Fletcher v. United States

Case: 21-1625 Document: 60 Page: 1 Filed: 02/24/2022

United States Court of Appeals
for the Federal Circuit
______________________

WILLIAM FLETCHER, TARA DAMRON, RICHARD
LONGSINGER, KATHRYN REDCORN,
Plaintiffs-Appellants

v.

UNITED STATES,
Defendant-Appellee
______________________

2021-1625
______________________

Appeal from the United States Court of Federal Claims
in No. 1:19-cv-01246-LAS, Senior Judge Loren A. Smith.
______________________

Decided: February 24, 2022
______________________

JASON AAMODT, Indian & Environmental Law Group,
Tulsa, OK, argued for plaintiffs-appellants.

BRIAN C. TOTH, Environment and Natural Resources
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
by MARY GABRIELLE SPRAGUE, JEAN E. WILLIAMS.
______________________

Before PROST, TARANTO, and CHEN, Circuit Judges.

CHEN, Circuit Judge.
Case: 21-1625 Document: 60 Page: 2 Filed: 02/24/2022

2 FLETCHER v. US

Plaintiffs William Fletcher, Tara Damron, Richard
Longsinger, and Kathryn Redcorn, individual holders of
Osage headrights, filed suit against the United States in
the Court of Federal Claims (Claims Court) seeking dam-
ages resulting from breach of fiduciary duties relating to
royalties from the Osage mineral estate. Fletcher v. United
States, 151 Fed. Cl. 487 (2020) (Claims Court Decision).
Because the Claims Court incorrectly concluded that the
plaintiffs had no standing and had failed to identify a
source of money-mandating obligation as required under
the Tucker Act, we reverse the dismissal of the complaint.
We also vacate the Claims Court’s decision on the availa-
bility of a damages accounting and the striking of declara-
tions.
BACKGROUND
Congress established a reservation for the Osage tribe
in Oklahoma Territory in 1872, which, years later, was
found to have “mammoth reserves of oil and gas.” Fletcher
v. United States, 730 F.3d 1206, 1207 (10th Cir. 2013)
(Fletcher 2013). At one point, Osage County would become
“one of the largest oil producing counties in the United
States.” Osage Tribe of Indians of Okla. v. United States,
72 Fed. Cl. 629, 648 (2006) (Osage 2006). In 1906, after the
discovery, Congress passed legislation that severed the
subsurface mineral estate and placed it into trust with the
federal government as trustee. Act for the Division of the
Lands and Funds of the Osage Indians in Oklahoma Terri-
tory, and for Other Purposes, Pub. L. No. 59-321, 34 Stat.
539 (1906) (1906 Act); see Fletcher v. United States, 854
F.3d 1201, 1203 (10th Cir. 2017) (Fletcher 2017); Osage
Tribe of Indians of Okla. v. United States, 68 Fed. Cl. 322,
323 (2005) (Osage 2005).
With the 1906 Act, Congress reserved the mineral es-
tate to the tribe, to be leased with the approval and under
the regulations of the Secretary of the Interior. 1906 Act
§ 3. It also directed the Secretary to hold the royalties
Case: 21-1625 Document: 60 Page: 3 Filed: 02/24/2022

FLETCHER v. US 3

generated from the mineral estate in a trust fund and to
distribute the funds, quarterly on a pro rata basis, to tribal
members listed on an approved membership roll created
pursuant to the 1906 Act. 1906 Act § 4. Before distribu-
tion, a small portion of the royalty funds could be deducted
and retained by the tribe for tribal operations. Id.; see
Fletcher 2013, 730 F.3d at 1207–09.
The right to receive a distribution of the royalties is re-
ferred to as a “headright.” Originally, there were 2,229
headright owners, but, over the years, the original head-
rights have fractionalized through transfers to heirs and
devisees, resulting in many more headright owners. Head-
rights were transferrable to non-Osage persons and enti-
ties until 1978, when Congress “placed strict limits on the
transfers of headrights to non-Osages.” Fletcher v. United
States, 153 F. Supp. 3d 1354, 1370 n.16 (N.D. Okla. 2015)
(Fletcher 2015). Of the four Osage headright-owner plain-
tiffs, three are citizens of the Osage tribe and the fourth is
a citizen of the Ponca tribe.
A. Osage Tribe Litigation in the Claims Court
The present litigation is preceded by two other related
litigations—one by the Osage tribe and the other by indi-
vidual headright owners including the same lead plaintiff
in the present case.
The first litigation involved two consolidated suits in
the Claims Court, filed in 1999 and 2000 by the Osage tribe
on allegations that the federal government violated its duty
as trustee of the mineral estate or of the trust fund account
(collectively, the Osage Tribe litigation). 1 Osage 2006, 72

