” Doc. 91 at 12, ¶32, and according to the Nations, “approximately 1.256 million acres of land ..: valued for ‘timber purposes,’ ” id.-, e.g., id. at 17, ¶ 46, was so classified.

, The Curtis Act also abolished the Nations’ tribal courts, 30 Stat. at 653, and further decreed

that no act, ordinance, or resolution of the council of either the Choctaw or Chickasaw tribes, in any manner affecting the land of the tribe, or of the individuals, after allotment, or the moneys or other property of the tribe or citizens thereof (except appropriations for the regular and necessary expenses of the government of the respective tribes) ... shall be of any validity until approved by the President of the United States.

Id, at 654.

■ In incorporating and ratifying the Atoka Agreement, the Curtis Act further decreed

in view of the modification of legislative authority and judicial jurisdiction [t]herein provided, and the necessity of the continuance of the tribal governments so modified, in order to' carry out the requirements of this agreement, that the ... [tribal governments] shall continue for the period of eight years from the fourth day of March, eighteen hundred and ninety-eight.

Id. The Curtis Act expressly provided that “[t]his stipulation'-... [was] made in the belief that the tribal government so modified will prove so satisfactory that there will be no need or desire for further change till the lands now occupied by the Five Civilized Tribes shall, in the opinion of Congress, be prepared for admission as a State to the Union____” Id.

Before any allotments were made, the Nations and the United States entered into a supplemental agreement in July 1902, e.g., Act of July 1, 1902, 32 Stat. 641 (“1902 Act” or “Supplemental Agreement”), which provided “a more comprehensive scheme for the allotment of [the Nations’] ... lands and the sale of the residue, or unallotted lands[.]” Choctaw and Chickasaw Nations v. Seay, 235 F.2d 30, 34 (10th Cir.1956). In ratifying and confirming this Supplemental Agreement, Congress acknowledged (a) that the Nations’ tribal lands would be allotted to the Nations’ individual members “as soon as practicable,” 1902 Act, § 11, 32 Stat. at 642, (b) that “the residue of lands not ... reserved ... shall b¿ sold at public auction,” id. § 14, 32 Stat. at 642, and (c) that the proceeds of these sales “shall be paid into the Treasury of the United States to the [Nations’] credit ... and distributed per capita [to the Nations’ members] as other funds of the [Nations] ...” Id.

The 1902 Act also contemplated the continuation'of the Nations’ governments, see Doc. 91 at 11, ¶31, as evidenced by the lands reserved from allotment and sale: academies, seminaries and orphanages, e.g., 1902 Act, § 26(e)-(h), (j)-(n), 32 Stat. at 645; “[fjive acres for [the Choctaw Nation] capítol buildingf,]” id. § 26(i), 32 Stat. at 645; “[f|ive acres- for the' [Chickasaw Nation] capítol building[,]” id. § 26(o), 32 Stat. at 645; “[o]ne acre each for all Choctaw or Chickasaw schools under the supervision of the authorities of the Choctaw or Chickasaw [N]ations and officials of the United States,” id. § 26(v), 32 Stat. at 646; and “[a] reasonable amount of land ... to include all tribal court-houses and jails and other tribal public buildings.” Id. § 26(s), 32 Stat. at 645.

In April 1906, Congress passed legislation known as the Five Tribes Act, 34 Stat. 137 (“Five Tribes Act” or “1906 Act”), “[t]o provide for the final disposition of the affairs of the Five Civilized Tribes.... ” 1906 Act, 34 Stat. at 137. To the extent this legislation was “inconsistent with the provisions of,” id. § 29, 34 Stat. at 148, any previous legislation, the former enactments were repealed. See id.

Significantly, even though the title of the 1906 Act reflected Congress’ contemplated dissolution of the Nations, Section 28 of that same legislation nevertheless not only recognized that the “[t]ribal governments continued,” id. § 28, 34 Stat. at 148, but also delayed termination of the Nations’ governments. That section read

[t]hat the tribal existence and present tribal governments of the Choctaw[ and] Chickasaw ... [N]ations are hereby continued in full force and effect for all purposes authorized by law, until otherwise provided by law[.]

Id. Cf. Harjo, 420 F.Supp. at 1130 (intent and effect of Section 28 was to permit Creek Nation to continue to operate under its constitution).

The Nations’ tribal courts remained abolished, see 30 Stat. at 653, and Section 28, while recognizing the continuation of the Nations’ governments, further restricted the legislative authority vested by the Choctaw Nation’s 1860 Constitution and the Chickasaw Nation’s 1867 Constitution in its respective bicameral legislatures, see Doc. 119-5 at 6, Article III, Section 1; Doc. 119-6 at 10, Article IV, Sections 2, 4.; id. at 6, Article IV, Section 1, by decreeing that

the tribal council or legislature in [either] ... of said ... [N]ations shall not be in session for a longer period than thirty days in any one year[ ] ... [and] no act, ordinance, or resolution ... of the tribal council or legislature of [either] ... of said ... [N]ations shall be of any validity until approved by the President of the United States[.] ...

1906 Act, § 28, 34 Stat. at 148.

In addition, while Section 6 of the Five Tribes Act authorized the President to remove the Nations’ chiefs and governors, that authority was expressly limited to the following circumstances:

[I]f the principal chief of the Choctaw ... tribe, or the governor of the Chickasaw tribe shall refuse or neglect to perform the duties devolving upon him, he may be removed from office by the President ..., 'or if any such executive become permanently disabled, the office may be declared vacant by the President ..., who may fill any vacancy arising from removal, disability or death of the incumbent, by appointment of a citizen by blood of the tribe.

