Cobell Appeal Hearing Set For May 15, 2012

The next hearing of an appeal in the $3.4 billion Cobell settlement case is set for 9:30 am on May 15th, 2012 in the Federal District Court for the District of Columbia Circuit. Circuit Judges Brown and Griffith and Senior Circuit Judge Ginsburg will be the panel that hears the oral arguments of the parties.

All appeals of the Cobell settlement must be resolved before any of the $3.4 billion can be paid out to the thousands of Native Americans across the country who are entitled to a share. The Court has not yet indicated when it will render its decision after the May 15th hearing, or if this decision will finally resolve the remaining claims that are holding up the payments.

Where's My Cobell Money?

Many Native Americans are wondering about the status of the $3.4 billion Cobell settlement, and when the funds will be paid to those who are eligible.

The United States District Court for the District of Columbia granted Final Approval for the Indian Trust Settlement at the Fairness Hearing in 2011.  Final Approval will become effective and payments will be distributed once all appeals have been resolved.

There are two active appeals. The first was filed by Kimberly Craven on August 6, 2011. The other is a consolidated Appeal of Carol Eve Good Bear, Charles Columbe, and Mary Aurelia Johns who are being represented by David C. Harrison. This was filed on September 30, 2011. These appeals could collectively delay payment by one year or longer.


IF YOU HAVE QUESTIONS ABOUT COBELL SETTLEMENT PAYMENTS, YOU CAN:

Call Toll-Free: 1-800-961-6109

Email: Info@IndianTrust.com

Send a letter to: Indian Trust Settlement, P.O. Box 9577, Dublin, OH 43017-4877
 

A Warrior Passes: Elouise Cobell, 1945-2011

(Louis Sahagun / Los Angeles Times)

Native American advocates nationwide mourn the loss of Ms. Cobell, who has passed away at the age of 65.  Having been privileged to meet her in Seattle in 2010, I can attest to the strength, dignity, and fortitude she embodied and used for the benefit of Native people.  The following is a reprint of Ms. Cobell's obituary in the Los Angeles Times:

Elouise Cobell, the treasurer of the Blackfeet tribe who tenaciously pursued a lawsuit that accused the federal government of cheating Native Americans out of more than a century's worth of royalties, resulting in a record $3.4-billion settlement, has died. She was 65.  Cobell died Sunday at a hospital in Great Falls, Mont., of complications from cancer, her spokesman Bill McAllister announced.

Growing up on the Blackfeet Indian Reservation in northwest Montana, Cobell often heard her parents and neighbors wonder why they weren't being paid for allowing others to use their land, she later recalled.  When she took over as treasurer of the tribe in 1976 she found herself in charge of an accounting system "in total chaos," she told The Times in 2002.

As Cobell attempted to unravel the books, she could make neither "hide nor hair of the trust accounts," she later said, referring to trusts that had been set up as part of the 1887 Dawes Act. The act tried to erode the tribal system by granting parcels of land to individual Native Americans, but not allowing them to control their new property. Instead, the land was placed in trust with the promise that owners would be paid royalties for oil and gas, grazing or recreational leases. Yet the Indians received little or no payment, The Times reported in 2009.

Cobell approached the Boulder, Colo.-based Native American Rights Fund about filing a class-action lawsuit against the Interior and Treasury departments, and she was named as lead plaintiff when the suit was filed in 1996. The suit contended that the Dawes Act arrangement allowed U.S. officials to systematically steal and squander royalties intended for Native Americans. "It's just such a wrong that if I didn't do something about it I'm as criminal as the government," Cobell told the Associated Press in 1999.

Just this June, a federal judge approved the $3.4-billion settlement, the largest payment Native Americans have ever received from the U.S. government. It provides a $1,000 cash payment to every individual who has a trust account and $2 billion for the federal government to buy back the land parcels, The Times reported when the settlement was reached in 2009. Cobell was to receive $2 million, according to the AP.

In deciding whether to accept the settlement, Cobell said she had to weigh the possibility of winning a greater sum against a harsh reality. The plaintiffs had estimated they were owed as much as $47 billion. "Time takes a toll, especially on elders living in abject poverty," Cobell said in a 2009 Times interview. "Many of them died as we continued to struggle to settle this suit. Many more would not survive long to see a financial gain, if we had not settled now."

