DEPARTMENT OF INTERIOR
DEPARTMENT OF AGRICULTURE
FOR IMMEDIATE RELEASE
TUESDAY, NOVEMBER 30, 2010 DOJ (202) 514-2007
WWW.JUSTICE.GOV DOI (202) 208-6416
USDA (202) 720-4623
ATTORNEY GENERAL HOLDER, SECRETARIES SALAZAR AND VILSACK
APPLAUD FINAL PASSAGE OF THE CLAIMS SETTLEMENT ACT
WASHINGTON – Today, the Departments of Justice, Interior and Agriculture applauded the bipartisan House passage of the Claims Settlement Act. The act, which recently passed the Senate, will provide long-awaited funding for the agreements reached in the Pigford II lawsuit, brought by African American farmers; the Cobell lawsuit, brought by Native Americans over the management of Indian trust accounts and resources; and four separate water rights suits made by Native American tribes. President Barack Obama has said that he will sign the legislation into law.
“These are truly historic settlements that do not only resolve litigation, but also offer a new relationship between many deserving Americans and the federal agencies that play an important role in their lives,” said Attorney General Eric Holder. “Bringing this litigation to a close has been a priority for this administration, and today’s vote in Congress is a significant, historic achievement. These cases provide fair deals for the plaintiffs and for the American taxpayers.”
“Congress’ approval of the Cobell settlement and the four Indian water rights settlements is nothing short of historic for Indian nations,” Secretary of the Interior Ken Salazar said. “The settlements honorably and responsibly address long-standing injustices and represent a major step forward in President Obama’s agenda to empower tribal governments, fulfill our trust responsibilities to tribal members and help tribal leaders build safer, stronger, healthier and more prosperous communities.”
“President Obama and I made a firm commitment not only to treat all farmers fairly and equally, but to right the wrongs in USDA’s past,” said Agriculture Secretary Tom Vilsack. “I applaud those who took this historic step to ensure black farmers who faced discrimination by their government finally receive justice. And I commend those who led this fight in the U.S. Congress and I am thankful for their unwavering determination. Today’s vote will help the Department of Agriculture move beyond this sad chapter in history. The bill that passed the Senate and House includes strong protections against waste, fraud, and abuse to ensure integrity of the claims process. In the months and years ahead, we will not stop working to move the Department into a new era as a model employer and premier service provider. We also must continue the good work we started to resolve all remaining administrative claims.”
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Bickering between Republicans and Democrats over how to pay for the Cobell settlement means Congress has shot past Friday’s deadline to approve a settlement in the long-running case involving discrimination against American Indians. Meanwhile, Cobell’s lawyers are debating their next step, reported The National Law Journal.
On Thursday, Sen. John Barrasso (R-Wyo.) argued that the settlement in the Indian case needs work and proposed an alternative, according to the Associated Press. The Cobell legislation had been tied to a separate settlement for black farmers.
The stall in the Senate meant Congress did not meet the Aug. 6 deadline for the Cobell legislation to be passed, and since the chamber is entering August recess, it will not take further action until at least mid-September.
Dennis Gingold, a solo practitioner representing the plaintiffs, told the paper that Obama administration officials should lobby Congress harder. “Why bother doing something that is this much of a landmark if you’re not willing to do what it takes to get it done?” Gingold said.
The Aug. 6 deadline was the sixth set by lawyers for Cobell and those from the Justice Department representing the government. A conference is scheduled to be held in the chambers of U.S. District Judge Thomas Hogan on Aug. 17.
A Justice Department spokesman had no immediate comment.
The settlement, named for Elouise Cobell, the lead plaintiff in the suit, was filed in 1996 on behalf of more than 300,000 American Indians.
Last December, the government and plaintiffs reached a $1.4 billion deal to settle the case, Cobell v. Salazar. However, the settlement requires congressional approval, and the original deadline, set for Dec. 31, 2009, has been extended six times.
Like an unwanted house guest, the Cobell settlement may require another deadline extension after being taken out of the Senate’s pending jobs bill.
The settlement between American Indians and the federal government — already on its fifth deadline extension set for July 9 — was recently attached to an unrelated jobs and tax package, which the House passed just before Memorial Day recess.
However, Republican senators have blocked the bill and Democrats were unable to win a procedural vote last Thursday, falling just three votes short of the 60 required.
Senate staffers subsequently removed the settlement from their version of the bill because they viewed it as an obstacle to passage, Indian Country Today reported Wednesday.
“It is Congress’ responsibility, not the Justice Department’s,” Dennis Gingold, lead lawyer for the plaintiffs, said in an interview last week. “They could put us on any legislation, but they put us on this bill for obvious reasons — because everybody thought it was going to pass.”
