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Cobell Concludes with the Rich Getting Richer

In the end, the long-running Cobell case was settled in less than a day. The result will see some involved with the case, especially lawyers, become quite rich, while many Indians—the majority, in all likelihood—will receive about a third of what it takes to feed a family of four for just one year.

It was a case that had started 15 years ago, under the premise that the Department of the Interior had mismanaged multi-millions of dollars in trust assets it had held for Indians across the country since the 1800s—a premise that had been all but proven true in federal court before the lead Native plaintiffs decided in December 2009 that a proposed $3.4 billion settlement by the Obama administration could be worth more than trying to secure a real accounting that could spell out more precise numerical parameters. Their decision, derived in the aftermath of an August 2008 federal court ruling that said they should only receive $455 million—one that ended up being quickly vacated on appeal in July 2009—was seen as pragmatic by some in Indian country, while others could not understand why they stopped when they did, since an accurate accounting—not financial remuneration—had long been spelled out by the plaintiffs as their main desire. If an accurate accounting ended up producing a whopping financial claim, which many believed it would, then so be it.

It was a case that was filed and guided along the way by Blackfeet Nation citizen Elouise Cobell, who said many times over that she had seen Indians who could have benefited from a resolution die in the ensuing years of government stall tactics and legal maneuvering. The same 65-year-old Cobell who recently announced that she had been diagnosed with an unnamed type of cancer, and who was forced to undergo surgery April 22 to treat it, and who could not attend in-person the case’s fairness court hearing on June 20. No one much likes to talk about it, but Cobell’s own longevity is believed by some to have factored in to her decision to press for the deal at hand, rather than to keep fighting for a full accounting that could have led to a greater settlement—how could it not have, they ask, especially after she almost single-handedly—it seemed at times, at least—battled through the psychological toll and real-life turmoil of court-driven rollercoasters so far from her Montana home and family?

Finally, it was a case that had faced numerous delays over the years, due both to federal ineptitude and strategy. That had seen a top government official, former Secretary of the Interior Gale Norton, held in contempt of court in 2001 due to allegations that she misled a federal judge in his efforts to account for the mismanaged monies. That had seen the Internet, e-mail and all, shut off at the Interior Department for years because the courts feared that the bumbling agency could not protect its Indian-focused information. And that had seen some government officials, including Arizona Republican Sen. John McCain, when he oversaw the Senate Committee on Indian Affairs in the mid-2000s, want to give Indians much more than $3.4 billion to wash their collective hands of the embarrassing mess. McCain’s $8 billion proposal was deemed by some at the time, including Cobell team members, as too small and with too many attached strings to be worth forgoing a payday that some plaintiffs at the time argued could be almost $50 billion. The Cobell team now says that the McCain proposal was never a firm offer, and covered a range of issues outside of the case.

Late in the game entered Senior Judge Thomas Hogan, of the United States District Court for the District of Columbia, charged with making sense of it all after the retirement last year of former presiding Judge James Robertson, he who replaced Judge Joyce Lamberth in 2006. With loads of backstory and altogether new information to sift through, Hogan decided late in the day June 20—the same day that the fairness hearing began—that the terms of the agreement hashed out by the lead plaintiffs and the Obama administration were fair—thus paving the way for checks to one day be written to individual Indians to account for what had been withheld from them for so many years. But given the fact that most Indians in the large beneficiary class of at least 300,000—and up to 500,000, according to the plaintiffs—would receive less than $2,000 as a result of the deal, while Cobell and her lawyers would receive millions in comparison, some couldn’t help but wish that Hogan had taken a little longer to come to his conclusion.

“I don’t want to criticize the judge,” said Ted Frank, a lawyer hired by Sisseton-Wahpeton Oyate citizen Kimberly Craven to make the case that the settlement was not fair for a variety of reasons. “Given how quickly the judge ruled on complex and unprecedented issues, I think the judge largely made up his mind before the fairness hearing, but a judge is entitled to do that based on the filings before him; when that happens, it’s up to the objectors to change the judge’s mind, and we didn’t do that.”

There was plenty to change one’s mind on, Frank and others argued, especially as the terms of the settlement became clearer since December 2009. For one, the lawyers for the plaintiffs were set to receive up to $99.9 million of the settlement for their efforts, and the same lawyers filed legal briefs earlier this year asking Hogan to increase that amount to as much as $223 million; secondly, $1.9 billion of the $3.4 billion would go straight to the Interior Department—the same agency that had caused the mess in the first place—to one day buy back fractionated lands owned by individual Indians that had apparently help contribute to the previously inept trust accounting. No one knows to this day how much confidence to put in Interior’s ability to carry out this entirely new and untested program. And if the agency ends up doing a poor job, Indians will only be able to complain, while at the end of ten years, any money it doesn’t spend of the $1.9 billion will end up rolling back to the government. Some already see that reality as a built-in incentive for Interior to not do the best of jobs—an ideology that the department has long been quite good at fulfilling when it comes to Indians.

But Cobell’s team pressed on that the settlement was indeed fair—not perfect, but fair. They presented several arguments during the fairness hearing for their belief, and they delivered pages upon pages of paperwork to Hogan attesting to that idea. They told the judge, too, that over 99.98 percent of class members “agree that the settlement is fair and want this matter resolved now,” according to testimony they presented to the court. That argument means that the Cobell lawyers must have queried all 500,000 of the possible beneficiaries they say exist in the case in the few short months since the agreement was ratified by President Barack Obama in December, and that only 1,000 of those 500,000 must have objected during that time. It doesn’t seem possible, especially given the existence of many objectors who have made their voices known in the press nationwide in the last few months, but that’s what the Cobell team’s testimony indicated. And Hogan apparently agreed.

