It’s true that $1.4 billion is a long way from $50 billion.
It’s true that $50 million to $100 million for legal fees is a chunk of change by anyone’s standards.
However, it is also true that, when it comes to matters of politics and money, timing is everything.
Now, Indian country finds itself facing a bittersweet victory of the Cobell v. Salazar settlement. In early December, lead plaintiff Elouise Cobell (Blackfeet) announced a $3.4 billion settlement of the lawsuit, which involves government mismanagement of Indian oil, gas, grazing, timber and other royalties overseen by the Interior
Tribal leaders and others have begun posing difficult questions about the settlement, which awaits congressional approval. The latest deadline to finalize the settlement stands at April 16.
The deal calls for $1.4 billion for individual Indian trust fund beneficiaries and $2 billion for a federal program to buy back fractionated trust lands.
Some say slowing down approval of the settlement would give tribal leaders time to decide if the settlement is the best that Indian country can do.
While the Obama administration and the lead plaintiffs have called for quick action on the settlement, some now say slowing down approval of the settlement would give tribal leaders time to decide if the settlement is the best that Indian country can do.
It’s a worthy question to consider, as the settlement is likely to have “one of the largest policy impacts on our tribes,” as Kimberly Craven, a Sisseton-Wahpeton tribal member, put it recently. It’s a question that became more than debate in early March at the winter session of the National Congress of American Indians.
One resolution, put forward by the Affiliated Tribes of Northwest Indians, called for more transparency and time “to fully inform Indian country regarding Cobell v. Salazar settlement terms.” The resolution was tabled, but not before some NCAI executive council members voted in favor of it.
“I’m very upset that Congress won’t be asked by this national Native organization to go to Indian country to hear first-hand their concerns of this settlement,” said Craven, who plans to opt out of the settlement.
Still, others have criticized the massive legal fees – somewhere between $50 million and $100 million for lawyers – included in the settlement. Cobell herself would receive a share in the millions of dollars range, while many in the class would receive thousands.
So what is fair for the people who have spearheaded this $3.4 billion settlement?
In a perfect world, this lawsuit would be handled by high-minded legal experts and tribal leaders willing to invest hundreds of thousands of dollars of their own funds while expecting little to nothing in return. The government would approve the entire $50 billion that plaintiffs had argued class members were entitled. And each class member would receive the entire amount to which he or she is entitled.
The plaintiffs find themselves across the negotiating table from an administration that has, so far, proven itself willing to deal fairly with them.
As we know all too well in Indian country, this is not a perfect world.
It wasn’t long ago that the district court limited the award following the 2008 trial to only $455.6 million for plaintiffs’ accounting claims. Now, the plaintiffs find themselves across the negotiating table from an administration that has, so far, proven itself willing to deal fairly with them.
But how long will that goodwill last as President Obama’s own political capital wanes and election season draws ever nearer? And what happens if the settlement collapses?
“If settlement is not approved in the short term, there is a very real possibility the settlement will fail and the parties will return to active litigation,” Cobell has said in her weekly column, “Ask Eloise,” in which she’s attempted to answer questions about the settlement.
Failure to finalize settlement also undoubtedly will lead to the plaintiffs’ Capitol Hill allies focusing their attention elsewhere.
There certainly are times when it’s right to stand firm on principle, and Cobell v. Salazar has always been about making the government accountable for its mismanagement of Indian lands and royalties. It’s fair to say that’s exactly what the settlement does: hold the government accountable.
To hold out for more money when more money is unlikely will not only delay settlement of Cobell v. Salazar but could doom any hope for desperately needed funds ever reaching elderly and infirm class members.
With so much to lose and seemingly little to gain by waiting longer, now is the time to settle the 14-year-old Indian trust fund lawsuit.