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Settlement figure still elusive in Cobell fight
Wednesday, July 27, 2005

Indianz.Com Listening Lounge, Senate Indian Affairs Committee hearing on S.1439, the Indian Trust Reform Act of 2005, July 26, 2005.
Note: All files in MP3 format.
Intro - 16:03 - 2.75MB
Panel I - 14:13 - 2.44MB | Q&A - 14:28 - 2.48MB
Panel II - 53:41 - 9.21MB | Q&A - 29:58 - 5.14MB
Witness List
The Bush administration on Tuesday refused to back down from its claim that Indian beneficiaries are owed little for the historic mismanagement of their trust accounts.

Two Interior Department officials repeated their position that they would not settle the Cobell v. Norton lawsuit for the billions that have been proposed. "If you use the facts that we have found so far in the accounting process, the number would be very, very low," said Jim Cason, the associate deputy secretary. "We don't think the facts that we have thus far would support a very high number."

"It's not evident that where was wholesale fraud," added Ross Swimmer, the Special Trustee for American Indians.

But during a round of questions, the officials clarified that the project isn't complete. Cason acknowledged the "uncertainty and risk" with the historical accounting because it doesn't go back to 1887, the inception of the trust, and is limited in scope. The officials wouldn't propose a settlement amount either, citing the ongoing work.

The administration's stance conflicted with the views of the plaintiffs in the Cobell lawsuit, tribal leaders and Indian organizations. Earlier this month, the coalition released a set of principles that called for a $27.5 billion settlement of the case.

The two leaders of the Senate Indian Affairs Committee also are pushing to end the nine-year-old lawsuit, which they say is hurting efforts to advance other tribal issues. Sen. John McCain (R-Arizona), the chairman, and Sen. Byron Dorgan (D-North Dakota), the vice chairman, introduced a bill last week that envisions a large settlement.

"While the legislation does not specify a dollar amount, it does make clear that the resolution will be for billions of dollars," McCain said in his opening statement.

"Indian people have been cheated, bilked and defrauded over a long period of time," added Dorgan.

A slate of Indian leaders praised McCain and Dorgan for recognizing that a settlement would run in the billions. "This is not reparations, this is not damages, nor is it welfare," testified Elouise Cobell, the lead plaintiff in the lawsuit. "It is simply a return of the money that was, and is, being taken from us."

But nearly every tribal witness said distribution of the fund shouldn't be left in the hands of the Department of Treasury, a named defendant, as provided in the bill. They told the committee that the federal court handling the case is the more appropriate place to determine how much beneficiaries are owed.

"We want to make sure that the sheepdog is guarding the sheep," said Ernie Stensgar, the president of the Affiliated Tribes of Northwest Indians.

Tex Hall, the president of the National Congress of American Indians, said tribal leaders need to know how much Congress is willing to pay. "In order for us to convince Indian Country and our members that whatever figure is settled on is fair, we need to be armed with a dollar amount and a credible rationale that we can explain to our tribal members," he testified.

McCain has previously said the $27.5 billion is too high, so Hall suggested an alternate amount. He said the "starting point" should be around $14 billion because that is the Bush administration's estimate of what a full and complete accounting back to 1887 would cost.

Whatever the final figure, McCain said it can't be "forced down the throat" of any party. He also said the amount must pass muster among other members of Congress and the American public.

The bill makes clear that the settlement would come from the federal government's judgment fund, a provision welcomed by the Indian witnesses. "Unquestionably, funds to settle the injustice against Individual Indian Money account holders cannot come from Indian programs," said Jim Gray, the chief of the Osage Nation.

It is not clear what will come next in the process for S.1439, the Indian Trust Reform Act of 2005. McCain said there wouldn't be a round of hearings to discuss the bill, which doesn't yet have a companion in the House.

Cobell and the other witnesses, including the Interior Department, said they would work with the committee to make changes to the bill. McCain didn't say how he would arrive at a settlement figure.

Senate Testimony:
Hearing on S. 1439, Indian Trust Reform Act of 2005 (July 26, 2005)

Additional Testimony:
Sen. McCain Statement | Ernie Stensgar | Hoopa Valley Tribe | Cheyenne River Sioux Tribe

S.1439 Documents:
John McCain Statement | Byron Dorgan Statement | Full Text of Bill as Introduced | S.1439

Relevant Documents:
Trust Reform and Cobell Settlement Workgroup Principles for Legislation (June 2005)

Related Story:
Federal official: Native trust fund accounts vulnerable (The Lincoln Journal Star 7/21)

Relevant Links:
Indian Trust: Cobell v. Norton -
Cobell v. Norton, Department of Justice -
National Congress of American Indians -
Intertribal Trust Fund Monitoring Association -

Related Stories:
Cobell calls trust reform bill a win for Interior (7/22)
McCain and Dorgan introduce trust reform legislation (7/22)
Opinion: Keep open mind on Cobell settlement (7/19)
McCain plans hearing on Cobell settlement, reform (7/14)
Judge blasts Interior on handling of trust (7/13)
Elouise Cobell: Principles put trust back into trust fund (07/07)
Cobell and Cason to appear on C-SPAN program (7/6)
Cobell calls for settlement of trust fund lawsuit (7/5)
Editorial: Resolution of trust fund debacle needed (7/5)
Editorial: Abramoff scandal can't compare to trust (6/30)
Opinion: Downfall of Indians traced to Army, BIA (6/28)
Pombo supports settlement of Cobell trust fund case (6/27)
Harjo: Tribes lobby to fleece their own people (6/24)
Editorial: Congress should settle trust fund (6/24)
Editorial: Trust fund a 'national embarassment' (6/22)
Indian Country united on trust reform solutions (6/21)
Trust workgroup to outline Cobell settlement goals (6/17)
Echohawk optimistic on settlement of Cobell case (06/03)
Final trust reform meeting held in North Dakota (6/3)
UTTC hosts meeting on trust reform legislation (6/1)
House panel acts to restore Bush budget cuts (05/05)
NCAI and ITMA hold second trust reform meeting (05/04)
Bush administration won't give up fight on Cobell (03/18)
McCain weighs GAO probe of Indian trust debacle (03/10)
McCain lays out Indian agenda for 109th Congress (3/7)
Norton won't testify on trust fund retaliation (2/28)
Bush official won't accept claims of trust mismanagement (02/17)
Appeals court won't hold back Lamberth on trust reform (12/13)
Appeals court supports Lamberth's authority on IT (12/06)
Lamberth critical of Norton's 'bad faith' on trust fund (10/25)
Interior denies attempt to halt trust fund payments (10/05)
Bush administration challenges trust fund ruling (09/16)
Appeals court takes on Cobell trust fund case (9/15)
Lamberth exchanges harsh words with Cobell critic (08/02)
Bush administration calls for end to Cobell case (04/09)
Cobell trust fund suit mediators announced (4/6)
DOI's Internet connection shut down for third time (03/16)
Lamberth defends special master against attack (03/16)
Anderson praises Cobell suit in NCAI speech (2/25)
Tribes still frustrated on trust reform (11/20)
Bush officials blasted by tribal leaders (11/19)
Cobell plaintiffs disputing trust fund rider (11/17)
Daschle criticizes 'shameful' rider in DOI budget bill (11/04)
Norton welcomes time-out in Cobell trust fund case (11/4)
Bush official balks at large settlement for Cobell (7/10)

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