One of eight children, she was born Elouise Pepion on Nov. 5, 1945, on the Blackfeet reservation in Browning, Mont. Her parents owned a 200-acre ranch. After high school, she attended Great Falls Commercial College and Montana State University in Bozeman but had to leave school after two years to care for her dying mother. In 1968, Cobell moved to Seattle and worked in the accounting department of a television station. She also met her future husband, Alvin Cobell, a fisherman and fellow member of the Blackfeet tribe.

When her father asked her to come home to help run the struggling family ranch, she returned to the reservation. She had missed the community and the land, Cobell later said. "Once we got on that ranch, there was no going back," Cobell told the AP. "We just wanted to make sure we held on to our land." In 1987 Cobell helped found Blackfeet National Bank, the first bank established by a Native American tribe on a reservation. A decade later she received a $300,000 "genius grant" from the MacArthur Foundation. Surprised by the windfall, she donated most of the money to the class-action suit's legal defense fund.

The cause also received a $4-million assist from businessman J. Patrick Lannan Jr. and his New Mexico-based Lannan Foundation. "There was something about her that really impressed us," Lannan told The Times in 2002. "I guess it was her ability to describe what it's been like to be an Indian in this sort of thing."

In a 2000 tribal ritual, Cobell was declared a warrior of the Blackfeet Nation and presented with an eagle feather, an honor reserved in modern times almost exclusively for U.S. military veterans. Cobell is survived by her husband, Alvin; son, Turk; brother Dale Pepion; sisters Julene Kennerly, Joy Ketah and Karen Powell; and two grandchildren.

Judge Finally Approves $3.4 Billion Cobell Settlement

Federal Judge Thomas Hogan Washington DC has approved the landmark $3.4 billion settlement in the Cobell class action that will compensate hundreds of thousands of Native Americans for mismanaged trust assets by the federal government.  Eligible class members will receive a minimum payment of $1,000.

“The judge’s finding that the settlement is fair and reasonable is a major milestone in the Administration’s effort to reach a resolution of litigation that has cast a cloud over the government’s relationship with American Indians,” said Associate Attorney General Thomas Perrelli.
About a dozen people appeared in court and objected to the settlement, arguing among other things that the plaintiffs’ lawyers fee demand --$224 million—was excessive. There were 92 objections in all. At the end of the hearing, Judge Hogan awarded $99 million in legal fees for the plaintiffs’ lawyers.

“Judge Hogan’s decision is another milestone in empowerment and reconciliation for the American Indians,” Interior Secretary Ken Salazar said. President Obama issued a statement the approval of the settlement. "After fifteen years of litigation, today’s decision marks another important step forward in the relationship between the federal government and Indian Country," the President said. "Resolving this dispute was a priority for my Administration, and we will engage in government-to-government consultations with tribal nations regarding the land consolidation component of the settlement to ensure that this moves ahead at an appropriate pace and in an appropriate manner."

IF YOU HAVE QUESTIONS ABOUT YOUR COBELL SETTLEMENT PAYMENTS, YOU CAN:

CALL THE SETTLEMENT HELPLINE: 1-800-961-6109

CHECK THE SETTLEMENT WEBSITE: www.indiantrust.com/index

OR SEND A LETTER TO:

INDIAN TRUST SETTLEMENT
PO BOX 9577
DUBLIN, OHIO 43017-4877

 

When Will I Get My Cobell Settlement Payment?

Many Native Americans are wondering whether they are eligible to receive money from the $3.4 billion settlement of the Cobell lawsuit – and also when the money will be paid.

No money has yet been paid out under the Cobell settlement.   Money will start being paid after the federal court overseeing the case has approved the final terms of the deal, and any appeals have been resolved.   At this time, there is no set date for payments to begin.

IF YOU HAVE QUESTIONS ABOUT COBELL SETTLEMENT PAYMENTS, YOU CAN:

CALL THE SETTLEMENT HELPLINE: 1-800-961-6109

CHECK THE SETTLEMENT WEBSITE: www.indiantrust.com/index

OR SEND A LETTER TO:

INDIAN TRUST SETTLEMENT
PO BOX 9577
DUBLIN, OHIO  43017-4877

Cobell Lawyers Begin Fighting Each Other For Attorney Fees

(IUPUI.edu)

After the nearly two-decade legal struggle that resulted in the landmark $3.6 billion settlement between the US Government and Native Americans whose resources were mismanaged, a new battle has emerged: a fight between the lawyers over how much they should be paid.

