trust relationship

Federal Government Trust Management Settlement with 41 Tribes Announced

Matthew L.M. Fletcher7 Comments

ATTORNEY GENERAL HOLDER AND SECRETARY SALAZAR ANNOUNCE $1 BILLION SETTLEMENT

OF TRIBAL TRUST ACCOUNTING AND MANAGEMENT LAWSUITS FILED BY MORE THAN 40 TRIBES

WASHINGTON – Attorney General Eric Holder and Secretary of the Interior Ken Salazar today announced the settlement of lawsuits filed by 41 federally-recognized tribes against the United States, in which the tribes alleged that the Department of the Interior and the Department of the Treasury had mismanaged monetary assets and natural resources held in trust by the United States for the benefit of the tribes.  The announcement followed a 22-month-long negotiation between the tribes and the United States that has culminated in settlements between the government and tribes totaling more than $1 billion.

These settlements resolve claims dating back more than 100 years and will bring to an end protracted litigation that has burdened both the plaintiffs and the United States.  Ending these long-running disputes about the United States’ management of trust funds and non-monetary trust resources will allow the United States and the tribes to move beyond the distrust exacerbated by years of litigation.  These settlement agreements represent a significant milestone in the improvement of the United States’ relationship with Indian tribes.

“These settlements fairly and honorably resolve historical grievances over the accounting and management of tribal trust funds, trust lands and other non-monetary trust resources that, for far too long, have been a source of conflict between Indian tribes and the United States,” said Attorney General Holder.  “Our commitment to tribes is the cornerstone of the Department of Justice’s policies and initiatives in Indian Country, and these settlements will enable the tribal community to pursue the goals and objectives they deem to be appropriate while marking another step in our shared future built upon mutual respect and strong bonds of trust between tribal governments and the United States.”

“These important settlements reflect President Obama’s continuing commitment to ensuring empowerment and reconciliation for American Indians,” said Secretary Salazar.  “It strengthens the government-to-government relationship with Tribal nations, helps restore a positive working relationship with Indian Country leaders and empowers American Indian communities.  I want to commend Attorney General Holder, our Interior Solicitor Hilary Tompkins and other key officials who were involved in the long negotiations leading to these historic agreements.  I look forward to working with Tribal leaders to further strengthen our government-to-government relationship based on mutual respect and a shared concern for the proper management of tribal trust assets and funds.”

Continue reading →

Eighth Circuit Rejects Effort to Move Trust Breach Claims to Court of Federal Claims

Matthew L.M. Fletcher

Here is today’s opinion (the third Indian law opinion from the CA8 this week!) in Bernard v. Dept. of Interior:

CA8 Opinion in Bernard v DOI

The briefs:

Bernard Opening Brief

Interior Appellee Brief

Bernard Reply

Excerpts:

Maynard Bernard decided to develop some of the Indian trust land he owned on the Sisseton Wahpeton Reservation in a project planned with his cousin Grady Renville. Bernard and Renville consulted a Bureau of Indian Affairs (BIA) realty officer about how to proceed. She advised Bernard to sign a gift deed to convey the entire property to himself and Renville asjoint tenants with the right of survivorship.  The agency subsequently denied a request by Bernard and his wife Florine to set aside the deed. After an unsuccessful administrative appeal the Bernards brought an action in federal district court against the United States Department of the Interior (the Department) seeking review of the agency  decision and money damages for breach of trust. The Bernards later amended their complaint to eliminate the damage
claim and subsequently settled with Renville, who agreed to deed back some of the land. After the district court affirmed the administrative decision and dismissed the Bernards’ action, they moved to alter the judgment, seeking transfer of their damage claim to the Court of Federal Claims (CFC). The district court denied the motion, and the Bernards appeal. We affirm.

And:

We recognize that the facts of this case are troubling. Apparently on her own initiative, the BIA realty officer advised Bernard to sign a gift deed conveying half of his interest in his entire property to Renville in a joint tenancy with the right of survivorship. In addition she told Bernard that this would be only a “temporary” arrangement based on Renville’s alleged oral assurances, and she permitted Bernard to waive appraisal of his land before the transfer. She also allowed Renville to fill out the gift deed application, apparently because Bernard’s eyesight was so bad he could not do it himself.

