Gov’t, Tribes Want 55 Groups Added To $940M Deal
By Adam Sege
Law360, Washington (December 16, 2015, 9:26 PM ET) — The government and a group of Native American tribes that reached a $940 million proposed settlement in September over claims of unmet funding obligations said Wednesday that 55 additional groups should have access to the settlement sum, telling a New Mexico federal court that both sides had erred in not initially including the groups among those eligible for a payout.
The joint memorandum followed a request for inclusion by United South and Eastern Tribes Inc., with the government and the plaintiffs — a group of tribes including Ramah Navajo Chapter, Oglala Sioux Tribe and Pueblo of Zuni — saying a subsequent review showed that USET and 54 other groups should be included in the settlement, which follows longstanding litigation over the government’s alleged failure to fully pay administrative costs owed to the tribes.
“[T]he parties do not dispute that these 55 newly identified tribes and tribal organizations are class members and should therefore receive a share of the net settlement amount,” the government and the plaintiffs wrote.
Under terms of the settlement proposed in September, the government will pay $940 million to settle class action claims that the government’s failure to completely fund tribes’ contract support costs between 1994 and 2013 violated the Contract Disputes Act and the Indian Self-Determination Act.
The tribes have claimed the government failed to appropriate enough money to pay for program services it contracted with tribes and tribal agencies to provide, including law enforcement, forest management, fire suppression, road maintenance, housing and federal education programs.
When determining which groups belonged in the settlement — a process that resulted in the inclusion of more than 600 groups — the parties initially used Bureau of Indian Affairs records showing which tribes had received contract support costs payments during the years covered by the settlement, according to the joint filing.
But after USET said it had been unfairly excluded, the parties reassessed their methodology and found that USET had received other funding under the Indian Self-Determination Act that meant the group was eligible for a payout under the settlement terms, the joint filing said.
The parties then searched through records for other groups that may have been similarly excluded and found 54 other such groups, according to the filing.
The parties asked the court to notify those tribes that were not previously informed of the settlement that they are eligible for funds and also have the option to opt out.
The joint filing asked for only a partial granting of USET’s objection. Although USET said in its objection that it should be compensated based on 13 years of payments, the parties asked the court to award it compensation based on 10 years of payments, saying government records showed the group only received compensation in 10 of the years covered by the settlement.
Attorneys for the government and the plaintiffs did not immediately respond late Wednesday to requests for comment on the joint motion. Representatives for USET also did not immediately respond.
The settlement with the Ramah Navajo Chapter, Oglala Sioux Tribe, Pueblo of Zuni and other tribes follows a host of smaller settlements of litigation related to contract supports costs for tribes in the wake of the U.S. Supreme Court‘s 2012 decision in Salazar v. Ramah Navajo Chapter.
In the decision, the high court found that the BIA was on the hook for fully funding Indian Self-Determination Act contracts, contract supports costs included, without regard to any caps imposed by Congress.
The suit, originally filed in 1990, has already seen three partial settlements totaling $113 million in 1999, 2002 and 2008 related to pre-1994 claims by the tribes, claims seeking declaratory and injunctive relief, and other claims.
The tribes are represented by class counsel Michael P. Gross of M.P. Gross Law Firm PC, co-class counsel C. Bryant Rogers of Vanamberg Rogers Yepa Abeita Gomez & Works LLP, and co-class counsel Lloyd B. Miller of Sonosky Chambers Sachse Miller & Munson LLP.
The federal government is represented by Benjamin C. Mizer, Damon P. Martinez, Michael Hoses, Eric R. Womack and James D. Todd Jr. of the U.S. Department of Justice.
The case is Ramah Navajo Chapter et al. v. Jewell et al., case number 1:90-cv-00957, in the U.S. District Court for the District of New Mexico.
–Additional reporting by Andrew Westney and Caroline Simson. Editing by Catherine Sum.