IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Case No.

______________________

HOMER FLUTE, ROBERT SIMPSON, JR., THOMPSON FLUTE, JR., and DOROTHY WOOD, on behalf of themselves and others similarly situated, Plaintiffs,

v. THE UNITED STATES OF AMERICA, THE DEPARTMENT OF THE INTERIOR, and THE BUREAU OF INDIAN AFFAIRS, Defendants.

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

1.

Plaintiffs file this Complaint seeking an accounting of those monies the United States of

America solemnly agreed to pay to each of Plaintiffs ancestors as reparations for a massacre of Native American citizens at Sand Creek, Colorado by members of the federal army.

PARTIES 2. Plaintiffs are each descendants of certain bands of Cheyenne and Arapaho Indians who

were victims of the United States massacre at Sand Creek, Colorado on November 29, 1864 (herein the Sand Creek Massacre). Plaintiffs reside in Oklahoma, and are each members of a federally recognized Indian Tribe. 3. Defendant United States of America (herein sometimes United States) is and was at all

times relevant to this Complaint, the government with exclusive control over the military officers who committed acts of genocide, torture, mutilation, harassment and intimidation against Plaintiffs ancestors. 4. Defendant Bureau of Indian Affairs (herein BIA), or its progenitor, was originally

created by Defendant United States, and placed within Department of the Army. In 1849, Defendant BIA was transferred to Defendant Department of the Interior. 5. As of 1849, Defendant Department of the Interior (herein DOI) assumed responsibility

for Indian affairs. DOI is believed to have, since 1866, controlled and held in trust reparations owed to Plaintiffs and their Ancestors for the Sand Creek Massacre. Upon information and belief, DOI is currently in control of the reparations, and has not distributed them to the proper recipients. DOI never accounted to Plaintiffs or their Ancestors for its management, control, or distribution of the reparations owed to the Plaintiffs and their Ancestors. JURISDICTION AND VENUE 6. Plaintiffs claims arise under the Appropriation Acts for Defendant DOI. Pub. L. 101-

512, 104 Stat. 1915, 1930 (1990); Pub. L. No. 102-154, 105 Stat. 990, 1004 (1991); Pub. L. 102381, 106 Stat. 1374, 1389 (1992); Pub. L. No. 103-138, 107 Stat. 1379, 1391 (1993); Pub. L. No. 2

103-332, 108 Stat. 2499, 2511 (1994); Pub. L. No. 104-134, 110 Stat. 1321, 1321-175 (1996); Pub. L. No. 104-208, 110 Stat. 3009, 3009-197 (1996); Pub. L. No. 105-83, 111 Stat. 1, 17 (1997); Pub. L. No. 105-277, 112 Stat. 2681, 2681-251 (1998); Pub. L. No. 106-113, 113 Stat. 1501, 1501-A153 (1999); Pub. L. No. 106-291, 114 Stat. 922, 939 (2000); Pub. L. No. 107-63, 115 Stat. 414, 435 (2001); Pub. L. No. 108-7, 117 Stat. 11 (2003); Pub. L. No. 108-108, 117 Stat. 1241 (2003); Pub. L. No. 108-447, 118 Stat. 2809 (2004); Pub. L. No. 109-54, 119 Stat. 499 (2005); Pub. L. No. 110-161, 121 Stat. 1844 (2007) Pub. L. No. 111-88, 123 Stat. 2904 (2009). The Appropriations Acts are a series of acts, beginning in 1990, waiving the United States sovereign immunity and deferring accrual of potential claims until an Indian beneficiary receives a meaningful accounting. Shoshone Indian Tribe of Wind River Reservation v. United States, 364 F.3d 1339 (Fed. Cir. 2004). Plaintiffs claims also arise under 5 U.S.C. 702 and 706, and 28 U.S.C. 1343, 1346, 1361 and 1362. This Court has jurisdiction by reason of these aforementioned laws and under 28 U.S.C. 1331. 7. Venue is appropriate in this Court under 28 U.S.C. 1331 and 1346 because this is a

civil action against the United States arising under the laws and treaties of the United States, members of the Plaintiff class are located here, the Sand Creek Massacre occurred here, and the United States is amenable to suit here. FACTS Defendants Hollow Promises to Plaintiffs Ancestors 8. Plaintiffs ancestors belonged to peaceful bands of the Cheyenne and Arapaho Tribes.

