The Court of Claims disagreed and expressly affirmed the Little Shell’s right to separate participation. (App. p. 368-370.)

Ten years later, Congress funded the award. (App. p. 329.) In doing so Congress identified five entities entitled to share. In spite of the express findings of the Court that the Little Shell were entitled to participate as a separate, identifiable, historical entity, Congress did not specifically identify the Little Shell as one of the five entities entitled to share in the award. Congress created a new entity that had not participated in the litigation at all. Congress called this new entity the "Non-member Pembina Chippewa Descendants".

The award was funded and the task of distributing it was delegated to the Bureau of Indian Affairs. In carrying out the Congressional mandate the B.I.A. and its sub-agencies refused to include the Little Shell Band in the distribution process. The Little Shell were told they were not a recognized tribe and the B.I.A. had no authority to deal with them. The Court of Claims, however, had dealt with this issue:

"But the Little Shell Chippewa’s need not have formed a separate band or other organized entity in the 1892-1905 period in order that an identifiable group of their descendants may bring this claim separately." Turtle Mountain Band of Chippewa Indians, et al., 203 Ct. Cl. 426, 28.

At all times the funding statutes and the regulations promulgated to implement the award were interpreted to exclude participation of the Little Shell as a separate identifiable entity. From the outset of the disbursement stage the Commissioner of Indian Affairs advised the Bureau’s Area Directors that the Little Shell did not exist as a separate entity. He maintained the Indian Claims Commission did not know what they were doing and that the Court of Claims on appeal had "blindly followed". (App. p.477.) Follow-through in the field at the Area Offices and at the Turtle Mountain Agency was totally consistent with that announced policy. No payments of judgment funds for either claim have ever been made to the Little Shell Band.

The lower Court found that plaintiff’s claim based upon the above facts was barred by the doctrine of sovereign immunity. Whether "sovereign immunity" is a defense to an action for an accounting of funds entrusted to an agency of the federal government was one of the threshold issues in Cobell v. Babbitt, 30 F. Supp. 2d 24 (District of Columbia, 1988), affirmed on appeal at 345 U.S. App. D.C. 141, 240 F.3d 1081. Cobell, Id., found no immunity existed because immunity had been waived by the Administrative Procedures Act, 5 U.S.C. Sec.
703. The lower Court here held appellant could not rely upon that Act because the six-year statute of limitations had run.

This action is an equitable action that asks for an accounting of money held in trust by the United States of America. The entrustment took place years ago. Congress appropriated the money to satisfy aboriginal land claims made by the lineal descendants of an historical landowning entity. (App. p.329.)

"An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the Unites States… ." 5 U.S.C. 702.

But these plaintiffs need not rely only upon 5 U.S.C. 702. Where the Federal Government has taken control or accepted monies or properties belonging to an Indian entity, a fiduciary relationship exists with respect to such monies or properties even though nothing is said expressly in the authorizing or underlying statute (or other fundamental document) about a trust fund, or a trust or fiduciary connection. United States v. Mitchell ("Mitchell II"), 463 U.S. 206, 225, 77 L.Ed. 2d 580, 103 S.Ct. 2961 (1983) (quoting Navajo Tribe of Indians v. United States, 224 Ct. Cl. 171, 183, 624 F. 2d 981 (1980).

"It is fundamental that an action for accounting is an equitable claim and that courts of equity have original jurisdiction to compel an accounting." Klamath and Modoc Tribes v. United States, 174 Ct. Cl. 483, 487 (1966).

Cobell v. Babbitt, 30 F.Supp. 2d 24 (Dist of Col. 1989), aff’d 345 U.S. App. D.C. 141, 240 F.2d 1081, involved responsibilities for trust funds as defined in a 1994 statute relating to management of certain types of Indian Trust Funds. That statute is not applicable here. But it is clear the funds involved here come within the purview of both the case law and the common law related to the federal government’s trust and fiduciary responsibilities to Indians.