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Ore. tribes await outcome of trust fund case
Thursday, April 17, 2003

The Bush administration is challenging a trust fund ruling that holds the federal government accountable for poor record-keeping, a tribal attorney said.

The Confederated Warm Springs Tribes of Oregon were awarded $13.8 million last June by the U.S. Court of Claims. In the unpublished June 20 decision, U.S. District Judge Robert H. Hodges said the Bureau of Indian Affairs mishandled "practically every phase" of a timber sale more than 10 years ago.

Howie Arnett, an attorney for the tribe, called the case an "extremely important" one for Indian Country. Speaking at the Federal Bar Association's annual Indian law conference in Albuquerque, New Mexico, he said it places the burden of proof on the government in breach of trust claims.

"The fact that the BIA has incomplete records can't be held against the tribe," he told the attendees last Friday.

The judgment came after the Federal Circuit Court of Appeals, in a unanimous May 2001 decision, agreed there was a viable claim. "Under trust law generally, a beneficiary is entitled to recover damages for the improper management of the trust's investment assets," Judge William Curtis Bryson wrote for the majority.

In 1990, the Warm Springs Tribes agreed to a "salvage" timber sale because a winter storm damaged some trees. But the tribes said the BIA went overboard by cutting down perfectly healthy trees that could have been sold on the export market for a higher price at a later date. And of the trees that were sold, the tribes said they didn't receive all the money.

When the discrepancies were questioned, Arnett said the government couldn't account for the missing assets. "The United States has to come back with good proof, with complete records to counter the tribe's claim," he said. "If the United States can't do that, then the tribe wins on its theory of damages."

The Department of Justice filed a notice of appeal to the award in August 2002. But government lawyers were able to delay the case while they watched the outcome of the Navajo Nation's $600 million claim and the White Mountain Apache Tribe's $14 million claim.

The Supreme Court last month threw out the Navajo Nation's case and affirmed the Apache claim. Now, Arnett said, the Warm Springs Tribes are waiting for the Bush administration to figure out its next move.

The tribes are arguing that the Navajo Nation decision "hasn't changed anything," Arnett said, and have asked the Federal Circuit to dismiss the appeal. DOJ has yet to file its opening brief.

Relevant Decisions:
THE CONFED. TRIBES OF THE WARM SPRINGS RESERV. OF OREGON v. US, No 00-5002 (Fed Cir. May 10, 2001)

Related Stories:
Confederated Tribes of the Warm Springs Reservation - http://www.warmsprings.com

Related Stories:
Bush strategy assumes no trust mismanagement (11/05)
Review disputes 'costly' Indian trust litigation (10/21)
Breach of trust case brings $13.8M (7/3)
Tribe wins trust case appeal (5/14)

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