Questioning the substance of the Indian trust funds lawsuit is the new game in town, one that exhibits the depths to which the Bush administration has ventured in its systematic denial of its responsibilities to tribes and individuals. Since all parties, and those in Indian country following the case, have now grown comfortable negotiating a settlement in recent years, observers are now witnessing the Interior Department's newest and most desperate strategy: deny and desert. Strategy has not quite been the strength of this administration; there is no coherent position on litigation or settlement coming from the federal government, and there is certainly no acknowledgement of its gross neglect of the fiduciary obligations to Indian tribes and people.
With the Kempthorne-Gonzales proposal of a $7 billion ''investment in Indian country'' on the table as a resolution to Cobell v. Kempthorne, a new perception campaign is sweeping through Washington with all the credibility of a presidential press conference. Embattled U.S. Attorney General Alberto Gonzales testified two years ago that the government's ''potential exposure in these [tribal trust fund] cases is more than $200 billion.'' Excuse the Cobell team for taking this latest offer of $7 billion as an insult. Interior, having survived the initial backlash from Indian country over its proposal, is now talking ''no case'' and finding some support for the cause. The dilemma, devised by Interior itself, is that it has called its own bluff and now seeks to settle a case it also says has no merit.
At the March 29 Senate hearing, Gonzales was not even present to testify about his previous remarks. But he had a proxy in the House of Representatives, Rep. Norm Dicks, D-Wash. Speaking that afternoon as chairman of the House subcommittee on Interior Department appropriations, Dicks, who continued his crusade against the trust fund lawsuit, cited a diversion of attention away from other Indian programs threatened by the continuation of Cobell. Dicks, a longtime member of Congress who has championed many causes for Native peoples in Washington and elsewhere, must be feeling a bit like an unwitting pawn of people who do not have the Indian interests as their first concern. He referred to Interior Associate Deputy Secretary Jim Cason's assertion that few instances of mismanagement in the Indian trust accounts had turned up during investigation. Dicks probably did not intend to spotlight Interior's dilemma, but he asked the awkward question: ''Why are we considering paying the tribes $7 billion if that's the case?''
Why, indeed. After all, the Bush administration has long been characterized by its ill-advised hard-line stances and unapologetic brazenness on controversial matters. Efforts to resolve the case came close to fruition in 2005 when leaders of the Trust Reform and Cobell Settlement Workgroup and the Senate Committee on Indian Affairs came together to draft a comprehensive set of guiding principles on which settlement legislation would be based. This elegant attempt at justice through meaningful consultation was bushwhacked by the Department of Justice's push to end the case by removing the judge in a rather characteristic abuse of power. Intended to escape its own government malfeasance, the move by Justice solidly confirmed it.
The political climate has only worsened for Indian causes since. In recent years, Indian rights have been attacked through terrible decisions, perhaps most notably the dismissal of Eastern land claims by the invocation of the ''laches'' doctrine. The American justice system is hostile to Indian causes, to say the very least. Vine Deloria Jr., the late Standing Rock Sioux lawyer, historian and writer, often reminded those who advocated full trust in the justice system that ''Indians never win anything in court - the best we get is status quo.'' The Cobell case has shown the rest of America what Native people have always known to be true: that the government's legendary stonewalling has been effective in absolving itself of theft, racism, genocide, dispossession of Indian peoples and their resources. By lumping the Individual Indian Money accounts with the tribal claims, relieving itself of all accounting obligations and limiting its future liability, the government in its latest settlement attempt exhibits the lack of good faith and competence that brought us here to begin with.
Adding insult to insult, the administration's related campaign to discredit the validity of Cobell has a familiar battle cry: The case is an expensive distraction preventing Congress and Interior from other, more important work. And that is what federal administrations - all of them - and their water-carriers say about all federal Indian issues. To be sure, we pointed out during the 2005 settlement window how long and narrow the federal bureaucracy's legal trench is for dealing with Indian issues. While Cobell's high profile has remained a strong voice for the Indian-led demand for justice, the reality of a laboring and narrow-minded bureaucracy ultimately forces other issues (such as the ever-present crusade for health care reauthorization) to the backburner. This is not to excuse the administration for lagging on Indian issues or running low on federal monies. Those quandaries are of its own making.
There can be an equitable resolution to trust funds case. First, the tribal claims should be separated and litigated on their own merits. The administration's $7 billion proposal ignores these claims as if they don't exist. Tribes and nations are better equipped to handle the impacts than individuals, many of whom should have lived lives of comfort but instead died in poverty. The parties could agree to a formula for the bottom tier, settling all claims below a sum certain and litigate the remainder. Although encouraged by the administration in the past to do so, Congress cannot impose a settlement, because the constitutionality of an imposed settlement of a pending lawsuit would be subject to challenge. The real claims - compensatory damages based on the value of ''lost'' (stolen) resources - have not yet begun to be addressed. This has been the story kept unsuccessfully under the covers by the United States for centuries.
Cobell is about actual judgment and getting the United States to account for the funds and to establish a system that will account for the Indian peoples' monies in the future. Native people and nations do not want another pennies-on-the-dollar settlement. They want the United States to do what it's required by law to do, what it says it has been doing and to do it better in the future.