Deadline Extended for Third Time in $1.4 Billion Indian Trust Case

Mike Scarcella

The National Law Journal

A federal judge in Washington, D.C., on Thursday implored Congress to pass necessary legislation approving a billion-dollar settlement in long-running Indian trust suit, saying that justice is on hold because of inactivity on Capitol Hill.

Senior Judge James Robertson of the U.S. District Court for the District of Columbia spoke Thursday during a status conference in the suit, Cobell v. Salazar, which was filed more than a decade ago here. Justice and Interior department officials announced a $1.41 billion settlement in December in the suit, which seeks a historical accounting of billions of dollars of royalty funds flowing from the use of natural resources on Indian land.

The suit, filed in 1996, requires congressional authorization to approve the settlement amount. But since the settlement was announced, two deadlines have passed without congressional approval of the deal. The latest deadline, April 16, was extended Thursday until the end of May. The lead plaintiff, Elouise Cobell, was skeptical the April 16 deadline would be met.

Robertson announced the extension Thursday in court following a 45-minute meeting with Justice and Interior lawyers and the attorneys for the plaintiffs. Associate Attorney General Tom Perrelli, who was active in negotiating the settlement, participated in the meeting in chambers.

In court, Robertson called the settlement a "win-win proposition" for the plaintiffs and the government. He cautioned, however, that his remarks were not meant to be construed as a final approval of the deal. Once Congress approves the settlement amount, members of the plaintiffs' class will have a chance in court to object to the settlement.

"The need for Congress to act is real," Robertson said Thursday. "Until or unless Congress acts the lawyers on both sides who have devoted themselves to this case for 15 years are on hold. More importantly, all of Indian Country is on hold."

The judge's remarks were the first he has made publicly since the settlement was announced in December.

Robertson said he will convene a public hearing in May in the event Congress fails to approve the required legislation approving the settlement. He said he would invite members of Congress, in addition to Office of Management and Budget officials and Secretary Kenneth Salazar of the Interior Department. Robertson said he would seek an explanation about why Congress has not acted to approve the deal. The settlement, he said, does not appear to be a partisan issue on Capitol Hill.

Deputy Secretary David Hayes of the Interior Department said in court Thursday that the administration remains committed to moving the settlement forward. He said government officials are "anxious" to proceed in the litigation, moving from congressional approval to the required notice to class members.

Kilpatrick Stockton partner Keith Harper, a lead attorney for the plaintiffs, said Thursday he is disappointed Congress hasn't passed legislation approving the settlement. Harper said the "vast majority" of individuals with whom the plaintiffs have communicated in recent months support the settlement.

As Robertson concluded the hearing Thursday, he told the lawyers that he will see them in May. He said he is hopeful the lawyers will gather in court "for a different purpose" the next time around.

"The message from the judge today is this needs to get done," Hayes said after the hearing. "We welcome the message." The settlement is in jeopardy, Hayes noted, if Congress doesn't approve it. Without congressional authorization, the settlement will "whither on the vine," he said.

This article first appeared on The BLT: The Blog of Legal Times.