House panel threatens to cut historical accounting
Key House lawmakers said on Thursday they are considering reducing, or even eliminating, funds for the Bush administration's historical accounting in hopes of sending a message to the judge handling the Cobell trust fund case.
Rep. Norm Dicks (D-Washington), the chairman of the House Interior Appropriations subcommittee, said he agreed with Judge James Robertson that a complete accounting of the Indian trust was impossible. But he was upset that the Interior Department's fiscal year 2009 budget seeks $56.4 million to continue the effort.
"To me, it's just a big waste of money," said Dicks. "I'm for cutting it out."
Rep. Todd Tiahrt (R-Kansas), the panel's ranking Republican, wasn't ready to take the money out of the upcoming budget. He said he was worried that doing so would make the federal government look bad in the long-running case, which Robertson hopes to resolve this summer after 12 years of litigation.
"I think that there may be reason to continue it, but at what level?" he asked. "If we're funding something at $55 million that's impossible, maybe we should only try $5 million of an impossibility."
Rep. Jim Moran (D-Virginia), on the other hand, eagerly supported Dicks' contention that Indian landowners aren't owed any money for the handling of their trust assets and funds. He said a litigation-driven project that the subcommittee funded -- without consulting Indian Country -- uncovered just "one error" in the accounts of the five-named plaintiffs in the case.
"This isn't working," he said of the historical accounting effort. Of the plaintiffs' recent request for have $58 billion restored to the trust, he said "that's never going to materialize."
Special Trustee Ross Swimmer cautioned the subcommittee against cutting the historical accounting out of the budget. He said that would impact the administration's stance in the litigation "very negatively."
"It would be almost considered by the court as being in contempt," Swimmer told lawmakers.
Swimmer, however, said the government has considered asking Robertson for some sort of court order that would put a halt to the accounting. In December 1999, Judge Royce Lamberth, who was removed from the case at the request of the administration, issued a decision that required Interior to fulfill its duties under the American Indian Trust Fund Management Reform Act of 1994.
"That's certainly a consideration and it has been brought up a few times," Swimmer testified. "We have discussed that."
At the same time, he said the ongoing efforts of the Office of Historical Trust Accounting can be used to prove that Indian beneficiaries -- as well as tribes that have filed their own cases -- aren't owed any money. He also invited lawmakers to consider amending the 1994 act.
"There's no question that the judge would welcome Congress clarifying what the act actually required in terms of historical accounting," Swimmer said. "That has yet to be done, it's never been done, and that is one of the reasons that's led to this [situation]."
The subcommittee has repeatedly tried to eliminate funds for the accounting, change the scope of the accounting and settle the case. But other members of the House -- mainly those that belong to the bipartisan Congressional Native American Caucus -- beat back one such effort in the summer of 2002.
At the time, the Bush administration denied asking for the provisions at issue even though former deputy Interior secretary J. Steven Griles had encouraged the subcommittee to consider limiting the government's trust duties during a hearing earlier that year.
A second attempt in the summer of 2003 led to a one-year hold on the accounting. This time, the White House acknowledged it was behind the "time out" and the Congressional Native American Caucus was unable to defeat the appropriations language.
The House Appropriations Committee ended up adopting a report with language that closely tracked the testimony Griles gave at a hearing earlier in 2003. Griles is currently serving prison time for lying to Congress about his dealings with a convicted tribal lobbyist.
Robertson has scheduled a hearing on April 28 to weigh further issues in the case. He plans to start a trial on June 9 to address the remedy available to the plaintiffs. He expects the proceeding to last a couple of weeks and he has said he hopes to issue a final decision in the case later this summer.
MEMORANDUM IN SUPPORT OF EQUITABLE RESTITUTION AND DISGORGEMENT (March 19, 2008)
Historical Accounting Decision:
Findings of Fact and Conclusions of Law (January 30, 2008)
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Cobell v. Kempthorne (April 20,2007)
Indian Trust: Cobell v. Kempthorne - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm