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'Settlement concepts' offer remains viable in Cobell case

Part three

WASHINGTON - Discussions will continue in the new Congress on ''settlement concepts'' to resolve the Cobell v. Kempthorne litigation, along with some of the problems that brought it about.

The class action lawsuit, brought by Individual Indian Money account holders against the Interior Department, seeks an accounting of IIM funds, as well as a financial settlement based on the mismanagement alleged against Interior by congressional reports and agency audits. A congressional initiative to end the litigation faltered last year. At the tail end of that process, the Bush administration brought forward a handful of suggestions under the rubric of ''settlement concepts.''

''There's been a lot of consultation so far, and it looks like we need some more,'' said James Cason, associate deputy secretary for Indian affairs at Interior and a regular participant in consultations on Cobell-related legislation.

He added that Interior, the federal government's lead delegate in dealing with Indian trust issues, often doesn't get credit for consultation with tribes because it has to put a lot of thought into its suggestions before they can be offered up for consultation. Without the prior thoughtfulness and effort, he added, there would be no point to consultation because the ideas would not be substantive enough to discuss.

The latter certainly can't be said of the settlement concepts, which 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 by voluntary and involuntary mechanisms. Fractionated lands, universally recognized as the leading problem in managing the IIM trust, would be consolidated; but land title would remain with Indian individuals or tribes. The priority of the second phase would be transition to a ''beneficiary-managed'' trust with limits on federal liability.

The proposals have met with substantial hostility from Indian country, but also with some measure of support.

Ross Swimmer, Interior's special trustee, said that consolidating land so that owners can make economic decisions in their own interest, rather than simply holding land in trust without real benefit to the owners, is the genuine path toward self-determination. ''So that we're not maintaining a trust that has 1/1,000th of an interest that brought in two cents last year, but there's a tract of land where we're maintaining it in trust, but someone is using it for their benefit. That's what we'd like to see.''

Cason, too, emphasized solutions, and not necessarily Interior's solutions. ''You know, if someone in Indian country has a better way to create a solution than the way we put it on the table, great. Tell us what it is. Because in the end, what Ross and I are trying to do is spend our time effectively, trying to help a particular, well-defined constituency get better results out of the investments we're making.

''Right now, we spend about $3 billion a year into Indian country, and we'd like to get a better product, a better solution for Indian country, than where we are now. ... But in the end, let's stop and think about what the options are and what the problems are, and let's think together about how we can solve them.''

Swimmer and Cason both believe a financial settlement of the magnitude contemplated by plaintiffs and the Senate Committee on Indian Affairs - $8 billion at last report - is not an option, according at least to the accounting process Interior has engaged in. Cason said any settlement figure should have ''some semblance of a relationship to the facts.''

''The administration supports settling Cobell,'' he said. ''And the Hill [Capitol Hill] supports settling Cobell. And the real issue is ... how much does it cost us and what are we buying?''

''I think one of the problems,'' Swimmer added, ''even in S. 1439 [last year's failed congressional attempt to settle Cobell legislatively], is that there's so much to fix that it's very difficult to figure out what you're paying for. Congress has - all of us have to know what we're paying for.''