The total fee request from the attorneys representing Native Americans in the lawsuit is $223 million, a figure that some people found shockingly high. Now, a side issue has arisen over whether one attorney formerly involved in the lawsuit should receive any of the fee award.

The attorneys for lead plaintiff Eloise Cobell allege that attorney Mark Brown abandoned his clients, alienated class counsel and should not get paid. They say Brown was “terminated” in 2007 for allegedly refusing to communicate with Ms. Cobell and dropping out of the proceedings for two years. “Mr. Brown was fired for fair cause in light of his abandonment of his clients at a time and in a manner that was prejudicial to their interests,” Ms. Cobell’s lawyers said in court papers.

In his request for fees, Mr. Brown states that he left behind his practice in Los Angeles and moved to Washington DC to devote about six years to litigating the Cobell case. He said he spent more than 11,485 hours on the case and proposed an hourly fee of $475, “well within the norm for practitioners in the Washington, D.C., legal community.” That rate translates to a total fee claim of over $4.45 million. Mr. Brown stated that he “forewent receipt of any present salary at an hourly rate for his work for his clients, accepting instead to enter into a contingency fee agreement with the named class representatives.”

Cobell’s lawyers contend Mr. Brown’s request for fees was filed outside the court-mandated Jan. 25 deadline for such petitions. The attorneys alleged “Mr. Brown decided that his best strategy was to piggy-back on plaintiffs’ petition to avoid public scrutiny of his personal claim.”

Responding to Mr. Brown’s demand for compensation, Justice Department lawyers representing the US Government filed court papers stating that Brown’s “motion is not a fee petition but a request to resolve an intramural dispute among plaintiffs’ attorneys over the division of the fees that the court will eventually award.”

Cobell Settlement Payments - How Do I Apply?

The recent Cobell settlement law will ultimately provide $3.4 Billion in cash payments to Native Americans who have ownership rights in one or both of two categories:

Payments for Individual Money Accounts: Congress has allocated $1.4 Billion to compensate Native Americans who hold government issued Individual Money Accounts, which were supposed to receive deposits from the federal government from sources such as lease revenues from oil drilling on Tribal land. People who hold Individual Money Accounts will receive varying sums of money from the settlement, depending on the determination of how much money the government should have allocated to a person’s account over the years.

Payments for Land Shares: Congress has allocated $2 Billion to buy back the “fractionated” land shares held by many Native Americans, which have often resulted in dozens of people being owners of a small percentage of a piece of land that previously belonged to their Tribe. People who hold these ownership shares in land will have the option to sell them back to the government, which will then turn the land back over to the Tribe to be placed in trust. The amount of money the government will pay for a given share of land ownership has not yet been determined.

If you are not currently receiving quarterly or annual IIM account statements and believe you are part of this Settlement, you must File a Claim / Register to Participate. You can File a Claim / Register to Participate online or print out a paper Claim Form that you can fill out and submit by mail.
If you are currently receiving quarterly or annual IIM account statements, you should still complete if you also:

  • Believe you owned an interest in trust or restricted land on September 30, 2009; or
  • Believe you had an IIM account open sometime between 1985 and September 30, 2009 and are not receiving current statements on that account; or
  • Want to establish your status as an heir to a deceased IIM account holder or individual landowner.

The information that you provide on the Claim Form will only be used to process your claim and to update Department of the Interior records.

TO SUBMIT A CLAIM ELECTRONICALLY, CLICK HERE.

TO PRINT A PAPER CLAIM FORM TO MAIL, CLICK HERE.

Native American Families Should Plan Ahead For Cobell Settlement Payments

(Localnewsdigest.com)

With President Obama’s recent signing of the Cobell lawsuit settlement approval legislation, the 15+ year legal effort to secure financial compensation for Native Americans in the courts finally reached conclusion. That landmark event is, however, more of a “beginning” than the end of the work to deliver long-overdue compensation to hundreds of thousands of Native Americans throughout the country.

