Attorney General Eric Holder and Agriculture Secretary Tom Vilsack on Wednesday said the government has taken steps to prevent fraud in recent major settlements with black farmers and American Indians.
Congress last month passed legislation to pay $1.15 billion to settle a case known as Pigford II, in which African-American farmers alleged discrimination in Agriculture Department loan programs; and $3.4 billion to resolve Cobell v. Salazar, in which American Indians alleged they had been shortchanged by the Interior Department on royalties. President Barack Obama signed the bill Wednesday.
Conservatives, who have been critical of the legislation, say it has the potential for fraud, TPMMuckraker reported.
Holder and Vilsack answered questions from reporters Wednesday after attending a joint Department of Justice-Agriculture Department workshop on antitrust issues in the agriculture industry in Washington.
Vilsack said: “I think we have in place appropriate steps and we must recognize that what we’re doing here is compensating for acts of discrimination that took place some time ago.” He added, “I think there are significant safeguards that have been placed in the settlement process in addition to those that would occur just generally, which is a review by an independent arbitrator and adjudicator.”
According to Vilsack, to receive payout, people will need approval from the USDA inspector general and the comptroller general.
Holder added: “The fraud concern is legitimate, and one that I think the secretary has indicated has been addressed in the past and we’ll continue to use those mechanisms to implement this new settlement.”
This story has been updated.
The deadline for congressional approval of the settlement of a long-running class action suit filed on behalf of more than 300,000 American Indians has been extended until May 31, The Blog of Legal Times reported Thursday.
Senior Judge James Robertson of the U.S. District Court for the District of Columbia announced the new deadline for approval of the Cobell v. Salazar settlement in court Thursday following a 45-minute meeting with Justice and Interior lawyers and the attorneys for the plaintiffs.
The congressional deadline for endorsing the $1.41 billion deal has now been extended three times since Justice Department and Interior Department officials announced in December that they had reached a deal with the American Indian plaintiffs on the mishandling of thousands of individual Indian trust fund accounts over more than a century.
“The need for Congress to act is real,” Robertson said, according to The BLT. “It needs to get done.”
Robertson said he will hold a public hearing if Congress fails to approve the settlement by the May deadline.
Keith Harper, a lead attorney for the plaintiffs including Elouise Cobell, said he is frustrated that Congress hasn’t held floor votes on the legislation to endorse the settlement. Harper said the “vast majority” of people contacted by the plaintiffs support the deal.
Obama administration officials, including Associate Attorney General Thomas Perrelli and Interior Department Deputy Secretary David Hayes, have encouraged Congress to move on the settlement legislation quickly.
“The message from the judge today is this needs to get done,” Hayes told The BLT. “We welcome the message.”
This post has been corrected.
The lead plaintiff in a long-running class action suit criticized Congress Wednesday for its slow pace in approving a proposed settlement of the case.
Appearing before the House Natural Resources Committee, Elouise Cobell, the named plaintiff in the suit filed in 1996 on behalf of more than 300,000 American Indians, expressed frustration at how long it has taken congressional leaders to consider the legislation necessary to OK the settlement.
“I thought that all we had to do was come and talk to Congress because they had so many years and they knew about this, and it’s almost like sometimes Congress acts oblivious to all the issues that we talked about,” Cobell said.
Early last December, the government and the plaintiffs reached a $1.4 billion settlement in Cobell v. Salazar. The lawsuit, which is one of the largest class action suits against the government in U.S. history, alleged that the Interior Department mishandled thousands of individual Indian trust fund accounts over more than a century.
The settlement requires congressional approval, however. The original terms gave lawmakers a Dec. 31, 2009, deadline to finish the necessary legislation. That deadline has been extended twice and is now set to expire on April 16.
Aides on Capitol Hill questioned the short deadlines given the time it often takes Congress to pass legislation. A person familiar with the temporary settlement arrangement said that the judge who handled the case — District Judge James Robertson — dictated the legislative deadline.
But critics of the settlement, some of whom appeared before the committee on Wednesday, said they want more time to find out how account holders would benefit under the proposed settlement. The critics said there has not been enough transparency and criticized the communication with Native American leaders.
Representatives from the Justice Department and the Department of the Interior shot back at the suggestion they have not reached out to Native Americans, pointing out that they were on a conference call with tribal leaders the day the settlement was announced.
