"As a law professor who teaches civil procedure, I want to explain the due process problems with the United State government’s proposed settlement of the Cobell lawsuit. It was originally filed as a class action on behalf of Indian owners of trust lands seeking an accounting from the U.S. Under the federal rules of civil procedure, this type of lawsuit asking for an action – the accounting – is the type of class action where you are bound by the judgment. When a class action is filed requesting money damages as a remedy, due process kicks in at the highest levels and every person has the right to “opt-out” and file their own lawsuit. Everything has been twisted up in the Cobell Proposed Settlement.

The CPS has three levels of payments to individuals for this accounting action to total $1.4 billion. First, the four named plaintiffs are set to receive $15 million. Second, the historical class is tied up with the accounting claim and not allowed to opt-out and will only receive $1,000 for all of their claims dating back to the General Allotment Act of 1887. This violates the Federal Rules of Civil Procedure Rule 23(b) which mandates money damage class actions provide opt-out provisions. This turns the tables on the original filed lawsuit and binds those with the longest claims to a payment that cannot possibly represent what is owed to them or what should be the damages for mismanagement of their lands.

Third, the Trust Administration Class gets paid last, if there is money left from the $1.4 billion, with a bottom line payment of $500 and then a formula kicks in. This last group is considered a “money damages” group, and they can decide to opt-out and file their own claim. The historical class can be counted here for an additional $500 (totaling a whopping $1,500 for 120 years of mismanagement). The formula that may add to the $500 looks to the past balances of the Individual Indian Money account over 10 years and uses that as the amount to be compensated. So, if the U.S. government really mismanaged your account and put in zero dollars, then under the formula – you get $500 plus zero dollars."

Get the Story:
Angelique EagleWoman: The Cobell settlement is a great wrong to Indian people (Indian Country Today 5/7)

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

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