With Cobell Settlement, Congress Takes Its Time

By Ryan J. Reilly | March 9, 2010

If things had gone according to schedule, one of the largest class action suits brought against the U.S. government would have already gone through Congress, been approved by a judge and the government would soon be cutting checks. But the legislative branch does not always work on the judicial branch’s schedule.

On Wednesday morning, Associate Attorney General Thomas Perrelli will take to the Hill to urge legislators to pass a bill that would finally end a lawsuit that has played out in courts for nearly 15 years.

Elouise Cobell (photo by Ryan J. Reilly / Main Justice)


On Dec. 7, the government reached a $3.4 billion settlement in Cobell v. Salazar.  The lawsuit, filed by Elouise Cobell on behalf of more than 300,000 American Indians, alleged that the Interior Department mishandled thousands of individual Indian trust fund accounts over more than 100 years.

The settlement requires congressional approval, however, and the original terms gave lawmakers a Dec. 31 deadline to finish the necessary legislation. That deadline has been extended twice and is now set to expire in April.

Congressional aides said they were not asked for input on the deadline. Nor did the Justice Department lawyers who negotiated the settlement consult with members of Congress about the logistics of passing legislation ahead of Christmas break, according to the aides. A person familiar with the negotiations said that Judge James Robertson, the U.S. District Court judge who approved the settlement, dictated the short deadline.

Aides in the House and Senate said both the original deadline of Dec. 31 and the second extended deadline of Feb. 28 were unreasonable. Aides said they are more optimistic about the new April 16 deadline, but nobody is making any promises.

As both sides of the settlement wait for congressional approval, Cobell and her team are left with only private funds to explain the terms of the settlement to a hard-to-reach segment of the population. A massive planned government-backed awareness campaign – which includes television, radio, and print advertising across Indian country, as well as materials explaining the settlement in Native American languages – will not kick in until after Congress acts.

According to Cobell, government lawyers did not want to allocate any funds for outreach to Indian Country prior to the passage of legislation.

“The government instead assured us that legislation would be passed a few weeks after we signed the settlement agreement on December 7,” Cobell wrote in the Native American Times. “Unfortunately, legislation was not passed (and has still not been passed) and the need to meet with Indian Country is stronger than ever.”

A Justice Department spokeswoman noted that Perrelli and the Solicitor of Interior Hilary Tompkins recently appeared before the National Congress of American Indians to answer questions on the settlement and that other federal representatives have appeared before tribal organizations.

“If Congress enacts legislation, we can then – per the settlement - provide for more extensive outreach to inform individual Indians and tribal governments about the settlement,” DOJ spokeswoman Melissa Schwartz said.

Bill Dorris, one of the lawyers representing Cobell, said that in talking with the Justice Department and with members of Congress, they have not found any real opposition to the legislation. Dorris said he was unsure why the legislation has not yet moved forward.

“We hope the new goal is realistic, we haven’t heard anything to indicate otherwise,” said Dorris.

Perrelli is set to testify before the House Natural Resources Committee Wednesday along with Cobell and several other American Indian leaders.

Natural Resources ranking member Doc Hastings (R-WA) is expected to press panelists about how lawyers who negotiated the deal would be paid and about the lack of regional consultations between the Obama administration and Indian Country.

“The executive branch obviously wants this to happen quickly,” said Spencer Pederson, a spokesman for committee  Republicans. “This will give us some opportunities to get some questions answered at the hearing.”

Those scheduled to testify at Wednesday’s hearing include:

Michael Finley, 
president, Intertribal Monitoring Association on Indian Trust Funds

Austin Nunez, chairman, Indian Land Working Group

Richard Monette
, professor, University of Wisconsin Law School

David Hayes
, deputy secretary of the Interior

Thomas J. Perrelli
, Associate Attorney General, Department of Justice

Elouise Cobell



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