1 The Claims Court’s opinions vary in referring to
the violation as relating to the management of the “mineral
estate” or of the “trust funds.” Compare Osage 2008, 85
Fed. Cl. at 165 (“violated its duty as trustee of the Osage
mineral estate”), and Osage 2006, 72 Fed. Cl. at 631 (same),
Case: 21-1625 Document: 60 Page: 4 Filed: 02/24/2022

4 FLETCHER v. US

Fed. Cl. at 631 n.1. At one point, the Claims Court denied
the government’s motion to dismiss based on a lack of
standing. The government’s theory was that only individ-
ual headright owners suffered injury from any mismanage-
ment of trust funds because the funds were ultimately
distributed to the individuals. Osage Nation and/or Tribe
of Indians of Okla. v. United States, 57 Fed. Cl. 392, 394
(2003) (Osage 2003). The Claims Court disagreed for the
reason that the tribe was the “direct trust beneficiary” of
the “tribal trust fund,” relying on facts such as the funds
sit in the tribal trust fund account for a calendar quarter,
the tribe has an interest in the funds when sitting in the
account, and a small portion of the funds is not distributed
to individual headright owners but instead retained for
tribal operations. Id. at 395. The Claims Court also relied
on a distinction between mismanagement that occurs while
the funds are in the tribal trust fund versus mismanage-
ment “at the point of distribution of the funds to the indi-
vidual headright holders.” Id. Because the alleged
mismanagement underlying the breach of fiduciary duty
claim was “described as taking place when the funds were
within the tribal trust fund,” the court found the tribe had
a sufficient interest in and a claim to those funds to support
standing. Id.
In a denial of a second motion to dismiss, for lack of
subject matter jurisdiction under the Tucker Act and the
Indian Tucker Act, the Claims Court held that the plain
language of Section 4 of the 1906 Act establishes money-
mandating fiduciary duties owed by the government to the
tribe. Osage 2005, 68 Fed. Cl. at 327, 330, 333.

with Osage 2005, 68 Fed. Cl. at 324 (“mismanaged trust
funds of the Osage”), and Osage 2003, 57 Fed. Cl. at 393
(“breach of fiduciary duty in the mismanagement of tribal
trust funds”).
Case: 21-1625 Document: 60 Page: 5 Filed: 02/24/2022

FLETCHER v. US 5

After a ten-day trial in 2006, the Claims Court found
the government liable for breaching its fiduciary duties by
failing to collect the full amount of royalties and failing to
invest the royalty revenue. Osage 2006, 72 Fed. Cl. at 632–
35, 671. In 2008, with litigation still ongoing, a group of
individual Osage headright owners (not any of the present
plaintiffs) attempted to intervene. Osage Tribe of Indians
of Okla. v. United States, 85 Fed. Cl. 162 (2008) (Osage
2008). The Claims Court denied the motion to intervene
partly because, in its view, the individuals had no legal in-
terest in the dispute. They were not a party to the trust
relationship, which the court held “exists exclusively be-
tween the Tribe and [the government].” Id. at 170 n.6,
171–72. To the extent the individuals were arguing they
were “entitled to damages as a result of [the government’s]
breach of fiduciary duties owed directly to them, rather
than entitlement to damages as the ultimate payees of any
judgment rendered,” the Claims Court viewed such argu-
ment to be precluded by the law of the case. Id. at 170 n.6.
Accordingly, the court did not analyze whether the individ-
uals had their own trust relationship with the government
under the 1906 Act.
The tribe ultimately settled its claims with the United
States for $380 million. J.A. 127. The settlement agree-
ment stated that the tribe, “on behalf of itself and the
[h]eadright [h]olders,” waived any claim relating to the
tribe’s trust assets or resources—including the mineral es-
tate and tribal trust account—that was based on violations
occurring before September 30, 2011. J.A. 130–32. The
agreement also waived “all claims asserted, or that could
have been asserted by the Osage Tribe in the [Claims
Court] Action.” J.A. 130.
B. Individual Headright Owners’ Litigation
in the Tenth Circuit
The other litigation was filed by individual headright
owners in the Northern District of Oklahoma in 2002 (the
Case: 21-1625 Document: 60 Page: 6 Filed: 02/24/2022

