Cobell detractors make final push

Rob Capriccioso
6/11/10

WASHINGTON – With the Senate expected to soon consider the Cobell v. Salazar settlement passed by the House before Memorial Day recess, a variety of tribal and individual interests are making efforts to have their concerns addressed.

Leaders of the Great Plains Tribal Chairman’s Association on May 26 added themselves to the chorus of detractors who have pitted themselves against the settlement as it now stands. The $3.4 billion deal was derived in December by Indian plaintiffs and the Obama administration. It would settle various royalty complaints Indians have long argued against the U.S. government.

Via a resolution, the chairmen expressed concern about lawyers’ fees, saying they should be capped by Congress at $50 million, adding that “incentive awards” to individual plaintiffs should be limited as well. There is widespread concern that individual plaintiffs will receive far too little under the proposal.

The chairmen also want the Department of the Interior to be required to consult with Indian tribes in planning, designing, and setting the priorities for the $2 billion fractional interest acquisition program under the settlement.

In sum, the chairmen support changes and amendments to “improve the settlement by allowing more funds for the individual Indian account holders, provide a better opportunity for fair treatment and greater consideration of the individual circumstances of individual account holders.”

The resolution was voted on affirmatively by eight tribal chairmen, and received zero votes against.

The Affiliated Tribes of Northwest Indians also recently approved similar desires for changes to the settlement. Their leaders unanimously adopted a resolution at ATNI’s mid-year conference that supports changes articulated in a letter to tribal leaders from Sen. John Barrasso, R-Wyo., vice chairman of the Senate Committee on Indian Affairs.

A lawyer for the Cobell plaintiffs and a member of Barrasso’s staff addressed tribal leaders and attendees during ATNI’s general assembly prior to their vote.

“Every tribal leader that I know, including myself, wants to see a settlement to the Cobell case,” said Brian Cladoosby, chairman of the Swinomish Tribe, regarding the resolution. “We just want to make sure that it’s done right the first time before Congress turns the page on this issue.”

If incorporated into the settlement, the desired changes would set aside a portion of the $1.4 billion settlement fund to ensure that Indian beneficiaries that suffered damages to their trust resources but that are not adequately compensated in the settlement as proposed have an opportunity to obtain compensation.

Also expressing recent concern about the settlement are descendents of the Freedmen of the Five Civilized Tribes, slaves once held by the Cherokee, Creek, Choctaw, Chickasaw and Seminole nations. Some are arguing that Congress should give them a share of the settlement.

Along those lines, the Harvest Institute Freedman Federation has asked that a hold be put on the settlement until the Freedmen are accounted for.

Reflecting on the latest concerns, Dennis Gingold, a lead lawyer for the plaintiffs, said that the overwhelming majority of individual Indian trust beneficiaries have told the lead plaintiffs that they strongly favor the settlement, and “that they don’t want the settlement agreement to terminate as it must if changes proposed by Barrasso and his staff are included in legislation.

“The strong support voiced by the 500,000 member Cobell class is the major reason that we agreed to another extension of the settlement agreement,” Gingold said.

“From time to time, interests of tribes and individuals conflict. For the few tribes who endorse Dr. Barrasso’s position, that conflict is self-evident. Nonetheless, it is important to note that tribes, by resolution and otherwise, including those who are members of the two referenced tribal organizations strongly have endorsed the settlement.

“Further, scores of tribes have benefited from precedents established during the 14 difficult years of the Cobell litigation. Wisely, tribes have followed the lead of [lead plaintiff Elouise] Cobell by filing their own lawsuits to enforce their unique trust claims against the United States government. …”

Gingold said more than 80 published Cobell decisions provide a solid foundation for many tribal trust claims.

Secretary of the Interior Ken Salazar and Attorney General Eric Holder on June 9 sent a letter to Senate Majority Leader Harry Reid agreeing that the Senate should pass the deal sans changes.

“The nature of any settlement agreement is that no one gets everything they asked for,” the officials wrote.

“In the lead-up to the agreement, issues were resolved through difficult, arm’s length negotiations, and the parties contemplated that the legislation would be passed as proposed. Under the settlement, if there is a ‘material change’ to the legislation that is necessary to implement the parties’ agreement, the settlement would automatically become null and void. Due to the difficulty and complexity of the negotiations, we believe that the proposed changes [by Barrasso] will negate the agreement, and thus, the resolution of 14 years of acrimonious litigation.”

Some critics, including Kimberly Craven, an Individual Indian Money account holder, believe the Senate could still modify the settlement.

“I know the Cobell settlement has a lot of well-intentioned allies, but senators are very independent in their thinking and actions,” said the Sisseton-Wahpeton Oyate member.

“I think there are lots of things that can stop this – nothing is a done deal in Congress these days until it actually gets done.”

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