Id. § 6, 34 Stat. at 139.

Accordingly, the President was “empower[ed by Section 6] ... to fill the office of principal chief [or governor] in only three limited circumstances: the removal, disability, or death of the incumbent[,]” Harjo, 420 F.Supp. at 1127, thereby “en-sur[ing] that the office whose occupant was charged by statute with signing the allotment deeds would at all times be filled, and .., the tribes [would not be deprived] of. the right to continue electing their [p]rincipal [c]hiefs [or governors] ... as long as their tribal governments continued to exist.” Id (footnote omitted).

Nevertheless, as evidenced by the documents submitted by the parties, the Choctaw Nation’s principal chiefs and the Chickasaw Nation’s governors, during all relevant times, were not elected; instead, in direct contravention of the terms of Section 6 and the 1860 and 1867 Constitutions, they were appointed to the position by the President and recognized by “[t]he United States ... as the sole embodiment of the governments] of the ... Nati.on[s] with complete power to control all governmental affairs,” Morris v. Andrus, No. 77-1667, slip op. at 2 (D.D.C. 1979), aff'd sub nom. Morris v. Watt, 640 F.2d 404 (D.C.Cir.1981); e.g., Cravatt v. Andrus, No. 77-1664, slip op. at 1 (D.D.C. 1979), aff'd sub nom. Morris v. Watt, 640 F.2d 404 (D.C.Cir.1981), including legislative affairs.

. As stated, the 1860 Constitution vested “[t]he supreme executive power of the Choctaw ■ Nation ... in one principal chief,” Doc. 119-5 at 10, Article V, Section 1, who would “not be eligible for ... office for more than two terms in succession.” Id. “In case of death, .resignation or removal of the principal chief, the president of the senate shall exercise the. duty of principal chief-until the next regular election of that office....” Id., Article V, Section 4.

Elected in. 1898 and in 1904, Green McCurtain served as Principal Chief of the Choctaw Nation for'two terms. See Docs. 124-14, 124-15. Despite the election,of Wesley Anderson in 1906, see Doc. 169-1 at 35, ¶. 41, and despite “having just cona-pleted two terms as Chief ... [and thus,] not eligible to hold the office,” Doc. 91 at 16, ¶ 42; e.g., Doc. 119-5 at 10, Article V, Section 1, United States presidential appointee McCurtain continued to serve as Principal Chief until his death in 1910.

David C. McCurtain was thereafter appointed by the President on January 3, 1911, to succeed his father and “to serve ‘during the pleasure of the President ... for the time being.’” Doc. 111-8 at 2. That appointment “was recalled since ... [he] did not qualify,” id. and President William Howard Taft appointed Victor M. Locke Jr., to be Principal Chief in February 1911. See id.

Locke served in that capacity until October 1917. In July 1918, President Woodrow Wilson appointed William F. Semple as Principal Chief; he served until July 1922, when President Warren G. Harding appointed William H. Harrison.as Principal Chief of the Choctaw Nation. Chief Harrison served until his death in September 1929.

In February 1930, Ben H. Dwight was appointed by President Herbert Hoover, and he served in that position through 1936. Principal Chief Dwight was succeeded by presidential appointee William A. Durant in January 1937. Chief Durant served until his death in August 1948, and that year, by joint resolution ratifying a contract between the United States and the Choctaw Nation, Congress' recognized Chief Durant as the Choctaw Nation’s Principal Chief. See Act of June 24, 1948, 62 Stat. 596.

Harry J.W. Belvin “was elected [in 1948] by special referendum authorized by [DOI, receiving 531 of the 1,1534 votes cast, see Doc. 91 at 21, ¶ 54,] ... and again in 1952.” Doc. 119-10 at 2; e.g., Doc. 111-8 at 2. Principal Chief Belvin, either through reelection or reappointment, or both, served until 1975. He was replaced, after election, by C. David Gardner.

The Chickasaw Nation’s 1867 Constitution, as stated, vested “[t]he Supreme Executive power ... in a Chief Magistrate, who [would be called] ... ‘Governor-Doc. 119-6 at 10, Article V, Section 1. That individual was to be “elected by the qualified electors of the Nation,” id., Article V, Section 2, for a two-year term, see id. and could “not be eligible [for office] for more than four years in any term of six years.” Id. If the office of the Governor became “vacant by death, resignation, removal from office or otherwise, the President of the Senate ... [would] exercise the office of Governor until another Governor [could] ... be duly quaíifíed[.]” Id. at 12, Article V, Section 14.

During the time period relevant to this lawsuit, Douglas H. Johnston was twice elected Governor of the Chickasaw Nation, first serving in 1898 and again in 1902. In 1906, Governor Johnston, faced with the uncertainty created by DOI’s “refus[al] to divulge its interpretation [of Section 28,]” Harjo, 420 F.Supp. at 1131 n.56, suspended elections and, despite being ineligible under the 1867 Constitution, see Doc. 119-6 at 10, Article V, Section 2, served as Governor until his death in 1939. Congress, through an appropriations act, recognized Governor Johnston as Governor of the Chickasaw Nation in 1912. See Act of August 24,1912, 37 Stat. 518, 543.

Floyd E. Maytubby succeeded Johnston as Governor in 1939, and he served in that position until he died in 1963. Congress, again by joint resolution ratifying a contract between the United States and the Chickasaw Nation, also recognized Governor Maytubby as Governor of the Chickasaw Nation. See Act of June 24, 1948, 62 Stat. 596.