The department officials also said they plan to begin a massive public relations campaign once Congress approves the legislation. Deputy Secretary of the Interior David Hayes told the panel that it would have been presumptuous to educate the public about the details of the settlement before Congress has given its approval.
Cobell said she was frustrated by the “misinformation regarding the settlement conveyed by a very small number of individuals, many of whom are not beneficiaries and do not speak for individual Indian beneficiaries.”
But the concerns aren’t just about communicating the latest information to all involved parties. Richard Monette, former chairman of the Turtle Mountain Band of Chippewa, testified that the proposed Cobell settlement would be a “breach of trust.”
And Michael Finley, who chairs the Inter-Tribal Monitoring Association on Indian Trust Funds, told lawmakers that many of those he spoke with had problems with the size of attorneys fees arising from the settlement.
Under the terms of the proposed agreement, lawyers could receive between $50 to $100 million, plus payment of up to $12 million for work performed after the settlement.
Government officials said that the caps on attorneys fees are very low compared to other class-action suits.
Finley also cited the first deadline — Dec. 31, only weeks after the settlement was announced — as raising suspicions about what was contained in the agreement. “No one understood the reason for the very short time frame and it made people very wary of what was actually being proposed,” Finley said.
He also said that it was not possible for many people affected by the settlement to go to a Web site to get answers to their question, when many of them “have no electricity in their homes and limited access in their communities.”
Another witness, Austin Nunez, representing the Indian Land Working Group, said the organization’s board of directors had endorsed the legislation, despite concerns about some of the details of the settlement,.
The Next Steps
All the witnesses promised lawmakers they would respond to their questions and concerns within two weeks.
Recently the Obama administration began circulating a draft of legislation in the House and is working with leadership in that chamber to move it forward.
According to Senate aides, Sen. Byron Dorgan (D-N.D.) is trying to find the right bill to which he can attach the language approving the settlement, in an effort to speed the legislative process in the Senate.
If Congress does not act, or if there are any changes to the proposed legislation, the settlement agreement will become null and void.
Although they raised some concerns about the proposed legislation, both Natural Resources panel Chairman Nick Rahall (D-W.Va.) and the committee’s top Republican, Doc Hastings of Washington, indicated they shared the Justice Department’s goal of closing the matter.
Associate Attorney General Thomas Perrelli said that he hoped that both congressional authorization and final approval from the court would happen quickly.
Throughout the negotiations, government lawyers were guided by two principles, Perrelli said.
“First, we wanted true peace for the parties, he said. “We wanted to turn the page on history. The resolution of the accounting and trust administration pieces of this litigation will do that. And second, we wanted to put Interior on a new path for the future, and to give it tools to address some of the underlying conditions that have contributed to its challenges. The land consolidation program will do that.”
An earlier version of this post incorrectly stated the amount of the settlement agreement. It is $1.4 billion.
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If things had gone according to schedule, the implementation of the settlement of one of the largest class action suits brought against the U.S. government would have already gone through Congress, been approved by a judge and the government would soon be cutting checks. But the legislative branch does not always work on the judicial branch’s schedule.
On Wednesday morning, Associate Attorney General Thomas Perrelli will take to the Hill to urge legislators to pass a bill that would finally end a lawsuit that has played out in courts for nearly 15 years.
On Dec. 7, the government reached a $3.4 billion settlement in Cobell v. Salazar. The lawsuit, filed by Elouise Cobell on behalf of more than 300,000 American Indians, alleged that the Interior Department mishandled thousands of individual Indian trust fund accounts over more than 100 years.
The settlement requires congressional approval, however, and the original terms gave lawmakers a Dec. 31 deadline to finish the necessary legislation. That deadline has been extended twice and is now set to expire in April.
Congressional aides said they were not asked for input on the establishment of the deadline. Nor did the Justice Department lawyers who negotiated the settlement consult with members of Congress about the logistics of passing legislation just as Congress was dealing with other top priority issues — namely health care legislation — in an effort to complete work before its end-of-session Christmas break, according to the aides. A person familiar with the negotiations said that Judge James Robertson, the U.S. District Court judge who heard the case, dictated the short deadline.
Aides in the House and Senate said both the original deadline of Dec. 31 and the second extended deadline of Feb. 28 were unreasonable. Aides said they are more optimistic about the new April 16 deadline, but nobody is making any promises.
