<i>Editors’ note: Keith Harper, an attorney with the Native American Rights Fund, has been part of the attorney team working on Cobell v. Norton since the inception of the lawsuit, which seeks an accurate accounting from the Interior Department of the Individual Indian Money trust accounts, as well as reform of IIM accounting systems and a restatement of the accounts. Congress is currently considering legislation that would restate the accounts and settle other outstanding points of contention between the litigants.</i>

Keith Harper: In general, lawyers think of, or we ought to be thinking of, law as sets of principles. I mean, when you get right down to it, law is about equity. It is about treating like cases alike. That’s why there’s so much discussion among lawyers of precedent: because you have a prior case, and that prior case reduces to certain elements, certain material facts. And those material facts produce a given outcome, and then rules of law are consistently applied to those material facts to guide us toward similar outcomes in similar cases. And so everything is principle-based.

When you depart from precedent in law, what principles have you got left? In Cobell, there should be no departure from precedent and principles just because the plaintiffs are Indians and the defendant is the government. Trust law should be applied with equal vigor.

And so when you talk about “is there limitations on Congress’s ability,” obviously there is. Let’s suppose, for example, let’s take a totally different scenario. Let’s suppose that any claim that’s out there and Congress jumps in and says … we’re going to give each claimant $1. One dollar. So, taking a multibillion-dollar claim and you’re giving everybody $1. Obviously, there’s something wrong with that. That doesn’t pass the sniff test. And the thing that’s wrong with that is you’re taking something of value from them and not giving them adequate value in compensation. And so there are clearly limitations on what Congress can do.

Now where that line is drawn, how that works out, I can’t tell you. But I will say that there are due process issues, there are takings issues and there are other constitutional questions. Congress’ powers are limited by the Constitution, this is ongoing litigation; there’s been declared rights, and with those things come certain limitations. And you have property interests involved as well.

So as an overall scheme I think there are some people that suggest that Congress’ plenary power in Indian affairs somehow means they don’t have to abide by normal constitutional provisions. Well-settled, that’s just not true.[…]

As far as how we’re going to move forward on it … I don’t know if it’s going to settle in this Congress. Our position is pretty clear. We want to settle.

But again, fairness is as important, indeed fairness is more important than promptness. … You do not settle by sacrificing equity on the altar of expediency. And it’s just a matter of ensuring that whatever settlement comes out is fair to the class … and we’re not asking for something remarkable. We’re not asking for something outrageous. This is what anybody ought to expect.

ICT: But let’s say that … whoever it may be says, “we do have some humanity here, but we just can’t, just don’t have the authority, to sweep away a system that has been built up over time,” and the fact that you know people are making pennies out of these huge oil wells … well maybe the problem there is that with land fractionation you’ve got 40 other heirs?

Harper: I understand that. I don’t talk about highly fractionated land. I’ve looked at the records here. We’re talking about land sometimes with two owners, husband and wife. We’re talking about land in the case of [an individual] that’s [shared among] five siblings. Four oil wells. How come they’re receiving [a] couple hundred dollars, every quarter?

ICT: So they don’t receive as much as their father would have, but it’s not like there’s 50 of them either?

Harper: Yeah. Of course you’ve got to divide it more, I understand the notion. You divide it more.

ICT: But that still doesn’t explain it?

Harper: That still doesn’t explain it! When you have 162 rod pipeline, with a 24-inch-diameter pipeline going through your land, serving to be one of the main thoroughfares for the gas that is being shipped from Navajo land to light up California, and that beneficiary for every rod is getting $25 instead of $500 – and that’s what non-Indians are getting for those kind of pipeline – there’s something wrong. And that Indian is getting ripped off so that pipeline company can make more money. And that’s what we’re talking about.

<i>Continued in part two