WASHINGTON - The Native American Rights Fund responded Oct. 15 to a
congressional letter of inquiry with a warning against "settlement
litigation" to resolve the trust funds lawsuit known as Cobell.
Sen. Ben Nighthorse Campbell has warned of congressional efforts to settle
the case through appropriations to the Interior Department, the government
agency charged with the overall management of the trust accounts. NARF's
letter acknowledges that "there seems to be a movement afoot in Congress"
to settle the lawsuit legislatively, rather than through the courts or an
out-of-court mediation process.
"We consider such movement very dangerous and unconstitutional," wrote NARF
executive director John Echohawk. According to a Capitol Hill staff member
who spoke on background but not for attribution, plaintiff attorneys in the
case maintain they'll file court appeals if Congress intervenes to settle
the case unsatisfactorily. So far the court case has gone against Interior
and the government.
Elsewhere in the NARF letter, Echohawk added, "We are also disappointed
that mediation efforts seem to be faltering." Congress initiated a
mediation effort in April 2003. Details of the talks between Interior,
plaintiff attorneys and mediators are under a gag order, but lead plaintiff
Elouise Cobell accuses the government of "bad faith in mediation" in a
longstanding post on the plaintiff Web site www.indiantrust.com. She
pledges there as well not to "sell our trust - the legacy of our ancestors
- down the river for even a few billion dollars in settlement."
Since at least April 2003, according to successive public statements by
Campbell, many congressional members have chafed at the costs of the case.
A few have objected out loud. According to a member of Campbell's staff,
speaking as the congressional mediation effort got under way, still others
don't understand the case but know it is costly and complex and would just
like to be done with it.
Campbell, R-Colo., chairman of the Senate Committee on Indian Affairs, and
his vice-chairman on the committee, Sen. Daniel K. Inouye, D-Hawaii, have
both stated - Campbell quite strenuously at times over the past year - that
the parties litigant had one year from last October to make progress on the
But NARF was skeptical, as Echohawk noted in the Oct. 15 letter: "We agreed
to mediation this time only because we thought, perhaps, your [committee leadership's] personal involvement would make a difference ...
"We think the Administration believes that notwithstanding its resistance
to a fair settlement, Congress would, in the end, intervene and enact
legislation that would attempt to eliminate the rights we have won for the
The Oct. 8 letter from leadership of the main Indian - specific committees
in Congress asked whether NARF would associate itself with comments of a
plaintiff attorney, Dennis Gingold, that compared Interior Secretary Gale
Norton to Custer. By virtue of managing the trust accounts, Interior is a
defendant in the case.
NARF replied that it doesn't condone or advocate violence against anyone
and explained Gingold's comment in context. In a meeting with individual
Indian trust beneficiaries, Gingold criticized Interior's trust management
track record on Norton's watch. Afterward, Echohawk wrote, when asked by a
reporter "whether - given her record - Norton is better or worse than
Custer, Mr. Gingold said: 'She's worse and should be given the same
treatment.' Mr. Gingold did not intend nor in this context can his words be
interpreted as advocating violence. Instead, his point was that history has
not 'treated' George Armstrong Custer well for his sustained opposition to
American Indian communities and nor would history treat Secretary Norton's
Dan Dubray, a spokesman at Interior, said Norton would not dignify the
comparison with a comment.