Elouise Cobell could not be at the courthouse in person the day of the hearing, saying in a statement that she was unable to physically do so—a likely side effect of her recent cancer treatment. Instead, she offered testimony by telephone, in which she said that “few if any other legal cases in modern times have embodied the pain of so many people in Indian country and also embodied the hopes of these people…. For over 100 years, individual Indians have been victimized by the government’s gross mismanagement of the Individual Indian Trust and our trust assets, including the income earned on our trust lands.” And she noted that from the time the deal was approved by the plaintiffs and the administration, it took another full year to get Congress’ approval—first because it didn’t take up the measure, and then because individual lawmakers wanted to have plenty of input over a matter that so many of them ignored for so many years.

Cobell also hammered home the idea that the perfect should not be the enemy of the good. “The settlement isn’t perfect,” she plainly stated. “I do not think it compensates all for all the losses sustained, but I do think it is fair and it is reasonable. That is what matters—a fair resolution has been achieved. I am convinced that it is the best settlement possible. I am convinced also that if this settlement failed, there would be many more years of litigation with little possibility of a more favorable resolution.” Her words were strong, and they seemed to matter a lot in the ultimate outcome. As Hogan said the day of the hearing: “She has done more for the individual Native American than any other person in recent years,” and she has shown “unusual effort and courage.” Lead attorney Dennis Gingold added in a later statement that Cobell “has dedicated her life to righting this wrong”—another hint that whatever health issues she is currently facing, the prognosis seems complex, at best.

In the end, Hogan agreed with those who argued that the process had gone on long enough, ruling that Indians should not have to wait any longer to get something in return for the sins that had been committed against them for over a century and counting. “The government mismanaged these resources on a staggering scale,” the judge said in announcing his decision. He added that he believed the settlement could not make up for the losses Indians have faced for years, but he said the agreement “at least…provides some certainty” to Natives who choose to receive a portion of the funds.

“I am certainly not convinced that a better result could be achieved by taking it all the way to trial,” Hogan added. “It’s hard to see if there could be a better result.” With those words, Hogan appeared to confirm that in his mind, the words “better result” equates with getting more money. But he did not offer a rationale, then, why the $8 billion McCain had previously proposed during a time of less nationwide scrutiny on federal spending was not a “better result.” If gaining more money was the ultimate goal, then that offer should have been taken. As Cobell’s team argued at the time, though, many in Indian country thought the best result rested in getting Interior to count up the very real damages it had committed. If it was forced to do so, the prevailing argument went at the time that $8 billion would seem like pocket change. And the Cobell team, which somehow now has the ability to secure 99.8 percent certainty from the thousands upon thousands of beneficiaries in the case in a few short months could surely get each member to tell them how much money they believe was lost, present that number to the court, and then argue steadfastly for it.

Certainty, especially financial certainty, was indeed provided for some after the conclusion of the fairness hearing. The plaintiffs lawyers’, for one, are set to get $99 million, almost double the $50 million the Obama administration argued in court that they should have received. Cobell herself made the case on behalf of her lawyers in her final statement to the court, saying that they should be treated in accordance with controlling law. “Please let the message be that lawyers who represent Native people will be treated no worse or compensated no less than those who represent people who are not Indians,” Cobell testified. “Until class counsel accepted our case, we had no hope and no remedy for the abuse that we have been forced to endure for decade after decade, generation after generation.”

Thanks in no small part to her good relations with the lawyers she argued on behalf of, Hogan decided that Cobell will receive $2 million, while other named plaintiffs will receive payments ranging from $150,000 to $200,000 each. Due to the hard facts of math and given the relatively small amount left over for thousands of beneficiaries—the actual people who had a claim against the government due to its wrongdoing—a large portion of them will receive less than $2,000.

The Cobell team is happy with what they achieved. But, much like the fractionated trust interests still have to be dealt with as a result of the deal, there are still fractures resulting from the settlement that must be reckoned with. In the days leading up to Hogan’s speedy decision, the National Congress of American Indians and other groups represented tribes had come out with resolutions that pushed Hogan to tinker a bit with the funding structure of the deal, asking him to allocate $50 million toward lawyer’s fees for the plaintiffs’ lawyers, as opposed to the $223 million they had argued for in legal papers filed with him earlier in the year.

While Cobell and her lawyers will now officially become a part of the “rich get richers” as a result of the settlement, it is not their good fortune that bothers some Indians most. After all, they saw an injustice and fought to make it right for years at the risk of no financial gain at all; at least they are profiting from fighting a good fight, even if that means taking away money from beneficiaries in the end. But the government, too, is reaping a profit for fighting a bad fight for all these years. Hogan ruled that the $1.9 billion of the $3.4 billion settlement to go to the Interior Department is perfectly fine, not considering the fact that it was that very agency that had screwed up so badly in the first place. So, when Obama and other government officials released statements after Hogan’s ruling hailing his decision, it could not be forgotten by Indian country that they were in fact congratulating their own government for securing a large amount of money to create a new government program that no one knows for sure will benefit Indians in a sound and just manner.

But of course, the Interior Department promises to do things right this time around, putting out a statement in early June promising government-to-government consultations with tribes on the development of the land consolidation program to begin by late summer. With those consultations, the talk over the latest can of worms will just be getting started. In the statement, the agency promises that “the land consolidation program will provide individual American Indians with an opportunity to obtain cash payments for divided land interests and free up the land for the benefit of tribal communities.” What that means, and how it will play out, has never been publicly explained. Whether it will be fair is another case altogether.