Cobell settlement

U.S. Department of the Interior
Date: December 8, 2009
Contact: Kendra Barkoff, 202-208-6416
Frank Quimby (202) 208-7291
Melissa Schwartz (DOJ) 202-514-2007

Secretary Salazar, Attorney General Holder Announce Settlement of Cobell Lawsuit on Indian Trust Management

WASHINGTON, D.C. — Secretary of the Interior Ken Salazar and Attorney General Eric Holder today announced a settlement of the long-running and highly contentious Cobell class-action lawsuit regarding the U.S. government’s trust management and accounting of over three hundred thousand individual American Indian trust accounts. Also speaking at the press conference today were Deputy Secretary of the Interior David Hayes and Associate Attorney General Tom Perrelli.

“This is an historic, positive development for Indian country and a major step on the road to reconciliation following years of acrimonious litigation between trust beneficiaries and the United States,” Secretary Salazar said. “Resolving this issue has been a top priority of President Obama, and this administration has worked in good faith to reach a settlement that is both honorable and responsible. This historic step will allow Interior to move forward and address the educational, law enforcement, and economic development challenges we face in Indian Country.”

“Over the past thirteen years, the parties have tried to settle this case many, many times, each time unsuccessfully,” said Attorney General Eric Holder. “But today we turn the page. This settlement is fair to the plaintiffs, responsible for the United States, and provides a path forward for the future.”

Under the negotiated agreement, litigation will end regarding the Department of the Interior’s performance of an historical accounting for trust accounts maintained by the United States on behalf of more than 300,000 individual Indians. A fund totaling $1.4 billion will be distributed to class members to compensate them for their historical accounting claims, and to resolve potential claims that prior U.S. officials mismanaged the administration of trust assets.

In addition, in order to address the continued proliferation of thousands of new trust accounts caused by the “fractionation” of land interests through succeeding generations, the settlement establishes a $2 billion fund for the voluntary buy-back and consolidation of fractionated land interests. The land consolidation program will provide individual Indians with an opportunity to obtain cash payments for divided land interests and free up the land for the benefit of tribal communities.

By reducing the number of individual trust accounts that the U.S must maintain, the program will greatly reduce on-going administrative expenses and future accounting-related disputes. In order to provide owners with an additional incentive to sell their fractionated interests, the settlement authorizes the Interior Department to set aside up to 5 percent of the value of the interests into a college and vocational school scholarship fund for American Indian students. The settlement has been negotiated with the involvement of the U.S. District Court for the District of Columbia. It will not become final until it is formally endorsed by the court. Also, Congress must enact legislation to authorize implementation of the settlement. Because it is a settlement of a litigation matter, the Judgment Fund maintained by the U.S. Departments of Justice and Treasury will fund the settlement. “While we have made significant progress in improving and strengthening the management of Indian trust assets, our work is not over,” said Salazar, who also announced he is establishing a national commission to evaluate ongoing trust reform efforts and make recommendations for the future management of individual trust account assets in light of a congressional sunset provision for the Office of Special Trustee, which was established by Congress in 1994 to reform financial management of the trust system. The class action case, which involves several hundred thousand plaintiffs, was filed by Elouise Cobell in 1996 in the U.S. District Court for the District of Columbia and has included hundreds of motions, dozens of rulings and appeals, and several trials over the past 13 years. The settlement funds will be administered by the trust department of a bank approved by the district court and distributed to individual Indians by a claims administrator in accordance with court orders and the settlement agreement. Interior currently manages about 56 million acres of Indian trust land, administering more than 100,000 leases and about $3.5 billion in trust funds. For fiscal year 2009, funds from leases, use permits, land sales and income from financial assets, totaling about $298 million were collected for more than 384,000 open Individual Indian Money accounts and $566 million was collected for about 2,700 tribal accounts for more than 250 tribes. Since 1996, the U.S. Government has collected over $10.4 billion from individual and tribal trust assets and disbursed more than $9.5 billion to individual account holders and tribal governments. The land consolidation fund addresses a legacy of the General Allotment Act of 1887 (the “Dawes Act”), which divided tribal lands into parcels between 40 and 160 acres in size, allotted them to individual Indians and sold off all remaining unallotted Indian lands. As the original holders died, their intestate heirs received an equal, undivided interest in the lands as tenants in common. In successive generations, smaller undivided interests descended to the next generation.

