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'Paradigm shift' seen on trust fund case


Push a big rock long enough and some good ideas begin to surface: a bigger crowbar is suggested, maybe digging around the edges, finally a heavy shove. With the right tools and shoulder to shoulder effort, even the big rock can give and roll. This appears to be happening in the case of the Individual Indian Monies class-action lawsuit, where a "paradigm shift" has been detected toward a mediated solution, involving strong, trusted and effectively bi-partisan Indian hands in Congress.

We are intrigued and supportive for the sharp move in the Senate toward mediation on the class-action lawsuit. The lawsuit and its implications have become a badge of national shame that cries for absolution. The history is clearly displeasing to Senators Ben Nighthorse Campbell, R-Colo., and Daniel K. Inouye D-Hawaii, pillars for Indian justice in the U.S. Senate. The formidable senators have now weighed in on a case that has busted the backs of several Interior high commands and has frustrated, to paralysis, a court process that melted against the intractability of mammoth bureaucracy.

Tex Hall, president of the National Congress of American Indians (NCAI), is to be commended for taking the lead for national Indian consensus with his proposal to the senators that Congress "initiate a conflict assessment with the help of an experienced and professional mediator" to address the Department of Interior's gross mismanagement of the Indian trust accounts. Hall stressed that, "the time has come for Congress to establish a fair and equitable process for settling the Cobell v. Norton litigation."

Conversely, no federal bureaucrat at the Interior Department's BIA, no matter how well intentioned or even ethical in the application of responsibilities, can be expected to have a chance of resolving this complicated lawsuit. It is a classic case for the ages, because it betrays in the cold light of the courtroom the foundational arrogance and disregard (and huge incompetence) that plagued federal policy and practice over American Indians throughout the 20th century. The lawsuit identifies the culprit that made so many Indian lives miserable for generations.

What Elouise Cobell and her associates opened with their lawsuit is a window into the chaotic underbelly of America's Indian relations. No matter how much some rabid anti-Indian orators declaim tribal rights as anachronistic and "of another century," the reality of the federal government's fiduciary responsibility for the taking and holding [and mismanagement] of the properties and real estate of the tribal nations, with their distinct public personality before American law, is made clearly evident in this 20th century Indian lawsuit. Where did that Indian private and tribal property go? Who can now say? Is anyone responsible? How can the information be reconstructed clearly enough to be a trustworthy pathway to justice in the case?

The Cobell case has been active and contentious for several years. It has the force to take over and become central over all other issues in federal Indian policy. In fact, many point to it as the overriding cause for the misshapen federal attempt to restructure the BIA. Not a few tribes see is as a drain on BIA's Indian programs budgets as the department is forced to defend its side in long-term court battles. (After eight years of litigation, a major decision is due soon from U.S. District Court Judge Royce C. Lamberth, but the legal jousting appears poised for a long life of appeals.) The range of liability for the feds could be in the billions and even Interior acknowledges screw ups worth hundreds of millions. Throughout the years, most, we believe, should acknowledge and applaud this effort of Elouise Cobell and her team of NARF lawyers, who have been relentless in this case. The fact that the case is the big gorilla in the big history of federal policy fiascoes, thus very expensive and capable of derailing other concerns, has not been their fault. It is simply a fact of history and of poor governance.

As Jerry Reynolds reported exactingly in these pages recently, on July 30 the Senate Committee on Indian Affairs took a major step by initiating mediation in the case. Certainly, the moment of maturity has come for this complex issue and some discerning minds, focused on solutions have been sorely needed. Interior's internal reforms have failed abysmally and in front of a federal judge, who has castigated the department to pieces and to little avail. Senators Campbell and Inouye, who are a formidable team when they put their minds to an issue, appear convinced of the need for a mediator on the case and their timing could not be more fortuitous. The appointment of such a mediator by the committee seems imminent, as does more focused attention on the case. The Senator seems prepared to work the issue "in an expedited fashion," according to Paul Moorehead, Campbell's lead counsel on the committee.

We extend our congratulations to the two sincere senators who have energized the much needed path to resolution. Congratulations as well to Elouise Cobell, Tex Hall and the national Indian leadership who are pursuing increasingly practical lines of inquiry on this issue. Some of their clear thinking emerged in testimony by noted attorney Donald Gray, who proposed a set of guiding principles for settling trust accounts that includes promising new "holistic, multi-faceted procedures for reconstructing trust accounts to an acceptable degree of accuracy." These procedural innovations, submitted by plaintiffs' attorneys, could help immensely in resolving the major obstacle in the case: the need to reconstruct the accounting records for the IIM and the tribal trust accounts

This case is extremely important to the potential resolution of other important tribal issues. It makes crystal clear the horrible treatment and unfair losses Indian people sustained, right to the end of the 20th century and into the 21st. The moment is ripe for a congressional initiative that seeks pragmatic results.