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Senate Passes Cobell; All Eyes on House

WASHINGTON – The Senate passed the long-stalled Cobell settlement Nov. 19. For the $3.4 billion deal to become law, the House now must pass the same legislation. House leaders have already secured a version of the settlement twice this year, so signs are positive.

“We are pleased,” said the Indian plaintiffs’ lead lawyer Dennis Gingold soon after learning the news.

“After 14 years in litigation, I am pleased that the Senate today took the next step toward bringing a small measure of justice to Native Americans victimized by the government-run individual Indian trust,” said lead plaintiff Elouise Cobell in a statement.

The plaintiffs’ pleasure comes after months of setbacks in the Senate, which has failed to pass the settlement for a variety of reasons, including concerns about how much money the lawyers for the Indians would receive.

That concern was partially alleviated this fall when the plaintiffs agreed to allow a portion that was designated toward a new Interior Department land consolidation program to be considered.

Sen. Tom Coburn, R-Okla., had also raised concerns about funding for the bill, which he wanted to be sure was budget neutral. A spokesman has said the senator is satisfied with the terms as part of the Claims Settlement Act of 2010.

Not helping matters, there was also tension between Cobell players and African-American farmers who were concerned that issues involving their separate claims legislation were causing gridlock for senators afraid of political ramifications for lending support.

With the conflicts in the rearview, Cobell thanked several lawmakers for their action, including Senate Majority Leader Harry Reid of Nevada, Senate Committee on Indian Affairs Chairman Byron Dorgan of North Dakota, SCIA Vice Chairman John Barrasso of Wyoming, Sen. Max Baucus of Montana, Sen. Jon Kyl of Arizona, and Sen. Chuck Grassley of Iowa. She said they did “great service to Indian country.”

President Barack Obama will also likely be thanked if the bill can clear the House again – a prospect House observers believe is possible in the Democratic lame-duck period before the new Republican chamber is sworn in in January.

Obama has strongly supported a settlement since the terms were announced last December, although he and his staff sometimes failed to describe its terms accurately in ensuing months.

“I applaud the Senate for passing the Claims Settlement Act of 2010, which will at long last provide funding for the agreements reached in the Pigford II lawsuit, brought by African American farmers, and the Cobell lawsuit, brought by Native Americans over the management of Indian trust accounts and resources,” the president said in a statement.

“I particularly want to thank Attorney General (Eric) Holder and Secretaries (Ken) Salazar and (Tom) Vilsack for their continued work to achieve this outcome. I urge the House to move forward with this legislation as they did earlier this year, and I look forward to signing it into law.”

Interior Secretary Ken Salazar, too, lauded the Senate’s approval, saying the day was historic.

“The Cobell settlement honorably and responsibly addresses long-standing injustices and is a major step forward in President Obama’s agenda of reconciliation and empowerment for Indian nations.”

Dorgan, a leading proponent of the settlement in the chamber, offered perspective of the difficulties surrounding it.

“For a long time, I have believed that settling the case, rather than continuing to litigate it for more years, at even greater cost, is the best course. I am pleased that the Senate finally passed this historic legislation. Settlement of a class action case this large can never be perfect, but the benefits of the settlement far outweigh any defects. And, at long last, this settlement brings some justice to American Indian landowners. I am hopeful that the House will quickly pass this legislation.”

He noted that for almost 15 years the Cobell litigation was stuck in court.

“Throughout the taxpayer funded litigation, the courts consistently found the federal government in violation of its trust responsibilities to American Indians. The Cobell settlement provides compensation to individual Indians for losses from over a century of mismanagement and even outright theft of funds and other assets entrusted to the federal government.”

Many Indians have supported a settlement, but there is widespread desire for individual Indians to receive a fair portion of the funds. Under the terms, many will receive less than $2,000, while the plaintiffs’ lawyers will receive up to $100 million.

Still, the prospect of receiving no money at all has weighed some participants who have noted that the courts have not been able to achieve justice for years – time that has seen some class members pass away. Cobell has argued that point time and again.

Tex Hall, chairman of the Mandan, Hidatsa & Arikara Nation and a prominent supporter for congressional passage of the settlement while president of the National Congress of American Indians, called the Senate’s passage “a milestone for justice” and called for the House to quickly pass the measure “in order to begin undoing this dark chapter of American history marked by a sad but consistent pattern of governmental paternalism, corruption, and ineptitude.”

Interior offered the following background on the case and settlement: “Over the past 14 years, the class action litigation, filed by Elouise Cobell in 1996, included hundreds of motions, seven full trials. ... and dozens of rulings and appeals. Under the negotiated agreement announced on Dec. 8, 2009, litigation would end regarding the federal government’s performance of an historical accounting for trust accounts maintained by the United States on behalf of more than 300,000 individual Indians. A fund of $1.4 billion would be distributed to class members to compensate them for their historical accounting claims, and to resolve potential claims that prior U.S. officials mismanaged the administration of trust assets.

“In addition, to address the continued proliferation of thousands of new trust accounts caused by the ‘fractionation’ of land interests through succeeding generations, the settlement establishes a $2 billion fund for the voluntary buy-back and consolidation of fractionated land interests. The land consolidation program will provide individual American Indians with an opportunity to obtain cash payments for divided land interests and free up the land for the benefit of tribal communities.”