Cobell settlement worth doing right, together

If Congress approves it, the settlement will consist of two classes: those of the historical accounting class and the new “un-litigated” class – the trust mismanagement class. The first class will receive $1,000 and any traditional safe-guard of opting-out will be denied this class. The new second class will receive $500 and a formula based on the top 10 sums that have filtered through a person’s IIM account.

Creation of the new class has been disturbing to many tribes and American Indians. The government will be authorized to pay more than $3.4 billion without even filing an Answer to the new Complaint of land mismanagement claims. What it means is that if you’re a Native person whose land has been flooded or damaged, timber destroyed, mineral royalties underpaid, soil poisoned, grass lands over-grazed by your lessee or if you’ve just been the victim of trespass, your claims will be settled for $500 and a formula amount that bears no resemblance to actual damages or loss.

Many American Indians think this entire settlement, although cloaked in righteous language, has been cobbled together for the primary purpose of permitting the Administration to fulfill a campaign promise. This settlement will permit the attorneys to claim as much as $100 million in attorney fees with a side agreement they are not even required to document the time spent on the case for the first fourteen years. Personally, I find it disturbing that one of the plaintiff attorneys served on the Obama campaign, transition team, and posted pictures of himself on Facebook partying at the White House holiday party around the time the settlement was reached, and now is rumored to be up for 10th Circuit Court of Appeals nomination. The lead plaintiff has been very upfront that some Indians will get hundreds of thousands of dollars and is on record as saying, “Some people will be very, very rich.” I think we know who some of those people might be. The litigation was filed in a Court of Equity where only an accounting (an equitable action) could be ordered and money damages could not be awarded. The seven attorneys will share in $100 million and the lead plaintiff will also be entitled to up to $15 million in “reimbursements” for “repayable grants,” surely an oxymoron even in Washington-speak, plus an undisclosed amount in “incentive fees for the four lead plaintiffs.”

As I wrote this opinion piece, I researched elements of an unfair class action lawsuit and found this information at www.classactionlitigation.com/faq. Elements include “any settlement where the release being demanded as a condition of the settlement is extremely overbroad and encompasses claims that were neither pursued in the class complaint nor subject to true adversarial litigation prior to the settlement and virtual nonexistence of discovery by the class counsel who proposes a settlement.” This surely meets those thresholds with no discovery, judicial record, or due process for the proposed second class.

Both the Affiliated Tribes of Northwest Indians and the Great Plains Tribal Chairmen’s Association are on record as wanting changes to the settlement. Sen. John Barrasso (R-Wyo.) has recommended many of these changes to address the fairness, restoration, due process, and other infirmities in the settlement proposed today and many Indian people appreciate his efforts in his leadership role as Vice Chairman of the Senate Indian Affairs Committee. Having worked for a Republican Senator, Sen. Daniel J. Evans (R-Wash.), who also served in this capacity, I know firsthand that Indian issues are not partisan in nature. If this is worth doing to the tune of $3.4 billion, then it’s worth doing right together.

Kimberly Craven is an enrolled member of the Sisseton Wahpeton Oyate. She is a former professional staff member to Sen. Daniel J. Evans (R-Wash.) when he was co-chair of the Senate Select Committee on Indian Affairs and later served as a legislative assistant to then Rep. Ben Nighthorse Campbell (D-Colo.).