E.B. “Hugh” Maytubby, his nephew, was appointed as Governor immediately upon Governor Maytubby’s death, and he served from May 1963 to October 1963. E.B. Maytubby was succeeded in that position by presidential appointee Overton James. James served from 1963 to 1987, but was not elected as Governor by popular vote until 1971. .See Doc. 91 at 21, ¶ 56.

According to the Nations, “[a]t the same time that Congress was clarifying that the Nations’ governments were to continue operating into the indefinite future [through the passage of Section 28 of the Five Tribes Act], it [was] also establishing] clear rules [in the 1906 Act] on how the Nations’ property was to be managed by the United States.”1 Doc. 91 at 13, ¶ 36. An initial draft proposed by DOI read in pertinent part “[t]hat when allotments ... ha[d] been made to all members and freedmen of the Choctaw[ and] Chickasaw ... tribes, the residue of lands in each of said nations not reserved or otherwise disposed of,” H.R. No. 59-74 at 8, Section 16 (December 7, 1905), including “all coal and asphalt lands ... [through] public auction,” id. Section 13, “shall be sold by the Secretary ..., and the proceeds of such sales deposited in the United States Treasury to the credit of the respective tribes.” Id. at >8-9, Section 16. As recommended, there were no limitations on type of unallotted land-whether it was used for mining, agricultural or timber purposes-that could be sold.

Thereafter, H.R. Report No. 59-183, dated January 11,1906, and accompanying H.R. No. 59-76, likewise “provide[d] for the sale of the unleased coal and asphalt lands,” H.R. Report 59-183 at 2, and “for the sale of all surplus lands.” Id. H.R. Report 59-183. noted, however,, that “the timber on certain sections in the ... Choctaw Nation[ ] ... [had been] reported as being very valuable,” id., and that it was “the judgment of [DOI] ... and of the Dawes Commission that it would be in the best interests of the [Choctaw Nation] ... to ascertain its value before it [was] ... placed upon the market.” Id.

' Section 16 of the Five Tribes' Act, ‘ as ultimately adopted'and enacted,'together with Sections 7 and 13, defined the Secretary’s limited authority to sell the Nation’s unallotted lands. Section 16 first provided that after allotments had been made and except for the Choctaw Nation’s tracts identified in Section 7, “the residue of [the Nations’] lands ... not reserved or otherwise disposed of shall be sold by the Secretary ...,” 1906 Act, § 16, 34 Stat. at 143, “and then directed that the proceeds of such sales [be] deposited in the United States Treasury to the credit of the respective [Nations],...” Id.; e.g., id. § 17, 34 Stat. at 143-44 (remaining funds from sales shall be distributed per capita to Nations’ members).

Section 16 next provided that the Secretary’s authorization

to sell, whenever in his judgment it may be desirable, any of the unallotted land in the ... [N]ations,1 [was restricted to ' that unallotted land] which [was] not principally valuable for mining, agricultural, dr timber purposes, in tracts of not exceeding six hundred and forty acres to any one person, for a fair and reasonable price, not less than the pres- , ent appraised value.

Id. § 16, 34 Stat. at 143 (emphasis added).

Section 13 of the 1906 Act further expressly reserved from sale the Nations’ “coal and asphalt lands, whether leased or unleased ... until the existing leases ... shall have expired, or until such time as may be otherwise provided by law.” Id. ,§ 13, 34 Stat. at 142.

Section 18 of the 1906 Act also authorized the Secretary “to bring suit in the name, of the United States, for the use of the Choetaw[ and] Chickasaw ... [Nations], respectively, either before or after the dissolution of the tribal governments, for the collection of any moneys or recovery of any land claimed by ... [the Nations] ..., whether such claim shall arise prior to or after the dissolution of the tribal governments[.]” 1906 Act, § 18, 34 Stat. at 144; e.g., § 11, 34 Stat. at 141. The Nations have alleged, despite this “clear, nondiscretionary duty,” Doc. 91 at 15, ¶40, to prosecute claims on behalf of the Nations,. “[t]he United States has never brought a claim to recover the Nations’ [t]imber [l]ands or to account for the revenues from [any] .., illegal sales.” Id.

Before 1906, the two Nations had allegedly “made concerted efforts to protect the [t]irriber’ [l]ands, passing laws to limit the exploitation of the timber and to preserve the assets.” Doc. 91 at 17, ¶ 44. However, after the passage of the 1906 Act, those efforts were limited because, as the parties’ documents have established, the Chickasaw Nation’s legislature was not functioning and the Choctaw Nation’s legislature had ceased any meaningful activity after 1911.

In October 1907, the Choctaw Nation general council passed a bill entitled- “A Memorial Protesting Against the Proposed Timber Reserve,” which was approved by Principal Chief McCurtain. See Doc. 155-1. The Choctaw Nation protested therein that DOI in violation of the 1902 Act, § 14, 32 Stat. at 642, had withdrawn from allotment a tract of land for the purpose of making a timber preserve and that the creation of the preserve would harm tribal members whose allotments were included within that tract. The Choctaw Nation general council urged Congress to refuse to authorize the preserve and to respect the agreements regarding allotments and the disposition of residue lands between the Nations and the United States. >See Doc. 155-1 at 2.

