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Cobell criticizes efforts to overturn trust fund wins
Tuesday, October 28, 2003

The lead plaintiff in the Indian trust fund suit rallied support on Monday amid new attacks on the long-running case.

Appearing on Native America Calling, Elouise Cobell said she was appalled by legislative efforts that would delay a court-ordered accounting of at least $13 billion in Indian funds. She told listeners of the nationally-broadcast radio program that the Bush administration and some members of Congress are interfering with the judicial process.

"We're in the courts because the Department of Interior and Department of Treasury wouldn't do anything about this when we asked them to years ago," she said.

In September, U.S. District Judge Royce Lamberth ordered the government to account for "all funds" in the Individual Indian Money (IIM) trust. He rejected several limits the Bush administration sought to impose on the project.

But lawmakers who control Interior's funds are concerned about the cost of the undertaking and whether it will lead to resolution of the trust fund case, which is in its seventh year. Yesterday, a joint committee of House and Senate members approved a provision in the 2004 budget bill that delays the accounting for one year while Congress sorts out the "appropriate" scope.

The language is scaled back from a version unveiled last week that would have delayed the case indefinitely by prohibiting Interior from carrying out Lamberth's orders until the matter is fully resolved by the higher courts. An appeal to the Supreme Court could have taken years.

Dan DuBray, an Interior spokesperson, declined to comment about the rider. Department officials have denied drafting, suggesting or otherwise lobbying for legislation affecting the case.

Cobell, a member of the Blackfeet Nation of Montana, said Interior knows it's on the losing end of the case. "After the judge gave his ruling on September 25," she said, "then they began this other tactic of running to Sen. Ben Nighthorse Campbell."

Last Tuesday, Campbell, the Republican chairman of the Senate Indian Affairs Committee, introduced a bill that would set up a new bureaucracy to determine the balances in hundreds of thousands of IIM accounts. But without fundamental changes, Cobell and Native American Rights Fund (NARF) attorney Keith Harper, who also appeared on the radio show, said the proposal is flawed.

"It's nothing but the Interior's argument," Cobell said of the bill. "It puts all the burden of proof back on the individual Indian. It does some horrible, horrible overturning of what we've already won in court."

"I'm very upset," she added. "Why is Congress acting in this manner?"

Under common trust law, Harper said the trustee is required to prove he or she has distributed payments by keeping proper records. Otherwise, all claims are resolved against the trustee and in favor of the account holder, he said.

"You owe what you can't show," he said. "It's a very clear rule."

Campbell's co-sponsors on the settlement bill are Sens. Daniel Inouye (D-Hawaii), vice-chairman of the Indian committee, and Pete Domenici (R-N.M.), who represents thousands of Navajos with IIM accounts. All say Indian beneficiaries have gone long enough without being paid money they are owed.

"Those who insist that a decision by the judge would mean the beginning of the end of this case are wrong," Campbell said on the Senate floor. "With likely appeals, Congressional squabbling over money spent on this effort, and additional lawsuits aimed at securing money damages, this case is just beginning."

Estimates of a full historical accounting range from $2.4 billion to $10 billion. It could take anywhere from five to 10 years to complete.

In his order, Lamberth said Interior has until 2006 for most accounts and 2007 for the rest to finish its jobs. Interior's budget bill, which still needs a final vote by the House and Senate, provides only $45 million in 2004 for this process, a much smaller amount than the $130 million the Bush administration requested earlier this year.

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:
DOI bill halts Indian trust fund case (10/24)
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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