Elouise Cobell, the lead plaintiff in the Indian trust fund lawsuit, will be answering questions about the proposed settlement to the case. Cobell is a member of the Blackfeet Nation in Montana. This is the third letter in a series of open letters I’m sending to Indian Country to answer your very important questions about the settlement of the Cobell class action lawsuit. Prior Ask Elouise letters can be found on the settlement website: http://cobellsettlement.com/class/ask_elouise.php. We also have a “frequently asked questions” section to answer many of the most common questions we’ve received. http://cobellsettlement.com/press/faq.php. I can’t answer every question, but I will try to answer as many as I can every week. Why are resource mismanagement claims included in the proposed settlement and how were they valued as part of the $1.4 billion amount of the settlement?
The settlement agreement covers claims that have been part of the Cobell case since it was filed on June 10, 1996, as well as other resource management claims that will be included in an amended complaint. Cobell has always demanded the correction and restatement of accounts and the restitution of profits unlawfully taken from individual Indian trust beneficiaries as a result of the government’s breaches of trust. Importantly, resource mismanagement claims necessarily are included in the accounting claim to ensure a full and complete accounting of the IIM Trust and the effective enforcement of plaintiffs’ vested and constitutionally protected property rights.
Individual class members may opt out of the settlement to pursue individual damages claims arising out of the government’s mismanagement of his or her natural resources. So while resource mismanagement claims are included in the proposed settlement, each class member has the right to decide whether his or her resource mismanagement claims should be resolved through the settlement.
Resource mismanagement claims are included for two principal reasons. First, the government insisted that resource mismanagement claims be included in the settlement. Otherwise, the government would not settle the case. The government stated that it is essential to “turn the page” so that it could build a better relationship with Indian Country, which it felt could only be achieved through what it says is a “global peace.”
Second, I and class counsel concluded that it is fair to include such claims so long as class members may elect to opt out of that portion of the settlement. Thus, if a class member wants to litigate his or her own resource mismanagement claims, that may be done readily and without compromise. But, because it is very expensive and highly unlikely that many beneficiaries have the financial resources to bring their own damages claims, the settlement allows class members who do not opt out of the settlement to be compensated fairly. For an overwhelming number of beneficiaries, settlement of historical damages claims for additional compensation not only is a good option, it is the only way many could be compensated for the harm done to them by the government. The opt-out provision provides each class member fair and meaningful options.
The settlement value of historical resource mismanagement accounting claims was negotiated by the parties. The total amount represents a fair resolution for plaintiffs’ accounting, restitution, and damages claims, considering the risks associated with indefinite litigation, including the absence of any time limit to reach final judgment in the case, the mortality rate of class members, and our understanding of the current litigation environment.
Who represented these claim-holders' interests during the settlement negotiations?
I and class counsel represented all class members during the settlement negotiations. In the fairness hearing, the district court, in accordance with due process principles, would determine whether the amount negotiated is fair and whether the class representatives and counsel have adequately represented the class as a whole. After almost fifteen years of intense litigation over the government’s mismanagement of individual Indian trust assets, I and class counsel have the most significant, relevant and practical experience with stated claims of the class. But, you need not rely solely on our judgment in that regard because such matters are determined independently and in accordance with governing law by the presiding U.S. District Judge.
How will the new class be identified?
There are two classes resolved by the settlement agreement: the historical accounting class and the trust administration class. Government records, to the extent available, will be used to identify members of the trust administration class. But we know that the government’s records do not identify or locate all members of the trust administration class. Accordingly, after ratifying legislation is passed, the parties, under the U.S. District Judge’s supervision, will conduct an extensive notice process to notify individual Indians of their rights and obligations under the settlement agreement. The notice process will also provide detailed information to Indian Country about the terms of settlement.
The settlement agreement also provides that class members may “self-identify” and apply for inclusion in the trust administration class. A contractor that is working with the parties will analyze all documentation provided by each such potential class member and, under the supervision of the United States District Court, will determine whether that person is a class member.
Is it fair and reasonable to disallow opt-outs from the historical accounting settlement when an historical accounting may be necessary for an individual who opts out of the trust administration class to pursue a resource mismanagement claim?
Yes. Any class member who opts out of the settlement will retain the right to what is called an “accounting in aid of judgment,” which is a procedural tool used in the U.S. Court of Federal Claims to help beneficiaries value their damage claims. The settlement agreement explicitly preserves the right of any class member who opts out of the trust administration class to “an accounting in aid of judgment.”
An additional important point must be noted. An individual may remain in the trust administration class, get paid in full, and still pursue the following claims against the government and third parties: breaches of trust arising after September 30, 2009; certain environmental damages; claims against contractors or other third parties; claims for correction of boundary or appraisal errors (and, for damages after September 30, 2009); water rights; health and mortality claims; and claims arising from leases active on September 30, 2009.
