Senior administration officials today defended the proposed $1.4 billion settlement to resolve a long-running Indian trust dispute, telling skeptical members of a House committee that the resolution, which requires congressional authorization, is fair and appropriate.
Members of the House Natural Resources Committee questioned Thomas Perrelli, the associate attorney general, and David Hayes, deputy secretary for the Interior Department, about the settlement to resolve the lawsuit that Elouise Cobell filed in 1996 in the U.S. District Court for the District of Columbia.
Lead class member Cobell, represented by D.C. solo practitioner Dennis Gingold and a team of Kilpatrick Stockton lawyers from Washington and Atlanta, is seeking an historical accounting of billions of dollars the federal government has held in trust for American Indians. The suit alleges mismanagement in the collection and distribution of money owed to Indians stemming from the exploitation of natural resources on their land by private parties.
Today, several members of the House committee questioned whether the dollar amount of the suit is sufficient to settle the claims. The members also are trying to wrap their heads around the proposed range of attorney fees in the case—$50 million to $100 million. Obama administration officials, including Attorney General Eric Holder Jr., announced the settlement in December at a press conference at the Interior Department.
Twice since the settlement was announced, the lawyers in the case agreed to push back a deadline by which they want Congress to pass legislation approving the deal. The first deadline was Dec. 31. Then it was Feb. 28. Now, the deadline is April 16. Kilpatrick attorneys and DOJ officials have said they are confident Congress will act by then. Proposed legislation has been submitted to the House but no bill has been introduced.
Rep. Doc Hastings (R-Wash.), ranking member of the Natural Resources Committee, today said he was concerned about the passing of two expiration dates. Despite the urgency for action, no legislation has been introduced in either the House or Senate, Hastings said. “This raises the question of when and how this settlement agreement will be enacted,” he said.
Hastings also questioned the size of the proposed attorney fees. “Now that is a very high amount of money,” he said. He added: “There appears to be no accounting or records to back up these high levels of fees.”
Committee Chairman Rep. Nick Rahall II (D-W.Va.) said in a statement during the hearing: “The trust fund mismanagement and lawsuit have been very frustrating to all involved and at times tempers overheated. Thankfully we have with us today only persons dedicated to bringing this chapter to a close and willing to do the work needed to see that happens.”
One witness who testified today, Michael Finley, chairman of the Inter-Tribal Monitoring Association on Indian Trust Funds, said he is hearing from constituents that they have a “problem with that large amount of [attorney fees] coming out of the settlement.”
Another witness, professor Richard Monette of the University of Wisconsin Law School, said he shares in the concern about the fees. Monette called the settlement a deal “struck behind closed doors.”
Kilpatrick co-managing partner William Dorris testified that the presiding trial judge in the case has the final say on what the lawyers are paid. The proposed range, Dorris said, is based on a percentage that is below the norm in class actions in Washington federal court.
In his written testimony, Interior official Hayes said the government believes as “much of the fund as possible should go to the individual class members. If the judge awards a figure within that range, the parties in the settlement have agreed they will not appeal the court’s determination.”
The plaintiffs’ attorneys also have a right under the settlement to seek payment for work performed after the settlement date. That award would be based on attorney hours and billing rates—up to a cap of $12 million, according to Hayes.
Perrelli, Hayes and Cobell said today that there has been extensive outreach already as government officials and members of the class seek to explain to Indian country residents the terms of the proposed settlement. Hayes said he anticipates radio, TV and print being used down the road to further spread the word.
Government representatives recently appeared before the National Congress of American Indians to answer questions about the settlement, said Perrelli, who was part of the contingent.