Litigation As almost generational trust litigation ends, the Quapaw
finally get a settlement While other Indian tribes and individuals were suing the United States for mismanagement of their lands and other trust assets, the Quapaw Nation began an effort to show that tribes and the federal government could resolve claims collaboratively through alternative dispute resolution. That was three presidential administrations and more than 17 years ago. Last Friday, with the filing of settlement documents in the United States Court of Federal Claims, the Quapaw Nation approached the end
of nearly a generation of litigation to obtain a measure of justice for federal mismanagement of tribal and individual members’ lands, accounts, and other Indian trust assets.
Under the Nation’s settlement with the United States, the tribe and its some 5,000 members are due to receive almost $200 million through a combination of immediate payments and appropriations to be requested from Congress pursuant to special legislation adopted in December 2012 known as a “congressional reference.”
In a statement this week, John L. Berrey, who has served as the Chairman of the Quapaw Nation’s Business Committee since the litigation began, noted the significance of the end of the litigation: “For my tribe I am glad we are nearing the end. But I think a lot as well about
our ancestors who suffered this mistreatment and who deserved this restitution, and also about the many elders who supported this cause and who we have lost over all the years this has taken.”
More than a century of federal management left the Quapaw Reservation the site of environmental devastation. The government allowed lead and zinc mining companies to turn the land into one of the nation’s largest Superfund Sites. It permitted squatters to establish entire towns on Indian land, and to remain virtually rent-free for decades. And there was much more, as federal records showed federal mismanagement of virtually all Quapaw property.
Aside from the monetary settlement—among the larger such settlements ever achieved by an Indian tribe—the Quapaw Nation’s legal
effort was remarkable for reasons including: • The Nation settled its initial litigation, an accounting case, in 2004. As a result, it was awarded a federal contract, afforded access to federal documents, and permitted to prepare its own analysis of federal management of its trust assets—the only settlement of its type known to exist.
• Beginning before and continuing after the 2004 settlement, the Nation had an ongoing project to collect images of every document relating to the tribe in the National Archives and other records repositories around the country. The federal records were collected by the government over a span of more than 100 years, but most had
never been seen by the Quapaw. In them, the tribe found direct evidence of federal mismanagement, some apparently recorded because federal officers assumed the Quapaw would never read them.
• Under the 2004 Quapaw settlement, the Department of Justice and the Department of the Interior committed to use the tribe’s analysis, known as the “Quapaw Analysis,” as the basis of an attempted mediation of the breach-of-trust claims of the tribe and its members. But, when the report was completed in 2010, the federal government had changed its mind, and the Justice Department advised the Nation to sue.
• In early 2011, the Nation assisted its members interested in doing so to opt out of the then-pending Cobell settlement. It is the only tribe known to have actively provided
its members with an alternative to the federal settlement.
• The Justice Department not only walked away from using ADR to resolve the Quapaw Nation’s claims, but it vigorously litigated the claims the tribe ultimately filed in the United States Court of Federal Claims. The Nation’s litigation was dismissed twice on the basis of technicalities the government raised.
• In 2012, Chairman Berrey walked the halls of Congress to obtain legislation in the U.S. House of Representatives under a rarely used statute, 28 U.S.C. § 1492, known as a “congressional reference.” This reference permitted the Nation to bring a companion case in the Court of Federal Claims asserting equitable claims for which the statute of limitations had run. • Trial of the Quapaw cases began in Oklahoma in September 2016. In October, late on the night before trial was scheduled to resume in Washington, D.C., the Nation reached a settlement in principle with the Justice Department. But the settlement negotiations dragged on for almost three years, and as time passed more complications arose. In the late spring of 2019, Judge Thomas C. Wheeler returned the case to the trial docket.
• A second settlement in principle was reached just three days before the trial was scheduled to begin on September 30, 2019. Under the final settlement,
the Nation and its members and other American Indians who hold interests in trust property within the Quapaw Reservation and who have claims within the statute of limitations are to receive collectively $59 million. Additionally, the federal government has stipulated that the damages to be referred to Congress under the congressional reference are $137.5 million. All living members of the Nation are to receive payments through the appropriation made to fund the congressional reference.
In his statement Chairman Berrey described the settlement as symbolic justice for the mistreatment of his people by the federal government. “I hope the recognition by the federal government of these past injustices will help the members of our Nation living today close the books on the past,”
Berrey said.
—Steve Ward
Steve, a senior member of the Conner & Winters Indian law practice group, sward@cwlaw.com, has worked on the Quapaw trust litigation for over 17 years. The Nation’s litigation legal team has also included attorneys Daniel Gomez, dgomez@cwlaw.com, Daniel Carter, dcarter@cwlaw.com, and Austin Birnie, abirnie@cwlaw.com. The practice team’s Indian law paralegal, Wendy Huntzinger, has overseen management of the hundreds of thousands of documents used in the case. Our practice assistant, Kamilah Collins, has served as a contact to assist the hundreds of individuals eligible in the settlement.
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