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Trust principles presented by united tribal workgroup
Tuesday, June 21, 2005

Indian Country is united on efforts to settle the Cobell v. Norton lawsuit and reform the broken trust, the major stakeholders in the long-running debacle said on Monday.

The Cobell plaintiffs, tribal governments, Indian allottees and inter-tribal organizations joined together in announcing 50 principles aimed at resolving a problem that dates back more than 100 years. The goal is to restore justice to Indian people for the mismanagement of their trust funds and to prevent it from happening again in the future, participants said.

"We're asking the government to be accountable to individual Indians," said Elouise Cobell, the lead plaintiff in the lawsuit, filed nine years ago this month.

Tex Hall, the president of the National Congress of American Indians, hailed the announcement as monumental. He said the principles represent a common sense approach that will bring standards and accountability to the handling of billions of dollars in Indian funds.

"This is truly a historic time," Hall said at the National Press Club in Washington, D.C. "Indian Country has come united."

A lot of hard work went into the effort, pointed out Jim Gray, the chief of the Osage Nation and the chairman of the chairman of the Intertribal Trust Fund Monitoring Association. A tribal workgroup and technical team held four public hearings, took comments from interested parties and met several times over the past four months.

"The principles present a real breakthrough," Gray said. Although the stakeholders have been working on the problem for "decades," he said they reached a consensus solution in a short amount of time. "This is the first time we are on the same track," he noted.

Sharon Clahchischilliage, the executive director of the Navajo Nation Washington Office who was representing Navajo Nation President Joe Shirley Jr. also called the endeavor "very thorough." She said the settlement will have a significant impact on her tribe, the largest in the U.S.

"We have Indians who are owed monies," Clahchischilliage said.

The workgroup was created by NCAI and ITMA in response to growing momentum among key members of Congress to resolve the debacle. The leaders of the Senate Indian Affairs Committee and House Resources Committee, which have jurisdiction over Indian issues, have been holding hearings on trust reform and oversaw mediation in 2004 aimed at settling the Cobell case.

Sen. John McCain (R-Arizona) has said he intends to give the effort "one good shot" as the chairman of the Senate Indian Affairs Committee. "If it looks like we're not getting anywhere," he said at a hearing in March, "then I will leave that task to future Congresses and the courts."

McCain and Sen. Byron Dorgan (D-North Dakota), the vice chairman of the committee, are now expected to introduce legislation that would embody a Cobell settlement and trust reform. The measure will be unveiled "in a matter of days," Hall said.

Although the exact contents of the bill aren't known, committee staff members have attended every single hearing and participated in the technical sessions. Many of the ideas they heard, including ones that made it into the principles, were previously embraced by McCain in a reform bill introduced more than two years ago, when tribes and the Bush administration took a stab at fixing the system.

That effort failed in late 2002 when the administration walked away in a dispute over trust standards and independent oversight. The Interior Department then launched a reorganization of the Bureau of Indian Affairs and an expansion of the Office of Special Trustee that many tribes still oppose.

Department officials didn't take part in the workgroup but Hall was confident that Congress would act. He said McCain, who plans to serve as chairman of the Indian committee for another year-and-a-half, will hold a hearing next month in hopes of marking up the bill during the August recess.

"This was our opportunity as Native leaders to ensure this injustice didn't happen again," said Hall, who also serves as chairman of the Mandan, Hidatsa and Arikara Nation in North Dakota.

Cobell, a member of the Blackfeet Nation of Montana, wasn't particularly worried about the executive branch's lack of input. In an interview, she said the courts and the Congress would ensure the federal government meets its trust responsibilities.

"They certainly have fought it in the past because they have not wanted to live up to the liability," she said of department officials whose battle against the case has spanned Democrat and Republican administrations. "But I think it's timely that Congress steps in and enforces some of the victories that have been won in court."

Cobell said the plaintiffs support a $27.487 billion settlement laid out in the principles. To be paid in a lump sump to a federal court registry, the money would then be distributed to IIM account holders based on the types of activity that occurred on their lands.

The settlement amount, which was the focus of most of the press inquiries yesterday, is based on $13 billion that the plaintiffs and the government agree has passed through the trust since at least 1909. To arrive at the $27 billion figure, resource accountants hired by the plaintiffs devised a methodology to determine how much oil, gas, grazing and other activities occurred on Indian trust lands.

Under trust law, a trustee must show that payments for these activities made it to the account holders but Cobell, Hall and others said proving that would be impossible due to inadequate record keeping.

So rather than spend millions, or potentially billions, on an historical accounting, the settlement would end the historical accounting aspect of the Cobell lawsuit. U.S. District Judge Royce Lamberth has yet to hold a trial on this part of the case.

"If this legislation gets to a point where it's approved ... the court case will probably stop," Cobell said in the interview.

Bush officials have balked at a large settlement for the case, claiming that their efforts so far have shown few "errors" in the trust. But the overwhelming majority of the IIM accounts they have reconciled are derived from per capita and judgment fund payments, not the land-based activities largely at issue in the Cobell case.

A mid-1990s effort to reconcile tribal trust accounts showed at least $2.4 billion in unsupported transactions. The Department of Justice is now using the reports, prepared by the now-defunct Arthur Anderson accounting firm, to defend the government against mismanagement lawsuits filed by more than 20 tribes.

Relevant Documents:
Trust Reform and Cobell Settlement Workgroup Principles for Legislation (June 2005)

Relevant Links:
National Congress of American Indians - http://www.ncai.org
Intertribal Trust Fund Monitoring Association - http://www.itmatrustfunds.org
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Senate Indian Affairs Committee - http://indian.senate.gov