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,"
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.
HEARING on Indian trust fund litigation
(March 29, 2007)
Settlement Letter:Kempthorne-Gonzales to SCIA
(March 1, 2005) | SCIA
Views and Estimates
(March 1, 2007)
Indian Trust: Cobell v. Kempthorne - http://www.indiantrust.com
v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm