Native American Legal Update : Native American Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

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

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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

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(AP Photo/J.D. Pooley)

A federal judge in Washington DC has approved a $760 million settlement in a class action lawsuit by Native American farmers and ranchers for discrimination in federal farm loan processing. The $760 million includes $680 million in damages and $80 million in debt relief. The settlement also calls on the U.S. Department of Agriculture to improve farm loan services. The lawsuit, known as Keepseagle v. Vilsack, alleged the US government denied Native American farmers and ranchers the same opportunities as others to obtain low-interest loans from the government.

Tens of thousands of farmers and ranchers are expected to receive compensation. The settlement sets out two tracks—one that provides the ability to recover up to $50,000 and another that allows recovery of up to $250,000 based on evidence of economic loss. The plaintiffs’ attorneys will split $60.8 million in legal fees. The Department of Justice had argued for a smaller award of $30.4 million in fees.

Judge Emmet Sullivan of Washington federal district court called the terms of the settlement historic, fair and appropriate. “This case has been hard fought for over 11 years.” The judge also said he was satisfied the plaintiffs’ lawyers addressed his concern over designating banks that will receive, and invest, the settlement fund before checks are cut to class to members. In court earlier this week, Sullivan asked the lawyers to assess whether more of the money can be deposited into Native American or minority-owned banks.
 

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In one of the largest monetary payouts nationwide in the Roman Catholic Church's sexual-abuse crisis, the Jesuits in the Northwest have agreed to pay $166.1 million to about 500 abuse victims as part of its bankruptcy settlement. Many of the victims who will be compensated are Native Americans and Alaska Natives, who were abused by priests sent to their boarding schools or isolated villages – often after the priests had been removed from other parishes for abusing children.

"It's a day of reckoning and justice," said Clarita Vargas, 51, of Tacoma, who was abused while a student at St. Mary's Mission and School, a former Jesuit-run Indian boarding school on the Colville Indian Reservation near Omak.

Vargas, a member of the Confederated Tribes of the Colville Reservation, remembers being abused by the Rev. John Morse at St. Mary's Mission and School, which she attended from second to eighth grade. Morse would sometimes lock her in a cellar, telling her she couldn't come out until she agreed to do what he wanted.

Vargas said nothing can compensate for having her childhood taken away. "My spirit was wounded. I can only say (the settlement) makes me feel better. And I can't explain it."

About 60 former students now say they were abused at that school, one of many across the nation that date back to the Indian boarding-school era of the late 1800s, when the federal government began placing Native American children, sometimes forcibly, in such schools to assimilate them into the dominant culture. The order has been accused of regarding reservations and remote villages as dumping grounds for problem priests.

Dorothea Skalicky, 42, of Lewiston, Idaho, was abused from the ages of 6 to 8 by the Rev. Augustine Ferretti at Sacred Heart Church in Lapwai, Idaho, on the Nez Percé Reservation. Ferretti has since died. Ferretti "was kind of a grandpa figure" who kept dolls and toys at the church, she said. "He would encourage me to come and play." Skalicky told no one about her abuse for years. "My family liked him," she said. About two years ago, Skalicky read a newspaper account of a woman who had been abused by Ferretti, and she started crying. Her husband asked her what was going on. It was the first time she'd ever told anyone about what had happened to her. "The biggest thing that really pissed me off was that Father Ferretti had done this — allegedly, had done this before," she said. "And he was put on the reservation because it's a reservation. Maybe the thought was: Little Indian girls would not say anything."

"Because of these settlements, hopefully, (the church) is making substantial changes to prevent future abuses," she added. "That's the big thing."

Two reviewers selected by a victims' committee — former U.S. attorney Kate Pflaumer in Seattle and retired Superior Court Judge William Bettinelli in San Francisco — have begun evaluating each sexual-abuse victim's case to decide how much each person will receive. Factors they will consider are severity and duration of abuse and how people have since done in their lives. Those who suffered physical abuse will go through a separate process. The victims are expected to get their checks sometime later this year. It's not known exactly how much of the $166.1 million settlement will go to the victims' lawyers, but typically in such cases their fees are about 33 to 40 percent. About $6 million of the settlement is being set aside for victims who may come forward in the future.

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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.

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(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.

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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.

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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.”

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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.

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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.
 

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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.

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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

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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.

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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.

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