WASHINGTON - At a Dec. 3 tribal leaders' meeting in Billings, Mont., Native American Rights Fund attorney Keith Harper took great pains to disassociate the Cobell court case from the BIA reorganization now under way.
He repeated it afterward in an extended interview with Indian Country Today: "There's nothing in Cobell that compels anything they're doing" under the rubric of reorganization.
"The department [of Interior] uses Cobell to do a lot of things they do or don't want to do. ? It has no relation to the reorganization; it has no relation to land into trust. ? What is going on now is a whispered campaign against Cobell."
The Cobell class action lawsuit, which takes its name from lead plaintiff Elouise Cobell, seeks reform in the management and accounting of the Individual Indian Money trust. The long-running case has many successes to its credit, including a court order for a comprehensive historical accounting of the IIM trust.
But that order has been put on hold by congressional action. And while tribal leaders are seemingly unanimous in their view that trust accounts have been drastically mismanaged on Interior's watch, concern has circulated among some of them for more than a year now that resources plowed into litigation of the case may short-change other tribal priorities.
Congress is the ultimate IIM trustee. The Department of Interior is its delegate. Interior in turn has delegated IIM management to its subordinate agency, the BIA.
All of these agencies are federally funded. So have been a series of futile and costly reform efforts. So are most of the court costs. Congress has shown a growing impatience with the whole issue of trust management reform, including its many cost factors. In this context, tribal leaders have stated before Congress that federal appropriations for the court case and associated reform efforts have come from other Indian-specific funding. Bush administration officials have denied it, and no tenable proof of the charge has been offered.
But as the administration has pushed ahead with BIA reforms it says are designed to make the agency more efficient in its trust-related functions, there has been no lack of speculation that the streamlining of services foreshadows downsized Indian budgets.
Sens. Ben Nighthorse Campbell, R-Colo., and Daniel K. Inouye, D-Hawaii, both highly influential in Indian affairs, have suggested mediation as an alternative to continued litigation. Campbell, chairing a hearing of the Senate Committee on Indian Affairs Oct. 29, would not leave a line of questioning that clearly insinuated the Cobell attorney team was not fully in touch with the desires of the class it represents.
"When you talk with Indian people, they want a measure of relief," he said.
John Echohawk, executive director of NARF, the lead attorney team for plaintiffs in the case, stuck with his first response: any settlement must be fair, meaning consistent with trust law.
Another theme Campbell would not leave on Oct. 29 was that of there being only one year for the litigants in the case to reach a mediated settlement before Congress intervenes in some undefined way that Indian country won't like. That prediction seemed to gain credibility days later, when Congress applied a "midnight rider" to an Interior appropriations bill, in effect putting a moratorium on the court-ordered IIM accounting.
Harper said plaintiffs in the case are all for meditation, provided the proceedings are conducted in a way that is consistent with trust law. In addition, he echoed Echohawk's Oct. 29 testimony in noting that some plaintiffs in every class action lawsuit want to "side settle" early, before the injured class as a whole, just to get it over with or for some other reason. That is why they need attorneys who will stand fast, he added - whether against frontal challenges, side settlements, midnight riders or whispered campaigns.