Elouise Cobell had her eyes glued to C-SPAN through much of September, eagerly awaiting Senate approval of the $3.4 billion settlement for which she fought 14 years to win. Anytime her case came to the floor, she says, her staff at the Native American Community Development Corporation in Browning watched in rapt attention. But as debates broke down in partisan bickering, Cobell's anticipation morphed into frustration.
"I would get so excited when we'd watch C-SPAN and they'd do their whole hoop-di-doop," says Cobell, chief plaintiff in the class action settlement seeking restitution for Individual Indian Money accounts mismanaged by the U.S. government. "Then you'd find out that it didn't get approved. They'd take this amendment off and that amendment off and then you're back to square one...Somebody said, 'After this is approved, I'm never going to watch C-SPAN again,'"
Frustration is nothing new to Cobell. Since a federal appeals court issued the settlement last December, seven court-ordered deadlines for congressional approval have come and gone. The U.S. House of Representatives passed the settlement in July, but the Senate failed to meet the latest court deadline before adjourning Sept. 29, prompting U.S. District Judge Thomas Hogan this month to issue an eighth—and supposedly final—deadline of Jan. 7, 2011. Now Cobell's battle will continue into November's lame-duck session, though a major hang-up continues to cast doubt over the likelihood of approval.
"Nothing's for sure," Cobell says. "Let me tell you, when you're working with the Senate and the House, nothing is for sure."
The issue now plaguing the Cobell settlement is its linkage to a class action lawsuit involving restitution for black farmers discriminated against by the U.S. Department of Agriculture (USDA) throughout the late 1980s and early '90s. According to releases from the National Black Farmers Association (NBFA), Timothy Pigford of North Carolina filed suit against the USDA in 1997 after he was denied government loans for the purchase of farmland. Thousands more black farmers came forward in the case alleging similar discrimination when seeking government money for land or operating expenses. The case reached a $1 billion settlement in 1999.
Congress tacked Pigford II—a second-string agreement for more than 70,000 black farmers who filed claims after the original settlement's deadline—to Cobell early this year in the hopes of passing both settlements at once. But numerous Republican senators have claimed that Pigford II is "rife with fraud," and have refused to approve the $1.25 billion follow-up settlement until the Justice Department conducts a thorough investigation of the validity of all Pigford II claims.
"When gavels change hands in January, we have an obligation to the American citizen and taxpayer to do that kind of an examination and do a congressional investigation to actually look into the fraud, determine what's there and see if we can actually tell the American people what's going on," said Sen. Steve King, R-Iowa, during a Sept. 29 press conference alongside Sens. Michele Bachmann, R-Minn., and Bob Goodlatte, R-Va. "I don't think we can put the toothpaste back in the tube, but we have an obligation to put the brakes on it now until we can see how deep the fraud goes."
It's an unfortunate holdup for Cobell, whose settlement can't pass without the Senate's simultaneous approval of Pigford II. Those behind both settlements have repeatedly pleaded with Senate Majority Leader Harry Reid, D-Nev., to de-link the two and allow each to go before Congress as a stand-alone bill. Reid has so far refused the requests for separation, and if the Senate fails to meet its newest deadline for Cobell, the case will likely end up back in litigation.
"The finish line's in sight, but it keeps getting moved further down the track," says Sen. Jon Tester. "Congress has got to get the Cobell settlement done—either with or without Pigford—because it's in the best interest of Montana and all of Indian Country. And it's the right thing to do."
Cobell believes that, given a chance to progress on its own, her settlement would glide through the Senate without opposition. While the scrutiny around Pigford II continues to increase, the Cobell settlement has actually gained favor with some of its early critics. Sen. John Barrasso, R-Wyo., almost single-handedly stalled Cobell throughout the summer, picking apart the allocation system outlined in the settlement. But after a mid-August meeting between Cobell and Barrasso, the two reached an understanding and diverted $100 million from a portion of the settlement to increase available funding for beneficiaries. Now Barrasso is one of Cobell's latest advocates.
"What he wanted was very minimal and didn't change the agreement at all, so we were able to make that change," Cobell says. "That was fine, no big deal. If he'd sat down with us ahead of time, we could have had it all worked out."
Cobell has spent considerable time the last few weeks talking by phone with the settlement's longstanding champions—Tester, along with Sens. Max Baucus, Chuck Grassley, R-Iowa, and Arizona's Jon Kyl, R-Ariz. She's attempting to answer any questions or resolve any problems in advance of the lame-duck session, but so far she's heard of no potential hang-ups—except for Pigford II.
"I'd rather be in court, I tell you, because in court you can stand up and have to tell the truth and you know exactly where you're going," Cobell says. "But when you're working with Congress it's like a totally different world. It's something I'm not used to."