OSAGE TRIBE OF INDIANS v. USA

Filing 341

Published OPINION and ORDER denying 318 Motion to Intervene Signed by Judge Emily C. Hewitt. (ae)

OSAGE TRIBE OF INDIANS v. USA

Do c. 341

In the United States Court of Federal Claims
N o . 99-550 L (in to which has been consolidated No. 00-169 L) (E -F ile d : December 19, 2008) _________________________________________ T H E OSAGE TRIBE OF INDIANS O F OKLAHOMA, Plaintiff, ) ) ) ) R C F C 24(a); RCFC 24(b); In ter v e n tio n of Right; P e rm is s iv e Intervention; 28 U .S .C . § 1505

) ) v. ) ) T H E UNITED STATES OF AMERICA, ) ) Defendant. ) ) _________________________________________ )

K en n eth E. Crump, Jr., Tulsa, OK, for proposed intervenor. W ils o n K. Pipestem, Washington, DC, for plaintiff. M a u re e n E. Rudolph, with whom were Ronald J. Tenpas, Assistant Attorney General, B ria n M. Collins, and Romney S. Philpott, Environment & Natural Resources Division, U n ite d States Department of Justice, Washington, DC, for defendant. Elisabeth Brandon, E ric k a Thompson, and Holly Clement, Office of the Solicitor, United States Department o f the Interior, Washington, DC, of counsel. Teresa E. Dawson, and Thomas Kearns, O f f ic e of the Chief Counsel, Financial Management Service, United States Department of th e Treasury, Washington, DC, of counsel. OPINION AND ORDER H E W IT T , Judge B e f o re the court is an Amended Motion for Leave to Intervene and Brief in S u p p o r t (Motion or Mot.), filed by seven members of plaintiff Osage Tribe (Proposed In ter v e n o rs) . The responsive briefing consists of Plaintiff Osage Nation's Opposition to A m e n d e d Motion to Intervene (plaintiff's Response or Pl.'s Resp.), Defendant's Brief in

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R e s p o n s e to Proposed Intervenors' Amended Motion to Intervene (defendant's Response o r Def.'s Resp.), and Proposed Intervenors' Reply to Responses of the Osage Tribe of In d ia n s of Oklahoma and the United States of America to Amended Motion to Intervene a n d Brief in Support (Reply). I. B a c k g ro u n d 1 A. P r o c e d u ra l Setting

P la in tif f Osage Tribe of Indians of Oklahoma (Osage Nation or Osage Tribe) filed s u it in this court alleging that the United States violated its duty as trustee of the Osage m in e ra l estate by failing to collect all moneys due from Osage oil leases and to deposit a n d invest those moneys as required by statute and according to the fiduciary duty owed to the Osage Tribe. See Complaint, dkt. no. 1, filed Aug. 2, 1999. Plaintiff's action s u rv iv e d defendant's motion to dismiss, and plaintiff was found to have standing to bring s u it against defendant. Osage Tribe of Indians of Okla. v. United States (Osage I), 57 F ed . Cl. 392, 395, 398 (2003).2 Defendant was subsequently found to owe fiduciary d u tie s as trustee to plaintiff as trust beneficiary. Osage Tribe of Indians of Okla. v. U n ite d States (Osage II), 68 Fed. Cl. 322, 330-31 (2005). Plaintiff's claims were divided in to two tranches with the first tranche (Tranche One) encompassing certain trust fund m is m a n a g em e n t claims within the parameters described by the United States Court of A p p e a ls for the Federal Circuit (Federal Circuit) in Shoshone Indian Tribe of the Wind R iv e r Reservation v. United States, 364 F.3d 1339, 1350-51 (Fed. Cir. 2004). Id. at 323. The second tranche (Tranche Two) encompasses all other claims. Id. at n.1. O n September 21, 2006, this court issued an opinion finding liability in some of p la in tif f 's Tranche One claims. Osage Tribe of Indians of Okla. v. United States (Osage III), 72 Fed. Cl. 629, 671 (2006). On February 15, 2007 this court issued an opinion

The facts presented are only those relevant to the court's decision on the motion to intervene brought by the seven individuals presently before the court (Proposed Intervenors) in their Amended Motion for Leave to Intervene and Brief in Support (Motion or Mot.). For additional background information, see Osage Tribe of Indians of Okla. v. United States (Osage II), 68 Fed. Cl. 322, 323-24 (2005). The numbering used in this opinion to refer to prior decisions issued in this case departs from the conventions used in those decisions. See, e.g., Osage Tribe of Indians of Okla. v. United States (Osage III), 72 Fed. Cl. 629, 632 (2006). This opinion refers to the earliest-filed opinion in this case as "Osage I," and short titles for subsequent decisions are adjusted accordingly.
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reg ard ing the calculation of damages for the government's liability regarding plaintiff's T ra n c h e One claims discussed in Osage III. Osage Tribe of Indians of Okla. v. United S tates (Osage IV), 75 Fed. Cl. 462 (2007). Plaintiff filed a motion for partial summary ju d g m e n t on December 2, 2008, dkt. no. 338, and defendant is currently briefing its re sp o n se . B. Id e n tity of the Movants

O n October 15, 2007, eight individuals who identified themselves as "personal o w n e rs of allotted shares or `headrights' of the Osage Tribe of Indians of Oklahoma" (O rig in a l Intervenors) filed a motion to intervene in this action. Osage Tribe of Indians o f Okla. v. United States (Osage V), 81 Fed. Cl. 340, 340 (2008). Plaintiff responded to th e motion to intervene by filing a motion to disqualify counsel for the Original In te rv e n o rs . Id. On March 31, 2008, this court issued an opinion disqualifying Original In te rv e n o rs ' original counsel. Id. On August 11, 2008, Proposed Intervenors 3 filed the M o tio n now before the court. Proposed Intervenors' Motion is now decided on the merits p u rs u a n t to the requirements of Rule 24 of the Rules of the United States Court of Federal C laim s (RCFC).4 II. L e g a l Standards

I n te r v e n tio n is governed by RCFC 24. Intervention may be allowed either as a m a tte r of right under Rule 24(a) or permissively under Rule 24(b). RCFC 24(a),(b). Although "the requirements for intervention are to be construed in favor of intervention,"

