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Controversial Liens Removed From Cobell Settlement

WASHINGTON – After intense scrutiny from tribal interests, Indian appellants, and the U.S. Congress, the U.S. Department of the Interior has agreed to use its authority to waive a controversial lien program that became part of the Cobell settlement during the U.S. Congress’ authorizing process in 2010.

The lien program was never supposed to be part of the Cobell settlement, but it was somehow slipped in by Congress, perhaps with malice or perhaps by mistake, according to Indian-focused and tribal officials who have closely monitored the situation.

“You really have to be watching every step along the way to see what the government might be trying to pull over,” said Cris Stainbrook, president of the Indian Land Tenure Foundation. “In the end, we caught this one, and I was pleasantly surprised that the Interior Department took action in our favor. But I think this could have been done a long time ago.”

If the lien process had gone forward without Interior’s intervention, it could have meant that the agency would have been able to use a major part of the $3.4 billion settlement – $1.9 billion of it – to create a new revenue stream for itself without necessarily helping solve the problem of tribal and Indian land fractionation, which is what that money is intended to do.

The danger here was in the details of Congress’ authorizing language of the overall settlement, which indicated that liens could have been placed on all income from sales of land acquired by the federal government under the Land Consolidation Program of the Cobell settlement until the tribes paid the liens back. In essence, by turning that property over to a tribe with a lien on it, Interior would be forcing the tribe to take a loan to get the land.

Such liens have already been used by Interior in Indian country under a 1983 law, the Indian Land Consolidation Act, which was referenced in the Cobell authorizing language. That law has been a way for the federal government to keep its fractionation programs funded and running, while never really solving many problems for Indians. The program has never been popular with tribes, and it could have been expanded given the authorizing legislation.

Lead plaintiff Elouise Cobell, her lawyers, and administration officials, including Deputy Secretary of the Interior Department David Hayes, all said previously that the liens shouldn’t have been part of the settlement.

Still, they were there.

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Stainbrook believes that career officials with Interior lobbied hard to keep the lien language in place in order to further fund the agency’s work on land fractionation issues. “I think political pressure inside the Bureau was the motivating force here,” he said, adding that career Interior officials had the incentive to try to get the money the liens would have offered them, in order to keep their jobs secure. At the same time, Congress was moving fast when passing the Cobell settlement authorizing language as part of another bill, so no one really took the time to examine the language of the law until it was too late.

In the end, though, the non-lien intentions of those who hammered out the original agreement were met on August 10 when Interior released a legal interpretation that said property acquired for tribes under the Cobell settlement will not be subject to liens, meaning the tribes will benefit from all future revenue earned from the tract.

“Liens have traditionally been attached to property acquired under similar programs in the past, and so this represents a new direction in how Interior restores homelands and local sovereignty to tribes,” according to a press release from Interior.

In the months leading up to that pro-tribal legal interpretation, the Indian Land Tenure Foundation had filed an amicus brief in support of an appeal to the Cobell settlement in order to try to get the presiding court, the U.S. District Court for the District of Columbia, to take action. The organization and several tribal leaders also raised the concern with Interior officials during consultation sessions that have taken place nationwide since the settlement was first announced in December 2009. Kimberly Craven, an appellant to the settlement, publicly raised the issue again in June.

The lone Native American in Congress, Tom Cole, R-Okla., finally wrote a letter to Interior dated August 1, expressing his dismay.

Nine days later, Interior came out with its pro-tribal non-lien legal interpretation.

Stainbrook says that in the days since the legal interpretation was released, he has found himself at least once waking up in the middle of the night wondering if there’s any way for Interior to go back on its word.

“I am 99 percent sure that this isn’t going to be a problem anymore,” Stainbrook said, although he noted that the tribally distasteful liens are still in place under Interior’s previous land fractionation programs authorized by the 1983 law. And those liens aren’t expected to go away any time soon.

“If I were king for a day, I would be using the money to work with tribes to create their own buyback programs, and that way you don’t need the liens because the income would be coming through to the tribes—and you wouldn’t need the Interior Department, either,” Stainbrook said. “You’d get the middle man out of the way.”