by Billy House
Republic Washington Bureau
The Arizona Republic
WASHINGTON – What has been seen as the best hope for settling a decade-old lawsuit over billions of dollars owed to Native American landowners is quickly fading, the victim of politics and timing.
Sen. John McCain, R-Ariz., has proposed an $8 billion compromise bill. But if it is not passed before Congress adjourns its two-year session, the matter could be in jeopardy of lingering without a resolution for years longer. The longest and largest class-action suit brought against the government, it already has dragged through two presidential administrations and six congressional sessions.
“The likelihood of anything getting enacted this year is very slim,” said Keith Harper, a lawyer for the lead plaintiff in the case, Elouise Cobell.
“The key is McCain. It is in his almost sole power to push the (Bush) administration to bring this to closure,” he said of McCain, whom he notes has successfully used his political will and clout to take on the White House on other issues.
The lawsuit asserts that as many as a half-million Native Americans and their heirs, including 50,000 in Arizona, may be owed more than $100 billion in unpaid royalties, plus interest, for grazing, mining, logging and drilling on their land. At issue is property held in trust in their names for more than a century by the Department of the Interior, which includes the Bureau of Indian Affairs.
The case has been a political hot potato, in part because of the hit the U.S. Treasury would take with a settlement, which would also require funds for retracing and verifying individual accounts and money owed.
Today in Sacramento, the National Congress of American Indians is expected to pass a resolution embracing McCain’s proposed settlement. It says the settlement is not perfect but is the quickest and fairest way to settle claims that the trust has been mismanaged for more than a century.
But there are still major wrinkles, not the least of which is that the Bush administration hasn’t agreed to the proposed settlement figure.
McCain, the outgoing chairman of the Senate’s Indian Affairs Committee, could not be reached. But lawyers involved with the case say his committee staffers have been busy trying to finalize a settlement.
As the case has lingered, no one knows how much is really owed, especially when unpaid interest is added. Reaching a settlement has been complicated not just by the large amount of any potential settlement but also by the fact that trust records were destroyed over the past century, adding to accounting disagreements.
Meanwhile, plaintiffs are growing older.
When he took over in 2005, McCain promised he’d make trust reform a priority during his committee chairmanship and would give finding a solution “one good shot.” In January, he is expected to move on to the chairmanship of the Armed Services Committee.
Lawyers for the plaintiffs have offered to accept $27.5 billion, to be spread among individual Indians who have accounts in the trust program. But the Bush administration has rejected that. The lawyers have been mum on McCain’s lower settlement figure.
“It’s incomprehensible that the administration not be able to come up with at least a response to what is the product of years of work on the part of this committee and interested parties,” McCain said at a hearing last month.
But there may be some movement. Today’s resolution comes days after Interior Secretary Dirk Kempthorne told the Indian congress that he is working with administration officials and McCain to find a “fair, full and final” resolution.
“I hope that we will soon have a final settlement,” Kempthorne said Monday.
Interior Department spokesman Shane Wolfe declined to elaborate.
But John Dossett, the Indian congress’ general counsel, said he believes the Bush administration is seriously considering what a potential settlement may look like. And although chances a resolution could be reached this year are slim, he doesn’t rule it out.
“I certainly think a lot of progress has been made,” he said. “And I think a good deal of the impetus comes from the work of Senator McCain and his committee.”
Whether that progress will lead to a resolution during this term remains increasingly unlikely, however.
“If they’re going to wait for the administration to sign off on every aspect of the bill, they’re going to wait a long time,” Harper said.
Delaying the matter into the next Congress may make a congressional resolution even more difficult, he said, because lawmakers would have to persuade a lame-duck president and his budget aides to go along.
Catherine Aragon, a lawyer for the Salt River Pima-Maricopa Indian Community, said tribal members support McCain’s bill and appreciate his efforts. She would not comment on how many members may be owed money.
But Alan Taradash, an Albuquerque lawyer who represents 25,000 to 30,000 Navajo landowners in New Mexico and southern Utah and their heirs, including some in Arizona, said he doesn’t like the settlement. He said he opposes provisions that would prevent some future claims of mismanagement of individual and tribal resources.
“I would never agree to that,” he said.
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