Proposed Intervenors are seven of the eight individuals who brought a motion to intervene in this action on October 15, 2007 (Original Intervenors). Proposed Intervenors use the term "joinder" synonymously with "intervention" for the first time in their Reply to Responses of the Osage Tribe of Indians of Oklahoma and the United States of America to Amended Motion to Intervene and Brief in Support (Reply). Reply 3, 8. However, Proposed Intervenors do not base their arguments in either Rule 19 or Rule 20 of the Rules of the Court of Federal Claims (RCFC) which govern joinder. See Mot. passim; Reply passim. In fact, Proposed Intervenors make no reference to either RCFC 19 or RCFC 20 in their briefing. Id. Because Proposed Intervenors' Motion was brought as a motion to intervene under RCFC 24, defendant's and plaintiff's responsive briefing were accordingly argued as oppositions to Proposed Intervenors' Motion under RCFC 24. See Plaintiff Osage Nation's Opposition to Amended Motion to Intervene (plaintiff's Response or Pl.'s Resp.) passim; Defendant's Brief in Response to Proposed Intervenors' Amended Motion to Intervene (defendant's Response or Def.'s Resp.) passim. For the foregoing reasons, the court treats Proposed Intervenors' Motion as a motion for intervention under RCFC 24.
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A m . Mar. Transp., Inc. v. United States (American Maritime), 870 F.2d 1559, 1561 (Fed. C ir. 1989), courts routinely deny motions to intervene, see, e.g., id. at 1563 (affirming d e n ia l of motion to intervene because applicant "had not claimed an interest recognized u n d er Rule 24(a)"). T h e rule governing intervention of right states: O n timely motion, the court must permit anyone to intervene who . . . c la im s an interest relating to the property or transaction that is the subject of th e action, and is so situated that disposing of the action may as a practical m a tte r impair or impede the movant's ability to protect its interest, unless e x is tin g parties adequately represent that interest. RCFC 24(a)(2). While it is true that "[i]f the movant satisfies the elements of RCFC 2 4 (a), the court is without discretion, and the movant `shall be permitted to intervene,'" F ifth Third Bank v. United States, 52 Fed. Cl. 202, 203 (2002) (quoting RCFC 24(a)), c o u rts are nevertheless "entitled to the full range of reasonable discretion in determining w h ethe r the[] requirements [for intervention of right] have been met," Rios v. Enter. A s s 'n Steamfitters Local Union No. 638, 520 F.2d 352, 355 (2d Cir. 1975); see also 6 J a m e s Wm. Moore, Moore's Federal Practice § 24.03[5][a], at 24-53 (3d ed. 2004) (" D e sp ite the label `intervention of right,' courts exercise some discretion in weighing a m o tio n to intervene under Rule 24(a)(2)."). T h e rule governing permissive intervention states: O n timely motion, the court may permit anyone to intervene who . . . has a c la im or defense that shares with the main action a common question of law o r fact. . . . In exercising its discretion, the court must consider whether the in te rv e n tio n will unduly delay or prejudice the adjudication of the original p a rtie s ' rights. RCFC 24(b). The rule specifically vests the court with discretion in deciding whether to a llo w permissive intervention. See RCFC 24(b). Trial courts possess "broad discretion in determining whether to grant permissive intervention." 6 James Wm. Moore, Moore's F e d e ra l Practice § 24.10[1], at 24-57 (3d ed. 2004) (citing, inter alia, Rosenshein v. K leba n , 918 F. Supp. 98, 106 (S.D.N.Y. 1996)). III. D is c u ss io n

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F o r the reasons discussed below, Proposed Intervenors do not qualify as an "ide n tifiab le group" pursuant to 28 U.S.C. § 1505. Accordingly, the court considers P r o p o s e d Intervenors' Motion as a motion to intervene on behalf of themselves as in d iv id u a l headright owners. In addition, Proposed Intervenors do not meet the re q u ire m e n ts either for intervention of right pursuant to RCFC 24(a), or for permissive interve n tio n pursuant to RCFC 24(b). A. W h e th e r Proposed Intervenors Are An "Identifiable Group" Pursuant to 28 U .S .C . § 1505

P r o p o s e d Intervenors seek to intervene in this case "not only on their own behalf, b u t on behalf of all other Indian headright owners who are original allottees or d esc en d an ts of original allottees." Mot. 11. Proposed Intervenors argue that they are e n title d to intervene in a representative capacity, contending that Indian original allottees a n d their descendants qualify as an "identifiable group" pursuant to 28 U.S.C. § 1505. Id. Plaintiff argues that the group that Proposed Intervenors seek to represent does not c o n stitu te an "identifiable group" of American Indians under the statute because the in d iv id u a ls within that group are members of the Osage Nation, and are therefore already re p re se n te d by plaintiff.5 Pl.'s Resp. 4-5. The court agrees with plaintiff. The group that P ro p o s e d Intervenors seek to represent is not an "identifiable group" under 28 U.S.C. § 1 5 0 5 . Prior cases in which jurisdiction was exercised over "identifiable groups" are re a d ily distinguishable from this case. This court's jurisdictional statute pertaining to Indian cases, 28 U.S.C. § 1505, a u th o riz e s this court to hear claims brought by "any tribe, band, or other identifiable g ro u p of American Indians." 28 U.S.C. § 1505 (2006). The United States Court of Federal Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska whenever such claim is one arising under the Constitution, laws

Defendant argues that the group that Proposed Intervenors seek to represent does not constitute an "identifiable group" of American Indians under the statute because the group never "existed as a distinct, self-governing community of American Indians, [n]or [was] even dealt with as a distinct group by the United States government." Def.'s Resp. 19. While defendant's view is consistent with the result reached in this opinion, the court does not find it necessary to address ­ still less to adopt ­ defendant's definition of an "identifiable group" in order to decide this issue.
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o r treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group. Id. (emphasis added). P r o p o s e d Intervenors cite two cases to support their contention that they qualify as a n "identifiable group" pursuant to 28 U.S.C. § 1505. Mot. 11-12 (citing Chippewa Cree T rib e of the Rocky Boy's Reservation v. United States (Chippewa Cree), 69 Fed. Cl. 639 (20 0 6 ), and Wolfchild v. United States (Wolfchild), 62 Fed. Cl. 521 (2004)). However, b o th cases to which Proposed Intervenors cite are materially different from the facts of this case. In both cases, the claimant groups were unable to sue as a tribe and therefore so u g h t status as an "identifiable group" under the statute in order to ensure that their in te re sts were represented. In Chippewa Cree, the Pembina Band of Chippewa Indians w a s organized as a band of Indians at the time that their claim arose, but had subsequently c e as e d to exist as an organized tribe. Chippewa Cree, 69 Fed. Cl. at 672. Recognizing th e Pembina descendants as "representatives of all the members or descendants of m e m b e r s of said band," the court granted the claimants status as an "identifiable group" in the absence of formal organization as a tribe. Id. at 673-74; see also Snoqualmie Tribe o f Indians v. United States (Snoqualmie), 372 F.2d 951, 956-57 (Ct. Cl. 1967) (finding th a t the Skykomish tribe qualified as an "identifiable group" able to bring a representative c la im on its own behalf where the Skykomish tribe was a separate and identifiable group a t the time of negotiations in the Treaty of Point Elliot in 1855, and subsequently went out o f existence as a tribe). The "group of nonmember Pembina lineal descendants," C h ip p e w a Cree, 69 Fed. Cl. at 669, which qualified for status as an "identifiable group" in Chippewa Cree were not represented by any of the other sub-groups of plaintiffs in that c a se , see id. (describing the different sub-groups represented by the named individual p la in tif f s in that case). Similarly, in Wolfchild, the court found that lineal descendants of th e loyal Mdewakanton qualified as an "identifiable group of American Indians" under 28 U .S .C . § 1505, stating that "[although] the lineal descendants are unable to sue as a tribe b e c a u se they necessarily had to sever their tribal relations . . . they were and still remain a n identifiable group of American Indians." Wolfchild, 62 Fed. Cl. at 540. In Wolfchild, a s in Chippewa Cree, the claimants' interests were not represented by any other tribe in v o lv e d in the litigation. See Wolfchild, 62 Fed. Cl. at 538 (discussing the relationship b e tw e e n the interests of the plaintiff-lineal descendants and the interests of the amicitrib a l organizations, and stating that "the benefits some plaintiffs receive as members of o n e of the [tribal] communities may be substantially less than, or different from, those w h ic h they would receive as a lineal descendant"); see also Snoqualmie, 372 F.2d at 9565 7 (finding that because the Skykomish were not a subgroup of the Snoqualmie tribe and

