FROM THE ARCHIVE

Review disputes 'costly' Indian trust litigation

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MONDAY, OCTOBER 21, 2002

An independent review of Indian trust decisions attempts to counter Bush administration claims of a flood of "costly" litigation over mismanagement of Indian assets.

The Mississippi Band of Choctaws hired a research firm to look at dozens of trust cases filed on behalf of individual Indian and tribal beneficiaries. "The results of the study were striking," the tribe wrote in a Supreme Court brief.

According to the study of 108 claims, the vast majority -- nearly two-thirds (71) -- were dismissed without any award to the Indian plaintiffs. Some cases were dismissed by the parties while others were thrown out in court.

Of the remaining 36 claims that made it to a final judgment or some type of settlement, only 11 resulted in an award greater than $1 million, the study found. The average award in the other 26 cases was just $120,000, according to the tribal study.

The review was presented in a friend of the court brief to the Supreme Court, which in December will hear two tribal trust cases. One affects the Navajo Nation's $600 million claim while the other involves a $14 million dispute over crumbling school and other buildings on the Fort Apache Reservation in Arizona.

Although the Supreme Court didn't state its reason for agreeing to review the cases, pleadings by Bush administration attorneys cited impacts to the federal government's pocket book. But the tribal study showed that tribal victories were far and few in between and involved dollar amounts nowhere near the Navajo Nation's landmark claim.

"This dismal track record stands in contrast to the record tribal interests chalked up during the Burger years, when they won 58% of their Supreme Court cases," the brief states, quoting a 2001 review by David H. Getches, a University of Colorado law professor with expertise in Indian law.

For example, the largest award was in the Short case regarding timber assets on the Hoopa Valley Reservation in California. Filed in 1963, the $52.4 million judgment on behalf of the individual Indian plaintiffs wasn't made final until 1993.

The second highest award was in the Mitchell case involving timber resources on the Quinault Reservation in Washington. Lead plaintiff Helen Mitchell filed the claim in 1971, and after two trips to the Supreme Court, the final judgment of $26.6 million was entered in 1989.

The remainder of the large dollar cases involved tribal beneficiaries. The largest, $13.8 million, was to the Warm Springs Tribes of Oregon this past June, but the Bush administration is also challenging the challenging the decision.

The study only examined the Court of Federal Claims because that is where the Navajo and Apache cases originated. Tribes have filed nearly two dozen breach of trust cases in the federal district courts but none have been resolved.

The review also didn't look at costs incurred by either the Indian beneficiaries or the federal government during the course of litigation.

Relevant Documents:
Review of Cases | Amicus Brief

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