These bands were party to the 1861 Treaty of Fort Wise, in which Defendant United States solemnly promised To protect the said Arapahoes and Cheyennes in the quiet and peaceable 3

possession of the said tract of land so reserved for their future home, and also their persons and property thereon. . . Treaty of Fort Wise art. 4, Feb. 18, 1861, 12 Stat. 1163. 9. On or about June 27, 1864, Territorial Governor and Superintendent of Indian Affairs

John Evans conspired with Colonel John Chivington to plan a campaign against these peaceful Indians. Evans issued a proclamation stating . . . I direct that all friendly Indians keep away from those who are at war, and go to places of safety. Friendly Arapahoes and Cheyennes belonging on the Arkansas River will go to Major Colley, U.S. Indian agent at Fort Lyon, who will give them provisions, and show them a place of safety . . . 10. Major Edward Wynkoop, a major in the United States Army, traveled to Smoky Hill

River on or about September 6, 1864 to read the Cheyennes and Arapahoes Governor Evans proclamation. The Cheyenne and Arapaho tribal leaders agreed to travel with Major Wynkoop to the territorial capitol of Denver to assure Governor Evans of the Tribes peaceful intentions. 11. Thus, on or about September 28, 1864, Cheyenne and Arapaho leaders Bull Bear, One-

Eye, Left Hand, Little Raven, White Antelope, and Black Kettle personally reiterated to Governor Evans that the Tribes had no intention to hurt any whites and favored peace. 12. At the meeting, Governor Evans informed the tribal leaders that he was not interested in

making peace and that, to prove their peaceful intentions, the Tribes should move near Fort Lyon and cooperate with military officials by relaying information and scouting out Indians combating whites. 13. Colonel John Chivington, a colonel in the United States Army and commander of the

First Colorado Cavalry and Third Colorado Cavalry, told the tribal leaders at the same meeting

that his policy was to fight them until they lay down their arms and submit to military authority. 14. After the September 1864 meeting, Major Wynkoop told the Cheyenne and Arapaho

Tribes that they could relocate the Tribes villages closer to Fort Lyon in order to prevent further difficulties with whites. 15. Major Wynkoop issued a report on October 8, 1864, to General Samuel Curtis stating that

bringing the Indian villages under his control would ensure their cooperation. 16. Shortly thereafter, a council was held in Denver, and the chiefs of the certain bands of

Cheyenne and Arapaho stated that they were friendly to the whites, had always been, and that they desired peace. 17. Governor Evans and Colonel Chivington advised the chiefs to repair to Fort Lyon and

submit to whatever terms the military commander there should impose. This was done by the Indians, who were treated somewhat as prisoners of war, receiving rations, and being obliged to remain within certain bounds. Defendants Lawless Behavior Culminating in the Massacre, Genocide, and Torture of Plaintiffs Ancestors 18. On or about April, 1862, Defendants placed Colonel Chivington in command of the First

Colorado Cavalry. While at his post, Chivington reportedly declared, I have come to kill Indians, and believe it is right and honorable to use any means under God's heaven to kill Indians. 19. Major Wynkoop was removed from command of Fort Lyon on or about November 5,

1864, and replaced by Major Scott J. Anthony. Major Wynkoops removal was predicated on beliefs that he was too friendly with the Indians. On information and belief, said belief stemmed 5

from Major Wynkoops policy of allowing the Arapahoe to trade within the post and from a report that Major Wynkoop took twenty soldiers to an Arapahoe camp to protect the tribal citizens after learning of a large incoming party of Utesalthough the Ute attack ultimately was a false alarm. 20. 21. Major Anthonys orders were to keep the Indians away from Fort Lyon. Shortly after Major Anthony assumed command of Fort Lyon, the Cheyenne, under

Black Kettle, arrived at Fort Lyon. 22. Major Anthony informed Black Kettles band that he could not issue them rations until he

received orders authorizing such action. Until authorization was received, however, Major Anthony suggested the Tribe camp at Sand Creek where they could hunt bison. Major Anthony disarmed Black Kettles bands, leaving them only with aboriginal weapons for hunting. 23. Black Kettle complied and his band of the Cheyenne settled at the Smoky Hill Crossing

of Sand Creek. 24. Within the same month the Indians were disarmed, and on or about November 14, 1864,

Colonel Chivington issued marching orders to the Colorado Third, sending them, along with three companies of the Colorado First, from Denver towards the Arkansas River and then to Fort Lyon to prepare for and commence what would become the Massacre at Sand Creek. 25. Until this point, the Colorado Third was chided as the Bloodless Third because it

appeared they would reach the end of their hundred-day enlistment without engaging in any battle.