Federal Court Dismisses Trust Breach Claim by Osage Headright Beneficiaries

Matthew L.M. Fletcher1 Comment

Here are the materials in Fletcher v. United States (N.D. Okla.):

DCT Order Dismissing Third Amended Complaint

USA Motion to Dismiss

Fletcher Opposition

USA Reply

Our prior post on this case (from 2009) is here.

Federal Court Decides “Old Section 81” Case — Quantum Enter. v. Interior

Matthew L.M. Fletcher2 Comments

Here are the materials in Quantum Entertainment Ltd. v. Dept. of Interior (D. D.C.):

Quantum Entertainment Complaint

Exhibits

Interior Motion for Summary Judgment

Quantum Motion for Summary Judgment

DCT Order Affirming IBIA Decision

Amicus Briefs Supporting Respondent in Salazar v. Ramah Navajo Chapter

Matthew L.M. Fletcher

Here:

11-551 Amicus Chamber of Commerce

11-551 Ramah Amicus National Congress of American Indians et al

No. 11-551 Arctic Amicus in Ramah 3-26-12

Respondent Brief in Salazar v. Ramah Navajo Chapter

Matthew L.M. Fletcher

Here:

Ramah Brief

Colette Routel and Jeffrey Holth have posted a paper on tribal consultation on SSRN

Ann Tweedy

It looks like an interesting and valuable piece. Here’s the abstract, and the full paper can be downloaded here.

“The tribal right to consultation requires the federal government to consult with Indian tribes prior to the approval of any federal project, regulation, or agency policy. This article, which provides the first comprehensive analysis of this right, highlights the current inconsistencies in interpretation and application of the consultation duty. It then attempts to provide suggestions for changes that can be implemented by the legislative, executive or judicial branches.

In Part I, we provide a brief overview of the development of the trust responsibility and explain how it came to include three substantive duties: to provide services to tribal members, to protect tribal sovereignty, and to protect tribal resources. In Part II, we offer the first detailed explanation of how the trust responsibility developed the procedural duty to consult with Indian tribes. In this section we also discuss recent attempts by the Obama Administration to reform the federal government’s consultation duty. In Part III, we analyze the consultation policies that have been developed by federal agencies. In doing so, we identify four flaws that have prevented these policies from being truly effective: lack of enforceability, specificity, uniformity, and substantive constraints. Finally, in Part IV we present our proposal for reforming the consultation duty through legislation, and offer suggestions that can be implemented by the judicial and executive branches in the interim. “

Oral Argument Transcript in Craven Appeal of Cobell Settlement

Matthew L.M. Fletcher9 Comments

Here.

This line from Judge Tatel to Craven’s attorney early in the argument must have the appellees concerned:

you sold me, you have a good case [page 4, lines 21-22]

Crow Creek Trust Claims Dismissed under Tohono O’odham Decision

Matthew L.M. Fletcher

Here is the opinion:

Crow Creek Sioux Tribe v US

An excerpt:

Plaintiff Crow Creek Sioux Tribe filed this suit on December 29, 2005, seeking damages for Defendant’s breach of fiduciary duties and mismanagement of Plaintiff’s trust corpus. Almost 19 months earlier, on June 2, 2004, Plaintiff had filed a similar case against the Secretary of the Interior and the Secretary of the Treasury for declaratory and injunctive relief in the United States District Court for the District of Columbia. Crow Creek Sioux Tribe v. Norton, No. 1:04-cv-00900 (D.D.C.).

Defendant moves to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”) and 28 U.S.C. § 1500 (2006). As set forth below, Plaintiff’s District Court  [2] action is “for or in respect to” the same claim as the instant action and was pending at the time this action was filed. The Court is therefore bound by § 1500 to dismiss Plaintiff’s action.

Alabama-Coushatta Tribes Sues US for Failure to Pay Land Claims Judgment

Matthew L.M. Fletcher1 Comment

Here is the complaint:

Alabama-Coushatta Tribe v. United States