Council passes $554 million settlement from feds

By Alastair Lee Bitsoi
Navajo Times

WINDOW ROCK, May 30, 2014

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By a vote of 13 in favor and 3 opposed, the Navajo Nation Council Friday approved a $554 million settlement it reached with the U.S. government for its historical mismanagement of the tribe’s trust fund assets.

The settlement is considered the largest historical mismanagement case ever filed – one in more than 100 - against the federal government from a tribal nation. It essentially marks an end to the Navajo Nation’s seven-year lawsuit with its trustee that is worth more than $170 million, the highest settlement figure granted to a tribe from the federal government before this one.

“Ultimately, we feel successful in the agreement we have today,” Council Delegate Lorenzo Curley (Houck, Klagetoh, Nahata Dziil, Tsé Si áni, Wide Ruins) told colleagues Friday during a special session at the Council Chamber.

Curley, along with Council delegates Russell Begaye (Shiprock), Charles Damon (Baahaali/Chichiltah/Manuelito/Red Rock/Rock Springs/Tsayatoh), Walter Phelps (Cameron/ Coalmine Canyon/Leupp/Tolani Lake/Tsidi To ii), Alton Joe Shepherd (Jeddito/Cornfields/Ganado/Kin Dah Lichii/Steamboat), Roscoe Smith (Crystal/Fort Defiance/Red Lake/Sawmill), Leonard Tsosie (Baca-Prewitt/Casamero Lake/Counselor/ Littlewater/Ojo Encino/ Pueblo Pintado/Torreon/Whitehorse Lake) and Dwight Witherspoon (Black Mesa/Forest Lake/Hard Rock/Pinon/ Whippoorwill), are members of the Trust Management Litigation Taskforce. The taskforce was created in an effort to guide the Navajo Nation Department of Justice and outside counsel – the BuckleySandler LLP firm – with litigation on the case.   

“We will continue to fight and litigate what’s right,” Curley added.

Speaking on behalf of the task force, Curley also expressed appreciation to members of the 20th Navajo Nation Council for establishing the Historical Trust Asset Mismanagement Litigation Trust Fund, which enabled the Navajo Nation to pursue its claims against the United States.

In 2006, the tribe filed suit in the U.S. Court of Federal Claims for “damages, interest, fees, costs and other relief against the United States” that date back to at least 1946.

According to the terms of the agreement, the U.S. agrees to provide the tribe with all required reports of assets that continue to be held in trust for the benefit of the Navajo, states a May 30 press release from the Council.

The agreement does not impact the Navajo Nation’s existing or potential water and uranium claims. It also doesn’t include individual Navajo allottees, according to Samuel Buffone, the tribe’s lead attorney from BuckleySandler LLP.

Council delegate Katherine Benally (Chilchinbeto/Dennehotso/Kayenta) had questioned whether the settlement impacts Navajo allottees, who are Navajo citizens with private property.

From language contained in the agreement, Buffone explained to Benally that the case was brought by the tribe “in its official capacity and as a sovereign entity and not on behalf of its individual members, including but not limited to allottees, who are not parties in – and who are not bound by – this case or Settlement Agreement.”

During their debate on the matter – which centered on why the bill was considered an emergency or not - both Council Delegate Jonathan Nez (Navajo Mountain/Oljato-Monument Valley/Shonto/Ts'ah Bii Kin) and Tsosie encouraged their colleagues to pass the bill. In part because they thought the taskforce and its attorneys achieved an historical settlement against the U.S., and that it was necessary for the Council to approve it as soon as possible before any changes to the settlement.

“There is a threat,” Tsosie said in an effort to muster votes for the bill’s passage, which was presented to the Council as an emergency. “The threat is the federal Court of Appeals.” 

Tsosie cited how the tribe lost nearly $600 million in a decades-long suit – the 1999 RICO suit  against energy giant Peabody Energy. In 2011, President Ben Shelly’s administration agreed to a $50 million agreement, 13 years later. He also referenced how the Jicarilla Apache lawsuit against the federal government for breaching its trust responsibility is the latest example of a tribe losing millions more instead of settling on an agreement.

“We will jeopardize it, if we prolong it,” Tsosie said. “This is not a sure thing until people sign and get the transfer of funds.”    

Similar to Tsosie, Nez added that the approval of the emergency bill would help “springboard” the Navajo people to self-sufficiency as well as empower them.

“Let’s make a unanimous stand on this, so we can improve the Navajo Nation and send a message that were united as a Council,” Nez added.

Even though Council passed the agreement from its floor, the way in which it was presented to the legislature – without the public notice or involvement of the Navajo people - is why Mel Begay (Bahastl' ah/Coyote Canyon/Mexican Springs/Naschitti/ Tohatchi), Benally and Witherspoon voted against the bill.

They opposed the bill, considered an emergency by its sponsors, because there was no real threat to the Nation’s sovereignty. The trio also cited how the bill failed to go through the legislative five-day comment period, noting that the approval of the bill undermines the transparency that the Council often advocates amongst the Navajo people.

When the floor was given to him to speak on the matter, Begay compared the actions of those in support of the agreement to that of the Resources and Development Committee granting the rights-of-way to Uranium Resources Inc., to access its private property in Church Rock, N.M. to conduct its in-situ uranium project.

“It’s wrong to accept something that sidetracks the laws of the Navajo Nation,” said Begay who tried to halt the effort numerous times during debate.

Begay wasn’t shy to say that the approval of the bill was a political ploy by peers seeking reelection.

While her colleagues were casting their votes when Speaker Pro Tem Lorenzo Bates (Nenahnezad/Newcomb/San Juan/ T'iistoh Sikaad/Tse'Daa'Kaan/Upper Fruitland) called for the vote, Benally also made her thoughts known about the settlement.  

“Five-hundred and fifty-four million is not enough,” Benally repeatedly stated from the gallery floor. “The federal government cheated us. Five-hundred and fifty-four million is not enough!”

Her statement about the $554 million not being enough contradicted an earlier comment she offered, when she said, “The returns will be huge.”

With the approval from the Council, the next steps in making the agreement a reality are the signatures of President Ben Shelly and the U.S. government, according to Andrew L. Sandler.

From the federal government, these signatures include the attorneys from the U.S. Department of Justice, U.S. Department of the Interior and U.S. Department of the Treasury.    

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