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d id not merge into the Snoqualmie tribe, the claims brought by the Snoqualmie tribe did n o t represent the interests of the Skykomish). The group that Proposed Intervenors seek to represent is materially different from th e claimants in both Chippewa Cree and Wolfchild. First, unlike the claimants in C h i p p e w a Cree and Wolfchild, Proposed Intervenors do not lack formal organization as a trib e but are members of plaintiff-tribe, the Osage Nation. Osage V, 81 Fed. Cl. at 345-46 ( f in d in g that headright holders possess "legal membership" in the Osage Nation as a m a tte r of federal law); Pl.'s Resp. 5. Second, in this case, unlike in Chippewa Cree and W o lf c h ild , the organization of which Proposed Intervenors are members, the Osage N a tio n , is a party to this litigation. See Osage II, 68 Fed. Cl. 322 at 323-24 (describing th e parties and claims at issue in this case). The Osage Nation represents Proposed In te rv e n o rs ' interests as its constituents. See Transcript of Oral Argument, Feb. 5, 2008 (T r.), 46:13-14 (while discussing the operations of tribal government, plaintiff's counsel s ta te s, "[T]he Osage Minerals Council is the predecessor or successor-in-interest to the O s a g e Tribal Council. The Osage Minerals council is elected exclusively by Osage h e a d rig h t holders."); Osage Const. (2006) art. XV, § 4 ("The government [of the Osage N a tio n ] shall further ensure that the rights of members of the Osage Nation to income d e riv e d from that Mineral Estate are protected."). The facts of this case are readily d istin g u ish a b le from the facts in cases in which claimants qualified as an "identifiable g ro u p " under 28 U.S.C. § 1505. Proposed Intervenors are simply not an "identifiable g ro u p " pursuant to 28 U.S.C. § 1505, but are, rather, members of a tribe. Accordingly, th e court does not consider Proposed Intervenor's Motion as a motion to intervene in a re p re se n ta tiv e capacity, but instead considers it as a motion to intervene on behalf of th e m s e lv e s as individual headright owners. B. In te rv e n tio n of Right

T o succeed on a motion to intervene of right under RCFC 24(a), applicants "must s h o w that: (1) they have an interest relating to the property or transaction that is the s u b j e c t of the action; (2) without intervention the disposition of the action may, as a p ra c tic a l matter, impair or impede the applicants' ability to protect that interest; and (3) th e ir interest is inadequately represented by the existing parties." Freeman v. United S tate s (Freeman), 50 Fed. Cl. 305, 308-09 (2001). In addition, the application to in te rv e n e must be "timely." RCFC 24(a). An applicant must demonstrate the existence o f each factor. Freeman, 50 Fed. Cl. at 308 (stating that intervention of right must be g ra n ted "[i]f the applicants satisfy each element" of the applicable provision of Rule 2 4 (a )). If an applicant fails to demonstrate any one of these factors, the application to in te rv e n e of right is denied. Because Proposed Intervenors have failed to meet the

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re q u ire m e n ts of Rule 24(a), their claim is insufficient to support intervention of right. See id. at 309. 1. P r o p o s e d Intervenors' Interest

R C F C 24(a) requires that an intervenor of right establish "an interest relating to the p ro p e rty or transaction that is the subject of the action." Id. at 308. "[T]here is no a u th o rita tiv e definition of precisely what kinds of interest satisfy the requirements of the ru le ." 6 James Wm. Moore, Moore's Federal Practice § 24.03[2][a] 24-28 (3d ed. 2004). Therefore, the court applies the principles set forth by the Federal Circuit, and those p rin c ip le s set forth in the cases upon which the Federal Circuit has relied, to the factual c irc u m s ta n c e s of this case. In order to intervene of right, the interest of applicants in the property or tra n sa c tio n must be "`" of such a direct and immediate character that the intervenor will e ith e r gain or lose by the direct legal operation and effect of the judgment."'" American M a ritim e , 870 F.2d at 1561 (citations omitted). "The interest thus may not be either in d ire c t or contingent." Id. (citations omitted). "The interest must also be a `legally p ro te c t[ a ]b le interest.'" Id. (citation omitted). A legally protectable interest is "`one w h ic h the substantive law recognizes as belonging to or being owned by the applicant.'" Id. at 1562 (citation omitted). Proposed Intervenors argue that they have an interest in the s u b je c t of the action based on their "interest in income derived from the Osage mineral e sta te." Mot. 4. Plaintiff argues that Proposed Intervenors "[h]ave no [d]irect, [l]egally [ p ]ro te c te d [i]nterest in the [m]ineral [e]state or [t]ribal [t]rust [a]ccount," Pl.'s Resp. 2, b e c a u se Proposed Intervenors "repeatedly confuse[] tribal ownership of the mineral estate a n d the tribal trust account with the individual right to receive a quarterly distribution f ro m the tribal trust account," id. at 3. The court now examines whether Proposed Intervenors' interest is direct and im m e d ia te , and, if it is, whether it is a legally protectable interest as required by RCFC 2 4 (a). P r o p o s e d Intervenors have an interest in their pro rata share of the proceeds of the m in e ra l estate. Mot. 4-5 (stating that Proposed Intervenors "have an interest in income d e riv e d from the Osage mineral estate, which is . . . paid on a basis of a pro-rata division a m o n g [individual headright owners]"). It seems clear that Proposed Intervenors' interest is such that they will either gain or lose by the direct legal operation and effect of a ju d g m e n t in this case because damages awarded to the Tribe are ultimately to be paid to th e credit of headright holders pursuant to statute. See Act of June 28, 1906, ch. 3572, § 4 , 34 Stat. 539, 544 (1906) ("An Act for the Division of Lands and Funds of the Osage
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In d ia n s in Oklahoma Territory, and for Other Purposes") (1906 Act); see also Act of Dec. 3 , 2004, Pub. L. No. 108-431, § 1(b)(1), 118 Stat. 2609 (2004) ("An Act to Reaffirm the In h e re n t Sovereign Rights of the Osage Tribe to Determine Its Membership and Form of G o v e rn m e n t" ) (2004 Act) (clarifying the 1906 Act and stating that "the rights of any p e rs o n to Osage mineral estate shares are not [to be] diminished"). The amount that each h e a d rig h t holder ultimately receives is directly proportional to the amount of damages a w a rd e d , if any, in the course of this litigation. See Transcript of Oral Argument, Apr. 3, 2 0 0 3 (Tr.), 118:18-119:5 (discussing that the mineral income is ultimately allocated to e a ch headright holder); Def.'s Resp. 3-5 (discussing the distribution of income from the m in e ra l estate to headright holders). This case is distinguishable from previous cases in w h ic h the applicant's interest was found to be indirect or contingent. In American M a ritim e , the applicant's interest was in preventing increased competition that could o c c u r as a result of the court's decision. American Maritime, 870 F.2d at 1561-62. The c o u rt observed that the specter of increased competition would only result if "every one o f a chain of other possible, but not certain, events were to take place." Id. at 1561. In th a t case, there was "no consequence to [potential intervenor] flow[ing] immediately from a Claims Court ruling." Id.; Cf. also Karuk Tribe of Ca. v. United States (Karuk Tribe), 2 7 Fed. Cl. 429, 431 (1993) (denying motion to intervene brought by individuals whose in te re st was based on a fear that Congress would amend the settlement act at issue in the litig a tio n if liability was found, and describing the interest as "contingent on other e v e n ts," and therefore indirect). In this case, however, Proposed Intervenors' interest in th e ir pro rata share of the proceeds of the mineral estate is analogous to the interest of the a p p lic a n t for intervention in Rosebud Coal Sales Co. v. Andrus (Rosebud), 644 F.2d 849 (1 0 th Cir. 1981) whose interest was viewed by the American Maritime court as direct. See American Maritime, 870 F.2d at 1561 (describing Rosebud as finding that "although w o u ld -b e intervenor [in Rosebud] did not have [a] `legally protectable' interest, its in te re st was direct"). In Rosebud, "the royalty rate of [would-be intervenor's] contract [ w a ]s determined by reference to the royalty rate payable by [plaintiff] to the [defendant] u n d e r [plaintiff's] federal coal lease." Rosebud, 644 F.2d at 850. The applicant's interest in Rosebud was characterized as direct "since the royalty rate for coal to be paid by w o u ld - b e intervenor necessarily would be determined by [the] outcome of the case b e tw e e n the plaintiff, another coal company, and the Department of the Interior." American Maritime, 870 F.2d at 1561 (analyzing the finding made in Rosebud). In much th e same way that the would-be intervenor's profit was necessarily tied to the outcome of th e litigation in Rosebud, the amount of recovery that ultimately flows down to each h e a d rig h t holder is necessarily and directly dependent upon the ultimate amount of the jud g m en t, if any, awarded in this litigation. Proposed Intervenors' interest in their pro ra ta share of the proceeds of the mineral estate is "`"of such a direct and immediate c h a ra c te r that the intervenor will either gain or lose by the direct legal operation and e f f e c t of the judgment."'" Id. (citations omitted).
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In addition to having a direct and immediate interest in the subject of the action, an ap p lica n t must have an interest that is "legally protectable" in order to support in t e rv e n tio n of right. Id. In order to be legally protectable, the applicant must d e m o n s tra te "more than merely an economic interest." Id. at 1562. In American M a ritim e , the Federal Circuit relied upon New Orleans Pub. Serv., Inc. v. United Gas P ip e lin e Co. (New Orleans) to define a legally protectable interest as "`one which the s u b s ta n tiv e law recognizes as belonging to or being owned by the applicant.'" Id. at 1562 (q u o tin g New Orleans, 732 F.2d 452, 464 (5th Cir. 1984)). In a portion not cited by the F e d e ra l Circuit in American Maritime, but particularly relevant to the circumstances of th is case, the court in New Orleans further explained that an applicant's legally p ro te c ta b le interest, "one which the substantive law recognizes as belonging to or being o w n e d by the applicant," New Orleans, 732 F.2d at 464, is further defined as requiring " th a t the claim the applicant seeks intervention in order to assert be a claim as to which th e applicant is the real party in interest," id. While Proposed Intervenors' interest in the su b jec t of the action is direct and immediate, Proposed Intervenors do not have a legally p ro tec tab le interest because, first, Proposed Intervenors do not meet the real party in in te re st requirement enunciated in New Orleans; and, second, cases with factual c irc u m s ta n c es closely analogous to the circumstances in this case do not support a finding th a t Proposed Intervenors have a legally protectable interest. Proposed Intervenors are not the real parties in interest in this litigation, and there fo re do not have a legally protectable interest as defined in New Orleans. See id. In N e w Orleans, city officials were denied intervention in a suit over the validity of a c o n tra c t brought by an electric utility company against its supplier. Id. at 455. The city s o u g h t to intervene in the contract action by adopting the complaint brought by the e le c tric utility company. Id. at 461. Holding that the city did not have any substantive rig h ts in an action on a contract to which the city was not a party, the 5th Circuit stated th a t "the claim the applicant seeks intervention to assert [must] be a claim as to which the a p p lica n t is the real party in interest." Id. at 464. In this case, the court has previously ru le d that the "headright holders are not in fact `the real parties in interest' because the T rib e , not the headright holders, is the direct trust beneficiary." Osage I, 57 Fed. Cl. at 3 9 5 ; Osage V, 81 Fed. Cl. at 349. In another decision issued earlier in this litigation, this c o u rt has stated that "the Osage [tribe] [is] the owner[] of the minerals [at issue in this c a s e , No. 99-550 L]." Osage V, 81 Fed. Cl. at 349 (citing Osage I, 57 Fed. Cl. at 392). This court has determined that the Osage Tribe is the real party in interest in this litigation a n d that the Osage Tribe owns the minerals which are the subject of this action. Id. Therefore, Proposed Intervenors do not have an interest "`which the substantive law re c o g n iz e s as belonging to or being owned by [them].'" American Maritime, 870 F.2d at 1 5 6 2 (quoting New Orleans, 732 F.2d at 464). Here, as in New Orleans, Proposed

