[Congressional Record (Bound Edition), Volume 156 (2010), Part 11]
[Senate]
[Pages 15264-15266]
[From the U.S. Government Publishing Office, www.gpo.gov]




                  UNANIMOUS-CONSENT REQUEST H.R. 4994

  Mr. DORGAN. Mr. President, earlier today we had some suggestion on 
the floor of the Senate about the Cobell case--that is the settlement 
of the Cobell case--the Federal court case Cobell, et al. v. Salazar. A 
negotiation ensued late last year with an agreement in December of last 
year that would settle at last--at long, long last--a 15-year 
litigation in Federal court dealing with American Indians and the 
mismanagement of their trust accounts--literally stealing and looting 
trust accounts over the years and, in addition to that, a substantial 
amount of incompetence along the way.
  I described today people who have had oil wells on their land and who 
have lived in poverty because somebody else got the money from their 
oil wells. They didn't get it, despite the fact that the government 
held their land in trust and promised to provide them their income from 
that land, whether it was from minerals, oil, grazing, agriculture, or 
another activity. For 140 years, American Indians have too often been 
cheated.
  Well, a court case that has existed now for 15 years determined that 
the Federal Government had a responsibility and liability. Rather than 
have that court case continue for more years in the Federal courts, 
there was a negotiation late last year with Interior Secretary Ken 
Salazar and Cobell plaintiffs. They reached an agreement and the 
Federal judge gave Congress 30 days to provide the funding and approve 
the settlement. The Congress did not do that in 30 days. In fact, the

[[Page 15265]]

