Indian trust settlement defended

2010-03-20T22:50:00Z Indian trust settlement defendedMary Garrigan Rapid City Journal The Billings Gazette
March 20, 2010 10:50 pm  • 

RAPID CITY, S.D. — Interior Deputy Secretary David Hayes was in Rapid City on Saturday to offer an admission of the federal government’s failures to Indian Trust landowners, as well as ask that they support the $3.4 billion settlement reached in the Cobell v. Salazar class action designed to correct them.

“There’s no question that the United States has not done a good job of implementing its responsibilities to individual landowners or to tribes,” Hayes told about 50 tribal members and landowners who attended an emotional question-and-answer session during the Great Plains Tribal Chairman’s Association.

He repeatedly acknowledged what he called the “abject failures” of the U.S. trust and treaty responsibilities to the more than 560 tribes that have suffered the “systemic legacy” of land loss caused by those failures.

Many attendees told Hayes — second in command to Secretary Ken Salazar at the Interior Department — that that history of injustice that prevents them from supporting the settlement in the 14-year-old class action that is awaiting congressional approval.

“This is nothing personal against you, but we do not trust you. We do not trust the agency you represent,” said Andrew Iron Shell, a community organizer from Rapid City.

Hayes and Keith Harper, a lead lawyer for the Cobell plaintiffs, told a skeptical audience that their concerns and questions about Cobell are legitimate, but those questions shouldn’t allow an important “window of opportunity” to close on a $3.4 billion settlement that they say is the best many landowners can expect to get for historical accounting errors, and one that they predict will do much to improve customer service on Individual Indian Money accounts in the future.

If the settlement is rejected by Congress because members perceive it is not supported by Indians, Hayes said, he can “guarantee” that the Supreme Court will uphold an appeals court ruling that the federal government has no financial obligation to pay damages on historical accounting errors.

“There are many in Congress who do not want Indian Country to get a dime, and they are taking advantage of these questions,” Hayes said. “If there is not vocal support for this settlement, I fear we’ll lose it.”

The Interior Department is trying to meet a self-imposed deadline of April 16 for congressional approval and funding of the Cobell settlement, which would compensate an estimated 300,000 to 400,000 holders of Individual Indian Money accounts for the historical accounting errors made on their trust lands and end all future claims for those past errors in exchange for a $1,000 payment to each landowner.

A second part of the settlement would make a separate payment, beginning at a minimum of $500 per account holder, but not limited to that amount, from a $2 billion land consolidation fund created to address the mismanagement of assets and resources on their land — such issues as overgrazing by leaseholders, unfair contracts for oil and gas leases or degradation by prairie dogs. Account holders who agree to the historical errors settlement would have the right to opt out of the land management settlement if they don’t agree with the formula-driven payment.

The opt-out empowers landowners who want to retain their right to bring an individual lawsuit for asset mismanagement while giving others the ability to “turn the page” on past wrongs.

Many complained that the single payment was an “insult to Indian Country” and did not begin to compensate for historical losses.

But Harper argued that the $3.4 billion class action settlement was a lot of money — almost double the total amount of all other Native land claims combined that have been paid by the U.S. government to date, he said.

Harper faced the audience’s anger over attorney fees, which are included in the proposed settlement. Capped at $100 million by the Interior Department, all legal fees in the case must first be approved by a judge. Even if they are paid the full $100 million, that is well beneath the typical 20 percent to 30 percent that class action lawyers usually receive.

Harper made no apology for the legal fees or the $15 million total cap in incentive payments that could be awarded to the named plaintiffs. Legal counsel and people like Elouise Cobell, the suit’s original plaintiff, put in many years of work without any payment, often funding the expensive litigation out of personal funds, he said.

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