Senate holds up Cobell Settlement Once Again!

Senate will approve 700 Billion to Wall Street in a matter of weeks but when it comes to settling-up with Native Americans for less than 7% of the money owed to them for oil, gas, timber and grazing leases, try 14 years.

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Statement by Elouise Cobell
Lead Plaintiff
Cobell vs Salazar
BROWNING, Mont., July 23 — On July 1, 2010, the House of Representatives passed HR4899 – Disaster/War Supplemental Appropriations. It included legislation to approve the Cobell v. Salazar individual Indian trust settlement.  Late last night, however, the Senate stripped from HR 4899 all domestic spending provisions, including our settlement legislation, notwithstanding that the domestic spending provisions are fully paid for.  The stripped version of the bill returns to the House for further consideration.  This is the second time in two months that the Senate has failed to act on settlement legislation although it is fully paid-for and had been expected to pass if put to a vote.
As a result of Senate action, legislative approval of our settlement, once again, is in the capable hands of House leadership, which steadfastly has supported us since settlement with the government was reached on December 7, 2009.   We have great confidence in Speaker Pelosi and Majority Leader Hoyer and believe that they will continue to ensure that 500,000 individual Indians finally are provided justice that is long overdue.  We are depending on them.

Reflections on the Cobell Settlement and Indian Land Consolidation

December marked an important milestone for Native American’s across the country. In a landmark 3.2 Billion dollar settlement, the Obama administration finally ended a 14 year class-action lawsuit brought against the U.S. Department of Interior by some 300,000 Native American land owners. In their suit, Native Americans argued that the government failed to pay them nearly 42 billion dollars in lease revenue collected by the government over the past 120 years serving as their self-appointed Trustee. After years of stalling with disingenuous accounting, racking up millions of dollars in legal fees charged to tax payers, withholding and even destroying evidence, a crime for which the Department of Interior was held in contempt of court, the government finally conceded and agreed to settle with the Plaintiffs. According to the lead Plaintiff, Eloise Cobell, “there is little doubt this is significantly less than the full amount to which individual Indians are entitled…Nevertheless we are compelled to settle now by the sobering realization that our class grows smaller each year, each month, and every day, as our elders die, and are forever prevented from receiving their just compensation. We also face the uncomfortable, but unavoidable fact that a large number of individual money account holders currently subsist in the direst poverty, and this settlement can begin to address that extreme situation and provide some hope and a better quality of life for their remaining years.”


Village Earth has reported regularly on the developments in this case for several years now as we are working at the front lines of helping families remove their lands from the Government’s “broken” leasing system, a term used by Larry Ecohawk, head of the U.S. Bureau of Indian Affairs in a speech at last week’s Intertribal Agriculture Conference in Las Vegas and attended by Village Earth. While we do not challenge the Plaintiffs for their decision to accept such a low settlement, we do however find it deeply unsettling that desperation was a factor, a desperation largely born from the same injustices this case was all about. According to the Plaintiff’s website, the settlement guarantees Native Americans a “$1.4 billion Accounting/Trust Administration Fund and a $2 billion Trust Land Consolidation Fund. The Settlement also creates an Indian Education Scholarship fund of up to $60 million to improve access to higher education for Indians.” Based on our experiences working with families and the Tribe assisting with the consolidation and utilization of fractionated interests were are particularly concerned with the proposal for the $2 Billion dollar Trust Land Consolidation Fund. According to the settlement agreement, this program will operate in accordance with the Land Consolidation Program authorized under 25 U.S.C. §§ 2201 also known as the American Indian Probate Reform Act (AIPRA) and Indian Lands Consolidation Act (ILCA). According to the settlement agreement and consistent with the AIPRA the purpose of  the Trust Land Consolidation Fund shall be used solely for the following purposes: (1) acquiring fractional interests in trust or restricted lands; (2) implementing the Land Consolidation Program; and (3) paying the costs related to the work of the Secretarial Commission on Trust Reform, including costs of consultants to the Commission and audits recommended by the Commission. An amount up to a total of no more than fifteen percent (15%) of the Trust Land Consolidation Fund shall be used for purposes (2) and (3) above. The general impact of ILCA programs is a transfer of ownership of land from Individual Indians to Tribal Governments. While this may be an effective strategy for some Tribes, our experience working at the grassroots level on the Pine Ridge Reservation has shown us that many people on the reservation feel that the ILCA exploits the desperation of individuals, tempting them with short-term monetary gain but then leaving them with little long-term benefit. It has also caused tensions within families who feel their allotted lands, even though they are fractionated, should be retained for the benefit of future generations. Despite ILCA, other options exist for individuals, families, and communities to consolidate their lands including Tribal land exchange programs, partitioning, gift deeds, and creating wills however, right now, there is virtually no support for these programs. In fact, our research on Pine Ridge demonstrates that the Federal Government is a primary bottleneck in the whole process. Furthermore, when you consider that, in the case of the Pine Ridge Reservation, all Tribally owned lands have been tied up in loans to the Federal Housing Administration for the past 25 years, this has forced the tribe to lease their lands out, oftentimes to non-tribal members, greatly limiting their ability to develop these lands in a way that will benefit their members. A real solution to repairing the injustices of the past would look at each reservation in a holistic way and consider these differences. ILCA consolidation may not be the best option for each Reservation in those cases, supporting grassroots consolidation efforts my have a greater impact on promoting self-determination and development. Furthermore, it makes little sense to promote tribal and consolidation when at the same time you have the Tribe’s hands tied-behind it’s back with debt to where they benefit very little from those lands.

