In what has become a monthly ritual, Congress has blown through another deadline in a $3.4 billion proposed settlement for American Indians and left plaintiffs to consider their options.
Dennis Gingold, a lawyer for the plaintiffs, including lead plaintiff Elouise Cobell of Montana, said in an interview today that he and his clients are considering whether to give Congress more time to act. The proposed settlement needs congressional authorization, and lawyers in the case have set at least six deadlines for that to happen since they came to terms in December 2009.
“We have to have some discussions with the administration about how this is going to proceed going forward, and we haven’t done that,” said Gingold (pictured above), a Washington solo practitioner. “If it looks like we actually have a sincere and honest commitment to get it done it September, then it would be foolish not to extend” the deadline, he said.
The plaintiffs’ alternative would be to abandon the settlement and either negotiate a new one or return to litigation against the government.
The House of Representatives has twice given its approval to the settlement, including the authorization in broader spending bills, but the settlement has gotten caught up in the Senate. Lawmakers need to find other savings in the federal budget to satisfy self-imposed debt rules, and some Republicans want to impose a $50 million cap on attorney fees.
With the annual August congressional recess beginning today, lawmakers will not have another chance to act until mid-September.
In the meantime, lawyers will need to appear for at least one status conference before U.S. District Judge Thomas Hogan of the District of Columbia. The conference is scheduled to be held in chambers on Aug. 17. The U.S. Justice and Interior departments are both parties to the proposed settlement, which will still need Hogan’s approval if and after Congress acts.
Democratic and Republican lawmakers have pointed fingers at each other to explain Congress’ inaction. Gingold said both parties, in addition to the White House, deserve blame because, except for a few lawmakers, they have all made American Indians a low priority.
Gingold said Obama administration officials need to lobby Congress harder. “Why bother doing something that is this much of a landmark if you’re not willing to do what it takes to get it done?” he said.
National Law Journal photo by Diego M. Radzinschi.