Today, it is common to have hundreds–even thousands–of Indian owners for one parcel of land. Such highly fractionated ownership makes it extremely difficult to use the land productively or to provide beneficial use for any individual. Absent serious corrective action, an estimated 4 million acres of land will continue to be held in such small ownership interests that very few individual owners will ever derive any meaningful financial benefit from that ownership.
Additional Information is available at the following sites: http://www.cobellsettlement.com/.The Department of the Interior website: http://www.doi.gov/. The Office of the Special Trustee website: www.ost.doi.gov

Professor Clinton Quoted in Cobell Article

Feds, Indians reach $3.4 billion settlement in royalty suit
Dan Nowicki – Dec. 9, 2009 12:00 AM
The Arizona Republic

More than 300,000 American Indians, including about 20,000 in Arizona, would settle their long-standing complaints about U.S. mismanagement of their trust accounts for $1.4 billion, under an agreement announced Tuesday by the Obama administration.

The settlement, which must be approved by Congress and a federal judge, would end a complicated and bitter class-action lawsuit that dates to President Bill Clinton’s administration.
The suit alleges that sloppy bookkeeping by the federal government has robbed the Indians of more than a century’s worth of revenue from mining, grazing, logging and other uses of their land.

Also, as part of the settlement, the federal government will introduce a $2 billion program to buy back and consolidate Indian land that had been “fractionated” into multiple individual owners over generations, making it difficult to develop.

The Interior Department would reform its accounting practices to ensure better quality control of individual Indian trust accounts and assets.

“Today is a monumental day for all of the people in Indian country who have waited so long for justice,” said Elouise Cobell, a Blackfeet Tribe member from Browning, Mont., and the lead plaintiff who filed the lawsuit in 1996.

A database released by the Interior Department’s Office of Special Trustee for American Indians shows 20,393 Native Americans who live in Arizona hold Individual Indian Money Accounts that would qualify them for compensation under the proposed settlement.

That number includes members of out-of-state tribes who reside here, as well as members of Arizona-based Indian communities living in the state.

Republican Sens. John McCain and Jon Kyl of Arizona applauded the prospect of a settlement, which was announced by Interior Secretary Ken Salazar and Attorney General Eric Holder.
“The settlement not only resolves past issues but charts a way forward in a manner intended to prevent future disputes,” Kyl said.

As then-chairman of the Senate Indian Affairs Committee, McCain introduced legislation in 2005 in an unsuccessful attempt to resolve the dispute.

“The financial mismanagement of American Indian trust accounts has long plagued relations between the U.S. government and American Indians,” McCain said.

“I look forward to working with my colleagues on the Senate Committee on Indian Affairs to determine the next steps for congressional action on this matter.”

Among the Arizona tribes with the highest number of affected members are the Gila River Indian Community, the Navajo Nation, the Tohono O’odham Nation, the White Mountain Apache Tribe, Salt River Pima-Maricopa Indian Community and the San Carlos Apache Tribe.
President Barack Obama called the development “an important step towards a sincere reconciliation
<http://www.azcentral.com/news/articles/2009/12/09/20091209cobell1209.html#> between the trust beneficiaries and the federal government” that will lead to better future management of Indian assets.

He urged Congress to take swift action to “correct this long-standing injustice” by endorsing the settlement.

The money for the settlement would come out of a litigation fund maintained by the Justice and Treasury departments and wouldn’t require a new congressional appropriation.

“As a candidate, I heard from many in Indian country that the Cobell suit remained a stain on the nation-to-nation relationship I value so much,” Obama said in a written statement. “I pledged my commitment to resolving this issue, and I am proud that my administration has taken this step today.”

The proposed $3.4 billion settlement represents a small percentage of what the Indians say they’ve lost since 1887. In the past, Cobell and her lawyers <http://www.azcentral.com/news/articles/2009/12/09/20091209cobell1209.html#> had claimed the Interior Department owed Indian landowners more than $100 billion.

For her part, Cobell said she personally would have preferred to “litigate for another 100 years.” But many of her fellow beneficiaries are elderly, and the majority live in poverty. They need their money and probably can’t wait for the court case to drag on for 20 more years, she said.
The conciliatory attitude of the Obama administration, which she characterized as a refreshing change from President George W. Bush’s Interior Department, also helped make the time right for a settlement.

“Did we get all the money that was due us? Probably not, but . . . there are too many individual Indian beneficiaries that are dying every single day without their money,” Cobell said. “At least this settlement will give those particular people a payment of that money that has been due them for a number of years.”

John Lewis, executive director of the Inter Tribal Council of Arizona, called the settlement “a positive action, a good sign for this administration.” His non-profit group, overseen by Arizona tribal leaders, promotes Indian self-reliance.

The Interior Department says it oversees approximately 56 million acres of Indian trust land and $3.5 billion in trust funds and administers more than 100,000 leases. The Cobell class action charged that, for more than 100 years, the federal government did not accurately keep track of royalties <http://www.azcentral.com/news/articles/2009/12/09/20091209cobell1209.html#> owed to the Indians for farming, grazing, mining, logging and other activities.

