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Congressional initiative on Trust accounts faces obstacles

WASHINGTON - The House of Representatives has made an approach to settling the litigation over Individual Indian Monies trust accounts by adding provisions to a Department of Interior spending bill for fiscal year 2004. The provisions, which propose voluntary settlement of individual accounts with money from a federal fund historically used to settle court judgments that have gone against the government, passed the Interior Subcommittee of the powerful House Appropriations Committee on June 18.

The litigation seeks an accounting of Indian trust funds widely held to have been mismanaged by the federal government and its lead agency on Indian affairs, the Interior Department.

The House initiative received immediate notice that its road toward law will be rocky. Keith Harper, a Native American Rights Fund attorney representing IIM plaintiffs in the class action lawsuit, repeated the position of the class on so-called "side settlements" - settling separate cases within the class of plaintiffs aside from the larger class action, as contemplated by the subcommittee provisions.

"We would not be supportive of any break-up of the class," Harper said last April, in remarks consistent with those reported in response to the subcommittee proposal. So-called "side settlements" are not usually permissible in class actions, he said, because they dilute the "strength in numbers" approach of a class action and reduce any ultimate award to the injured class, while permitting defendants to sow confusion anent the overall numbers based on the sidebar compensations. Side settlement should not be permitted in Cobell for these same reasons, he added.

In other developments touching on the IIM litigation, the U.S. District Court for the District of Columbia has ordered a shut-down of further Interior Department computer systems, following a dispute over court-ordered security testing of the department's trust-related systems. According to the Government Computer News newsletter, a division of the Justice Department refused to comply with data needs of the testing process because Interior had not agreed to "rules of engagement." Justice also complained of the cost.

Associated Press reports that Judge Royce C. Lamberth, presiding over the trial to settle accounts, subsequently ordered the disconnection of Interior computer systems harboring Indian trust data or providing access to it.

Lamberth issued similar orders in 2001. Some of those systems, mostly within the BIA, are still not operable. This in turn has provoked tribal and congressional distress over curtailed services to Native communities that much need the assistance.

In all likelihood then, Lamberth's latest orders will prompt a further proliferation of debate over what to do about the Indian trust funds. Senators have threatened to legislate a settlement, now the House has offered its own alternative, and the Bush Administration has clearly moved to limit exposure of the federal treasury (it is no secret that once accounts are settled, Indians and tribes expect to recoup some of their financial losses - losses not, they would add, to the current federal treasury but to Indian pocketbooks over time, due the government's unbroken fiduciary obligation to its trustees).

Tribes have also raised their collective voice in recent months, concerned that congressional funding of Interior's tribal services will be drained off into the trust funds management reform effort. Top Interior officials have denied it and no firm proof has been publicly offered - but tribes, accustomed to a degree of distrust for the federal government, are not waiting for a post-mortem. On June 18, at its mid-year session, the National Congress of American Indians passed a resolution opposed to Interior's fiscal year 2004 budget, despite its impressive increase over previous years. The reason?

"Oppose Department of Interior's Indian Trust Reform Reorganization Plan and Related FY 2004 Budget Request."