Northwest Indian Law & Business Advisor : Northwest Indian & Tribal Lawyer & Attorney : Williams Kastner Law Firm : Tacoma, Seattle, Portland

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On December 8, Secretary of the Interior Ken Salazar and Elouise Cobell jointly announced that the United States and Cobell plaintiffs had entered into a settlement agreement to conclude the decades-old Cobell litigation. The case was filed in 1996 on behalf of a class of Indian plaintiffs who had Individual Indian Money (IIM) accounts managed by the Department of the Interior. The plaintiffs sought remedies against the United States resulting from breaches in the management of IIM accounts. Among other things, the Cobell plaintiffs sought an accounting of the trust corpus to determine its value.

The settlement requires the creation of: (1) an Accounting/Trust Administration Fund with an infusion of $1.4 billion to settle individual Indian claims; (2) a Trust Land Consolidation Fund with an infusion of $2 billion; (3) a Secretarial Commission on Trust Reform paid for by money in the Trust Land Consolidation Fund; and (4) a mechanism for unused funds in the settlement to be set aside for Indian education scholarships. The settlement does not require the federal government to admit fault and it resolves all individual Indians’ IIM-related claims that have or could have accrued as of the date of the settlement.

Importantly, the settlement is contingent upon Congress enacting legislation to approve the settlement, including the appropriation and payment of federal funds under 31 U.S.C. § 1304. The timeline allotted in the settlement agreement for Congress to do so is extremely ambitious since it anticipates congressional authorization by December 31, 2009. While Congress debates the highly controversial health care reform legislation, Senator Reid and Speaker Pelosi will be hard pressed to schedule time for authorization of a multi-billion dollar settlement before recessing at the end of the year.

Of significance, there is no language in the settlement or the legislation that appears to resolve the tribal trust mismanagement cases, including the one-hundred plus cases filed by tribal governments in addition to the Cobell litigation, which are pending before various federal courts. The tribes’ cases, according to former Attorney General Alberto Gonzales in 2005, could result in liability to the United States in excess of $100 billion.

Tribes and individual Indian allottees must carefully scrutinize the $2 billion set aside for land consolidation pursuant to the Indian Land Consolidation Act. The consolidation would seek to consolidate all 128,000 individual Indian allotments into an Indian-owner-managed trust that could include tribal governments as owners in common with individual Indians. The Secretary would be authorized to use fair market value to consolidate the estimated 3.6 million fractionated Indian land interests, into what the federal government appears to believe would be a more efficient and beneficial owner-managed trust.

The proposed Secretarial Commission on Trust Reform is not fully detailed in the settlement or the proposed authorizing legislation. There are reports that this Commission would somehow “sunset” the Office of Special Trustee (OST), but there is not operative language that would make this a reality. Unless the role and the authority of the Commission are detailed in the legislation, there is always the possibility that the Commission will be just another bureaucratic creation with no mission other than to amorphously serve as “trust reformer.” At a minimum, it seems appropriate that when discussing trust reform, the legislative initiative should follow a tribal-driven set of recommendations, similar to that undertaken in the 109th Congress with S.1439.

The three-week timeline for Congressional approval of the Cobell settlement is extremely ambitious, but should nonetheless cause tribal governments and Indian allottees to think twice before supporting or rejecting it outright. Indian Country must demand that key issues related to any consolidation of Indian land interests or reformation of the federal/tribal trust relationship be completely explained, before Congress does anything, whether by December 31 or afterwards.
 

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While many tribal consumers have a vast array of opportunities to access the seemingly unlimited information on the Internet, many Indian consumers still do not have access to traditional telephone lines for dial-up Internet connection. The gap in access results from the remote location of Indian reservations, and the high cost of running line to homes and businesses there. Broadband services and applications present a solution that could bridge this connectivity gap in Indian Country.

A Wall Street study recently cited by the FCC in a report on wireless broadband access found that consumers increasingly rely upon wireless devices and applications to access the Internet to complete commercial transactions and gaming activities. Tribal governments and entrepreneurs and Indian Country’s other capital investors should focus on developing wireless broadband access on reservations in order to reach tribal consumers and further inject commerce into tribal markets. Indian Country most certainly has the land base, population and energy resources needed to positively impact the Internet network and become a member of the Internet Protocol for transmission of data via the Internet.

One area that should be developed in Indian Country are mesh and edge networks, otherwise known as server farms, which store content for access by end users. The stored content and deployment of high speed fiber optic links connecting various servers to a central database will prevent congestion at choke points in the Internet. This allows the end user to access content and information at faster and more reliable speeds. Server farm projects could be developed using a mixture of tribal, private and federal Recovery Act funding. Tribal entities that become Internet service providers (or “ISPs”) should also explore setting fees for use of the Internet network based upon tiered access. Tiered access would allow a flat fee for a certain level of Internet traffic per month, but impose additional fees for access to extra bandwidth needed to transmit higher volumes of data over the Internet.

The network neutrality debate happening before the FCC is also key for Indian Country. The FCC regulates ISPs as informational service providers, not common carriers. As the FCC has ancillary authority to regulate ISPs, market forces impose conditions, rates and terms upon ISPs’ delivery of Internet access to end users. While an open market should encourage tribal development of ISPs, there are open questions regarding the extent, nature and scope of state regulatory authority of ISPs operating within Indian Country. The federal Communications Act reinforces the view that states have an important and preeminent role in regulating intrastate communications. I fear that if the FCC decides that ISPs are common carriers, rather than informational service providers, such may inadvertently cause state regulation over Tribal ISP transactions occurring on tribal lands within a particular state. Tribal advocates must focus on the net neutrality debate insofar as state, and thus tribal, regulatory authority over Internet communications are concerned.

In sum, Indian Country and potential tribal ISPs can and should seek to influence federal policy by or through advocating for tax incentives to develop broadband capabilities in underserved reservation areas; establishing partnerships with current ISPs to take advantage of Internet-related business opportunities; and pronouncing a clear position on net neutrality and related regulatory issues to the FCC and other policymakers.