26.

Along his march towards Fort Lyon, Chivington took precautions to prevent the Indians

from learning of his approach. Travel and mail along the roads were forcibly halted, and guards were placed around the ranch of Colonel Bent, the former Indian agent there. 27. On the march, Chivington also commented on how he long[ed] to be wading in gore at

Sand Creek. Other officers under Chivingtons command talked about the scalps they would take and how they would be arranged and displayed. 28. While marching towards Fort Lyon, Chivington is reported to have joked that Chief Left

Hand, and not Major Wynkoop, had actually been in charge of Fort Lyon. 29. Unaware of Colonel Chivingtons plans, on November 26, 1864, Major Wynkoop

journeyed to Kansas in an attempt to convince authorities with the United States Army to institute humane policies towards the Indians. Major Wynkoop obtained two letters of support, one from Lieutenant Joseph A. Cramer, First Colorado Cavalry, and the other from twenty-seven local citizens living along the Arkansas River. 30. Around noon on November 28, 1864, Colonel Chivington and his soldiers arrived

unannounced at Fort Lyon. Immediately, Colonel Chivington erected a cordon of pickets around the post and ordered that no one would be allowed to leave, under penalty of death. 31. Major Anthony greeted Colonel Chivington and openly stated that he agreed with

Chivingtons plan to massacre the Indians camped at Sand Creek; he felt the Indians should be punished, adding that he would have attacked them long ago if he had the force. 32. It is reported that some of the United States inferior officers objected to the massacre

plan. Captain Silas Soule, along with Lieutenants Cramer and Baldwin tried to dissuade Major Anthony and Colonel Chivington from the massacre. 7

33.

In response, Major Anthony stated that some Indians ought to be killed and that he

had been only waiting for a good chance to pitch into them. Colonel Chivington threatened Capitan Soule for his opposition to the massacre. 34. Lieutenant Cramer attempted to convince Colonel Chivington to abandon the massacre.

Colonel Chivington is quoted as telling Lieutenant Cramer that he believed it honorable to use any means under God's heaven to kill Indians that would kill women and children, and that men like Major Wynkoop and Lieutenant Cramer should not be in United States service. The Massacre 35. Colonel Chivington issued marching orders for eight o'clock in the evening on November

28, 1864, the same day he arrived at Fort Lyon. 36. Colonel Chivington issued the order to between 675 and 700 United States troops from

the Colorado Third, Colorado First, and 125 Fort Lyon Colorado First troops. Among other armaments, the cavalry also carried four pieces of United States artillery and twelve-pound mountain howitzers owned by Defendant United States. All of these weapons were used in the Massacre. 37. Colonel Chivington and his army arrived outside the Indians camp on Sand Creek at

sunrise on November 29, 1864. Black Kettle, Chief of the encampment, flew an American flag, with a white flag beneath it above his tent, signifying that the encampment was under the United States protection and under a flag of truce. 38. Upon arrival at Sand Creek, Colonel Chivington dispatched Lieutenant Luther Wilson

with three Companies to cut off a herd of horses from the village. With the herd cutoff,

effectively preventing the use of horses for defense or escape, the first shots were fired on the unsuspecting Indians. 39. As the shooting commenced, John Smith, an Indian trader who was in the village with his

wife waived a white flag and advanced towards the troops, hoping to dissuade them. The troops fired at Smith; some troops yelled that he was no better than an Indian. 40. With the United States military firing on the Sand Creek encampment, Chief White

Antelope ran towards the troops and tried to convince them to cease fire. As shots rang out, the elderly Cheyenne Chief stood in the middle of the village with his arms folded, signifying that the Indians at Sand Creek did not want to fight the United States troops. Unarmed, White Antelope was shot down in the bed of the creek. The Plaintiffs still have the bullet hole-ridden blanket Chief White Antelope wore when he was murdered. 41. As the shooting intensified, the Indians attempted to flee. Many ran up the creek bed,

where the bank offered some protection from the soldiers bullets. Those Indians frantically began digging into the ground to make holes in which to hide. Approximately two hundred soldiers surrounded those Indians seeking to hide mostly unarmed women and children and slaughtered them. 42. As the Massacre progressed, the United States Cavalry scattered in different directions,

chasing down small parties of Indians trying to escape. 43. 44. The Massacre was over by 3 o'clock in the afternoon of November 29, 1864. The exact number of dead is unknown, but eyewitnesses stated that two-thirds of the dead

were women and children.

