The Theodore Roosevelt School on the Fort Apache Reservation in Arizona. Photo: Phillip Capper
Law | National | Trust

White Mountain Apache Tribe scores important win in trust fund case




The White Mountain Apache Tribe can sue the federal government for mismanaging its trust funds all the way back to 1946, a federal judge said in a ruling with major implications for Indian Country.

Government attorneys sought to limit the tribe's claim to 2011, or six years prior to the filing of the tribe's lawsuit in 2017. But Senior Judge Edward J. Damich of the U.S. Court of Federal Claims rejected the effort, noting that the tribe never received a proper accounting of the trust funds at issue.

"This court agrees that the tribe has not received a meaningful accounting from which to determine a loss," Damich wrote in the 14-page decision, a copy of which was posted by Turtle Talk.

The ruling, dated January 5, was not a complete victory for the tribe. Other claims regarding mismanagement of forests and grazing land are limited to 2011, Damich determined.

But the ruling on the trust funds is significant. During the Bush administration, when the federal government was under heavy fire for its handling of the Cobell lawsuit and other lawsuits, the Department of the Interior began arguing that a change in federal law limits the time period for which tribes can bring claims.

As a result, more than 100 tribes rushed to court in an effort to beat the clock. The Obama administration ended up settling the vast majority of the cases, with the dollar value totaling more than $3.3 billion. The Cobell case, which affected the trust funds of individual Indians, was settled for $3.4 billion, also during the Obama era.

Other tribes, however, didn't file lawsuits until much later. The White Mountain Apache Tribe, whose Fort Apache Reservation is located in Arizona, didn't go to court until March 2017.

The late date prompted government attorneys to argue that any pre-2011 claims “expired” due to the change in federal law, a change that was made at the behest of the Bush administration. Damich's decision effectively obliterates that idea, ensuring that tribes can't be punished for the federal government's failure to provide them with a "meaningful" accounting of their trust funds.

"This ruling presents an important opportunity for any other tribe that has not yet filed and concluded a breach of trust claim regarding mismanagement of its tribal trust funds," attorneys Steven D. Gordon and Philip Baker-Shenk of Holland & Knight, a prominent Indian law, lobbying and policy firm, wrote in an analysis.

"The absence of a limitations period makes a very large difference in evaluating the prospective damages that the tribe could recover through such a claim," they added, highlighting the monetary implications of Damich's ruling.

In 1975, the White Mountain Apache Tribe received an accounting of its trust funds, according to the decision. But the report only covered the years 1897 to 1946.

Over the years, the Bureau of Indian Affairs has attempted to provide tribes with additional information about their trust funds. But a full reconciliation is "impossible," the Government Accounting Office told Congress in 2002, due to inadequate records and limitations of computer systems.

Congress acknowledged the difficulty of accounting efforts by repeatedly including a "tolling" provision in Interior's appropriations bills. The provision essentially stopped the clock on the standard six-year statute of limitations that applies to lawsuits against the federal government.

The last tolling provision appeared in the Consolidated Appropriations Act of 2014 but the tribe convinced the Court of Federal Claims that its rights did not expire, as government attorneys had argued.

"The tribe persuasively argues that the plain language of the act does not limit claim filings to the year in which the act was enacted but rather that the tolling does not begin until the tribe receives an accounting," Damich wrote.

The tribe previously won a major breach of trust case in 2003. The U.S. Supreme Court, by a vote of 5 to 4, held that the tribe could recover damages for the Theodore Roosevelt School, a federally-run school on the reservation that fell into disrepair.

The tolling provision in the Consolidated Appropriations Act of 2014 follows:
notwithstanding any other provision of law, the statute of limitations shall not commence to run on any claim including any claim in litigation pending on the date of the enactment of this Act, concerning losses to or mismanagement of trust funds, until the affected Indian tribe or individual Indian has been furnished with an accounting of such funds from which the beneficiary can determine whether there has been a loss