Cert Petition in Trust Accounting Claim for Sand Creek Descendants

Download petition for a Writ of Certiorari here.

Questions presented:

Whether a treaty promise to pay reparations to a group of Native Americans in the form and amount that is “best adapted to the respected wants and conditions of” said group of Native Americans, and subsequent appropriation of funds by Congress to pay such reparations, create a fiduciary relationship between the United States and said group of Native Americans.

Whether the Administrative Procedures Act waives the United States’ immunity from suit for accounting claims regarding trust mismanagement that begun before the enactment of the Act.

Whether a set of Appropriations Acts by Congress that defer the accrual of trust mismanagement claims against the United States operates as a waiver of the United States’ immunity from suit.

Previous posts in re Flute v. U.S. here.

Tenth Circuit Affirms Dismissal of Sand Creek Massacre Trust Claims

Here is the opinion in Flute v. United States.

An excerpt:

This case arises out of an ignominious event in the history of this Nation. In 1864, the United States Army conducted an unprovoked attack on a group of unarmed Indians, who had relocated to an area next to the Sand Creek River in the Territory of Colorado at the direction and under the protection of the Territorial Governor. When what has become known as the Sand Creek Massacre was over, most of the Indians were dead, including many women and children. After an investigation, the United States publicly acknowledged its role in the tragedy and agreed to pay reparations to certain survivors of the massacre. But those reparations were never paid.

Plaintiffs are descendants of the victims of the 1864 Sand Creek Massacre and bring this action for an accounting of the amounts they allege the U.S. government holds in trust for payment of reparations to their ancestors. Because the United States has not waived its sovereign immunity, we affirm the district court’s dismissal of such for lack of subject matter jurisdiction.

Briefs here.

Tenth Circuit Briefs in Flute v. United States — Sand Creek Massacre Trust Accounting Claims


Flute Opening Brief

US Answer Brief

Flute Reply Brief

Lower court materials here.

Federal Court Dismisses Sand Creek Massacre Trust Accounting Claims

Here is the order in Flute v. United States (D. Colo.):

36 DCT Order

An excerpt:

In the absence of an enforceable trust, 25 U.S.C. §§ 162a(d) and 4044 do not impose a legally required duty necessary to establish a waiver of sovereign immunity under the APA. See Norton, 542 U.S. at 63–64. Furthermore, plaintiffs’ claims do not concern “losses to or mismanagement of trust funds” and thus do not fall within the 2009 DOI Appropriations Act. See Pub.L. No. 111–88, 123 Stat. at 2922. Finding that the United States has not waived sovereign immunity for this suit, the Court concludes that it lacks jurisdiction over plaintiffs’ claims and must dismiss them without prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir.2006) ( “[W]here the district court dismisses an action for lack of jurisdiction … the dismissal must be without prejudice.”).

Briefs here. Other materials here.


Briefing Complete in Federal Motion to Dismiss Sand Creek Claims

Here are the briefs in Flute v. United States (D. Colo.):

US Motion to Dismiss

Flute Opposition to Motion to Dismiss

US Reply

The complaint is here.

Sand Creek Descendants File Brief in Support of Historic Claims

Here is the opposition to the government’s motion to dismiss in Flute v. United States (D. Colo.):

Flute Opposition to Motion to Dismiss

Prior posts are here and here.

Flute v. United States: Suit by Sand Creek Massacre Descendants for Accounting of Promised Funds


Flute Complaint

An excerpt:

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.