The Bloody Aftermath 45. Simply murdering the Indians was not enough; next, the soldiers began looting, pillaging,

and scalping Plaintiffs ancestors remains. 46. 47. Indians fingers and ears were cut off and made into jewelry. According to eye-witnesses, Colonel Chivingtons soldiers cut dead Indians bodies open,

mutilated them, cut out private parts, and clubbed and knocked the brains out of the heads of women and children. 48. The body of White Antelope was completely mutilated. The soldiers scalped him and cut

off his nose, ears, and testicles. His scrotum was reportedly later used as a tobacco pouch. A child, only a few months old, was thrown into the feed box of a wagon and, after being carried some distance, left on the ground to perish. 49. On the evening of November 29, 1864, Colonel Chivington wrote a dispatch to General

Samuel Curtis reporting that he attacked a village of nine hundred to one thousand warriors, killed between four hundred and five hundred Indians, and all of this was done nobly. 50. The same day, Colonel Chivington also dispatched a letter to the editor of the Rocky

Mountain News in Denver. His dispatch told of his victory in what he characterized as one of the most bloody Indian battles ever fought on the plains. 51. On December 1, 1864, Colonel Chivington marched towards the Arkansas River,

pursuing Little Raven and a smaller band of Arapahoe. Not finding his quarry, he returned to Fort Lyon on December 10, 1864. 52. On December 16, 1864, Colonel Chivington gave a full account of the Massacre to

General Curtis in Denver. Chivington admonished the inferior officers who disapproved of the 10

Massacre. Colonel Chivington claimed he found several scalps of whites and various articles of clothing belonging to whites in the Indians possessions. There was no evidence to confirm Chivingtons claims. 53. On December 31, 1864, Major Wynkoop, who had arrived at Fort Riley in Kansas and

was lobbying for humane treatment of the Indians, received word of the Massacre. 54. Major Wynkoop was ordered to retake command of Fort Lyon and to investigate the

Massacre. Major Wynkoop took eyewitness affidavits from various officers and soldiers who were present at the Massacre. Those records have been preserved. 55. On January 4, 1865, Colonel Chivington resigned his commission. On January 8, 1865,

Colonel Chivington was mustered out of service and replaced by Colonel Tom Moonlight. 56. January 10, 1865, the United States House of Representatives required the Committee on

the Conduct of War to inquire into and report all the facts connected with the Massacre. Those reports have been preserved. 57. 58. On January 21, 1865, Major Anthony resigned his commission. Beginning on February 1, 1865, a military commission in Colorado investigated Colonel

Chivingtons conduct. 59. Between March 13 and 15, 1865, the Committee heard testimony from Colonel

Chivington, Major Anthony, and a number of others connected with the Massacre The Treaty of Little Arkansas 60. In response to the Massacre, the United States entered into the Treaty of Little Arkansas.

In Article 6 of the treaty , the United States agreed to pay reparations to the surviving families of

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those who suffered at Sand Creek, as follows: The United States being desirous to express its condemnation of, and, as far as may be, repudiate the gross and wanton out-rages perpetrated against certain bands of Cheyenne and Arapahoe Indians, on the twenty-ninth day of November, A. D. 1864, at Sand Creek, in Colorado Territory, while the said Indians were at peace with the United States, and under its flag, whose protection they had by lawful authority been promised and induced to seek, and the Government being desirous to make some suitable reparation for the injuries then done, will grant three hundred and twenty acres of land by patent to each of the following-named chiefs of said bands, viz: Moke-ta-ve-to, or Black Kettle; Oh-tah-ha-ne-so-weel, or Seven Bulls; Alik-ke-home-ma, or Little Robe; Moke-tah-vo-ve-hoe, or Black White Man; and will in like manner grant to each other person of said bands made a widow, or who lost a parent upon that occasion, one hundred and sixty acres of land, the names of such persons to be ascertained under the direction of the Secretary of the Interior: Provided, That said grants shall be conditioned that all devises, grants, alienations, leases, and contracts relative to said lands, made or entered into during the period of fifty years from the date of such patents, shall be unlawful and void. Said lands shall be selected under the direction of the Secretary of the Interior within the limits of country hereby set apart as a reservation for the Indians parties to this treaty, and shall be free from assessment and taxation so long as they remain inalienable. The United States will also pay in United States securities, animals, goods, provisions, or such other useful articles as may, in the discretion of the Secretary of the Interior, be deemed best adapted to the respective wants and conditions of the persons named in the schedule hereto annexed, they being present and members of the bands who suffered at Sand Creek, upon the occasion aforesaid, the sums set opposite their names, respectively, as a compensation for property belonging to them, and then and there destroyed or taken from them by the United States troops aforesaid. Treaty of Little Arkansas, 14 Stat. 703 at 889 to 890, Art. 6 (signed Oct. 14, 1865, and ratified by the United States Senate May 22, 1866). 61. Six months after the Treaty of Little Arkansas was ratified by the Senate, the United

