For the fifth time, lawyers in a class action suit brought by American Indians against the federal government have reached an agreement with the Justice Department to extend the deadline for Congress to approve a settlement. The new deadline is July 9.

Lawyer Keith Harper, Elouise Cobell and Lawyer Bill Dorris at a House hearing (photo by Ryan J. Reilly / Main Justice).

“The Department of Justice continues its work to implement the Cobell settlement,” Justice Department spokeswoman Melissa Schwartz said in a statement. “In light of the legislative schedule, the parties have agreed to extend the June 15, 2010 legislative enactment deadline for congressional enactment to July 9, 2010.”

Justice and Interior Department officials announced in December that they had reached a deal with the American Indian plaintiffs to settle a lawsuit that accused the Interior Department of mishandling thousands of individual Indian trust fund accounts over more than a century. The lawsuit is called Cobell after lead plaintiff Elouise Cobell. But the $1.41 billion deal requires congressional approval, and the deadline for Congress to sign off on the deal has already been extended several times.

“It’s not an arbitrary date, there’s a lot of activity going on right now,” lead counsel for the plaintiffs Dennis Gingold said. “Obviously we’re hoping it’s going to be passed before [the deadline].”

The House passed legislation approving the deal late last month, but the Senate still needs to OK the agreement before it can go into effect. The required legislation is attached to an unrelated jobs and tax package that is currently awaiting a vote on the Senate floor.

One issue of contention is the cap on lawyers’ fee. Sen. John Barrasso (R-Wyo.) has proposed an amendment that would cap the fees at $50 million, instead of the $100 million specified in the deal.

The head of the country’s most prominent Native American organization, the National Congress of American Indians, recently sent a letter to Senate leaders in support of the Barrasso amendment.

Attorney General Eric Holder and Interior Secretary Ken Salazar wrote letters to Senate Majority Leader Harry Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.) asking the Senate to pass the settlement without amendments. According to Holder and Salazar, any changes could nullify the deal.

Reid has scheduled a procedural vote to end debate on the measure for Wednesday, but he may be short of the 60 votes needed to overcome a Republican filibuster of the package.

If things had gone according to schedule, the implementation of the settlement of one of the largest class action suits brought against the U.S. government would have already gone through Congress, been approved by a judge and the government would soon be cutting checks. But the legislative branch does not always work on the judicial branch’s schedule.

On Wednesday morning, Associate Attorney General Thomas Perrelli will take to the Hill to urge legislators to pass a bill that would finally end a lawsuit that has played out in courts for nearly 15 years.

Elouise Cobell (photo by Ryan J. Reilly / Main Justice)

On Dec. 7, the government reached a $3.4 billion settlement in Cobell v. Salazar.  The lawsuit, filed by Elouise Cobell on behalf of more than 300,000 American Indians, alleged that the Interior Department mishandled thousands of individual Indian trust fund accounts over more than 100 years.

The settlement requires congressional approval, however, and the original terms gave lawmakers a Dec. 31 deadline to finish the necessary legislation. That deadline has been extended twice and is now set to expire in April.

Congressional aides said they were not asked for input on the establishment of the deadline. Nor did the Justice Department lawyers who negotiated the settlement consult with members of Congress about the logistics of passing legislation just as Congress was dealing with other top priority issues — namely health care legislation — in an effort to complete work before its end-of-session Christmas break, according to the aides. A person familiar with the negotiations said that Judge James Robertson, the U.S. District Court judge who heard the case, dictated the short deadline.

Aides in the House and Senate said both the original deadline of Dec. 31 and the second extended deadline of Feb. 28 were unreasonable. Aides said they are more optimistic about the new April 16 deadline, but nobody is making any promises.

As the parties to the settlement wait for congressional approval, Cobell and her team are left with only private funds to explain the terms of the settlement to a hard-to-reach segment of the population. A massive planned government-backed awareness campaign – which includes television, radio, and print advertising across Indian country, as well as materials explaining the settlement in Native American languages — will not kick in until after Congress acts.

According to Cobell, government lawyers did not want to allocate any funds for outreach to Indian Country prior to the passage of legislation.

“The government instead assured us that legislation would be passed a few weeks after we signed the settlement agreement on Dec. 7,” Cobell wrote in the Native American Times. “Unfortunately, legislation was not passed (and has still not been passed) and the need to meet with Indian Country is stronger than ever.”

A Justice Department spokeswoman noted that Perrelli and the Solicitor of Interior Hilary Tompkins recently appeared before the National Congress of American Indians to answer questions on the settlement and that other federal representatives have appeared before tribal organizations.

“If Congress enacts legislation, we can then — per the settlement – provide for more extensive outreach to inform individual Indians and tribal governments about the settlement,” DOJ spokeswoman Melissa Schwartz said.

Bill Dorris, one of the lawyers representing Cobell, said that in talking with the Justice Department and with members of Congress, they have not found any real opposition to the legislation. Dorris said he was unsure why the legislation has not yet moved forward.

“We hope the new goal is realistic, we haven’t heard anything to indicate otherwise,” said Dorris.

Perrelli is set to testify before the House Natural Resources Committee Wednesday along with Cobell and several other American Indian leaders.

The Natural Resources panel’s top Republican, Doc Hastings of Washington, is expected to press the witnesses about how lawyers who negotiated the deal would be paid and about the lack of regional consultations between the Obama administration and Indian Country.

“The executive branch obviously wants this to happen quickly,” said Spencer Pederson, a spokesman for committee  Republicans. “This will give us some opportunities to get some questions answered at the hearing.”

Those scheduled to testify at Wednesday’s hearing include:

Michael Finley, 
president, Intertribal Monitoring Association on Indian Trust Funds.

Austin Nunez, chairman, Indian Land Working Group.

Richard Monette
, professor, University of Wisconsin Law School.

David Hayes
, deputy secretary of the Interior.

Thomas J. Perrelli
, Associate Attorney General.

Elouise Cobell

This story has been modified to clarify that the judge who is hearing the case has not yet approved the settlement, since it requires Congressional action.