Now lawmakers have removed the Cobell settlement from the jobs bill, Gingold told Indian Country Today. He will continue to look for other must-pass bills and may seek another extension from the courts, he said.
There’s no reason to think there couldn’t be an extension, Gingold said in the interview, especially “knowing how difficult it was to get to the settlement agreement, and there were times when both sides I’m sure wanted to walk away.
“Those problems seemed to get mitigated when you come back to the table,” he added. “It’s still early in the year.”
The settlement, named for Elouise Cobell, the lead plaintiff in the suit, was filed in 1996 on behalf of more than 300,000 American Indians.
Last December, the government and plaintiffs reached a $1.4 billion deal to settle the case, Cobell v. Salazar. However, the settlement requires congressional approval, and the original deadline, set for Dec. 31, 2009, has already been extended nearly seven months.
Jim Manley, a spokesman for Majority Leader Harry Reid (D-Nev.), said in an e-mail on Friday that there was “no path forward right now” on the jobs bill to which the Cobell settlement had been attached. “We have done everything we could and Republicans objected every time,” Manley said.
As of Friday, he said there were no plans to attach the settlement to any other piece of legislation.
The Justice Department may need to rethink its plan to expedite approval through including the statement’s language in an unrelated tax bill if a new host bill cannot be found.
“We are committed to passing this legislation and will continue to work with congressional leadership to pass it,” said Melissa Schwartz, a Justice Department spokeswoman.
For the fifth time, lawyers in a class action suit brought by American Indians against the federal government have reached an agreement with the Justice Department to extend the deadline for Congress to approve a settlement. The new deadline is July 9.
“The Department of Justice continues its work to implement the Cobell settlement,” Justice Department spokeswoman Melissa Schwartz said in a statement. “In light of the legislative schedule, the parties have agreed to extend the June 15, 2010 legislative enactment deadline for congressional enactment to July 9, 2010.”
Justice and Interior Department officials announced in December that they had reached a deal with the American Indian plaintiffs to settle a lawsuit that accused the Interior Department of mishandling thousands of individual Indian trust fund accounts over more than a century. The lawsuit is called Cobell after lead plaintiff Elouise Cobell. But the $1.41 billion deal requires congressional approval, and the deadline for Congress to sign off on the deal has already been extended several times.
“It’s not an arbitrary date, there’s a lot of activity going on right now,” lead counsel for the plaintiffs Dennis Gingold said. “Obviously we’re hoping it’s going to be passed before [the deadline].”
The House passed legislation approving the deal late last month, but the Senate still needs to OK the agreement before it can go into effect. The required legislation is attached to an unrelated jobs and tax package that is currently awaiting a vote on the Senate floor.
One issue of contention is the cap on lawyers’ fee. Sen. John Barrasso (R-Wyo.) has proposed an amendment that would cap the fees at $50 million, instead of the $100 million specified in the deal.
The head of the country’s most prominent Native American organization, the National Congress of American Indians, recently sent a letter to Senate leaders in support of the Barrasso amendment.
Attorney General Eric Holder and Interior Secretary Ken Salazar wrote letters to Senate Majority Leader Harry Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.) asking the Senate to pass the settlement without amendments. According to Holder and Salazar, any changes could nullify the deal.
Reid has scheduled a procedural vote to end debate on the measure for Wednesday, but he may be short of the 60 votes needed to overcome a Republican filibuster of the package.
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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With action from Congress not expected before Sunday, the deadline for a settlement in a long-running case on the misuse of Indian trust funds was extended until mid-April, a Justice Department spokeswoman confirmed to Main Justice.
“In order for the agreement to remain valid after its existing February 28, 2010 legislative enactment deadline, the parties have agreed to extend that deadline through Friday, April 16, 2010,” DOJ spokeswoman Melissa Schwartz said.
The parties announced on Dec. 8 that they had reached a settlement in Cobell v. Salazar, a lawsuit that accused the Interior Department of mishandling funds in trust funds that belong to individual American Indians.
One of the largest class action lawsuits against the U.S. government, the case was originally filed in 1996 by Elouise Cobell on behalf of more than 300,000 American Indians holding individual 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.
Because Congress will not pass the required legislation before Sunday, the deadline was extended once again.
In late January, both sides were hopeful they could meet the deadline, but left open the option of extending it if Congress was unable to reach the deadline.
“We’re certainly hopeful that we will get passage of that,” Associate Attorney General Thomas Perrelli told Main Justice in late January. “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 in late January that the settlement did not have any serious opposition.
“The holdup doesn’t have anything to do with our particular legislation,” said Harper. “Both sides have been supportive of this resolution.”
‘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.”
Harper was not immediately available to comment on the latest extension.
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: