The Native American Rights Fund, a nonprofit law firm in Boulder, Colo., announced Wednesday the latest class-action filing in federal district court in Washington, D.C. The tribal trust fund suit seeks full and complete accountings from the Interior Department on tribal accounts worth an estimated $200 billion.
For tribes, Nez Perce vs. Interior Secretary Dirk Kempthorne, is almost two centuries overdue.
For the Interior Department, the new suit nearly mirrors the decade-old Elouise Cobell vs. Kempthorne suit, which seeks a historical accounting of the individual trust fund money accounts managed by the department. Former Interior Secretary Gale Norton said the Cobell suit consumed the majority of her time in office.
Meanwhile, the department has nothing to say about the latest suit. “Our policy is we don't discuss pending litigation,” Interior spokesman Shane Wolf said Thursday. “That's the answer you'll get every time there's pending litigation.”
But more than two decades of government reports and investigations reveal what the department hasn't wanted to talk about since it first sought to manage money earned off tribal trust lands in 1820.
The government's trust responsibility over Indian-land money, including individuals and tribes, is rooted in treaties, laws and agreements. Congress controls and manages all trust funds through legislation.
Congress has doled Indian trust responsibility across several federal departments, including the U.S. Department of the Treasury, which is also named as a defendant in the recently filed suit. The federal government currently holds an estimated $3 billion in some 1,600 trust fund accounts for more than 300 tribes.
John Echohawk, the Native American Rights Fund's executive director, said past events made the lawsuit inevitable. First, tribes have never been able to get a proper accounting of their trust funds. The Government Accounting Office and the Interior Department's Office of the Inspector General have issued key reports identifying major problems with the management of both tribal and individual Indian trust funds.
The money in question is revenue earned by tribes from natural resources, including timber, minerals, oil and gas; court judgments entered against the United States for the unlawful appropriation of Indian land and property; and income from the investment of money held in the accounts.
For both individual and tribal trust funds, government reports show that records were often lost or never kept, and that systems didn't work or weren't coordinated. Also, reports showed how policies were deficient or never existed.
In 1987, Congress ordered the Interior Department to audit and reconcile the accounts and to provide full and complete accountings to tribes and individuals. The GAO stated that without improvement, trust fund account holders could not be assured their balances are accurate.
In 1994, Congress enacted the American Indian Trust Management Reform Act, requiring the federal government to provide tribal trust fund beneficiaries with full and complete accountings of their trust funds.
In 2005, Interior's inspector general said the department procedures and controls were not adequate to ensure trust fund activities and balances were recorded properly or timely.
Nothing to date has yielded adequate accountings.
Interior's Bureau of Indian Affairs hired the accounting firm Arthur Andersen LLP to do a limited reconciliation of tribal trust fund accounts in the 1990s. Despite acknowledged shortcomings with the project, federal officials asked tribes to accept the reports.
Arthur Anderson's five-year, $21 million accounting sampling covered a 20-year span between 1972 and 1992.
Congress gave tribes a Dec. 31, 2005, deadline to challenge the reconciliation reports. The deadline was extended to Dec. 31, 2006, prompting tribes to sue late last month, seeking a court order declaring the Arthur Andersen reports inaccurate, and to demand a proper accounting.
“We are confident that the court will agree that the Arthur Andersen reconciliation reports are not full and complete accountings,” said John Gonzales, NARF's board chairman. “The real battle will be over what more the court or Congress will do to protect the rights of tribes and to hold the government accountable for its duties as the trustee for tribal trust funds.”
Reporter Jodi Rave can be reached at 1-800-366-7186 or at jodi.rave@lee.net
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