6 FLETCHER v. US

Fletcher litigation). The plaintiffs included the same lead
plaintiff in this case. The focus of the claims changed over
time. Initially, plaintiffs’ claims, asserted under the Ad-
ministrative Procedure Act (APA), related to tribal voting
and election rights being tied to headright ownership and
the alienation of headrights to non-members of the Osage
tribe. Fletcher v. United States, 160 F. App’x 792, 793 (10th
Cir. 2005). A 2006 amendment to the complaint added an
APA claim based on a breach of trust duties for failure to
account for the trust funds. Fletcher v. United States, 801
F. App’x 640, 642 (10th Cir. 2020). By 2013, the failure-to-
account claim was the only remaining count, when plain-
tiffs appealed its dismissal to the Tenth Circuit. Fletcher
2013, 730 F.3d at 1208.
The single legal question on appeal was whether Osage
headright holders possessed a legal right to seek an ac-
counting of the trust fund from the Secretary of the Inte-
rior. Id. The Tenth Circuit held that the individual
headright owners did. Writing for the court, now-Justice
Gorsuch noted that the 1906 Act “clearly creates a trust
relationship—and not just a trust relationship between the
federal government and the Osage Nation, but also be-
tween the federal government and the individual Osage
headright owners.” Id. at 1209. The language of the 1906
Act requires the government to collect the royalties and
place them “to the credit of” each individual headright
owner and to disburse them to each individual headright
owner on a quarterly basis, with interest. Id. (citing 1906
Act § 4(1)–(2), 34 Stat. at 544). Therefore, the 1906 Act
“imposes an obligation” on the government “to distribute
funds to individual headright owners in a timely (quar-
terly) and proper (pro rata, with interest) manner.” Id.
The Tenth Circuit conducted additional analysis to find
that, attendant to the trust relationship between the gov-
ernment and individual headright owners, the government
has a duty under other statutes to account to the individu-
als for the daily and annual balances of money held in
Case: 21-1625 Document: 60 Page: 7 Filed: 02/24/2022

FLETCHER v. US 7

trust. Id. at 1209–12 (discussing 25 U.S.C. § 4011(a)). As
part of this analysis, the Tenth Circuit emphasized that
“the trust funds at issue in this case—collected and dis-
bursed under the terms of the 1906 Act—are being held for
the benefit of individual members of the Osage Nation.” Id.
at 1209–10. The Tenth Circuit understood that plaintiffs
would potentially use the accounting information to show
that the government “improperly diminished their pro rata
share.” Id. at 1215 (discussing diminishment in the context
of the alleged misdistribution of trust funds to non-Osage
individuals).
On remand, the district court required the govern-
ment’s accounting to include a description of each receipt
into the trust fund and the distribution of funds for an ac-
counting period starting from 2002 (when the complaint
was filed), including the date and dollar amount of each re-
ceipt and distribution; a brief description of the source of
each trust receipt; the name of the beneficiary to whom
each trust distribution was made; for headright distribu-
tions, the respective headright share of each headright
owner at the time of distribution; and, finally, the amount
of interest income generated from the tribal trust account
and the date at which such interest was credited to the ac-
count. Fletcher 2015, 153 F. Supp. 3d at 1371. The Tenth
Circuit affirmed the scope of the accounting fashioned by
the district court, rejecting the plaintiffs’ request to expand
the scope to start in 1906 and include more detail. Fletcher
2017, 854 F.3d at 1201–07. The government provided the
ordered accounting to plaintiff Fletcher in 2017.
C. Present Litigation by Individual
Headright Owners in the Claims Court
Based on allegations that the accounting revealed mis-
management of the trust fund, in 2019 Fletcher and other
headright owners filed the present suit in the Claims Court
under the Tucker Act and the Indian Tucker Act. The
plaintiffs allege they are entitled to money damages for the
Case: 21-1625 Document: 60 Page: 8 Filed: 02/24/2022

