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Trust
Tribal trust claims face challenge from Bush


Tribes with billions of dollars in trust mismanagement claims will face additional challenges from the Bush administration when lawmakers go back to work in a couple of weeks.

More than two dozen tribes have filed breach of trust lawsuits in federal courts. Dozens more are considering their own claims over mismanaged funds and assets, such as oil, gas and timber resources.

Both types of cases could be wiped away if the administration can convince Congress to implement a set of sweeping trust reform proposals. "If approved, these changes would chip away at the trust responsibility of the federal government to the Indian tribes, and would likely lead to even greater cuts in Indian programs," said Mark Chino, the president of the Mescalero Apache Nation of New Mexico.

Chino sounded alarms on the "briefing paper" released by the Senate Indian Affairs Committee last week. He said the proposed changes -- described by staffers as potentially critical in order to pass the bill -- would "relieve" the federal government of its liability and place more burdens on tribes and individual Indians.

"Indian tribes must band together in opposition to this very dangerous proposal," he said yesterday.

But that's not the only challenge tribes are facing when Congress returns after the November 7 elections. The deadline to file historical accounting claims for mismanaged funds will run out December 31 unless it is extended by law.

Congress has easily extended the deadline in recent years in order to give tribes more time to consider lawsuits. The Bush administration was supportive in hopes of encouraging settlement talks.

That changed, however, last year. "The administration opposes any further extensions," the Department of Justice said in response to a bill that would have extended the deadline to December 2011.

Bush officials say tribes have been given more than enough time to consider the Arthur Andersen reports that were prepared by the now-defunct accounting firm back in the 1990s. "Under these circumstances, we believe that further delay in presentation of these claims is not in the public interest," DOJ said.

Paul Little, a council member for the Oglala Sioux Tribe of South Dakota and president of the Great Plains Tribal Water Alliance, said tribal claims potentially run in the "billions of dollars." His organization held a meeting in Rapid City last month to warn tribes about the pending deadline.

"It will add insult to injury," if the deadline passes without some form of action, he said. "Tribes have to wake up and defend their people on these survival issues."

The Arthur Andersen reports were the first major accounting of the tribal trust accounts, which currently hold more than $3 billion in revenues derived from natural resource development, land claim settlements, leases and judgment or per capita funds.

But the project was severely hindered by the lack of records. It only covered the years 1973 through 1992 even though some trust accounts date to the early 1900s.

Arthur Andersen also relied on information contained in an outdated computer system that even former Interior Secretary of Interior Gale Norton and other top officials have acknowledged is inaccurate.

Even with those limitations, the firm reported $2.3 billion in unaccounted transactions. That has led the General Accountability Office to tell Congress that a full historical accounting is "impossible."

That hasn't stopped government lawyers from arguing the project fulfilled the fiduciary duty to account. In the Osage Nation's landmark case, the government tried to bar the tribe from raising certain claims that went beyond the Andersen report, which said the tribe wasn't paid at least $791,046.37 in royalties.

Briefing Paper:
NEWLY PROPOSED PROVISIONS FOR SENATE BILL 1439 THE INDIAN TRUST REFORM ACT (SCIA 10/23)

Press Release:
ADDITIONAL CONSULTATION MEETINGS TO BE HELD ON S.1439 (SCIA 10/19)

Relevant Documents:
Staff Draft of Cobell Settlement Bill (Posted by ITMA)

Senate Indian Affairs Committee Statement:
INDIAN AFFAIRS COMMITTEE POSTPONES CONSIDERATION OF TRUST REFORM LEGISLATION (August 2, 2006)

DOJ Letter:
Opposition to Extending Statute of Limitations (December 2005)

Statute of Limitations Bill:
S.1892 | H.R.4292 | Congressional Budget Office Cost Estimate

Indian Trust Reform Act:
S.1439 | H.R.4322

Relevant Links:
Inter-Tribal Monitoring Association - http://www.itmatrustfunds.org/index.cfm
Senate Indian Affairs Committee - http://indian.senate.gov
Indian Trust: Cobell v. Kempthorne - http://www.indiantrust.com