Settlement number in Cobell remains elusive

WASHINGTON – A week of escalations in the suspense over a sum to settle the Cobell v. Kempthorne trust funds litigation ended in perfect character for such a convoluted lawsuit – the money went missing, a congressional committee session got rescheduled, a tribal meeting got canceled, and no one in Washington outside the inner sanctums of Capitol Hill fully understood why.

This much is certain: Two bills have been drafted, S. 1439 in the Senate and H.R. 4322 in the House of Representatives, that would compensate willing Individual Indian Money trust beneficiaries with a monetary sum in return for ending the Cobell class-action litigation.

Neither of the identical bills has put forward a settlement sum. If the bills are enacted into law by Congress, the sum would serve to compensate all willing IIM account holders for losses from their accounts in return for legally settling their accounts, so that no further legal claims of similar nature could be filed against the government. The defendant in the class-action lawsuit, the Interior Department, is the federal government’s delegate over the IIM accounts.

In recent weeks, after marathon efforts by Senate Committee on Indian Affairs staff, Sen. John McCain, R-Ariz., sponsor of the Senate bill and chairman of the committee, arrived at $8 billion as a fair and defensible settlement sum. The bill, with that sum inserted, was to have been issued by July 24, with a “markup” session (or meeting to amend) of the committee to follow July 26. The National Congress of American Indians had scheduled a tribal meeting for July 24, pending release of the final bill by that time.

But a final bill was not released, the $8 billion figure could not be confirmed as anything more than a prospective number among a range of others that are still being negotiated, the NCAI meeting did not take place and McCain’s office announced the markup meeting had been rescheduled for Aug. 2. His spokesmen cited scheduling conflicts, an explanation confirmed by the July 26 speech of Iraqi Prime Minister Nouri al-Maliki to a joint session of Congress.

But seasoned political observers on Capitol Hill, requiring anonymity as usual on anything to do with the trust funds lawsuit, said McCain and the committee will also use the delay to build support for the settlement figure in Congress.

Prior to this sequence of events, Tex Hall, chairman of the Three Affiliated Tribes of Mandan, Hidatsa and Arikara in North Dakota, speculated that the administration of President George W. Bush had weighed in with doubts about a settlement figure of “around” $8 billion. During the week of the latest developments and afterward, Hall did not return voice messages seeking confirmation. The office of Rep. Richard Pombo, R-Calif., chairman of the House Resources Committee and sponsor of the House bill, did not say by press time whether Pombo is on board the $8 billion figure. Interior, responding through spokesman Shane Wolfe, said the department is still in discussions with both committee chairmen and Indian stakeholders on a settlement figure. Wolfe declined to discuss any specific figure.

In the absence of confirmed information, it may be worth noting that newly installed Interior Secretary Dirk Kempthorne has supported resolution of the lawsuit; that the presiding judge in the case, Royce Lamberth, was recently removed from it, raising the prospect of further delay in any court settlement of the already long-running litigation; that McCain and Pombo have both warned that no one, presumably including the administration, will like any settlement sum they recommend; and that they’ve proceeded all along on the understanding that bipartisan support in both committees of jurisdiction, Senate Indian Affairs and House Resources, is critical to their chances of passing Cobell settlement legislation.

Elouise Cobell, a name plaintiff in the class-action lawsuit, issued a statement denying that the class and its attorneys had concurred with the $8 billion figure. She maintained that they are still deliberating on it, in full recognition of the current political climate.

The Cobell lawsuit against Interior for an accounting of the mismanaged IIM trust has generated tempests in Indian country, the general public, Congress and the courts since its inception. Despite a strong showing of bipartisan support at a March 1 hearing, passage of a settlement bill in Congress has never been considered a sure thing. The Aug. 2 markup meeting, if it transpires, would take place on the eve of Congress’s traditional long August recess.