Witnesses at a joint House-Senate hearing on Wednesday urged members of
Congress to settle the Cobell v. Norton trust fund lawsuit for billions
of dollars.
The Senate Indian Affairs Committee and the House Resources Committee
heard from a slate of mediation, financial and tribal leaders. Nearly
all of them said American Indian beneficiaries deserve billions for the mismanagement
of their trust funds.
"There's no dispute about liability," testified John Bickerman,
a dispute resolution expert. "The courts have proven it,
the plaintiffs have been successful in their efforts and
liability is just not an issue."
Bickerman was one of two mediators appointed in 2004 by Congress to try and
resolve the lawsuit, filed in 1996. Although no agreement was reached,
he said $13 billion -- the amount
the Cobell plaintiffs and the Bush
administration agree has passed through the Individual Indian Money (IIM)
trust -- could be used as a foundation for determining the final payout.
Depending on the error rate and interest rate, a settlement
could be worth anywhere from $5.6 billion to $9.8 billion,
Bickerman said. He didn't recommend these figures outright
but urged lawmakers to reject the Interior Department's
suggestion that less than $500 million is owed.
Stuart E. Eizenstat, a former U.S. ambassador who helped
settle the class action Holocaust lawsuit for $8 billion,
advocated a "rough justice" approach. He said it was
fruitless to spend time developing a methodology to
examine the IIM trust.
"In coming to a number, which almost certainly should be in the billions," he
testified, "the committees should take into account the passage of time,
the lost investment opportunities, the massive negligence, or worse,
of the Interior Department, the fact that you are really returning
their money and similar factors."
Without a settlement, tribal leaders told the committee
that Indian Country will continue to suffer as the
federal government continues to divert funds from
reservation programs to pay for the lawsuit and related activities.
Since 1996, the Clinton and Bush administrations have
spent $3.4 billion on trust reform.
"At this time we are losing approximately $100 million annually
out of Indian programs to pay for the accounting and the
reorganization reforms that tribes opposed," said
Joe Garcia, the president of the National Congress of American
Indians.
The leaders of the House and Senate committees have introduced
identical legislation to settle the case and make other changes.
Key sticking points include the settlement figure, the scope of
the settlement and the distribution method of the settlement funds
Bickerman said the settlement should resolve all trust
funds mismanagement claims but not land mismanagement claims.
The former category focuses on whether
IIM money was collected, properly deposited and properly disbursed while
the latter category involves whether trust beneficiaries
received the fair amount for use of their assets.
Eizenstat, on the other hand, said the settlement should encompass
trust funds mismanagement and land mismanagement claims.
Bickerman later said both solutions could be considered.
The Cobell plaintiffs and most tribal leaders have objected
to a provision in the settlement legislation that would
allow the Treasury Department to distribute the funds.
Eizenstat agreed that it is probably not in the best interests
of Indian Country to allow a named defendant in the lawsuit
to exercise such authority.
Instead, he said an independent federal entity could be created to
take care of the distribution.
Elouise Cobell, the lead plaintiff, said she was encouraged
by the hearing.
"It is especially noteworthy that all the independent people who testified today
recognized that liability has been established and any settlement must be in the
multiple of billions of dollars," she said in a statement.
According to Congressional staff,
the Bush administration has not officially responded to the settlement
legislation, although officials have indicated opposition to key provisions.
"We are supportive," associate deputy Interior Jim Cason said
at the NCAI winter session in Washington on Monday," but the devil is
in the details."
Tribal leaders urged the two committees to move quickly on the
legislation, something McCain promised to do. But whatever
the amount that is selected, he acknowledge no one will be
satisfied.
"I can guarantee you will be roundly criticized but
I think its the right and courageous thing to do to pick
a number and try to end this," Bickerman said. His co-mediator,
former federal judge Charles Renfrew, was unable to attend the hearing.
Trust Reform Legislation:
S.1439 |
H.R.4322
Elouise Cobell Letter:
Dear
Lawmakers (February 23, 2006)
Jim Cason Letter:
Dear Tribal
Leader (January 26, 2006)
Cobell Court Fees:
Memorandum
and Order (December 19, 2005)
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
National Congress of American Indians - http://www.ncai.org
Intertribal
Trust Fund Monitoring Association - http://www.itmatrustfunds.org
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