The Cobell settlement law will ultimately provide $3.4 Billion in cash payments to Native Americans who have ownership rights in one or both of two categories:

Payments for Individual Money Accounts: Congress has allocated $1.4 Billion to compensate Native Americans who hold government issued Individual Money Accounts, which were supposed to receive deposits from the federal government from sources such as lease revenues from oil drilling on Tribal land. People who hold Individual Money Accounts will receive varying sums of money from the settlement, depending on the determination of how much money the government should have allocated to a person’s account over the years.

Payments for Land Shares: Congress has allocated $2 Billion to buy back the “fractionated” land shares held by many Native Americans, which have often resulted in dozens of people being owners of a small percentage of a piece of land that previously belonged to their Tribe. People who hold these ownership shares in land will have the option to sell them back to the government, which will then turn the land back over to the Tribe to be placed in trust. The amount of money the government will pay for a given share of land ownership has not yet been determined.

For Native Americans who will be eligible to receive compensation under one or both of these ownership rights, it is important to think ahead about personal financial planning. It is a tragic historical fact that generations of Native Americans were denied the information and services they deserved to help take care of their families’ finances. Today, few people realize that estate planning for Native Americans is subject to a special federal law known as the American Indian Probate Reform Act, or “AIPRA”. This law sets out specific requirements and procedures that only apply to Native Americans, and which must be followed in order to ensure that assets held by Native Americans can pass to the next generation the way a person intends.

Without an AIPRA-compliant estate plan, your money or trust lands may not pass to your descendants in the manner and proportions you desire, or may not pass to your descendents at all. The only way to be sure that your interests in trust lands end up being inherited by the people you want, particularly if you have small or fractionated interests in land or other assets, is to have a will that meets the requirements of AIPRA.

Creating an estate plan that complies with AIPRA will help you:

• Ensure your intended heirs are eligible to receive your interests in trust lands;
• Prepare a will that conveys your interests the way YOU want them to pass;
• Avoid the default provisions of AIPRA, such as transfers to single heirs and/or forced sales.

The first step for all Native Americans who seek to receive a payment under the Cobell settlement is to collect all of the information and documentation possible regarding your family’s ownership in Tribal lands and Individual Money Accounts. This information will be crucial in proving eligibility for payments. Even before the payments are issued, it makes sense to begin the financial planning that will ensure the money received is properly held for the family’s benefit. To discuss financial and estate planning and how to ensure your family’s plan will be compliant with AIPRA, you can contact Foster Pepper’s Native American Legal Services attorneys Duncan Connelly or Greg Guedel, via email through the links on their names or by phone at 206.447.4400.

Cobell Settlement Finally Becomes Law

Statement by the President on H.R. 4783

Today I have signed into law H.R. 4783, the "Claims Resolution Act of 2010." This Act, among other things, provides funding and statutory authorities for the settlement agreements reached in the Cobell lawsuit, brought by Native Americans; the Pigford II lawsuit, brought by African American farmers; and four separate water rights suits, brought by Native American tribes. While I am pleased that this Act reflects important progress, much work remains to be done to address other claims of past discrimination made by women and Hispanic farmers against the Department of Agriculture as well as to address needs of tribal communities.

I am also pleased that the Act includes authorities proposed by my Administration concerning Unemployment Compensation program integrity, to expand the ability of the Federal Government to recover from individual income tax overpayments certain Unemployment Compensation debts that are due to an individual's failure to report earnings. My Administration has been working to protect taxpayer funds through improved recovery of improper Federal payments, and the additional authorities in this Act will assist in that effort. In order to ensure that the intent and effect of these program integrity provisions are realized, my Administration is working with the Congress to correct an inadvertent technical drafting error in section 801(a)(3)(C), so that the provision can be implemented as intended.

BARACK OBAMA

THE WHITE HOUSE,

December 8, 2010.

 

House Approves Cobell Settlement, President Next

Following up on the Senate’s ratification, the US House of Representatives approved the $3.4 Billion Cobell Native trust settlement by a vote of 256-152. The legislation now goes to President Obama for approval and signature. Assuming the President signs, the matter will return to court for a hearing before D.C. District Court Judge Thomas Hogan “in accordance with federal court rules to confirm the fairness of the settlement, determine appropriate attorneys’ fees and to establish distribution of funds to the class members,” according to lead plaintiff Eloise Cobell.

One issue to be decided in the Court is the amount of attorney fees to be allocated to the lawyers. Under the terms of the settlement, lawyers for the Native American plaintiffs could receive up to $100 million. While the settlement is viewed as a victory by many Native advocates, there are concerns that many plaintiffs will receive small amounts of money, less than $2,000 in many cases.