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In te rv e n o rs are simply "adopting the complaint" brought by the plaintiff in the action.6 S e e Mot. 6 ("Proposed Intervenors, like the Tribe, allege that the [United States] m is m a n a g ed trust funds of the Osage by (1) failing to collect royalty payments and related late fees due the Tribe under the Tranche One and Tranche Two leases, and (2) failing to in v e st the income it did collect in the manner required by law."). Accordingly, Proposed I n te r v e n o r s can be analogized to the applicant-intervenor in New Orleans whose in te rv e n tio n was denied when it attempted to assert a right not belonging to the intervenor its e lf . New Orleans, 732 F.2d at 466 ("[I]ntervention is improper where the intervenor d o e s not itself possess the only substantive legal right it seeks to assert in the action."). Moreover, the fact that the ultimate distribution of any funds awarded to the Osage Tribe w ill be placed to the credit of the headright holders does not in itself create a legal right e n f o rc e a b le in this action. See New Orleans, 732 F.2d at 464 ("`"The `real party in in te re st' is the party who, by substantive law, possesses the right sought to be enforced, a n d not necessarily the person who will ultimately benefit from the recovery."'") (quoting U n i te d States v. 936.71 Acres of Land, 418 F.2d 551, 556 (5th Cir. 1969)); see also M e rid ia n Homes Corp. v. Nicholas W. Prassas & Co., 89 F.R.D. 552, 554 (N.D. Ill. 1981) (d e n yin g intervention to parties who had a right to a portion of a joint venturer's profits in a dispute between joint venturers, and stating that despite their right to proceeds from the litig a tio n , the would-be intervenors' "lack of status as joint venturers is fatal to their a ss e rte d right to intervene" because, as a result, they failed to meet several of the req u irem en ts to support intervention, including the interest requirement). In addition, the facts of this case are analogous to cases in which no legally p ro tec tab le interest has been found to be held by applicants seeking intervention in d is p u te s over contracts to which the applicants are not a party. In Rosebud, a coal c o m p a n y sought to intervene in a dispute between another coal company, Rosebud, and th e Department of the Interior over the provisions of the coal land lease agreement e n te re d into between Rosebud and the Department of the Interior. Rosebud, 644 F.2d at 8 4 9 - 5 0 . The applicant for intervention did not have a legally protectable interest because

