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Bush administration won't admit liability on Indian trust
Friday, March 30, 2007
Filed Under: Cobell | Politics | Trust

INDIANZ.COM LISTENING LOUNGE
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Kempthorne Testimony | Kempthorne Q&A

Panel 1 Testimony | Panel 1 Q&A

Panel 2 Testimony | Panel 2 Q&A
U.S. Attorney General Alberto Gonzales did not admit to a $200 billion-plus liability for tribal trust lawsuits, a top aide said on Thursday.

In March 2005, Gonzales asked Congress for more money to defend the federal government against lawsuits alleging mismanagement of tribal trust assets. "The United States' potential exposure in these cases is more than $200 billion," he testified.

But in testimony to the Senate Indian Affairs Committee yesterday, the third-ranking official at the Department of Justice downplayed the remarks. William M. Mercer, the acting associate attorney general, said Gonzales never conceded such a huge liability.

"I believe that that text talks about the allegations that have been set forth in claims as part of the tribal trust litigation," Mercer told the Senate committee.

Mercer, who also serves as the U.S. Attorney for Montana, refused to admit to any sort of liability for the tribal trust. At the same time, he touted the dismissal of a tribal lawsuit that alleged $100 billion in asset mismanagement.

Sen. Byron Dorgan (D-North Dakota), the chairman of the committee, tried to get Mercer to acknowledge the federal government owes money "of some quantity" to tribes. But in response to a line of questioning about the inclusion of tribes in a $7 billion package to settle the Cobell lawsuit over individual Indian trust funds, the Bush administration official gave little ground.

"We believe that the ultimate value is much, much, much less than what the stated claims were by the tribes themselves," Mercer testified.

Despite Mercer's carefully worded responses, Dorgan was adamant about keeping tribes out of a potential Cobell settlement. "We don't even know the extent of the tribal claims," he said.

Dorgan's stance was supported by a panel of Indian witnesses. Elouise Cobell, the lead plaintiff in the case, said the proposal to join her lawsuit with more than 100 tribal ones was "a slap in the face of every Indian trust beneficiary."

John Echohawk, the executive director of the Native American Rights Fund, agreed. He urged Congress to spend billions to resolve the Cobell case and for some tribes that are willing to settle their trust lawsuits.

"I think we need a bailout here," Echohawk told the committee. NARF recently filed a class action lawsuit on behalf of all tribes who seek an accounting of their trust property.

William Martin, the vice chairman of the InterTribal Monitoring Association on Indian Trust Funds, compared the Bush administration's proposal to termination. "ITMA does not believe the administration can honorably and reasonably address all the Indian trust-related issues contemplated by this latest proposal in a single package," he said.

John Bickerman, a professional mediator who was brought in by Congress to try and resolve the Cobell case, recommended a settlement between $7 billion to $9 billion. But that only applies to the Cobell case and not the tribal ones, which he hasn't examined, he said.

When asked about the figure, Interior Secretary Dirk Kempthorne would not comment directly. He only said he would like to see how Bickerman arrived at his figure even though that analysis was presented to the committee a year ago at a March 2006 hearing.

On March 1, Kempthorne and Gonzales offered to spend "up to" $7 billion to resolve Cobell, all tribal cases and pay for trust reform. Since then, an Interior Department official said about half of the money would be used to pay for Cobell. The other half would apparently go to the tribal cases and for trust reform, although Echohawk pointed out that the proposal remains "sketchy."

During the 109th Congress, Dorgan co-sponsored legislation to settle Cobell for $8 billion. But the bill never advanced due to the failure of the Bush administration to respond.

When a response finally came, the administration did not provide an actual dollar amount to settle the case. It was at this point that the idea to include tribes in the package and to eliminate all future liability came into play, a move that effectively killed the bill last year.

Dorgan said he would continue to try and resolve the Cobell case but told Kempthorne the tribal suits "cannot be settled under those circumstances." Kempthorne, however, never stated whether the administration would oppose legislation that didn't include a tribal component.

Committee Notice:
OVERSIGHT HEARING on Indian trust fund litigation (March 29, 2007)

Settlement Letter:
Kempthorne-Gonzales to SCIA (March 1, 2007)

Relevant Documents:
Alberto Gonzales Testimony (March 1, 2005) | SCIA Views and Estimates (March 1, 2007)

Relevant Links:
Indian Trust: Cobell v. Kempthorne - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm

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