Ms. Cobell has stated: “While the money is not as much as we believe we are entitled to, there was no end in sight to this litigation and the settlement will be recognized by Native people as an acknowledgment by the federal government that it wronged them by its mismanagement of Indian money and Indian lands.”

Following the settlement, the federal trust reform will likely proceed for years, as $1.9 Billion of the settlement funds are designated for a new Department of the Interior program to buy back fractionated lands. Interior officials have said the program will provide individuals an opportunity to consolidate and transfer divided ownership interests to their Tribal governments, where they will remain in trust for the benefit of Tribal communities. Individuals would receive cash payments for the transfers and, as an incentive, transfers would trigger government payments into a $60 million Native American scholarship fund.

Senate Passes Cobell Settlement Funding - House And Presidential Approval Still Pending

The United States Senate has formally approved legislation enabling the funding of the $3.4 Billion settlement in the Cobell trust litigation, an action that has been on hold for many months as Congress wrestled with health care reform and other issues.  For payments to finally begin flowing to the Native American plaintiffs in the Cobell lawsuit, the House of Representatives must also give a corresponding approval and President Obama must sign the final bill.

Secretary of the Interior Ken Salazar praised the Senate’s action:

“With the Senate’s approval of the Cobell settlement and the four Indian water rights settlements, this is a day that will be etched in our memories and our history books. The Cobell settlement honorably and responsibly addresses long-standing injustices and is a major step forward in President Obama’s agenda of reconciliation and empowerment for Indian nations. I am also deeply proud of the passage of the four water rights settlements that will deliver clean drinking water to Indian communities, end decades of controversy and contention among neighboring communities, and provide certainty to water users across the West. The progress we have made over the last two years in reaching critical Indian country settlements is unprecedented and I am hopeful that the House will soon act to pass these settlements as well.”

Another Deadline For Cobell Settlement Approval To Expire

Despite a July 9 deadline from the parties, approval by Congress of the landmark settlement in the Cobell v. Salazar Native trust asset case is not imminent.  The tax-related legislation to which the approval amendment was attached has stalled in the Senate, and the recent death of Senator Robert Byrd made passage of the bill by the latest deadline essentially impossible. 

A half-dozen deadlines set by the Cobell legal team have now come and gone, and the settlement is no closer to Congressional approval than it was nine months ago.  The deadline concept has no discernible impact on the members of Congress, and setting unenforceable deadlines appears to have become a waste of time.  A change in tactics is clearly needed, either through attaching the settlement authorization to legislation that is ready for near-term passage, or by calling on President Obama to utilize his political capital to push for Congressional approval.

Cobell Settlement Deadline Extended Again, Now 15 June 2010

Congress failed to act prior to the Memorial Day recess to approve the $3.4 billion settlement in the Cobell v. Salazar lawsuit, so the deadline has again been extended to June 15, 2010. This is the fourth extension of the deadline for Congress to approve the settlement. Although the House of Representatives voted to approve the deal prior to the deadline, the Senate did not.

Dennis Gingold, the lead lawyer for the Native American plaintiffs, previously said that if Congress did not meet the May 28 deadline that had previously been set, the case would proceed toward trial. However, the plaintiffs agreed to another extension in light of the perception that Congress is close to approving the deal.

The Senate returns to business on June 7, but a list of other items -- such as confirmation hearings for President Obama’s Supreme Court nominee – may be acted on first. Also, Vice Chairman of the Senate Committee on Indian Affairs John Barrasso (R-Wy) has expressed concern about aspects of the deal such as attorney fees and incentive awards for the lead plaintiffs, and may seek to have the deal modified in the Senate legislation.
 

Cobell Settlement - How Much Should The Lawyers Be Paid?

With the Cobell litigation settlement still awaiting ratification by the US Congress, another question has arisen – how much of the settlement funds should be paid out to lawyers?

The Cobell class-action lawsuit represents up to as many as 500,000 Native Americans who own property held in trust by the US government. The Department of Interior leases that land to others to farm or develop resources, and the Native landholders are supposed to have money generated by the land deposited into Individual Indian Money trust accounts, or IIMs. A federal District Court ruled in 1999 that the government had breached its trust duties, a ruling that was affirmed in 2001. The fight went on over whether the government had to provide an accounting to the IIM holders - the District Court ruled in 2008 that it did, which the appeals court reaffirmed last year.

