WASHINGTON – A Capitol Hill consultation meeting on concepts for settling the trust funds litigation proved as elusive as its subject. At the end of the day Nov. 16, a roster of speakers had fixed a spotlight on tribal distrust of the overall conception, while shedding at least a glimmer of suspicion that its single features might find a more receptive audience in a more bipartisan political context.
“Bipartisanship always helps us with our issues,” said Jacqueline Johnson, executive director of the National Congress of American Indians, which “strongly opposes” the proposals. She seemed to get an agreement that the whole issue should be held over to the 110th Congress when Senate Committee on Indian Affairs staff took turns assuring the audience it was unlikely any attempt would be made to usher the concepts into law as a “rider” amendment on must-pass bills before the close of the current 109th Congress, sometime in December. At that time, any bill not enacted into law becomes null. Sen. Byron Dorgan, D-N.D., has committed to taking up the Cobell v. Kempthorne legislation as the next committee chairman, but Congress could beat him to it when it convenes again in December.
“We have no indication … of any hijinx,” said John Tehsuda, chief of staff to the committee’s present Republican majority. He added that the Bush administration, source of the recent settlement concepts, has negotiated in good faith, has come to appreciate the “bad history” behind the litigation over the Individual Indian Money trust, considers the problems at issue serious and is serious about potential solutions.
Some background is in order here, even for the initiated. The IIM litigation, informally known as Cobell from lead plaintiff Elouise Cobell, continues to defy settlement 12 years after Congress tried to legislate the reform of Indian trust management and 10 years after the plaintiff class filed a lawsuit seeking an accounting of the trust. Sen. John McCain, R-Ariz., outgoing chairman of the SCIA, promised “one good shot” at settling the litigation, but waited to proceed with it until late in the legislative session.
The Bush administration responded with settlement concepts that 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; of the second, transition to a “beneficiary-managed” trust with limits on federal liability. Among other details, tribes and individuals would retain land title; the land would remain inalienable, in trust, not subject to taxation.
The committee had tentatively settled on $8 billion as a settlement fund, far higher than the administration was willing to consider. But by including, under the settlement umbrella, other claims against the government, including tribal (as opposed to only individual) trust claims, the concepts offered by the administration led it to at least entertain the larger sum. Secretary of the Interior Dirk Kempthorne, in brief remarks Nov. 16, said the administration hopes to move from litigation to economic development and prosperity. He emphasized the administration’s willingness to “invest billions” in a “material adjustment” to trust management that will ultimately increase the value of the trust estate.
The sum itself got little mention Nov. 16. Tribal leaders tended to deplore the concepts’ perceived alteration of the trust relationship, and to direct their remarks toward the three settlement concepts mentioned above – land consolidation by involuntary mechanisms, a beneficiary-managed trust and limitations on federal liability for management of the trust.
In opening comments, McCain called the concepts “far-reaching.” Ron His Horse Is Thunder, chairman of the Standing Rock Sioux Tribe, said they are so far-reaching they amount to “termination.” He warned that in a beneficiary-managed trust, beneficiaries who don’t speak English as a first language and have never signed or negotiated a lease will find themselves, even after the transition period contemplated in the settlement concepts, “at the mercy … of really anyone with a good attorney at their side.”
Harold Frazier, chairman of the Cheyenne River Sioux Tribe, dismissed the settlement provision as “just a way to buy us Indians off. … I look at this as nothing but termination.”
Other tribal leaders, including Chairman Erma Vizenor of the White Earth Band of Ojibwe, a council member of the Colville Confederated Tribes and an attorney representing the Crow, said they could support a beneficiary-managed trust.
Almost no one spoke up in favor of limited federal liability; and Mary Zuni, of the Inter-Tribal Monitoring Association, called it the “key concern” of the settlement concepts. A handful of speakers rejected it outright. Rodney Bordeaux, chairman of the Rosebud Sioux Tribe, spoke for them: “Limiting the liability of the United States … is not an acceptable proposal. … Furthermore, we strongly object to any period in which the United States would not be subject to liability no matter how egregious the government’s breach of trust or how great the financial loss might be to the trust beneficiary.”
A tribal leader who was not at the Nov. 16 meeting, Chairman W. Ron Allen of the Jamestown S’Klallam, offered some perspective on the settlement concepts, based on years of detailed engagement with IIM trust litigation as a tribal chairman and a past president of NCAI. Allen confirmed that involuntary land consolidation is unavoidable in the case of land tracts fractionated among dozens or hundreds of owners, some of whom have proved impossible to locate or identify.
“That’s right … It’s a very awkward thing to take control of. It can seem very insensitive. … But I think this is fair – more than fair. … It’s not an easy one. It’s not going to make people happy. … But someone has got to take hold of this [land fractionation] and resolve it or it’s just going to go on and chase us from generation to generation.”
He agreed that the U.S. Supreme Court has already placed limits on federal liability in those cases where tribes manage federal programs in the absence of enforceable statutory language assigning liability.
As for Indian management of trust assets, he said it’s not radical, but rather a potential step toward prosperity through the aggressive management of resources.