Cobell Settlement: Who Are the Real Winners?
While the Cobell Settlement, approved on November 24, 2012 by the U.S. Congress, allocated $3.4 billion to the plaintiffs in the landmark Indian case, the disbursement of the money is still in process. Recently the Washington, D.C. Court of Appeals denied the lead plaintiffs’ motion to have the Court reconsider its June 20, 2011 decision, which declined to further diminish the common fund benefitting class plaintiffs by granting the Class Representatives’ request to recover expenses. These expenses were presented as related to recoverable grants that third-party organizations had made to the Blackfeet Reservation Development Fund to finance this lawsuit.
The Fund owed $500,000 to the Lannan Foundation, another $1,210,598 to PricewaterhouseCoopers, $704,134.91 to Charles River Associates, and $130,000 owed to RSH Consulting. Not part of the reconsideration request was other moneys owed by the Fund, particularly the previously denied request for money to pay back the Indian Land Tenure Foundation to the tune of $496,393. The Court had first issued judgment on August 4, 2011. Almost two years later the plaintiffs filed the notice of supplemental information, which amended the motion for reconsideration to add a new claim for expenses relating to the Indian Land Tenure Foundation that was not raised in the original motion.
In my review of the Court of Appeals decision, it appears that each of the named lead plaintiffs agreed to reimburse these grants and costs once the case was settled. It sounds as if the four named lead plaintiffs agreed to reimburse the grants and other costs but believed that these costs would be reimbursed from the settlement fund. I’m not an attorney or a legal certified public accountant, but if I understand the “Order” correctly, instructions were provided to the lead plaintiffs by the Court during acceptance of the settlement agreement.
This whole closing out of the Individual Indian Monies account case and subject litigation costs is a troublesome issue. The settlement fund has been sitting in an account somewhere drawing interest. Meanwhile, almost a year ago IIM account owners in the Trust Administration Class found out what they are going to receive as settlement from the case for an anticipated August or September 2013 final payment. It is now March 2014 and who knows if payment is complete. They would have to adjust the individual payments based upon accrued interest minus the Trustee’s fee for administrating the fund account. Who knows?
The Bureau of Indian Affairs appears to have planned for using $285 million for administrative costs. BIA Land Buy Back offices have been created in various locations throughout the country. Also, in court filings the Cobell lead counsel has been fighting to keep the Native American Rights Fund, whose lawyers had once participated in the lawsuit, from collecting a share of the attorney fees.
And finally, no disrespect to tribes, the Cobell Settlement was meant to compensate individual Indian IIM account owners for the government’s inability to properly audit and account for every penny due IIM account owners. Tribes received a Tribal Trust Fund Settlement previously. But someone in their finite wisdom decided they should use $1.9 billion from the Cobell Class Action member’s award to fund the tribes to acquire individual interest using class action member’s award.
What? Sure, individual Indians can get some of the funds back through participation in Land Buy Back program provided they convey their interest in trust land to the tribe. The agreement doesn’t make sense. I don’t blame the tribes for taking the money and consolidating highly fractionated trust land interest. Never refuse funds for a program like this. But it will come at the individual Indian trust landowner’s expense.
The question that keeps rolling around in mind every day is, “Was the Cobell Settlement good for Indian country?” So far, my thoughts are that it wasn’t. It was flawed from the beginning. In 2007, Senator John McClain offered Cobell and her lead counsel $8 billion to settle. There was no bite because the lead counsel thought they could do better. Which is better? $8 billion with all payment going to Cobell Class Members, or $3.4 billion to be shared by Cobell Class Members, Tribes, and BIA?
Jay Daniels has 30 years of experience working in Indian country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at RoundhouseTalk.com.
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