The plaintiffs had originally sought $47 billion to compensate the affected Native Americans. The settlement signed in December 2009 allocates $1.4 billion to IIM holders; $2 billion is allocated to buy up fractionated lands from individual owners willing to sell; and $60 million will endow a scholarship fund for Native students.

The lead attorney for the plaintiffs is Dennis Gingold, a banking attorney who has been involved dating back to a 1992 meeting called by the first Bush administration in an attempt to sort out the trust money dispute. Gingold teamed up with lead plaintiff Eloise Cobell in bringing suit, and promised he would stick with her, even if there was no money to pay him. "Nobody in his right mind would want to do this," he told The Associated Press. "I thought it was important for my kids to understand that there are things worth fighting for." The14-year legal fight has included more than 3,600 court filings; 220 days of trial; 80 published court decisions; and 10 interlocutory appeals.

Some have questioned how much Gingold and his team of lawyers would receive in this settlement. Republican Sen. John Barrasso of Wyoming has proposed capping lawyer's fees at $50 million. Republican Rep. Doc Hastings of Washington sent a letter to Gingold saying it was reasonable to limit those fees so the Native Americans would receive more. Gingold and Cobell both say Congress doesn't have the authority to change the agreement, and that the proposed fee of just under $100 million would represent just 3 percent of the total settlement. "He has really uncovered the entire behavior of the United States government when it comes to managing Indian Trust assets," Cobell said of Gingold.

In addition to the legal fees, the Blackfeet Reservation Development Fund must repay at least $11 million in grants and loans from various foundations that helped fund the lawsuit. The settlement allows up to $15 million to repay those debts. The deadline for Congress to authorize the settlement and allocate the funds has been extended twice by the court. Cobell and Gingold are hopeful the settlement will be approved this time, but they say if the May 28 deadline passes without a vote, the deal could be terminated and years of additional litigation could ensue.

Is the Cobell Settlement Another Bad Deal For Native Americans?

In a pointed editorial in Indian Country Today, Angelique EagleWoman criticizes the $3.4 billion settlement between the federal government and the Cobell lawsuit's Native American trust account plaintiffs as “a scam”.  Ms. EagleWoman is a citizen of the Sisseton-Wahpeton Dakota Oyate of the Lake Traverse Reservation in South Dakota, is an attorney licensed in Washington, D.C., Oklahoma, North Dakota and South Dakota, and teaches Civil Procedure and Native American Law at the University of Idaho.

In her critique of the Cobell settlement, she notes that the normal rules for class-action lawsuits appear not to have been followed in the case, depriving individual plaintiffs of the right to “opt-out” of the case.  This prevented individual Native Americans from pursuing their own separate legal remedies for the government’s alleged mismanagement of Native trust accounts and lands. She asserts that when the $1.4 billion allocated to trust account payments is broken down among the number of Native Americans with claims, the per-person dollar amount averages out to a mere $1,000.00 – with some plaintiffs to receive as little as $500.

Based on the above, I call the Cobell Proposed Settlement a scam. As a Dakota woman, a lawyer, and a law professor, I am appalled that the U.S. government would attempt to push this through Congress. The U.S. government has imposed the trust relationship on Indian peoples in mid-North America. Surely, the highest fiduciary duty is owed to individual Indians whose lands are managed by the U.S. At every step, the U.S. government has used its attorneys to fight this simple action asking for an accounting. Here in the latest round, Interior wants to sneak through this proposed settlement and stop the accounting, the claims for mismanagement, and the rights of those who are most at the mercy of the U.S. trust responsibility. This would be on par with the bleakest eras of U.S. Indian policy such as removal, assimilation and termination. We need the eagle whistle-blowers to come forth in Indian country to stop this great wrong from being perpetrated by the U.S. government. – Angelique EagleWoman

Another Deadline Passes, But Congress Still Has Not Ratified Cobell Settlement

Despite the passage of three deadlines agreed to between the federal government and the plaintiffs, Congress has still not ratified the landmark $3.4 billion settlement in the decades-long Cobell Native American trust litigation. The previous deadlines for congressional ratification were December 2009, February 2010, and April 2010.

