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Trust lawsuit comes into clear focus in the House

WASHINGTON - The testimony on an Indian trust lawsuit maintained an even
temperature at a House of Representatives Resources Committee hearing Feb.
16, in keeping with one of Chairman Richard Pombo's strict ground rules:
"We are not looking for a courtroom battle."

Instead, the committee sought basic information on the Cobell class action
lawsuit over federal mismanagement of the Individual Indian Money trust, a
case approaching its ninth year in the courts with no end in sight. Its
complications, and the public acrimony that has passed between the
plaintiff class and the defendant Interior Department, led to Pombo's
directives.

By the time the parties litigant complied - Native American Rights Fund
attorney Keith Harper for the plaintiffs, Associate Deputy Secretary James
Cason for Interior - and the committee's questions filed, the case's future
outlines had become clear enough. And ironically, for a case whose
complexities long ago defied full tracking, those outlines were simplicity
itself. Of course, a district judge with great courtroom latitude over the
case had not been heard from in this legislative forum, but still it was
progress to open a path for the immediate future. Here it is:

With mediation efforts at an impasse, Congress, led by Pombo's committee
and the Senate Committee on Indian Affairs, will fashion a legislative
settlement. Fine points of the proposal have not been made public, but
among its key provisions will be to offer a fair settlement to the class or
to those members of the class who would accept it, while doing nothing to
foreclose the latter's option of sticking with the class in Cobell.

The idea is that a fair settlement offer will appeal to some of those
accountholders who would rather have present money in their pocket than
play out a court process that even now, after almost nine years, is still
bound to be prolonged. Once the payment is accepted, an account would be
considered settled as to all past transactions.

The Interior Department will welcome the intervention, as Cason made clear
in one of the day's many understatements.

The plaintiff class and its attorneys will watch it with care. If the
settlement is not deemed fair according to stringent final court rulings in
the case that favor the plaintiffs, they will sue the government for a
"taking." Harper emphasized the strength of the plaintiff case, otherwise
downplayed at the hearing by Cason's staid portrayal of Interior as an
innocent, persecuted bystander and by lawmakers pressured by appropriations
committees to staunch the case's multi-billion dollar drain on the federal
treasury.

"With on-going litigation," Harper testified, "particularly where the
courts have already made final unappealable decisions about the rights of a
party, as here, any resolution that does not achieve full participation by
the parties and informed consent to the settlement process is fraught with
material constitutional infirmities. The interests that Individual Indian
Trust beneficiaries have in their trust assets are protected by the Fifth
Amendment Due Process and Takings clauses. Indeed, not only the actual
'interest' in the asset but also any cognizable claim (i.e. the accounting)
is a Fifth Amendment-protected property interest.

"In short, any legislatively imposed resolution which alters the claim in
order to limit the United States' liability for the breaches of trust would
necessarily violate the Constitution."

Clearly, after more than a century of trust management at Interior that
courts have termed "malfeasance," Pombo, R-Calif., and his colleagues in
Congress will have to meet a high standard of fairness if they hope to
settle the case.

Tribes have expressed growing distress over the costs of the case, which
the government pays for - as apparently acknowledged after two years of
denial during the current fiscal year 2006 federal budgeting process - with
cutbacks to other Indian-specific funding.