WASHINGTON – Mediators will get the chance to do what years of litigation
have not in the Cobell class action lawsuit over the mismanaged Individual
Indian Money accounts.

Attorneys for the plaintiffs and the federal government reached agreement
April 2 on two mediators, Judge Charles Renfrew and John Bickerman. Both
men are attorneys with broad experience in the federal government and the
private sector. Renfrew, whose government service dates from his
appointment to the federal bench during the Nixon administration and
includes a stretch as U.S. deputy attorney general in the Justice
Department under President Jimmy Carter, is currently chairman of the board
of the CPR Institute for Dispute Resolution. Bickerman, a career mediator
based in Washington, has presided over complex dispute resolution
processes, including several that have involved tribes and the Interior
Department.

One year to the week after the Senate Committee on Indian Affairs urged the
litigants to adopt a mediation process, both the SCIA and its counterpart
in the House of Representatives, the House Resources Committee, greeted the
selection of mediators as a sign of progress in the long-running case.

The plaintiffs seek an accounting of the IIM trust, created in the 19th
century after Congress divided tribal lands into individual allotments.
Income derived from individual Indian land-based assets went into an IIM
account for the beneficiary in what should have been a fairly
straightforward transaction. But the Indian beneficiaries were cut out of
managing the assets, and full public accountability for the financial
management of the trust didn’t even begin to get a hearing until the late
1970s.

Plaintiffs and Interior have been far apart on how much is missing from the
accounts, though at the end of last year $13 billion emerged as a figure
they could begin to negotiate from.

Congress has grown increasingly impatient with the price tag and longevity
of Cobell. After plaintiffs won a court order for a comprehensive
historical accounting of the trust, Congress passed a “midnight rider” that
put a one-year moratorium on federal expenditures for the accounting. Last
October, Sen. Ben Nighthorse Campbell, R-Colo., chairman of the Senate
Committee on Indian Affairs, warned that Congress would impose a settlement
if the litigants hadn’t shown progress toward a settlement within one year.

In a speech and open letter to the Navajo Nation on April 5, lead plaintiff
Elouise Cobell continued to advocate for court-supervised receivership of
Interior’s IIM operations. But in an April 6 release, the day after public
announcement of the mediators, she endorsed Renfrew and Bickerman.

She added a strong note of caution, however: “Our five previous attempts to
settle our dispute out of court were unsuccessful because each
administration believed that trust assets were properly managed. We hope
that the Bush administration has finally accepted what everybody has told
Interior over the last few decades: billions of dollars in trust assets are
lost and cannot be accounted for. Most sincerely, we hope that the Bush
administration is now willing to resolve this dispute in a fair and timely
manner, but nothing in the administration’s recent actions has indicated
that this is the case.

In an apparently related development, a court-appointed special master in
the case announced his resignation the same day the mediators signed on. In
an April 5 letter hand-delivered to the court in the case, Alan Balaran, a
Washington attorney, resigned effective at the close of business that same
day. Balaran states that he resigns under pressure from the Interior
Department, which has sought unsuccessfully, to disqualify him from the
case in a series of legal motions.

Balaran said the continuing motions against him would prevent the case from
going forward. “Given this, I will be of no practical service to the
court.”

Balaran ascribed Interior’s antagonism to his Aug. 20, 2003, report to the
court on irregularities in Interior’s appraisal of individual Indian, as
opposed to tribal and individual non-Indian, land that it leased for IIM
beneficiaries. “This report was just the beginning. I soon began to uncover
evidence that Interior was putting the interests of private energy
companies ahead of the interests of individual Indian beneficiaries …

“Whereas my previous investigations exposed random incidents of unprotected
trust documents in remote Interior locations, my recent finding implicated
the agency’s systemic failure to properly monitor the activities of energy
companies leasing minerals on individual Indian lands. The consequences of
these findings could cost the very companies with which senior Interior
officials maintain close ties, millions of dollars. (In that regard, I
direct you to the recent Inspector General Report of Investigation
(PI-SI-02-0053-I), discussing the relationship between Interior’s most
senior officials and energy company executives.) Interior did not want this
information to come to light…”

Interior has denied all this, but Balaran’s chronology of events relates
that the department first sought his disqualification on Sept. 26, 2003,
little more than a month after the August report and exactly one week after
his visit to the Minerals Management Service’s office of Minerals Review
Management in Dallas – “the repository of Interior’s oil and gas audit
files.” Balaran went to Dallas in response to Interior’s OIG report of
March 2003, “revealing that MMS officials not only fabricated oil and gas
audit files but were rewarded for their efforts…” In contrast to his
treatment on dozens of previous site visits “to ensure that Interior was
safeguarding trust documentation,” this time MMS officials informed him the
Department of Justice had ordered him to leave.

Expressing “profound regret,” Judge Royce C. Lamberth, presiding over
Cobell in United States District Court for the District of Columbia,
accepted Balaran’s resignation in an order signed April 6.