Quapaw Tribe of Oklahoma v. United States

In the United States Court of Federal Claims
Nos. 12-431L, 12-592L, 13-51X

(Filed: September 12, 2016)

************************************** *
GRACE M. GOODEAGLE, et al., *
Plaintiffs, *
v. *
*
THE UNITED STATES, *
Defendant. *
************************************** * Indian Tribe Claims; Breach of Trust
QUAPAW TRIBE OF OKLAHOMA, * Obligations; Partial Summary
Plaintiff, * Judgment; Law of the Case; Binding
v. * Effect of Government-Sponsored
* Accounting Reports; Establishing
THE UNITED STATES, * Government Duties to Tribes;
Defendant. * Congressional Reference; Statute of
************************************** * Limitations in Tribal Claims; Res
THOMAS CHARLES BEAR, et al., * Judicata.
Claimants, *
v. *
*
THE UNITED STATES, *
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.

Brian M. Collins, with whom were John C. Cruden, Assistant Attorney General, and Peter
K. Dykema, Environment and Natural Resources Division, U.S. Department of Justice,
Washington, D.C., Kenneth Dalton, Shani N. Walker, and Karen Boyd, U.S. Department
of Interior, Thomas Kearns and Rebecca Saltiel, U.S. Department of the Treasury, Of
Counsel, for Defendant.
 OPINION AND ORDER ON
CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT

WHEELER, Judge.

This case involves many significant claims against the United States for breaches of
fiduciary duty, among other things. Both parties assert that multiple claims can be resolved
through summary judgment. The Quapaw Tribe relies heavily on the claim that an
accounting document known as the Quapaw Analysis is binding upon the Government, and
thus asserts that its claims grounded on this document should be granted through summary
judgment. The Government disputes the binding authority of the Quapaw Analysis entirely
and asserts multiple defects in the Quapaw Tribe’s claims that bar it from recovery. As
explained below, the Court finds that the Quapaw Analysis is binding as to its factual
findings only, but not as to the valuation, extrapolation, and calculation models it contains
to calculate damages. In addition, the Court finds no merit in any of the arguments for
summary judgment presented by the Government. For these reasons, Plaintiffs’ motion for
partial summary judgment regarding the Quapaw Analysis is GRANTED IN PART, but in
all other respects, the parties’ cross-motions for summary judgment are DENIED.

Factual and Procedural Background

Due to the breadth of issues involved in the Plaintiffs’ and Defendant’s cross-
motions for partial summary judgment and the importance of the Quapaw Analysis for
these cross-motions, it is first necessary to describe the background of the Quapaw
Analysis and the case up to this point.

Following the discovery of valuable minerals on Quapaw lands in the 19th century,
the federal government began exercising control over the leasing of Quapaw lands.
Goodeagle v. United States, 111 Fed. Cl. 716, 719 (2013). In 1921, Congress passed a
statute granting complete federal authority over mineral leasing of specific allotments of
Quapaw land. Id. Subsequently, the federal government controlled a significant portion
of Quapaw land. Quapaw Tribe of Oklahoma v. United States, 111 Fed. Cl. 725, 728
(2003). This case arises out of the alleged federal mismanagement of these Quapaw lands
resulting in a breach of trust.

In 2002, the Quapaw Tribe commenced legal action in the U.S. District Court for
the Northern District of Oklahoma during which the Quapaw Tribe requested an
accounting of the federal management of the Tribe’s trust assets in accordance with the
Consolidated Appropriations Act of 2012. Id. (citing Consolidated Appropriations Act,
2012, Pub. L. No. 112-74, 125 Stat. 786 (2011)). In 2004, the Quapaw Tribe entered into

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a settlement agreement with the United States whereby the parties agreed that Quapaw
Information Systems, Inc. (“QIS”), a not-for-profit Tribal entity, would prepare an analysis
of the Government's management of Tribal assets (“the Quapaw Analysis”) and, as a result,
the Tribe agreed to dismiss its lawsuit. Id. at 729.

Importantly, upon completion of the Quapaw Analysis, the Tribe would be deemed
to have been furnished with an accounting of the Tribe's trust assets under the meaning of
the Consolidated Appropriations Act. Def.’s Resp. Ex. 1, Settlement Agreement art I, § 4
(hereafter “Settlement”). In conjunction with the Quapaw Analysis satisfying the statutory
requirement for an accounting, “[t]he Tribe agrees to waive any rights it has to obtain from
the United States an accounting of its [Tribal Trust Fund Accounts] and any of its other
trust assets, and for an asset management history of its trust assets for all time periods up
to and including the effective date of this Settlement Agreement…” Id. Pursuant to the
Settlement, any claim for an asset history management of the Tribe’s trust assets under the
Consolidated Appropriations Act of 2012 was dismissed with prejudice. Id.

Between 2004 and 2010, QIS investigated and prepared the Quapaw Analysis. The
team performing this review undertook a comprehensive examination of files and
documents made available by the Office of Historic Trust Accounting (“OHTA”) and other
agencies to determine whether the Department of Interior met its fiduciary obligations to
the Tribe and individual trust beneficiaries. Quapaw, 111 Fed. Cl. at 729. Throughout the
preparation of the Quapaw Analysis, the government actively oversaw and reviewed the
documents prepared by QIS. The QIS contract provided for specific government oversight.
Def.’s Resp. Ex. 1, QIS Contract § C.1 (f) (hereafter “Contract”). QIS was required to
produce the “Quapaw Analysis Methodology Briefing”, the “Quapaw Analysis
Preliminary Factual Findings Report”, the “Draft Quapaw Analysis”, and the “Quapaw
Analysis” and submit each to the Department of Interior. Id. at C.1 (f) (1) (a-b). QIS would
then hold a “work session” with Interior personnel to discuss the documents. Id. at C.1 (f)
(1) (c). Finally, OHTA would determine whether or not additional information was needed
based partially upon “the extent to which the Document Collection Plan supports the
Quapaw Analysis Methodology Briefing.” Id. at C.1 (f) (2) (d) & (h) (2) (b). OHTA
provided comments and criticisms on the Quapaw Analysis and determined that it was “an
acceptable final deliverable.” Pls.’ Mot. for Partial Summ. J., Ex. 2, Estes Dep. Tr. at
64:10-16. On November 19, 2010, the Department of Interior determined the Quapaw
Analysis was complete and the Plaintiffs subsequently filed complaints relying heavily on
the contents of the Quapaw Analysis. Goodeagle, 111 Fed. Cl. at 720.

