Lack of quorum derails establishment of fund to sue the U.S. government

By Kathy Helms
Diné Bureau

WINDOW ROCK — Maintaining a quorum in the afternoon on the final day of a Navajo Nation Council session is usually a problem. Wednesday was no exception.

Delegates worked through lunch and were moving along at a steady clip, basically two-and-a-half legislations away from the close of the special session, when the lack of a quorum became apparent.

Delegate Ervin Keeswood (Hogback) was in the midst of presenting legislation to establish a trust fund which will be used to sue the United States for mismanagement of the Navajo Nation's trust assets, when Speaker Lawrence Morgan interrupted.

"It appears that we don't have enough for a quorum again," Morgan said. He requested a roll call, which confirmed his observation. Some in attendance called for adjournment of the special session; however, Morgan informed them there were not enough delegates present even to vote to adjourn.

Instead, he called for a one-hour lunch break in hopes that enough delegates would return to conduct business.

An hour and a half later, Morgan still was trying to round up a sufficient number to continue with the remaining legislations. A roll call showed that only 42 delegates less than half were present in the council chamber.

"It's got to be 44 or more," Morgan said.

Delegate Leonard Chee (Birdsprings/Leupp/Tolani Lake) recommended the stipend of the missing delegates be withheld. "I don't think they should be paid. It's not fair to us that stay to do the work of the council," he said.

In Navajo, Chee told his colleagues, "Many of the delegates come in here up to noon, then they're gone. This is a very critical issue that we're talking about. Now they're yelling out there they want to get re-elected, but they don't show their responsibility."

A handful of delegates came straggling in, prompting Morgan to request another roll call. "A lot of other activities are taking place here on the council floor," he admonished.

By 3:45 p.m., 47 delegates had returned. Rather than risk losing quorum again, Keeswood ended his presentation where he left off before the break, and by 3:50 p.m., the legislation was approved 47-0.

Follow-up to Cobell
During his presentation, Keeswood briefed colleagues on the intent behind the legislation.

"As you're all aware, on the eastern side of the Navajo Nation we have 200,000-plus acres of allotted land. Currently there is litigation ongoing, called the Cobell litigation, for mismanagement of trust assets for individual allottees.

"As the Navajo Nation looked more and more at documents and also looked to see what was happening out there in Indian Country, we found that we also have an issue in relationship to the mismanagement of tribal assets."

Keeswood said the legislation, as written, called for delegates to approve the expenditure of $298,928.94, from monies already in place, to establish the Historical Trust Asset Mismanagement Litigation Trust Fund, which will be used to file suit on behalf of the Navajo Nation against the United States.

"We just want your approval so we can move these monies to prepare for this litigation. Also, in the year 2008, we would ask through the normal legislative process that we put aside $1.5 million on an annual basis until this litigation is complete," he said.

Trust assets amount to the Navajo Nation's financial resources: timber, uranium, water, land, oil, gas, environmental resources, and coal. "We find that throughout the years, since 1946 and on, a lot of our funds have not been appropriately put into correct accounts," Keeswood said.

"It is believed that we should move forward ... in relationship to suing the federal government, Department of Interior, for mismanaging our funds, plus not fulfilling its trust obligation to our Nation.

"What we're asking for here, basically, in this litigation is for the United States government to properly calculate all the collected income that's generated by trust assets," Keeswood said, and to properly deposit and account for income generated by tribal trust assets.

He said Navajo officials believe this did not happen. "We believe that the Navajo Nation is owed millions of dollars of monies that it should have received, because oftentimes, it was put into accounts other than Navajo accounts. In other times, it was put into accounts of Navajos but it didn't receive the proper interest."

Millions at stake
Currently, there are more than 50 tribes in the United States that have filed similar suits, according to Keeswood. Those claims range from $10 million from the Crow Tribe up to $80 million for the Red Lake Band of Chippewas in Minnesota.

The deadline for filing suit is Dec. 31, 2006. "That's why we come to you, so we can move on it immediately," Keeswood said.

After initiation of the claim, the Navajo Nation must send staff and possibly contract attorneys to Lennox, Kansas, where files are kept, so they can begin compiling documents to be used in the discovery phase of the lawsuit.

In the last few weeks, Navajo officials met with the Council of Large Land-Based Tribes, according to Keeswood. During the discussion, it was noted that Senate Bill 1439, which would put an $8 million cap on paying tribes and individual allottees, has been introduced in Congress.

"Remember, in the Cobell litigation, it's asking for $137 million. But it seems as though Congress is moving and saying that we can put aside $8 million for the allottees. They wanted to split up that money, and that would constitute maybe $21,000 for each allottee," Keeswood said.

However, "The discussion now during the lame duck session is 'we should combine the tribes and the individual allottees and keep the cap at $8 million,' so the tribes and the individual allottees would have to fight over this money," Keeswood added. "That would take away from the individual allottees and also the Nation."

In the early 1990s, the Department of Interior hired the Arthur Andersen accounting firm to provide a reconciliation of certain tribal trust fund accounts. In 1995, the company delivered a report to the tribes, known as the Andersen Report, which attempted to provide an accounting for tribal trust funds held by the Bureau of Indian Affairs from 1972 through 1992.

The report was not certified by an independent party as required by Congress and has been criticized by the General Accounting Office, the watchdog arm of Congress.

"Through Arthur Andersen's discussion, they believe that when the Navajo Nation proceeds on litigation, easily the Navajo Nation settlement could range from $28 million to $60 million," Keeswood said.

At that point, Morgan noted the lack of quorum and the remaining delegates recessed for lunch.

Court's task
The Historical Trust Fund Asset Mismanagement Litigation would ask the court to declare that the U.S. has breached its trust duties with regard to accounting and management of the Navajo Nation's trust resources.

The court would be asked to order the United States to provide the Navajo Nation with a complete and accurate accounting of all trust funds from 1946 to present, to preserve all Navajo records, to award the Nation monetary damages caused by the U.S.'s failure as a trustee, and to award attorneys fees and costs.

Based on observations throughout Indian Country, tribes with far less land base and fewer resources than the Navajo Nation already have been awarded millions of dollars.

In the event the Navajo Nation receives an award or settlement from the U.S. government for mismanagement of assets over the last 60 years, the money would be placed in the Undesignated, Unreserved Fund Balance.