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.