In the Quapaw Analysis, QIS identified a variety of examples of mismanagement
of tribal trust funds. Some instances identified in the Quapaw Analysis involved factual
findings of lack of a determinate payment or specific unauthorized transactions with tribal

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funds. Pls.’ Mot. at 4. For example, the Government failed to pay yearly educational
payments of $1,000 from 1932 until the present. Quapaw Tribe of Oklahoma, 123 Fed. Cl.
673, 676 (2015). Other instances of mismanagement claimed in the Quapaw Analysis
involved damage calculations based on hypothetical or anticipated loss using models to
value real property and minerals and extrapolation or calculation models to estimate the
loss in income. E.g., Pls.’ Mot. at 8-10. For example, QIS anticipated that it would cost
$57,000 to return Catholic Mission Land Cemetery to trust status. Id. at 8.

On April 6, 2015, the Quapaw Tribe filed a motion for partial summary judgment
citing the Quapaw Analysis as grounds. Quapaw, 123 Fed. Cl. at 673. In the Government’s
May 28, 2015 opposition to the Tribe’s motion for partial summary judgment, the
Government attempted to refute the factual findings of the Quapaw Analysis. Id. at 673,
678. On October 1, 2015, the court granted the motion for partial summary judgment on
three claims. Id. at 678. First, this Court held that the Quapaw Tribe was entitled to
$83,000 in unpaid educational payments pursuant an 1833 treaty with the Quapaw Tribe.
Id. at 676. The Court based this decision on the factual finding of the Quapaw Analysis
that no educational payments had been made between 1932 and 2015. Id. at 675. Second,
this Court held that the Quapaw Tribe was entitled to $31,680.80 in unauthorized
disbursements from its trust accounts. Id. at 677. The Court relied on the fact that the
Quapaw Analysis identified and confirmed that the unauthorized disbursement occurred.
Id. Third, this Court held that the Quapaw Tribe was entitled to the return of $70,330.71
in other unauthorized transactions. Id. at 678. Again, the Court based this decision on the
factual finding of the Quapaw Analysis that transactions posted to the Tribal Trust
Accounts could not be accounted for. Id.

Regarding the evidentiary role of the Quapaw Analysis, this Court made clear that
the Government would not be permitted to refute the findings of the Quapaw Analysis. Id.
Given the importance of whether the Quapaw Analysis is binding for the current cross-
motions for partial summary judgment, the Court includes the exact language used in the
October 1, 2015 decision.

The Court also rejects the Government's attempt to take
issue with the Quapaw Analysis …. Th[is] accounting
endeavor[] [was] undertaken with the full support and
cooperation of the United States. There comes a point when
finality must be applied. If there are newly discovered
documents that cause the Government to question the
conclusions reached in the Quapaw Analysis …, the
Government should have produced those documents earlier.
The public's interest in ending decades-old disputes with

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 Native American Tribes outweighs the continued expenditure
of time and resources to account for every last nickel. Allowing
the Government to continue opposing the … Quapaw Analysis
is contrary to the purpose and spirit of the legislation and
settlement agreement that caused [it] to occur.
….
The Court will not permit Defendant to impeach this
detailed report, when it could have produced documents or
raised it concerns at a much earlier time. The Quapaw Analysis
is binding upon the United States.

Id.

On June 27, 2016, the Plaintiffs filed another motion for partial summary judgment
seeking judgment in their favor on the remaining claims determined in the Quapaw
Analysis. Pls.’ Mot. at 4. The Government filed its response in opposition on July 28,
2016 arguing that the Quapaw Analysis is not binding. Def.’s Resp. at 2. On August 15,
2016, the Plaintiffs filed their reply in support of their motion for partial summary
judgment. The Government filed its cross-motion for partial summary judgment on July
15, 2016 claiming that the Plaintiffs were barred from recovery for many of their claims
for various defects. In their August 15, 2016 response in opposition to the Government’s
motion for partial summary judgment, the Plaintiffs relied heavily on facts found in the
Quapaw Analysis, once again putting the authority of the Quapaw Analysis at issue. On
September 1, 2016, the Government filed its reply in support of its motion for partial
summary judgment, again challenging the authority of the Quapaw Analysis.

Discussion

Summary judgment is appropriate where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” RCFC 56(c).
A fact is “material” if it might significantly alter the outcome of the case under the
governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving
party bears the initial burden of showing that there exists no genuine dispute as to any
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment will
not be granted if the “evidence is such that a reasonable [trier of fact] could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248. The Court’s function is not to weigh
the evidence and determine the merits of the case presented, but to determine whether there
is a genuine issue of material fact for trial. Id. at 249; see Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

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A. The Quapaw Analysis

In breach of trust cases involving tribes, such as this one, the importance of a proper
accounting cannot be overstated. Shoshone Indian Tribe of Wind River Reservation v.
United States, 364 F.3d 1339, 1345-48 (Fed. Cir. 2004). Congress explicitly prohibits the
statute of limitations from commencing to run until the tribe has been given an accounting.
Pub. L. No. 112-74. Without an accounting of trust management, a tribe is unable to
determine whether any mismanagement has occurred. The Quapaw Tribe waived their
statutory right to this accounting in exchange for the QIS Contract which produced the
Quapaw Analysis. Settlement, art I, § 4. This analysis is the primary basis upon which the
Plaintiffs may build their breach of trust claim. Thus, it is critical to clearly establish the
legal effect of the Quapaw Analysis and ensure that the Quapaw Analysis serves the same
function as the accounting which the Tribe waived.