8 FLETCHER v. US

government’s breach of statutorily imposed trust obliga-
tions. The counts in the complaint are (1) a failure to pro-
vide adequate systems and controls for accounting for and
reporting trust fund balances; (2) a failure to establish
written policies and procedures or adequate staffing for
trust fund management and accounting; 2 (3) a failure to
provide accurate periodic statements of headright owners’
accounts; and (4) damages for breach of fiduciary duties.
J.A. 41–44. Under the first count, the complaint alleges
that the government collected too little interest on royalties
segregated for distribution, but before distribution actually
took place, and also overpaid gross production taxes. J.A.
42. The third count alleges that the government erred in
reporting expenses and simply adjusted the revenue state-
ment to balance the account. J.A. 43.
The Claims Court dismissed the complaint on the gov-
ernment’s motion because, in its view, (1) plaintiffs have no
standing to pursue their breach of trust claims because
they lack a legally protectable interest, Claims Court Deci-
sion, 151 Fed. Cl. at 496–97; (2) the court lacks jurisdiction
under the Indian Tucker Act and the Tucker Act because
plaintiffs (a) are not an “identifiable group of Indians,” id.
at 498–99, and (b) fail to identify a money-mandating stat-
utory or regulatory trust duty, id. at 499–501; and (3) issue
preclusion bars plaintiffs’ claims for an expanded account-
ing, id. at 501–04. The Claims Court did not address the
alleged insufficiency of the pleading, which the government
raised in a request for a more definite statement should the
claims survive dismissal for lack of subject matter jurisdic-
tion. J.A. 74, 116.

2 The plaintiffs have forfeited any challenge to the
dismissal of Count II. Oral Arg. 4:43–5:22, available at
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=
21-1625_12102021.mp3
Case: 21-1625 Document: 60 Page: 9 Filed: 02/24/2022

FLETCHER v. US 9

The Claims Court also granted the government’s mo-
tion to strike the declarations of Jim Gray and Wilson
Pipestem, which the plaintiffs submitted in support of their
argument that the settlement agreement between the tribe
and the government has no effect on the plaintiffs’ claims.
Claims Court Decision, 151 Fed. Cl. at 494–95.
The plaintiffs appeal. We have jurisdiction under 28
U.S.C. § 1295(a)(3).
DISCUSSION
We review de novo the Claims Court’s dismissal of a
complaint for lack of jurisdiction. Hopi Tribe v. United
States, 782 F.3d 662, 666 (Fed. Cir. 2015). The plaintiff
bears the burden of establishing jurisdiction by a prepon-
derance of the evidence. Id. In deciding a motion to dis-
miss for lack of subject matter jurisdiction, the court
accepts as true all uncontroverted factual allegations in the
complaint, construing them in the light most favorable to
the plaintiff. Estes Express Lines v. United States, 739 F.3d
689, 692 (Fed. Cir. 2014). We review the Claims Court’s
evidentiary rulings for abuse of discretion. Taylor v.
United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002).
I. Standing
For the plaintiffs to have standing, they must show
that they have suffered an injury in fact, which is an inva-
sion of a legally protected interest. See Friends of the
Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 180 (2000); Lujan v. Defs. of Wildlife, 504 U.S. 555,
560 (1992). In the context of the breach of trust claims, the
plaintiffs must show the existence of a trust relationship
with the government. We find that, under the 1906 Act,
such a trust relationship exists and plaintiffs have stand-
ing.
The Claims Court noted that the Osage Tribe litigation
previously before that court had decided the key underly-
ing issues and it was inclined to follow that precedent.
Case: 21-1625 Document: 60 Page: 10 Filed: 02/24/2022

10 FLETCHER v. US

Claims Court Decision, 151 Fed. Cl. at 497. Therefore, the
court repeated, the “responsibility of the government is to
the tribal trust fund account” with the “tribal trust fund
then responsible for the ultimate distribution to the indi-
vidual headright owners.” Id. (cleaned up) (quoting Osage
2003, 57 Fed. Cl. at 395). It concluded that the “plaintiffs’
claims regarding trust fund mismanagement are not ap-
propriately asserted against the government because the
government’s responsibility to correctly distribute and
manage funds is a fiduciary duty owed to the tribe—not in-
dividual tribal members.” Id. The Claims Court briefly
addressed the Tenth Circuit’s decision regarding the fidu-
ciary relationship between the government and headright
holders, noting that it viewed the decision as nonbinding
and interpreting it narrowly. Id. (stating it would “not now
judicially create additional fiduciary duties on the govern-
ment beyond the contours of the specific accounting articu-
lated by the Tenth Circuit and the Northern District of
Oklahoma”). The Claims Court did not conduct its own
statutory analysis vis-à-vis the trust duties owed specifi-
cally to individual headright owners.
We are of the same view as the Tenth Circuit that the
text of the 1906 Act plainly indicates that individual head-
right owners have a trust relationship with the United
States. Although Section 3 establishes that the mineral es-
tate is reserved to the tribe and the preamble of Section 4
describes the trust fund as belonging to the tribe, the sub-
sections of Section 4 explicitly provide that the royalties
from the mineral estate are to be placed in the trust ac-
count “to the credit of the members” and “distributed to the
individual members” in the same manner as “other moneys
held in trust” in the account. 34 Stat. at 544. Like the
Tenth Circuit, we observe that the statute specifies that
the funds are placed “to the credit of the members” “on a
basis of a pro rata division among the members of said
tribe” and provides for “said credit to draw interest” to be
Case: 21-1625 Document: 60 Page: 11 Filed: 02/24/2022

