WASHINGTON - Sen. Ben Nighthorse Campbell has sounded an urgent warning, saying all parties to the Cobell litigation must work together to resolve the case or they could lose any chance to resolve it at all.
"We have one year to reach settlement on this issue," he said in opening a hearing of the Senate Committee on Indian Affairs on his bill, S. 1770, to encourage individual beneficiary settlements in the class action lawsuit.
Later the Colorado Republican took up the theme again, this time in rushing clipped tones that seemed to underscore his urgency. "We've got a year to come up with something before something that's really unacceptable happens. ? It's [S. 1770] meant to be a vehicle, a placeholder ? to prevent something that Indian country's not gonna like ? We've gotta find a solution or it's gonna be taken away from us."
The hearing followed by two days a dramatic series of events in a House-Senate appropriations conference committee. Since the opening of the 108th Congress at the start of this year, and in fact before, Campbell has been stating that the Cobell case must show progress or Congress will lose its already strained willingness to fund it.
Now he seized on the appropriations "rider" or late amendment of Oct. 27 as "one last shot across the bows" of the Cobell litigants, as he expressed himself in informal remarks to reporters after the hearing. The rider on Interior appropriations prevents the expenditure of federal funds on the court order until an accounting methodology can be agreed upon. The rider is "not very satisfying to myself or Senator Inouye," he said, adding that he didn't oppose it too strenuously in hopes it would serve as a "wake up call."
Daniel K. Inouye, the Hawaii Democrat who with Campbell co-chairs the Senate Committee on Indian Affairs, concurred with Campbell's low opinion of the rider. In fact, he questioned its constitutionality.
Previous efforts to put riders on Cobell-related spending have failed. This one succeeded because "the administration" - probably including President Bush, though Campbell said he could only assume the administration's involvement from the tenor of remarks in conference - will remove the issue from SCIA's jurisdiction. Campbell wasn't entirely clear on how that might happen, but he couldn't have been more clear on his larger message: Indian country will not like the alternatives.
The appropriations rider sent a clear message too. With a $400 billion national deficit to deal with and war spending at $87 billion, the political lay of the land right now suggests that Congress simply isn't going to fund the historical trust accounting called for by the court in Cobell. It has already rejected a much lower-cost accounting proposed by the Interior Department, as noted at the Oct. 29 hearing by James Cason, the department's associate deputy secretary. (Interior, as the federal government's delegate for Indian trust funds management, is the defendant in the case.)
Indeed, Republican leadership showed itself willing to play hardball with its own rank-and-file members in passing the rider. Rep. Richard Pombo, R-Calif., chairman of the House Resources Committee, had successfully gone to bat against similar riders in the recent past. This time around, senior Republicans didn't notify him the rider was in the works, according to Nicol Andrews of his communications staff on the committee.
"We were not told of this rider before it came to the floor," Andrews said.
More unusually still, its authors apparently set it up so that Pombo, a fellow Republican, wasn't going to look good politically in the event he tried to do something about it. With wildfires raging in California and funds for Interior to fight it included in the appropriations bill, any resistance from Pombo to the rider would risk delaying release of funds to fight the fires.
Andrews said it was "fair to say" Pombo considered these circumstances intentional.
Along with Rep. J.D. Hayworth, R-Ariz., co-chair of the bipartisan House Native American Caucus, Pombo tried to rally resistance to the rider within Republican ranks. He termed it a "poison pill that was added to the legislation in blatant violation of House rules and protocol." Democratic leadership in the House took a strong stand against the measure and Pombo turned more than 50 Republican votes against the Republican-sponsored rider, Andrews said. A great deal of political capital went into the effort, she added. But it fell just short of rejecting the late amendment with the 216 - 205 House vote of Oct. 30.
The committee hearing of Oct. 29 had adjourned with consensus among all parties that they would participate in mediation of the case - mediation not of monetary issues but of an accounts settlement methodology.
But getting to good faith negotiations seemed to recede following the House vote, as Elouise Cobell issued a statement excoriating Interior Secretary Gale Norton and the George W. Bush administration for their alleged role(s) in offering the rider. At the Oct. 29 hearing, Cason had denied that Interior took any role in "ram-rodding" the rider.
But Cobell wasn't having it. "What this vote shows is the length that the Interior Secretary and the Bush administration will go to in their efforts to deny Indians the accounting for funds that belong to Indians - not the federal government. Now American Indians are being victimized once again by politicians in Washington."
She predicted the courts will strike down the rider (which is not law) as unconstitutional and sanction Interior Secretary Gale Norton. Many congressmen have suggested it would involve the legislative branch in meddling with the judiciary, she said, alleging a violation of the Constitution's separate powers clause. She also called for the court in the case to place the Individual Indian Money trust into receivership, and for the Senate to purge the appropriations bill of the offending House amendment.