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NARF's Keith Harper on Cobell

WASHINGTON - Plaintiffs in the class action lawsuit over mismanagement of the Individual Indian Money trust are ready to add momentum to the growing case for mediation of the disputed accounts.

All parties to the case have stated their willingness to participate in an as-yet-undefined mediation process. Congress floated the idea last April, in a letter to lead attorneys in the case from the Senate Committee on Indian Affairs. The defendant Interior Department, Congress's delegated agency for managing the trust funds in the federal trustee role vis-?-vis tribes, took more than six months to answer the letter, but has welcomed mediation in testimony before the Senate Committee on Indian Affairs.

So have plaintiff attorneys in the case known as Cobell, for lead plaintiff Elouise Cobell. But the plaintiff class has also expressed great misgivings over a mediation process, and has criticized the limited previous involvement in the case of one person whose name has come forward as a potential mediator, Stuart E. Eizenstat. Eizenstat, author of the book "Imperfect Justice," most recently played a role in the mediation of Holocaust reparations in Europe.

The current alternatives to mediated settlement of the IIM accounts are an indefinite continuation of the long-running litigation, a court-ordered accounting at great expense to taxpayers with little in the way of guaranteed results, or what seems more likely - some combination of both, as the appeals process has already been activated. Keith Harper, an attorney with Native American Rights Fund representing the plaintiff class, said the court-ordered historical accounting simply can't be done by the Interior Department, because of the many missing documents among other reasons.

"The plaintiffs unequivocally don't want to spend billions of dollars on an accounting ? it cannot be done."

In an extended interview with Indian Country Today, Harper made it clear that plaintiff misgivings have not undermined a stated commitment to mediation. He also countered what he called "a whispered campaign against Cobell" and disassociated the case from the current BIA reorganization.

Five times the plaintiffs have sat down to negotiate with the Interior Department, Harper said. Each time the Interior has walked away at some point, he added, but never with anyone there to report it. Court orders have inhibited negotiations and prevented public access to information.

But now, following the notorious "midnight rider" amendment to a spending bill in Congress that essentially put a one-year moratorium on the court-ordered accounting, there is little chance a breach of good faith in negotiations would go unreported.

"One of the reasons we think it might be different now is that ? if one party acts in good faith or doesn't act in good faith, it will be reported. That is why journalism is so central to a democracy."

All that notwithstanding, he said Interior's long delay in answering the April congressional letter "gives us pause," suggesting the department has little faith in the mediation process. For that reason, "I cannot emphasize enough why it is important to have a mediator with political clout ? Because we have to know that if something is said or decided, it will mean something, it will matter."

In the background here is the late-October midnight rider. A court process, including appeals, had ended in a favorable decision for plaintiffs. Interior had maintained that it can complete an historical accounting of the IIM accounts, and the judge in the case deferred to the department as a delegate of Congress. "He had to say look, if you say you can do it, I've gotta let you try."

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In Harper's view, Interior no sooner secured the try it desired than it ran to Bush administration friends in Congress and said - well, now that we've been given the chance, we can't do it after all and don't make us try. So passed the one-year moratorium on the court-ordered accounting. (Somewhat comically - as if Cabinet secretaries and their staff never communicate with officials in the presidential administration that appointed them - Interior has denied any role in the "midnight rider" amendment, beyond providing a numerical figure to the administration that represented its estimated cost of an historical accounting.)

Though he agrees that money spent on Interior's "try" would have been money for the most part wasted, Harper believes Congress had other alternatives than the "midnight rider."

"At the end of the day, it cannot be acceptable that Indian victories are taken away by legislation ? that cannot be acceptable in the 21st century, and it would not be acceptable for any other group."

The alternative Congress should have taken was to simply admit that it cannot, through its delegate Interior, provide an accounting of the IIM trust, Harper said. That would have opened the door to the court's "equitable authority" - a power of the court in class actions to issue an "equitable decree." Under it, a judge can consider the "best evidence" that pertains to the accounts and is still consistent with trust law. Then the judge would issue a "restatement of accounts" that would amount in aggregate to the sum (plus interest) supported by that "best evidence."

Both the government and plaintiff class already agree that about $13 billion has gone into the IIM accounts. Harper called the figure "foundational," the fixed starting point for a mediation process.

Mediation must include three essential ingredients, he said. The first is good faith from both parties. "We really have the foundation to really sit down and resolve the issues if both parties are in good faith."

The second is "carrots and sticks," a way to ensure that parties in disagreement with the result don't find ways to overturn them, to "undermine the beneficiaries [of mediation] and reward the party that has obstructed and delayed." A statement of conditions that might trigger "equitable authority" of the court, such as a mediator's finding that Interior can't do an accounting, would make for a good carrot-and-stick approach, Harper contends.

His third essential ingredient of mediation is that any alternative methodology of accounting must be "consistent with trust law." The main consideration here is that where inferences must be drawn in doubt from partial evidence, the inference must favor the trust beneficiary - the trustee, after all, has had a chance to keep the accounts straight and has failed if account records are not in order. Alternative methodologies Interior has favored previously, such as statistical sampling, would draw inferences in favor of the trustee, Harper explained - accounts not part of the sampling would be considered accurate, for instance.

"What you have in the great middle of most transactions is a lack of documents." It is basic therefore to the plaintiff case that if the documents aren't there, any inference drawn from their absence must favor the beneficiaries.

Finally, Harper provided a definition of what mediation should mean. "Mediation is resolving the case as a whole," he said, not negotiating with separate members of the injured class.

The plaintiff attorneys have recently established a process for tribes to support Cobell through written resolutions, as many already have in person, Harper said in closing. They are requesting support for both the case in particular and for mediation. Quite a few such resolutions have already come in, Harper said. "We are confident that we'll get many more in the future."

(Continued in Part Two)