BY JAY DANIELS
Retired Bureau of Indian Affairs Realty Specialist
On Aug. 20, 2012, Kimberly Craven, a member of the Sisseton-Wahpeton Oyate tribe, filed a Petition For Writ Of Certiorari with the Supreme Court of the United States in her appeal of the Cobell v. Salazar settlement. Here are the questions she presented:
1. Whether a court may impose on an objector the burden to provide evidence of a structural conflict where it concedes that the defendant’s conduct has destroyed any such evidence; and
2. Whether the payment of incentives to named plaintiffs of an amount more than eighty times the award due each class member compromises their ability to adequately represent the class at settlement.
On Sept. 21, 2012, the federal government filed with the U.S. Supreme Court (Court) a “Brief for the Federal Respondents in Opposition” in response to Craven’s appeal to the Court. The Federal Government’s question to the Court was “Whether the court of appeals correctly affirmed the district court’s decision approving the settlement of the long-running Cobell Indian trust class action litigation.”
Everyone knows Cobell has been ongoing for a long time. How much longer depends on one very important decision to be made by the Court. Will certiorari be granted to the appellant, Craven, et al. to be heard and decided upon, or will certiorari be denied, meaning that Craven’s quest is over?
At the crux of Craven’s complaint is that the settlement is unfair and others benefit from other IIM, Individual Indian Monies, account owner’s expense. Class representatives, class attorneys and class members may receive compensation that is injurious in comparison to members. Since 1985, some IIM account owners have received significantly more income from trust resources than others. But yet, each will be paid almost equal. Is that justice? Practically speaking, I would think that before any deal is agreed upon, every member would be given the opportunity to review the settlement agreement, question provisions, suggest provisions, or opt out before the agreement is approved. It’s hard to believe that the agreement was explained in a manner where folks understood what was important in the agreement. If they did, there may have been more than four appellants out of almost 500,000 class members.
Presently, the class representatives, under the settlement, are set to receive approximately $5 million for their time and expenses. Exorbitant compared to their actual out-of-pocket expenses, which also may be reimbursed. Class attorneys, may get almost $100 million, and have requested an additional $123 million, and about $15 million will pay for services provided by consultants and other parties in the case.
IIM account beneficiaries? Trust administration members, under the agreement, would receive a baseline payment of $500 and a prorated share of remaining funds less funds set aside for any members who opt out, and other set asides. Historical account beneficiaries will receive $1,000 per member, not per account. Trust administration members were allowed to opt out of the settlement agreement, while historical accounting class members could not.
Educational funds would be available to individuals who participate in the land consolidation plan detailed in the agreement and it’s not a dollar for dollar grant, but a sliding scale award to eligible applicants. The good thing is that interest in land acquired under the settlement will not have liens placed against income generated to repay the acquisition cost such as the Indian Land Consolidation Pilot Project in place now.
After more than 15 years of litigation originally intended to achieve an adequate accounting for Indians holding Individual Indian Money accounts, the courts approved a settlement agreement with pervasive intra-class conflicts, which should be considered by the court.
I am disappointed Craven and other appellants are being ridiculed, incited against (by attorneys no less), and harassed merely because they don’t agree with the settlement. Our great country still allows due process of law. I have reviewed her appeal fairly and objectively since the beginning. She has some points that should be addressed by the court, right or wrong. I guess in the end, we will see which action was more detrimental to Indian Country. We can only wait and see what happens next.
Jay Daniels worked for more than 26 years with the Bureau of Indian Affairs. He has an extensive background in real estate services. He has managed oil and gas leasing, agricultural leasing, residential leasing, acquisition and disposal of land, rights protection, and business leasing.