States entered into the Medicine Lodge Treaty, 15 Stats. 593 (Signed Oct. 28, 1867, ratified by the United States Senate on July 26, 1868).

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62.

The Medicine Lodge Treaty was sought by the United States to open a railroad right of

way. The Medicine Lodge Treaty did not change the terms of the reparations from the Treaty of Little Arkansas. The Medicine Lodge Treaty was never properly concluded. 63. On information and belief, no reparations have ever been paid to the Massacre

descendants. Upon information and belief, the United States has held the various moneys and lands which are to be paid in reparations in trust for the benefit of the families of the survivors of the Sand Creek Massacre. Until an accounting is completed, it is not possible for Plaintiffs to determine whether there has been a loss to them because of the Defendant DOIs control and management of the reparations. Congressional Appropriation and the Inappropriate Management of Property and Funds 64. On July 26, 1866, Congress appropriated money to reimburse the members of the bands

of Arapaho and Cheyenne Indians who suffered at Sand Creek. On information and belief, the money appropriated was not sufficient to compensate those individual members of certain bands, who were to be identified by the Secretary of the Interior under the terms specified in the Treaty. 65. Of the money appropriated by Congress, only some part of it was alleged to be disbursed

by the Defendant DOI. None of those monies were distributed to individual Indians, as required by the Treaty of Little Arkansas but, at the direction of Special Indian Agents, those monies were instead disbursed to the Cheyenne and Arapaho Tribes of Indians jointly with the Apache Tribe of Indians. 66. The money that was not paid to the Tribal entities was not distributed to individual

Indians, but was returned to surplus on August 30, 1872. 13

67.

On information and belief, no effort has been made by Defendants to identify those

individuals to whom reparations are owed, as required by the Treaty of Little Arkansas. 68. Although appropriated by Congress for that specific purpose, none of the fund making up

the reparations has been distributed to individual Indians, as required by the Treaty of Little Arkansas. 69. On information and belief, some of the lands within the reparation fund were given to

some individuals in the State of Colorado, in accordance with Article V of the Treaty of Little Arkansas. Aside from the transfer of those lands which may or may not have occurred no other effort was made to transfer lands to individual Indians, as required by the Treaty of Little Arkansas. No accounting of any disbursements of lands within the reparation fund has ever been conducted. CLASS ACTION ALLEGATIONS 70. This action is brought as a class action, pursuant to Fed. R. Civ. P. 23, on behalf of all

descendants of the victims of the Sand Creek Massacre. 71. The putative members of the Class are so numerous that joinder of all the individual

members is impracticable. Based on extensive genealogical research, it is believed there are more than 15,000 putative class members at this time. 72. The claims of Plaintiffs and the Class raise common questions of law and fact that These

predominate over any questions affecting only individual putative Class Members. questions include, but are not limited to, the following:

a. The total amount reparations (including goods, land, and money) appropriated and held in a trust fund to pay the reparations; b. The amount of reparations that were appropriated but not paid; 14

