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Cobell Lawsuit & Settlement
Editorial: Another good shot emerges for Cobell


With Congress headed back to Washington next week under a new Democratic majority, Indian Country can get to work on a real settlement to the Cobell trust fund lawsuit.

The case came close to resolution this summer when the Senate Indian Affairs Committee advanced an $8 billion settlement that the plaintiffs and Indian stakeholders were willing to accept. But Sen. John McCain, who spent more time investigating than legislating during his past two years as chairman of the panel, unwisely let the Bush administration delay the bill not just once, but twice.

Then he let the White House kill the settlement altogether by unleashing the October Surprise -- a plan to terminate the trust without paying for past mistakes. Former National Congress of American Indians president Tex Hall rightly called it the "weakest proposal I've ever seen in my 10 years as being a tribal leader."

No one knows for sure why McCain relented, especially after he boasted that he and Congress have never bowed to the wishes of the executive branch, or anyone else for that matter. "Excuse me," he said at a hearing, his code words for "You are wrong, I am right."

As a leader on Indian issues, McCain can definitely play an important role in the 110th Congress as the plaintiffs push for a fair settlement. "We will work closely with the new Congress to resolve the litigation fairly and expeditiously," Elouise Cobell, the lead plaintiff, said yesterday.

But he gave it his "one good shot" -- those were his words remember? -- and he failed. The Democratic takeover, though, gives everyone a new start that few could have envisioned a couple of weeks ago.

With that in mind, a settlement should do the following:

• Settle the Cobell historical accounting -- and only the Cobell historical accounting -- for billions. Tribal claims should not be touched.
• Establish a commission, panel, board or other entity that will develop fiduciary standards to manage trust funds and assets. The trustee should be held accountable to the standards.
• Eliminate the Office of Special Trustee, a move that will put the Indian back in Bureau of Indian Affairs. Ross Swimmer will be looking for a new job soon anyway.

Resolving fractionated heirships is a lofty goal but not one for inclusion in the bill. After all, didn't Congress just pass yet another round of amendments to the Indian Land Consolidation Act?

"It's not the root cause of the mismanagement we're talking about," Cobell said of fractionation on Native America Calling on Monday. It's obvious that it will take serious study, and resources, before more legislation on this issue.

Finally, Congress must adequately fund the BIA so that it can fix the problems and carry out future solutions. The money to do this can't come from the settlement.

Once the suit is settled, Indian Country can work on other equally pressing issues that the Bush administration cast aside in order to blame inaction on Cobell. The 110th Congress gives everyone another good shot.

Briefing Paper:
NEWLY PROPOSED PROVISIONS FOR SENATE BILL 1439 THE INDIAN TRUST REFORM ACT (SCIA 10/23)

Press Release:
ADDITIONAL CONSULTATION MEETINGS TO BE HELD ON S.1439 (SCIA 10/19)

Relevant Documents:
Staff Draft of Cobell Settlement Bill (Posted by ITMA)

Senate Indian Affairs Committee Statement:
INDIAN AFFAIRS COMMITTEE POSTPONES CONSIDERATION OF TRUST REFORM LEGISLATION (August 2, 2006)

Indian Trust Reform Act:
S.1439 | H.R.4322

Relevant Links:
Senate Indian Affairs Committee - http://indian.senate.gov
Indian Trust: Cobell v. Kempthorne - http://www.indiantrust.com
Office of Special Trustee - http://www.ost.doi.gov
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm