Elouise Cobell, the lead plaintiff in the Indian trust fund lawsuit, asked key members of Congress on Thursday to stop the Bush administration from cutting the Bureau of Indian Affairs budget in order to pay for the case.

In a letter to 18 lawmakers from both parties, Cobell accused the Interior Department of punishing Indian Country for its own mistakes. She objected to a $3 million cut to the BIA budget meant to offset $7 million in attorney's fees that were awarded to the plaintiffs in the lawsuit.

"After fighting the federal government for nearly 10 years over its acknowledged mismanagement of Indian Trust programs, I have learned not to be surprised by the government's efforts to avoid responsibility for its misdeeds," she wrote. "But what the government is attempting to do now is a new low."

Cobell was referring to a decision by associate deputy secretary Jim Cason, a Bush appointee who was not confirmed by Congress, to take money away from Indian programs to cover the attorney's fees. In a January 29 letter to tribal leaders, he blamed the budget cut on the lawsuit, arguing that the administration had not planned for the expense.

But Cobell, in her letter, pointed out that the plaintiffs made their initial fee request in October 2003. A more detailed petition was filed in court in August 2004 after U.S. District Judge Royce Lamberth, who is handling the case, indicated he would resolve the matter.

"Nevertheless, Interior officials now feign surprise and stated that the award of fees was unforeseeable," Cobell responded. "As is readily apparent from the above stated faces, Interior's contention is simply false."

Cason has defended his decision in public and in the news media. He argued that he tried to minimize the impact on BIA programs but hasn't explained why the BIA bore the brunt of budget cut while the Office of Special Trustee and the Department of Treasury, a named defendant, didn't contribute as much to pay.

"We looked at a wide variety of alternatives to pay those funds and at the end of that process, basically I made the decision for the department to try to spread the impact across number of programs to minimize the impact on any one single program," Cason told the Senate Indian Affairs Committee at a budget hearing on February 14.

A number of lawmakers have already voiced objections to the funding cut. Sen. Tim Johnson (D-South Dakota) questioned Cason at the hearing and wrote a letter to Interior Secretary Gale Norton to seek other ways to pay the attorney's fees without dipping into tribal programs.

"The funds that were cut serve the nation's poorest peoples and we should do everything that we can to maintain and increase program funding for Indian Country, not cut funding," Johnson wrote. "There are clearly better alternatives than cutting program funding, and I am willing to pursue solutions at the legislative level that do not involve politicizing the Cobell litigation."

Tribal leaders have repeatedly criticized the administration for cutting funding for reservation-level programs in order to pay for trust reform. While the BIA budget has been reduced or flat-lined in recent years, the OST budget has grown significantly, and a lot the money is never seen in Indian Country.

"This litigation is diverting money from other needs and creating an environment in the administration that makes it hard to move on to other issues," Joe Garcia, the new president of the National Congress of American Indians, said in his State of Indian Nations address earlier this month.

Despite the concerns, there appears to be little that members of Congress plan on doing to address the situation. Although they have worked consistently to restore Bush's budget cuts, it is unlikely they will appropriate extra money to pay the attorney's fees.

The $7 million award covers the first five years of the case, from the day it was filed on June 10, 1996, to February 23, 2001, the day the D.C. Circuit Court of Appeals affirmed the federal government's responsibility to conduct an historical accounting of Indian trust funds. Since the plaintiffs prevailed, they are entitled to recover their costs under the federal Equal Access to Justice Act.

"Here, plaintiffs achieved more than 'excellent results,' they achieved a 'stunning victory,'" Lamberth wrote in his decision to award the fees.

Of the award, $4.5 million went to legal fees for the attorneys handling the case - including the non-profit Native American Rights Fund -- and $2.5 million in expenses for experts hired as part of the case. Keith Harper, a member of the Cherokee Nation and NARF attorney, said his organization and his fellow attorneys, who are not being paid by Cobell, may not be seeing portions of the money at all.

"Many of the grants that we've received in support of the case must be paid back in part or full so we're in ongoing discussions with foundations regarding how much of that money we will actually, if any, be able to keep," he said in an interview.

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