A new deadline of May 31, 2010 has been agreed to by the plaintiffs and the federal government, but it will likely be the last extension. “The district judge [Judge James Robertson, U.S. District Court for the District of Columbia] declared that he does not want further extensions of the December 7, 2009 settlement agreement, and he set a date certain in that regard,” says Dennis Gingold, lead counsel for the plaintiffs.

“That is a fair decision in view of representations made by the government that our settlement would be ratified by Congress on or before the end of December 2009. If the settlement agreement expires, plaintiffs will resume intense litigation against Treasury and Interior on all matters relevant to the case, including the renewal of matters that remain unresolved and the refiling of motions that have been dismissed without prejudice as a necessary predicate to settlement.”

The settlement agreement calls for the federal government to provide $1.4 billion in compensation for individual Native American trust fund beneficiaries, and $2 billion for a land consolidation program to be overseen by the Department of the Interior to buy back fractionated trust lands.

Podcast: Details and Depth On The $3.4 Billion Cobell Native American Trust Lawsuit Settlement

The University of California Irvine radio station KUCI’s legal program The Docket has aired an extended segment on the settlement of the landmark Cobell lawsuit between 300,000+ Native Americans and the U.S. government. Host Evan Simon interviewed Foster Pepper PLLC’s Native American Group Chair Greg Guedel regarding the background of the case, the details of the settlement, his discussion with lead plaintiff Eloise Cobell, and what work remains to complete the settlement and lay the groundwork for improved relations between the federal government and Native Americans. The interview can be accessed HERE, or via the Foster Pepper podcast page on iTunes.

Cobell Trust Lawsuit Resolved In Multi-Billion Dollar Settlement

Secretary of the Interior Ken Salazar and Attorney General Eric Holder today announced a settlement of the long-running and highly contentious Cobell class-action lawsuit regarding the U.S. government's trust management and accounting of over three hundred thousand individual American Indian trust accounts. Also speaking at the press conference today were Deputy Secretary of the Interior David Hayes and Associate Attorney General Tom Perrelli.

“This is an historic, positive development for Indian country and a major step on the road to reconciliation following years of acrimonious litigation between trust beneficiaries and the United States,” Secretary Salazar said. “Resolving this issue has been a top priority of President Obama, and this administration has worked in good faith to reach a settlement that is both honorable and responsible. This historic step will allow Interior to move forward and address the educational, law enforcement, and economic development challenges we face in Indian Country.”

“Over the past thirteen years, the parties have tried to settle this case many, many times, each time unsuccessfully," said Attorney General Eric Holder. "But today we turn the page. This settlement is fair to the plaintiffs, responsible for the United States, and provides a path forward for the future.”

Under the negotiated agreement, litigation will end regarding the Department of the Interior’s performance of an historical accounting for trust accounts maintained by the United States on behalf of more than 300,000 individual Indians. A fund totaling $1.4 billion will be distributed to class members to compensate them for their historical accounting claims, and to resolve potential claims that prior U.S. officials mismanaged the administration of trust assets.

In addition, in order to address the continued proliferation of thousands of new trust accounts caused by the "fractionation" of land interests through succeeding generations, the settlement establishes a $2 billion fund for the voluntary buy-back and consolidation of fractionated land interests. The land consolidation program will provide individual Indians with an opportunity to obtain cash payments for divided land interests and free up the land for the benefit of tribal communities.

By reducing the number of individual trust accounts that the U.S must maintain, the program will greatly reduce on-going administrative expenses and future accounting-related disputes. In order to provide owners with an additional incentive to sell their fractionated interests, the settlement authorizes the Interior Department to set aside up to 5 percent of the value of the interests into a college and vocational school scholarship fund for American Indian students.

The settlement has been negotiated with the involvement of the U.S. District Court for the District of Columbia. It will not become final until it is formally endorsed by the court. Also, Congress must enact legislation to authorize implementation of the settlement. Because it is a settlement of a litigation matter, the Judgment Fund maintained by the U.S. Departments of Justice and Treasury will fund the settlement.

“While we have made significant progress in improving and strengthening the management of Indian trust assets, our work is not over,” said Salazar, who also announced he is establishing a national commission to evaluate ongoing trust reform efforts and make recommendations for the future management of individual trust account assets in light of a congressional sunset provision for the Office of Special Trustee, which was established by Congress in 1994 to reform financial management of the trust system.

