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Settlement in trust fund case an elusive goal
THURSDAY, MAY 29, 2003

Attorneys representing 500,000 American Indian beneficiaries are asking two Senate leaders to delay legislation seeking to resolve the long-running Cobell trust fund lawsuit.

In a May 23 letter, the Native American Rights Fund (NARF), the organization overseeing the suit, welcomed the Senate Indian Affairs Committee's involvement. NARF executive director John Echohawk said five previous attempts to settle the case have failed.

"Without your direct and active participation in the settlement process, we have no hope that the administration will discuss these matters in good faith," Echohawk told Sens. Ben Nighthorse Campbell (R-Colo.) and Daniel Inouye (D-Hawaii).

Echohawk's letter was in response to an April 8 letter Campbell and Inouye sent to the Cobell case attorneys and to Secretary of Interior Gale Norton. In it, the lawmakers said they would mandate a Congressionally-directed settlement if the two parties can't come together.

"The litigation has caused the expenditure of significant funds and caused other costs to be borne: opportunity costs and human moral costs to the agencies involved," the lawmakers wrote.

But Echohawk urged Campbell and Inouye to hold off until the resolution of a trial currently taking place in federal court in Washington, D.C. U.S. District Judge Royce Lamberth is hearing testimony about competing plans aimed at finally putting the seven-year-old dispute to rest.

The trial, which began May 1, is at about the halfway mark. Keith Harper, a NARF attorney, said the plaintiffs are resting their side of case this week, leaving the Department of Justice to call its witnesses, a list that includes Associate Deputy Interior Secretary Jim Cason and Special Trustee Ross Swimmer.

One key issue being addressed is an historical accounting of the Individual Indian Money (IIM) trust, a trust created in 1887 whose revenues are derived from oil, gas, timber and other land-based activity. The two sides are at odds over what is owed to IIM beneficiaries -- the plaintiffs say $162 billion has passed through the system while the government acknowledges at least $13 billion has been collected since 1909.

"There is a tremendous difference between our position and the plaintiffs' position," Norton told a Senate committee in February. "The difference is so vast that there are very few opportunities for sitting down and resolving the issue."

The differences have not precluded settlement talks over the years but they have not been entirely fruitful. However, a final accord was drafted at the end of the Clinton administration only to be rejected by the Department of Justice, according to the plaintiffs' attorneys and Tom Slonaker, the former special trustee who negotiated the terms before being ousted from his post last summer.

Another attempt was made during the Bush administration. Plaintiffs' attorneys declined to discuss the nature of the talks but have said high-level officials were involved.

Still, negotiations for this round broke down last fall after the plaintiffs gave confidential information to the government. Deputy Interior Secretary J. Steven Griles went on to openly deride the $162 billion figure, at one point calling it "creative accounting" in testimony to the House Interior Appropriations subcommittee this past March.

Campbell in recent months has also been more critical of the case, charging that Indian beneficiaries are going without while the attorneys involved are making money. Bush officials have agreed with the assessment in public and in private, although they also lobbied Congress to reimburse their private attorneys with taxpayer funds.

At the same time, Elouise Cobell, the lead plaintiff, hasn't paid the trial attorneys. "I haven't been paid since October 1998," said Dennis Gingold, the lead Washington, D.C., attorney on the case. NARF is a not for profit organization.

Gingold and NARF have recouped some of the $8 million spent on the case since 1996 by filing motions for attorneys fees. At last count, the figure was about $1 million.

Paul Moorehead, the Republican staff director for the Indian committee, said Campbell was taking a "pragmatic" approach to the case. In a recent interview, he acknowledged a lack of consensus in Indian Country on how to move forward.

"We don't have to have a GAO [General Accounting Office] study showing that IIM account holders haven't received a penny," Moorehead said.

Last year, tribal leaders scuttled Campbell's proposal to create a voluntary IIM settlement program that would have put all the decision-making in the hands of the Department of Interior. "For the government to offer a settlement to those who are desperate financially, that's not fair," said John Berrey, chairman of the Quapaw Tribe of Oklahoma, last fall. Subsequently, he said he would support any proposal aimed at resolving the litigation and said his tribe is in talks to settle a claim worth up to $100 billion.

Tex Hall, president of the National Congress of American Indians (NCAI) and an IIM beneficiary, said negotiations will only be fruitful if the government enters them in good faith. "I think that possibility exists if there is mutual consultation," he told Campbell last week at a hearing. "We can't do it if we're miles apart, and right now we're miles apart."

Relevant Documents:
NARF Letter {May 23, 2003) | Senate Committee on Indian Affairs Letter (April 8, 2003)

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:
Lamberth criticizes interference with trust fund case (05/22)
Land ownership records in disarray, says witness (05/05)
Trial in Cobell trust fund case kicks off (05/02)
Bush reform plans debated in trust fund trial (05/02)
Cobell v. Norton Recap: Day 1 of Trial 1.5 (05/02)
Court tackles trust accounting and reform plans (05/01)
On accounting, Norton find her magic date (03/12)
Pressure stirs to settle trust fund lawsuit (02/27)

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