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Trust Fund moment in McCain's 'one good shot'

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It seems nobody wants to hear American Indians talk about money. But one
major reality of what happened in this hemisphere is that all Indian
peoples, one by one, were largely dispossessed of their lands, waters and
minerals. Colonials, later represented by states and corporations - and
their federated government, via legislative fiat and court decisions -
accomplished a feat of theft so well-reasoned (although "obfuscated" might
be the better term), it could almost become acceptable.

But it is not acceptable. American Indians and Alaska Natives survived
massacre, disease, hatred and arrogant racism; became human beings in the
eyes of humanity, once enlightened; made some allies among open-minded
whites and struggled to keep their lands. Meanwhile, the federal
bureaucracy took over the reins of Indian power over much of Indian
country's lands and resources, which is where the trust case emerges. If
massacre was the big crime of the 19th century, "legalized" dispossession
is the crime of both the 20th and 21st centuries.

Elouise Cobell has been 10 years in court on behalf of 500,000 Native
landowners who have sued to recover damages from revenues owed them and
lost through mismanagement by the Interior department. For the plaintiffs
of Cobell v. Norton - tribal leaders and Indian organizations - the
settlement figure should be around $27.5 billion. Interior, increasingly
emboldened by the tenor of the times, low-ends that figure severely: "The
number would be very, very low," said Jim Cason, the associate deputy
secretary - in the "very low millions."

Somewhere in between, but closer to the low end, is the legislation
proposed by Sens. John McCain, R-Ariz., and Byron Dorgan, D-N.D., chairman
and vice chairman, respectively, of the Indian Affairs Committee. Senate
Bill 1439, the Indian Trust Reform Act of 2005, is, stated McCain, his "one
good shot" left on the trust reform issue. He will not say exactly how much
his legislation would bear, but promises a settlement in the "billions." He
does not want any more hearings; he wants to work through the morass before
hubris destroys any potential for reasonable outcome.

McCain is trusted for his commitment to do what is most fair and practical
at a given time on most issues, but this case is very emotional for many
people. The disregarded underbelly of the BIA cargo ship has been exposed,
and it stinks.

Interior's record on accounting for properties and incomes belonging to
tribes and to individual Indians is dismal, with many years of lost
accounting (a good chunk of it mouse-eaten and wantonly destroyed),
seriously compromised computer systems, and many stories of incompetent and
callous behavior by administrators. A lot of this has come out in court.
There is probable corruption, although Special Trustee Ross Swimmer
declared unequivocally that "there was no wholesale fraud," while Dorgan
disagreed. "Indian people have been cheated, bilked and defrauded over a
long period of time," said the senator.

There are some 25 other tribal lawsuits in the federal courts for billions
in damages. All of them are suing over the mishandling of their trust funds
and assets.

Lead plaintiff Cobell initially dismissed McCain's bill as a "victory for
the Interior Department." She points to the bill's limitation of liability
by Interior, required to pay Indian account holders only between January
1980 and December 2005. Cobell keeps reminding everyone: "This is not
reparations, this is not damages, nor is it welfare. It is simply a return
of the money that was, and is, being taken from us." Tex Hall, president of
the National Congress of American Indians, keeps pressing to know just how
much Congress will pay. Hall suggests a "starting point" of $14 billion.

Welcome provisions include the elimination of the Office of Special Trustee
and the creation of an under secretary for Indian Affairs position. Most of
Indian country endorsed the two ideas previously via the joint
tribal-federal task force on trust reform. The bill also ensures any
settlement for the case comes from the Claims Judgment Fund and not federal
appropriations for Indian programs.

Beyond strong respect for Cobell's spirited demand, other substantial
Indian minds coalescing around the trust case can see that a moment of
fruition is approaching. The case, as clear as it is in its presentation of
a historical and legal reality, is ultimately debilitating on all sides.
The federal bureaucracy dealing with Indians is in a legal defensive trench
that is long and narrow; at the same time, as the two Senate Indian Affairs
Committee leaders warn, a wide range of other pressing and contemporary
tribal issues take a back seat while this mother of all Indian cases
saunters to a resolution.

The "set of principles" put forth by tribal leaders and advisors in the
past few weeks are an excellent foundation. The proposed McCain-Dorgan
legislation applies some of these, but not comprehensively enough. We
commend McCain for taking on this complex and thankless task. It speaks to
his integrity and commitment to go out on his Senate Indian Committee
tenure by grasping the horns of this huge historical and legal dilemma.
Given the state of the country, where all budgets are squeezed and tribes
are perceived to be rich and powerful, the consensus required for actual
settlement and payouts to Indians is hard to reach indeed.

Both Cobell and Hall have committed publicly to helping McCain and Dorgan
improve the bill. Many Indian leaders have studied and weighed in on this
matter and, this, we believe, constitutes a reasonable approach to
achieving a respectable consensus. No doubt most of Indian country stands
ready to help if even a modicum of justice can be achieved with the help of
these two strong senators.