FLETCHER v. US 11

“paid quarterly to the members.” Id. 3; Fletcher 2013, 730
F.3d at 1209–10.
We reject the government’s interpretation that the
statute and the Tenth Circuit’s analysis mean that head-
right owners have only a narrow interest in the actual dis-
tribution of headright payments. Appellee’s Br. 47–52.
The government argues that activities occurring in the
fund prior to distribution (such as interest generation, pay-
ment of gross production taxes, and allocation of tribal op-
eration expenses) are not related to distribution itself and
to the headright owners’ right to their respective distribu-
tion. We agree with the plaintiffs that the government’s
obligation to them cannot begin and end essentially when
the check is cut. Such a narrow interpretation would sig-
nificantly curtail protection for headright owners and con-
tradict the nature of the trust relationship described in the
1906 Act. As the Tenth Circuit noted, and as common
sense dictates, the improper handling of the funds while
still in the tribal account can “improperly diminish[] their
pro rata share.” Fletcher 2013, 730 F.3d at 1215. The head-
right owners’ right to a proper distribution cannot be iso-
lated from the proper management of the funds.
However, we are not fully persuaded by the plaintiffs’
position either. The plaintiffs appear to advance a theory
of a hardline division in rights, whereby the tribe’s interest
is limited to the mineral estate and the leasing of it while
the individual headright owners exclusively hold the right
to the funds. Appellants’ Br. 20–27 (“[U]ltimately, the
Osage Nation has the mineral estate (and the United
States owes specific trust responsibilities to the Nation for
management of this trust resource) and the individual
headright holders have the royalties resulting from

3 Because we reach the same conclusion as the Tenth
Circuit, we find it unnecessary to address the plaintiffs’ is-
sue preclusion argument. See Appellants’ Br. 27–31.
Case: 21-1625 Document: 60 Page: 12 Filed: 02/24/2022

12 FLETCHER v. US

development of the mineral estate. The United States owes
specific trust responsibilities to the headright holders re-
garding royalty management that it simply does not owe to
the Tribe.”); see also Appellants’ Reply Br. 16–17. Contrary
to the plaintiffs’ characterization, while the Osage Tribe lit-
igation involved issues that could be characterized as tied
to the mineral estate (the failure to collect the highest
posted price in royalties from leases), it also involved issues
that could be characterized as relating to the trust fund
(the loss of interest due to a lag in the deposit of funds and
investment underperformance of the funds). Appellants’
Br. 21 n.3; see also generally Osage 2006, 72 Fed. Cl. 629.
And, although we agree that headright owners have a trust
interest in the trust fund, the statute also gives the tribe
an interest in the fund. 1906 Act § 4, 34 Stat. at 544 (“That
all funds belonging to the Osage tribe, and all moneys due,
and all moneys that may become due, or may hereafter be
found to be due the said Osage tribe of Indians, shall be
held in trust by the United States . . . .” (emphasis added));
id. (“That all the funds of the Osage tribe of Indians, and all
the moneys now due or that may hereafter be found to be
due to the said Osage tribe of Indians, . . . shall be . . .
placed to the credit of the individual members . . . .” (em-
phasis added)); id. (“That the royalty received from oil, gas,
coal, and other mineral leases . . . shall be placed in the
Treasury of the United States to the credit of the members
of the Osage tribe of Indians as other moneys of said tribe
are to be deposited . . . .” (emphasis added)); see also
Fletcher 2013, 730 F.3d at 1209 (“A small slice of royalty
income may be diverted to tribal operations . . . .”).
The question of the division of interests is prompted
partially by the fact that the prior Osage Tribe litigation
has already resulted in a significant payment of money by
the government to the tribe. That money, plaintiffs’ coun-
sel has represented, was distributed to the headright hold-
ers, including plaintiff Fletcher. Thus, there are concerns
about double recovery if individual headright owners and
Case: 21-1625 Document: 60 Page: 13 Filed: 02/24/2022

