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Finley: Relevant questions remain about Cobell proposal

This editorial responds to the op-ed, “Cobell settlement will provide legacy,” by Dennis Gingold, the lead attorney in the Cobell litigation, which unleashed a harsh, misleading attack on fellow tribal leader and respected tribal elder William Martin, president of the Central Council Tlingit Haida Indian Tribes of Alaska.

Mr. Gingold’s attack came in response to President Martin’s Jan. 26, 2010 column, “Congress should study Cobell settlement before approving it,” that raised questions and urged careful scrutiny of the proposed Cobell v. Salazar settlement. Although President Martin is on the Board of the Intertribal Monitoring Association on Indian Trust Funds, his column was written in his capacity as an elected tribal official, and not on behalf of ITMA, and did not mention ITMA at all. Nonetheless, Mr. Gingold’s response not only erroneously characterized President Martin’s active role in trust reform over many years, to which ITMA can attest, but also chose to mischaracterize the role of ITMA during the past 19 years.

Neither President Martin nor ITMA has turned a blind eye to historic problems of Indian trust administration.

Mr. Gingold says the world, including President Martin and ITMA, historically “turned its back” on the abuse and mismanagement of the trust estates of individual Indians. Mr. Gingold does not mention that his entire case rests squarely on claimed violations of the Indian Trust Funds Management Reform Act of 1994, and that ITMA and our member tribes drafted the legislation and were instrumental in its enactment. Neither President Martin nor ITMA has turned a blind eye to historic problems of Indian trust administration. Without our efforts, Mr. Gingold would not have the federal law that provides the sole statutory basis for his lawsuit.

With respect to Mr. Gingold’s assertion that President Martin omitted mention of “the fact that the settlement is three times that which has been awarded in aggregate to Indian tribes and individuals in the history of the United States,” perhaps President Martin did not say that because it is simply not true. There are documented recent settlements and awards to tribes that significantly exceed $1 billion, not including earlier Indian Claims Commission awards or even more recent judgments that have included at least one tribe’s recovery of more than $100 million.

In his characterization of the “$3.4 billion Cobell settlement,” Mr. Gingold clearly includes the $2 billion that will go directly to funding an existing BIA program to buy individually owned trust land. President Martin made no mention of this portion of the “settlement” at all, but others have questioned whether pre-funding an existing BIA program for 10 years is appropriately considered part of the settlement at all. These questions seem especially relevant since the settlement agreement itself provides that after 10 years any amounts remaining in the $2 billion “Trust Land Consolidation Fund” shall be returned to the Treasury. In other words, if the government chooses not to spend this money it will simply be counted as part of this settlement for purposes of making it appear larger, then possibly returned to the U.S. Treasury.

Mr. Gingold suggests that President Martin has “disrespectfully attacked” Ms. Cobell by questioning why she should collect $15 million (or at least some substantial portion of that “estimated” amount) when others receive $1,000, especially if her and the other named plaintiff’s actual losses have been collectively calculated to be less than $50. President Martin has been courageous enough to raise this question publicly, and I know for a fact that many others are discussing the very same thing.

President Martin has been courageous enough to raise this question publicly, and I know for a fact that many others are discussing the very same thing.

Mr. Gingold responds to the question by stating that “the costs are about $15 million, and she will seek from the court reimbursement for herself and the nonprofits [who have contributed funds to the litigation].” The settlement agreement itself characterizes the $15 million as “incentive awards” to the class representatives and makes no mention of any plans or requirements for reimbursement to any third parties. Mr. Gingold’s angry but unsupported justification for these “incentive awards” only highlights the concerns raised by President Martin.

In an apparent acknowledgement that the Cobell lawyers do intend to claim $100 million for themselves, Mr. Gingold appears to justify this by stating that “… the attorneys have litigated this case for 14 years without salary.” He further states that “in tribal trust litigation, attorneys have been paid upwards of 20 percent simply for filing a complaint and negotiating a settlement.” I am personally not aware of any such instance and certainly not for so little effort as Mr. Gingold suggests. He further states that the “$100 million means that counsel would receive less than 3 percent of the class recovery…” Mr. Gingold’s calculations appear to depend on including the $2 billion, BIA land consolidation program as part of the settlement. This amount, while a generous concession by the government and a potentially useful tool to address fractionation, has nothing to do with any claim, even the new ones proposed, in the litigation.

The main issue raised by President Martin is whether the Indians have a full understanding of how much they are paying, and for what. The plaintiffs’ attorneys have already collected millions of dollars in this case from the federal government under the Equal Access to Justice Act. [www .hhs.gov/dab/guidelines/eaja.html] There has been no discussion of why this approach was apparently rejected, or of how much of the recovery would be consumed by the contractors and additional “future” attorney fees to manage and implement the agreement.

All of us respect Ms. Cobell, but the potential extinguishment of claims in the settlement that have never been part of this litigation demands an explanation.

All of us respect Ms. Cobell’s work and persistence, but the potential extinguishment of claims in the settlement that have never been part of this litigation demands an explanation – at least from the government, who remains the trustee for Indian landowners. For instance, President Martin quite appropriately pointed out that members of the class “… have been repeatedly assured for years that only accounting claims, and not asset-based or mismanagement claims, are at issue in the Cobell litigation.” The settlement includes these claims for the first time and, if approved in its current form, will extinguish the claims unless individual Indian claimholders are able to opt out.

President Martin simply urged Congress to hold more hearings before these claims are extinguished without ever being heard. Mr. Gingold’s self-serving exaggerations and unnecessary denigration of the contributions and sacrifices of other courageous Indian people and organizations only highlight these and other questions that President Martin raised in his column.


Michael Finley is chairman of the Board of Directors of the Intertribal Monitoring Association (ITMA) on Indian Trust Funds. He is chairman of the Confederated Tribes of the Colville Reservation.