The class action case, which involves several hundred thousand plaintiffs, was filed by Elouise Cobell in 1996 in the U.S. District Court for the District of Columbia and has included hundreds of motions, dozens of rulings and appeals, and several trials over the past 13 years. The settlement funds will be administered by the trust department of a bank approved by the district court and distributed to individual Indians by a claims administrator in accordance with court orders and the settlement agreement.

Interior currently manages about 56 million acres of Indian trust land, administering more than 100,000 leases and about $3.5 billion in trust funds. For fiscal year 2009, funds from leases, use permits, land sales and income from financial assets, totaling about $298 million were collected for more than 384,000 open Individual Indian Money accounts and $566 million was collected for about 2,700 tribal accounts for more than 250 tribes. Since 1996, the U.S. Government has collected over $10.4 billion from individual and tribal trust assets and disbursed more than $9.5 billion to individual account holders and tribal governments.

The land consolidation fund addresses a legacy of the General Allotment Act of 1887 (the “Dawes Act”), which divided tribal lands into parcels between 40 and 160 acres in size, allotted them to individual Indians and sold off all remaining unallotted Indian lands. As the original holders died, their intestate heirs received an equal, undivided interest in the lands as tenants in common. In successive generations, smaller undivided interests descended to the next generation.

Today, it is common to have hundreds—even thousands—of Indian owners for one parcel of land. Such highly fractionated ownership makes it extremely difficult to use the land productively or to provide beneficial use for any individual. Absent serious corrective action, an estimated 4 million acres of land will continue to be held in such small ownership interests that very few individual owners will ever derive any meaningful financial benefit from that ownership.

Additional Information is available at the following sites: www.cobellsettlement.com.
The Department of the Interior website: www.doi.gov. The Office of the Special Trustee website: www.ost.doi.gov
 

Accounting Ordered For Federal Trust Land Mismanagement

Eloise Cobell (Photo by Karen Kuehn)

A class-action suit regarding mismanagement of lands affecting 500,000 Native Americans recently got a boost, as the U.S. Court of Appeals for the D.C. Circuit has ruled in the Cobell litigation that the federal government must provide an accounting for land royalties owed to individual plaintiffs.

The lawsuit was filed 13 years ago and claims compensation for Native Americans for land-related royalties from the profits of oil, gas, grazing, and timber – commodities that were taken from Tribal lands that the government has managed in trust for Tribal members since the 19th Century. In 2008, U.S. District Judge James Robertson ruled that an accurate accounting by the Department of Interior was impossible, and awarded the group of plaintiffs $455 million, a fraction of the $47 billion+ being claimed in the lawsuit.

The U.S. Court of Appeals for the D.C. Circuit disagreed with this result, and found that the lower court erred in eliminating the government accounting. Chief Judge David B. Sentelle said the decision essentially allowed the Interior Department "to throw up its hands and stop the accounting." "Without an accounting, it is impossible to know who is owed what," Sentelle wrote. "The best any trust beneficiary could hope for would be a government check in an arbitrary amount."

The D.C. Circuit panel acknowledged that the task is complicated and the Interior Department should focus on the "low-hanging fruit", dealing with clear cases where compensation is owed. "We must not allow the theoretically perfect to render impossible the achievable good," Sentelle wrote.
 

Cobell Appeals On Track For Spring Hearing

Appeals in the landmark case of  Cobell v. Kempthorne are likely to be argued before the D.C. Circuit Court of Appeals in the Spring of 2009.  The first briefs are to be filed on Jan. 21 and the last by April 7, 2009, with oral argument to be set at the earliest practical date thereafter.  At issue is a District Court order that awarded $455.6 million to thousands of Native American plaintiffs, who are pursuing claims that the government breached its trust responsibility to an estimated 500,000 Native Americans who had individual Indian Money Accounts managed by the Secretary of the Interior and the Secretary of the Treasury.  In terms of the number of plaintiffs and the dollars sought, the case has been called the largest class-action lawsuit in American history.  The plaintiffs have appealed on the basis that the award is far too small to adequately compensate Native Americans across the country for the loss of funds that were to be handled by the government for their benefit; the government has also appealed, asserting that the plaintiffs are owed nothing and that the federal departments are immune from suit.