FLETCHER v. US 13

the tribe are entitled to assert overlapping (or the same)
interests in separate litigations. In addition, whether the
broad waiver provision in the Osage Tribe settlement
agreement between the tribe and the government is bind-
ing on the individual plaintiffs and precludes litigation of
some or all of their present claims may depend on what
claims “could have been asserted by the Osage Tribe.” J.A.
130. As an aside, in terms of the settlement agreement’s
effect, other factors will need to be examined, including
whether the tribe had the authority to settle and waive the
plaintiffs’ claims on their behalf. But, in any case, the issue
is not properly before us on this appeal, as the Claims
Court did not construe and apply the settlement agreement
to the plaintiffs’ claims. Appellants’ Br. 43; Appellee’s Br.
56–57.
Our holding today that a trust relationship exists be-
tween the individual headright owners and the govern-
ment and that “the 1906 Act imposes an obligation on the
federal government to distribute funds to individual head-
right owners in a timely (quarterly) and proper (pro rata,
with interest) manner,” Fletcher 2013, 730 F.3d at 1209, is
sufficient to resolve the questions presented in this appeal
on standing, as well as jurisdiction under the Tucker Act,
discussed below. We do not think the present appeal re-
quires precisely defining the respective boundaries of the
trust interests of the tribe and the individual headright
owners. Therefore, we decline to do so.
II. Subject Matter Jurisdiction
The Tucker Act confers jurisdiction on the Claims
Court over claims against the United States for money
damages. 28 U.S.C. § 1491(a)(1). The Indian Tucker Act
provides that the Claims Court has jurisdiction over such
claims against the United States by “any tribe, band, or
other identifiable group of American Indians.” 28 U.S.C.
§ 1505. During oral argument, plaintiffs’ counsel stated
there was no need to reach the question of Indian Tucker
Case: 21-1625 Document: 60 Page: 14 Filed: 02/24/2022

14 FLETCHER v. US

Act jurisdiction if the court found Tucker Act jurisdiction,
although procedural advantages might come with proceed-
ing under the Indian Tucker Act. Oral Arg. 1:38–3:28,
available at https://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=21-1625_12102021.mp3. Because we do so
find, we do not address Indian Tucker Act jurisdiction and
who constitutes an “identifiable group of Indians.”
The Tucker Act does not create substantive rights. It
is a jurisdictional provision that operates to waive sover-
eign immunity for claims premised on other sources of law,
such as a statute. United States v. Navajo Nation, 556 U.S.
287, 290 (2009) (Navajo II); 28 U.S.C. § 1491(a)(1) (includ-
ing “upon the Constitution, or any Act of Congress or any
regulation of an executive department”). However, not
every claim invoking a federal statute or regulation is cog-
nizable under the Tucker Act. United States v. Mitchell,
463 U.S. 206, 216 (1983). “The claim must be one for money
damages against the United States,” and “the claimant
must demonstrate that the source of substantive law he re-
lies upon ‘can fairly be interpreted as mandating compen-
sation by the Federal Government for the damages
sustained.’” Id. at 216–17 (quoting United States v. Testan,
424 U.S. 392, 400 (1976)).
In the context of breach of duties to American Indians,
a two-part test is used. The plaintiff “must identify a sub-
stantive source of law that establishes specific fiduciary or
other duties, and allege that the Government has failed
faithfully to perform those duties.” Navajo II, 556 U.S. at
290 (quoting United States v. Navajo Nation, 537 U.S. 488,
506 (2003) (Navajo I)). A “statute or regulation that recites
a general trust relationship” between the government and
the Indian plaintiff is not enough. Inter-Tribal Council of
Ariz., Inc. v. United States, 956 F.3d 1328, 1338 (Fed. Cir.
2020) (quoting Hopi Tribe, 782 F.3d at 667). There must
be specific statutes, regulations, or other sources of law
that “establish the fiduciary relationship and define the
contours of the government’s fiduciary responsibilities.”
Case: 21-1625 Document: 60 Page: 15 Filed: 02/24/2022

