Lowered Fee Cap May Scuttle $3 Billion Settlement

Like many of the 384,000 federally recognized tribal members who are certified members of the class action lawsuit, Cobell v. Salazar, I was pleased when I learned the Obama Administration and the four named plaintiffs had reached a settlement in December 2009. But after a careful reading of the full settlement, I am disappointed and outspoken in my efforts to educate Indian Country about its ramifications. As the old adage goes, the devil is in the details of what the plaintiffs have agreed to in exchange for settling their 14 year old lawsuit. I see three key issues that must be resolved before the settlement is ratified by Congress and goes back to the Court.

First, the plaintiffs have agreed to the Administration’s request to create a totally new class of plaintiffs to extinguish claims which are entirely outside the scope of the current litigation. The new class, for $500 plus a formula amount, is asked to forever extinguish all their claims for the past mismanagement of their land and its resources – timber, water, grazing or other economic use. The Cobell suit was filed in a Court of Equity that could order an historical accounting as a remedy but it is NOT a court that could award monetary damages. But yet, here we are being offered $3.4 billion dollars? The Obama Administration seems determined “to wipe the slate clean” and “turn a page” without even bothering to find out what is on the slate and whether the page can or should be turned at this time. To many Indian people, a new beginning will consist of restoring and repatriating our homelands to tribes and Indian families in a way that has never occurred before. This new class needs to be dropped out of the proposed settlement. Then the original accounting class might receive between $3,000 to $4,000, not the $1,000 currently proposed.

Secondly, $2 billion of the settlement goes to the Bureau of Indian Affairs (BIA) to purchase back fractioned lands, through the Indian land Consolidation Act that will eventually be returned to the tribes. Neither the tribes, their members or the lawsuit plaintiffs will have any say over which lands are repurchased and consolidated. Rather, the agency most responsible for mismanagement of Indian land will be given sole discretion. After 10 years, any unspent funds revert back to the Treasury. To me, this is an illusory promise and the “reverter clause” is highly frowned upon in class action settlements. The $2 billion should be put in a permanent trust fund account for the tribes where the interest may be spent on repatriating and restoring lands, for tribes and Indian families who want to reclaim their ancestral homelands.

Finally, a $60 million scholarship fund builds from small rebates when Indian people sell their fractioned interest in land. If the seven attorneys named in the proposed Cobell Settlement get their $50 to $100 million right away, let’s endow the scholarship fund upfront and start making funds available immediately for Native youth so often caught in a web of hopelessness. If the attorneys get $100 million -- for parity’s sake --let’s dedicate the same to our youth.

Sen. Thomas Barrasso (R-WY) has asked Tribes and Indian people to submit their ideas about how the settlement might be strengthened to better meet the needs of Tribes and Indian people. I appreciate this good faith effort much more than the current efforts to tack the required settlement legislation onto other Congressional bills without benefit of a public hearing on the merits. Transparency is an important element for a healthy democracy – even for Indians.

Like many of the 384,000 federally recognized tribal members who are certified members of the class action lawsuit, Cobell v. Salazar, I was pleased when I learned the Obama Administration and the four named plaintiffs had reached a settlement in December 2009. But after a careful reading of the full settlement, I am disappointed and outspoken in my efforts to educate Indian Country about its ramifications. As the old adage goes, the devil is in the details of what the plaintiffs have agreed to in exchange for settling their 14 year old lawsuit. I see three key issues that must be resolved before the settlement is ratified by Congress and goes back to the Court.



First, the plaintiffs have agreed to the Administration’s request to create a totally new class of plaintiffs to extinguish claims which are entirely outside the scope of the current litigation. The new class, for $500 plus a formula amount, is asked to forever extinguish all their claims for the past mismanagement of their land and its resources – timber, water, grazing or other economic use. The Cobell suit was filed in a Court of Equity that could order an historical accounting as a remedy but it is NOT a court that could award monetary damages. But yet, here we are being offered $3.4 billion dollars? The Obama Administration seems determined “to wipe the slate clean” and “turn a page” without even bothering to find out what is on the slate and whether the page can or should be turned at this time. To many Indian people, a new beginning will consist of restoring and repatriating our homelands to tribes and Indian families in a way that has never occurred before. This new class needs to be dropped out of the proposed settlement. Then the original accounting class might receive between $3,000 to $4,000, not the $1,000 currently proposed.



Secondly, $2 billion of the settlement goes to the Bureau of Indian Affairs (BIA) to purchase back fractioned lands, through the Indian land Consolidation Act that will eventually be returned to the tribes. Neither the tribes, their members or the lawsuit plaintiffs will have any say over which lands are repurchased and consolidated. Rather, the agency most responsible for mismanagement of Indian land will be given sole discretion. After 10 years, any unspent funds revert back to the Treasury. To me, this is an illusory promise and the “reverter clause” is highly frowned upon in class action settlements. The $2 billion should be put in a permanent trust fund account for the tribes where the interest may be spent on repatriating and restoring lands, for tribes and Indian families who want to reclaim their ancestral homelands.



Finally, a $60 million scholarship fund builds from small rebates when Indian people sell their fractioned interest in land. If the seven attorneys named in the proposed Cobell Settlement get their $50 to $100 million right away, let’s endow the scholarship fund upfront and start making funds available immediately for Native youth so often caught in a web of hopelessness. If the attorneys get $100 million -- for parity’s sake --let’s dedicate the same to our youth.



Sen. Thomas Barrasso (R-WY) has asked Tribes and Indian people to submit their ideas about how the settlement might be strengthened to better meet the needs of Tribes and Indian people. I appreciate this good faith effort much more than the current efforts to tack the required settlement legislation onto other Congressional bills without benefit of a public hearing on the merits. Transparency is an important element for a healthy democracy – even for Indians.