c. The identification of those persons to whom reparations should be paid; d. To whom, if anyone, reparations were paid; e. The amount of interest or other income collected on the reparations that were appropriated; f. Whether interest collected or income earned on the reparations was paid to any member of the Class; g. To whom, if anyone, interest collected on the reparations were paid; h. Why DOI failed or refused to pay the reparations; i. Why DOI failed or refused to identify those persons entitled to receive the reparations; j. What plans, if any, DOI has to remedy its failure to pay reparations; k. Into what account the money or income from the fund of reparations were deposited; l. When the money or income from the fund of reparations were deposited; m. Whether the reparation fund has been or continues to be managed in accordance with the statutory or regulatory duties requiring the protection of the corpus of trust funds from loss; n. Whether DOI mismanaged and/or misappropriated the reparations due to Plaintiffs and their Ancestors; o. Whether DOI diverted the reparations due to Plaintiffs and their Ancestors for other things benefiting DOI, Defendant United States, or a Third Party; p. Whether the reparations owed to Plaintiffs for a United States war crime were instead diverted to actions of war or conflict aimed at Indians or others; q. Whether DOI considered its trust duties to Plaintiffs and their Ancestors, as expressed, inter alia, in Seminole Nation v. United States, 25 U.S.C. 162a, and various other federal authorities when it controlled and managed the reparations owing to Plaintiffs and their Ancestors; r. What reparations are currently controlled or managed by DOI; and s. What amount of reparations is owed to each individual Class Member. 73. Plaintiffs claims are, in fact, identical to the claims of the Class and are based upon the

same factual and legal theories. Specifically, each Class Member is entitled to receive a share of the reparations Defendant United States promised by treaty to transfer in order to repudiate the

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gross and wanton out-rages perpetrated against certain bands of Cheyenne and Arapahoe Indians, on the twenty-ninth day of November, A. D. 1864, at Sand Creek, in Colorado Territory . 74. Plaintiffs fairly and adequately represent the interests of the Class. Plaintiffs are

committed to prosecute this action vigorously and have retained competent counsel experienced in class action litigation of this nature. Plaintiffs are members of the Class and do not have interests antagonistic to, or in conflict with, other members of the Class with respect to this litigation or claims being raised herein. 75. A class action is superior to other available methods for the fair and efficient adjudication

of this controversy. The prosecution of separate actions by individual Class members could create a risk of inconsistent and varying adjudications, establish incompatible standards of conduct for Defendants, and/or substantially impair or impede the ability of Class members to protect their interests. 76. A class action will result in an orderly and expeditious administration of this controversy

and of Plaintiffs and the Class Members claims, and it will save the Court and the parties time, effort, and expense, as well as assure uniformity of decisions. 77. action. /// /// /// Plaintiffs do not anticipate any difficulty in the management of this litigation as a class

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FIRST CLAIM FOR RELIEF AND SUPPORTING FACTUAL ALLEGATIONS (Breach of the Federal Trust Responsibility) 78. 79. Paragraphs 1 through 77 are incorporated by reference. Defendants as trustee for the Plaintiffs benefit owe to Plaintiffs and to all members of

the Class the duty to ensure that the obligations of the United States under the Treaty of Little Arkansas have been complied with. 80. Pursuant to the Treaty of Little Arkansas, Defendants agreed to pay reparations to

Plaintiffs Ancestors for the Massacre. 81. Pursuant to the 1866 Indian Appropriations, 14 Stat. 255 (July 26, 1866), Congress

appropriated funds to pay reparations to the Plaintiffs Ancestors. 82. The reparations would have benefited some of Plaintiffs, as well as Plaintiffs Ancestors,

if they had been distributed as Defendants promised. 83. Defendant DOI breached its legal duty to ascertain the names of persons to whom

reparations are still due and owing, as provided in Paragraph 6 of the Treaty of Little Arkansas, set out above. 84. Plaintiffs and all members of the Class are entitled to a writ of mandamus to compel

Defendants to perform all such duties.

SECOND CLAIM FOR RELIEF AND SUPPORTING FACTUAL ALLEGATIONS (Failure to Account) 85. 86. Paragraphs 1 through 84 are incorporated by reference. Defendants created a federal Indian trust by holding, and asserting management and

control over, the reparations that were meant for the benefit of Plaintiffs and their Ancestors. 17

87.

