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The Rise of Tribes and the Fall of Federal Indian Law
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Supreme Court to weigh appeal of trust lawsuit
Thursday, April 7, 2005

Two years after losing an attempt to limit the federal government's fiduciary responsibilities, the Bush administration is back at the U.S. Supreme Court with another trust case.

The Department of Justice has asked the high court to overturn decisions favoring two Wyoming tribes. The government was found liable for mismanaging oil, gas and other trust assets on the Wind River Reservation.

But the administration's appeal has the potential to affect tribes elsewhere. Government lawyers are challenging an appropriations rider that has provided the basis for more than 20 historical accounting lawsuits currently in the federal court system.

It could also affect the Cobell v. Norton lawsuit involving individual Indian trust funds. In briefs, the government notes that the federal judge handling the case has reinstated a broad historical accounting of billions in Indian money.

The lower court decisions "will substantially increase the volume and complexity of Indian trust litigation, as well as the potential monetary exposure of the United States in suits alleging breach of the government's trust obligations," DOJ wrote on March 25.

The appeal comes amid a request by U.S. Attorney General Alberto Gonzales for more resources to fight the tribal trust lawsuits. In testimony to Congress last month, he asked for $7.4 million and 18 positions to defend the federal government.

"The United States' potential exposure in these cases is more than $200 billion," Gonzales said. "Adequate resources are necessary to limit exposure and establish proper precedent for the United States."

The testimony was given to a House subcommittee headed by Rep. Frank Wolf (R-Virginia), who has inserted anti-tribal riders in appropriations bills in recent years. In 2003, he tried to redirect $3.1 million in Bureau of Indian Affairs money to the Department of Justice to fight the trust cases.

Wolf's riders were removed from the appropriations bill but other lawmakers are already considering ways to respond to the lobbying of the Bush administration, at least on the Cobell case.

"This is just not right," said Rep. Norm Dicks (D-Washington), who handles Interior's appropriations bill, when apprised of the situation by Interior associate deputy secretary Jim Cason.

The rider at issue in the Supreme Court case dates to 1990. It states that the standard six-year statute of limitations on lawsuits against the U.S. does not apply to tribes or individual Indians until an accounting of their respective trust funds has been provided.

The rider has been included in every single appropriations bill since then, and was the subject of a separate bill sponsored by former Sen. Ben Nighthorse Campbell (R-Colorado). "It is about avoiding litigation which I think is in everyone's interest," Campbell said at a February 2002 hearing. The bill was signed into law by President Bush a month later.

Litigation has continued as the Interior Department has spent tens of millions on accounting projects for tribes and individual Indians. The Bush administration has taken a limited view of the effort, refusing to go back to the inception of the trust accounts and refusing to consider whether account holders received the proper amount of money for use of their land, minerals and other assets.

That view plays into the Supreme Court appeal as government lawyers seek to prevent Interior from conducting an accounting going back decades and for mismanaging trust assets. Special Trustee Ross Swimmer has said any accounting should be restricted to monetary assets.

The dispute is complicated somewhat because the Eastern Shoshone Tribe and the Northern Arapaho Tribe have asked the high court to determine whether they are entitled to the best price for their sand and gravel assets. The lower court ruled they had no claim on this point.

The justices will consider the appeal at a conference meeting on April 15. They will announce whether or not they will take the case the following week.

The last time the trust was at issue before the top court was in March 2003, when the justices refused to endorse the Bush administration's attempt to limit liability for alleged mismanagement.

DOJ Briefs:
DOJ Petition | DOJ Appendix | Reply | Response

Tribal Briefs:
Tribal Petition | Response

Docket Sheets:
US v. Shoshone Indian Tribe | Eastern Shoshone Tribe v. US

Other Documents:
Alberto Gonzales Testimony (March 1, 2005)

Lower Court Decision:
SHOSHONE INDIAN TRIBE OF THE WIND RIVER RESERVATION v. US (April 7, 2004)

Relevant Links:
Eastern Shoshone Tribe - http://www.easternshoshone.net
Northern Arapaho Tribe - http://www.northernarapaho.com
NCAI-NARF Supreme Court Project - http://doc.narf.org/sc/index.html

Related Stories:
Bush administration won't give up fight on Cobell (03/18)
Wind River Tribes settle some trust claims for $12M (06/11)
Wyoming tribes win appeal of breach of trust lawsuit (04/08)
Appeals court revives Wind River royalty fraud case (4/7)
Judge advances suit over royalty mismanagement (10/03)
Judge upholds ongoing trust relationship (04/29)
Navajo Nation fallout considered (3/7)
Navajo Nation's Peabody lawsuit to continue (3/7)
Supreme Court issues trust decisions (3/4)
Supreme Court upholds common law trust claim (3/5)
High court ruling makes 'passive' trustee of U.S. (3/5)
A mixed bag for Indian trust (3/5)
Supreme Court offers split victory on trust (3/5)
Supreme Court issues trust decisions (3/4)

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