Settlement Agreement Reached in Cobell v. Salazar

Taken from: http://www.cobellsettlement.com/

A proposed Settlement has been reached with American Indian Plaintiffs in a long-running class action lawsuit against the federal government for mismanagement of individual Indian trust accounts and trust assets. The Settlement is with the Secretary of the Interior, the Assistant Secretary of the Interior-Indian Affairs, and the Secretary of the Treasury. The individual Indian trust accounts relate to land, oil, natural gas, mineral, timber, grazing, water and other resources and rights on or under individual Indian lands.

The class action lawsuit claims that the federal government failed to fulfill its financial responsibility for the individual Indian trust resulting in the loss, misdirection, and unaccountability of several billion dollars of monies held in trust or which should have been held in trust by the United States for Indian beneficiaries in Individual Indian Money (IIM) accounts.

Under the terms of the Settlement in Cobell v. Salazar, the federal government will create a $1.412 billion Accounting/Trust Administration Fund and a $2 billion Trust Land Consolidation Fund. The Settlement also creates a federal Indian Education Scholarship fund of up to $60 million to improve access to higher education for Indian youth. The Settlement also includes a commitment by the federal government to appoint a commission that will oversee and monitor specific improvements in the Department’s accounting for and management of individual Indian trust assets, going forward.

The Agreement creates two groups of Indians eligible to receive Settlement money – the Historical Accounting Class and the Trust Administration Class. Details of who is eligible follow.

What will IIM Account Holders and other Class Members get?

Most individual Indian beneficiaries are included in both Classes and will receive no less than $1,500 under the terms of the Settlement. There will be a number of distributions:

Each member of the Historical Accounting Class will initially be paid $1,000 after Final Approval of the Settlement. Members of the Trust Administration Class will be paid a “pro rata” share of the $1,412 billion Fund starting with a baseline of $500. This means that each Class Member will get at least $500 and then a percentage of the remaining Fund based on the number of individuals sharing in the Fund. Certain costs, reserves and attorneys fees will be paid out of this Fund before distribution of the pro rata share.

Indian Trust Lead Plaintiff Expresses Disappointment on the Appeals Court Ruling

From: www.indiantrust.com

WASHINGTON, JULY 24 — Today’s ruling by the U.S. Court of Appeals for the D.C. Circuit in the Indian Trust class action lawsuit will prolong what the court has said repeatedly has lasted too long. The case is now in its 14th year.

Elouise Cobell, lead plaintiff for the class of 500,000 individual Indians, expressed disappointment in the ruling, commenting that “it is difficult to understand why the court is reluctant to enforce binding trust law and controlling Supreme Court precedent and ignore the government’s mismanagement of the Individual Indian Trust.”

For hundreds of thousands of Indians, including children, the elderly, and the infirm who depend upon their trust funds for food, clothing, shelter, and health care, this ruling means that many more years will pass before they can hope to secure trust funds that the government has withheld unconscionably and in breach of trust duties that it has owed for generations.