Defendants are required to account to Plaintiffs for the management of reparations which

were and are held by Defendants for Plaintiffs benefit, to ensure whether losses to or mismanagement of trust funds can be determined by the beneficiary. 88. Defendants have never accounted for the reparations they hold in trust for the benefit of

Plaintiffs and their Ancestors. 89. Defendants breached their legal duty to account to Plaintiffs and Class Members for the

reparations held in trust by the United States for Plaintiffs. THIRD CLAIM FOR RELIEF AND SUPPORTING FACTUAL ALLEGATIONS (Administrative Procedures Act) 90. 91. Paragraphs 1 through 89 are incorporated by reference. Defendants have acted, or failed to act, in ways that are not in accordance with law and

are contrary to Plaintiffs and the Classs statutorily guaranteed rights. 92. The Treaty of Little Arkansas, 14 Stat. 703, requires Defendant DOI to ascertain the

names of persons to whom reparations are still due and owing. 93. Defendant DOIs failure to ascertain the names of persons to whom reparations are still

due and owing constitutes agency action unlawfully withheld or unreasonably delayed in violation of 5 U.S.C. 706(1). 94. The Treaty of Little Arkansas, 14 Stat. 703, requires Defendants to pay to certain

individual Indians monies and property from the fund specified in the Treaty. 95. Defendants failure to pay to certain individual Indians monies and property from the fund

specified in the Treaty constitutes agency action unlawfully withheld or unreasonably delayed in violation of 5 U.S.C. 706(1). 18

96.

The Defendant United States is obligated by law to account to the Plaintiffs for all funds

held in trust for the benefit of Indians. 97. 98. The Plaintiffs and the Class are Indians. The United States has held, managed and controlled the reparation trust funds identified

in Treaty of Little Arkansas, 14 Stat. 703. 99. Specifically, in 1990 and thereafter, Congress commanded that the Defendants provide

such an accounting in numerous statutes and other legislative documents, including, inter alia, the Appropriation Acts1 and the 1994 American Indian Trust Management Reform Act of 1994. 100. In the past century, the General Accounting Office and various other Governmental

bureaus and offices have written more than 100 different reports detailing how the Defendants have failed to account to Indians as required by law. 101. Many of the aforementioned governmental reports state that the Defendants are incapable

of providing the audit and accounting required by law. 102. Upon information and belief, the Defendants have never accounted to any Indian, ever, as

required by law, for the trust funds held, managed or controlled by the Defendants. 103. It would be pointless and futile for the Plaintiffs to request an accounting that the United

States has refused to provide, and has been unable to provide. 104. Defendants failure and refusal to provide Plaintiffs with the accounting and audit due to

the Plaintiffs by law constitute agency action unlawfully withheld or unreasonably delayed in violation of 5 U.S.C. 706(1).
1

See Supra, 6.

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105.

As a result, Plaintiffs and all members of the Class have suffered legal wrong and are

aggrieved there by, and are entitled to review thereof under the Administrative Procedures Act, 5 U.S.C. 702. REQUEST FOR RELIEF Wherefore, Plaintiffs request on their own behalf, and on behalf of all those persons similarly situated, the following relief: 106. An order compelling Defendants to provide to Plaintiffs and the Class Members an

accounting and audit of the funds, including all money, goods and property that Defendants have held, managed or controlled for the benefit of the Plaintiffs or Plaintiffs Ancestors pursuant to the Treaty of Little Arkansas; 107. If the accounting and audit demonstrates that the Defendants failed to abide by

Defendants duties established in the Treaty of Little Arkansas, or any other relevant provision of federal law mandating trust duties to the Class, the Plaintiffs demand that the Defendants be ordered to reform and make whole Plaintiffs and Class Members trust funds, including all money, goods and property owed to Plaintiffs and their Ancestors pursuant to the Treaty of Little Arkansas, which Defendants, managed or controlled; 108. An order compelling Defendant Department of the Interior to ascertain the names of such

persons made a widow, or who lost a parent as a result of the Massacre, as required in Paragraph 6 of the Treaty of Little Arkansas; 109. An order from this Court directing Defendants to pay Plaintiffs attorney fees and costs

under the Equal Access to Justice Act, 28 U.S.C.A. 2412; and

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110.

All such other relief as this Court deems just, decent, and equitable.

Date: _________________________

________________________________________ DAVID F. ASKMAN, CO Bar No. 44423 MICHAEL D. GOODSTEIN Bar No. 469156 Hunsucker Goodstein PC 1400 16th Street, Suite 400 Denver, CO 80202 (720) 932-8126 daskman@hgnlaw.com mgoodstein@hgnlaw.com LARRY DERRYBERRY Derryberry & Naifeh, LLP 4800 North Lincoln Boulevard Oklahoma City, OK 73105 (405) 708-6784 lderryberry@derryberrylaw.com JASON AAMODT Environmental Trust Law Firm, PLLC 1723 South Boston Avenue Tulsa, OK 74119 (918) 347-6169 Jason@aamodt.biz

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