To the extent that Proposed Intervenors argue that they are entitled to damages as a result of defendant's breach of fiduciary duties owed directly to them, rather than entitlement to damages as the ultimate payees of any judgment rendered in this case, their argument is precluded by the law of the case. Osage Tribe of Indians of Okla. v. United States (Osage I), 57 Fed. Cl. 392, 395 (2003) ("headright holders are not in fact `the real parties in interest' because the Tribe, not the headright holders, is the direct trust beneficiary."); Osage Tribe of Indians of Okla. v. United States (Osage V), 81 Fed. Cl. 340, 349 (2008) ("the Osage [tribe] [a]re the owners of the minerals in the `instant proceeding.'"). Accordingly, the court finds that Proposed Intervenors hold no legally protectable interest in the subject of this action. See Part III.B.1 passim.
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6

it was not a party to the lease at issue. Id. at 850-51; see also Wetlands Water Dist. v. U n ite d States, 700 F.2d 561, 563 (9th Cir. 1983) (stating that while applicants for in ter v e n tio n "do indeed have an interest in [the subject of the action,] . . . . this interest is n o t a legally protectable interest that can support . . . intervention as a party in a suit in v o lv in g rights under contracts to which it is not a party."); American Maritime, 870 F .2 d at 1562 ("The interest of an applicant non-party having no privity claim in a c o n tra c t, the terms of which are disputed by the parties to it, also has not been recognized a s legally protectable, even when the outcome of the contract action is almost certain to h a v e a significant and immediate economic impact on the applicant."). Similarly, in this c a se , Proposed Intervenors are not a party to the trust relationship which exists between d e f e n d a n t and plaintiff. Section four of the 1906 Act created a trust fund whereby "all f u n d s belonging to the Osage tribe, and all moneys due, and all moneys that may become d u e , or may hereafter be found to be due the said Osage tribe of Indians, shall be held in tru s t by the United States." 1906 Act, ch. 3572, § 4, 34 Stat. 539, 544 (emphasis added). In its prior opinions issued during the course of this litigation, this court has found that th e 1906 Act created a trust relationship between plaintiff-Osage Tribe and defendant. See, e.g., Osage II, 68 Fed. Cl. at 330 ("The plain language of the Act of 1906 establishes a specific duty [on the part of defendant] to hold in trust all moneys due, now and in the f u t u re , to the Osage Tribe."). Moreover, the court has specifically found that the trust re la tio n s h ip exists exclusively between the Tribe and defendant. Osage I, 57 Fed. Cl. at 3 9 4 -9 5 (addressing defendant's argument that headright holders are the proper b e n e fic ia rie s and finding that "the Tribe . . . is the direct trust beneficiary"). In this case, a s in the contract cases, Proposed Intervenors do not have a legally protectable interest in a dispute concerning a trust relationship to which they are not a party. For the foregoing reasons, even though Proposed Intervenors have a direct interest in the subject of the action, that interest is not legally protectable and thus does not meet th e interest requirement of RCFC 24(a). Although a finding that Proposed Intervenors do n o t meet the interest requirement of RCFC 24(a) is a bar to granting intervention of right, s e e Freeman, 50 Fed. Cl. at 309, the court nonetheless examines the other factors in the in te rv e n tio n of right analysis. 2. P r o p o s e d Intervenors' Ability to Protect Their Interest

Proposed Intervenors must also demonstrate that "without intervention the d i sp o s itio n of the action may, as a practical matter, impair or impede the applicants' ab ility to protect th[eir] interest." Freeman, 50 Fed. Cl. at 309. Proposed Intervenors a rg u e that if they are not allowed to intervene, their ability to protect their interest will be im p a ire d or impeded because they will be without a remedy for "the problem of an in e q u ita b le damage determination or allocation." Reply 9. Proposed Intervenors argue
12

th a t intervention is their "best hope of protecting their legal rights," id. at 7, because the o u tc o m e of this case "may create a res judicata defense for the government if Proposed In te rv e n o rs were disadvantaged and later attempted to otherwise enforce their rights," id. Proposed Intervenors' impairment of interest arguments are unpersuasive, first, because P r o p o s e d Intervenors fail to provide a reason why an inequitable damage determination w ill result if intervention is denied; second, because Proposed Intervenors fail to d e m o n stra te that there will be an absence of relief elsewhere if the hypothetical scenario in which they suffer impairment due to inequitable allocation actually arises; and third, b e c a u s e Proposed Intervenors' res judicata concerns are misplaced. Proposed Intervenors' impairment of interest argument based upon their concern o v e r a potential "inequitable damage determination" is unpersuasive because Proposed In ter v e n o rs do not provide, and the court is unaware of, any reason why an "inequitable d a m a g e determination" will result if Proposed Intervenors are not allowed to participate. As discussed below in Part III.B.3, the court is not persuaded that plaintiff does not a d e q u a tely represent Proposed Intervenors in this litigation. See infra Part III.B.3. Both p la in tif f and Proposed Intervenors share an interest in maximizing the damages awarded f o r the breach of trust duties alleged in this action. Mot. 6 ("[B]oth the tribe and the h e a d rig h t owners have a common interest in obtaining the maximum damage award for th e breaches alleged."). There is no reason for the court to believe that plaintiff would n o t zealously carry forward its present claims, or any appellate proceedings it deems a p p ro p ria te. Proposed Intervenors' concerns are analogous to those of applicantinterve n o rs in Am. Renovation & Constr. Co. v. United States (American Renovation), w h o argued that their interest would be impaired because "plaintiff could settle the case f o r an improperly low amount or fail to settle at a reasonable amount which would result in the diminution of the value of [applicant-intervenor's] interest [in the contract at is s u e ]." American Renovation, 65 Fed. Cl. 254, 263-64 (2005). Here, as in American R e n o v a tio n , "The court does not find this `impairment of interest' particularly persuasive b e c a u se it would be illogical for Plaintiff not to actively seek the best outcome for its s ta k e in the case." 7 Id. at 264.

The court notes that in Am. Renovation & Constr. Co. v. United States (American Renovation), the court ultimately found that intervenors satisfied the impairment of interest requirement. American Renovation, 65 Fed. Cl. 254, 264 (2005). In American Renovation, however, the court found that intervention was proper because "entering this case is IntervenorApplicant's best (and probably last) chance to enforce its legal rights in connection with [the underlying contract]." Id. In this case, however, this action is neither the best nor the last chance for Proposed Intervenors to enforce their legal rights to their pro rata share in income from the mineral estate at issue in this case. To the contrary, any potential enforcement of their individual (continued...)
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7

A s to Proposed Intervenors' concerns over potential inequitable allocations to in d iv id u a l headright holders, defendant argues that Proposed Intervenors "will have other o p p o rtu n itie s to ensure their interests are represented in an allocation of any damages." D e f .'s Resp. 16. The court agrees. The court notes at the outset that any problems with th e ultimate distribution of damages awarded are speculative, at best. Here, as in Hage v. U n ited States (Hage), "the singular direct result of a judgment in favor of plaintiff would b e a monetary award from the government." Hage, 35 Fed. Cl. 737, 740-41 (1996) (a n a lo g iz in g the potential "award [of] a large judgment to plaintiffs" in Hage to the c irc u m s ta n c e s in Karuk Tribe and discussing the similarity between the two cases). While it is possible to speculate that Proposed Intervenors may be impaired in some way b y having to dispute the allocations they ultimately receive, "the court cannot assume that [ a ] . . . judgment necessarily will cause the effects which the group[] predict[s]." Id. at 7 4 1 . In addition, any possible consequences that may arise as a result of this court's ru lin g s are contingent upon actions and events involving intra-tribal determinations that lie outside the scope of this court's authority. Importantly, in the event that Proposed In te rv e n o rs find any future damages allocation inequitable, they have alternative venues to deal with inequitable allocation. Proposed Intervenors themselves acknowledge that " th e re are avenues to assure payment of any judgment [rendered by this court] provided b y the Indian Tribal Judgment Funds Use or Distribution Act." Reply 4. Numerous c o u rts have found intervention to be inappropriate "where relief is available elsewhere." Cheyenne-Arapaho Tribes of Indians of Oklahoma v. United States (Cheyenne-Arapaho), 1 Cl. Ct. 293, 296 n.4 (1983); see also id. at 296 (finding the prejudice to the potential in te rv e n o rs to be "slight, if indeed, existent" where they "made no showing that other f u tu re avenues of relief . . . are totally unavailable"); TRW Envtl. Safety Sys., Inc. v. U n ite d States, 16 Cl. Ct. 516, 519 (1989) (stating that the potential intervenor "would not a p p e ar to be substantially prejudiced by a denial of its motion, for [the applicant] retains its right to bring a separate action"); Ackley v. United States, 12 Cl. Ct. 306, 309 (1987) (f in d in g that the applicants' rights would not be prejudiced because they had filed a s e p a ra te action and their pursuit of that claim would not be inhibited by denying in te rv e n tio n ). This court can only determine whether plaintiff is entitled to compensation; it cannot determine whether the Tribe must pay headright holders any particular portion o f any judgment the court may grant in this case. Proposed Intervenors can protect their in te re st by contesting in another forum any inequitable allocations that occur subsequent to the judgment in this case. Here, as in Cheyenne-Arapaho, Proposed Intervenors "may still have recourse to an appropriate court to compel distribution in accordance with a p p lic a b le law." Cheyenne-Arapaho, 1 Cl. Ct. at 296 n.4 (citation omitted). "While the m o v a n ts may face the prospect of being excluded from the distribution of judgment (...continued) rights is more appropriately vindicated through other avenues, as discussed in this Part III.B.2.
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7

