From left, Council Delegate Walter Phelps, Council Delegate Lorenzo Curley, Deputy Attorney General Dana Bobroff, President Ben Shelly (sitting), Council Delegate Roscoe Smith, Speaker Pro Tem LoRenzo Bates (sitting), Council Delegate Jonathan Nez, Attorney General Harrison Tsosie, Navajo Tax Commission director Martin Ashley, and OPVP Chief of Staff Arbin Mitchell.

Courtesy BuckleySandler Law Firm

From left, Council Delegate Walter Phelps, Council Delegate Lorenzo Curley, Deputy Attorney General Dana Bobroff, President Ben Shelly (sitting), Council Delegate Roscoe Smith, Speaker Pro Tem LoRenzo Bates (sitting), Council Delegate Jonathan Nez, Attorney General Harrison Tsosie, Navajo Tax Commission director Martin Ashley, and OPVP Chief of Staff Arbin Mitchell.

Navajo Nation on Receiving End of Historic Settlement

The Navajo Nation has settled for $554 million with the federal government in a long-standing lawsuit over mismanaged trust funds dating back as far as 1946. Now, the tribe’s elected leaders have the daunting task of creating a half-billion-dollar spending and investment plan.

According to the BuckleySandler law firm that represented the Navajo Nation, this is the largest settlement obtained in any action by a single tribe against the United States. It also exceeds, by more than $170 million, the money awarded in more than 100 tribal cases involving breaches of trust for natural resource assets.

Rick Abasta, Navajo Nation President Ben Shelly’s communications director, said Shelly signed off on the settlement earlier this month, and “that started the clock on a 120-day period during which those funds will come back to the Navajo Nation.”

But tribal members shouldn’t expect to see a rush of new developments or investments, Abasta said. The money likely won’t be used at all until next year, after the Navajo Nation Council and President Shelly can agree on a financial plan.

Abasta described the legislative branch’s approach as an “expenditure plan,” and he said President Shelly preferred to think in terms of an overall investment plan, with more immediate uses potentially for housing, scholarships, infrastructure, the disabled and the elderly.

But Jared Touchin, spokesman for the Navajo Nation’s legislative branch, said it’s premature to characterize the Council’s approach.

“I think it’s too early to say. There have been a few ideas,” he said. “Some delegates have even said the money should be used toward some investment; they’re open to investing. I know some of them want to use the money for housing and infrastructure projects. Nothing has been put on paper or out there for the public yet.”

Touchin said details are still coming together for a series of at least five public meetings in July, one in each of the Navajo Nation’s agencies, to collect ideas from tribal members. Abasta said President Shelly is also asking for public input, especially through the Navajo Nation’s 110 chapters. The legislative and executive branches will come together for additional meetings as they sort out a path forward.

U.S. Federal Court of Claims Judge Eric Bruggink, in Washington. D.C. mediated the settlement between the Nation, the Interior Department and the Department of Justice. Besides the dollar amount, an equally significant outcome from the case is that the Navajo Nation will now have control over most of its own trust assets, said Samuel Buffone, an attorney with the BuckleySandler firm in Washington. As for a drastically reduced amount of funds still held in trust by the federal government, new policies require periodic reporting to the Nation, a dispute resolution mechanism, and paths toward federal enforcement if the federal government fails to provide full and accurate accounting.

In the original complaint, filed in 2006 by the Nordhaus Law Firm in Albuquerque, the Nation asked for reparations for a history of financial losses stemming from “leases for oil and gas, coal, uranium and other minerals … timber sales, rights-of-ways” and other assets. Because of various treaties, executive orders, federal regulations, and contracts, the United States government had taken on the job of managing proceeds from these activities.

Buffone said he isn’t sure how the Nordhaus attorneys arrived at the original claim amount of $900 million. “That had to be a pretty rough calculation,” he said. “In the end, a lot of this was left to sampling and extrapolation because data going back to 1946 simply didn’t exist.” Attorneys for the Nordhaus firm, which officially handed off the case in mid-2012, did not respond to a request for clarification.

Ultimately, the Navajo Nation, Department of Interior and Department of Justice negotiated for eight years to reach the $554 million settlement, which was finalized on June 1. BuckleySandler attorneys say they worked alongside Don Grove of Nordhaus, Navajo Nation Attorney General Harrison Tsosie, Navajo Nation Deputy Attorney General Dana Bobroff and former Navajo Nation Attorney General Louis Denetsosie in pursuing the Nation’s claims.

Buffone said millions of documents produced for the case provided “an interesting history lesson” about the evolving relationship between the United States and the tribe. “Part of why I am encouraged is, it was a real effort by the United States and the Navajo Nation to look back and recognize that there may have been financial wrongs occurring in the past, plus a realistic effort to deal with what was a very long-standing problem.”

Of roughly 100 similar cases that have been filed so far across the country, more than 80 have been resolved, and the rest are still pending. Another Arizona tribe, the Jicarilla Apache Nation, is in the Court of Federal Claims over its suit, and other tribes are in settlement negotiations.

Although the statute of limitations on some breach of trust claims might have expired long ago, Congress has been extending it each year with the goal of providing a complete and accurate accounting of all moneys owed to tribes.

The settlement is cause for celebration for Navajo and other tribes embroiled in trust fund claims, said Speaker Pro Tem LoRenzo Bates, who represents the Navajo chapters of Nenahnezad, Newcomb, San Juan, Tiis Tsoh Sikaad, Tse’Daa’Kaan and Upper Fruitland.

“The fact that the Navajo Nation is the largest tribe sends a very strong message that there is hope at the end of the day,” he said. “There is light at the end of the tunnel.”

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Navajo Nation on Receiving End of Historic Settlement

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