Unconscionable Cobell

The Senate is asked today to give approval, sight-unseen and by unanimous consent, to a $3.4 billion “settlement” of a 14-year-old lawsuit brought by five individuals on behalf of all American Indians who have money or land held in trust by the United States. $2 billion of this amount will be earmarked to pre-fund an existing Bureau of Indian Affairs program for 10 years. The amount awarded by the courts to date after more than 10 trials is exactly zero dollars and zero cents. If approved by the Congress, and subsequently by the courts, the remainder of this money will be parceled out by formula in the form of reparations without regard to any individual’s actual losses or damages.

The only individuals who will be permitted to present actual clams are the attorneys and the five named individual plaintiffs. The five named plaintiffs are authorized up to $15 million as “reimbursements” for “repayable grants,” plus an undisclosed amount as “incentive fee awards.” The lawyers will be authorized to claim up to $100 million off the top, plus their “normal hourly rates” for as long as it takes to settle up with some 300,000 individuals, more than 83,000 of whose whereabouts are unknown. Much smaller mass settlement awards have taken more than 10 years to close out.

More than 100,000 of these individuals have account balances of less than $15. Each of them will receive a check for $1,000, or an amount more than 6,600 percent of their current balance. Those individuals with more than $1 million in their accounts will receive $1,000 also, or less than one-tenth of 1 percent of their current balances. There is neither rhyme nor reason to this scheme.

The $2 billion, pre-funded BIA program completely usurps the authority of the Appropriations Committees for 10 years. This settlement also confers jurisdiction on a federal district court that does not presently have it; rewrites the Federal Rules of Civil Procedure for this case to authorize the court to exercise the conferred jurisdiction; and presents the court not with a case or controversy as required by Article III of the Constitution, but with a pre-packaged financial program simply to administer. The sponsor of this measure in the Senate stated that no other committee (i.e., Judiciary) needs to review this measure before it is presented for a vote.

Proponents claim this settlement will “turn the page” on a dark chapter. Some who are familiar with the litigating history beyond this case of the lead counsel and lead plaintiff think this settlement is more likely only to fuel a war chest for subsequent, similarly entrepreneurial and extortionate litigation. No senator should think this settlement approximates “justice” that has somehow escaped the attention of the federal judges who have actually presided over the 14-year history of this case.

Richard A. Monette is associate professor of law at the University of Wisconsin-Madison. He is the former chairman of Turtle Mountain Chippewa, former staff attorney for the Senate Indian Affairs Committee, and former president of the Native American Bar Association.