NEZ PERCE TRIBE, et al. v DIRK KEMPTHORNE, et al..
No. 06-2239 in the U.S. District Court for the District of Columbia

FIFTEEN FREQUENTLY ASKED QUESTIONS
WITH ANSWERS
April 2007

On December 28, 2006, a lawsuit (Nez Perce Tribe, et al. v. Kempthorne, et al.) was filed by the Nez Perce Tribe, the Mescalero Apache Tribe, the Tule River Indian Tribe, the Hualapai Tribe, the Yakama Nation, the Klamath Tribes, the Yurok Tribe, the Cheyenne-Arapaho Tribe, the Pawnee Nation of Oklahoma, the Sac and Fox Nation, and the Santee Sioux Tribe of Nebraska against the Secretaries of the U.S. Interior and Treasury Departments. On April 2, 2007, the original eleven named plaintiffs were joined by a twelfth tribe, the Tlingit and Haida Indian Tribes of Alaska. The lawsuit seeks full and complete trust fund accountings from the government as the trustee of tribal trust funds. The lawsuit seeks to be a class action on behalf of the twelve named Plaintiff Tribes and all other tribes similarly situated that have not filed their own trust fund accounting lawsuits and that want to be in the class. The Tribes that filed Nez Perce Tribe v. Kempthorne are represented by the Native American Rights Fund (NARF).

1. Q. Why was it necessary or desirable to bring this lawsuit as a class action?

Because the United States is the trustee for the trust fund accounts of all Tribes -- more than 250 of them; the law requires the United States as trustee to provide full and complete accountings of the funds to all tribal trust fund account holders; and, the United States never has provided full and complete accountings to tribal trust fund account holders. About seventy (70) Tribes could and did file their own lawsuits, but not all Tribes had the resources and information necessary to do so.

The situation was even more dire because Congress, at the urging of the Presidential Administration, had given Tribes a firm deadline of December 31, 2006 by which Tribes likely had to challenge the accounting adequacy of the "Agreed Upon Procedures" tribal trust fund reports prepared by Arthur Andersen under a contract with the Bureau of Indian Affairs (BIA), and sent to Tribes by the BIA in 1996 or risk losing their right to challenge the reports forever.

2 Q. How can I find out if my Tribe is part of the class in Nez Perce Tribe v. Kempthorne?

A. At this time there is no certified class in Nez Perce Tribe v. Kempthorne. There is only what the law calls a "putative" (potential) class. There are many procedural steps involved in class certification. The named plaintiffs have to define the class that they want certified and ask the Court to certify the class. The Defendants have the right to object to class certification and the proposed class definition. The Court rules provide that before a class is certified, all potential class members must be notified and given the option of remaining in the class or "opting out," that is, being excluded from the class. If and when a class is certified by the Court, all class members will be notified of certification./p>

3. Q. Will Tribes that filed their own tribal trust fund accounting lawsuits in U.S. District Courts be part of the class in Nez Perce Tribe v. Kempthorne?

A. No. Tribes that filed their own tribal trust fund accounting lawsuits in U.S. District Courts will not be part of the class in Nez Perce Tribe v. Kempthorne. The Complaint that the Plaintiff Tribes filed in Nez Perce Tribe v. Kempthorne expressly states that they are not seeking to include in the class Tribes that filed their own trust fund accounting lawsuits in U.S. District Courts.

4. Q. What about Tribes that have tribal trust fund lawsuits not in a U.S. District Court but only in the U.S. Court of Federal Claims; will those Tribes be part of the class in Nez Perce Tribe v. Kempthorne?

A. The answer ultimately depends on how the Court in Nez Perce Tribe v. Kempthorne defines the class. It is possible that the Court could find that Tribes that have trust fund lawsuits only in the U.S. Court of Federal Claims are part of the class, if, for example, the Court were to find that the kinds of accountings that the U.S. Court of Federal Claims can provide are not the "full and complete accountings" required by law for tribal trust fund accounts. But even if Tribes that have tribal trust fund lawsuits only in the U.S. Court of Federal Claims are found to be part of the class in Nez Perce Tribe v. Kempthorne, those Tribes still will have the right to opt out of the class.

5. Q. What about Tribes that just do not want to be part of the class in Nez Perce Tribe v. Kempthorne?

A. Tribes that for whatever reason do not want to be part of the class in Nez Perce Tribe v. Kempthorne will have the option of opting out of the class. The Court supervises all of the procedural steps of class certification to ensure that the rights of class members and those who opt out are protected

6. Q. When and how can Tribes opt out of the class in Nez Perce v. Kempthorne?

A. At some point during the class certification process, the Court will require the Plaintiff Tribes to give notice to each and every potential class member. The notice typically includes an opt out form that simply can be returned to the Court. The class certification process in Nez Perce Tribe v. Kempthorne has not begun yet and when it does begin it could take many months or even years.