Principal Chief McCurtain, himself, also continued to address the delay in the allotment process and in the sale of unallotted land in his Annual Message to the Choctaw Nation General Council on October 5, 1908. See Doc. 155-2. He complained about the federal government’s failure to complete the final distribution of the Choctaw Nation’s property, see id. at 2, in light of the Choctaw Nation’s “deep interest,” id. at 4, in the “remaining unsettled,” id., matters, which included “the sale of the leased [and unleased] coal and asphalt lands,” id., “the sale of the surplus as residue of lands ...,” id., and “the final allotment of land ,— ” Id.

Principal Chief McCurtain further urged the general council to “insist upon ... [the] sale-.of,” id. at 7, the approximately two million acres of surplus or unallotted land; he repeated his disfavor with DOI’s “suggestion ... of making a forest reserve out of a large portion of ... [the] unallot-ted lands,” id.. at 7, and his opinion that “the sale of the[se] lands as agreed upon would bring more money....” Id.

Finally, Principal Chief McCurtain considered the disposition of the coal- and asphalt, lands, which he deemed “the most valuable part of [the Choctaw Nation’s] ... property[.]” Id. at 16. He noted that the Nations were the joint owners in fee-simple of approximately-450,000 acres of coal and asphalt lands and- that the members of-“the Choctaw [Nation]''..., for several years, ha[d] been practically united upon a plan .for the disposition of these lands, and ha[d] repeatedly made recommendations upon the subject.” Id. at -17. He further noted, however, that despite DOI’s .agreement in the 1902 Act. “that the[ ] coal and asphalt lands and- deposits should be sold [at- public auction] and the proceeds divided among the members of the ... tribes,” id., DOI had disagreed with the manner of sale due to its preference for sealed bids and “withdrew the ... lands from sale.” Id. at 18.

Principal Chief McCurtain further reported that through the 1906 Act, DOI had withdrawn both the leased and unleased coal and asphalt lands from sale, “notwithstanding the desire of the [Nations] ... to dispose of said lands ... and the promise and agreement of the United States Government that the same should be sold in accordance with the [Nations’] de-sires_” ■ Id. He opined that the coal and asphalt lands should be sold in' the manner upon which DOI and the Nations had agreed, urged the passage of legislation authorizing that sale and outlined the manner in which the proceeds be distributed. See id. at 19-20.

Between 1907 and 1946, DOI published announcements and regulations that either advertised or governed, or both, the sale of segregated, unallotted lands — including, according to the Nations, “unallotted land . .■. principally valuable for ... timber purposes,” 1906 Act, § 16, 34 Stat. at 143 —and pine timber through sealed bids or public auction. See Docs. 105-1 to 105-11. The regulations were allegedly “prescribed for the purpose of carrying into effect the provisions of [S]ection 7 of the [1906] [A]ct ...,” Doc. 105-1 at 2, and . the sales provided for therein were alleged to be “authorized by Section 14[] of the [1902] Act ... and Section 16 of the [1906] Act_” Doc. 105-2 at 2. The published documents described the tracts to be sold (by county, if appropriate, and in certain instances, the acreage), e.g., Doc. 105-1 at 3-5; Doc. 105-2 at 2; they also listed the appraised value of the land, and if appropriate, the estimated amount of, and the appraised value of, the pine timber. E.g., id. Pursuant to these regulations and as a result of these advertisements, DOI, after allotting the Nations’ tribal lands to their members, sold over three million acres of the Nations’ remaining lands, including over one million acres of the Nations’ timber lands, see Doc. 148-1, and distributed the proceeds of these sales.

According to the defendants, these regulations and announcements together with the Annual Reports of the Commissioner to the Five Civilized Tribes to the Secretary of the Interior and the Annual Reports of the Office of the Superintendent for the Five Civilized Tribes (collectively “Annual Reports”) not only. detailed the status of the allotments and the sale of the unallotted lands, identified the tracts and timber lands to be sold and totaled the acreage, but also reflected the sale prices and the amounts collected. See Doc. 148— 1, Exhibits 1-33. '

The Nations have challenged the defendants’ reliance on these Annual Reports on the grounds that they “do not provide information sufficient to determine whether the United States faithfully carried out its trust responsibilities or whether there have been losses to or mismanagement of'the Nations’ trust assets.” Doc. 169-1 at 57-58, 1188. Even if the Annual Reports, were as informative as suggested by the defendants and provided sufficient notice ■ to tribal members, neither these documents nor any other submitted documents cast doubt oh the plaintiffs’ overarching theory in this lawsuit, as evidenced by their well-pleaded factual allegations, thát the Nations’ tribal courts had been abolished, their legislatures displaced and their federally-appointed principal chiefs and governors controlled by the federal government.

Prior to 1946, Indian “tribes had no forum for pursuing claims against the federal government absent congressional action authorizing litigation on behalf of individual tribes. The [United States] Court of Claims was expressly prohibited from entertaining suits based on treaties.” Cohen’s Handbook of Federal Indian Law § 5.06[2] at 437-48 (2012 ed.). “During this period,. tribes petitioned Congress to obtain special jurisdictional statutes granting the Court of Claims jurisdiction, waiving sovereign immunity, • and often also waiving otherwise applicable statutes of limitations for specific claims.” Id. at 438; e.g., United States Indian Claims Commission Final Report (August 13, 1946-Sep-tember 30,1978) at 3.

In this connection, from 1907 to 1927, Charles D. Carter, a former Chickasaw Nation House of Representatives member who represented the State of Oklahoma in the United States House of Representatives, sought the passage of a jurisdictional act that would open the Court of Claims to the Nations. As a member of the Committee on Indian Affairs, Carter introduced legislation that would enable the Nations to bring suit against the United States for any dispute arising out of any agreement between the Nations and the federal government. See H.R. 5325 (January 12, 1924).