Given the robust and pervasive disagreement about the legal effect of the Quapaw
Analysis, the Court will address all points of contention between the parties and provide
clear guidelines about which aspects of the Quapaw Analysis are binding for future matters
in this case. The Court holds that the factual findings of the Quapaw Analysis are binding
upon the Government, but the valuation, extrapolation and calculation models of the
Quapaw Analysis are not, prima facie, binding upon the Government.

1. The “law of the case” doctrine does not require an appellate decision

The law of the case is a judicially created doctrine aimed at preventing the
relitigation of issues. Jamesbury Corp v. Litton Indus. Prod., Inc., 839 F.2d 1544, 1550
(Fed. Cir.), cert. denied, 488 U.S. 828 (1988). “The doctrine requires a court to follow the
decision of a question made previously during the case.” Id. This doctrine is strictly
applied when an appellate decision has been made, and a trial court may not depart from
appellate decisions on remand. Id.; Exxon Corp. v. United States, 931 F.2d 874, 877 (Fed.
Cir. 1991). Law of the case should not be applied to previous trial court decisions except
when to do so would be “inconsistent with substantial justice.” Hudson v. Principi, 260
F.3d 1357, 1363-64 (Fed. Cir. 2001). There are times when a trial court may depart from
its own prior decisions, however “[o]rderly and efficient case administration suggests that
questions once decided not be subject to continued argument…” Jamesbury, 839 F.2d at
1550. Therefore, the law of the case doctrine should be applied to a trial court’s own
previous decisions in an effort to prevent redundant and continued argument, but not be
applied when to do so would result in injustice. Jamesbury, 839 F.2d at 1150; Hudson, 260
F.3d at 1364.

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 Relying on Exxon and Hudson, the Government claims that the October 1, 2015
decision cannot be law of the case because it has not been subject to appellate review.
Def.’s Resp. at 12. This argument is simply not true. The Government suggests that
because a trial court is not strictly bound by its previous decisions that it cannot treat its
previous decisions as binding. Even by the authority the Government cites, the law of the
case doctrine may be applied to previous trial court decisions at the discretion of the court
in the interest of avoiding relitigation. Not only may a court treat its previous decisions as
binding, but it is highly encouraged to do so barring extraordinary circumstances.
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988). The intuitive rule
that “when a court decides upon a rule of law, that decision should continue to govern the
same issues in subsequent states in the same case” supports a default application of the law
of the case to a trial court’s own previous decisions in a case. Id. at 815-16. “[C]ourts
should be loathe to [revisit prior decisions] in the absence of extraordinary circumstances
such as where the initial decision was ‘clearly erroneous and would work a manifest
injustice.’” Id. (citing Arizona v. California, 460 U.S 608, 618, n. 8 (1983)). For example,
in Athey v. United States, the court declined to treat its prior judgment as law of the case
only after determining that it had erroneously interpreted the Back Pay Act. 123 Fed. Cl.
42, 52 (2015).

Therefore, not only is this Court permitted to treat its prior decisions as law of the
case, it should do so unless it has identified some clear reasoning error in the prior decision.
It is worth noting that one function of applying law of the case to a trial court’s own prior
decision is to avoid lengthy, laborious re-evaluation of previously decided legal issues.
Here, the parties were forced to undergo exactly the redundancy which this doctrine was
designed to avoid.

2. Some part of the Quapaw Analysis is binding

The October 1, 2015 decision did, in fact, make at least some part of the Quapaw
Analysis binding upon the Government as clearly indicated by the plain language, “[t]he
Quapaw Analysis is binding upon the United States.” Quapaw, 123 Fed. Cl. at 678. This
Court addressed three reasons for this decision, all of which remain in force.

First, the Quapaw Analysis was undertaken with the “full support and cooperation”
of the Government. Id. The extent of the Government’s involvement in the preparation of
the Quapaw Analysis is described at length in the QIS Contract. See Contract, C.1. At
multiple points in the preparation of the Quapaw Analysis, the Government had the
opportunity to evaluate the project by engaging in work sessions and discussions,
reviewing the contents and methodology of the analysis, determining the sufficiency of
criteria used in the analysis, limit the spending of QIS, and accept final delivery of the
analysis. Id. Despite all this, the Government denies any oversight of the analysis by

7
relying on language in the Contract stating that the Quapaw Analysis will not be deemed
an accounting “endorsed” by the Interior. Def.’s Resp. at 4 (citing Contract,. C.1 (b)). This
provision in the Contract, in which the Government attempts to evade responsibility for the
Quapaw Analysis, is overcome by the sheer extent to which the Government did actually
have some role in the preparation of the Quapaw Analysis. The Government cannot now
wash its hands of the Quapaw Analysis and claim that the analysis was not its “work
product” simply because it was conducted by members of the Tribe under contract with the
Government. Contra Def’s Resp. at 4-5.

Second, finality must be applied. Quapaw, 123 Fed. Cl. at 678. The various claims
involved here originated over a century ago. One goal of the Quapaw Analysis was to
finally allow the Quapaw Tribe access to information in order to resolve century-old
disputes. In fact, completion of the QIS Contract was dependent upon Government
determination that QIS had acquired enough information to complete the Quapaw
Analysis. “If OHTA determines…that additional information is not needed after its review
of the Quapaw Analysis Methodology Briefing and the Document Collection Plan…the
Contractor shall complete the Quapaw Analysis and this Contract shall be deemed fully
complete.” Contract, C.1 (f) (1) (d). The Government cannot prolong this process even
further by continuing to uncover countless new sources of refuting evidence, especially
when it previously determined that QIS had sufficient information to complete the Quapaw
Analysis. It is contrary to the interest of the parties, the interest of the public and spirit of
the QIS Contract.

