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An Open Letter to Kimberly Craven, Esq., on the Appeal of the Cobell Settlement

A column by Dan Jones about the Cobell settlement.
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To attempt to appeal the Cobell settlement decision as unfair was an honorable and brave thing for you to do as far as I am concerned. Not a very popular position in the face of the government announcing they intend to blast money across Indian country with cannons. That’s the government’s strategy for hiding accountability.

After reading your appeal and the press around it, let’s start with the attorneys who were representing us in Cobell. They sent your address and phone number to as many of the 500,000 class members as they could, saying they should ask you what your motives were in appealing. Was that a new low, as reported? Your appeal would limit the attorney fees to $50 million instead of the $235 million they will receive. That seems fair to me for people who basically lost the case. Was there a conflict of interest in this case as the attorneys had full control of the settlement? As you ask, “Why was the case settled for $3.4 billion when there was an offer by the government for a 7 billion dollar settlement four years ago?” Was it that the attorney fees were limited in the larger settlement? Your appeal speaks of the fairness of the attorneys taking so much of the pie: “This is especially true here, where class counsel brought litigation they claimed was worth tens or even hundreds of billions of dollars, but settled for pennies on the dollar: that is a loss, not a win, and class counsel is not entitled to a windfall for their lack of success.”

Your appeal also says this case is unfair because the U.S. hid the fact that people had the right to opt out. You stated, “The notice did not give class members a fair opportunity to opt out. The notice failed to provide a meaningful opportunity to the sprawling trust administration class to knowingly exercise an opt out right because that notice did not disclose the additional rights granted to opt outs.”

You made it clear the reason the government didn’t want people to know they can opt out was because if enough people did, the whole settlement would be voided. The government has to do individual accounting for each person who opts out and sues the government on their own. That’s how this whole thing came about in the first place: The government not being accountable for individual Indians.

The historic accounting of the opting-out factor would have been a very important option to my tribe and us as individual IIM account holders. The Ponca have been submerged in the oil business starting in 1918. The oil barons tied up contracts approved by the Bureau of Indian Affairs that were called “perpetual leases” with most of our grandparents. Many who spoke little or no English and signed agreements that froze the amount of our own oil at a single price forever, at 1/8 of 25 cents per barrel. At that time a barrel of oil was going for 0.66 cents. So about 3 cents per barrel is what my Grandmother, Mother and Father received until about the 1970’s when those contracts were deemed unethical. We watched our white neighbor’s progress and becoming very well off from their oil royalties as their payments grew with the price of oil but not ours. Just think the government used tax payer money to give us hand outs while they gave our oil profits to the oil companies. We could have used our own resources to improve our lot in life but instead we stayed in poverty. Unfair hell, that’s immoral.

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Another point you make is how unfair it is that the class action treats everyone the same, using the example used of “Allottee 1997.” Because of a mistake, his oil revenues went somewhere else from the high production wells on his land back in the 1930s. Unaware of this, his son received nothing his whole life. The son should have been worth millions from his percentage but now will only receive the same as someone who only owns a fraction of a percent of unproductive lands. A historical accounting would have corrected that.

But this gets to the point. As one who lives at home in Oklahoma I can tell you people are hurting for money now. There has not been a time when we weren’t, but today with the economy things couldn’t be worse. My people are counting on that money and counting the days. Their general feeling is they know they are getting screwed. I would say now another appeal would create a fire storm across my reservation as it is a tender box of depression now.

This is not just about being cheated out of our resources for many of us. It’s about the horrible side effects that oil production has brought to our lands. The environmental consequences and the health issues we face today because of it. Nowhere did this suit even address those issues. We have paid a dear price for the theft of oil from our lands and none of it has been fair or has in anyway been addressed by this case. At best I would suggest to you “For the sake of our history if nothing else.... don't let it be HIS story” I truly believe from what you know about this case the only way you will find any justice for us is to write a book about it, for the real record and for the world to see what the United States has done to us once again.

These are my words of encouragement.

Dan (SaSuWeh) Jones is the former chairman of the Ponca Tribe of Oklahoma. He is a filmmaker and former vice chairman of the Oklahoma Indian Affairs Commission, appointed by former Oklahoma Governor, Brad Henry.