Bush administration seeks to limit trust liability

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Bush administration seeks to limit trust liability
Thursday, January 20, 2005

The Bush administration is once again trying to limit the federal government's liability for mismanaging billions of dollars in Indian trust funds.

Earlier this month, the Department of Justice asked the U.S. Supreme Court to pull back the reins on a slew of historical accounting lawsuits filed by tribes and individual Indians. Government lawyers said the claims could "substantially increase" the government's liability for failing to manage trust funds dating as far back as 100 years.

"Both the number and the potential dollar value of possible breach-of-trust claims against the United States are enormous," the attorneys wrote on January 7.

The petition, filed in a case involving two Wyoming tribes, is the second time the administration has asked the nation's highest court to intervene in the trust fund fiasco. During Bush's first term, government lawyers warned that the U.S. would be on the hook for billions if mismanagement lawsuits were allowed to continue.

That effort largely failed. In two split decisions, members of the court reaffirmed the right of tribes and individual Indians to seek damages for mismanagement of their trust assets. The justices also declined to endorse the administration's limited view of the trust relationship.

But defeat hasn't stopped the Interior Department from trying to curtail its responsibilities. In the Cobell lawsuit over the Individual Indian Money (IIM) trust, for example, officials have narrowly construed their duty to conduct an historical accounting by refusing to go all the way back to the inception of the trust in 1887 and ignoring whether payments actually made it into the accounts.

Those two issues are at the heart of the case at issue before the court. On the first point, the administration is challenging an appropriations rider that gave tribes and individual Indians more time to file breach of trust lawsuits. On the second, the government says trust beneficiaries are not entitled to damages for payments that, for whatever reason, were never collected.

The Federal Circuit Court of Appeals arrived at a different conclusion on both issues. In a ruling last April, a 2-1 majority said the rider lifts the customary six-year statute of limitations imposed on lawsuits against the government and said the Eastern Shoshone Tribe and the Northern Arapaho Tribe were entitled to pre-judgment interest on lease money that never made it into their accounts or was delayed.

The rider, which first appeared in the 1990 Interior appropriations act, is a significant issue because several other tribes have cited it as part of their cases. As interpreted by lower courts, the provision has allowed tribes to seek damages dating as far back as the early 1900s.

But in the government's view, the tribes would only be allowed to go back six years prior to the filing of the lawsuit. If the high court agrees, trust beneficiaries could lost out on millions.

"If suits alleging breach of the government�s trust obligations � in this case, for claims arising out of events dating back to 1946 � may proceed without regard to the otherwise-applicable statute of limitations, both the potential dollar amounts of any recoveries that the plaintiffs may ultimately obtain, and the burden and expense of locating, assembling, and assessing the evidence necessary to resolve the claims of trust mismanagement, will be greatly increased," DOJ wrote in the petition.

The second point is equally important because mismanagement cases are often based on allegations that tribes and individual Indians never received the proper amount of money for use of their land, minerals or other natural resources. But the Bush administration says the government can't be liable for "money that was never paid into the trust in the first place," according to the attorneys.

Also, the attorneys are advancing a view held by Special Trustee Ross Swimmer and others that an historical accounting is limited to "monetary assets," not the actual trust assets. This interpretation has allowed the administration to complete the accounting within five years at an estimated cost of $335 million.

After the Federal Circuit ruling, the Eastern Shoshone Tribe and the Northern Arapaho Tribe agreed to settle their sand and gravel claims for $2.75 million and their oil and gas claims $12 million. But the tribes and the government agreed to preserve their right to appeal.

The tribes have exercised that right and are disputing part of the ruling that said they weren't entitled to the damages for mismanagement of trust assets. The tribes argue that they didn't receive the best price for their sand and gravel but the circuit court ruled there was no fiduciary or statutory duty to do so.

"Congress was concerned not only about improper handling of trust funds, but also 'losses to trust funds' due to the government�s mismanagement of trust assets," the tribes responded in their petition.

The tribal response to the government's petition is due February 7. The government's response to the tribal petition is due February 2.

Relevant Documents:
DOJ Petition | DOJ Appendix | Tribal Petition

Docket Sheets:
US v. Shoshone Indian Tribe | Eastern Shoshone Tribe v. US

Lower Court Decision:
SHOSHONE INDIAN TRIBE OF THE WIND RIVER RESERVATION v. US (April 7, 2004)

Relevant Links:
Eastern Shoshone Tribe - http://www.easternshoshone.net
Northern Arapaho Tribe - http://www.northernarapaho.com