7. Q. Will the named Plaintiff Tribes in Nez Perce Tribe v. Kempthorne be able to settle the lawsuit and bind all of the Tribes that are members of the class but that are not named plaintiffs?

A. No. The federal court rules that govern class action lawsuits provide that no settlement on behalf of a class, or even on behalf of a named plaintiff, can be achieved without approval of the Court. If settlements are reached, the Court will require each and every class member – should a class be certified – to be notified of the potential settlement and given the option to opt out and not be bound by the settlement.

8. Q. Will the named Plaintiff Tribes in Nez Perce Tribe v. Kempthorne be able to conclude a congressional settlement of the tribal trust fund accounting claims of all Tribes that are members of the class without the participation of the other class members?

A. The power of Congress to settle tribal trust fund accounting claims is not affected by lawsuits like Nez Perce Tribe v. Kempthorne. But any legislation considered by Congress will be subject to the ordinary process for review and comment by every tribe in the Nation.

9. Q. How is Nez Perce Tribe v. Kempthorne similar to or different from the Indian trust fund class action lawsuit, Cobell v. Kempthorne?

A. Both lawsuits seek to hold the United States accountable as the trustee for billions of dollars of Indian trust funds. The difference is that Cobell v. Kempthorne involves the trust fund accounts of individual Indians, and Nez Perce Tribe v. Kempthorne involves the trust fund accounts of Tribes. Also, Cobell v. Kempthorne was filed in 1996 and thus has over ten years of litigation history.

10. Q. What effect has the Administration's proposal to Congress of March 7, 2007 – to settle Cobell v. Kempthorne and "all tribal trust claims," as well as implement various needed aspects of Indian trust reform for an amount of "up to $ 7 billion over a ten year period" -- had on Nez Perce Tribe v. Kempthorne?

A. None. The Administration's March 7, 2007 proposal is just that – a proposal. On March 29, 2007, the U.S. Senate Committee on Indian Affairs held an oversight hearing on the proposal. At the hearing, testimony by the Cobell plaintiffs, NARF, and others showed very little, if any, support for including the Cobell claims and tribal trust claims in the same settlement legislation, let alone for the very low amount offered by the Administration. It is most likely that Congress will listen to this and other testimony on this matter and will not enact the proposal into law as it was presented

11. Q. How, if at all, does filing Nez Perce Tribe v. Kempthorne as a class action impact the sovereignty of those Tribes that are not named plaintiffs?

A. As explained earlier, the Court supervises all of the procedural steps of class certification to ensure that the rights of class members and those who opt out of the class are protected. Tribes that for whatever reason do not want to be part of the class in Nez Perce Tribe v. Kempthorne will have the option of opting-out. While this places the burden on those Tribes who do not want to be part of the lawsuit to exercise their right to "opt out", this was weighed at the time of bringing the lawsuit against the loss to over two hundred Tribes of their right to challenge the accuracy and completeness of the Arthur Andersen reports concerning their trust funds.

12. Q. What if a class is never certified in Nez Perce Tribe v. Kempthorne?

A. If the Court rules that Nez Perce Tribe v. Kempthorne cannot go forward as a class action, each Tribe that is a putative class member will receive notice and may within a reasonable time bring a separate lawsuit without being barred by the statute of limitations. If the Court never rules on class certification then the putative class members may still pursue their individual lawsuits at any time. Nez Perce Tribe v. Kempthorne will go on with the named plaintiffs, and any legal victories obtained by them in the lawsuit will serve as legal precedent upon which other Tribes may rely in their separate lawsuits.

13. Q. What relationship does Nez Perce Tribe v. Kempthorne have to the Intertribal Trust Monitoring Association – U.S. Department of the Interior (ITMA-DOI) Trust Fund Settlement Project (Settlement Project)?

A. There is no formal relationship between Nez Perce Tribe v. Kempthorne and the ITMA-DOI Settlement Project. The efforts of Tribes in the Settlement Project to seek a good faith method of settling tribal trust accounting differences is important to resolving the puzzle of what to do when actual accountings have been rendered impossible by the Interior Department's mismanagement. This same issue may arise in Nez Perce Tribe v. Kempthorne when it reaches the question of having the Court describe and then order full and complete trust fund accountings.

14. Q. How long will Nez Perce Tribe v. Kempthorne take?

A. There is no way to be certain. It depends to a large degree on whether the U. S. Departments of Justice and the Interior, and the White House Office of Management and Budget, choose to resist and delay the lawsuit in everyway they can. If that continues to be their approach, instead of undertaking good faith settlement negotiations, then the lawsuit could take a long time. There are issues, however, that the named Plaintiff Tribes will ask the Court to address fairly soon. These include certification of the class, and a ruling on whether the Arthur Andersen reports are the full and complete trust fund accountings required by law

15. Q. Where can I get more information about Nez Perce Tribe v. Kempthorne?

A. A website, www.tribaltrust.com, has been set up to provide general information about Nez Perce Tribe v. Kempthorne.

This document was prepared by The Native American Rights Fund.