f u n d s , they have made no showing that other future avenues of relief, either in Congress, o r against the Tribe or others are totally unavailable." Id. at 296. For these reasons, d e n yin g intervention in this case does not operate to preclude Proposed Intervenors from s e e k in g relief elsewhere in order to protect their interests in their pro rata share of income d e riv e d from the mineral estate. Proposed Intervenors also argue impairment of interest based on their contention th a t the outcome of this case "may create a res judicata defense for the government if P ro p o se d Intervenors were disadvantaged and later attempted to otherwise enforce their rig h ts ." Reply 7. However, Proposed Intervenors' res judicata argument is unavailing w h e n analyzed in light of the law of the case. This court has previously found that the T rib e is the real party in interest in this litigation and that the Tribe owns the minerals w h ich are the subject of this action. Osage I, 57 Fed. Cl. at 395 ("headright holders are n o t in fact `the real parties in interest' because the Tribe, not the headright holders, is the d ire c t trust beneficiary."); Osage V, 81 Fed. Cl. at 349 ("the Osage [tribe] [is] the o w n e r[ ] of the minerals"). Accordingly, in Part III.B.1 of this opinion, the court found th a t Proposed Intervenors hold no legally protectable interest in the subject of this action. See supra Part III.B.1. Therefore, any attempt by Proposed Intervenors to "enforce their rig h ts ," Reply 7, after a final judgment is rendered in this litigation will be limited to an en fo rce m en t of their individual interests with regard to allocations of a monetary ju d g m e n t, and not as to the general damages determination. This case is limited to a d e te rm in a tio n of whether defendant breached its fiduciary duties to plaintiff and whether p lain tiff is entitled to compensation. The doctrine of stare decisis does not operate to p re c lu d e Proposed Intervenors from protecting their individual rights to a pro rata share in d a m a g e s awarded to the Osage Tribe. Proposed Intervenors' res judicata argument is m is p la c ed . F o r the foregoing reasons, Proposed Intervenors have not demonstrated that " w ith o u t intervention the disposition of the action may, as a practical matter, impair or im p e d e the applicants' ability to protect th[eir] interest." Freeman, 50 Fed. Cl. at 309. 3. A d e q u a cy of Representation by Existing Parties

In order to be granted intervention of right, applicants must demonstrate that "their in te re st is inadequately represented by the existing parties." Freeman, 50 Fed. Cl. at 3080 9 . Proposed Intervenors contend that plaintiff Osage Nation does not adequately re p re se n t their interests because "[the Tribe's] statements raise questions about whether th e current tribal government has an interest in . . . dilut[ing] the long-standing right of th e headright owners . . . to receive their designated share of Osage mineral income." Mot. 7. Plaintiff argues that Proposed Intervenors have asserted "only an imaginary
15

th re a t to their headright interests." Pl.'s Resp. 6. The court agrees with plaintiff. Proposed Intervenors have not proven that plaintiff Osage Nation inadequately represents th e ir interests, first, because Proposed Intervenors have merely stated a fear based on sp e c u latio n which is insufficient to show that the Osage Nation is not adequately re p re se n tin g their interests; and second, because the court finds that the relationship b e tw e e n the Osage Nation and Proposed Intervenors, themselves members of the Osage N a tio n , may properly be analogized to the relationship between the United States and its c itiz e n s, where the government is presumed adequately to represent an applicantin te rv e n o r' s interests. Proposed Intervenors rest their argument of inadequate representation on their sp e c u latio n as to plaintiff's interest in "dilut[ing]" Proposed Intervenors' rights to p roc ee d s from the mineral estate.8 Mot. 7. As an initial matter, Proposed Intervenors a p p e a r to acknowledge the weakness of their own argument when they concede in their R e p ly that "[t]he Osage Nation has . . . acknowledged the headright owners' interest in th e trust assets and royalties in accordance with the federal law establishing those rights." Reply 3. Nevertheless, Proposed Intervenors question plaintiff's motives based on the f a ct that plaintiff did not use the particular term "headright owners" in the Osage C o n s titu tio n or in plaintiff's third amended complaint filed in this action. Mot. 9. Proposed Intervenors' allegation that plaintiff may be motivated to dilute the rights of h e a d rig h t owners, based entirely on plaintiff's word choice in two documents, is u n p e rs u a siv e to show inadequate representation. The court's conclusion is supported by o f f ic ia l statements of plaintiff, including in the Osage Constitution, that reaffirm a c o m m itm e n t to preserve the rights of headright owners. See, e.g., Osage Const. (2006) a rt. XV, § 4 ("The government [of the Osage Nation] shall further ensure that the rights o f members of the Osage Nation to income derived from that Mineral Estate are p ro te c te d ); Pl.'s Resp. Exhibit (Ex.) A (Osage Nation Congress Resolution No. ONCR 0 8 -2 4 ) (declaring that "any proceeds [from this litigation] . . . should be distributed, after p a ym e n t of all appropriate litigation expenses, to Osage headright holders in accordance w ith their headright interests" and further declaring that no payment "be delayed by any a c t or failure to act of the Osage Nation").

Proposed Intervenors also argue inadequate representation due to the fact that Congress does not refer specifically to "headright owners" in a 2004 Act reaffirming certain rights of the Osage Tribe. Mot. 9; see Act of Dec. 3, 2004, Pub. L. No. 108-431, § 1(b)(1), 118 Stat. 2609 (2004) ("An Act to Reaffirm the Inherent Sovereign Rights of the Osage Tribe to Determine Its Membership and Form of Government") (2004 Act). The court finds this argument as to Congressional intent irrelevant to the merits of this motion. The disposition of this motion turns on Proposed Intervenors' failure to identify either a legally protectable interest or any reason to question the adequacy of representation by plaintiff Tribe.
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8

