January 17, 2017

Cobell Class Members question settlement, attorney conduct

This Dec. 8, 2009, file photo shows Elouise Cobell, center, posing for a photo with her legal team in the law offices of Kilpatrick & Stockton in Washington.  From left are Bill Dorris, Cobell, Keith Harper, Dennis Gingold and Geoffrey Rempel,  the attorneys involved in a class-action lawsuit by American Indian land trustees against the U.S. government over the alleged mismanagement of Native American land royalties. AP FILE PHOTO / GERALD HERBERTAttorneys released names, addresses and phone numbers of the four case appellants in an email to the public and media Jan. 20

WASHINGTON  – Class Counsel for the Cobell v. Salazar class action lawsuit sent out a letter Jan. 20 to Class Members throughout Indian Country explaining the reason for the delay in their monetary payment rests with four Class Members who are appealing the settlement.
“What they did by sending out this letter is very, very unethical,” Mary Lee Johns, Cheyenne River Sioux/Lakota, said. “They sent out this email to all the individuals and listed our names, addresses and telephone numbers. One of the individuals that appealed is getting death threats and now they got her address. This is not the way to conduct business in Indian Country.”
Johns is appealing the settlement along with Carol Eve Good Bear, Fort Berthold Reservation, and Charles Colombe, Rosebud Sioux. They are represented by David Harrison, an attorney based out of Albuquerque, N.M. They are in the early stages of their brief, which is due to be filed in March with oral argument set for May 15.
Harrison said the suggestion in the letter, dispersed by the plaintiff’s counsel, that the appellants don’t believe fellow Class Members are entitled to relief or payment from their trust funds is not true.
“It’s not that they’re just trying to make sure that nobody’s paid; they’re trying to make sure that this deal is legal,” Harrison said.
Another appeal is from Class Member Kimberly Craven, Sissten-Wahpeton Oyate, who is represented by Ted Frank, an attorney with the non-profit Center for Class Action Fairness located in Washington, D.C. The Craven brief was complete Jan. 6 and oral argument is scheduled for Feb. 16 in Washington, D.C. before a three judge panel.
Frank said Craven believes the settlement is illegal and it’s in the best interest of the Indian community that it be overturned.  He said the Historical Accounting Class is not giving Class Members an opportunity to opt out if they feel their right to an injunction is more valuable than the monetary relief. In addition the structure of the settlement payments contradict what the D.C. circuit said would be permissible in earlier Cobell litigation, because it’s not rationally related to the damages Class Members have suffered, he said.
“So you have a problem that Class Members who have suffered the most injury are getting the same as or less than Class Members who have suffered no injury at all,” Frank said. “(Also) There’s the problem of conflict of interest created by the fact that Ms. Cobell negotiated a settlement that would pay $12.5 million dollars to herself.”
The beneficiaries of the settlement fall into two groups; the Historical Accounting Class and the Trust Administration Class. Harrison’s clients also question the fairness of the Accounting Class and the blanket $1,000 payment everyone would receive.
“The courts have been saying all this time, and the plaintiffs have said, the case is about an accounting, we want an accounting, and now they’re saying ‘Oh heck with the accounting, just give everybody $1,000 and we’ll call it even,’” Harrison said, adding that some account holders have a great deal of money go through their account while some people have very little. “One hundred and seven thousand Indians, collectively, only have $15,000 between the whole bunch of them in their accounts in recent years, but every one of those 107,000 people is going to get $1,000 … to them the settlement probably seems like a very good deal.”
Harrison also said the leftover money to be divided between land owners is based on a formula that measures how much money has gone thru a person’s account, which would not be fair either.
“They’re not going to be paid out based on how much (a person) lost or how much you have coming; it’s going to be based on how much you got. The people who got paid improperly; If they got paid more than they had coming they get unjustly enriched again and if they got paid less than they had coming they’re going to get victimized again, and that’s just the way the formula works.”
Last year some Individual Indian Money (IIM) account holders also questioned why their attorneys may receive more money than them from the $3.4 billion settlement. The Class Counsel is requesting $223 million, which is 14.75 percent of the 1.5 million dollars to be dispersed to Class Members. Lead attorneys for the settlement include Keith Harper, of Kilpatrick Townsend & Stockton LLP, and Dennis Gingold.
Harper toured Indian Country last year with other Cobell attorneys explaining the settlement and defended their request for remuneration. During a March 2010 meeting in Anadarko, Okla., Harper said the amount requested by the attorneys is not double the expenses. He then quoted Gingold, who said they are only asking for what their expenses were, and at the end of the day it’s up to the courts to decide what they will get paid.