Third, and most importantly, the Quapaw waived their statutory right to an
accounting in exchange for the QIS Contract. Quapaw, 123 Fed. Cl. at 678. As discussed
above, an accounting of trust assets is a fundamental component of a tribe’s ability to
identify any mismanagement. It is at odds with the spirit of the Consolidated
Appropriations Act to allow the Quapaw Analysis to act as an accounting, yet not be
binding in any way. The Government claims the Quapaw Analysis is mere hearsay and
not even admissible. Def.’s Resp. at 17. To agree would reduce the Quapaw Analysis to
a meaningless document and make the terms of the Settlement nearly incomprehensible.
The Government’s primary argument in response is that it did not intend to be bound by
the Quapaw Analysis. The Government relies heavily on a provision of the Settlement
which states that by entering into the Settlement “Defendants do not waive any defenses
they may have in response to claims that the Tribe may assert in the future.” Art. I, § 6.
Not only would this single sentence not be sufficient to overcome the considerations
weighing in favor of finding the Quapaw Analysis binding, but the provision may be read
consistently with finding the Quapaw Analysis binding. The Government did not waive
any future defenses by entering into the QIS Contract, but even a finding that it did waive
future defenses does not require finding the work product of the Contract, called an
“accounting” within the meaning of the Consolidated Appropriations Act, not binding on

8
the Government. Settlement, Art. I, §4. Further, the Contract language refers to the
Government and the “Contractor” acknowledging that the Government does not limit its
potential defenses to the conclusions reached by QIS. Contract, C.1 (b). But, the Quapaw
Tribe itself was not a party to the Contract and so not bound by this acknowledgment. Pls.’
Reply at 5.

For the reasons previously addressed in the October 1, 2015 decision, the Quapaw
Analysis remains binding on the Government.

3. The Scope of the Quapaw Analysis’ Binding Authority: Factual Findings

This Court reasserts its prior holding that the Quapaw Analysis is binding on the
Government, but now finds it necessary to clarify the scope of the Quapaw Analysis’
binding authority. According to the October 1, 2015 decision, the factual findings of the
Quapaw Analysis are binding on the Government, but not the valuation, extrapolation and
calculation models employed in the Quapaw Analysis to calculate damages. Further, the
Court now declines to hold that the results of models in the Quapaw Analysis are binding
on the Government.

This Court granted the Plaintiffs’ motion for summary judgment on the basis of
factual findings of the Quapaw Analysis. 123 Fed. Cl. at 678. Regarding the $83,000 in
owed educational payments, this Court relied on the fact that the Quapaw Analysis “found
no record that any educational payments required by the 1833 Treaty had been made from
1932 to the present.” Id. at 676. Regarding the $31,680 in unauthorized disbursements
from trust accounts, the Court relied on the fact that the Quapaw Analysis confirmed this
amount in actual disbursements. Id. at 677. Lastly, the Court relied on the Quapaw
Analysis’ identification of unverified transactions posted to the trust accounts in awarding
Plaintiffs $73,330. Id. at 678. In each instance, the Court relied on some factual finding
in the Quapaw Analysis. Further, in explaining its reasoning, the Court specifically
disallowed the Government’s introduction of new documents that challenged the
accounting of particular funds and transactions. Id. The Government could not, and still
cannot, challenge the Quapaw Analysis’ findings regarding particular payments, transfers,
rental collection, fund disbursement or other like transactions.

However, the Quapaw Analysis also alleges damages based upon more than factual
determinations of lack of payment or unauthorized disbursement. It contains valuation
models of property and minerals, extrapolation models to calculate the estimated losses on
many lots based upon actual losses on a few lots, and models to determine appropriate
alternative rental and lease rates. See Pls.’ Mot. at 7-35. There is substantial disagreement
among the parties regarding whether these models accurately represent the Tribe’s loss.
To illustrate just one such dispute, there is disagreement regarding whether certain land

9
could be suitably leased for agricultural crop land or grazing land, and what the value of
those leases would be. Def.’s Resp. Ex. 27-28; Contra Pls.’ Mot. at 8. The Government’s
expert witnesses contend that the valuation model used in the Quapaw Analysis is
unreliable and grossly inflates the potential value of the land. Def.’s Resp. at 22.

A tribe’s statutory right to an accounting is meant to provide it with a historical
accounting in order to determine whether a loss has occurred. Pub. L. No. 112-74;
Shoshone, 364 F.3d at 1345-50. The Consolidated Appropriations Act allows a tribe to
gather information about losses to trust funds such as the collection of payments, depositing
of money, and assessment of penalties. Id. at 1350-51. The accounting could entail a
calculation of damages if the damages can be readily determined by evaluating the
information found in these factual records. Osage Tribe of Indians of Oklahoma v. United
States¸ 68 Fed. Cl. 322, 335 (2005). For example, in Osage the Court held that when the
Government was required to list the highest posted price on leases to determine the
appropriate royalty payments for all leases, the identification of the highest posted price
could be used to calculate further damages because it was a necessary component of the
accounting in the first place. Id. (stating “This information was manifestly a part of the
accounting required to be undertaken by the defendant as trustee.”). The statutory right to
an accounting does not include a right to valuation, extrapolation and calculation models.
Unlike in Osage, the specific damage calculations in the Quapaw Analysis were not
required in order to determine whether there was a loss to trust funds in the first place.

