The Justice Department today defended in a Washington federal appeals court the historic $3.4 billion settlement to resolve claims that the government mismanaged Native American trust accounts for decades.
The settlement in U.S. District Court for the District of Columbia, which ended more than a twelve years of hostile litigation, received congressional approval in December 2010.
The deal compensates potentially 500,000 individual Indian trust account holders. The federal government collected money from leases for farming, timber sales, mining and other activities. Lead plaintiff Elouise Cobell, who died in October, filed suit to obtain an historical accounting of the trust program.
Critics of the deal contend the settlement will overcompensate some class members while not paying enough to others. The class attorneys, including a team from Kilpatrick Townsend & Stockton, contend the overwhelming majority of potential class members support the settlement. A trial judge in Washington called the settlement fair and reasonable.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit took up the settlement's fairness today at 45-minute hearing. The court examined, among other things, the cost and potential impossibility of an historic accounting. The panel did not immediately rule.
The Justice Department’s Thomas Bondy in court called the settlement rational and sensible.
“Its terms are fair to the members of the plaintiffs’ class,” Bondy said. “In the government’s view, this settlement represents a significant and welcome step forward in terms of Indian trust reform.”
Bondy acknowledged that the settlement contains what he called an element of “rough justice.” Still, he argued the deal is not random and arbitrary. “This is more than a fair settlement,” he said. “It’s a generous settlement.”
Theodore Frank of the Center for Class Act Fairness, representing a class member who is opposed to the settlement, said the government and counsel for the plaintiffs took “procedural shortcuts” to reach the deal. He rejected the notion that there are sufficient similarity among class members to allow the group to be certified.
Frank argued today that inter-class conflicts—among other things, the potential for arbitrary monetary awards—undermines the fairness of the settlement. The “fatal flaw” in the settlement, Frank declared, is that not every class member is fairly compensated by a $1,000 payment.
“How do we know that at this point in the litigation?” Judge David Tatel asked.
Frank pointed to Cobell’s testimony before Congress, in which she talked about claims worth millions of dollars. Frank said his client, Kimberly Craven, has a variety of trust interests whose value remains undetermined.
“You can’t know whether it’s worth $1,000 until you have the actual accounting,” Frank said at the hearing today.
Tatel questioned whether any examination of the trust accounts will come close to providing answers to Frank’s question. Members of Congress have expressed a disinclination to fund an historical accounting.
A panel in the D.C. Circuit ruled earlier in the case that an accounting of "low-hanging fruit" is possible. The panel judges seemed puzzled at defining "low-hanging fruit" and whether such a review would be beneficial anyway.
Indeed, Tatel and Judge Judith Rogers explored the extent to which an historical accounting is impossible. Rogers noted that the plaintiffs rejected a statistical modeling program to develop an historical accounting.
The size and importance of the settlement is inconsequential, Tatel said, if there is evidence that class members are being overcompensated or undercompensated. “It would be unfair,” the judge said.
“This court, more than anyone else, knows how long it’s taken to get here,” Tatel said. “We got the point.”
Kilpatrick partner Adam Charnes, based in the firm’s Winston-Salem office, argued today for the class members.
Earlier rulings in the D.C. Circuit, Charnes said, have made it “crystal clear” that there will be no “meaningful” historical accounting. Historical account class members are giving up their right to a full review of trust money in exchange for $1,000.
At the end of the hearing, Tatel asked Frank whether the case can be settled without an historical accounting. The government, Tatel said, wouldn’t likely agree to a deal where individual plaintiffs can opt out of any settlement in order to seek an historical accounting.
Frank argued that individual Native Americans who want to pursue their own accounting claims can file suit for monetary damages in the U.S. Court of Federal Claims.
The matter of settling for the paltry sum of $3.4 Billion is what concerns me.
The government wants these claims by Indians to go away yesterday.
Other matters that concern me is signing away the right to future claims which may arise for a one time $1,000 payment. NOTE this pay out of $1,000 amounts to $500,000,000.00. One-fourth of the amount of the settlement.
I believe this settlement should be void and that the government should be made to account for the money and resources they have held in trust for Native America for over a century. When they do the sum of $4 Billion is nothing.
Consider, in the government's eyes paying the Great Sioux Nation $17 Million for the illegal taking of the Black Hills, and adding simple interest to total $105 Million was a fair and just settlement. NOW we know that $70 Billion in gold has been extracted from the Black Hills and that it is the second largest gold strike in the history of the U.S.A.
The settlement before us today will make the Black Hills settlement pale in comparison. BELIEVE me, if they are offering $4 Billion to Indian Country, and refuse to fund or do an accounting, there is more at stake than meets the eye. The U.S.A. does NOT generously deal with Indians or tribes.
WE AS A PEOPLE, should reject the entire settlement and demand an accounting from Congress and the U.S.A. The U.S.A. has been subsidized by Native America since it formed as a union and still is to this day.
If President Obama means what he says when he wants Native America to be welcomed into the national economy, we do not need a handout nor do we want or expect a handout to participate in the economy.
VERY SIMPLY PUT, pay NATIVE AMERICA what you rightfully owe. Starting with this settlement, account for all that was taken and stolen from Native America for the past century, add the simple interest and then let us meet across a table with an accurate figure of the theft from Native America in question in this instance.
Taz A. Duysak Jr. (Lakota) President
Organization for Native American Unity
Rosebud, SD. USA. 57570
[email protected]
Posted by: Taz A. Duysak Jr. | February 21, 2012 at 10:45 AM
As I follow this appeal of the settlement, I am convinced more and more Ms. Craven is holding the disbursement process hostage in hopes of getting a bigger piece of the pie. Ms. Craven's is not a novice to the workings or our government and is not in the position to claim she did not know how to "opt out" of the settlement. She had plenty of time, and knowledge, to pursue her individual issues via the courts. But she did not. I believe she is holding the monies hostage in an effort to get a nuisance settlement to gain more monies from the rest of us trustees.
Posted by: M. | February 17, 2012 at 11:42 PM
Let's face it, Craven has a political agenda, probably funded by the Republican party. She is not concerned with justice but in doing the will of her masters. Craven has been against the lawsuit from the very beginning. If she loses this appeal, look for her to obstruct it even further, by appealing all the way to the Supreme Court.
Posted by: Ernest David Poafpybitty (Comanche Nation) | February 17, 2012 at 06:20 PM
I would like to know like many others that are waiting for the "settlement" monies, while these appeals are going on, we sure hope our monies are going to be collecting "interest" while we are forced to wait until the appeals are completed - what date or year will that be? I feel bad for the elders who might not be alive by then
Posted by: Teresa Crane | February 17, 2012 at 05:11 PM