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Parties to Cobell lawsuit still far apart

WASHINGTON - Early responses suggest that the class of Individual Indian Monies account holders and the Interior Department remain far apart despite the recent letter from the Senate Committee on Indian Affairs urging settlement.

Secretary of Interior Gail Norton received the letter (along with U.S. Attorney General John Ashcroft for the federal government) as lead named defendant in the case. Dan Dubray, director of communications for the BIA, a branch of Interior, said that Norton would make her response directly to Sens. Ben Nighthorse Campbell, R-Colo., and Daniel K. Inouye, D-Hawaii, the committee co-chairs who both signed off on the letter. No more public response on the correspondence would be forthcoming for now, he added.

John Echohawk and Keith Harper, as lead attorneys on Cobell for the Native American Rights Fund, also received the letter, as did plaintiffs' attorney Dennis Gingold. Harper said their formal written response would be sent to the committee by the end of the week. He made the gist of it plain beforehand, however.

"We are prepared, and have been prepared, to sit down in good faith and settle Cobell."

Where no exact accounting is possible because of Interior's missing records, he went on, a negotiated settlement makes sense. But he added that every time the plaintiffs have taken a step toward settlement, necessarily involving a court-approved discovery process as both sides seek to produce evidence for their view of a fair settlement, Interior attorneys "have used this discovery to delay litigation, to get free discovery ? We don't believe they are willing to sit down in good faith ? Are we prepared to be surprised? Yes."

Harper said any settlement that involved a break-up of the class in this class action lawsuit would be unacceptable to the plaintiffs. So-called "side settlements" are not usually permissible in class actions, he said, because they dilute the "strength in numbers" approach of a class action and reduce any ultimate award to the injured class. Side settlement should not be permitted in Cobell for these same reasons, he added.

In a Jan. 6 filing with the U.S. District Court for Washington, the Cobell plaintiffs claim the aggregate value of all IIM accounts since they began to be established in 1887 is $137.2 billion. Harper said Interior has the opportunity to reduce that figure by the amount of its proven payouts (and related interest) from the IIM accounts. Interior officials have dismissed that figure in the recent past. At the time of the filing, J. Steven Griles, Interior's manager of trust issues, dismissed the figure as unproven. It is also about 10 times the size of Interior's current budget.

But to prove its own accounting, Interior has claimed it will have to rely on a "historical accounting" because of missing or incomplete records. A similar Interior effort that found only $61 in dispute from the IIM accounts of four lead Cobell plaintiffs cost $20 million (and still did not establish itself as a credible model for how to proceed, if one may judge from the public skepticism of J.D. Hayworth, R-Ariz., co-chair of the Native American Caucus in the House of Representatives). A full historical accounting of the hundreds of thousands of IIM accounts would cost an estimated $2.5 billion, which Congress would have to appropriate. According to Harper, it is not even worth doing because it would not settle Interior's obligations as the federal trustee of the accounts. Interior has disputed that assertion, and at last notice continued to back a historical accounting.

Congress had shown its impatience with the process and its cost well in advance of the Campbell-Inouye letter. Most recently, at an April 10 appropriations hearing, Norton again heard doubts that the trust reform process is progressing enough to justify its cost - Interior is asking for $335 million over three years to help fix its trust funds management - and again foresaw a light at the end of the tunnel ? or were those merely the flashlights of congressmen up ahead, hoping to glimpse some end in sight?

So questioned a congressional aide afterward, not altogether humorously. By way of background to his remark ? there are other voices on the trust issue in Congress outside the Indian affairs committee, voices that have suggested "mooting out" the account balances and settling them with a sum of money Congress can agree on.