A bill to settle the Cobell v. Norton trust fund lawsuit and reform the Indian trust was called a good start last week but the stakeholders made clear that it needs a lot of work.
Witnesses at a Senate Indian Affairs Committee hearing on July 26 proposed a variety of changes to the Indian Trust Reform Act of 2005. The bill, sponsored by Sens. John McCain (R-Arizona) and Byron Dorgan (D-North Dakota), seeks to resolve more than a debacle that has plagued the nation
for more than a century.
Elouise Cobell, the lead plaintiff in the case, has been admonished for her negative reaction to the bill but "serious concerns" were also raised by the Bush administration, whose position will affect
the success of the effort more than any other stakeholder.
Jim Cason, the associate deputy secretary at the Interior Department, said the administration is "receptive" to the bill. His written testimony and oral statement, however, indicated resistance to key provisions -- including the affirmation of the Indian preference policy.
"American Indians make up less than one percent of the American public," Cason said in his written testimony. "If we unduly restrict hiring to this small fraction of potential employees, instead of reaching out to whoever may be most qualified, we deprive ourselves of 99 percent of the available talent pool."
The bill would settle the historical accounting portion of the Cobell lawsuit but Cason said it should end the entire case. The department is fighting the plaintiffs over proposed reforms at Interior affecting everything from information technology to trust records.
Cason also said Congress should go further than the issues presented in Cobell and resolve any future trust asset mismanagement claims by individual Indians as well as tribes. Currently, 25 tribes have filed lawsuits in the federal courts, seeking billions in damages for mishandling of
their trust funds and assets.
And in a first, Cason's testimony called on Congress to "clarify trust accounting and management
responsibilities such that they are limited by available appropriations, so that future claims and
litigation do not arise as a result of unfunded obligations." The department has argued in court that a simple reduction or change in appropriations modifies its obligations to tribes and individual Indians.
The department raised doubts about provisions to create an Under Secretary for Indian Affairs to oversee all Indian programs and trust reform and to abolish the Office of Special Trustee.
"In Interior's view, such an initiative is unlikely to materially alter Indian trust performance due to the presence of other, more pressing, structural concerns about the trust," Cason said in his written statement.
The comments present a daunting task for the Senate staffers who have been charged with making changes to the bill during the August recess. In many cases, the administration's views run counter to those expressed by the Cobell plaintiffs and the tribal leaders.
For example, Cobell said the bill should only resolve the historical accounting portion of the case.
She and the other tribal witnesses said the courts should continue to play a role, something Cason urged against in his testimony.
The tribal leaders embraced the Under Secretary position as well as the elimination of OST, which they say has turned into a bloated bureaucracy since the start of the Bush administration. The agency's budget has more than doubled in the past four years, drawing funds and resources from the Bureau of Indian Affairs.
Cobell and the tribal leaders have called on Congress to state, in legislation, the federal government's trust obligations. But they have supported a much broader set of duties
and standards than Interior has been willing to accept.
The Indian witnesses also want to ensure they have a right to sue the government for mismanagement, something Cason argued against in his testimony. Further, Cobell and tribal leaders say Congress should create an independent oversight body to monitor the trust.
McCain, the chairman of the committee, and Dorgan, the vice chairman, said they introduced the bill in hopes of generating suggestions for improvement. But McCain noted the "strong disagreement" between Indian Country and the Bush administration.
"If we're going to reach an agreement, there's going to have to be some compromise on both sides," McCain said at the hearing last week.
McCain has previously stated he will only give trust reform "one good shot" during the 109th Congress. He only plans to chair the committee until the end of next year.
on S. 1439, Indian Trust Reform Act of 2005
(July 26, 2005)
| Hoopa Valley
| Cheyenne River Sioux
S.1439 Documents:John McCain
| Byron Dorgan Statement
| Full Text of Bill as Introduced
Relevant Documents: Trust
Reform and Cobell Settlement Workgroup Principles for Legislation
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Congress of American Indians - http://www.ncai.org
Trust Fund Monitoring Association - http://www.itmatrustfunds.org