Free Joint Status Report - District Court of Federal Claims - federal

Case 1:89-cv-00218-EJD

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS Consolidated Case No. 218-89 L __________________________________________ THE CHEROKEE NATION OF OKLAHOMA, ) ) Plaintiff, ) PATTON BOGGS, ) ) Plaintiff-Intervenor, ) ) No. 218-89 L v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________ ) Chief Judge Edward Damich __________________________________________ THE CHOCTAW NATION OF OKLAHOMA ) AND THE CHICKASAW NATION, ) ) Plaintiffs, ) ) v. ) No. 630-89 L ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________ ) JOINT STATUS REPORT PURSUANT TO FEBRUARY 7, 2007 ORDER Pursuant to the Court's Order of February 7, 2007, the parties are filing the instant joint status report addressing the following:: (1) what are the remaining amounts of money which need to be appropriated for the Cherokee Nation of Oklahoma, Choctaw Nation of Oklahoma, and the Chickasaw Nation, respectively, to carry out the provisions of the Settlement Act; (2) when do the parties anticipate Congress will appropriate these remaining amounts to carry out the

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provisions of the Settlement Act; and (3) a description of the progress made toward the goal of reaching the stage where the parties agree it is appropriate for the Court to approve the Consent Decree previously lodged with the court. 1/ I. Appropriations Yet to be Made by Congress to Carry Out the Settlement Act A. Cherokee Nation of Oklahoma: 1. The Cherokee Nation has received the following appropriations for FY 2004 through FY 2007: FY 2004: $5,000,000.00 FY 2005: $4,916,732.00 FY 2006: $4,914,342.50 FY 2007: $ Total: 646,257.00

$15,477,331.50

2. In its Fiscal Year 2007 Budget, the BIA requested that a total of $10,339,000 be appropriated for all three signatory Indian Nations. This is the remaining amount of money which needs to be appropriated to finish carrying out the government's obligation to appropriate a total of $40,000,000 for the three Nations pursuant to 25 U.S.C. §1779c(c). Thus far, in Fiscal Year 2007, Congress has appropriated $1,292,514 of the

On February 12, 2007, the Defendant filed a motion for leave to file the CORRECTED JOINT STATUS REPORT. This February 12th filing is the corrected version of the Joint Status Report which defendant's counsel filed on January 30, 2007. Later on that same day, January 30th, defendant's counsel unsuccessfully attempted to file the CORRECTED JOINT STATUS REPORT. The instant status report addresses only the Court's inquiries made in its February 7, 2007 Order. Accordingly, defendant's counsel has entitled the instant joint status report JOINT STATUS REPORT PURSUANT TO FEBRUARY 7, 2007 ORDER, rather than the REVISED JOINT STATUS REPORT. 2

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$10,339,000 requested by BIA. This means that Congress still needs to appropriate a total of $9,046,486 for all three Nations in Fiscal Year 2007. Section 1779c(d) of the Settlement Act provides that 50 percent of the total amount of $40,000,000 to be appropriated for all three Nations is to be allocated to the Cherokee Nation; 37.5 percent to the Choctaw Nation; and 12.5 percent to the Chickasaw Nation. The amount of money remaining to be appropriated for the Cherokee Nation is, therefore, 50% of $9,046,486 or $4,523,243.002/

B. Choctaw Nation 1. The Choctaw Nation has received the following total appropriations for FY 2004 through FY 2007: FY 2004: $3,750,000.00 FY 2005: $3,687,549.00 FY 2006: $3,685,756.88 FY 2007: $ 484,692.76 (as of 10/20/06) Total: $11,607,998.64

2. The amount of money which remains to be appropriated for the Choctaw Nation is 37.5% of $9,046,486, or $3,392,432.25.

Counsel for the Cherokee Nation, James Wilcoxen, has informed the government that the Nation has agreed to accept the dollar figures for the three Cherokee trust accounts set out in the Corrected Joint Status Report for January 30, 2007 which the defendant moved for leave to file out of time on February 12, 2007. Thus, Mr. Wilcoxen has withdrawn the comments contained in footnote 2 of the Corrected Joint Status Report (for January 30, 2007) which defendant asked for leave to file on February 12, 2007. 3

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C. Chickasaw Nation 1. The Chickasaw Nation has received the following appropriations for FY 2004 through FY 2007: FY 2004: $1,250,000.00 FY 2005: $1,229,183.00 FY 2006: $1,228,585.62 FY 2007: $ 161,564.25 (as of 10/20/06) Total: $3,869,332,.87

2. The amount of money which remains to be appropriated for the Chickasaw Nation is 12.5 % of $9,046,486, or $1,130,810.70.