As the parties to the settlement wait for congressional approval, Cobell and her team are left with only private funds to explain the terms of the settlement to a hard-to-reach segment of the population. A massive planned government-backed awareness campaign – which includes television, radio, and print advertising across Indian country, as well as materials explaining the settlement in Native American languages — will not kick in until after Congress acts.
According to Cobell, government lawyers did not want to allocate any funds for outreach to Indian Country prior to the passage of legislation.
“The government instead assured us that legislation would be passed a few weeks after we signed the settlement agreement on Dec. 7,” Cobell wrote in the Native American Times. “Unfortunately, legislation was not passed (and has still not been passed) and the need to meet with Indian Country is stronger than ever.”
A Justice Department spokeswoman noted that Perrelli and the Solicitor of Interior Hilary Tompkins recently appeared before the National Congress of American Indians to answer questions on the settlement and that other federal representatives have appeared before tribal organizations.
“If Congress enacts legislation, we can then — per the settlement – provide for more extensive outreach to inform individual Indians and tribal governments about the settlement,” DOJ spokeswoman Melissa Schwartz said.
Bill Dorris, one of the lawyers representing Cobell, said that in talking with the Justice Department and with members of Congress, they have not found any real opposition to the legislation. Dorris said he was unsure why the legislation has not yet moved forward.
“We hope the new goal is realistic, we haven’t heard anything to indicate otherwise,” said Dorris.
Perrelli is set to testify before the House Natural Resources Committee Wednesday along with Cobell and several other American Indian leaders.
The Natural Resources panel’s top Republican, Doc Hastings of Washington, is expected to press the witnesses about how lawyers who negotiated the deal would be paid and about the lack of regional consultations between the Obama administration and Indian Country.
“The executive branch obviously wants this to happen quickly,” said Spencer Pederson, a spokesman for committee Republicans. “This will give us some opportunities to get some questions answered at the hearing.”
Those scheduled to testify at Wednesday’s hearing include:
Michael Finley, president, Intertribal Monitoring Association on Indian Trust Funds.
Austin Nunez, chairman, Indian Land Working Group.
Richard Monette , professor, University of Wisconsin Law School.
David Hayes , deputy secretary of the Interior.
Thomas J. Perrelli , Associate Attorney General.
This story has been modified to clarify that the judge who is hearing the case has not yet approved the settlement, since it requires Congressional action.
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A top Justice Department official and a lawyer representing hundreds of thousands of Native Americans in a long-running class action lawsuit say they are hopeful that Congress will be able to pass the required legislation to move the settlement forward before next month’s deadline.
The parties announced on Dec. 8 that they had reached a settlement in Cobell v. Salazar, in which the Interior Department was accused of mishandling funds in Indian trust funds which belong to individual Native Americans.
One of the largest class actions ever filed against the U.S. government, it was originally filed in 1996, by Elouise Cobell on behalf of more than 300,000 Native Americans holding individual Indian money accounts. In the waning days of 2009, both parties agreed to extend the year-end deadline for final resolution of the settlement to Feb. 28, 2010.
“We’re certainly hopeful that we will get passage of that,” Associate Attorney General Thomas Perrelli told Main Justice on Thursday. “I don’t have any specifics. But we remain hopeful that it’s going to get passed.”
Keith Harper, a Kilpatrick Stockton lawyer representing Cobell, told Main Justice that he is “still cautiously optimistic despite the gridlock on Capitol Hill.” Harper said his firm continues to work on figuring out ways to notify the plaintiffs so that they will be “ready to go” when the legislation is passed.
“The holdup doesn’t have anything to do with our particular legislation,” said Harper. “A lot is happening on the Hill, but I don’t have a sense of any serious opposition. Both sides have been supportive of this resolution.”
Asked about the possibility of extending the Feb. 28 deadline, Harper said they would “cross that bridge when we get to it.”
‘There are a lot of moving parts, but both sides agree that this is the right thing to do,” said Harper. “Whether we can continue to extend the deadline is another question, but right now all energies are focused and we’re feeling very good.”
UPDATE: The deadline has been extended until Feb. 28, writes BLT. No other conditions of the settlement changed according to Cobell lawyer Keith Harper, who signed the agreement with the Justice Department Tuesday afternoon.
