More waiting for Indian plaintiffs in $3.4B deal

The Associated Press
Sunday, December 5, 2010; Washington Post

HELENA, Mont. -- Native Americans who sued the federal government over lost royalties have been waiting nearly 15 years for the $3.4 billion settlement Congress passed last month. Now they'll have to wait some more.

The plaintiffs expect it will be at least next August before Indian trust landowners see a dime, and six months after that before the last claims are settled with trust account holders.

That's because when the political wrangling ends, the red tape begins.

The lead plaintiff in the class-action lawsuit, Elouise Cobell of Browning, Mont., said the biggest obstacle by far to the settlement was obtaining congressional approval - indeed, it took nearly a year and a couple of false starts before the Senate authorized the deal.

"I want to run out and thank the whole world for getting it through the Senate," Cobell told The Associated Press. "We still have work to do. One thing about this case, it hasn't been easy. You don't take anything for granted. You make sure it all gets approved."

Once President Barack Obama signs the legislation, the settlement must still go through a gauntlet of court hearings, a media campaign to notify beneficiaries, waiting periods for comments and appeals. Even after the first checks are cut, it will still take months more to sort through the process of deciding who should or should not be included as a plaintiff - a number that will likely end up somewhere between 300,000 and 550,000, plaintiffs' representatives said.

"Making sure it is a fair process takes time," said Geoffrey Rempel, an accountant consulting for Cobell's Washington, D.C., legal team.

The dispute began over property owned by the Indians and held in trust by the government. The Department of Interior leases that land to others for farming or resource development, and is supposed to pay the Indians the money generated by the land into Individual Indian Money trust accounts, or IIMs.

Those IIMs were created in 1887 by lawmakers who believed at the time that Indians could not handle their own financial affairs.

But Cobell found there was no real accounting of how much money was in the trust pool of IIM accounts. She estimated the amount of money mishandled, stolen or squandered from those accounts over the last century may actually total more than $100 billion.

Under the settlement, $1.5 billion would go to individual Indian account holders. Another $1.9 billion would be used by the government to buy up fractionated Indian lands from individual owners willing to sell, and then turn those lands over to tribes. Another $60 million would be used for a scholarship fund for Indian students.

But it will take time to divvy up that $3.4 billion pie.

The White House said it has not picked a date to sign the legislation. which also includes a $1.2 billion settlement with black farmers who say they were discriminated against. The Cobell plaintiffs said they expect the signing to happen this week.

If that happens, Rempel said, it will kick off a complicated process that would span into early 2012 in a best-case scenario.

First, a preliminary court hearing would be scheduled for mid-December. That hearing would trigger a 30-day ramp-up notice to buy advertisements and get the material together for the class notification.

Under that time frame, the 90-day class notification period involving ad campaigns would begin in January and run until April. Another 30-day period is required after that to give the parties a chance to respond to any questions that come up.

The settlement would then be finalized at a fairness hearing, which would be held in May in this scenario. Any beneficiary who wished to comment on the settlement would be able to speak, and the judge would then give his final ruling.

Another 60-day waiting period would follow that hearing, during which time any party can appeal the court's ruling. The deal is final after that period elapses, which would be August in this scenario.

Only then would the first checks go to the 337,000 plaintiffs in the lawsuit's first class, the group known as the "historical accounting class" who have been identified by the Department of Interior since 1994, just before the lawsuit was filed, Rempel said.

The historical class members would receive $1,000 each.

Then Rempel expects it to take another six months to determine who is entitled to receive a portion of the settlement in the second class of the lawsuit, the trust administration class.

Those plaintiffs, which can also include Indians from the historical class, could receive anywhere between $500 to $1 million each, depending on the estimated value of their trust accounts.

But the Interior Department has lost track of some beneficiary records, have records that may be in conflict or have old addresses for beneficiaries, Rempel said.

So the lead plaintiffs are expecting it to take another six months to sort and decide the applications from Indians wishing to be included in that class, Rempel said.

But even with all that red tape still ahead, Native Americans should not let that dilute their victory, Cobell said.

"I just hope that they (the beneficiaries) get the word, they can rejoice and feel that maybe justice has been delivered," Cobell said.