From the left, Solicitor of the Interior Hilary Tompkins, Deputy Secretary of the Interior David Hayes and Associate Attorney General Thomas Perrelli. Elouise Cobell and her lawyers are seated to the right (photos by Ryan J. Reilly).

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.

Elouise Cobell (photo by Ryan J. Reilly).

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.

Ranking Member Rep. Doc Hastings (R-WA) and Chairman Rep. Nick Rahall (D-WV).

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.

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.

Elouise Cobell (photo by Ryan J. Reilly / Main Justice)

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.

Elouise Cobell

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.