I heard that the Settlement Agreement expired on February 28, 2010. Does this mean that the settlement agreement has terminated?
No, the settlement agreement has not been terminated. The parties have agreed to extend the settlement through April 16, 2010. In my conversations with government officials, I have been assured that legislation will be passed within that period of time. I remain hopeful that legislation will be passed, but share your concerns that we continue to extend the time period with nothing to show for it. At this point, we must provide our allies time to advance the legislation.
If you are not currently receiving an IIM statement from the government, please remember to register for correspondence over the Internet or by calling the number below.
If you have a question, send an e-mail to: email@example.com.
Otherwise you can send me a letter to the address below. To expedite the
processing of your letters our contractor has set up a post office box in Ohio,
but I assure you this letter is coming from me and I will see your letters.
PO Box 9577
Thank you and keep your questions coming!
Release | Q&A
Deadline in Cobell trust fund case extended to
April 16 (3/1)
answers questions about settlement (2/22)
Elouise Cobell answers questions about settlement
Opinion: Questions remain about
Cobell settlement (2/9)
case settled for pennies on the dollar (2/8)
Opinion: Cobell trust settlement addresses land
Deadline approaches to
approve trust fund settlement (02/01)
Dennis Gingold: The facts behind trust fund
Bill Martin: No rubber
stamp for trust fund settlement (1/26)
Editorial: Congress must act fast on Cobell
Chickasaw firm secures
land consolidation contract (1/21)
Opinion: Indian trust beneficiaries finally getting
Interview with Elliott
Levitas, attorney for Cobell case (1/18)
Millions coming to Montana under Cobell
Congress gets more
time to act on Cobell settlement (1/6)
Editorial: A long overdue settlement to Cobell
Editorial: A long overdue
settlement to Cobell lawsuit (1/6)
Letters: A good settlement to Indian trust fund
Cobell urges Senate to move
quickly on settlement (12/18)
Free Indians of federal government control (12/18)
Column: Cobell deal not so great for Indian Country
Editorial: Cobell deal corrects
century-old old wrong (12/18)
Settlement and accountability in trust fund (12/18)
Witness List: Senate hearing on Cobell settlement
Mary Pember: The small picture
of the Cobell deal (12/16)
won't change much in Indian Country (12/16)
Editorial: Settlement in Cobell case is long
Editorial: Act quickly
to approve Cobell settlement (12/16)
Bill Means: Cobell settlement a rip-off for Indians
Editorial: At last a settlement
in Cobell trust case (12/15)
Dakota tribes back settlement in Cobell case (12/14)
Opinion: Indian plaintiff won't see trust
Column: Navajo woman
helped resolve Cobell case (12/14)
Editorial: Preventing future trust mismanagement
Editorial: Approve settlement to
Cobell trust case (12/14)
committee sets Cobell settlement hearing (12/11)
Washington tribes react to Cobell case settlement
Editorial: Land consolidation
program 'worrisome' (12/11)
Harlan: A new era in federal Indian relations (12/11)
Column: Cowboy banks got paid more than Indians
Editorial: Settling more than a
century of injustice (12/11)
Support settlement for Cobell trust case (12/11)
Editorial: Acknowledge past mistakes in trust fund
Editorial: A long overdue
settlement to Cobell suit (12/11)
welcomes settlement in Cobell trust lawsuit (12/10)
Cobell hailed as warrior as she returns to Montana
Billings Paper: Cobell deal
sends $27M to Montana (12/10)
Cobell settlement fair for Indian Country (12/10)
Editorial: Welcome settlement to Cobell trust case
Mostly praise for $3.4B
settlement to Cobell lawsuit (12/9)
Editorial: Act quickly on Indian trust fund
Twitter Recap of
Cobell settlement with Photos (12/8)
Statement by President Obama on Cobell settlement
Statement by Sen. Dorgan on
Cobell settlement (12/8)
Sen. McCain on Cobell settlement (12/8)
Statement by Sen. Tester on Cobell settlement
Statement by Rep. Rahall on Cobell
Statement by Rep. Cole
and Rep. Kildee on Cobell settlement (12/8)
'Major' announcement on Indian trust management
202 630 8439 (THEZ)
Top Stories1 Coeur d'Alene citizen Paulette Jordan makes historic run for governor
2 Native Sun News Today Editorial: A call for Lakota warriors at bison roundup in South Dakota
3 Red Fawn Fallis enters guilty plea for #NoDAPL gun shooting incident
4 Jason Small: The digital divide grows day by day on our reservations
5 Trump administration paves way for contested road to Native village
More Stories Mark Trahant: IHS not mentioned at Blair House summit
House Resources Committee schedules Cobell hearing
2017 | 2016 | 2015 | 2014 | 2013 | 2012 | 2011 | 2010 | 2009 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000