Kimberly Craven: Cobell deal wrong for Indian Country

Cobell | Opinion

Tuesday, March 16, 2010

In spite of the almost 14 years of litigation, more than $100 million spent by the government, the unresolved nature of the relief sought by the Cobell plaintiffs, the continuing dispute over the size of the class, and the great turmoil over this case, Congress is now being asked to rush to judgment on a settlement that vastly expands the original lawsuit. To remind folks, the original intent of the Cobell litigation, in which all Individual Indian Money (IIM) account holders became class action plaintiffs, was to receive an accounting of the IIM accounts. However, the proposed settlement goes beyond the litigation in three main ways.

• First, it seeks to create and certify an entirely new class of plaintiffs: IIM account holders who are owners of allotted lands who may have potential claims against the federal government for mismanaging land and natural resources. Then, it attempts to settle those claims.

• Secondly, the proposed settlement creates a $ 2 billion land consolidation program that would be run by the federal government and revert any unspent funds in 10 years back to the federal Treasury.

• Third, it creates a $60 million endowed scholarship fund. All of these three new objectives were created and defined without any consultation or input from the Tribes or Indian Country.

Here’s what I think Indian Country and the Congress must carefully consider:

• New Class: One thing is clear --- the Cobell litigation did not include claims for damages resulting from the mismanagement of individual Indian lands and natural resources. The proposed settlement and the legislation that Congress has been asked to approve unequivocally expands the case to include those claims and payment for any damages without a clear record of what these damages may entail and what the potential claims to compensate for these damages may be worth.
So if in the leasing of your land, it was damaged from overgrazing, minerals extracted without your permission, timber cut without payment, soil poisoned from agricultural chemicals or any other reason, you will be paid $500, plus a formula amount, to extinguish these potential claims. Attorneys for Ms. Cobell have stated to Congress that their research shows these damages to be unsubstantial. I requested the research they cited to support their claims on March 10th and am waiting to receive it.
• Land Consolidation Fund: The settlement proposes to create a $2 billion land consolidation fund that is run not by the Plaintiffs and not by the Tribes, but by the Defendants, the Federal Government. Yes, the Federal Government, the same people who brought us the Allotment Act in the first place, followed by termination, relocation and a myriad of other failed policies, are now going to be the ones trusted to resolve the fractionated ownership of Indian lands. And, after 10 years – yes, 10 years – any unspent funds revert back to the federal Treasury. That’s like a court awarding the guy that hit your car, the money to fix your car with the understanding that he is responsible for the repairs, but, after a certain amount of time, he gets to keep whatever he hasn’t spent on your car repairs. This makes no sense at all. This $2 billion MUST be set aside in a fund dedicated in perpetuity for the Tribes’ use to buy, consolidate, and repair their lands. The Tribes and Indian people must be making the decision about how best to consolidate our lands.
• Scholarship Fund: According to Dennis Gingold, Ms. Cobell’s long time counsel, the scholarship fund is to be a $60 million endowment when it is fully funded. But, even with a four percent interest rate, difficult to guarantee these days, the interest to finance these scholarships would be about $2.4 million a year. If every student were to receive $10,000 a year, the scholarship fund would be able to fund approximately 240 students a year. As we all know, attending a good university typically costs much more than $10,000 a year, sometimes up to four to five times that much. Why not dedicate more to the scholarship fund right up front? It is rumored that the attorneys will be paid up to a $100 million. Don’t our youth deserve at least as much as the attorneys? Let’s put at least $100 million in the scholarship fund and let’s have it funded fully right away, not after $10 and $25 rebates from the sale of land slowly accumulate to make the $60 million.
• Rush to Judgment: The settlement negotiators contemplated smooth sailing and prompt resolution of the vastly expanded case by Congress without hearings and without any discussion of the troubling aspects of this settlement. The single Senate oversight hearing raised more questions than the plaintiff and the Administration could answer and last week’s House oversight hearing brought to light even more troubling aspects of the settlement. For example, it still remains unclear how much money certain plaintiffs will receive, the magnitude of attorney fees, and which attorneys will receive those fees. It is similarly unclear what the potential value is of the claims for the mismanagement of our lands that this settlement seeks to extinguish.
• A Fair and Balanced Assessment: In an effort to sell the proposed settlement, the plaintiff and some of her attorneys have been visiting Indian Country to present their case in favor of the settlement. In Washington DC representatives of federal agencies that negotiated the settlement are also making their case. While we can appreciate these efforts, they are inherently flawed. The parties who negotiated the proposed settlement have a direct self interest in seeing that settlement carried out. The plaintiff and the attorneys will benefit financially and the federal government will no longer need to concern itself with claims that could arise from 100 years of mismanagement of our lands.
• Neutral Presentations: A neutral third party is needed – an organization that does not stand to benefit from the proposed settlement -- to consult extensively with people throughout Indian Country before we agree once again to sell the federal government rights to our land.

We can all respect the hard work, self sacrifice, and tenacity required to pursue the Cobell litigation for almost 14 years. But the proposed settlement goes far beyond the original lawsuit raising and resolving major issues of public policy related to rights of Tribes and Indian peoples. Now we have the parties who negotiated that settlement behind closed doors attempting to force Congress to a rush to judgment. If it was worth battling 14 years to get a proper accounting, it is certainly worth taking the time to fully understand what this settlement really means so Congress can hear from an informed cross section of Indian Country on the implications of this settlement from our perspective.

Kimberly Craven is a member of the Sisseton-Wahpeton Oyate and an Individual Indian Money (IIM) account holder.

Also Today:
Congress hears Cobell critiques; collusion charged (Indian Country Today 3/16)

Relevant Documents:
Agreement | Press Release | Q&A | Audio