Trust Litigation Settlement Still Before Congress

by Brad Jolly, Partner
Sep 22, 2006

Congress is still attempting to pass settlement legislation for the Cobell litigation. However, Senator McCain has criticized the Bush administration's apparent delay tactics in resolving the matter. Interior's failure to respond to the settlement legislation will most likely stop the legislation from passing before the upcoming recess that will last until after the November elections.

The bill would provide $8 billion as a settlement of the moneys the government has lost and stolen from Individual Indian Money ("IIM") accounts - a paltry amount compared to the estimated $127 billion that forensic accountants estimate the government owes individual Indian landowners. While it is good to see Congress continuing to acknowledge the horrible actions of Interior in managing Indian trust accounts, it is also worth asking at the same time if non-Indians in a similar situation with the government would be expected to accept 6 cents for every dollar that the government stole from them. Of course, the government's costs of actually paying out the claims gets paid by the plaintiffs themselves since the legislation provides that the Department of Treasury will pay the costs of administering the claims fund directly out of the claims fund. So, the actual amount is less than 6 cents for every dollar stolen. (Is it only irony that the government will administer monies belonging to Indians in order to settle claims for mis-administering monies belonging to Indians? One has to wonder how long it will take the government this time to lose the records that would show what happened to the amounts taken out of the fund to pay for its administration).

Congress is no stranger to settling claims against the United States - a cursory search for private laws over the years shows that Congress pays claims for wrongful death, back pay, and similar suits brought against the government. In most, if not all, of those situations Congress has no issue with ensuring that the claimants receive amounts that courts determine the parties to be entitled to.

What makes the small amount even more disturbing in relation to IIM accounts is the simple fact that the plaintiffs are simply asking to get the money that was theirs - money that was essentially being held for them by the government in a manner that a bank holds monies in bank accounts for individuals. This is not some situation where the plaintiffs are seeking damages for an injury, but simply to get back what was taken from them illegally. The amount of the settlement appears to be a continuation of brushing the legitimate claims of Indian peoples aside with pennies - a reminder that nothing has really changed since the times the government found it fair to pay a settlement of 47 cents an acre to the tribes of California in 1964. Is there any other group of people in the United States that would even be asked, much less expected to happily accept, less than 6 cents for every dollar that was stolen from them?