An Open Letter to Kimberly Craven, Esq., on the Appeal of the Cobell Settlement

Dan Jones

To attempt to appeal the Cobell settlement decision as unfair was an honorable and brave thing for you to do as far as I am concerned. Not a very popular position in the face of the government announcing they intend to blast money across Indian country with cannons. That’s the government’s strategy for hiding accountability.

After reading your appeal and the press around it, let’s start with the attorneys who were representing us in Cobell. They sent your address and phone number to as many of the 500,000 class members as they could, saying they should ask you what your motives were in appealing. Was that a new low, as reported? Your appeal would limit the attorney fees to $50 million instead of the $235 million they will receive. That seems fair to me for people who basically lost the case. Was there a conflict of interest in this case as the attorneys had full control of the settlement? As you ask, “Why was the case settled for $3.4 billion when there was an offer by the government for a 7 billion dollar settlement four years ago?” Was it that the attorney fees were limited in the larger settlement? Your appeal speaks of the fairness of the attorneys taking so much of the pie: “This is especially true here, where class counsel brought litigation they claimed was worth tens or even hundreds of billions of dollars, but settled for pennies on the dollar: that is a loss, not a win, and class counsel is not entitled to a windfall for their lack of success.”

Your appeal also says this case is unfair because the U.S. hid the fact that people had the right to opt out. You stated, “The notice did not give class members a fair opportunity to opt out. The notice failed to provide a meaningful opportunity to the sprawling trust administration class to knowingly exercise an opt out right because that notice did not disclose the additional rights granted to opt outs.”

You made it clear the reason the government didn’t want people to know they can opt out was because if enough people did, the whole settlement would be voided. The government has to do individual accounting for each person who opts out and sues the government on their own. That’s how this whole thing came about in the first place: The government not being accountable for individual Indians.

The historic accounting of the opting-out factor would have been a very important option to my tribe and us as individual IIM account holders. The Ponca have been submerged in the oil business starting in 1918. The oil barons tied up contracts approved by the Bureau of Indian Affairs that were called “perpetual leases” with most of our grandparents. Many who spoke little or no English and signed agreements that froze the amount of our own oil at a single price forever, at 1/8 of 25 cents per barrel. At that time a barrel of oil was going for 0.66 cents. So about 3 cents per barrel is what my Grandmother, Mother and Father received until about the 1970’s when those contracts were deemed unethical. We watched our white neighbor’s progress and becoming very well off from their oil royalties as their payments grew with the price of oil but not ours. Just think the government used tax payer money to give us hand outs while they gave our oil profits to the oil companies. We could have used our own resources to improve our lot in life but instead we stayed in poverty. Unfair hell, that’s immoral.

Another point you make is how unfair it is that the class action treats everyone the same, using the example used of “Allottee 1997.” Because of a mistake, his oil revenues went somewhere else from the high production wells on his land back in the 1930s. Unaware of this, his son received nothing his whole life. The son should have been worth millions from his percentage but now will only receive the same as someone who only owns a fraction of a percent of unproductive lands. A historical accounting would have corrected that.

But this gets to the point. As one who lives at home in Oklahoma I can tell you people are hurting for money now. There has not been a time when we weren’t, but today with the economy things couldn’t be worse. My people are counting on that money and counting the days. Their general feeling is they know they are getting screwed. I would say now another appeal would create a fire storm across my reservation as it is a tender box of depression now.

This is not just about being cheated out of our resources for many of us. It’s about the horrible side effects that oil production has brought to our lands. The environmental consequences and the health issues we face today because of it. Nowhere did this suit even address those issues. We have paid a dear price for the theft of oil from our lands and none of it has been fair or has in anyway been addressed by this case. At best I would suggest to you “For the sake of our history if nothing else.... don't let it be HIS story” I truly believe from what you know about this case the only way you will find any justice for us is to write a book about it, for the real record and for the world to see what the United States has done to us once again.

These are my words of encouragement.

Dan (SaSuWeh) Jones is the former chairman of the Ponca Tribe of Oklahoma. He is a filmmaker and former vice chairman of the Oklahoma Indian Affairs Commission, appointed by former Oklahoma Governor, Brad Henry.