On June 7, 1924, Congress enacted that legislation, as amended; it conferred

jurisdiction ... upon the Court of Claims, notwithstanding the lapse of time or statutes of limitation, to hear, examine, and adjudicate and render judgment in any and all legal and equitable claims arising under or growing out of any treaty Or agreement between the United States and the Choctaw and Chickasaw Indian Nations or Tribes, or either of them, or arising under or growing out of any Act of Congress in relation to Indian affairs which said Choctaw and Chickasaw Nations or Tribes may have against the United States, which claims have not heretofore been determined and adjudicated on then-merits by the Court of Claims or the Supreme Court of the United States.

Act of June 7, 1924, § 1, 43 Stat. 537, 537 (“1924 Act”).

Section 2 of the 1924 Act further provided that

[a]ny and all claims against the United States within the purview of [this legislation] ... shall be'forever barred unless suit be instituted or petition filed ... in the Court of Claims within five years from the date of [its enactment]....

Id. § 2, 43 Stat. at 537. That section, as amended, also provided that

[t]he claim or claims- of [the Choctaw and Chickasaw] -... Nations shall be presented separately or jointly by petition in the Court of Claims, and such action shall make the' petitioner party plaintiff or plaintiffs and the United States party defendant. The petition shall be verified by the attorney or attorneys’ employer to prosecute such claim or claims under contract approved by the Commissioner of Indian Affairs and the Secretary ■ ..., and said -contract with such Indian tribe shall be executed "in behalf of the tribe by the governor or principal chief thereof, or, if there be no governor or principal chief, by a 'committee chosen by the tribe under the direction and approyal of the Commissioner of Indian Affairs and the Secretary....

Id. at 537-38.

From 1932 to 1945, proceedings “purporting to be claims of the Nations were filed[,]” Doc. 91 at 23, Id., against the United States in the Court of Claims under the 1924 Act. And while the Nations have conceded that these actions were commenced, see, e.g., Doc. 91 at 23, ¶ 61, they have contended inter alia that “approval of the Nations’ citizens as required by the ... [1924] Act [was not secured.]” Doc. 91 at 23, ¶ 61.

In one such case filed on June 3, 1929, In re Petition of the Choctaw Nation of Indians, No. K-260, former Principal Chief Semple and W.B. Johnson, acting in their capacity as special attorneys “employed by the Principal Chief of the Choctaw Nation,” Doc. 124-7 at 15, and under contract approved by the Commissioner of Indian Affairs and DOI, see id., in accordance with Section 2 of the 1924 Act, sought “a general accounting ... covering all transactions had between [the Choctaw Nation and the United States] from the date of the Treaty in 1805 ... until the present time.” Doc. 124-7 at 3. The petition alleged “[t]hat at all times [the United States] ... ha[d] maintained a system of accounting ... and ha[d] in its possession the only means known to [the Choctaw Nation] ... of ascertaining what [it was] ... or [was] ... not due_” Id.

The petition further alleged that between the Treaty of Hopewell entered into on January 3, 1786, and the enactment of the 1902 Act,

there ha[d] been numerous transactions between the [Choctaw Nation] ... and the [United States] ..., and the [United States] ... alone ha[d] kept the accounts between them, and ... [was] now in possession of all. the facts concerning sai'd transactions, while the [Choctaw Nation] . . ha[d] ho means of knowing from any record kept by it the number and character of said transactions, the sums of money involved nor what disposition was made of funds belonging to it by [the United States] ..., and it therefore pray[ed] a full, complete and exhaustive accounting and explanation of all funds received and had by [the United States] ... for the use and benefit of [the Choctaw Nation]....

Id.-, e.g., Doc. 106-1 at 9. In particular, the petition asserted that although DOI had been statutorily authorized to sell unallot-ted and timber, e.g., Doc. 124-7 at 12 (citing 1906 Act, 34 Stat. 137; Act of August 24, 1912, 37 Stat. 497), the Choctaw Nation had not been “advised whether any of such lands and timber [had been]., sold ... and if so what [had been] ... received therefor and what disposition [had been] ... made of the purchase money.” Id.

In response to this petition, the United States General Accounting Office (“GAO”) in 1933 prepared an 888-page report, see Doc. 106-1,

[t]he accounting features of [which were] ... divided into two parts:

Part I. Summary of disbursements made by the United States for the .benefit of the Choctaw Nation _ during the period from December 17, 1801 to June 30,1929.

Part II. Disbursements made by the United States for the benefit of the Choctaw Nation ... pursuant to and in connection with various treaties, agreements, and acts, of Congress, during the period from December 17, 1801 to June 30,1929.

Id. at 10; e.g., id. at 15, 18.

In Part II, GAO “in order to show to what extent the United States ha[d] fulfilled its financial obligations to the Choctaw Nation,” id. at 20, identified each treaty, agreement and Congressional act that authorized the appropriations and disbursements and noted whether the same imposed any financial obligations on the part of the United States and thus, whether any accounting was involved- or required. See, e.g., id. at 26-27, 38. GAO further noted that pursuant to the treaties, agreements and Congressional acts identified in its report, the United States had among other things “leased and sold the lands not required for allotment purposes[,] collected the revenue arising from the disposition and management of tribal property[ ] and distributed the funds arising therefrom_” Doc. 107-3 at 42; e.g., Doc. 107-2 at ,78.