Thus, the considerations that led this Court to find the factual findings of the
Quapaw Analysis binding in the October 1, 2015 decision are less convincing when applied
to the analysis’ valuation, extrapolation and calculation models.

First, the Quapaw Analysis was meant to provide the Quapaw Tribe with “‘an
accounting of [the Tribe’s Tribal Trust Fund Accounts and any of its other trust assets]
from which the [Tribe] can determine whether there has been a loss’ within the meaning
of Pub. L. No. 108-7 (2003), and the similar statutes passed each year since 1990.”
Settlement, Art. I, §4. The Consolidated Appropriations Act is meant to provide the tribe
with a historical accounting to determine whether there had been mismanagement of their
trust funds. Shoshone, 364 F.3d at 1350; Osage, 68 Fed. Cl. at 335. Whether there has
been mismanagement is a factual determination. In the October 1, 2015 decision, this
Court emphasized that the Government was bound by the findings in the Quapaw Analysis
because to hold otherwise is “contrary to the purpose and spirit of the legislation and
settlement agreement.” Quapaw, 123 Fed. Cl. at 678. However, it is not contrary to the
purpose of the legislation and settlement agreement to allow the parties to present evidence
regarding the proper valuation, extrapolation and calculation models. The Court’s interest
in ensuring that the Quapaw Tribe not give up their statutory right for something less than
that right is not at issue.

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 Second, the interest in finality is satisfied by holding only the factual findings
binding. The factual findings in the Quapaw Analysis may be used to establish that there
was mismanagement of trust funds which aids significantly in the resolution of this case.

Finally, the QIS Contract suggests that the Government had less oversight of the
models used to calculate damage than it did over the collection of documents and
determinations of fact. See Contract, C.1 (f). During Phase I, the Government had to make
a determination that sufficient information was collected by QIS in order to move forward
with the Analysis. Id. at C.1 (f) (1) (d). The Government would assess whether more
information was needed to complete the analysis, which is a factual determination. Id.
After this determination, the Quapaw Analysis was completed by QIS. Id. Thus, while
the Government had clear and explicit opportunity to review the factual findings of the
Quapaw Analysis, it is less clear that it had the same opportunity to review the valuation,
extrapolation and calculation models. Whether the Government did actually review those
models used in the Quapaw Analysis could be further addressed at trial.

For these reasons, this Court holds that only the factual findings of the Quapaw
Analysis will be binding on the Government. The Government will not be permitted to
dispute the factual findings of the Quapaw Analysis, but may present evidence challenging
the valuation, extrapolation or calculation models used in the Quapaw Analysis to calculate
damage based upon those factual findings.

4. Expert Testimony Regarding the Quapaw Analysis

Moving forward in the resolution of this case, it is worth clarifying what kind of
expert testimony the Government may introduce to challenge the Quapaw Analysis. The
Government may not introduce expert testimony to impeach the factual record of the
Quapaw Analysis, as the factual record may not be challenged by experts generally.
Brooke Group Ltd. V. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993).
However, the Government may introduce expert testimony to dispute the valuation,
extrapolation and calculation models employed in the Quapaw Analysis. The Quapaw
Tribe argues that the Government should not be able to introduce any evidence attacking
the Quapaw Analysis. The Tribe argues that it “[does] not have the resources to prepare
another accounting analyzing the documents produced for the first time in discovery in this
litigation.” Pls.’ Reply at 12. The Court agrees that the Quapaw Tribe should not have to
prepare another accounting, but does not agree that responding to the Government’s
challenges regarding the models used in the Quapaw Analysis would require it to do so.
As noted above, there is less evidence of Government oversight regarding the models used
to calculate damages. The Government convincingly argues that if it cannot challenge the
models used, then the “United States handed a blank check to the QIS Team
[and]…delegated to the Tribe the absolute right to unilaterally dictate the amount of money

11
the United States owes to the Tribe.” Def.’s Resp. at 6. For these reasons, the Government
may challenge the valuation, extrapolation and calculation models used to calculate
damages at trial.

B. Individual Claims in the Cross Motions for Summary Judgment

The parties assert that many claims in this case are ripe for summary judgment. The
Quapaw Tribe rests its motion for partial summary judgment on the binding authority of
the Quapaw Analysis. After finding that the valuation, extrapolation and calculation
models are not binding on the Government, the Tribe’s motion for partial summary
judgment is DENIED. The Government presents a litany of arguments attempting to show
that many of the Plaintiffs’ claims are barred, seeking summary judgment. None of these
arguments are valid and, thus, the Government’s motion for partial summary judgment is
likewise DENIED. The Court will address the issues involved in the cross-motions for
partial summary judgment in turn.

1. The Quapaw Tribe’s Motion for Partial Summary Judgment

The Quapaw Tribe moves for partial summary judgment on “the remaining claims
determined in the Quapaw Analysis.” Pls.’ Mot. at 3. It relies on the October 1, 2015
decision as grounds for claiming that the entirety of the Quapaw Analysis is binding. If
the Quapaw Analysis is binding in its entirety, then there would be no dispute of fact and
summary judgment would be proper. RCFC 56(c). However, as discussed above, the
Government is not bound by the valuation, extrapolation or calculation models used in the
Quapaw Analysis. Of the claims for which the Quapaw Tribe is seeking partial summary
judgement, most of them explicitly refer to the use of one of these models. See Pls.’ Mot.
at 8-10, 23-25, 27, 30-38. Extrapolation models were used to determine the total chat
income loss. Id. at 38. Valuation models for rental rates were used to determine town lot
rental losses. Id. at 31-36. A “rental enterprise model” was used to compute the lost
agricultural leasing income. Id. at 30. A “sophisticated production model” was used to
determine losses associated with Industrial Park. Id. at 26. A calculation and valuation
model was used to determine the anticipated cost of returning the Catholic Mission Land
Cemetery to the Tribe. Id. at 23. The Government challenges the validity of all of these
models, thus asserting genuine disputes of fact. Def.’s Resp. at 16-39.

