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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 - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
National Congress of American Indians - http://www.ncai.org
Intertribal Trust Fund Monitoring Association - http://www.itmatrustfunds.org

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