Editorial: Indian Country deserves settlement to Cobell case

Cobell | Opinion

Tuesday, May 18, 2010

The following is the opinion of Indianz.Com.

What happens if Congress doesn't approve the $3.4 billion settlement to the Indian trust fund lawsuit?

Nothing. No one gets any money. Litigation will continue, at the expense of the Bureau of Indian Affairs budget, and Congress will continue to do nothing about trust reform.

That's not what Indian Country deserves.

The settlement is the best -- and only -- deal we're going to see. The Clinton administration never agreed to a settlement and the Bush administration proposed something so egregious that it hurts to think about it now.

Indian Country deserves better. Indian Country deserves a settlement to Cobell.

Let's start with the money. The Interior Department has argued, and will continue to argue, that individual Indians are owed very little for the federal government's failure to conduct an historical accounting of their trust funds.

In July 2008, after 12 years of litigation, the government conceded to $409.8 million and a month later, Judge James Robertson determined that $455.5 million went unaccounted. We all know that's pennies on the dollar to what's really owed.

However, the D.C. Circuit Court of Appeals vacated Robertson's decision. That means, right now, there is no money anywhere in the case -- zero dollars.

More significantly, the appeals court said Interior can conduct the historical accounting any way it wants and can take as long as it wants. So when the process is complete, probably in about four to five years, the government is going to once again tell individual Indians they are owed very little.

The Cobell settlement, on the other hand, guarantees that every account holder will get money for the historical accounting. And it can happen this year -- not somewhere down the line.

Now let's talk about damages. The settlement will resolve past trust mismanagement claims, an issue that was not part of the original complaint when the case was filed in 1996.

The U.S. Supreme Court decision in US v. White Mountain Apache Tribe appears to provide solid grounds for a damages lawsuit. But it's not wise for anyone -- individual Indians or the government -- to mount more litigation.

And if we did wait for a damages case, the dollar amount will probably not be significant, as shown by an independent study commissioned by the Mississippi Band of Choctaw Indians. The study found that the largest award for individual Indians was $52.4 million.

In that case, involving trust assets on the Hoopa Valley Reservation in California, it took 30 years for the individual Indian plaintiffs to receive their money. Yes, you read that correctly: Thirty years.

The Cobell settlement, on the other hand, guarantees that every account holder will get money for past trust mismanagement. And it can happen this year -- not somewhere down the line.

The damages issue is even more important since the Supreme Court, at the request of the Obama administration, will rule on a trust case for the first time since US v. White Mountain Apache Tribe. The Tohono O’odham Nation of Arizona filed an historical accounting lawsuit and a trust mismanagement lawsuit and the government wants to kill the damages case simply because it doesn't want to deal with it.

Tribal interests have lost nearly every single case before the Supreme Court since 2000. The writing is on the wall for US v. Tohono O'odham Nation. The same can't happen for the Cobell settlement.

Finally, a few words about politics. Republicans in Congress are raising questions about the settlement, and they are saying they are motivated by concerns in Indian Country.

But it's too late for Rep. Doc Hastings (R-Washington), the top Republican on the House Natural Resources Committee, to act honorably. In 2006, he introduced a bill to authorize scientific study on our ancestors and he did so without consulting a single tribe -- not even the one in his Congressional district.

Last year, he objected to the inclusion of the Indian Health Care Improvement Act in the national health reform bill. Indian Country can't rely on Hastings to act in its best interests on Cobell or any other issue.

Sen. John Barrasso (R-Wyoming), the vice chairman of the Senate Indian Affairs Committee, deserves some slack since he's only approaching his third anniversary in Congress. In that time, he's taken some favorable stances on law enforcement, health care and education in Indian Country, and he has spoken well of the two tribes in Wyoming.

Yet Barrasso has never taken steps to reform the Indian trust or to address basic Indian trust issues. At best, his "letter" to Indian Country is misplaced, especially since the two tribes in his state have pending trust cases.

And you probably noticed that neither Hastings nor Barrasso proposed to increase the settlement amount. The figure -- $1.412 billion for individual Indians, plus $2 billion for a land consolidation program -- is just not going to get any higher.

Lawmakers with more experience from both sides of the aisle rightfully welcomed the settlement when it was announced last December. It's time for the rest of their colleagues to do the same and for Congress to authorize the settlement once and for all.

Relevant Documents:
Agreement | Press Release | Q&A | Audio