II. The Anticipated Timing of the Appropriations Yet to be Made The Defendant is unable to inform the court at this time as to the specific date upon which Congress will appropriate the total of $9,046,486 which remains to be appropriated for all three Nations to carry out the Settlement Agreement. The President of the United States ("President") presented his budget request for Fiscal year 2007 to Congress on the first working Monday of February, 2006. The specific budget request for the Bureau of Indian Affairs was included in the Department of the Interior's budget as a portion of the President's overall budget request. Congress did not vote on, nor approve, the President's budget request by the end of Fiscal Year 2006. Congress passed a Continuing Resolution to keep the federal government in operation until the 2007 Budget is approved. The government is currently operating on a Continuing Resolution which is set to expire on February 15, 2007.

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The House of Representatives did vote on an omnibus budget bill for the entire federal government and that bill has been sent to the Senate for consideration. On February 14, 2007, the Senate passed the omnibus bill and sent it to the President. At this point, no one can predict when a traditional type of budget for Fiscal Year 2007 will become final. Congress has previously indicated that it intends to keep funding the federal government at 2006 levels. In short, there is no way to know when Congress will appropriate the $9,046,486.

III. The Progress on Reaching the Stage Where it is Appropriate for the Court to Approve the Consent Decree In order to reach the point at which it will be appropriate for the court to approve the Consent Decree lodged with the court several years ago, two things must occur first - namely, (1) Congress must appropriate the amount of $9,046,486 in order to reach the $40,000,000 which it must appropriate to carry out the provisions of the Settlement Act, and the funds appropriated must be deposited in the appropriate accounts with notice to the Court; and (2) there must be a final resolution of Patton Boggs' attorney fees claim because until a final resolution of this claim has been reached, Case No. 89-218 L will remain open. As to the first matter, there is no way to know when the Congress will appropriate the cited amount. As to the second matter, on February 12, 2007, the Cherokee Nation Tribal Council, by resolution, approved a proposed settlement (between the Nation and Patton Boggs) of Patton Boggs' attorney fees claim. The tribal approval does not take effect until the Principal Chief has signed the tribal resolution approving the proposed settlement. Since the money to pay the settlement is to come from the attorney fees escrow account, the Cherokee Nation must submit certain paperwork to the Office of Special Trustee (OST) before OST will authorize the 5

Case 1:89-cv-00218-EJD

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payment of the agreed upon settlement amount to Patton Boggs. Although Defendant anticipates that this will occur within the next two or three weeks, there is no date certain for the completion of this process. Patton Boggs has filed its opening brief on its appeal to the United States Court of Appeals for the Federal Circuit from the court's dismissal of its claim, but the Cherokee Nation has requested a stay of briefing until it and Patton Boggs have the opportunity to finalize their proposed settlement. Plaintiffs' respective counsel have authorized the government's counsel to sign for them. Dated this 16th day of February, 2007. Respectfully submitted, s/ James M. Upton JAMES M. UPTON U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Tel.: (202) 305-0482 Attorney of Record for the United States s/James G. Wilcoxen JAMES G. WILCOXEN Wilcoxen & Wilcoxen 112 North 5th Street Muskogee, Oklahoma 74401 Tel.:(918) 683-6696 Attorney of Record for the Cherokee Nation of Oklahoma

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s/Bob Rabon BOB RABON Kile, Rabon & Wolf 114 North 2nd Street P.O. Box 726 Hugo, Oklahoma 74743 Tel.: (580) 326-6427 Attorney of Record for Choctaw Nation of Oklahoma and Chickasaw Nation

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