Accounting

Panoramic view of mountain range in Washington State. Courtesy of Jeff Bank (DOJ)

NRS | Native Americans | Current Work of NRS Involving Indian Law Litigation

The 1950's

During the 1950's, the General Accounting [now Accountability] Office (GAO) prepared accounting reports for a large number of plaintiff tribes pursuant to the Commission's orders to account. 1 These reports (which followed a standard format) were devoted primarily to documenting:

  • disbursements of Tribal Trust funds such as "Indian Moneys, [not] Proceeds of Labor" ("IMPL") 2 held in the United States Treasury,
  • funds appropriated by Congress to carry out treaty provisions and deposited into a Treasury account for the particular tribe, and
  • funds appropriated to implement the terms of special Indian legislation and deposited in a Tribal Trust account.
  • See e. g., the 1924 Pueblo Lands Act, Pub. L. No. 253, ch. 331, Act of June 7, 1924, 43 Stat. 636 and subsequent related statutes.3

These reports contained information in a somewhat summary form on how these Tribal Trust funds had been generated (aside from those situations in which Congress had appropriated monies which went into Tribal Trust accounts) and, in addition, at the end of the report, a list of the sources of the Trust funds such as timber stumpage sales, grazing lease fees, or oil and gas royalties.

The 1960's

In 1963, the Indian Claims Commission established procedures for litigating accounting claims. Plaintiff tribes were directed to file "exceptions" to the original accounting reports prepared by the GAO and Genral Services Administration (GSA) which amounted to claims regarding the sufficiency of the accounting, questioning its accuracy or citing to gaps in the information provided. See Sioux Tribe of Indians v. United States, 12 Ind. Cl. Comm. 541 .

In a related development, in 1966, the Court of Claims held that it was not empowered by 28 U.S.C. ' 1505 to order a "general accounting"of Tribal Trust funds or other Tribal Trust property, unlike the Indian Claims Commission, but could only order an accounting in "aid of judgment”: after finding liability on a claim, the Court can order an accounting to assist it in making a determination of the amount of damages. Klamath and Modoc Tribes v. United States, 174 Ct. Cl. 483, 490-91 (1966). Klamath and Modoc is still the controlling law of the Federal Circuit on this issue.

The 1970's

The decade of the 1970's brought with it a significant increase in the burden imposed on the Indian Claims Section (and the Lands Division) in litigating the ICCA accounting claims. The Commission began to order the government to perform "supplemental accountings" pursuant to tribal requests. By late 1972, the GAO retained only two of the employees who had helped prepare the original GAO accounting reports.

Correctly predicting that the government would soon be confronted by a "wave" of Commission orders to produce "supplemental accountings," the GSA established the Indian Trust Accounting Division ("ITAD") within the Office of Finance about the same time. The looming problem was compounded by the fact that the Commission had not yet defined what the parameters of a "supplemental accounting" should be.

In 1973, the Commission issued a lengthy opinion in Blackfeet Tribe of the Fort Belknap Indian Reservation v. United States, 32 Ind. Cl. Comm. 65 (1973), reh'g denied, 34 Ind. Cl. Comm. 122 (1974). The Blackfeet decision established the template for "supplemental accountings." It required locating, organizing, and copying of underlying financial documents:

  • not only for the disbursements of tribal trust funds set out in the original accounting reports,
  • but also for tribal property (for example, copies of leases of tribal grazing lands and documents on sales of tribal lands ceded in trust to be sold to third parties and the proceeds turned over to the tribal owner),
  • and the business records for tribal enterprises (for example, the tribal sawmill established for the Red Lake Band).

The burden imposed upon the government in preparing supplemental accountings which would comply with Blackfeet was simply staggering.

The 1980's

In 1983, the Indian Claims Section was again confronted with "supplemental accountings" issues. At the very beginning of the Reagan Administration, the GSA had suffered severe budget cuts; the Office of Finance imposed the brunt of the cuts on ITAD's staff. As a result, by the beginning of 1983, ITAD had only 25 employees — 100 fewer employees than it had in the late 1970's.

Enlisting the aid of both the Division's front office and the Office of Management and Budget (OMB), the Chief of the Indian Claims Section was able to obtain authorization for GSA to staff ITAD with up to 90 FTEs (full time equivalent positions). The Office of Finance proceeded to staff ITAD up to 65 FTEs and used the remaining 25 FTEs elsewhere. Such was the volume of accounting work in ICCA cases by the early 1980's that the Chief of ITAD, Louis Cherpes, estimated it would take ITAD 300 man-years to do the accountings ordered just in the Minnesota Chippewa and Red Lake Band of Chippewa Indians ICCA cases.

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1 It is important to note that virtually every petition filed under the ICCA contained a standard form demand for a "general accounting" — that is, the government should be ordered to provide an accounting of all tribal trust funds and other tribal trust property. Some of the accounting reports were prepared by the General Services Administration (GSA).

2 Congress created IMPL accounts in 1883 to hold "miscellaneous" receipts from each Indian reservation. See Act of March 3, 1883, Ch. 141, 22 Stat. 590. Over time the typical types of receipts deposited included timber stumpage sales revenues, payments for leases of tribal lands, and oil and gas royalties. However, the 1883 Act did not authorize the Secretary of the Interior to expend IMPL funds for the tribal owner. In 1887, Congress cured this oversight by authorizing the Secretary to expend tribal funds "for the benefit of" the tribal owner. See Act of March 2, 1887, ch. 320, 24 Stat. 463.

3 Copies of the financial documents upon which these reports were based were not provided as a part of these accounting reports. However, in the 1970's, the Commission began to order the government, pursuant to the motions of certain tribes, to prepare "supplemental accountings" which, among other things, included the provision of copies of the underlying financial documents upon which the information contained in an original Government Accounting Office (GAO) concerning disbursements of particular tribal trust funds and the sources of these funds was based.

 

Updated August 22, 2017

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