The appellate court reversed the trial court’s $455.6 million award in restitution, stating that the district court may not relieve the government of an accounting duty as a matter of law. However, at the same time, the court cast aside settled law, reversed its earlier decisions, and decided that the government need only account for funds that it can identify easily, those that the court described as “low hanging fruit.” Moreover, the court has accepted as good enough for government work its systemic trust records destruction and suggested that it would be unfair to force the government to perform and accurate and complete accounting because its historical breaches of trust now make that accounting too expensive to render.

The Cobell plaintiffs will continue to seek justice in this case, no matter how long that will take. Accordingly, further appellate review will proceed in addition to a request for the district court to place the IIM Trust into receivership to ensure that the beneficiaries their assets finally receive the protection they are owed under the law.

For additional information:

Bill McAllister

703-385-3996

202-257-5385 (cell)

INDIANS ASK APPEALS COURT FOR FOR JUSTICE

From: www.indiantrust.com

WASHINGTON, May 11 — A federal appeals court was told today that it should offer 500,000 Native Americans some form of “rough justice” as a result of the federal government’s acknowledged mismanagement of their trust accounts.

Attorney Dennis M. Gingold, who represents the Indians in a 13-year-old class action lawsuit, said justice for the Native American trust account beneficiaries cannot be complete because so many records of what happened to their trust lands and funds are missing.

That means some form of “rough justice” is required, Gingold said, adding that any resolution of the case must be fair.

“If not, we’ll all be here another 13 years,” Gingold told a three-judge panel for the U.S. Court of Appeals for the District of Columbia.

Government lawyers said they want the case declared at an end and the Indians given nothing at all. Alisa Klein, an appellate lawyer with the Justice Department’s Civil Division, argued that the Indians are due nothing.

Plaintiffs opposed an llth-hour effort by the Osage Tribe to intervene in the case and take control of its members’ individual trust accounts. Plaintiffs have fully represented the interests of individual Osage tribal members from the outset of the litigation in 1996.

Individual Osage tribal members are clearly part of the lawsuit, because their trust accounts were always classified as the property of individuals and not the tribe, Gingold told the court.

After the hour-long hearing, Lead Plaintiff Elousie Cobell, a member of the Blackfeet Nation from Browning, Mont., said that the government continued to mislead the appeals court about how the trust accounts have been managed. The accounts have never been audited, she noted, pointing out that the lower court had held an accounting remains “impossible.” “I am very optimistic,” she told reporters. “The court asked very good questions.”

As for the idea of “rough justice,” she said: “We all understand what’s going to happen.” She said any sum that is finally approved by the court will be distributed after additional hearings and under court supervision.

The three-judge panel gave no indication when it would rule.

The Indian Trust was established by Congress in 1887. It included millions of acres of valuable lands in the West owned by individual Indians, whom lawmakers believed could not manage those lands. That job was given to the Interior Department, which has repeatedly acknowledged in the lawsuit that it mismanaged the trust accounts.

For additional information:
Bill McAllister (media calls only)
703-385-6996

$455 Million, Adding Insult to Injury

Federal District judge Robertson recently ruled that the U.S. Government owes Native Americans $455 million dollars as “proper repair” for the estimated $47 billion that the Government never paid individual Indians for income generated from over 120 years of managing oil, gas, grazing, timber, and mining leases on their lands. This ruling came after nearly 16 years of litigation in the largest ever class action lawsuit against the federal government – representing some 500,000 individual Indians whose lands were being leased out by the federal government. On Tuesday Eloise Cobell, the lead plaintiff, appeared on Democracy Now! to announce her intent to appeal this decision. In the words of Mrs. Cobell:

“The opinion is both profoundly disappointing and difficult to understand. It disregards unchallenged evidence of record, law of the case, law of the DC Circuit since 1895, and settled law as set forth by the United States Supreme Court. 

Among other things, duties and responsibilities of the US government as Trustee for the Individual Indian Trust are the same as those that apply to private trustees, unless Congress expressly has enacted legislation to the contrary. No such legislation has been enacted.

Accordingly, the unwillingness of the district court to apply trust law is puzzling. So is its unwillingness to hold the government accountable for its egregious breaches of trust. The district court now says that holding the government accountable would be unfair to the government. The complete lack of concern for fairness to victims of 120 years of abuse is utterly incomprehensible to Native People.”

Village Earth is working at “ground-zero” on this issue. While we support Cobell’s efforts to seek justice from the Federal Government and force them to repair this horribly flawed system, we are working to help people reclaim and consolidate their lands from the Federal leasing system giving them an opportunity to bennefit directly from them on their own.