F u r th e r, Proposed Intervenors acknowledge candidly that "both the Tribe and the h e a d rig h t owners have a common interest in obtaining the maximum damage award for th e breaches alleged." Mot. 6. Nevertheless, Proposed Intervenors argue inadequate re p re se n tatio n based on the speculation that "their interests may diverge when it comes to th e issue of determining to whom those damages should be allocated." Id. (emphasis a d d e d ). Speculation about events that might occur subsequent to this litigation do not d e m o n s tr a te inadequate representation. Moreover, to the extent that the Tribe itself is a h ea d rig h t owner, it holds an interest identical to that of Proposed Intervenors. Def.'s R e sp . Ex. A (Declaration of Charles Hurlburt) ¶ 4 ("Current owners of headright interests in c l u d e . . . the Osage Tribe itself."); Mot. 5 ("The Tribe is the trust beneficiary and also h o ld s a small portion of outstanding headrights."). The court finds no indication that p l a in t if f is not vigorously carrying forward its claims. In addition, the court views the relationship between the Osage Nation and P ro p o se d Intervenors to be analogous to the relationship between the United States and its c itiz e n s, where the government is presumed adequately to represent an applicantin ter v e n o r's interests. Freeman, 50 Fed. Cl. at 310 (stating that the government is p resu m ed to represent an applicant's interest). In this case, Proposed Intervenors are m e m b e r s of plaintiff Osage Nation. Osage V, 81 Fed. Cl. at 345-46 (finding that h e a d rig h t holders possess "legal membership" in the Osage Nation as a matter of federal la w ). The United States Constitution recognizes Indian tribes as sovereign governments. See U.S. Const. art. I, § 8, cl. 3. Article I, § 8, of the Constitution gives Congress the p o w e r "[t]o regulate Commerce with foreign Nations, and among the several States, and w ith the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. The Supreme Court of the United S ta te s has stated that "Indian tribes are unique aggregations possessing attributes of s o v e re ig n ty over both their members and their territory." United States v. Mazurie, 419 U .S . 544, 557 (1975) (citing Worcester v. Georgia, 31 U.S. 515, 557 (1832)). The court p re su m e s that plaintiff Osage Tribe, with sovereignty over its members analogous to the so v e re ig n ty of the United States over its citizens, is competent to litigate claims on behalf o f and in the interest of its members and therefore adequately to represent Proposed In te rv e n o rs ' interests. Proposed Intervenors have neither rebutted that presumption, nor e v e n cast any shadow of doubt concerning the diligence with which the Osage Nation is re p re s e n tin g or will represent their interests. Proposed Intervenors claim inadequate representation based on the fact that they " h a v e not been advised of the Tribe's decisions or actions in the . . . case[], nor have they h a d an opportunity to offer input regarding them." Mot. 9; see also Reply 4 (stating that " P ro p o s e d Intervenors seek involvement . . . regarding the determination of damages" and h a v e "no input into what litigation expenses may be appropriately incurred and paid out o f the damages they might otherwise be entitled to receive"). However, Proposed
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In te rv e n o rs do not provide, and the court is unaware of, any support for the contention th a t these facts are sufficient to establish inadequate representation. To the extent that P r o p o s e d Intervenors are dissatisfied with their elected leadership, that is a problem that s h o u ld be addressed through an internal tribal mechanism. When applicants seek to intervene as a party on the side of the United States, "the a p p lic a n ts may rebut the presumption of adequate representation through a showing of c o llu s io n , adversity of interest, or nonfeasance." Freeman, 50 Fed. Cl. at 310. Proposed In te rv e n o rs do not urge that there is "collusion" or "nonfeasance." Mot. passim. However, Proposed Intervenors point to this court's opinion in Osage V to show that an a d v e rs ity of interest exists between themselves and plaintiff Tribe. Mot. 6. Proposed In te rv e n o rs confuse the court's finding of "material adversity" between the Osage Tribe an d the Osage Tribe's former counsel, then appearing as counsel for Original Intervenors in Osage V, 81 Fed. Cl. at 351, with the requirement of "adversity of interest" in the interve n tio n context. In Osage V, this court found that counsel for Original Intervenors a rg u e d for positions adverse to his former client, plaintiff Osage Tribe. Osage V, 81 Fed. C l. at 348-51. That finding was made by the court as part of its analysis leading to its d e c is io n to disqualify counsel for Original Intervenors. Id. at 351-53. The litigation p o s itio n s taken by counsel for Original Intervenors were adverse to the positions taken by p la in tif f . Osage V, 81 Fed. Cl. at 348-51 (discussing Original Intervenors' position that th e y were the ultimate beneficiaries in the case, whereas the Osage Tribe advocated the p o s itio n that the Tribe itself owned the beneficial interest in the mineral estate). In their Motion, Proposed Intervenors advocate that intervention is proper in this c a se while plaintiff Osage Nation responds in opposition. See Mot. passim; Pl.'s Resp. p a ss im . Adverse positions on the propriety of intervention, however, should not be p e rm itte d to blur the fact that both plaintiff and Proposed Intervenors share an interest in m a x im iz in g any compensation that this court may award. Mot. 6 ("[B]oth the tribe and the headright owners have a common interest in obtaining the maximum damage award f o r the breaches alleged."). Because the litigation goal of both plaintiff and Proposed In te rv e n o rs is the same, Proposed Intervenors have not demonstrated that there is an " a d v e r sity of interest" between themselves and the Osage Nation. Proposed Intervenors' re lia n c e on Osage V to establish adversity of interest is misplaced. 4. T im e lin e s s