The report indicated that “with reference to [the Choctaw Nation’s] ... request for an accounting of the moneys received by [the United States] ... from royalties on coal mined [from lands belonging to the Nations], ... the sum of $5,387,750.61 ... [had been] collected by officers of the United States.-,. Id. at 49-50; e.g., id. at 64. See also id. (royalties on asphalt collected in the sum of $55,102.01). GAO’s report also identified in the aggregate the sums for the sale of timber lands and timber, respectively, as $5,595,785.32 (with interest thereon in the amount of $720,190.98) and $36,950.44 re-, spectively. See id. at 66; e.g., Doc. 91 at 24, ¶63. - ‘

The report, however, merely. summarized disbursements; it did not “identify what [particular] land was sold, when.or for what price[,]” id.,- or describe “what lands and other assets the United States continued to hold in -trust.” Id.; e.g., Affidavit óf Jo Rice (September 13, 2010) at 7-11 (hereafter “Rice Affidavit”).

An amended petition was thereafter filed in No. K-260, and in that document, a challenge was lodged against among other things certain expenses that had been incurred in connection with the sale of unal-lotted land, segregated coal and asphalt lands and, coal and-asphalt deposits, as well as incurred for appraising timber. The United States denied the claims and insisted that all expenses and disbursements had been for the benefit of the Choctaw Nation and authorized by treaties, agreements and Congressional acts.

The Honorable Benjamin H. Littleton, to whom the case was assigned, deemed GAO’s accounting reports “full and complete,” Choctaw Nation v. United States, 91 Ct.Cl. 320, 1940 WL 3998 *1 (1940); he noted that “[t]he record disclosetd] a great mass of accounting over a long period of time with respect to the management of affairs of the [Choctaw Nation] ..., the handling and disposition of its property and funds derived from such management, disposition, and- sale, and the disbursements made from such funds at various times and for various purposes.” Id. at 358, 1940 WL 3998 *26. He further noted that “[f]rom the standpoint of accounting the case [was] ... much involved, difficult to analyze, and more difficult to express[.]” Id.

Judge Littleton recognized that prior to 1897, the Choctaw Nation, “with the recognition and approval of the United States, [had] maintained its own government, enacted its own laws not inconsistent with the treaty provisions and acts of Congress, and ... managed its own affairs and disbursed its own funds.” Id. He further recognized that “[t]he whole purpose of th[e] [Atoka] [A]greement and the [1902] Supplemental [A]greement ... [was] ... for the United States ... to take over the management, control, and administration of the property, affairs, and funds of the ... [Choctaw] [N]ation theretofore exercised by the tribal government, to continue the tribal government only for limited purposes, and to administer and dispose of the property and funds of the Indians for their benefit.” 91 Ct.Cl. at 360, 1940 WL 3998 *27; e.g., id. at 376, 1940 WL 3998 *37 (citing Creek Nation v. United States, 78 Ct.Cl. 474, 490 (1933)(Curtis Act took away from tribes control which they formerly exercised over tribal property and funds, and by clear and necessary implication vested DOI with authority to disburse and expend funds in such manner and for such purposes as would, in DOI’s judgment, satisfy tribes’ needs).

That same year, 1929, William H.- Fuller and Melvin Cornish, attorneys employed by Governor Johnston, see Doc. 108-1 at 6; Doc. 113-7 at 9, and G.G. McVay, National Attorney for the Chickasaw Nation, also brought suit against the United States in the Court of Claims under the 1924 Act. Chickasaw Nation v. United States, No. K-544. The petition averred that the Chickasaw Nation had previously brought suit, either alone or with the Choctaw Nation, against the' United States and that the United States in response to those lawsuits had advised that it could not answer the claims asserted therein

until it ha[d] made a full and complete audit of all the financial transactions between the ... United States '... and the ... Nation's, arising and growing out of the division of the tribal estates and the disposition, by sale and otherwise, of all other tribal property, and the disposition, by per capita distribution and otherwise, of the proceeds thereof....

Doc. 108-1 at 3.

The petition alleged that the Chickasaw Nation had “reason to believe .'.. that, from time to time, deductions ha[d] been made from the moneys placed to its credit [as proceeds from the sale of tribal properties], for the payment of ... expensed [incurred, in the division of the tribal estates],” id. at 5, and

pray[ed] that an order be made ... requiring the ... United States ... to prepare and file ... a full and complete audit of all the financial transactions between the .... United States .... and the ... Chickasaw Nation arising and growing out of the division of the tribal estates and the disposition, by sale and otherwise, of all othér. tribal property, and -the disposition, by per capita distribution and otherwise, of the proceeds thereof, ■ under all • treaties and Acts of Congress .'..; and that after such audit shall have been prepared and filed ..., [the Chickasaw Nation] ..,. may have a reasonable time for the examination of the same for the purposes of ascertaining:

First: What sum or sums of its moneys, if any, have been deducted and used for the payment of expenses in the division and administration of the tribal estates; and

Second: What sum or sums of money, if any, to which it is entitled, have not been placed to its credit....

Id.; see Doc. 113-7 at 6 (outlining losses disclosed by GAO report and seeking recovery of illegal disbursements).

In response, GAO produced a report that covered the period of time from 1806 to 1934, and not only addressed the claims in the petition, but also supplemented the report it had produced in response to the petition filed in In re Petition of the Choctaw Nation of Indians, No. K-260. See Doc. 108-2 to Doc. 109-5. In Parts IV and V of its Supplemental Report, GAO summarized by fiscal year the expenses incurred and the disbursements made by the United States that related to surveying, appraising and selling unallotted timber lands and estimating timber. See, e.g., Doc. 108-5 at 30, 34-35, 38, 51; Doc. 109-1 at 2, 34-35; Doc. 109-2 at 6-8, 10-11, 16-23; Doc. 109-4 at 47.

