FROM THE ARCHIVE

Tribes mired in trust fund resolution

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FRIDAY, JUNE 7, 2002

A coalition of tribes with billions of dollars worth of outstanding trust fund mismanagement claims has expressed reservations about the Bush administration's attempt to move towards a settlement.

Tribal leaders admit they were surprised when Deputy Interior Secretary J. Steven Griles first proposed an out-of-court resolution to the lawsuits, which have been piling up in the federal court system. While reacting with a willingness to listen and engage in formal consultation with government officials, they are wary of the recent overture, extended as part of ongoing talks to reorganize Indian trust duties within the Department of Interior.

"I would caution," said one tribal attorney at a recent meeting, "[to] watch your back side when you are dealing with them because they are trying to take control of the process.

"We all know what that control has gotten them for the last hundred years," the attorney said.

Skeptics charge the offer is merely another stall tactic. Coupled with the Bush administration's appeal of two trust-related lawsuits to the Supreme Court, the proposal's timing is suspect to some in Indian Country.

"This is the ultimate of our love-hate relationship that we have with the government," said a participant in the talks.

With the Cobell lawsuit over individual Indian assets entering its sixth year, the issue has gained in importance. Tribes have paid close attention to the case, hoping to replicate its successes and reclaim funds they are sure have been lost.

The tribal suits, however, differ in respects from the landmark and bitter Individual Indian Money (IIM) class action, which represents more than 300,000 American Indians. Some tribes seek a breach of trust finding to enable them to collect damages while others, like Cobell, want an historical accounting in advance of a restatement.

Whatever the nature of the disputes, department officials have indicated their desire to settle. Griles met with the Inter-Tribal Monitoring Association (ITMA), representing more than 50 tribes, last month to discuss a framework for a settlement although some members of the organization did not attend based on the advice of attorneys.

Still, some tribes view the move as beneficial due to the lack of resources available to fight the Department of Justice. Like the Cobell case, the money and time required is almost prohibitive, according to attorneys involved.

Members of Congress encourage settlement, too, noting similar funding restraints. Key leaders in the House and Senate moved quickly to pass a bill, which President Bush signed, to ensure tribes won't be trapped by a statute of limitations requirement.

What's at stake is billions of dollars, tribes and the Bush administration acknowledge. The Osage Nation of Oklahoma, for example, claims at least $2.5 billion, if not more, based on the results of a Arthur Andersen reconciliation project widely accepted as not providing a full picture of the lost funds.

Suits have been lodged in the Court of Claims in Washington, D.C., and federal district courts throughout the country. The Supreme Court's decision to take two breach of trust cases stemmed from the Court of Claims, leading some to fear the repercussions of a future ruling.

"If you have an action in the Court of Claims right now, you have go to be concerned," said an attorney closely involved in trust fund litigation.

Department officials will again speak with member tribes of ITMA, which is currently chaired by ousted Osage Chief Charles Tillman. A meeting is scheduled next week in Bismarck, N.D., where the mid-year session of the National Congress of American Indians (NCAI) is taking place.

Relevant Links:
Inter-Tribal Monitoring Association - http://www.itmatrustfunds.org/index.cfm

Related Stories:
Trust accounting looms for tribes (3/20)
GAO: Full reconciliation impossible (2/8)