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Rider halts court decision won by Indian account holders
Friday, October 24, 2003

In yet another attack on the Cobell v. Norton lawsuit, Congressional appropriators have unveiled legislation that stops the Department of Interior from performing a court-ordered accounting of the Indian trust.

Just three months after dropping their bid to end the lawsuit, a group of lawmakers is back with another attempt. Their action also comes less than a month after the plaintiffs in the landmark class action won a ruling affirming their rights to an accounting of at least $13 billion of their own money.

The new legislation, contained in the Interior's 2004 budget bill, prevents the Bush administration from abiding by that decision. It forbids the use of any federal funds to conduct the broad and far-reaching accounting dictated by U.S. District Judge Royce Lamberth until his September 25 order can be reviewed by the higher courts.

Secretary of Interior Gale Norton has not announced whether she will appeal Lamberth's ruling. At the time it was issued, a spokesperson only said the department was "reviewing the decision and the options for it."

But the rider is at odds with other legislative efforts to resolve the seven-year-old case. On Tuesday, Sens. Ben Nighthorse Campbell (R-Colo.) and Daniel Inouye (D-Hawaii), the leaders of the Senate Indian Affairs Committee introduced a bill that appropriates $40 million to clear up the balances in hundreds of thousands of Individual Indian Money (IIM) accounts. In July, Senate Minority Leader Tom Daschle (D-S.D.) proposed spending $10 billion to pay account holders.

And just last week, two of Indian Country's strongest advocates said they would oppose any rider "that would limit the full historical accounting of the individual Indian trust or otherwise diminish the rights of Indian trust beneficiaries." Reps. J.D. Hayworth (R-Ariz.) and Dale Kildee (D-Mich.), the co-chairs of the bipartisan Native American Caucus, said Lamberth's decision paved the way for a negotiated settlement.

"[I]t is now clear what the nature and scope of the IIM trust accounting is," they wrote on October 17 to the House Interior Appropriations subcommittee.

The rider, developed by that same subcommittee, undermines Indian rights and the entire judicial process, said Keith Harper, the Native American Rights Fund (NARF) lawyer handling the Cobell case. "We believe that this is unconstitutional," he said. "We would challenge it as such."

For three years in a row, the House subcommittee has drafted several anti-Cobell provisions. Some, like language allowing Interior to use taxpayer funds to pay for private law firms, have become law.

Other provisions, however, have been stripped from the Interior's budget bill in response to unanimous opposition from Indian Country and assistance by advocates in Congress. The latest was scuttled by Rep. Bill Pombo (R-Calif.), chairman of the House Resources Committee, which has jurisdiction over Indian issues.

Pombo is holding a field hearing in Billings, Montana, tomorrow on developing methods to settle the case. "If there is a legislative resolution, it will be done in this committee, and it will not be done in the appropriations committee," he declared at a Washington, D.C., hearing in July, drawing accolades from tribal leaders and the Cobell plaintiffs.

Lamberth's September 25 decision came after he heard testimony in Phase 1.5 of the case. Experts retained by the plaintiffs and the Department of Interior presented their competing strategies for clearing up the IIM account balances.

Lamberth largely sided with Interior on methodology. He said the department could move forward with its accounting plan, so long as it was completed by 2006 for most accounts and 2007 for large-dollar accounts.

But he rejected several limits the Bush administration sought to impose on the project in an effort to keep costs down. A broad accounting could end up costing as much as $2.4 billion, the Office of Historical Trust Accounting (OHTA) has estimated.

In their letter, Hayworth and Kildee said OHTA's proposed limits were "arbitrary." But to the lawmakers who control the government's purse strings, they were necessary in order to protect funding for other Indian programs.

Reps. Charles Taylor (R-N.C.) is the chairman and Norm Dicks (D-Wash.) is the ranking member of the subcommittee that puts together Interior's budget bill. They have used their positions of power to question the more than $700 million that Interior has spent on trust reform, and their latest rider was developed as part of a joint House-Senate conference committee working on a final version of the $20 billion package.

The final version is not yet ready but the rider was circulated to members of Congress starting on Wednesday. It states:
That nothing in the American Indian Trust Management Reform Act of 1994, Public Law 103-412, or in any other statute, and no principle of common law shall, be construed or applied, to require the Department of the Interior to commence or continue the historical accounting ordered by the District Court in Cobell v. Norton at the conclusion of Phase 1.5 of that proceeding, until any and all appellate review of Phase 1.5 orders has been completed.

The language is attached to the section of the bill for the Office of Special Trustee (OST). OST, headed by Bush appointee Ross Swimmer, requested $130 million in fiscal year 2004 to carry out various historical accounting activities for the IIM trust and for some tribal trust accounts.

According to a Congressional aide, the rider could be stricken from the budget bill before it sees a final vote. But lawmakers could also wage a battle on the House and Senate floor to remove it.

"We believe that there are many in Congress who understand the problem with this type of deep interference with the judicial process and an attempt to legislatively limit the enforcement rights of beneficiaries," said Harper. "We think that they will fight vigorously to support Indian Country."

DOI Budget Bills:
H.R.2691 | H.Rept.108-195 | S.1391 | S.Rept.108-89

Relevant Bills:
Campbell: Indian Money Account Claim Satisfaction Act of 2003 (S.1770) | Daschle: Indian Trust Payment Equity Act of 2003 (S.1540)

Congressional Native American Caucus Letter:
J.D. Hayworth/Dale Kildee (October 17, 2003)

Court Decisions:
Historical Accounting | Fixing the System | Structural Injunction

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
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust

Related Stories:
Bill targets Indian trust fund suit (10/22)
House chairman supports self-governance rider (10/14)
Self-governance tribes fear impact of reorganization (10/09)
Lamberth lays out future of Indian trust reform (09/26)
Court report finds undervaluation of Navajo lands (08/21)
Administration eyes consolidation of Indian appraisals (08/15)
Tally for private attorney fees in Cobell case rises (07/24)
Congress hacks Bush's accounting funds (7/16)
Swimmer partly right on trust fund rider (7/14)
Bush official balks at large settlement for Cobell (7/10)
On trust, lawmakers take Bush officials at face value (06/25)
Private attorneys reap benefits on Cobell case (06/24)
Norton offered settlement funds for IIM trust (6/20)
Lamberth criticizes interference with trust fund case (05/22)
Bush administration turns to Congress on trust (04/04)

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