In resolving the issues raised in No. K-544 and the United States’ claimed offsets, the Honorable Richard S. Whaley, Chief Justice, found that “[a] thorough investigation ha[d] been made in matters of accounting.” Chickasaw Nation v. United States, 103 Ct.Cl. 1, 1945 WL 4025 *32 (1945), rev’d in part, 326 U.S. 217, 66 S.Ct. 84, 90 L.Ed. 25 (1945). He observed that “[w]ith the exception of a short deposition the parties [had] reified] entirely on ... [that] accounting,” id. at 34, 1945 WL 4025 *25, and the GAO’s report “constitute^] for all practical purposes the sole source of information.” Id.

This supplemental report, however voluminous, again was “devoted exclusively to disbursements,” Doc. 169-1 at 55, ¶ 79 (citations omitted), and any “information concerning receipts [was] ... limited to identified appropriation acts under which the disbursements were made.” Id. (citation omitted).

In 1945, United States Congressman William G. Stigler, a member of the Choctaw Nation, introduced “[a] Bill [t]o create an Indian Claims Commission, [and]' to provide for the powers, duties, and functions thereof ...H.R. 1198, 91st Cong. 126, 1st Sess. (1945); e.g„ H.R. 1341, 79th Cong., 1st Sess (1945)(introduced by Charles R. Robertson, U.S House of Representatives (N.D.)). Proponents of these companion bills, H.R. 1198 and H.R. 1341, who testified at the hearings before the House of Representatives Committee on Indian Affairs included Lynn Adams, an attorney for the Chickasaw Nation employed under a contract approved by DOI and the President, see Doc. 112-2 at 12, W.W. Short, a member of the Chickasaw Nation and president of the Choctaw and Chickasaw Confederation, see id. at 19, Honorable Earl Welch, then Associate Justice for the Oklahoma Supreme Court, see id. at 22, former Principal Chief Dwight, then attorney for the Choctaw Nation, who appeared with instructions from Chief Durant, see id. at 28, and Chickasaw Nation Governor Maytubby. See id. at 42; e.g., Hearings on H.R. 1198 and H.R. 1341, 79th Cong., 1st Sess. 8-10, 15-17, 19-28, 39-42 (1945).

On August 13, 1946, Congress enacted the Indian Claims Commission Act (“ICCA” or “1946 Act”), Pub.L. No. 79-726, 60 Stat. 1049 (codified at 25 U.S.C. § 70 et seq.), which established the Indian Claims Commission (“ICC”), a “tribunal with power to decide claims of Indian tribes against the United .States,” Arizona v. California, 530 U.S. 392, 402, 120 S.Ct 2304, 147 L.Ed.2d 374 (2000)(footnote and citation omitted). The 1946 Act “had two purposes. The ‘chief purpose [¶]... was] ... to dispose of the Indian claims problem with finality.’ ” United States v. Dann, 470 U.S. 89, 45, 105 S.Ct. 1058, 84 L.Ed.2d 28 (1985)(quoting H.R.Rep. No. 1466, 79th Cong., ,1st Sess. 10 (1945)). “This purpose was effected by the language of ... [section 70u(a) ]: “When the report of the [ICC] ... determining any claimant to be entitled to recover has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims____’” Dann, 470 U.S. at 45, 105 S.Ct. 1058 (footnote omitted). This statutory section “also state[d] that the ‘payment of any claim ... shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy.’” Id. (quoting 25 U.S.C. § 70u(a)).

“The second purpose of the [ICCA] was to transfer from Congress to the ... [IGC] the responsibility for determining the merits of native American Claims,” id. that had accrued against the United States before August 13, 1946. E.g., 25 U.S.C. § 70a (no claim accruing after August 13, 1946, shall be considered by ICC).

The ICC was statutorily authorized to hear and determine the following claims against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians residing within the territorial limits of the.United States or Alaska: (1) claims in.law or equity arising under the Constitution, laws, treaties of the United States, and Executive orders of the President; (2) all other claims in law or equity, including those sounding in tort, with respect to which the claimant would have been entitled to sue in a court of the United States if the United States was subject to suit; (3) claims which would result if the treaties, contracts, and agreements between the claimant and the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or mistake, whether of law or fact, or any other ground cognizable by a court of equity; (4) claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without' the payment for such lands of compensation agreed to by the claimant; and (5) claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity..... .

Id.

The ICC was statutorily charged .with the responsibility,-“[a]s soon as practicable[,] ... [of] sending] a written explanation of the provisions of th[e] ... [ICCA] to the recognized head of each -Indian tribe....” 25 U.S.C. §70/, and “request[ing] that a detailed statement of all claims be sent to the [ICC]____” Id.

Officials purportedly litigated on behalf of the Nations before the ICC was statutorily abolished in September 1978, see Pub.L. No. 94-465, 90 Stat.1990, 25 U.S.C. § 70v (1978)(all claims and cases .that remained pending before ICC were transferred to Court of Claims), and although the Nations have again conceded that these actions were prosecuted, see Doc. 91 at 26, ¶ 70, they have alleged that “[d]ue to the illegal takeover of the constitutional governments of the Nations, there were no duly elected officials ... to act on behalf of the Nations or to protect the interests of the Nations and their people,” id. ¶ 68, in these matters.

