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Harjo: Trust funds, the rule of law and regular order

Tens of thousands of Indian people died trying to get the federal government to settle their trust accounts and pay them the money earned from their own land.

Federal agents made lease agreements and collected, or didn't collect, the payments. Money went into a common pool at the Interior and Treasury departments, but not much of it splashed back toward the Indians.

Many Indians should make a living wage or even great riches from their property, but are kept in poverty by feds who have lost, hidden or otherwise not accounted for their family records and for generations of unpaid or underpaid income.

Congress tried to force several administrations to do the accountings, funding hundreds of millions of dollars for federal salaries, reorganizations and computer systems.

Elouise P. Cobell (Blackfeet) and others went to court in 1996 on behalf of 500,000 Indian account holders. U.S. District Judge Royce Lamberth was thunderstruck by the federal failure to follow court orders and held cabinet officials in the past administration and this one in contempt.

This problem has been a century in the making. Some administration politicos are working overtime to convince congressional and tribal leaders that all problems stem from the lawsuit, the judge, the account-holders and the Indians' lawyers. Your program's broke? Trustees in a rut? Too much snow, rain or heat? Blame it on Cobell.

The Indian account holders are getting their day in court in the gigantic gray Prettyman U.S. Courthouse. It's one long block west of the Capitol, bordered appropriately by Constitution Avenue and the John Marshall Park, named for the Supreme Court Chief Justice (1801-1835), who wrote in a letter to a friend in 1828 that "every oppression now exercised on a helpless people depending on our magnanimity and justice for the preservation of their existence, impresses a deep stain on the American character."

This is Judge Lamberth's domain. Three of Courtroom 21's massive walls are white oak, a 1950s style complement to solid oak benches. The fourth is Maryland verde marble that serves as backdrop for the Court's great seal and the judge's platform.

The judge has presided over the case for nearly half of his 16 years in the District Court. This isn't long, as federal litigation goes, but it must seem a lifetime to those who measure time by two-year terms in Congress. It must be interminable to another federal crowd that isn't used to giving Indians the time of day and who face possible sanctions for their inability or unwillingness to do a proper trust funds accounting.

In May, the judge ordered Justice to disclose "all funds that defendants have used to pay private attorneys" and the Indians just asked Lamberth to compel a full response. "This is taxpayer money that is being wasted solely to shield government officials from accountability for their conduct in this litigation," said Cobell Atty. Dennis M. Gingold.

Inside the courtroom, lawyers for the government clearly outspend those for the Indians. Six federal attorneys sit at the defendants' table, with individual high-powered laptops indexed for easy retrieval of transcripts, exhibits and other materials. Four file runners listen like prairie dogs, then dig for documents in the hundreds of file feet of archive boxes.

Five lawyers sit at the plaintiffs' table and do most of their own running.

Some House members tried to undercut the Indians' lawsuit last year through the Interior funding bill, losing in a floor fight, 281 to 144.

They made another run at it this summer - trying to hand the case over to Interior to impose settlement on the Indians and to cut funding for the court itself - all while a trial in the case was underway.

Members of Congress have tried to wipe out Indian lawsuits and litigants' rights in the past, most notoriously the Northwest and Great Lakes treaty fishing cases and Eastern Indian land claims. Rep. Norman D. Dicks, D-Wash., ? architect of the attempted trust funds coup in the funding bill - once crafted the Washington delegation's anti-treaty positions, until the U.S. and Indians won.

Dicks' language, then and now, suggests Indian raiding parties, rather than orderly legal process conducted in suits and federal courtrooms.

Not 24 hours after the judge ended his trial on July 8, the trust funds hearing started on the Hill, in the Committee on Resources, which has House jurisdiction regarding most Indian matters. That jurisdiction was being challenged by the Interior Appropriations Subcommittee, which was trying to force its pennies-on-the-hundred-dollars settlement on the Indian account holders.

Appropriators aren't supposed to make substantive law on money bills, especially without going through the authorizing panels. Some 50 Resources members and their new chairman, Rep. Richard Pombo, R-Calif., flexed their authorizing muscles and sent appropriators the message that the legislators would take over the business of crafting a settlement.

A few members wanted to send a message to Judge Lamberth that the case had gone on too long, and even asked if he or a representative were present. There was barely room for the members, witnesses and press. The Longworth hearing room is more lavish, but much smaller than the courtroom, with older, darker wood and late-1860s paintings of Indian life by Brevet Brigadier General Seth Eastman.

Members sit at the upper and lower horseshoes that extend past the hearing room's halfway mark, while lawyers, lobbyists, feds and interns vie for the few available audience seats. This crowd spilled into an overflow room, where the proceedings could be heard, except when cell phones beeped or Interior bureaucrats buttonholed politicians in the hallway.

As Judge Lamberth was standing for the rule of law, Chairman Pombo was standing for regular order. By the end of the week, the Resources Chairman worked out an agreement with Interior Appropriations Chairman Charles Taylor, R-N.C., to strike the noxious provision.

"I found it necessary to do this is because I believe very strongly that this is an issue that needs to go through regular order," said Pombo. "The Committee of jurisdiction, the Resources Committee, needs to have hearings. We need to go through the consultation process. We have to have a certain amount of confidence that whatever settlement is agreed to is actually going to work."

Saying he had not studied the provision, Pombo allowed that there "may be parts of that language that can be used, but at this point I don't think anybody knows. I think it's necessary to go through regular order and to spend time actually talking to people and figuring out what people think will really work.

"And it has to be what's fair to the trust beneficiaries and what's fair to the taxpayers. We have to go through that process and at this point we just haven't."

When asked about his timeline, the chairman said: "Time is of the essence. We have to move quickly on it. What our end time is, I don't know. I think that's going to be a result of how much can we do and how much agreement can be reached in going through this, but the beginning of that process has to start right now."

Suzan Shown Harjo, Cheyenne and Hodulgee Muscogee, is president of the Morning Star Institute in Washington, D.C., and a columnist for Indian Country Today.