But the suit's lead plaintiff, Elouise Cobell of Browning, sees promise in the year ahead.
To begin, the case was dealt a blow in July when the Court of Appeals for the D.C. District Court removed U.S. District Judge Royce C. Lamberth from the Cobell vs. Interior Department suit. The action came after government attorneys objected to Lamberth's “sweeping moral condemnation” of Interior officials.
The Cobell class-action suit was filed on behalf of Native landowners in 1996. Since then, the case has been before three Interior secretaries and two presidential administrations. It may be pushed to a third administration if not settled within the next year. The suit seeks an historical accounting of money earned by Natives from oil and gas royalties and land and timber leases that have been managed by the Interior Department since 1887.
Natives aren't the only ones with questions about lucrative oil and gas royalty payments.
An Interior inspector general report released in December thrashes Interior's Minerals Management Services Bureau for failing to collect royalty payments from multibillion-dollar companies that pump oil and gas from public lands and coastal waters.
The report says mineral bureau officials rely too heavily on oil company statements rather than actual records. Additionally, the bureau was criticized for its incomplete and often inaccurate data collection process, making it difficult to pursue underpayments, likely ending in uncollected royalties. The lack of accountability could cost the government an estimated $10 billion over the next five years.
Lawyers for Native landowners argue Indians have been short-changed more than $100 billion in the last 100 years.
Proposed legislation calls for a government settlement payment to the Indians of no more than $8 billion.
Last September, a House subcommittee on energy and resources asked Earl Devaney, the Interior's inspector general, to provide testimony concerning the Interior Department's “institutional culture of managerial irresponsibility and lack of accountability.”
Devaney responded: “Simply stated, short of a crime, anything goes at the highest levels of the Department of Interior. Ethics failures on the part of senior department officials ... have been routinely dismissed with a promise of ‘not to do it again.' ”
But Devaney and Cobell see promise in the year ahead.
“Secretary (Dirk) Kempthorne has essentially inherited the culture at Interior,” Devaney told the subcommittee. “He has already signaled ... his intentions to create and sustain a culture of ethics and accountability during his tenure. I am hopeful the culture that I describe in my testimony today will soon become a thing of the past.”
Cobell, who is a community development expert from Montana's Blackfeet Nation, expressed optimism in the judicial system and Lamberth's replacement, Judge James Robertson of the U.S. District Court for the District of Columbia. “His past history is he's moved forward expeditiously and has a reputation for fairness.”
Robertson called for the first hearing under his tenure with Cobell on Dec. 20.
Meanwhile, Cobell lawyers vow to take the case of Lamberth's removal to the U.S. Supreme Court. A petition is expected to be filed with the court before year's end.
“We are still fighting over Judge Lamberth,” said McAllister. “We don't think it was a proper action. It's unprecedented for someone who's sat on a case for 10 years to be removed. And to be removed for comments that were fully supported by the record of the case over the 10 years. Appointees got a little concerned because he had some strong words to say about the government's handling of the case and their attitude toward Indians.”
In one opinion, Lamberth called the Department of Interior a “dinosaur - the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the last pathetic outpost of the indifference and anglocentrism we thought we had left behind.”
He also described the department's tenure as trustee for Natives as one featured by “scandals, deception, dirty tricks and outright villainy - the end of which is nowhere in sight.”
Government attorneys argued he should be removed from the Cobell case for being too morally opinionated. “We do not ask this court for moral vindication: that is not its role. But it is precisely because moral judgments, untethered to legal rulings, do not form a proper part of the case, that reassignment is necessary.”
So far, the government has spent more than $100 million trying to fix and provide a historical accounting of the Indian trust funds.
Earlier this year, it appeared that Sen. John McCain, R- Arizona, then-chairman of the Senate Committee on Indian Affairs, would settle the Cobell suit through a legislative settlement package. But a last-minute intervention by the Bush administration prevented the bill's advancement in July.
In October, the government proposed a sweeping change to the bill that would end the Interior Department's historical and controversial responsibility for managing Indian trust lands. The Senate Committee on Indian Affairs is expected to pick up the bill again under the leadership of Sen. Bryon Dorgan, D-N.D.
“I think one of the bright points is Senator Dorgan is very interested in moving forward with new legislation that will address the issues of the case,” said Cobell. “I had a meeting with him about a month ago, which was very rewarding.”
Reporter Jodi Rave can be reached at 800-366-7186 or at jodi.rave@lee.net
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