In April 1952, attorneys purporting to act on behalf of the Choctaw Nation filed suit before the ICC, Choctaw Nation v. United States, ICC No. 249, asserting “four specific accounting claims and a demand for a general accounting.” Choctaw Nation v. United States, 32 Ind. Cl. Comm. 286, 286 (December 6, 1973). The first claim related to the use of tribal funds by the United States for expenses incurred “in carrying out the provisions of,” Doc. 112-3 at 4, the Atoka Agreement and the 1902 Act. It was alleged that contrary to the parties’ agreements, the United States from June 30, 1929, to June 30, 1951, had disbursed from tribal funds a total of $200,000.00 for administrative and,-agency expenses that resulted from- among other things “investigating coal and asphalt deposits,” Doc. 112-3 at 4-5, and the “sale of unallotted land....” Id. at 5.

The petition further averred that the United States “in the handling of [the Choctaw Nation’s] ... properties since June 30, 1929, ha[d] sold many large assets; paid out large sums of money, and .. held large sums of money in trust ...,” id. at 7, and prayed “that the [United States should] ... be required to make a statement in the nature of an accounting for all sums received and disbursed from June 30,1929, to date,, and that [the Choctaw Nation] ... have judgment for such amounts as may be justly found to be due on an accounting of [the United States’] ... administration of [the Choctaw Nation’s] ... funds.” id.; e.g., id. at 8, ¶ (e).

Two of the Choctaw Nation’s claims, including the claim challenging the United Statés’ disbursement of moneys from tribal funds, were dismissed. The remaining two claims, including the Choctaw Nation’s demand for a general accounting, were resolved by compromise and settlement, and findings documenting the parties’ agreement were entered by the ICC Commissioners in 1976. See Choctaw Nation v. United States, 38 Ind. Cl. Comm. 441 (1976)(ICC No. 249).

They noted in their Findings of Fact on Compromise Settlement that the settlement had been “formally approved by a resolution of the [Choctaw Nation’s then] Principal Chief, [Belvin,] ... and his advisory counsel on ... [June 30,] 1975.” Id. at 444. The compromise was also “formally approved and ratified ...,” id. at 445, on February 14, 1976 by Principal Chief Gardner and his advisory council. E.g., id. at 445-46. In documenting the parties’ settlement, the ICC Commissioners stated that the parties had stipulated that the “[e]ntry of Final judgment ... shall finally dispose of all rights, claims or demands which [the Choctaw Nation] ... asserted or could have asserted in [its petition].... ” Id. at 451, ¶ 2.

The report produced by GAO in response to this particular petition, see Doc. 112-4 to Doc. 112-7, contained “an accounting [of the treaties, agreements and funds in which the Choctaw Nation had an interest] from July 1, 1929, to June 30, 1951,” Doc. 112-4 at 9, and “statements of disbursements made under other than treaty appropriations form July 1, 1947, to June 30, 1951.” Id. The document was divided into four parts: a summary of disbursements, an accounting under the various treaties, agreements and acts, disbursements under non-treaty appropriations and a tabulation of appropriations and funds under, or from which, the disbursements had been made.

The GAO report listed multiple categories of payments and indicated among other things the “[expenses, care and sale of timber,” Doc. 112-6 at 31, 42, 43, 48, 51, and the “[proceeds from the sale of lands, etc.,” id. at 35; e.g., Doc. 112-7 at 44-49, as well as certain interest thereon. E.g., id. at 41-42. As the Nations have asserted, however, the “[disclosure of revenues ... [in GAO’s report was] limited to warrant numbers,” Doc. 9,1 at 27, ¶ 71, dates and amounts.

That “[t]he federal government has substantial trust responsibilities toward [the Nations] ... is undeniable. Such duties are grounded in the very nature of the government-Indian relationship.” Cobell v. Norton, 240 F.3d 1081, 1086 (D.C.Cir.2001)(“Cobell VI”). The United States, however, “assumes [its] Indian trust responsibilities only to the extent it expressly accepts those responsibilities by statute.” United States v. Jicarilla Apache Nation, 564 U.S. 162, 131 S.Ct. 2313, 2325, 180 L.Ed.2d 187 (2011) (footnote omitted); e.g., United States v. Navajo Nation, 556 U.S. 287, 302, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009).

To this end, the Nations have sought an accounting for the defendants’ compliance with their trust duties imposed by the 1906 Act and have contended the trust-creating statutes are, and their right to an accounting for the pre-1946 period arises under, the American Indian Trust Fund Management Reform Act of 1994 (“1994 Reform Act”), 25 U.S.C. § 4001 et seq., and title 25, section 162a of the United States Code, which “define ‘the trust responsibilities of the United States’ with respect to tribal funds.” Jicarilla Apache Nation, 131 S.Ct. at 2325 (quotation omitted).

The 1994 Reform Act not only “recognized the federal government’s preexisting trust responsibilities,” Cobell VI, 240 F.3d at 1090 (footnote omitted), and “fiduciary duty to perform a complete and historical accounting of trust fund assets,” id. at 1102, but also “identified some of [DOI’s] ... duties to ensure ‘proper discharge of the trust responsibilities of the United States.’ ” Id. (quoting 25 U.S.C. § 162a(d))(emphasis deleted),

Its purpose

is to allow tribes an opportunity to manage tribal funds currently held in trust by the United States ..., that, consistent with the trust responsibility of the United States and the principles of self-determination, will&emdash;

(1) give Indian tribal governments greater control over the m