Ask Elouise

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I have been monitoring the Senate and our representatives have been meeting frequently with members of Congress and their staffs, both Republican and Democratic, to assess our chances of passage and address concerns raised by some members.

An important part of our efforts included a series of discussions with Senate Indian Affairs Committee staff about concerns raised by Sen. John Barrasso, R-Wyo., which resulted in improvements to the settlement including an additional $100 million to be distributed to low-recovery class members (transferred from funds in the land consolidation fund); additional protection for class members regarding the safety and soundness of the bank holding the settlement funds; and consultation with Indian country regarding the secretary’s appointments to the scholarship fund and the identification of fractional interests to be purchased by the land consolidation fund.

With these modifications, I don’t know of any member who opposes our settlement. It was my belief that such widespread acceptance would lead to passage of legislation authorizing our settlement to go forward. Unfortunately, this was not the case and, once again, we were unsuccessful in getting legislation passed before the Congressional session ended.

The reason our settlement was not passed is singular: The government has decided that Cobell must be linked to a political settlement between black farmers and the U.S. government, known as the Pigford II settlement. Pigford I was filed in 1997 as a racial discrimination case against the Department of Agriculture. Pigford II is intended to make up for notice and distribution mistakes in Pigford I and to provide funds for new payouts.

Members of Congress have expressed concern about the Pigford settlement, with some alleging “massive and widespread fraud.” Some Republicans charge that upwards of 75 percent of all claims are infected.

Since our case has been linked to Pigford by the administration, we have struggled to get through Congress, but the Pigford problem appears insurmountable after over seven months of effort and dedication from all involved. At this late date, with mid-term elections looming, it is unclear whether Pigford’s representatives will be able to convince members of Congress of the fairness of their cause. It is clear that the opposition to Pigford was again sufficient to torpedo our chances of passage this session.

Unfortunately, we are caught in the middle. We have more than broad support in Congress on the merits, but the administration and Senate Majority Leader Harry Reid have refused, to date, to separate our settlement from the newest Pigford settlement. Under these circumstances, passage appears to be impossible. After all these months, it is clear that we can’t carry Pigford, too.

As I mentioned in my last open letter, the settlement agreement had been extended through Oct. 15, at which time a status conference will be held by the district court. Congress returns for a lame duck session (following mid-term elections) in mid-November. Between now and Oct. 15, I will consult with our attorneys and our champions in Congress to determine if (and how) our settlement legislation can be passed, as well as our options if we determine that there is no reasonable chance of passage.

– Elouise Cobell

Browning, Mont.