deadline for the settlement has been extended now six times during 
which the Congress has not acted.
  We have tried very hard to find ways to satisfy everybody here, but 
apparently that is not capable of being done today. I am profoundly 
disappointed in that. I think my colleague from Wyoming wishes he were 
one of the negotiators. He was not, of course. It was the Interior 
Secretary who and the plaintiffs who negotiated. The Congress simply is 
an evaluator of whether it wishes to dispense the funding for the 
settlement that was done. I was not a negotiator. Nobody in Congress 
was a negotiator.
  The question isn't, by the way, whether Indians were cheated or 
whether they are owed money as a result of mismanagement and fraud over 
these decades. The Federal court has already determined that was the 
case. They found in favor of the plaintiffs, and then the case was 
appealed further by the Federal Government.
  The question is whether we have a responsibility here. We do. The 
Federal court has already found that to be the case. The question is 
whether we will meet our responsibility. This negotiation that ensued 
with Cobell v. Salazar, as far as I am concerned, represented a sound 
and reasonable approach, and I believe we should fund and approve it 
and move forward.
  The unanimous-consent request that I am going to offer includes 
Cobell v. Salazar and the authorized settlement in that case, as well 
as the approval and funding for the final settlement of claims from the 
Black farmers discrimination litigation that has been discussed at some 
length on the floor as well.
  Mr. President, having said that, I ask unanimous consent that the 
Finance Committee be discharged from further consideration of H.R. 
4994, and that the Senate proceed to its consideration; that the 
substitute amendment at the desk, which authorizes the settlement of 
Cobell, et al., v. Ken Salazar, et al., and to provide an appropriation 
for final settlement claims from In re Black Farmers Discrimination 
Litigation, be considered and agreed to, the bill, as amended, be read 
a third time, passed, and the motion to reconsider be laid upon the 
table, all without intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. BARRASSO. Mr. President, reserving the right to object, I do 
support the Cobell lawsuit. I have great admiration for my colleague 
from North Dakota and the considerable work he has done as chairman of 
the committee. He has worked very effectively and passionately and he 
also worked with Secretary Salazar to get to a point where we can move 
forward. We are not quite there yet in terms of the policy or the 
payment issue. We are not quite there, but I will offer the following 
alternative to the proposal the chairman has presented to the Senate. 
It is along the lines of things I have been discussing with Secretary 
Salazar and the administration.
  I ask unanimous consent that the Senate proceed to the immediate 
consideration of S. 3754, which was introduced earlier today; that the 
bill be read the third time and passed, the motion to reconsider be 
laid upon the table, and that any statements relating to the bill be 
printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. DORGAN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Is there objection to the original request?
  Mr. BARRASSO. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DORGAN. Mr. President, let me say again how extraordinarily 
disappointed I am. I have in my hand the proposal Senator Barrasso 
offered to the Secretary of the Interior.
  By the way, I don't accuse anybody of bad faith. The Senator from 
Wyoming is a friend of mine. I am enormously disappointed with him at 
this point. He has a right to be disappointed with me, if he wishes. 
Let me just say this. This negotiation ensued last November and 
December, resulting in a settlement. None of us here were part of that 
settlement--excuse me, we weren't a part of the negotiation that 
reached the settlement. That is not the role of the Senate, to be 
involved in a 100-person negotiation.
  The lawsuit was a suit brought by plaintiffs against the Secretary of 
the Interior. The negotiations were negotiations with the Secretary of 
the Interior, who was the defendant in that suit. That is appropriate 
and the way it should be.
  If we don't like what that negotiations developed and don't support 
the settlement and believe we can do better, then we should object. But 
then we don't get this done. That has happened six times this year. 
Over and over and over again, we have failed to act on this matter.
  My colleague has five things he wants that are different than the 
settlement. Maybe they are better, I don't know. I don't have the 
foggiest idea. I said to him a while ago that I wish he would take yes 
for an answer because the response to his requests of the Interior 
Secretary was a letter from the Secretary saying he agreed with him and 
would do them. But my colleague wants them in legislative language. 
That changes the settlement and the negotiation.
  It is 7:30 on a Thursday night in August, months and months and 
months after the settlement was sent to the Congress by a Federal 
judge, saying do this in 30 days. I just say it is very hard to get 
things done. Next, it will be somebody else who has four provisions or 
five provisions or who can write the settlement better or think it 
through more clearly. I don't know. I do know this. The people who have 
been cheated--and there are a lot of them and many of whom have died 
waiting for this settlement--are not going to get any benefits from 
this settlement until this Congress decides whether it is going to pass 
legislation dealing with the settlement.
  It may be that any Member of the Congress can do a better job and 
write better provisions, except that we weren't the negotiators because 
we were not the defendants in the lawsuit. We have every right to say 
no, if that is the point. We have said no since last December. If that 
is the point, I suppose more plaintiffs will die. They will wait years 
and probably go back to Federal court. Maybe we can go another 10 years 
in Federal court, having lawyers earning money and Indians living on 
lands with oil wells 100 yards from their house and they get checks of 
5 cents or 8 cents or maybe $3 as revenue from the wells. That is what 
has been happening for the last 130 years.
  I understand why there is frustration. If I sound frustrated, think 
of the people I describe who have been cheated and have lived in 
poverty most of their lives because they have not had the opportunity 
to get income from the lands they owned. I don't understand it. I guess 
people see competing UCs, and wonder what is the result of what are 
called in the Senate competing UCs? Does anybody go home feeling good? 
Not me. We are either going to do this or not. If we don't like this 
settlement, let's not do it. I happen to like it; let's do it. My 
colleague, perhaps, wants to respond.
  I will yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. BARRASSO. Mr. President, again, I have a great deal of respect 
for my colleague from North Dakota. He is compassionate and makes a 
compelling argument. We do need to settle the Cobell lawsuit. I ask the 
leaders to, over the next couple weeks, come together and allow for a 
very limited debate, possibly a few amendments on the floor, and then 
an up-or-down vote.
  That is the sort of thing we need to do--in the light of day--with 
the Members of the Senate, not something that continues to be brought 
forth with the goal of getting a unanimous-consent agreement. We are 
not there.
  I think the ideas I have brought forward are good. They come forward 
because those are the ideas I have had brought to me through various 
tribes from around the country who have concerns about the settlement. 
There have been large meetings of different tribes who have come out in 
support of these

[[Page 15266]]

