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FRIDAY, JUNE 20, 2003

A House panel this week approved legislation that would allow the Bush administration to settle certain trust fund accounts without going through the federal judge overseeing the Cobell case and subject the rest to a statistical sampling, a method overwhelmingly rejected by Indian beneficiaries.

The measure is part of the Department of Interior's $19.6 billion spending bill that cleared an appropriations subcommittee on Wednesday. According to supportive lawmakers, it would provide a "prompt, fair resolution" of the trust fund lawsuit, a seven-year-old case that seeks to provide an accurate accounting of funds owed to more than 500,000 American Indians.

But a Native American Rights Fund (NARF) lawyer said the bill would undermine Secretary of Interior Gale Norton's trust responsibilities. Calling the initiative a "desperate" attempt to kick the class action out of federal court through "side-settling" of certain claims, Keith Harper predicted it would only lead to more litigation.

"There's a reason why this is generally outlawed," Harper said yesterday. "You have the very real possibility that the government will misinform account holders. If the Secretary wanted to settle these accounts in good faith, why isn't she going through the judicial process?"

A spokesperson for Rep. Charles Taylor (R-N.C.), the chairman of the House Interior Appropriations subcommittee, was out for remainder of the week and unavailable for comment yesterday. Rep. Norm Dicks (D-Wash.), the panel's ranking member, did not return a phone call.

But under the leadership of Dicks and former Rep. Joe Skeen (R-N.M.), who retired last year, the House panel has advanced a number of initiatives targeting the Cobell suit. Last summer, the lawmakers inserted language to limit an historical accounting of the Individual Indian Money (IIM) trust, whose funds are derived from oil, gas, timber and other land-based activity, from 1985 to the present.

A bipartisan group of lawmakers voted 281 to 144 to strip the bill of the accounting provision affecting the trust, which was created in 1887.

With this year's bill, the subcommittee intends to use the U.S. Judgment Fund, a fund typically used for litigation settlements against the government, to establish a voluntary settlement program. The Interior would be able to offer willing account holders a sum of money to extinguish his or her rights to an accounting. Challenges to the process could be heard in court -- but by the D.C. Circuit Court of Appeals, not by U.S. District Judge Royce Lamberth, who is handling the Cobell case.

For those accounts not resolved after the end of the year-long program, the Interior would be allowed to use a "sound" statistical sampling to "estimate a rate of past accounting errors," according to explanatory language accompanying Section 137 of the bill. The provision further states that no account balances will be reduced as a result of the sampling.

In 2000, the Clinton administration asked Indian beneficiaries for their views on an historical accounting. The overwhelming majority said they wanted a full transaction-by-transaction report, not a sampling. Nothing was done on the project, required by law and by court order, for more than a year.

Dan DuBray, an Interior spokesperson, said he was unfamiliar with the details of the House bill, but that the Bush administration was committed to providing an historical accounting. "The department has a very robust effort moving forward," he said yesterday.

President Bush's fiscal year 2004 budget requests a total of $130 million for historical accounting efforts. Of the amount, $100 million would be used to analyze IIM accounts, through a transaction-by-transaction and statistical sampling, while the rest is dedicated to resolving a selected group of tribal trust fund accounts.

The full language of the Interior appropriations bill won't be made public until today. According to a summary of Wednesday's mark-up that was released by the House, it provides $1.9 billion for Bureau of Indian Affairs programs, $566 million for BIA education and $241 million for trust reform.

In addition to the settlement program, Taylor and Dicks have inserted language to limit compensation to the two special masters in the Cobell case. Another section authorizes the use of taxpayer funds to pay attorneys from 54 law firms who are representing 80 current and former government employees whose handling of the Indian trust has been called into question in court reports.

Relevant Documents:
House Committee on Appropriations: Highlights of the FY04 Interior Appropriations Bill (June 18, 2003)

Relevant Links:
House Appropriations Committee - http://www.house.gov/appropriations
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

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Judge authorizes release of trust fund report (03/26)
Appropriators question historical accounting plan (03/13)
On accounting, Norton find her magic date (03/12)
Pressure stirs to settle trust fund lawsuit (02/27)
Spending bill keeps provisions affecting Cobell (02/14)
Trust programs see historic increase (2/4)
Standards guide reform effort (1/8)
What happened to all the land? (1/8)
Norton to fight IIM accounting (1/7)
Norton won't account for assets (1/6)
Lamberth slams claimed accounting (12/23)
Tribes opposing trust fund settlement bill (11/13)
Judge rejects Norton's 'absurd' accounting claim (09/23)
Funding battle underlies trust obligations (7/19)
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