FLETCHER v. US 15

Id. (cleaned up) (quoting Shoshone Indian Tribe of Wind
River Reservation v. United States, 672 F.3d 1021, 1039–40
(Fed. Cir. 2012)); see also Mitchell, 463 U.S. at 224–28.
“If that threshold is passed, the court must then deter-
mine whether the relevant source of substantive law ‘can
fairly be interpreted as mandating compensation for dam-
ages sustained as a result of a breach of the duties the gov-
erning law imposes.’” Navajo II, 556 U.S. at 290–91
(cleaned up) (quoting Navajo I, 537 U.S. at 506). Principles
of trust law are relevant “in drawing the inference that
Congress intended damages to remedy a breach.” Id. at
291 (quoting United States v. White Mountain Apache
Tribe, 537 U.S. 465, 477 (2003)). The Supreme Court has
“consistently recognized that the existence of a trust rela-
tionship between the United States and an Indian or In-
dian tribe includes as a fundamental incident the right of
an injured beneficiary to sue the trustee for damages re-
sulting from a breach of the trust.” Mitchell, 463 U.S. at
226 (“Given the existence of a trust relationship, it natu-
rally follows that the Government should be liable in dam-
ages for the breach of its fiduciary duties.”).
As discussed in relation to standing, the 1906 Act es-
tablishes a fiduciary relationship that imposes an obliga-
tion on the federal government to distribute funds to
individual headright owners in a timely (quarterly) and
proper (pro rata, with interest) manner. This is not a gen-
eral trust relationship, but one with specific responsibili-
ties relating to a trust fund that is entirely controlled by
the government. It naturally follows that a breach of those
responsibilities should be remedied by money damages.
Therefore, allegations of mismanagement that reduced the
amount in the trust fund ultimately disbursed to headright
owners, such as a failure to collect required interest or the
improper overpayment of taxes, sufficiently establish juris-
diction under the Tucker Act. Because the Claims Court
did not recognize that the 1906 Act establishes a trust re-
lationship between the government and the headright
Case: 21-1625 Document: 60 Page: 16 Filed: 02/24/2022

16 FLETCHER v. US

owners, it erred in finding that plaintiffs failed to specify a
source of substantive law that establishes a money-man-
dating trust relationship. Claims Court Decision, 151 Fed.
Cl. at 500–01.
The government’s arguments that the plaintiffs failed
to state how the trust duties were breached specifically by
an alleged undercollection of interest or overpayment of
taxes—whether, for example, because of a failure to specify
statutory requirements for a specific interest rate or to al-
lege facts comparing actual interest collected and obligated
interest—go to the sufficiency of the complaint, not juris-
diction. The Claims Court did not address the sufficiency
of the pleading and, therefore, the issue is not properly be-
fore us in this appeal. The issue, however, is reserved for
the government to raise on remand.
III. Accounting Claim and Damages
The Claims Court also granted the government’s mo-
tion to dismiss what it characterized as plaintiffs’ claim for
“a more expansive accounting” based on issue preclusion.
J.A. 98; Claims Court Decision, 151 Fed. Cl. at 501–04. The
Claims Court explained that the Northern District of Ok-
lahoma court determined the time period and scope of the
accounting obligations for these plaintiffs, and the Tenth
Circuit affirmed. Id. at 502–03; see also id. at 504
(“[P]laintiffs do not contest that they are the same plain-
tiffs as those in the Tenth Circuit Fletcher litigation.”).
Therefore, the Claims Court found that issue preclusion
applies because the claims for an expanded accounting
were identical to those decided and affirmed in the Fletcher
litigation. Id. at 503.
The plaintiffs distinguish their request in the current
litigation as one for full damages rather than an expanded
version of the accounting they received in the Fletcher liti-
gation. See Appellants’ Br. 47. In the plaintiffs’ view, they
received the accounting they were owed as beneficiaries of
the fiduciary obligations of the government. See id. But,
Case: 21-1625 Document: 60 Page: 17 Filed: 02/24/2022

FLETCHER v. US 17

having purportedly identified breaches that mandate dam-
ages, based on that accounting, the plaintiffs argue they
are entitled to discovery on damages to determine the full
quantum owed. See Appellants’ Br. 47–48. The govern-
ment, on the other hand, appears to think the scope of the
accounting, that was the remedy in the Fletcher litigation,
should limit the scope of the damages remedy sought in
this case. See Appellee’s Br. 56.
But the harm and purpose that the two remedies are
meant to address are different. Accountings owed by a
trustee to a beneficiary are meant to “give some sense of
where money has come from and gone to” as “an assurance”
that trust funds are being handled properly. Fletcher 2013,
730 F.3d at 1212, 1215. In other words, the right to an
accounting is to aid a beneficiary’s oversight of a trustee’s
actions so that the beneficiary has the information that is
“reasonably necessary to enable them to enforce their
rights under the trust.” Id. at 1215 (cleaned up) (quoting
Restatement (Second) of Trusts § 173 cmt. c). The Tenth
Circuit noted the limited nature of what an accounting was
meant to achieve. “Put simply, a duty to account is a duty
to account, not a duty to respond to and disprove any and
all potential breaches of fiduciary duty a beneficiary might
wish to pursue once the accounting information is in hand.”
Id.; see id. at 1214–15 (balancing the plaintiffs’ need for in-
formation with the considerations of practicality and cost
on the government). Therefore, although the accounting
may reveal alleged failures by the government in fulfilling
its fiduciary obligations, the accounting does not neces-
sarily reflect or itemize the full extent of damages.
In contrast, the purpose of monetary damages is to ac-
count for the extent of the harm suffered and make an in-
jured party whole. Hence, we see no reason to
automatically constrain the scope of an accounting for dam-
ages based on the scope of the accounting that was ordered
as part of a trustee’s duty to the plaintiffs. The period and
specificity of the limited accounting granted by the district
Case: 21-1625 Document: 60 Page: 18 Filed: 02/24/2022

