The proposed Cobell Settlement does four basic things:
o Gives Indians money but takes away their rights to sue for past damages to their lands and natural resources
o Provides $2 billion to the Government to consolidate Indian lands but:
o The Government decides how and if the $2 billion is spent and gets any unspent funds back after 10 years.
o It makes a few people very, very wealthy including the four named plaintiffs, the attorneys and the class administrator.

After 14 years of litigation to get an accounting of Individual Indian Money (IIM) trust fund accounts, Elouise Cobell and the other four named plaintiffs reached agreement with the Secretary of Interior, Ken Salazar, on this class action lawsuit. Unfortunately, the settlement goes far beyond the scope of the litigation and may have severe negative impacts on Indian people and create the most expensively financed policy without input from the Tribes.
Here is a more detailed analysis of how the settlement is constructed:
1) Pays the four named plaintiffs an unspecified and yet-be announced additional “incentive” amount for settling the claims.
2) In addition, four named plaintiffs will be reimbursed at least $15 million for her expenses and costs of litigation.
3) Pays the class action plaintiffs $1,000 for individual Indians already in this class. There is no opt out provision for this class.
4) Pays $500 to an entirely newly created, class of plaintiffs to extinguish any claims they may have arising from breach of trust of land and natural resources based on acceptance of the $500 and an additional amount based on a formula of the funds remaining which will be pro-rated based on an individual’s top 10 IIM account payment. There is an opt out provision for this class. This is especially problematic because it releases the government from any breach of trust of mismanagement of lands related to grazing, minerals, water pollution, etc. without any record of what these claims for damages may consist of.
5) Any funds from these payment deposited in an IIM that are not claimed after five years, will be transferred to the scholarship fund.
****There is $1.4 billion allocated for these two activities.
6) Creates a $2 billion land consolidation fund that will be administered by the Dept of Interior Bureau of Indian Affairs. After ten years, any unspent funds will be returned to the Treasury. There is no provision for using the funds for land restoration. After lands are acquired and have generated enough money to repay their purchase prize, they will be transferred to the Tribes.
7) For any landowner that is unknown, the government may offer them a reasonable price and after five years, it will deem to be accepted. Lands could be sold out from under people and they may never have any notice.
Creates a scholarship fund from the $2 billion fund that is based on a rebate that will flow to the scholarship fund when an Indian individual sells his interest in their land. This amount will be capped at $60 million and there is no guarantee it will ever reach this cap. The nonprofit that will be chosen to administer these scholarship funds will be based on the named plaintiffs’ two recommendations forwarded to the Sec. of Interior who will add his own recommendation and make a decision about who administer the scholarship fund. Again, the Tribes are not being consulted about what institution should be the recipient of these funds.
The process is also flawed. The named plaintiffs and the Federal Government need to have legislation passed in both the House and Senate to ratify the settlement agreement. Both were hoping for swift passage without Indian Country getting involved to slow down the process. However, legislation has not been introduced in either the House or the Senate. The Senate Indian Affairs Committee held an oversight hearing on the proposed settlement but not the legislation shortly after it was announced. The House Natural Resources Committee will hold a hearing on March 10th.
The only information about the Cobell Settlement is posted on their website. One must have the ability to access the documents from a computer in order to download the 89 page settlement. Also, in order to get additional information about the settlement sent to them over the internet, an individual must provide their mailing address, IIM account number, enrollment number and Social Security number – all which seems to beyond the normal requirements for getting notice of a class action settlement and an invasion of privacy.
However, the plaintiffs have compiled a list of individual Indians who they calculate will be recipients of large amounts of money and are sending them letters advising them of this.
Last week, the Executive Council of National Congress of American Indians tabled a resolution calling for more transparency and Congressional regional hearings in Indian Country. This week Elouise and Keith Harper will be traveling to the Pine Ridge Reservation, Rosebud Reservation, Cheyenne River Reservation, and the Standing Rock Reservation where they will be holding meetings at the Tribal Colleges.
Here are some questions people may want to ask:
1) Why have the plaintiffs written personally to some class members telling them how they are going to get? Why haven’t all class plaintiffs gotten a letter?
2) Does this mean some class members have more rights than others?
3) Aren’t you supposed to be representing all class members equally?
4) What is the normal hourly rate for Keith Harper and the other lawyers who are out here campaigning for this? Will this come out of the Indian fund?
5) Why is there uncertainty between the $50 to $100 million that will be charged for their past attorney fees? What kind of records have they been keeping so that we know the amounts will be correct?
6) Why is the $2 billion only going to the federal government to spend?
7) Why will the unspent funds revert back to the Treasury in 10 years?
Why will the funds only be used for land consolidation and not land restoration?
9) Why did the plaintiffs agree to include claims about land and natural resource damages when there is no record of the extent of these and how much they might be worth?
10) How much will the attorneys request as incentive payments for the four named plaintiffs?
11) How much will Elouise receive as reimbursement for her expenses? The document says $15 million more than the defendants spent on expenses.
12) How much did the defendants spend on expenses?
13) How much will the attorneys request for their payment?
14) Will there be more payments to the attorneys in the future?
15) Have they received any prior payments from the Equal Access to Justice Fund for the litigation? If so, how much?
16) Are there other attorneys not listed who will be paid? (According to John Echohawk, NARF is not listed in the settlement as an attorney to be paid which he says is an oversight and that they will be getting funds to reimburse them for their 13,000 hours they put into Cobell Phase II which they normally bill at $225 an hour which equals to about $3 million dollars.)
17) Why has the class administrator already been chosen if Congress has not acted? Are they really getting paid $20 million to administer this?
18) Why is the website sign up system for more information so invasive? Why do people have to supply their enrollment numbers, IIM account numbers and Social Security numbers just to get more information?