by Kate Barrett
CQ Staff
CQ Today – Indian Affairs
After long resisting putting a price tag on a settlement, lawmakers are proposing an $8 billion conclusion to a decade-long class action lawsuit that pits an estimated half-million American Indians against the federal government, according to the attorney for the Indians.
Keith Harper, partner at Kilpatrick Stockton, said Monday that representatives for both sides have been presented with the settlement figure, with assurance from Sens. John McCain, R-Ariz., and Byron L. Dorgan, D-N.D., who serve as chairman and ranking member on the Senate Indian Affairs Committee, that they would push forward with that number.
“We hope Sens. McCain and Dorgan do go forward with a resolution because the government’s ability to delay has been demonstrated to be almost limitless,” Harper said.
The class action lawsuit, now known as v. Kempthorne, alleges longstanding Interior Department mismanagement of royalties collected from oil, coal and timber operations on Indian-owned lands the government holds in trust. The dispute has its roots in a 1996 lawsuit filed by Indian banker Elouise
Harper said representatives of the Indians involved in the lawsuit have not yet agreed to the settlement figure. “We’re still deliberating on whether that’s a fair amount,” he said.
An $8 billion sum is unlikely to fully satisfy either side. Plaintiffs have proposed a $27.5 billion settlement; the government contends it owes less than $500 million, a mediator in the case testified at a congressional hearing in March.
Senate Interior Appropriations Chairman Conrad Burns, R-Mont., said it is important for Congress to step in and settle the dispute promptly.
“The courts are saying that a legislative settlement is needed, and I tend to agree,” he said. “Every year, when we write the Interior bill, I see how much money is put toward lawsuits that could be going to health care, education and housing. We need to take this issue seriously, come up with a fair and just settlement amount, and push this legislation through.”
McCain and House Resources Chairman Richard W. Pombo, R-Calif., have introduced companion bills to legislate a settlement of the case (S 1439, HR 4322). The bills, which have been awaiting consideration since last year, leave a blank space where the settlement amount is to be indicated.
On Monday, Interior Department Communications Director Tina Kreisher declined to comment on whether negotiations had resulted in a specific figure. “We plan to continue to work with Congress to explore this legislative settlement,” she added.
Harper said lawmakers “have a responsibility to independently assess what is fair” and “not be beholden to the administration’s position.”
Meanwhile, the Senate Indian Affairs panel is slated to consider McCain’s bill before the August recess, according to several people involved in the case.
Lobbyists and congressional aides said the bill had been on the panel’s agenda this week, but action was postponed until Aug. 2. The Senate Indian Affairs panel has not yet announced its official schedule.
“The only thing I can deduce is that someone in the administration got to McCain and said, ‘Hold on,’ ” said a lobbyist who represents several tribes in the case. “McCain has suddenly put the kibosh on this.”
McCain spokeswoman Eileen McMenamin said this week’s markup was postponed because of a joint session of Congress on Wednesday.
An early August markup would follow a flurry of recent action in the long-stalled lawsuit.
On July 11, the U.S. Court of Appeals for the District of Columbia Circuit removed District Judge Royce C. Lamberth from the case, finding that his rulings gave the appearance of bias against the Interior Department.
During his years presiding over the case, Lamberth had held former Interior Secretaries Bruce Babbitt and Gale A. Norton in contempt and periodically ordered the department’s Web site shut down.
Last week, McCain and Dorgan issued a statement saying the appellate decision “does nothing to lessen the need to get it settled,” despite Interior’s own claim that the ruling provided “a fresh start.”
McCain said the decision provides an opportunity for “all the parties to rethink their positions and get behind the legislative settlement proposal” presented in the pending bills.
An Aug. 2 markup would delay action on the measure until the latest possible date before lawmakers are consumed with the fall appropriations process and election season. “If it doesn’t happen before the August recess, it’s pretty much going to be dead,” Harper said.
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