Under the settlement’s $1.4 billion payout, the typical individual in the historical accounting class would get $1,000. The exact number of Indian beneficiaries is unclear. The Interior Department put the figure at more than 300,000, but it could be more than 500,000.

The settlement’s land-consolidation provision is an attempt to undo the consequences of the Dawes Act of 1887, which cut up tribal lands into pieces of 40 acres and 160 acres and allotted them to individual Indians.

Over the years, the properties were divided among their children, grandchildren and subsequent generations until the point where some parcels now have so many owners that productive development is all but impossible. The new program would allow the government to buy back pieces, if the owners wanted to sell, and assemble larger, more useful tracts that the Indian communities would control.

Robert Clinton, an Arizona State University professor who specializes in Indian law, was skeptical that the plan would eliminate the problems associated with the fractional allotments.
“Not immediately,” he said, “and not totally.”

Republic reporter Dennis Wagner contributed to this article.

Dawn Bitz (’03) Assistant US Attorney in Montana

U.S. Attorney in Montana gains Indian law experts
Friday, December 11, 2009
Filed Under: Law

The U.S. Attorney’s Office in Montana has added two Indian law experts to its team.

Dawn Bitz-Running Wolf, a member of the Blackfeet Nation, will serve as assistant U.S. attorney in the Great Falls. She will act as liaison between the office and tribes in the state. Diane Cabrera, a prosecutor for the Crow Tribe, will serve as a special assistant in for the U.S. attorney. She is believed to be the first tribal prosecutor to serve in that capacity. “Both of them have an awful lot of practical experience they bring on Day One to help us do this work,” said U.S. Attorney Bill Mercer, The Billings Gazette reported.

Get the Story:Prosecution gets tribal expertise (The Billings Gazette 12/11)

Clinton Quoted in New York Times

Robert Clinton Professor Robert Clinton was quoted in The New York Times and The Arizona Republic in articles about the historic multi-billion dollar settlement of a 13-year-old lawsuit filed over mismanagement of the American Indian trust funds.

The Dec. 9 article in The New York Times, by reporter Charlie Savage, called the lawsuit “one of the largest and most complicated class-action lawsuits ever brought against the United States.” It involved hundreds of thousands of land trust accounts that date to the 19th century.
The lawsuit would pay $1.4 billion to compensate Indians for claims of historical irregularities, and use $3 billion to buy back portions of land that have been fractionalized over several generations.

As Savage explained in his article, one 40-acre parcel today has 439 owners, most of whom receive less than $1 a year in income from it. The parcel is valued at about $20,000, but costs the government more than $40,000 a year to administer those trusts.

Savage quoted Clinton as saying that the settlement alone will not resolve the trust problem because many of the heirs who own tiny interests in parcels may not be willing to sell them.
Read The New York Times article here.

Carl Artman testified at Senate Hearing

Carl Artman testified at an oversight hearing on Wednesday, December 9th.

Where’s the Trustee? Department of Interior Backlogs Prevent Tribes from Using their Lands View Webcast

WitnessesPanel 1MR. GEORGE SKIBINE Acting Principal Deputy Assistant Secretary for Indian Affairs, U.S. Department of the Interior, Washington, DC Accompanied by: MS. VICKI FORREST, Deputy Bureau Director for TrustServices, Ll.S. Department of the Interior, Washington, DC

Panel 2MR. CARL J. ARTMAN Esquire, Professor of Practice, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Arizona

THE HONORABLE DEREK BAILEY Chairman, Grand Traverse Band of Ottawa and Chippewa Indians, Peshawbestown, Michigan

Sandra Day O’Connor College of Law Video

Friends,

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I am pleased to share this brief video with you to give you an idea of some of the many ways in which the College of Law is poised to be an integral part of solving global challenges, both today and in the future. We encourage you to submit your comments about the new model for 21st century legal education through the link at the end of the video, http://www.law.asu.edu/ideas.

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Dean

JOB: Crow Legislative Branch – Staff Attorney

STAFF ATTORNEY: Crow Tribe Legislative Branch. Full-time in-house attorney, Crow Agency, MT. 3+ years experience preferred. Minimum qualifications include: license to practice law in State of Montana, strong research and writing skills, respect for and familiarity with Native American and Crow tribal law and history. General and flexible practice areas include analysis and drafting of proposed legislation and ordinances, land and environmental issues, employment law, contract review, and litigation. Salary DOE. Position open until filled. Crow Tribal and Native American preference may apply. Please submit cover letter, resume or curriculum vitae, writing sample, and a list of three references to: ATTN: Manuel Cover Up, Sr., Speaker of the House, P.O. Box 309, Crow Agency, Montana 59022.

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