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Thanksgiving's Midnight Rider delays trust

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The news that stabbed the Thanksgiving canoe this year was the midnight torpedo shot from the coattails of the Interior appropriations bill. Target: to deny the most hopeful sign of progress yet on the 100-plus year old despoliation of the American Indian by the United States government.

As of August of this year one could say progress, if slowly, was being made on the Trust fund scandal case. Led by Elouise Cobell and an energetic group of legal folks for many years, in the past few seasons an even wider Indian opinion had developed a solid foundation for pressuring and finding serious solutions. Tribal leadership weighed in with a mediation theme. Interior Department stalled and obfuscated but was in retreat. Judge Royce C. Lamberth had reached his highest pitch of intolerance for the stonewalling and outright lying by the various Interior Department directors and functionaries who had faced his court. Congress appeared ready to act. The court-ordered historical accounting eagerly sought by the Indian side seemed finally on its way. Among the national Indian leadership, NCAI President Tex Hall strongly urged Congress to "initiate a conflict assessment with the help of an experienced and professional mediator" to address the Department of Interior's gross mismanagement of the Indian Trust accounts. Hall stressed that, "the time has come for Congress to establish a fair and equitable process for settling the Cobell v. Norton litigation."

While costly (estimates ranged from $4 to $10 million), the mediation initiative promised to provide the first true such objective accounting in the whole sordid history of U.S.-Indian property relations. Most observers and nearly all Indians who have opined on the subject have thought such an accounting was long overdue. It is the precise ticket to the end of the beginning in obtaining fundamental justice from the trust responsibility promised by the federal government to the Native nations, which, after all, provided the land and resource base of the new American republic. We even saw it as a 'paradigm shift' on the Trust fund case. A bill making its way through Congress would have authorized a nine-member task-force to conduct a full-fledged analysis of the historical Trust records, and to gather together various types of experts to provide a comprehensive rendering of the history and fact-patterns of the largest, most inept and certainly corrupt federal mismanagement of funds in history.

That way to go is now derailed, hopefully temporarily, but perhaps in a hard-to-correct deviation that will be seen increasingly by Native leadership as a major piece of pressure politics against fundamental justice for American Indian people. And - in this global day and age - it will be seen by other nations as a dishonorable way for the world's greatest superpower to treat tribal peoples in the bosom of its free and democratic homeland.

Indian Country Today Washington correspondent Jerry Reynolds, in his recent meticulous analysis, "Anatomy of a Midnight Rider," characterized the last minute, nearly impossible to challenge move as one that broke covenant with tribal America and "sails close to the winds of dirty politics." Reynolds properly focuses interior Chairman Charles Taylor, R-N.C., as the main pusher of the amendment, tacked onto the Interior Appropriations bill that put a one-year moratorium on the court-ordered accounting. Reason: accounting for what the government owes to Indians is too expensive (following legislation providing $87.5 billion for Iraq). Taylor's method: attach a final amendment at the umpteenth hour onto a huge, complicated bill that no one has the strength left of argue over. It is a dirty old trick in Congress and used by all sides.

But this time, the impetus to curtail the funds and check the pace of the Trust case, reports Reynolds, appears to have resonated at the White House, which announced its non-opposition to the rider. The Taylor reasoning was strong enough a Republican position that Sen. Ben Nighthorse Campbell interpreted it for the Cobell litigation parties as a caution to negotiate or likely face even more congressional and political obstacles.

This is not a caution easily incorporated by any side. In fact, the amendment does not address proper mediation avenues, which might have truly good potential. If anything, the rider was aptly criticized by no less a conservative as J.D. Hayworth who called its backdoor, under the radar approach, a "triumph of the unelected over legislators." Another Republican congressman, California's Richard W. Pombo, writes in these pages that the rider/amendment "was crafted, considered, and added to the conference report in secrecy, with no consultation, notice, or warning given to the Committee on Resources or to the Indians whose rights it affects ? [the rider] undermines this very progress that is being made and the prospect of justice for the hundreds of thousands of Indians who have already been waiting for justice for far too many years."

This is among Republicans who have consistently displayed America's highest honor and integrity in supporting tribal sovereignty. No doubt in tribal America, the rider will be increasingly interpreted as one more piece of dirty business against a legitimate case that deserves its day in the light of day and not hidden in dark corridors of files desecrated by mouse droppings. For many, it fits a pattern of disregard by the present administration.

The prevailing attitude from the administration is that the Trust reform issue, no matter how genuine or historically provable, is so big and the people involved are so relatively few (and God forbid, Indians), that why not table it, once again. This attitude will not do. While many Republican legislators and congresspersons are clear on Indian issues, the Bush administration, we believe, has iced the cake with this approach to perhaps the most sensitive American Indian case in history, as the pattern of its Indian policy emerges. At the recent and extremely well-attended NCAI convention, openly courted by several Democratic presidential hopefuls, Indian leaders widely called the past two years of President Bush's administration a disaster. In no fundamental context, they complained and loudly - from homeland security to health care to Trust reform - that Indian country concerns are not taken seriously. The Midnight Rider was a particularly distasteful poison pill, suppressing the possibility of truth and shamelessly delaying justice, one more time.

We have before us a case of a political and perhaps of a legal slip-away. It has happened to Indian nations many times. The whole justification of "right of discovery" remains disproven, an illusion simply accepted as historical reality. Sometimes great nations must be urged on to find their center of justice. Hold those collective feet to the fire, Indian patriots - this case has a history that must be remembered. "Great nations," we have paraphrased before, "like great men and women, keep their word." For the sake of the ancestors and the yet unborn, justice must prevail.