Forced settlement of trust fund suit under debate

FROM THE ARCHIVE

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MONDAY, JULY 14, 2003

Update: Today, Rep. Richard Pombo announced an agreement with the House Appropriations Committee on the trust fund settlement language. Section 137 will be removed from the bill, he said.

In addressing a controversial proposal to settle the Indian trust fund lawsuit, Bush administration officials last week not only denied involvement with the legislation but they also suggested they didn't have to participate in it.

Only part of their story was right.

In drafting the Department of Interior's 2004 spending bill, the House Appropriations Committee made no bones about ending the long-running Cobell suit. Section 137 authorizes Secretary Gale Norton to create a voluntary settlement program that would run for a year. For those trust fund accounts unresolved after a year, she would be allowed to use a statistical sampling to "adjust" the account balances.

On Wednesday, special trustee Ross Swimmer was asked about the proposal on the nationally-broadcast radio show Native America Calling. He described it this way: "Congress said, 'Make an offer, if people want to take it, fine. If they don't want to take it, then that's fine too,'" he said. "I don't know the exact language but I don't think it's mandatory that she make an offer, and mandatory that people take it."

Swimmer was correct about the settlement portion of the House initiative. The language in the bill gives Norton "discretion" to offer cash payouts to willing Indian beneficiaries. The department doesn't have to do anything at this point.

But the rest of the proposal isn't left up to the Interior's whims. The statistical sampling portion is mandatory, according to the bill, which uses the word "shall" to direct the executive branch to act, first by developing a sampling methodology to determine error rates in the trust, and second, by adjusting any account balance by the error rate. The process is envisioned to take five years.

According to Elouise Cobell, the lead plaintiff in the case, the exact wording doesn't matter. In her written testimony to the House Resources Committee last Wednesday, she argued the legislation was "as voluntary as holding a gun to someone's head and telling them to sign away their rights."

"If the individual Indian trust beneficiaries do not 'agree' to settle, then the Secretary can unilaterally determine the appropriate 'adjustment' to their accounts based on judicially-rejected 'statistical sampling' and force them to accept Interior's findings," she told the committee.

In his oral testimony to the committee, Associate Deputy Secretary Jim Cason said he wasn't "personally" involved with the bill. He also said he wasn't aware that any "key" subordinates wrote the language.

At the same time, he said the Bush administration hasn't developed a position on the proposal. But he promised that it would be forthcoming.

Rep. Richard Pombo (R-Calif.), chairman of the Resources panel, said he will raise a "point of order" objection to Section 137. If the challenge is accepted by the House Rules Committee, the provision could be stricken from H.R.2691, the appropriations bill, before it gets to the floor.

A similar tack was tried last year for an appropriations rider that would have limited an historical accounting. The Rules Committee, however, rejected the request, and a bipartisan group of lawmakers ended up waging a two-day battle to eliminate the language. It was removed by a 281 to 144 vote, termed "historic" by Rep. Dale Kildee (D-Mich.), the co-chair of the Congressional Native American Caucus.

Relevant Documents:
Section 137 | Report Language on Cobell/Settlement | Full House Report 108-195

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