Lawyers representing Elouise Cobell, the main plaintiff in the long-running Indian trust litigation, are in discussions with the government about possibly extending Thursday’s deadline to finalize a settlement agreement that required action from Congress.
The settlement reached earlier this month required Congress to pass legislation authorizing payment to the plaintiffs by Dec. 31. Congress did not take action before adjourning for its holiday break.
Keith Harper, one of the lawyers for Cobell, confirmed ongoing discussions to the Blog of Legal Times.
The settlement of the case, Cobell v. Salazar, was announced at a press conference at the Department of the Interior on Dec. 8, and was discussed before the Senate Indian Affairs Committee on Dec. 17.
“[T]he litigation has drained federal resources from Indian Country, and has created a poisonous atmosphere for the administration of the federal government’s trust responsibilities in Indian Country,” said Associate Attorney General Thomas Perrelli in testimony before the Senate Indian Affairs panel.
“Throughout our discussions with the plaintiffs, we have been guided by two principles,” said Perrelli. “First, we wanted true peace for the parties. We wanted to turn the page on history. The resolution of the accounting and trust administration pieces of this litigation will do that.”
Cobell v. Salazar was one of the largest class actions ever filed against the U.S. government. The lawsuit, originally filed in 1996, was brought by Cobell on behalf of more than 300,000 Native Americans holding individual Indian money accounts.
If approved and funded by Congress, the $3.4 billion settlement agreement includes $1.4 billion that would be distributed to class members to compensate them for their historic accounting claims and to resolve potential claims that prior U.S. officials mismanaged the administration of trust assets, according to the Justice Department.
The other $2 billion would go to establish a land consolidation program to 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. The allegations of mismanagement went all the way back to 1887.
“What we’ve long thought was needed was leadership on the other side,” Harper told Main Justice earlier this month. “For people to recognize that we could litigate forever on both sides, but it’s far better to resolve the case and try to build a foundation upon which there can a more healthy and trusting relationship.”
“You have a president now who has committed to that and made very clear that this was one of his priorities, you have a secretary of the Interior who has made it one of his priorities,” said Harper.
“Trying to judge whether something will get through Congress is challenging,” said Harper earlier this month. “Would I be shocked if it didn’t? No, but that’s just the way this town works, but it’s just hard to predict with any precision, but I’m optimistic.”
View video from the Dec. 8 press conference below:
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Attorney General Eric Holder this morning announced a settlement totaling more than $3.4 billion in a long running class-action case — Cobell v. Salazar — in which the Interior Department was accused of mishandling funds in Indian trust funds which belong to individual Native Americans.
It was one of the largest class actions ever filed against the U.S. government, said Holder. The lawsuit, originally filed in 1996, was brought by Elouise Cobell on behalf of more than 300,000 Native Americans holding individual Indian money accounts.
The settlement still must receive congressional approval, which Interior Secretary Ken Salazar said he hoped would happen by the end of the year. A court would also have to approve the settlement, which Salazar anticipated would happen over the next several months.
The $3.4 billion settlement includes $1.4 billion that will be distributed to class members to compensate them for their historic accounting claims and to resolve potential claims that prior U.S. officials mismanaged the administration of trust assets, according to the Justice Department.
The other $2 billion will go to establish a land consolidation program to 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, the Justice Department said.
Holder said the U.S. has tried to settle this case many times, and indeed this settlement almost failed in the last moments. Both parties were able to come to an agreement late last night.
Of the $2 billion, the settlement authorizes the Interior Department to set aside up to 5 percent of the value of the land sold back to the government into a scholarship fund for Native American students.
With the scholarship fund, said Cobell, a member of the Blackfeet tribe in Montana, “the Indian people have something to look forward to for the future.”
“We’ve suffered too long in the government’s hands and now it’s time for change,” said Cobell.
“If it was me, I would fight on for another 100 years, I was not tired,” she said. “I wanted to continue to fight on, but the deciding factor was, I live in Indian country and I see every single day people dying without their money and you just can’t take it anymore.”
Holder said the settlement was significant move from the government, which up until this point had not agreed that it owed the plaintiffs any money.
“The United States could have continued to litigate this case, at great expense to the taxpayers. It could have let all of these claims linger, and could even have let the problem of fractionated land continue to grow with each generation,” said Holder. “But with this settlement, we are erasing these past liabilities and getting on track to eliminate them going forward.
Holder thanked her for her willingness to compromise, said Cobell.