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Cobell plaintiffs await Senate action

WASHINGTON – Faced with the prospect of a derailed $3.4 billion settlement in the long-running Cobell v. Salazar lawsuit, Indian plaintiffs agreed May 28 to another deadline extension in an effort to secure congressional approval.

May 28 had been set by the plaintiffs and the Obama administration as the final date for congressional action, but a deadline extension was agreed to after it became clear that the Senate could not get it done.

The new deadline, chosen by the plaintiffs and agreed to by the administration, is June 15. It is the fifth deadline involving the deal, and the fourth extension.

Dennis Gingold, a lead lawyer for the plaintiffs, previously said that if Congress did not meet the May 28 deadline, he would proceed anew with litigation.

Plaintiffs said that it was worth approving another extension, given that Congress seems close to approval.

Melissa Schwartz, a spokeswoman for the Department of Justice, which is overseeing the case for the Obama administration, said May 28 that the department “remains fully committed to implementing the Cobell settlement.”

The extension came as a result of the Senate failing to pass the agreement by its Memorial Day recess. While the House voted affirmatively on the deal May 28, the Senate could not meet the same deadline due largely to time constraints and cost concerns with the overall bill to which Cobell was attached.

In the House, the settlement was attached to the American Jobs and Closing Tax Loopholes Act of 2010. The Senate must pass the same language for it to become law.

New Cobell judge not expected to hamper settlement WASHINGTON – The judge who has long overseen the Cobell case is stepping down, but Indian plaintiffs don’t expect the development to delay settlement of the case. Senior Judge James Robertson retired June 1 from the U.S. District Court for the District of Columbia after overseeing the case since 2006. The litigation was reassigned to former Chief Judge Thomas Hogan, who was appointed to the bench in 1982 and became chief in 2001. The court is currently overseeing a proposed $3.4 billion settlement between Indian plaintiffs and the Obama administration. If Congress approves the deal, the court will hold hearings to sort out lawyers’ fees, opt-out plans, and fairness concerns. Robertson had shown himself to be a strong supporter of the proposed settlement. In an April hearing, he urged Congress to approve the agreement. “The need for Congress to act is real,” Robertson said. “Until or unless Congress acts, the lawyers who have devoted themselves to this case for 15 years on both sides are on hold, and, more importantly, all of Indian country is on hold. And I don’t want to be too melodramatic about this, but justice is on hold.” Despite the loss of Robertson, Dennis Gingold, a lead lawyer for the plaintiffs, said he is confident in Hogan’s ability to see the settlement through. “Judge Hogan is the former chief judge,” Gingold said. “He is familiar with the case. He has presided over some of the most challenging cases in this district and is expected to move Cobell promptly to a fair and final judgment.” Elouise Cobell, the lead plaintiff, thanked Robertson for his service, and said in a statement that the plaintiffs “welcome the reassignment of our case to the Honorable District Judge Thomas Hogan.”

Senators returned to Washington June 7, but other concerns, including Obama administration nominees, are expected to be their immediate focus. Still, the tax and unemployment benefits package is expected to be taken up soon.

Meredith MacKenzie, a spokeswoman for Senate Majority Leader Harry Reid, said the senator strongly supports the settlement, but he realized that an extension would be necessary, given political realities in his chamber.

She noted that there has been much Democratic support for the bill, and blamed the Republicans for causing tactical delays.

Republicans have been saying they are not trying to derail the settlement, just make it stronger.

Vice Chairman of the Senate Committee on Indian Affairs John Barrasso, R-Wyo., has expressed concern mirroring that of some Indians who have been especially apprehensive about attorneys’ fees, incentive awards for lead plaintiffs, and other components of the deal. He wants the issues accounted for in the Senate’s legislation.

On the day of the latest extension, Gingold expressed caution toward Barrasso’s position.

“Quite frankly, Dr. Barrasso’s opinion is interesting, but not pertinent to critical issues implicated in a litigation decision making process,” the lawyer said. “His views and that of his staff are viewed by most of the class as adverse to the best interests of individual Indians.”

In considering the Cobell deal, the House Rules Committee rejected an attempt to cap legal fees and make other changes to the agreement.

The settlement calls for $1.4 billion for individual Indian trust fund beneficiaries and $2 billion for a land consolidation program to be overseen by the Department of the Interior to buy back fractionated trust lands. Under the deal, many beneficiaries will receive around $1,000 to $1,500 for their claims.

The litigation has hinged on the contention that the government mismanaged billions of dollars in oil, gas, grazing, timber and other royalties overseen by Interior for Indian trustees since 1887.

The Obama administration agreed that wrongs had been done, which helped them come to the $3.4 billion settlement figure.

Many Native Americans believe the settlement figure is far too low, noting that the plaintiffs had argued for around $50 billion during some points of the lawsuit.

Still, lead plaintiff Elouise Cobell, a Blackfeet citizen, has argued long and hard that the deal is solid. She has said it is probably the best that can be done without many more years of legal battles that could result in less return.

While Cobell only amounted to a small slice of the overall extenders bill approved by the House, the cost of the legislation was on many Congress members’ minds in the days leading up to the May 28 deadline.

Some Democrats were hesitant to vote in favor of the overall legislation because they were concerned the political ramifications of the cost might hamper them in the fall election season.

Reflecting on the situation, Barry Piatt, a spokesman for SCIA Chairman Byron Dorgan, D-N.D., said that all bills are going to come with a cost.

“In this case, justice for Native Americans should prevail over cost.”

But Rep. Stephanie Herseth Sandlin, D-S.D., said the cost of the extenders bill was a big factor in her decision not to support it.

“My vote regarding the tax extenders bill is a vote for fiscal responsibility, and is not directed at the Cobell settlement. While the funds in the bill for the Cobell settlement are fully offset, and will not add to the deficit, once again, as with the Indian Health Care Improvement Act, I think Congress should have considered the funding for the Cobell agreement as a standalone measure, so that the merits of the settlement could be fully and fairly debated.”

Herseth Sandlin added that she has received much feedback from Indian constituents who are affected by the settlement, including from some who have expressed concerns about certain parameters.

She has urged the Obama administration to continue reaching out to those who have a stake in the case.