Cobell litigation moves into second phase

WEDNESDAY, NOVEMBER 13, 2002

Trust reform took center stage at the nation's largest inter-tribal gathering on Tuesday, as debate raged over the next phase of the landmark Cobell lawsuit.

The class action represents 500,000 American Indians whose funds have been mismanaged for more than a century. With Elouise Cobell, a Blackfeet Nation of Montana banker, at the helm, the plaintiffs have won victory after victory against the federal government.

But that landscape could change should tribes seek to become more involved in the case, Cobell and others involved in trust litigation said. During a lengthy discussion at the National Congress of American Indians (NCAI), tribal leaders were urged to protect the rights of an often vulnerable segment of Indian Country.

"Who are your constituents that made you the tribal leaders that you are?" Cobell asked. "What about those individual Indians?"

The impetus for the debate was U.S. District Judge Royce Lamberth's September 17 decision to hold Secretary of Interior Gale Norton and Indian affairs aide Neal McCaleb in contempt of court. An order accompanying the ruling set a path for resolution of the six-year-old case.

By January 6, 2003, the Department of Interior must submit two major plans. One will address how conduct an historical accounting of the Individual Indian Money (IIM) trust while the other focuses on how the federal government will meet its fiduciary obligations to the account holders.

Lamberth also gave permission to the plaintiffs to file their own plans. Keith Harper, the Native American Rights Fund attorney on the case, said the Cobell legal team would be doing just that in order to help the court bring true reform of the IIM trust.

"This court is going to ensure accountability," he said.

Some tribal leaders, however, have concerns about how the process will unfold. The complaints tend to center on the impact on tribes who, through self-determination compacts and contracts, manage IIM accounts. They worry that scarce federal funding will be diverted in order to meet the court's directives.

During talks this week, Ron Allen, chairman of the Jamestown S'Klallam Tribe of Washington, and Clifford Lyle Marshall, chairman of the Hoopa Valley Tribe of California, were the loudest voices in this camp. Both criticized the Office of the Special Trustee, which was set up by federal trust reform law, for what they said was its heavy-handed treatment of the Bureau of Indian Affairs.

Another segment includes tribal leaders whose members are part of the Cobell lawsuit and those who have similar cases pending in the federal court system. Jim Gray, chairman of the Osage Nation of Oklahoma, and John Berrey, chairman of the Quapaw Tribe of Oklahoma urged their colleagues not to jeopardize the IIM victories.

The Navajo Nation, the largest tribe in the country, also voiced strong support, Cobell and Harper said.

The competing interests will come to a head by the end of the week. Tribal leaders are being asked to vote on a resolution to authorize NCAI to file a friend of the court brief. NCAI staff attorney John Dossett said the effort could cost anywhere from $20,000 to $25,000.

The Inter-Tribal Monitoring Association (ITMA) hedged on a possible role during the talks yesterday. Executive director Mary Zuni said the organization, which represents more than 50 tribes, had not decided on its next move while Shannon Atcitty, an attorney working with ITMA, suggested there would be support for the brief.

Earlier this year, ITMA submitted a brief in the Cobell case backing a receiver, an independent judicial officer, for the IIM trust. But Atcitty subsequently drafted another one that softened the support in order to highlight the interests of tribes.

Harper encouraged tribes to submit a friend of the court brief, as long as it was done in a "timely" fashion to prevent further delay in the case. He also urged tribes submit, in writing, their own issues and concerns to the plaintiffs. So far, he said, no one has taken him up on the offer.

"Will Indian Country stand together and hold the government accountable?" he asked. "Which way is it going to be?"

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
Trust Reform, NCAI - http://www.ncai.org/main/pages/
issues/other_issues/trust_reform.asp