Class Counsel’s letter to Class Members stated there is little doubt the appellants do not have the same desires or care about the needs of their fellow Class Members, and the appellants’ behavior does not seem to be in the best interest of Class Members.
Johns said she hasn’t received many calls because of the letter, but most callers were supportive and one person just wanted to understand the settlement and the appeals.
“This has nothing to do with Elouise Cobell, please understand that. People always use her passing away and all that to try and make us feel bad, but this has nothing to do with her. The reason why I did what I did was based upon what I believe was wrong with the suit,” Johns said. “Now it has nothing to do with the money, it has nothing to do with any of that. It has to do with the protection. I’m doing it because I believe that they’re opening up the gate to a lot of serious problems for Indian Country in the next 20 years.”
Johns said she was upset when she initially found out that IIM account holders were, “jerked into this class action suit without our consent” and also that tribes weren’t involved. She said since the class action was brought about by four individual Indians there was not the unique government-to-government relationship. She feels individualizing Indians will help break up the tribes and references the Dawes Act to illustrate her point.
“You know the intent of the Dawes Act was to break up these tribes so that’s one of the reasons why I was very concerned,” she said. “We’re standing basically by ourselves without the protection of our tribe.” 
Another concern is the land. Johns said the settlement was originally supposed to be about an accounting and not about the land. She said the lands were severely mismanaged by the federal government and people put too many cattle on their land so it was overgrazed and ended up with prairie dogs and the grasses were just not the same.
“…the biggest rip off  was when the federal government sat down with the Cobell lawyers and made this deal because they were basically getting away free for this amount of mismanagement … ,” Johns said. “The federal government is winning on this one. They got home free without ever having to restore lands, and they didn’t ever have to pay individual Indians for mismanagement of their land. They made this deal, and to me, it’s an unholy deal that these attorneys have negotiated with the federal government so that they could collect $99 million dollars. So who loses on this? They keep saying, ‘Oh, you know, you’re going to get this money.’ What kind of money? You know maybe everybody is going to get maybe $1,200 dollars … and yet look at what we’re losing.”
Johns said the Cobell attorneys should have made sure the lands were restored back to their original state before an agreement was made. She said Class Counsel sat down with the federal government when they originally lost the case and that’s when the government said it would throw in $3.5 billion if an Administration Class was included for the mismanagement of lands, plus some of the money would be used to purchase lands that were fractionated shares.
“Now, there’s another part of this that people didn’t understand, was this whole $1 billion dollars that they’re giving the federal government to buy the land back. That’s a bait and switch deal,” she said. “Before that land that they purchased for $100 can be given back to your tribe, your tribe has to pay the federal government $100. So basically, all it did was give the federal government$1 billion dollars to buy Indian land … to me it’s a shell game and the Indians are the ones who are losing out.”
Johns other concerns are: the settlement is a complicated process, the Bureau of Indian Affairs could not participate in explaining to the individual Indians what their rights were, and it was not clear how to opt out. She said there are cases, with members of the Three Affiliated Tribes for example, where Indian people are seeking justice in court but because of the class action settlement they cannot seek a claim against the federal government.
“If you didn’t opt out, you’re forever barred from ever going to court on mismanagement,” Johns said. “One of the things that the federal government wanted to do was hurry up and get this done so they could wash their hands of us. They opted out.”
Frank also mentioned the case of Ramona Two Shields v. United States, where “the government is arguing that the Cobell settlement is preventing these Indians from getting their fair recovery.”
Johns also questions who the lead plaintiff is now. In other words who is directing Class Counsel? Lead Plaintiff Elouise Cobell died Oct. 16, 2010. The remaining plaintiffs are James Louise Larose, Thomas Maulson and Penny Cleghorn.
Johns said people may say she’s being unfair by appealing the case but questions who is looking out for the Indian people - “People like the four of us that really truly want to make sure that this is good for the people,” she said.
“Everybody’s glad that I did it,” Johns said. “My tribe passed a resolution that was totally against the Cobell (class action suit/settlement). I feel very confident that what I’m doing is in the best interest of … my family and those who got up and objected to Cobell all along.” 
Cobell spokesperson Bill McAllister told Native Times that Class Counsel is not commenting on the case.

The Craven appeal can be found online HERE