Cobell Suit: 'Many Unknowns' - Christine Yazzie 'Entertainment'
By Kathy Helms
CHURCHROCK – For many holders of Individual Indian Money Accounts, it costs the federal government more to mail the check than the check itself is actually worth – as in the case of Jimmy Bitsuie of Window Rock who receives 25 cents every four months, or Larry King of Churchrock whose family received a check for 2 cents.
The Obama administration recently announced a proposed agreement to settle a 14-year-old class action lawsuit filed in 1996 by Elouise Cobell, a member of the Blackfeet Nation, and other Native Americans against the federal government over alleged mismanagement of individual Indian trust accounts.
Geoffrey Rempel and Justin Guilder, members of the plaintiffs' litigation team that helped negotiate the settlement, were at Churchrock Chapter House Thursday and the Farmington area on Friday to share information about the $3.4 billion agreement, which must be approved by Congress and the courts.
Members of the historical accounting class – those that had an IIM account that was open at any point in time between Oct. 25, 1994, and Sept. 30, 2009 – will receive a $1,000 payment, according to Rempel.
“The reason those dates were selected was because that's the only time period the government recognized it had an obligation of any historical accounting. If your account was open between those two dates, even if only 1 cent was collected into that account, you're going to receive a $1,000 payment,” he said.
A second group, those who owned trust land on Sept. 30, 2009, or had an IIM account that was opened anytime between 1985 and September 2009 will receive a baseline payment of $500. “If you have very little money deposited into your IIM account, you're going to receive $500 and maybe a little bit more – from a few cents to $1,” he said.
It is not known, at this point, how many people will get $1,000. And though it is a small amount, Guilder said he believes class members should support the settlement “because I do think it's the fairest settlement under the legal rules and the legal rulings that occurred in this case.”
“To be sure, this isn't fair. Nothing that has happened in the last 123 years is fair, and I would be lying to everybody in this room and you wouldn't believe a word I said, if I said it is fair. ... But to get justice takes the court, and the court rulings limit what can be obtained.”
To put it in perspective, he said, “It's more than three times the total amount that's ever been paid from the government” to anyone. Documents will be sent to class members notifying them of the opportunity to opt out of the settlement and the deadline for doing so. Notifications also will be printed in newspapers and aired on the radio.
Rempel and Guilder, both Washington attorneys, painted a grim picture of the litigation history leading up to the settlement. “Talking about what happened in both the district court and the appeals court helps us kind of understand why we settled this case,” Guilder said.
In 1887 the government passed the Dawes Act and broke up reservations. In many parts of the country, the reservations contain checkerboard areas, much like the Navajo Nation.
“The individual lands that everybody was given at that time were held in trust by the federal government and the government managed all the lands. They executed all the leases, they collected all the money, and they were supposed to turn all the money back – but we know they didn't,” he said.
In 1996, Cobell and four other individual Indian land owners decided enough was enough. It was time for the government to account for what had been done. Where was the money? What had happened to the individual Indian trusts? What leases were executed on the lands? Where were the lands? How much money had they collected and how much had been paid out?
The first trial in 1999 was to establish what the government's duty is to class members, Rempel said. “The most important thing that happened in that trial is the government was ordered by the district court in D.C., to account for your assets, it was ordered to account for your land, it was ordered to account for your funds.”
It also was established that the government has an obligation to report its trust business. “It's got to have adequate standards to make sure people can do these jobs, and they've got to maintain records and be able to produce to you when you ask for them,” he said.
“But the government appealed this. The government said, 'We don't have the trust obligation to do this. We don't have an obligation to provide this information to you. We don't recognize that we have a trust relationship. What we can do is we can take your money and we can do whatever we want with it.'”
The court of appeals disagreed in 2001 and ordered the government to file quarterly reports to update plaintiffs and the court about how they were going to comply with the court's orders. “The government didn't do anything,” Rempel said.
“In court, when a party violates court orders, you can hold them in contempt. We went through a trial in 2001 and the district court held Gale Norton, the sitting Secretary of the Interior, in contempt with five counts of fraud for misleading the court and for failing to produce plans in violation of court order.”
The government appealed again. “They said we don't recognize the trust relationship, and if it's not a trust relationship we didn't have to comply with your orders, and you can't hold a sitting secretary in contempt of court.” The court of appeals agreed, he said, and gave Norton a “get-out-of-jail-free card.”
There were significant victories where the government was told they had to account for every person and every item of the trust, Guilder said. “But then the judge asked us, how much is that going to cost, and how long would it take the government to do?
“Well, it turned out that it would probably take the government 200 years and $13 billion to do everything. ... Nobody can wait 200 years for an accounting. So he ruled it was impossible as a matter of law, for the government to ever account for everything that ever happened.”
Attorneys then argued that plaintiffs were entitled to every dollar that was collected that the government couldn't prove they had paid out to the correct beneficiary. A second trial was held in 2008 to decide how much money the government collected and how much they had not paid out.
“Both sides started with how much was collected. The government said $14.3 billion since 1987 through 2008 had been collected through the trust.” Plaintiffs' attorneys calculated it was about $15 billion. Because there are so many “unknowns,” they felt it was a good starting point. “We said, 'OK, government, prove that you paid it. Where are the checks?' They couldn't do it and they didn't even try to do it.
“They came up with a technique which nobody with a straight face could say it is an honest technique ... they looked at their system and if they had gaps of information, they filled it in with what looks like it would fit there because of what happened in other years or other regions. They just guessed at their holes,” Guilder said.
At the end of the day, attorneys said plaintiffs were owed $46 billion. “The government was at $45 million,” he said.
CHRISTINE YAZZIE REPORTS:
Casper and the Mighty 602 Band
are among the performers at the contemporary NDN concert. It will held on Saturday, March 27, 2010. From 12 PM to 5 PM. Venue: Los Angeles State Historic Park, 1245 North Spring St., Los Angeles, CA 90012
Come on out!
Last remaining performances for Tales of an Urban Indian starring actor/writer Darrell Dennis (Shuswap). Venue: Autry National Center of the American West, 4700 Western Heritage Way, Los Angeles, CA 90027. See the premiere photos online.
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