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An interview with Keith Harper

Part Four

Editors’ note: Keith Harper, an attorney with the Native American Rights Fund, has been part of the attorney team working on Cobell v. Norton since the inception of the lawsuit, which seeks an accurate accounting from the Interior Department of the Individual Indian Money trust accounts, as well as reform of IIM accounting systems and a restatement of the accounts. Congress is currently considering legislation that would restate the accounts and settle other outstanding points of contention between the litigants.

Keith Harper: ... What do we think about [legislative] settlement? The main point is, we want to settle. We want to settle, obviously. I mean we have a lot of older beneficiaries, the government’s ability to delay [court proceedings] has been demonstrated to be extraordinary, they have a lot of ability to delay. They’ve been given a lot of authority to delay. So do we want to get money out there to beneficiaries? Of course we do. Do we think they’d be able to delay longer? I do think they’d be able to delay longer.

I do think at some point they’d get a judgment and it would be a correction of accounts that would be substantial, far more than they have any idea about, as their own internal assessment report ... said in 2002, 10 to 40 billion dollars is their liability. We think it could exceed the north end of that – well exceed the north end of that. ...

Indian Country Today: Well, “rough justice” is the phrase that has been used, and I don’t think there’s any alternative, is there really?

Harper: I think, I think we could – not in the near term, let’s just put it that way. Not in the near term. I think if we’re going to do something ... in the near term, it is going to have to be rougher than I would want. But that’s what compromise is all about, and we understand that. So we want a fair settlement ... it has to be fair. ... And we are not going to have it be pennies on the dollar. And we will fight them at every turn. ...

Our position is not, you know, if you don’t agree with us, we’re not going to move an inch. No. We understand how this process works and that you know, we have to be flexible. But flexibility does not mean that we are going to break and take whatever we get, because we have a legitimate claim. ...

ICT: ... The question of the hour I think is about a “Cobell Two” and the fears in Congress that there might be a Cobell Two class action lawsuit coming no sooner than we’ve settled the Cobell v. Norton case. ... I’m looking at the [Stuart] Eizenstat testimony [of March 1, at a joint hearing of the Senate Committee on Indian Affairs and the House of Representatives Resources Committee] ... and he raises that very clearly ...

Harper: ... What Eizenstat was talking about was to include an aspect of the historical accounting claim that is not in Cobell, and that is asset mismanagement. I mean all parties agree. We agree, the government agrees – asset mismanagement is not part of the historical accounting claim in our lawsuit. We said it, they said it, the court said it, there’s no dispute on that question. ... What they want to do as far as a settlement is concerned is include it, and extinguish those claims. Big problem with that. I have a big problem with that.

We don’t know enough about those claims. There has been no litigation involved in that. Our beneficiaries don’t want to resolve those claims through this process. You can talk to all kinds of account holders, none of them support that. ... And so our view is that it’s better to exclude that.

Now, if they were to ... come up with some process that was voluntary in nature, that allowed a mechanism to review these claims, outside the litigation process, we may not necessarily oppose that, or support it. ... But if it’s an involuntary, we’re paying you X dollars for your asset mismanagement claims – we just don’t have enough information. ... But we hope that they don’t take that kind of a hostile posture with our beneficiary class. I mean the fact is, is that when you talk about fraud, corruption and institutional incompetence beyond the possibility of comprehension, malfeasance, and unconscionable conduct, what the court of appeals has called the resulting chaos, there is a group of people ... that have suffered that abuse, and we think that they need to, at this late date, be treated fairly. And Sen. John McCain, and Sen. [Byron] Dorgan and the others, we believe – we believe they understand that they ought to be treated fairly. And we — we’re working with them very closely to ensure that they understand what is fair. And we have no reason to believe at the end of the day that they won’t be fair. I’ll say that.

But if anybody were to take actions that we thought were going to result in unfairness, then we would do everything in our power to stop it, obviously. That’s our job. ...

ICT: And of course if they’re not going to include the asset [mismanagement] piece, then that is going to – some people are going to look at that and say here comes a Cobell Two and –

Harper: Well, they’ve got to find a lawyer to do it. I mean, we haven’t certainly jumped up and said we’re going to do that.

ICT: And as I understand, it’s not easy to do on those kinds of claims?

Harper: Exactly ... I don’t want to prejudice any beneficiaries and so I won’t talk about the specifics there, but I think that there would be issues and defenses that don’t exist with Cobell, potentially. And as far as a Cobell Two is concerned, you know, is there a potential for another significant litigation? Yes. ... I can’t say that there won’t be. I think that the reason beneficiaries don’t want to extinguish those claims is because some of them want to bring further litigation.

But we ought not be cutting off peoples’ rights to secure their remedies when the government acts badly. And certainly ... not in a way and in a manner where you have gutted their ability to get anything but pennies on the dollar. …

We’ve always asked for and we continue to seek not only an accounting, but a restatement of accounts. And that’s critical, because I think a lot of people think – accounting claim. And what is an accounting? An accounting is, black letter [settled] trust law says, an accounting is sufficient information for the beneficiary to readily ascertain whether or not the trustee has carried out his fiduciary duty. So it doesn’t sound like there’s any money involved in that, right? It’s just, have you carried out your fiduciary duty? But in a traditional accounting claim, once there is a determination that the balance stated is inaccurate for whatever reason, it is by operation of law corrected to reflect what is the accurate balance. And that is called the restatement. Now sometimes that’s seen as separate, sometimes that’s seen as part of the accounting. But that restatement component is what we’re talking about as being a substantial money adjustment.