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husbandofmoonlight's picture
Once again 'our cousin' "SaSuWeh" has made an excllent point in every phrase and word; and especially with the words "for the world to see what the United States has done to us once again". Until "all" of "Native America" since in reality WE 'all are cousins'---linked by a common ancestry/DNA--- stand in unity as a 'family' would AND should; against the criminal occupying nation of the USA---the same results will occur over and again. I personally was poisoned over twenty years ago by a "contaminated well"---left behind on land that had been "alloted" to one of our family members;then polluted by the 'oil patch' when some 'mental wizard' back in the late sixties decided it would be 'real clever' to inject industrial waste into a 'dry hole' that had been drilled 40 years before---in one of the "booms". The company that had originally drilled the well as also the company that had 'injected the waste' were no longer in 'bidness'----and no one would accept responsiblity. I survived (of course) but I lost several very good Horses---and 'almost' my health---all over money that had been "pissed away" by Okies/Oil Companies/Occupiers and other exploitation venues on what seems to be 'nothing much more than 'stuff' that fills junk yards and land fills now----and the earth and even the water UNDER the ground--- they left behind ----is poisoned and polluted. Without 'true accountability' for their actions most people are willing to do whatever they deem they need to ; to fill their own greedy intentions. When Native America stand in unity; they will be able to 'enforce accoutability'; and these things will be referenced in 'text books'--as "historical events"--and used as the negative examples they should be. Instead they are "news reports" now and simply a repetition of history's mistakes. Dan Jones and others are making the result of Native America's disunity a lesson for the future. Our advise: listen, and heed the words of experience, making mistakes is natural; repeating them is counter to survival and in reality------------- really stupid. The "legal field" is the absolute worst offender. Thanks for your time. Husband of Moonlight
nightrain's picture
And meanwhile, Cobbell and elders like her are dieing without seeing a red penny. "Honorable and brave". Um, not so much, IMO.
bertkaulaity's picture
Waiting for the book to come out, aho. When we were small I can still hear mom calling the lease man roger the dodger during the late sixty, we are so glad someone is getting information out there!!
gsevalikova's picture
I'd like to direct your attention to (sheeple.com) to warn everyone tha there are viruses and malware that could cause a collapse of the US banking system called a Pallida-Narrow a version of Stuxnet,Flame,and Duqu. Peple need to research LIBOR scandal to see for themselves, By the way, if my own family had known of the US history regarding natives and blacks, we'd have gone to Switzerland instead. They are moneylaunderers but that is it. We love america because of post WW2 personal experience, but finding out akll these things is beyond shocking! DON'T ever make the mistake of thinking your only enemies in America are whites,you know. Fatal error!! Overseas there are old foes who want US for themselves and they would kill you off,also.
gsevalikova's picture
While thinking about the Cobell Settlement,possibly others like it in the future, i came upon something that could affect this situation. The Libor scandal, which started in London,England and spread from there is causing alarms about collapse of the US banking system(london-interbank-offered-rate) please Google "libor scandal" while you can before it disappears. Some Democrats like carl Levin and Jack Reed are demanding AG Holder file criminal charges against the bank affiliates here . Mitt Romney has taken $75,000 US from bank executives from Brit banks( The Nation)check it out.
angryduck's picture
Yes, Ms. Craven and the others may be brave but they still dishonor Elouise and her 15 long years of hard work. It's hard to please everyone in a situation like this. She will remain a hero for taking on a corrupt government. Time to move on and remember the other 496 members involved in this case.
angryduck's picture
Sorry, correction, 496,000 members.
michaelmack's picture
It is difficult to write about this issue, because the history that created it remains unresolved and largely ignored. I have great admiration for Eloise Cobell for taking on the giant - even though she was fully aware that, at best, the U.S. government would never, and probably will never be FULLY accountable for this mess it created. She at least attempted to force the government to make an effort to provide some accountability for its responsibility in this sorry history. She understood that left to its own devices, the U.S. government alone would never seriously take on the issue. I agree with Jones that this case should not be regarded as a "done deal", however it ultimately works out, but rather it should be a starting point for more through examination. Indian Country has yet to learn that, as Cobell did, Indian Country has to INITIATE challenges to the American status quo, rather than waiting for them to act. It seems as if most people in Indian Country, still rely on some vague notion that the U.S. government will treat us justly, eventually, and in the meanwhile we just stay quite, and hope they change. Cobell knew that this type of thinking only made things worse, because the U.S. government will not change how it treats us - until WE force it. Unless we get educated on these issues, such as how allotment came into law, how the law was maintained, who profited from it, how it caused fractionization, etc. etc. - all of which happened decades before the Cobell case was initiated – we will remain ignored. We do whatever future Indian Country has a tremendous disservice by not getting educated about it, not becoming vocal about both within and without Indian Country. For example, tribal schools and organizations should spend less time and effort teaching about George Washington, Abraham Lincoln, Easter, thanksgiving, and vampires, and more about treat-making, treaty-breaking, etc. so that Indian youth grow up with a knowledge of the their basic history. My experience is that even small kids become interested if the information is presented in a creative informational way. One of the major factors Indian Country generally overlooks is that white America looks at our/their history and thinks everything is "A - ok", that everything has been worked out and now we're all just one big happy family. Now they think we're all casino rich, so they don't understand why we have any problems. It's up to Indian Country to educate them, particularly the educators and law-makers otherwise.
