WASHINGTON -- The trust funds lawsuit is headed for legislative settlement
if a bipartisan cohort of congressional members can get its way.
The message couldn't have been more clear at a rare joint hearing of Senate
and House of Representatives members March 1. Rep. Richard Pombo and Sen.
John McCain, both Republicans, flanked by up to a dozen lawmakers from both
parties, said they will introduce identical bills: House Bill 4322 and
Senate Bill 1439.
Stuart Eizenstat, a former U.S. ambassador best known for helping to settle
the property claims of Holocaust survivors in Europe, surveyed the
gathering and said, "This speaks volumes." He urged the lawmakers to settle
every possible item of the tangled lawsuit through legislation, leaving as
little as possible to the courts. Otherwise, he added, "legal peace" will
never be possible because "creative lawsuits" and other claims will
continue to crop up. "Avoid at all costs sending this back to the federal
courts ... You cannot have courts settle historical wrongs. They're not set
up to do that."
John Bickerman of Bickerman Dispute Resolutions, one of the mediators
appointed by Congress in hopes of encouraging the plaintiff class of Indian
trust beneficiaries and the defendant Interior Department to settle their
differences, said the animosity between the litigants is unprecedented in
his experience. Asked directly whether a court settlement can be reached,
he simply said, "Never."
The trust relationship between tribes and the government isn't really at
issue in the case, according to Sen. Byron Dorgan, D-N.D., because the
government's delegate in managing the Individual Indian Money trust --
Interior -- violated its trust obligations long ago and repeatedly. Neither
is liability an issue, said Bickerman, adding for clarity that the
government is flat-out liable for mismanaging the IIM accounts.
The only issue now is money; that is, how much does the government owe
Indian beneficiaries in the class action lawsuit? Many historical documents
are missing in the matter, and a slew of issues around restoration of the
records through forensic accounting has been debated again, and again, and
yet again in the courts. Bickerman said a precise, accurate answer can
never be found.
Assumptions regarding error rates in the government's accounting and in
historical interest rates lead to wild fluctuations in the figures. He and
Eizenstat concurred that no improvement of accounting methodology, however
expensive or prolonged, will ever result in a reliable figure. "With just
small changes, these numbers bounce all over the place," Bickerman said. He
said the plaintiff's claim to $176 billion as a starting point for
negotiations had raised "unrealistic expectations," and termed Interior's
attachment to much lower figures, based on extrapolation from limited
statistical samplings, "somewhat suspect."
According to Eizenstat, "There is a range [of compensation sums] the
committee ought to be looking at." Any figure settled on by Congress is
bound to show a degree of unfairness in the absence of perfect accuracy, he
said. But it will also show a degree of fairness because living Indian
beneficiaries will receive compensation. Otherwise, he warned, a court
process will simply play out the scenario of the novel "Bleak House," the
Dickens masterpiece in which the law firm of Jarndyce & Jarndyce consumes
the entirety of an inheritance in lawsuits without ever settling the case.
Eizenstat told McCain no one will like the settlement number, whatever it
may be, and McCain emphasized at the hearing's end that Indians will not
like the final bill. In the nation's constrained budgetary circumstances --
with $150 million drained off daily to war costs in Iraq and $27 million a
day to similar costs in Afghanistan, and with federal deficit reduction a
rising congressional priority -- the words took on an acute tone of
warning, of lowering expectations in advance of bad news.
For the record, Interior has been all but demonized in Congress, the courts
and public opinion for its historical incompetence and present obfuscation
in managing the IIM accounts. But the tables have turned somewhat recently
as the IIM attorney team has endured a monumental beating in a series of
appellate court decisions that have vacated and remanded lower court
decisions favoring the plaintiff class. Bickerman said that after more than
10 years of litigation, the litigants do not agree on the meaning of even
the most recent court decision.
On a second panel of witnesses, representatives of United South and Eastern
Tribes, the National Congress of American Indians, Affiliated Tribes of
Northwest Indians and Great Plains Tribal Chairman's Association all
agreed, with minor reservations on only a few points, that Congress should
proceed with a legislated settlement of Cobell v. Norton.