Wyoming Senator Pitches $50 million Cap on Fees in Cobell Case

Ever since Judge James Robertson of Washington federal district court urged Congress to act on the Cobell settlement, there’s been a lot of buzz on Capitol Hill about the proposed deal, which would award more than $1.4 billion to a class of hundreds of thousands of Indians.

The deal, announced in December, can't move forward without congressional approval, and the deadline for Congress to pass the necessary legislation has been extended three times already. Robertson pushed back the latest deadline to the end of May, and he said he would invite members of Congress to testify before him if nothing is done about approving the settlement before then.

Yesterday, Sen. John Barrasso (R-Wyoming) proposed five changes to the settlement—including imposing a $50 million cap on pre-settlement attorneys fees, costs and expenses. That’s half of the $100 million cap that the plaintiffs’ lawyers had agreed to with Justice and Interior department attorneys. Barrasso first voiced concern over the amount of attorneys fees during a Dec. 17 hearing of the Senate Indian Affairs Committee.

Lawyers for lead plaintiff Elouise Cobell—she is represented by a team from Kilpatrick Stockton in Washington and in Atlanta, and D.C. solo practitioner Dennis Gingold—have agreed to a range of fees between $50 million and $100 million, which would be taken from the $1.41 billion settlement. Plaintiffs’ lawyers in Washington have said the range is well below the percentage awarded in large, complex class actions.

Gingold today called the proposed fee range “bottom of the barrel” and also said that the plaintiffs’ lawyers never thought there would be unanimous support for the settlement on Capitol Hill. “Sen. Barrasso is one person who has expressed opposition,” Gingold said. “We know that we have very strong supporters in the House and Senate.”

More after the jump.

Kilpatrick Stockton partner Keith Harper was not immediately reached for comment this morning on the proposed amendments to the settlement.

The Cobell suit has been anything but swift: it was filed in 1996 in the U.S. District Court for the District of Columbia. The suit seeks an historical accounting of billions of dollars held in trust stemming from leases on Indian land for minerals, timber and natural gas, among other resources. Several efforts to settle the case over the years failed.

Last week, Senate Majority Leader Harry Reid (D-Nevada) urged his colleagues to approve two settlements—the Cobell deal and a settlement in the Pigford case in which black farmers have been in litigation against the Agriculture Department.

House Majority Leader Nancy Pelosi said in a statement April 23 that she is “committed to finding funding for the Pigford and Cobell settlements.”

If Congress approves the Cobell settlement, that’s not the end of the road for the plaintiffs’ and government lawyers. Congressional approval would put the settlement in front of Robertson, giving class members a chance to object to all, or part, of the proposed deal, including attorneys fees.

Earlier this month, at a status hearing in the case, Robertson said “from where I sit, this does not look like a partisan matter.” He said the settlement needs “an appropriate sense of priorities” and urged Congress to move swiftly. Robertson said that until Congress acts, "justice is on hold.”

Comments

[Kimberly Craven]

Like many of the 384,000 federally recognized tribal members who are certified members of the class action lawsuit, Cobell v. Salazar, I was pleased when I learned the Obama Administration and the four named plaintiffs had reached a settlement in December 2009. But after a careful reading of the full settlement, I am disappointed and outspoken in my efforts to educate Indian Country about its ramifications. As the old adage goes, the devil is in the details of what the plaintiffs have agreed to in exchange for settling their 14 year old lawsuit. I see three key issues that must be resolved before the settlement is ratified by Congress and goes back to the Court.
First, the plaintiffs have agreed to the Administration’s request to create a totally new class of plaintiffs to extinguish claims which are entirely outside the scope of the current litigation. The new class, for $500 plus a formula amount, is asked to forever extinguish all their claims for the past mismanagement of their land and its resources – timber, water, grazing or other economic use. The Cobell suit was filed in a Court of Equity that could order an historical accounting as a remedy but it is NOT a court that could award monetary damages. But yet, here we are being offered $3.4 billion dollars? The Obama Administration seems determined “to wipe the slate clean” and “turn a page” without even bothering to find out what is on the slate and whether the page can or should be turned at this time. To many Indian people, a new beginning will consist of restoring and repatriating our homelands to tribes and Indian families in a way that has never occurred before. This new class needs to be dropped out of the proposed settlement. Then the original accounting class might receive between $3,000 to $4,000, not the $1,000 currently proposed.
Secondly, $2 billion of the settlement goes to the Bureau of Indian Affairs (BIA) to purchase back fractioned lands, through the Indian land Consolidation Act that will eventually be returned to the tribes. Neither the tribes, their members or the lawsuit plaintiffs will have any say over which lands are repurchased and consolidated. Rather, the agency most responsible for mismanagement of Indian land will be given sole discretion. After 10 years, any unspent funds revert back to the Treasury. To me, this is an illusory promise and the “reverter clause” is highly frowned upon in class action settlements. The $2 billion should be put in a permanent trust fund account for the tribes where the interest may be spent on repatriating and restoring lands, for tribes and Indian families who want to reclaim their ancestral homelands.

Sen. Thomas Barrasso (R-WY) has asked Tribes and Indian people to submit their ideas about how the settlement might be strengthened to better meet the needs of Tribes and Indian people. I appreciate this good faith effort much more than the current efforts to tack the required settlement legislation onto other Congressional bills without benefit of a public hearing on the merits. Transparency is an important element for a healthy democracy – even for Indians.

[Tom]

A little more info on what the Cobell case is about would be helpful. This is the 2nd article today in which news on "process" is reported at the expense of news on "substance".

[Oohenunpa Waste]

I'm happy-as an IIM acctholder-that Congress
is not just rubber stamping this top heavy
deal! I never asked cobell to litigate my cause or those of my Lakota relatives but since she needed to gain legal standing she used us all to help her case! gingold calls the propsoed cap, 'bottum of the barrel' which is where he will join the bulk of us class parties except he'll reap millions! I think atty fees should come from EGA fund and at least half of the 3 billion land consolidation $$ should be parcelled up to IIM acctees! I'm glad cobell/plaintiffs are being mentioned to verify costs herein! A deal with Indian country is long overdue but
this one is just too sweet fro cobell/attys
and a bitter pill for us IIM acctees!