18 FLETCHER v. US

court does not necessarily correspond to the full period of
damages the plaintiffs might be entitled to nor provide all
of the details needed to thoroughly account for the dam-
ages. Assuming the plaintiffs’ allegations bear out, based
on the accounting evidence they have obtained, such that
the plaintiffs meet their “burden of proving specifically how
the defendant and its agents have failed in their duty to
plaintiffs,” a further accounting may be required of the gov-
ernment “for the purpose of enabling the court to determine
the amount which plaintiffs are entitled to recover.” Kla-
math & Modoc Tribes & Yahooskin Band of Snake Indians
v. United States, 174 Ct. Cl. 483, 490–92 (1966) (noting also
that discovery under the rules of the court is available to
plaintiffs in presenting their case as to liability).
That does not mean there are no limits to the infor-
mation the plaintiffs could get as part of a damages ac-
counting. Statutes of limitations, 4 waiver, forfeiture,
preclusion, and other equitable considerations may limit
the scope of the plaintiffs’ recovery and the information the
plaintiffs should receive. It is not possible nor appropriate
for us to determine, at this juncture on the case before us,
the proper limits if any on damages and thereby on the as-
sociated accounting.

4 See 28 U.S.C. § 2501 (six-year statute of limita-
tions); Consolidated Appropriations Act, 2014, Pub. No.
113-76, 128 Stat. 5, 305–06 (2014) (“[N]otwithstanding any
other provision of law, the statute of limitations shall not
commence to run on any claim . . . concerning losses to or
mismanagement of trust funds, until the affected Indian
tribe or individual Indian has been furnished with an ac-
counting of such funds from which the beneficiary can de-
termine whether there has been a loss[.]”); Chemehuevi
Indian Tribe v. United States, 150 Fed. Cl. 181, 198–99
(2020) (citing Shoshone Indian Tribe, 364 F.3d at 1346–47);
see also J.A. 21.
Case: 21-1625 Document: 60 Page: 19 Filed: 02/24/2022

FLETCHER v. US 19

IV. The Stricken Declarations
Mr. Gray, former Principal Chief of the tribe, and Mr.
Pipestem, former lead counsel for the Osage Tribe litiga-
tion, provided declarations that plaintiffs submitted with
their response to the government’s motion to dismiss, to
support the argument that the settlement agreement be-
tween the tribe and the government did not affect the
plaintiffs’ claims. Claims Court Decision, 151 Fed. Cl. at
494. The Claims Court struck these declarations based on
the “No Cooperation” provision of the settlement agree-
ment, which states that the tribe and its officers and em-
ployees “shall not aid, assist, or support in any way any
individual or party in the development, initiation, or litiga-
tion of a claim against the United States that the Osage
Tribe has otherwise waived in this Agreement.” Id. at 494–
95 (emphasis added) (quoting J.A. 144–145). The Claims
Court did not analyze whether the headright owners’
claims in this litigation are ones that the tribe had the
power to waive in their agreement with the government.
Therefore, the Claims Court did not properly determine
whether the “No Cooperation” provision applies. We va-
cate the striking of the declarations.
Because the Claims Court did not apply the settlement
agreement in dismissing the complaint, we need not decide
the question of whether the declarations can be considered.
We note, however, there may be a circularity problem with
declarations like these—when they are being used to prove
that the settlement agreement does not apply to the pre-
sent claims, but whether the declarations can be relied on
depends on whether the settlement agreement applies to
the present claims.
CONCLUSION
For the foregoing reasons, we reverse on the issues of
standing and Tucker Act jurisdiction, vacate on the issues
of the availability of a damages accounting and the striking
Case: 21-1625 Document: 60 Page: 20 Filed: 02/24/2022

20 FLETCHER v. US

of declarations, and remand for further proceedings con-
sistent with this opinion.
REVERSED, VACATED, AND REMANDED
COSTS
Costs to the plaintiffs.