The use of modeling to compute the damages for these claims is generally pervasive.
So much so, that this Court cannot grant partial summary judgment on any of the claims
due to the extensive factual disagreements surrounding these claims. The parties must be
given the opportunity to present evidence regarding the models, either expert testimony
regarding the validity of the models themselves or testimony regarding the Government’s
oversight or approval of the models used in the Quapaw Analysis.

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 2. Establishing a Money-Mandating Duty in Quapaw and Goodeagle

The Government claims that it is entitled to partial summary judgment in its favor
regarding all the claims brought by the Quapaw Tribe and Goodeagle because “plaintiffs
have failed to identify a money-mandating duty for any of their claims” required to invoke
jurisdiction in this Court. Def.’s Mot. at 8 (Goodeagle) (emphasis added). To establish
jurisdiction under the Indian Tucker Act, a tribe must “identify a substantive source of law
that establishes a specific fiduciary or other duties, and allege that the Government has
failed faithfully to perform those duties.” United States v. Navajo Nation, 556 U.S. 287,
290 (2009). If that threshold is met, the tribe must then show that the relevant source of
law can be fairly interpreted as requiring payment of money damages for breach of that
duty. Id. at 290-91. The Government claims that Goodeagle has failed to identify any
substantive law that establishes a specific duty. Def.’s Mot. at 9 (Goodeagle). The
Government also claims that the Quapaw Tribe has failed to identify a substantive law that
establishes a specific duty to ground its claim of loss of tribal sovereignty. Def.’s Mot. at
5 (Quapaw).

The Quapaw Tribe and Goodeagle successfully respond by referring to the
“extensive network of federal statutes and regulations” that concern the Government’s
fiduciary duties to tribes, which the Plaintiffs assert were discussed in the Quapaw
Analysis. Pl.’s Resp. at 8 (Quapaw). The citation list is extensive. In support of its claim
regarding losses on the Catholic Forty, Goodeagle cites 25 U.S.C. §§ 397, 402, & 3715 and
25 C.F.R. § 171. To support its claim regarding losses on agricultural leases, Goodeagle
cites 25 C.F.R. § 171. In support of its claim regarding losses on town lot leases,
Goodeagle cites 25 C.F.R. §§ 131, 162, & 171; 25 U.S.C. 2218, and Rules and Regulations
Governing the Department of the Interior in its Various Branches, part 4 (February 26,
1907). In support of its claim of loss of tribal sovereignty, the Quapaw Tribe cites the
Indian Land Consolidation Act and 25 U.S.C. 2205, 2209, & 2216. The list continues.
Pl.’s Resp. at 10-40 (Goodeagle); Pl.’s Resp. at 8-18 (Quapaw). More citations to
substantive law can be found in the Quapaw Analysis itself. See Quapaw Analysis at 134-
55 (2010) (Quapaw Tribe, Dock. No. 14-1).

The Government attempts to refute many of the Plaintiffs’ citations by arguing that
certain statutes referred to, such as the Indian Mineral Leasing Act and the Consolidated
Resolution Act of 2010, cannot be fairly interpreted as money-mandating or suffer some
other defect. Def.’s Reply at 3-6 (Quapaw); Def.’s Reply at 13-16 (Goodeagle). However,
summary judgement should not be granted if a reasonable trier of fact could find for the
nonmoving party. Anderson, 477 U.S. at 248. Given the array of citations to substantive
law plausibly grounding a money-mandating duty and the Government’s failure to address
each citation, the Government has not met its burden of showing that there is not a single
genuine dispute of fact.

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 3. Establishing a Duty in Bear

The Government also argues that Bear has failed to identify a duty breached by the
Government concerning the Catholic Forty or unleased lots. Def.’s Mot. at 3 (Bear). For
a congressional reference case, such as Bear, the plaintiff must show that the Government
breached a duty and there exists no enforceable legal remedy. Menominee Indian Tribe of
Wisconsin v. United States, 39 Fed. Cl. 441, 457-58 (1997); White Sands Ranchers of New
Mexico v. United States, 14 Cl. Ct. 559, 565 (1988). The Government claims that it owes
no duty to the Tribe to ensure it receives mineral royalties from the Catholic Forty since
the Catholic Church was the fee simple owner of the land. Def.’s Mot. at 4 (Bear). Bear
responds that the Government breached its duty in transferring the land to the Catholic
Church in the first place and further breached its duty by not ensuring the land reverted
back to the Tribe once it was no longer used as a school. Pl.’s Resp. at 5, 9 (Bear). The
Government also claims that it had no duty to ensure that all the town lots and agricultural
lands are leased. Def.’s Mot. at 6 (Bear). Bear responds that its claims are based upon
breach of the Government’s duty of care to secure adequate leases and collect rents on
leased lands. Pl.’s Resp. at 10-18 (Bear). Bear further asserts that the Government sets up
a “straw man” by falsely characterizing Bear’s claims as a demand for the Government to
lease all lands. Id. at 19.

Setting aside the Government’s uncharitable representation of the Plaintiff’s claims,
the parties’ filings expose substantial disputes of facts regarding whether the Government
had a duty of care which it breached. First, the parties disagree about whether the
Government had the authority to transfer land without the Tribe’s authority. Def.’s Reply
at 5 (Bear); contra Pl.’s Resp. at 6 (Bear). Second, the parties disagree about whether the
land transfer to the Catholic Church was a fee simple or a reversionary transfer of land so
long as the land was used for a school. Def.’s Reply at 6 (Bear); contra Pl.’s Resp. at 6
(Bear). There are factual disagreements about whether the town lots and agricultural lands
were inadequately leased based on the valuation models used in the Quapaw Analysis.
Def.’s Reply at 9 (Bear); contra Pl.’s Resp. at 10, 16 (Bear). These factual disagreements
affect the question of the Government’s duty. Therefore, summary judgment is not
appropriate.