U n d e r both Rule 24(a) and Rule 24(b), the application to intervene must be " tim e ly." RCFC 24(a), (b). The court determines timeliness from "all the circumstances" a n d exercises "sound discretion" in making its determination. NAACP v. New York, 413 U .S . 345, 366 (1973); see also Te-Moak Bands of W. Shoshone Indians v. United States,
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1 8 Cl. Ct. 82, 86 (1989) ("It is within the discretion of the court to decide which delays re n d e r motions untimely."); Cheyenne-Arapaho, 1 Cl. Ct. at 294 ("The question of tim e lin e ss is largely committed to the discretion of the trial court."). The court should e x a m in e three factors when determining whether a motion to intervene is timely: "(1) the length of time during which the would-be intervenor[s] actually k n e w or reasonably should have known of [their] right[s] . . . ; (2 ) whether the prejudice to the rights of existing parties by allowing in te rv e n tio n outweighs the prejudice to the would-be intervenor[s] by d e n yin g intervention; (3) existence of unusual circumstances militating either for or against a d e te rm in a tio n that the application is timely." J o h n R. Sand & Gravel Co. v. United States (J.R. Sand), 59 Fed. Cl. 645, 649 (2004) (qu o tin g Belton Indus., Inc. v. United States (Belton Indus.), 6 F.3d 756, 762 (Fed. Cir. 1 9 9 3 )), aff'd, 143 Fed. Appx. 317 (Fed. Cir. 2005) (table). A s to factor (1), because the court finds that Proposed Intervenors do not have, nor h a v e they previously held, a legally protectable interest in this litigation, factor (1) is irre le v a n t. See supra Part III.B.1. More specifically, because factor (1) speaks of a w o u ld -b e intervenor's "right," and Proposed Intervenors do not have a right to bring the u n d e rlyin g claims in this litigation, Proposed Intervenors do not, a fortiori, satisfy factor (1). A s to factor (3), Proposed Intervenors argue that special circumstances exist in this c a se because permitting intervention "avoids the complications of a class action c e rtific a tio n ." Reply 8. Because Proposed Intervenors neither qualify as an identifiable g ro u p pursuant to 28 U.S.C. § 1505, see supra Part III.A, nor have legally protectable rig h ts as individuals, see supra Part III.B.1, the court finds this argument moot. Accordingly, Proposed Intervenors do not satisfy factor (3). E v en if Proposed Intervenors were viewed as having satisfied factors (1) and (3), the court views intervention as prejudicial to the parties under factor (2) when the court " w e ig h [ s] the prejudice to the parties if intervention is allowed against the prejudice to th e potential intervenor[s] if intervention is not allowed." J.R. Sand, 59 Fed. Cl. at 651 (c itin g Belton Indus., 6 F.3d at 762). This prong measures only the prejudice caused by a p o te n tia l intervenor's delay and not that caused by the intervention itself. Utah Ass'n of C o u n tie s v. Clinton (Utah Association), 255 F.3d 1246, 1251 (10th Cir. 2001). Proposed In te rv e n o rs cast their argument on this prong in terms of a nineteen month delay ­ the p e rio d of time between the ratification of the Osage Constitution in 2006 and the date of
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f ilin g of Original Intervenors' motion to intervene, October 15, 2007. Mot. 10. However, because the court finds unpersuasive Proposed Intervenors' argument that the 2 0 0 6 Osage Constitution exhibits plaintiff's motive to dilute the Proposed Intervenors' in te re sts , see supra Part III.B.3, prejudice to the parties should be examined in light of the e ig h t-ye a r delay between the time plaintiff originally brought this suit in 1999 and the tim e at which Original Intervenors applied for intervention. An eight-year delay weighs a g a in s t Proposed Intervenors. See e.g., Cheyenne-Arapaho, 1 Cl. Ct. at 296 (finding sixye a r delay in applying for intervention a significant factor in denying intervention as u n tim e ly). In Utah Association, the court found that the parties were not prejudiced b e c au s e the case was "far from ready for final disposition; no scheduling order ha[d] been is s u e d , no trial date set, and no cut-off date for motions set." Utah Association, 255 F.3d a t 1250-51. In contrast, here there has already been a trial held and findings of fact and c o n c lu s io n s of law made concerning defendant's liability for some of plaintiff's Tranche O n e claims. Osage III, 72 Fed. Cl. at 631, 671. Several scheduling orders have been e n t e re d in this case since its inception, the most recent of which addressed the parties' d is c o v e ry and motion practice as to plaintiff's remaining claims. Order of Aug. 21, 2008, d k t. no. 319. In the differing circumstances of Freeman, this court found that "any p re ju d ic e to the existing parties would be minimal since there are no pending dispositive m o tio n s ." Freeman, 50 Fed. Cl. at 308. In the present case, the court had already issued a s c h e d u lin g order as to plaintiff's motion for partial summary judgment at the time P ro p o s e d Intervenors' Motion was fully briefed. Order of Aug. 21, 2008, dkt. no. 319. At the time of this decision, briefing on plaintiff's motion for partial summary judgment is pending. Plaintiff Osage Nation's Motion for Summary Judgment, Dec. 2, 2008, dkt. n o . 338. Proposed Intervenors argue that they will suffer prejudice if they are not allowed to in te rv e n e because their ability to protect their interest will be impeded by a judgment or s e ttle m e n t. Reply 9. However, because Proposed Intervenors have not demonstrated the a b se n c e of alternative venues in which relief may be sought, the prejudice they may suffer is minimal at best and intervention is inappropriate. See supra Part III.B.2. For the f o re g o in g reasons, Proposed Intervenors' Motion is untimely. C. P e rm is s iv e Intervention

T h e court has broad discretion in deciding whether to allow permissive in te rv e n tio n . 6 James Wm. Moore, Moore's Federal Practice § 24.10[1], at 24-57 (3d ed. 2 0 0 4 ) ("The [trial] court possesses broad discretion in determining whether to grant p erm issiv e intervention and will rarely be reversed on appeal."). In assessing whether a p o te n tia l intervenor should be granted permissive intervention, the court must decide that a would-be intervenor's application is timely and that there is a "common question of law
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o r fact" between the applicant's claim or defense and the main action. RCFC 24(b). "In e x e rc isin g its discretion, the court must consider whether the intervention will unduly d elay or prejudice the adjudication of the original parties' rights." Id. Because the court h a s already decided that Proposed Intervenors' Motion does not meet the timeliness req u irem en t, see supra Part III.B.4, permissive intervention is inappropriate. However, e v e n if Proposed Intervenors' Motion were viewed as timely, Proposed Intervenors fall s h o rt of meeting the standard for permissive intervention. P ro p o se d Intervenors state that they "should be permitted to intervene pursuant to R C F C 24(b) because their claims and the main action have questions of law or fact in c o m m o n ." Mot. 11. To the extent that Proposed Intervenors' claims adopt the complaint f ile d by plaintiff Osage Nation, see supra Part III.B.1, the court has previously ruled that th e Tribe, not the headright holders, is the real party in interest and therefore has standing to bring the claims against the government presently at issue in this litigation. Osage I, 57 F e d . Cl. at 395. In addition, the court has already found that plaintiff adequately r e p re s e n ts Proposed Intervenors in this litigation. See supra Part III.B.3. The court must a ls o "consider whether an intervenor would burden or prolong the proceedings by filing a c o u n te rc la im or motions on extraneous issues." Freeman, 50 Fed. Cl. at 310; see also 6 J a m e s Wm. Moore, Moore's Federal Practice § 24.10[1], at 24-57 (3d ed. 2004) (" [ C ] o n sid e ra tio n s of trial convenience dominate the question of whether to allow p e rm iss iv e intervention."). While Proposed Intervenors state that they "do not seek to d is ru p t the present status of the case," Mot. 11, and that "[p]ermitting . . . intervention . . . in this case will not cause a delay in adjudication of it," id., it would be unrealistic to c o n c lu d e that granting intervention would not affect this litigation. In the present case, b o th Proposed Intervenors and plaintiff are attempting to prove that defendant has b re a ch e d its fiduciary duties owed to the Osage Tribe and accordingly maximize any ju d g m e n t awarded. The duplicative nature of the evidence will not shed any additional light on th is issue. The ultimate objectives of the [parties] are the same . . . . Allowing the [intervenor-]applicants to intervene in this case would th re a te n expedient disposition of this action. F re e m a n , 50 Fed. Cl. at 311. Here, as in Hage, "intervention would not serve the interests o f judicial economy because the applicants merely argue issues raised by the primary p a rtie s." Hage, 35 Fed. Cl. at 742. F u rth e rm o re , to the extent that Proposed Intervenors seek intervention now in o rd e r later to adjudicate any potential future complaints over allocations of damages that th e y may regard as inequitable, this case can be analogized to cases in which permissive
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in te rv e n tio n has been denied on the basis that the would-be intervenors do not have a c la im against the United States. In situations where a plaintiff has sued the United States a n d an applicant seeks to intervene as a defendant, courts have found permissive in te rv e n tio n to be inappropriate because the applicant does not have a claim against the U n ite d States. See, e.g., Hage, 35 Fed. Cl. at 742 (denying permissive intervention b e c au s e the applicants "do not have a claim against the United States"); Karuk Tribe, 27 F e d . Cl. at 432 (denying permissive intervention because "the applicant-intervenors do n o t have a claim or defense against the United States" and the "court entertains suits a g a in s t the government"). These rulings stem from the nature of this court's jurisdiction. Under the Tucker Act this court has jurisdiction to render judgment upon any claim against the United States f o u n d e d either upon the Constitution, or any Act of Congress or any re g u la tio n of an executive department, or upon any express or implied c o n tra c t with the United States, or for liquidated or unliquidated damages in c a se s not sounding in tort. 2 8 U.S.C. § 1491(a)(1) (2006).9 First, the court cannot claim jurisdiction over h yp o th e tic a l claims that Proposed Interven