Record-building throws new light on Cobell cast

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WASHINGTON - Every U.S. Congress takes a recess, an interlude between the first and second sessions when Congress is adjourned.

During the traditional August recess, both members and staff try to find some down time from the punishing end-of-session schedule, when Washington's overheated summer days are paralleled by a political season that is just beginning to go on the boil. It's just beginning, because a greater intensity may attend the annual closing of the Congress in fall. Anything undone then will remain so until the next year's Congress, giving greater weight to any political repercussions that may cluster around unfinished business.

But by July, to turn tables on a phrase from the famous old poem on autumn, the looming recess reminds lawmakers that warm days will cease, that winter could be difficult if they don't clear the decks of the first session's business, now crowding onto the schedule, and prepare ahead for the business of the second session. Bills written with real focus come to swarm with amendments. Debate on the Senate floor may drain into the late hours. The caucusing process - when parties pull their people together for strategy talks on key votes as now one adjustment, now another, is made in response to all manner of parliamentary maneuvering - take on a frantic aspect. The purpose of all this, the casting of actual votes, up or down on documents that will become law or remain bills of proposal accordingly, may take on an air of improvisation.

In the weeks and days leading up to the recess, Congressional veterans will usually be found building a record for bills they plan to introduce in the second session. In the last days before recess of the current 108th Congress, for instance, Sen. Daniel K. Inouye, D-Hawaii, built a powerful record for a homeland security bill that he hopes to report out of committee in September. S. 578 would amend homeland security legislation from 2002 so as to define tribes separately from local governments, for purposes of federal funding and technical assistance against potential terrorism on tribal land.

Inouye also joined Sen. Ben Nighthorse Campbell, R-Colo., his co-chair on the Senate Committee on Indian Affairs, in building a record for congressional settlement of the Cobell trust funds litigation.

It is far too soon for anyone to savor victory in such an embattled case. For starters only, United States District Court for the District of Columbia, Judge Royce C. Lamberth presiding, has yet to issue a decision in the trial phase concluded July 8.

But from the sidelines at least, the July 30 hearing had the makings of a historic occasion. The two sides in the long-running class action lawsuit came into the day furlongs apart: the class of Individual Indian Monies accountholders contend the government owes them billions of dollars in benefits lost through federal mismanagement, the federal lead agencies deny epic mismanagement and insist a figure in the low millions is more like it.

By the time the hearing had ended, a sense had prevailed that congressional intervention might well be accepted by both sides with a good grace - something new to these invective-heavy proceedings. Based on the July 30 testimony and questioning, the intervention is likely to take the form of a mediated comprehensive records reconstruction process, laid out over a two-to three-year timeline.

Campbell spoke of his encouragement with this scenario and the testimony that backed it; Inouye of his enlightenment.

It only remained for Elouise Cobell to be heard from. She was not at the July 30 hearing. She is not the only plaintiff in the class action lawsuit, not the only warrior for reform of trust funds management, not the only one who has spoken truth to power and taken her knocks for it. But such is her association with the case, after her 20-plus years of unremitting effort that a mediated settlement process would seem to improve its prospects with her aboard.

At a public forum in Farmington, N.M., shortly after the Senate hearing, she said she seeks a settlement with the government, according to the Farmington Daily Times. The account did not quote her directly on the advisability of congressional intervention. But her emphasis on "good faith" in negotiations may be taken to imply the need for a mediator. In any case, her published remarks included the standing plaintiff allegation that in every previous sit-down with plaintiff attorneys, Interior Department negotiators (Interior is the lead federal agency in IIM trust funds management) have merely meant to stall a resolution of the case or to obtain information for use against the plaintiff class.

Dan Dubray, the Interior Department's director of communications to the assistant secretary for Indian affairs, said that to the knowledge of senior officials in the Bush administration, "She has not sat down with senior officials in this administration. So the idea that information has been disseminated from these meetings is a little perplexing to senior officials in this administration who work on this issue day in, day out."

Interior wants to move to move toward resolving the litigation, he said. Several approaches, including congressionally mandated mediation, recommend themselves under the rule of law.

"The law that doesn't seem to be observed here," Dubray added, in reference to the latest plaintiff estimate of $176 billion as the total value of Indian trust accounts, over time and with interest, "is the law of gravity. Not only have we not had a proffer of a settlement [from Cobell attorneys] ? instead we have this high-flying rhetoric ginned up by full-time press agents."

Sens. Campbell and Inouye and their staffs should have plenty of work on Cobell alone over the August recess.