With such instructions from the top it is little wonder that when Ronald Delorme, present Chief of the Little Shell Band, inquired as to the status of the Little Shell award he was told only this:

"The award in dockets numbered 113, 191, 211, and 246 was made for the 1905 value of Pembina lands west of the Red River area ceded to the United States by agreement approved by Congress on April 21, 1904, and by the Pembina on February 15, 1905." (App. p. 492.) Letter of April 6, 1987, Deputy to the Assistant Secretary of Indian Affairs.)

The Assistant Secretary’s above references to Docket numbers totally excludes Docket # 221, the Little Shell claim. But the judgment money entrusted to the B.I.A. included that which was awarded in Docket 221. The Bureau continued to act as though the Little Shell claim does not exist. The reference to an agreement by which "Pembina" had ceded lands west of the Red River could not have been a reference to the Little Shell as they had not ceded anything. In that same letter the Assistant Secretary expressly rejects the findings made by the Indian Claims Commission and by the Court of Claims. The Deputy to the Assistant Secretary for Indian Affairs (Tribal Services) wrote:

"The Bureau’s opinion is that the Turtle Mountain Band of Chippewa Indians is a tribal successor to the Pembina Band of the period 1892-1905 and earlier. There is no evidence that the present members of the Turtle Mountain Band do not derive from ancestors who themselves derive from the Red River-Turtle Mountain homeland and the Plains Ojibwa societies associated with that area." (App. p. 492.)

This was exactly the same argument unsuccessfully made before the Indian Claims Commission and the Court of Claims.

After Congress funded the award, the money was deposited in a B.I.A. Trust Account to await distribution. Rolls of eligible recipients were constructed. A plan for distribution was created. Neither the Chief of The Little Shell nor his Grand Council were ever afforded any input into the construction of the rolls, the application date requirements, the eligibility requirements, the supporting documentation that would be required, or any other aspect of the plan that was adopted and carried out.

The B.I.A.’s Superintendent of the Turtle Mountain Agency called for applications by "Non-member Pembina Chippewa Descendants". Some Little Shell lineal descendants applied. Some did not. Eventually, on January 21, 1994, the Agency Superintendent certified a roll of persons who had applied by a deadline date the Agency had adopted. (App. p. 501.)

Those found to meet certain blood quantum requirements and to have submitted satisfactory genealogy Pembina-Chippewa documentation were declared eligible to share in the award. "Enrolled members" of the Turtle Mountain tribe did not need to submit anything. They were deemed eligible by reason of being "enrolled members" without regard to who they were or where they came from.

The government alleged that Ronald Delorme, the current Chief, himself applied and participated in a distribution. The lower Court accepted that assertion and questioned whether because of it he now had no "standing" to complain. Whether he did or did not is irrelevant to the prosecution of these claims. As hereditary Chief, Ronald Delorme represents the ancestral entity that prevailed in Court. The descendants of that ancestral entity now own the claim. That entity has never received the compensation awarded to it. As for the claim that Delorme participated in a distribution, even if true, does not preclude him nor any of other current member of the Little Shell Band from participating in a distribution to the Little Shell Band as long as they are no longer members of the Turtle Mountain Band. (App. p. 499.)

The lineal descendants of the Little Shell Band do not know today what happened to the award they won. There is evidence the B.I.A. retains it in whole or in part. Chief Delorme has obtained copies of spreadsheets that purport to show an initial deposit of $47,352,407.66 from the Treasury of The United States into a B.I.A. trust account. (App. p. 474.) With interest or investments this amount appears to have grown initially to $105,055,350.84 (App. p. 494). By the time distributions began to be made in 1988 there may have been as much as $130,920,786.50 held in trust. (App. p. 495).

On the Spread Sheet for January 12, 1994 (App. p. 495), there is an entry reciting $17,858, 352.10 under a column entitled "Non Member Pembina Lineal Descendants". In this lawsuit plaintiff seeks an accounting that would show what disposition, if any, has been made of these funds, what amounts remain, what investments have been made, what disbursements have been made from these funds, when and to whom the disbursements have been made.

If there is an accounting, the lower court should be able to enter an appropriate order taking custody of the funds that belong to the Little Shell Band and establish a structure for future safekeeping and distribution of the award to those who are eligible.

CONCLUSION

The lower Court erred when it dismissed the Little Shell Band’s claims in response to a Rule 12 F.R.Cv.P. Motion to Dismiss based upon defenses of Sovereign Immunity, Statute of Limitation and Standing. None of those defenses are applicable in an action for an accounting of funds over which the United States has assumed a role as fiduciary and trustee. The United States’s fiduciary duty to account and to safe keep, invest and distribute those funds pursuant to a judgment of the Indian Court of Claims is continuing, ongoing, and current. The lower Court’s challenge to "standing" is vague, equivocal, and admittedly not a basis of its decision. Plaintiff presented the basis of his right of representation of the Little Shell Band’s interest by affidavit and nothing was submitted by the government to refute the evidence submitted in that regard.

The case should be remanded with instructions that an accounting by the United States should be ordered and for such other actions as may be necessary to enforce the Little Shell Band’s rights to participate in the awards it won before the Indian Claims Commission.

Dated this ________ day of January 2003.