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Cobell - settlement legislation could still pass Congress

WASHINGTON – The attorney most associated with the class action lawsuit against the Interior Department for an accounting of the Individual Indian Money trust said it won’t surprise him if the department drags its feet long enough to derail a legislative settlement.

A settlement bill is on offer from the Senate Committee on Indian Affairs. But it hasn’t found a taker yet at Interior, which is charged with managing the IIM trust as a delegate of the federal government. SCIA chairman Sen. John McCain, R-Ariz., has criticized the pace of Interior’s response as Congress prepares to recess until after the November elections.

Keith Harper, formerly with the Native American Rights Fund and now a partner at the law firm of Kilpatrick Stockton, has a lengthy history with the case, known as Cobell after lead plaintiff Elouise Cobell. He said of Interior, “They are perfectly consistent in their behavior. Every time there is a chance to resolve this issue ... they obfuscate and they undermine that possibility.”

In reference to McCain’s critique he added, “In a way I’m glad it happens with others watching, because then we no longer feel like Cassandras.”

Ongoing discussions on the settlement legislation are confidential as to specifics, he said. But a few changes should be made if the bill, which would offer $8 billion to the plaintiff class in return for a settlement of claims against the government, is going to be “somewhat fair.” (The $8 billion figure is inadequate as straight compensation for losses from the IIM accounts, Harper explained. But accepting the sum would achieve at least a measure of justice for aged account holders while they are still alive. “That has to counsel our approach as well.”)

One essential change is that the bill must include an opt-out provision for unlitigated non-Cobell claims, Harper said. The provision would apply especially to landowners, he said, adding that a limited opt-out might be acceptable just as long as an opt-out clause is included.

Harper said Cobell settlement legislation can still pass in the current 109th Congress, notwithstanding the abbreviated working schedule of an election year. “From our vantage point it is going to take leadership from the highest levels of Congress. ... Things in this town can happen with great speed when they have to.”