ideas that they have brought to me. I think it is very reasonable for 
the Senate, if we can arrange for a limited time for debate on the 
specifics and not be asked in a unanimous consent on the last evening 
before Members of this body have scattered home to their States, when 
they are no longer here. They have been told they are not going to vote 
again until the middle of September.
  I think it is reasonable to ask the Senate to have a discussion on 
this and then a vote. If the Senate, in its wisdom, decides that is 
what they want and they want to pass this as written, then the will of 
the Senate has been worked. That is why I raise these concerns tonight.
  With great admiration for the chairman, who has worked so well, in a 
bipartisan way on our committee, we have worked together on legislation 
on Indian affairs. He is chairman and I am vice chairman. I can 
understand his concerns and wanting to get this settled. I do too. I 
feel obligated to bring forth the concerns I have heard from across 
this country and bring them here.
  That is the reason I object to the settlement tonight, and I would 
love to have our leaders work together to bring this forward to the 
floor for discussion, debate, and then an up-or-down vote.
  I yield the floor.
  Mr. DORGAN. Mr. President, let me describe the difficulty with the 
procedure my colleague described. We can't just bring something up for 
a vote, because if somebody here doesn't like it, they object. Then you 
have to file a cloture motion, and it takes 48 hours to get a cloture 
vote. Then you have 30 hours postcloture. That is what we run into. I 
agree with that; let's put the best idea up and have a vote on it. If 
you don't like the settlement and decide that somehow these plaintiffs 
are not worthy, despite the fact they have been bilked for 130 years, 
then vote no. But we can't even get a vote.
  At any rate, I will wait and see if there is a better idea that will 
get votes in the Senate or are we going to continue every 30 days or so 
to say to this Federal judge that we understand a settlement was 
negotiated and reached on behalf of the United States of America, but 
we don't intend to vote for it?
  I have another bill at the desk. Before I ask unanimous consent, I 
will describe it. In the piece of legislation we passed today, dealing 
with FMAP, and funding for teachers, and so on, there was a provision 
that was first described as a pay-for but actually scored as zero, 
which meant it was a pay-for that had zero impact. It does have an 
impact on American Indians, and I wanted to describe it briefly.
  When the Economic Recovery Act was passed, we proposed that at least 
a small amount of money go to Indian reservations around this country 
because they had the highest rates of unemployment. So there was put in 
place a piece of legislation that provided an Indian guaranteed loan 
program account. There was $6.8 million remaining in that account that 
would support a substantial number of projects around the country--
somewhere in the neighborhood of $80 million--that would put a lot of 
people to work--investing in new infrastructure and projects. That 
legislation--the so-called pay-for that is scored as zero in the bill 
passed today--in my judgment, we need to rescind that action because it 
had no impact on the legislation the Senate passed. But it will have a 
substantial impact on loan guarantees for these Indian reservations, 
most of which have the highest rates of unemployment in the country.
  I have spoken to a good many people about the need to do this. Again, 
I have been on the phone to the Congressional Budget Office. They say 
that a zero score--as I introduced it today, it will not score. 
Therefore, I believe it is very important to do.
  I ask unanimous consent that the Senate proceed to the immediate 
consideration of S. 3761, which is at the desk; that the bill be read 
the third time and passed; that the motion to reconsider be laid upon 
the table; and that any statements related to the bill be printed in 
the Record, as if read.
  The PRESIDING OFFICER. Is there objection?
  Mr. BARRASSO. Mr. President, reserving the right to object, this is 
something my colleagues have not had a chance to review. As a result, 
and not knowing the specific details and with colleagues now traveling 
back to their home States, on behalf of them, I do object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DORGAN. Mr. President, I understand my colleague from Wyoming 
suggests there are some here who may not be acquainted with this 
legislation. I have spoken to both Republicans and Democrats today, 
during the course of the proceedings, because I think it is very 
important. I think this is something we need to fix as well. I 
understand my colleague from Wyoming is objecting on behalf of others.
  Let me make one other point on this. I have spent a fair amount of 
time talking to Senator Kyl about this. He is on an airplane at the 
moment. He was not able to hear from the Congressional Budget Office 
before he left town. I do hope, even though there is an objection now--
and to be fair to my colleague, he is objecting on behalf of other 
Senators with respect to this--that we can find a way to repair this 
because I think it is very important that we do so.
  Mr. President, I ask unanimous consent to have printed in the Record 
a letter dated August 5, 2010 from the CBO.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    U.S. Congress,


                                  Congressional Budget Office,

                                   Washington, DC, August 5, 2010.
     Hon. Byron L. Dorgan,
     Chairman, Committee on Indian Affairs, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: As you requested, CBO has reviewed a 
     draft bill to ensure that amounts appropriated to the Bureau 
     of Indian Affairs under the American Recovery and 
     Reinvestment Act of 2009 remain available until September 30, 
     2010. The draft bill would repeal a provision in H.R. 1586, 
     the FAA Air Transportation Modernization and Safety 
     Improvement Act, as passed by the Senate on August 5, 2010, 
     that would rescind certain unobligated balances from the 
     Indian Guaranteed Loan Program Account.
       CBO estimates that for the purpose of budget enforcement 
     procedures in the Senate, passage of the draft bill would be 
     considered to have no budgetary effect, because it would be 
     amending legislation that had not yet cleared the Congress.
       We also estimate that if the draft bill is passed by the 
     Senate, passage of both bills by the House would lead to 
     about $3 million more in direct spending than passage of just 
     H.R. 1586 because the rescission in H.R. 1586 would be 
     repealed. For the purpose of budget enforcement procedures in 
     the House, that $3 million would affect the cost of whichever 
     bill cleared the House later.
       That $3 million cost would not count for the purpose of 
     statutory pay-as-you-go procedures, because the funds 
     affected were designated as an emergency requirement when 
     originally appropriated.
       I hope this information is helpful to you. If you wish 
     further details on this estimate, we would be pleased to 
     provide them. The CBO staff contact is Jeff LaFave who may be 
     reached at 226-2860.
           Sincerely,
                                             Douglas W. Elmendorf,
                                                         Director.

  Mr. DORGAN. With that, I yield the floor.

                          ____________________