4. CERCLA’s effect on recovery in Bear

For a congressional reference case to succeed, there cannot exist an alternative
adequate legal remedy for the loss claimed. White Sands, 14 Cl. Ct. at 565. The
Government argues that Bear’s claim for natural resources damages is not ripe because the
Comprehensive Environmental Response Cleanup and Liability Act (“CERCLA”) is an
adequate legal remedy. Def.’s Mot. at 7 (Bear) (citing 42 U.S.C. § 9601). The
Government suggests that Plaintiffs may not bring a claim against the Government until

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the clean-up efforts on the site are complete. It cites a Ninth Circuit case as support stating
that until the cleanup is complete damages cannot be measured. Def.’s Mot. at 7 (Bear)
(citing Alaska Sport and Fishing Ass’n v. Exxon Corp., 34 F.3d 769,772 (9th Cir. 1994)).
It further argues that any relief this Court could offer would be duplicative as CERCLA
provides recovery for all losses associated with the damage. Def.’s Reply at 2 (Bear)
(citing H.R. REP No. 99-253, pt. 4, at 50 (1985) (“[T]he total amount of damages may
include…the value of all the lost use of the damaged resources…”).

This argument fails for several reasons. First, this Court agrees with Bear that
CERCLA is in no way an adequate legal remedy. After beginning in 1984, cleanup is
estimated to be complete in approximately 2040. Pl.’s Resp. at 25 (Bear), Ex. 2, Meyer
Dep. at 20. The Tribe has experienced, and will continue to experience, measurable loss
while cleanup is underway. Second, CERCLA provides remedy for damage to, or loss of,
natural resources, and the costs of “damage assessment or restoration, rehabilitation, or
acquisition for the same release and natural resource.” 42 U.S.C. § 9607 (f) (1). Contrary
to what the Government claims, damages are only recoverable under CERCLA for interim
loss of use of the resource, not all loss. Id.; New Mexico v. General Elec. Co., 467 F.3d
1223, 1244 (10th Cir. 2006) (damages are recoverable for “interim loss of use.”) (emphasis
added). Many of Bear’s claims go beyond the loss of use of natural resources, such as the
loss of rents, diminution of land value, and loss of traditional hunting practices. Pl.’s Resp.
at 26 (Bear). The question of whether these kinds of losses are recoverable during
CERCLA cleanup efforts cannot be resolved via summary judgment. Finally, this Court
has already ruled that the Tribe’s breach of trust claims are not pre-empted by CERCLA.
“Plaintiffs' claim rests on the Government's breaches of duties and obligations that made
the EPA cleanup necessary. Accordingly, Plaintiffs' fifth cause of action is not preempted
by CERCLA.” Goodeagle, 111 Fed. Cl. at (2013).

Thus, the Government is not entitled to summary judgment on Bear’s claim for
natural resources damages.

5. Statute of Limitations in Quapaw and Goodeagle

The statute of limitations does not commence to run on any tribal breach of trust
claim until the tribe has been furnished with an accounting. Pub. L. No. 112-74. The
Federal Circuit has limited the tolling of the statute of limitations to claims of
mismanagement after funds were actually collected and to losses to trust resulting from the
Government’s failure to timely collect amounts owed. Shoshone, 364 Fed. Cir. at 1350.
Notice of a breach of trust cannot be achieved without a final accounting, and thus claims
that depend on identifying failures to appropriately collect amounts owed based on actual
leases should be tolled until a final accounting is completed and furnished to the tribe. Id.
at 1348.

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 On July 16, 2013, this Court dismissed the claims by the Quapaw Tribe and
Goodeagle which were not grounded in actual leases. Quapaw, 111 Fed. Cl. at 733;
Goodeagle, 111 Fed. Cl. at 722. This Court held that Plaintiffs’ claims were “timely as to
allegations relating to actual leases, but not timely as to hypothetical leases” because an
accounting would not shed light on hypothetical, nonexistent leases. Id. The reasoning of
the Court was similar to that in Shoshone. The final accounting is not necessary to put the
Quapaw Tribe on notice regarding claims of entirely hypothetical leases. As a result,
claims regarding hypothetical leases, or suboptimal leases, were moved to the
Congressional Reference case, Bear. Pl.’s Resp. at 21 (Quapaw).

The Government now asserts that all of the Quapaw Tribe and Goodeagle’s claims
relating to undercollection on leases are not timely because they are based only on
hypothetical leases. Def.’s Mot at 4-5 (Goodeagle); Def.’s Mot. at 6 (Quapaw). The
Plaintiffs contend that the Government has simply ignored the repeated references to actual
leases. Pl.’s Resp. at 19 (Goodeagle). The Quapaw Tribe argues that the undercollection
on leases claims that remain a part of Goodeagle and Quapaw are based upon actual leases.
Id.; Pl.’s Resp. at 21 (Quapaw). The Quapaw Tribe lists various leases upon which its
claims are based and refers to many locations in the Quapaw Analysis which also refer to
actual leases. Pl.’s Resp. at 11-16, 19-25, 31-33, 37 (Goodeagle); Pl.’s Resp. at 21
(Quapaw). Given that whether a claim is based upon actual leases is a vital determination,
there is clearly a relevant dispute of fact. The Quapaw Tribe has done enough to cast doubt
upon the Government’s assertion that none of the Plaintiffs’ claims are based on actual
leases.