tx2shields's picture
well once again someone is beating a dead horse...the settlement is over & done with! people knew they had the option to opt out of the class action lawsuit. it was published a long time ago. i knew back in 2000 that i didn't have to be included in the cobell suit...also tribes had known this too. that's why at least 41 tribes have settled with the current administration. if craven knew that she was getting bilked out of money why didn't she bring forth her own personal lawsuit? there's no way accurate accounting can happen if the records are lost or destroyed, which i agree something bad happened...but from this point on, now historical accounting can happen. whether it will or not who knows? but just let everyone get paid! okay?...
judyquinn's picture
TODAY IS THE DEADLINE: Even though I am in need as well as many others I know, I am finding the more I read of her reasoning for appeals I am finding I am in agreement with what she is trying to get across to the courts. I also agree with this letter, if we walk away now we will have given up all of our rights for Justice for All... If Ms. Craven had opt out we could be worst off tomorrow and not just broke as we have always been. I am also concern that there are no links her documents from the trust site, that our lawyers are pushing for us to agree with... ONE SIDED, yes I myself don't care much about being left in the dark and treated like a mushroom, I feel like I am being fed a lot of shit, because they really don't want us to know... Try finding good info on this case and what is right or wrong with it... I did not opt out either, it had already been decided by the time I found out about it in the form of the letter asking if I want to opt out. I believe we should have taken control of our land rights and paid the government the taxes due as everyone else does. No One will look out for us as we can look out for ourselves. We sold out once for a string of beads should we repeat this bit of history again... Has there ever been any options? No, there has only be force used to make us conform in the past and our ignorance to greed allowed it to continue today... The biggest mistake the government made was allowing the "Savage" to become educated. Facts are they took advantage of those they had already beaten down mentally and made to feel caged and left for worthless. There is more at stake here than just money there has been an injustice done to other humans the US Government still keeps caged today with their poorly managed allotments from what is our already and allowing it to be swept under the rug now wont change the fact of how my Grandparents were treated as well as all the others who will not see the rewards of a new day as well as I possibly. If Ms. Craven wins her appeal and more years are added, hopefully my children will gain the rights that are rightfully theirs... If I have not been mislead or misunderstanding anything, Ms. Craven is fighting for our rights not be given away as they will if we except this settlement. She took on a hard road and has been the victim of hatred for our needful selfishness. Even I was angry when she first appealed, So I gathered more info and wish I could find more. I wish she was more clear as to what her final goal for keeping our rights and if possible take control of what is rightfully ours to start and now that we are Starter thanks to education we can manage our own... Ms. Craven should of had a website in spite of the "hate fan club" she could have made a page just for that, she may learn some ideas of ways to help in the future. I wanted to learn more than I was able to find, it is like she wants to walk this mile alone. I do have to question why Ms. Craven waited to start making appeals until after Ms. Cobell passed. Not to have sound ungrateful for Ms. Cobell journey and her major roll in getting the ball rolling. I think she was a brave woman also for doing what she did. She won that case and proved that the US Government cannot be trusted to have anyone who does not work there best interest at heart... Even though it is still open they had to give in to the facts. I am not taking anything away from Ms. Cobell or intending to dishonor her by any statement I have made or by considering Ms. Craven's idea. Finding out about this after it was said and done basically and not having an option for voicing my opinion other than an appeal but being left in the dark like that and now finding out more info as the days pass. At no ones fault other than my own I guess, for not taking the time to keep up on current events and I am not so sure she had everyone at the best interest either. Or was she allowing the lawyers to make her take a back seat in reaching a settlement for just money... This is how I stand today with what info I have found and feelings of my personal input. It is not just about the money for me I am broke today and the amount quoted to me is not going to change that, I have gotten use to picking up pennies and saving them for later. I am hoping that this is where this appeal is heading for my children s future and others. Please if you will seek info first before showing anger. Lets not act out of desperation at this point... The clock is counting down... Will she make it in time, today my pockets hope not, but my mind hopes she will if it means keeping our rights and justice for all...