New Cobell initiative needs tribal feedback

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WASHINGTON – A round robin of meetings between the Bush administration, the Interior Department, plaintiffs, tribes and the Senate Committee on Indian Affairs has produced 11th hour proposals to overhaul a bill that would settle the long-running lawsuit over the Individual Indian Money trust.

Democratic staff on the committee said that Indian country’s response to the latest suggestions will determine whether or not the new measures move forward as part of Senate Bill 1439, the committee’s own latest attempt to legislate an end to the Cobell v. Kempthorne litigation.
Accordingly, the SCIA has mounted a bipartisan effort to publicize the proposals and gather feedback in advance of November’s scheduled congressional session. A series of consultation meetings in Oklahoma, California, the Dakotas and Albuquerque, N.M., will culminate Nov. 9 in Washington.

The precise schedule of consultation meetings, as well as a briefing paper on the latest proposals, can be accessed on the committee Web site at http://indian.senate.gov. The current text of S. 1439 is also available on the Internet starting at http://www3.capwiz.com/c-span/issues/.

In brief, the proposed changes to S. 1439 would ordain a federal withdrawal from management of the IIM trust in two phases over a 10-year period. The priority of the first phase would be consolidation of fractionated lands; of the second, transition to a “beneficiary-managed” trust with limits on federal liability. Fractionated lands, universally recognized as the leading problem in managing the IIM trust, would be consolidated by both voluntary and involuntary means; but land title would remain with Indian individuals or tribes. The land would remain in trust and not subject to taxation. Funding of the consolidation process would be included as law in the legislation itself.

But following the transition period of management assistance and funding support, individual or tribal landowners, as opposed to Interior, would be responsible for managing their land. They would also be responsible for negotiating their own land-use leases and agreements. Payments would go directly to them instead of filtering through the government first.

The federal government would maintain residual responsibilities for preventing alienation of trust land, probating estates, approving land title transfers and maintaining title records, and correcting errors in the accounts. But a settlement fund for account holders injured by federal mismanagement would settle IIM mismanagement and accounting claims, and IIM accounts would be deemed accurate as of the bill’s passage into law. Takings claims for land and related resources, claims to establish right of possession or ownership of tribal lands, and claims arising under federal environmental laws would not be settled.

To become law in the current 109th Congress, S. 1439 will have to incorporate a version of the new proposals and possibly attach itself to “must-pass” legislation during the “lame duck” session of Congress in November. This is technically feasible given that an identical version of the Senate bill is hanging fire in the House of Representatives, meaning that the constitutional requirement of
getting an identical bill through both chambers before it can be enacted upon the president’s signature is at least within the realm of possibility.

But a veteran Capitol Hill observer, speaking on background but not for attribution because he is not privy to the actual discussions on the recent provisions, said he will be “more than surprised” if all that comes to pass. Following the November midterm elections, many lawmakers in the lame duck session will be anxious to get back out of town again after finalizing some form of appropriations bill (or bills) to fund the federal government in the current fiscal year. Other lawmakers, turned out at the polls in the midterms, will have other priorities before their terms expire; still others will have an eye on the 110th Congress commencing in January.

In any case, Sen. John McCain, R-Ariz., original sponsor of S. 1439, will be a lame duck chairman at the Indian Affairs Committee, having made it known that he won’t chair the committee in 2007. Both McCain and the ranking Democrat on the committee, Sen. Byron Dorgan of North Dakota, withheld immediate approval of the new provisions, pending feedback from Indian country. The proposals cannot go forward without the willingness of the committee chairman. Dorgan’s approval is technically unnecessary, but McCain has regularly invoked the importance of passing bills out of the committee with unanimous backing.

Under these circumstances, it is unlikely too many congressional members will have the stomach to hash out the fine points of Indian trust management, a singularly complex and conflicted issue.

In that case, the emphasis would shift to the future. The Bush administration holds quite a few high cards in the case – its nemesis, Judge Royce Lamberth, has been removed from the case; it appears to be gaining ground on appeal; and a climate of negativity surrounds the case in Congress. For all its value in calling attention to federal mistreatment of tribes and their resources, Cobell is poised to absorb funding from other tribal priorities in a national budget with homeland security, health care and war costs in its immediate future. The briefing paper’s lack of reference to a settlement figure – presumably the $8 billion acceptable to McCain in the summer still holds – may be taken to imply acceptance within the administration as well. But the aggressive stance on land consolidation also suggests that the administration is determined to get all it can for its money.