The Government also relies heavily on the fact that the Quapaw Analysis determines
losses on leases not investigated by QIS by extrapolating the life-cycles of a few leases.
Def.’s Mot. at 6-9 (Quapaw). It claims that the Quapaw Tribe cannot “extrapolate from
actual leases in two lease-cycles to all leases for all lease-cycles…Extrapolation lands
Plaintiff squarely within the Shoshone bar.” Def.’s Reply at 9-10 (Quapaw). The Court is
not convinced. The extrapolations made during the Quapaw Analysis were to actual, albeit
unknown, leases. Shoshone bars the tolling of time for hypothetical, non-existent leases,
but there is a difference between hypothetical, non-existent leases and actual, unknown
leases. The Government is correct that this Court will not grant summary judgment in the
Tribe’s favor on behalf of these extrapolations, but it will also not find them untimely. The
Government’s argument is especially unconvincing given that the reason why the
extrapolation was necessary was because the Government limited QIS’s access to actual
leases. Pl.’s Reply at 22 (Quapaw). “Multiple requests were made to several [Department
of Interior] entities prior to the conclusion of the last delivery for particular
documents…The Project Team received no response to certain of these requests…”
Quapaw Analysis at 3-4. The Government cannot now try to bar the Tribe’s claims due to
the extrapolation after causing the need for the extrapolation in the first place.

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 Thus, the Government is not entitled to summary judgment on the basis of the statute
of limitations.

6. Res Judicata in Goodeagle

In another attempt to bar Goodeagle’s claims, the Government asserts that the
doctrine of res judicata prevents Goodeagle from claiming damages for royalty
undercollection for lead, zinc, and other minerals between 1922 and 1966. Def.’s Mot. at
13 (Goodeagle). The doctrine of res judicata entails that a second suit will be barred if
there exists a prior suit in which “(1) there is identity of parties (or their privies); (2) there
has been an earlier final judgment of the merits of the claim; and (3) the second claim is
based on the same set of transactional facts as the first.” Jet, Inc. v. Sewage Aeration Sys.,
222 F.3d 1360, 1362 (Fed. Cir. 2000). According to well-established principles of res
judicata, the first element requires that the parties’ interests be adverse. Penda Corp. v.
United States, 44 F.3d 967, 972 (Fed. Cir. 1994); Restatement (Second) of Judgments § 38
(1982). The purpose of this requirement is to ensure that the parties had the opportunity to
present evidence regarding specific issues in response to another. Id. at cmt. a.

In 1937, Goodeagle’s predecessors filed suit against mining companies for failure
to pay mineral royalties. Whitebird v. Eagle Picher Co., 258 F.Supp. 308 (N.D. Okla.
1966). The Government intervened “on behalf of itself and the individual members of the
Quapaw Tribe.” Def.’s Mot. at 12 (Goodeagle). The suit resulted in a stipulation resolving
the claims. Id. While the Court has reservations about whether most of the elements of
res judicata apply here, that the parties were not adverse in the previous litigation is the
most serious defect. The Government intervened on behalf of Goodeagle’s predecessors
and, thus, were not adversaries. The Government cannot point to any particular issue where
the Government and Goodeagle’s predecessors were at odds in the prior litigation. The
Government claims that parties need not be direct adversaries so long as there is a “close
or significant relationship between successive defendants” even if previously on the same
side of a litigation. Def.’s Reply at 2 (Goodeagle) (citing Gambocz v. Yelencsics, 468 F.2d
837, 841 (3rd Cir. 1972). The Restatement of Judgements sheds light on what kind of
relationship would suffice, “[t]his relation arises between defendants who are parties to a
cross-claim, between a defendant and an impleaded third-party defendant, and between
parties who have been interpleaded.” Restatement (Second) of Judgments § 38, cmt. a. The
Government was simply not in a similar relationship to Goodeagle’s predecessors during
the 1937 litigation, and surely not in an adverse relationship.

Thus, the Government is not entitled to summary judgment in its favor regarding
Goodeagle’s undercollection of mineral royalties claim based on Res Judicata.

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 7. Educational Payments in Quapaw

Finally, the Government seeks summary judgment in its favor on the educational
payments because the Indian Claims Commission Act (“ICCA”) requires bringing treaty
claims existing prior to 1946 within 5 years. Def.’s Mot. at 2-3 (Quapaw) (citing Indian
Claims Commission Act, Pub. L. No. 79-726, 60 Stat. 1049 (1946)). The Quapaw Tribe
correctly points out that this exact issue was already decided by this Court in the October
1, 2015 decision in favor of the Tribe. Pl.’s Resp. at 6 (Quapaw); Quapaw, 123 Fed. Cl. at
678. This Court held that the Quapaw Tribe’s claim regarding educational payments was
preserved until an accounting was completed in 2010. Quapaw, 123 Fed. Cl. at 677. In
the Government’s Reply, it stated that it “does not seek to re-litigate the bases for summary
judgment on the education payments this Court has already rejected.” Def.’s Reply at 9
(Quapaw). The Court will not rehash old arguments. Not only is the Government not
entitled to summary judgment regarding the educational payments, this Court already
granted summary judgment in favor of the Tribe nearly a year ago.

Conclusion

The case involves a complex and lengthy history of facts. In particular, the validity
of the models used in the Quapaw Analysis is at the heart of many of the disputes between
the Quapaw Tribe and the Government. The Court will GRANT IN PART Plaintiffs’
motion as to the factual findings in the Quapaw Analysis, but in all other respects,
Plaintiffs’ motion is DENIED. The Government’s motion for partial summary judgment
is also DENIED. Although the Government asserts many varied grounds for summary
judgment, some of which border on being frivolous, none of them demonstrates the lack
of material fact dispute needed for summary judgment.

IT IS SO ORDERED.

s/Thomas C. Wheeler____
THOMAS C. WHEELER
Judge

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