The Joplin Globe, Joplin, MO

March 26, 2013

Quapaw Tribe sues U.S. government

By Wally Kennedy

— The Quapaw Tribe of Oklahoma filed a lawsuit Monday seeking about $175 million in the U.S. Court of Federal Claims, alleging past breaches of obligations owed to the tribe by the federal government in connection with mining at Picher, Okla.

“This is a case about the mismanagement of our resources and our money,” said John Berrey, head of the tribe, in a telephone interview Tuesday from Phoenix, Ariz.

“It’s not limited to the damage caused by the mining. That’s a different case we have to file.”

Berrey said action over the past decade in federal district court “carved out a settlement with the Department of Justice and Department of Interior that could have led to mediation and arbitration. The Department of Justice threw it back in our face. They told us to file a lawsuit.”

In a rarely used procedure called “congressional reference,” the tribe is now proceeding in the U.S. Court of Federal Claims, the only place where a tribe can sue the federal government. Berrey said the congressional reference has been used only three or four times in the past 25 years.

The U.S. House of Representatives authorized the filing of the lawsuit on Dec. 19, 2012, when it approved House Resolution 668, which referred the underlying bill to the U.S. Court of Federal Claims “for a report on the amount legally or equitably due to the Quapaw.”

The bill’s primary sponsor was Rep. Tom Cole, R-Okla. According to a statement released by the tribe, Cole supported the resolution because “despite a 10-year legal process during which the tribe fulfilled every step of its agreement with the government, the Justice Department failed to follow through, leaving this important issue unresolved.”

Other supporters of the bill included Rep. Lamar Smith, R-Texas, and Rep. Zoe Lofgren, D-Calif.

In approving House Resolution 668, Lofgren said: “We have consulted with the Department of Justice and the Department of the Interior on this matter, and both agencies agree that the Quapaw Tribe has legitimate claims against the United States concerning certain tribal lands that were held in trust by the federal government. The only real dispute is the value of the claims.”

Said Berrey: “Our first choice was to sit down and talk, and we were very disappointed with the Justice Department’s position. But we have been determined to see this through to a conclusion, because our people deserve some measure of justice for the wrong the federal government has done.”

Steve Ward, a tribal attorney in Tulsa, Okla., and partner in the Conner & Winters law firm, said the tribe began its own investigation more than a decade ago. In one of many projects, the tribe photographed virtually every document relating to the federal management of Quapaw assets in the National Archives, a project that took more than four years.

“This is remarkable,” Ward said. “This is tons of work. Someone copied every document with a scanner and a camera.”

Ward said the case could take two to four years to resolve. The Tulsa firm is being assisted by the Nancie and Roger Marzulla Law Firm in Washington, D.C.

The class-action lawsuit cites seven alleged causes of action, ranging from breach of trust regarding mining lands to failure to properly lease and manage chat. Other alleged causes of action include breach of trust regarding agricultural lands and town lots, breach of trust regarding easements and rights of way, and breach of trust for polluting the soil and water, rendering them unsuitable for agricultural use, fishing and hunting.

The suit references a 1918 act by the federal government that “declared Quapaw landowners incompetent to manage the mineral leasing of their own lands, and the Bureau of Indian Affairs expressly assumed exclusive authority and responsibility over such assets, and thereby deprived the Quapaw landowners of any ability to control their own assets or to initiate enforcement actions to protect their assets.”

In a statement released Tuesday, the tribe said it has a history concerning federal management of its lands that is unique among American Indian tribes. The Quapaw Reservation, created in 1895 in the far northeastern corner of what would become the state of Oklahoma, was an area with one of the richest discoveries of lead and zinc ever made in the United States.

The tribe said that within a few years, lead and zinc mining destroyed much of the tribe’s land.

The tribe said that in its investigation, it found a close relationship among the federal government, the Department of the Interior and the mining companies that contributed to the lack of meaningful cleanup of the land.

The tribe also alleges that because of the federal government’s mistreatment of the Quapaw Tribe, few members ever benefited from the tribe’s mineral wealth.

Said Berrey: “There is a legacy in our tribe concerning the lands and assets that were stolen from our people that were mismanaged. In order for our people to have closure on this history, these claims need to be heard in court.”

Tar Creek

THE QUAPAW TRIBE ALLEGES that when the mining began to decline in the 1950s, the U.S. secretary of the interior failed to ensure that the companies operating on the land conducted appropriate cleanup and restoration. As a result, much of the tribe’s land is polluted and within the Tar Creek Superfund Site.