Draft Gore 2008 PAC

Dear Indian Country

This is the third letter in a series of open letters I’m sending to Indian Country to answer questions that you have asked me about settlement of the Cobell class action lawsuit. Prior Ask Elouise letters can be found on the settlement website: CobellSettlement.com and here at Wampum Ask Eloise, Week of February 21 and Ask Eloise, Week of February 14. We also have a “frequently asked questions” section to answer the most common questions we’ve received: Frequently Asked Questions. I can’t answer every question, but I will try to answer as many as I can every week.

Why are resource mismanagement claims included in the proposed settlement and how were they valued as part of the $1.4 billion amount of the settlement? The settlement agreement covers claims that have been part of the Cobell case since it was filed on June 10, 1996, as well as other resource management claims that will be included in an amended complaint. Cobell has always demanded the correction and restatement of accounts and the restitution of profits unlawfully taken from individual Indian trust beneficiaries as a result of the government’s breaches of trust. Importantly, resource mismanagement claims necessarily are included in the accounting claim to ensure a full and complete accounting of the IIM Trust and the effective enforcement of plaintiffs’ vested and constitutionally protected property rights.

Individual class members may opt out of the settlement to pursue individual damages claims arising out of the government’s mismanagement of his or her natural resources. So while resource mismanagement claims are included in the proposed settlement, each class member has the right to decide whether his or her resource mismanagement claims should be resolved through the settlement.

Resource mismanagement claims are included for two principal reasons. First, the government insisted that resource mismanagement claims be included in the settlement. Otherwise, the government would not settle the case. The government stated that it is essential to “turn the page” so that it could build a better relationship with Indian Country, which it felt could only be achieved through what it says is a “global peace.”

Second, I and class counsel concluded that it is fair to include such claims so long as class members may elect to opt out of that portion of the settlement. Thus, if a class member wants to litigate his or her own resource mismanagement claims, that may be done readily and without compromise. But, because it is very expensive and highly unlikely that many beneficiaries have the financial resources to bring their own damages claims, the settlement allows class members who do not opt out of the settlement to be compensated fairly. For an overwhelming number of beneficiaries, settlement of historical damages claims for additional compensation not only is a good option, it is the only way many could be compensated for the harm done to them by the government. The opt-out provision provides each class member fair and meaningful options.

The settlement value of historical resource mismanagement accounting claims was negotiated by the parties. The total amount represents a fair resolution for plaintiffs’ accounting, restitution, and damages claims, considering the risks associated with indefinite litigation, including the absence of any time limit to reach final judgment in the case, the mortality rate of class members, and our understanding of the current litigation environment.

Who represented these claim-holders' interests during the settlement negotiations? I and class counsel represented all class members during the settlement negotiations. In the fairness hearing, the district court, in accordance with due process principles, would determine whether the amount negotiated is fair and whether the class representatives and counsel have adequately represented the class as a whole. After almost fifteen years of intense litigation over the government’s mismanagement of individual Indian trust assets, I and class counsel have the most significant, relevant and practical experience with stated claims of the class. But, you need not rely solely on our judgment in that regard because such matters are determined independently and in accordance with governing law by the presiding U.S. District Judge.

How will the new class be identified? There are two classes resolved by the settlement agreement: the historical accounting class and the trust administration class. Government records, to the extent available, will be used to identify members of the trust administration class. But we know that the government’s records do not identify or locate all members of the trust administration class. Accordingly, after ratifying legislation is passed, the parties, under the U.S. District Judge’s supervision, will conduct an extensive notice process to notify individual Indians of their rights and obligations under the settlement agreement. The notice process will also provide detailed information to Indian Country about the terms of settlement.

The settlement agreement also provides that class members may “self-identify” and apply for inclusion in the trust administration class. A contractor that is working with the parties will analyze all documentation provided by each such potential class member and, under the supervision of the United States District Court, will determine whether that person is a class member.

Is it fair and reasonable to disallow opt-outs from the historical accounting settlement when an historical accounting may be necessary for an individual who opts out of the trust administration class to pursue a resource mismanagement claim? Yes. Any class member who opts out of the settlement will retain the right to what is called an “accounting in aid of judgment,” which is a procedural tool used in the U.S. Court of Federal Claims to help beneficiaries value their damage claims. The settlement agreement explicitly preserves the right of any class member who opts out of the trust administration class to “an accounting in aid of judgment.”

An additional important point must be noted. An individual may remain in the trust administration class, get paid in full, and still pursue the following claims against the government and third parties: breaches of trust arising after September 30, 2009; certain environmental damages; claims against contractors or other third parties; claims for correction of boundary or appraisal errors (and, for damages after September 30, 2009); water rights; health and mortality claims; and claims arising from leases active on September 30, 2009.

I heard that the Settlement Agreement expired on February 28, 2010. Does this mean that the settlement agreement has terminated? No, the settlement agreement has not been terminated. The parties have agreed to extend the settlement through April 16, 2010. In my conversations with government officials, I have been assured that legislation will be passed within that period of time. I remain hopeful that legislation will be passed, but share your concerns that we continue to extend the time period with nothing to show for it. At this point, we must provide our allies time to advance the legislation.

If you are not currently receiving an IIM statement from the government, please remember to register for correspondence over the Internet or by calling the number below.

Internet: https://cert.tgcginc.com/iim/register.php
Telephone: 1-800-961-6109

If you have a question, send an e-mail to: askelouise@cobellsettlement.com. Otherwise you can send me a letter to the address below. To expedite the processing of your letters our contractor has set up a post office box in Ohio, but I assure you this letter is coming from me and I will see your letters.

Ask Elouise
Cobell Settlement
PO Box 9577
Dublin, OH 43017-4877

Thank you and keep your questions coming!

Best wishes

Elouise Cobell
Browning, Montana

Dear Indian Country

This is the second in a series of open letters I’m sending to Indian Country to answer your very important questions about the settlement of the Cobell class action lawsuit. Prior Ask Elouise letters can be found on the settlement website: CobellSettlement.com, and here at Wampum. We also have a “frequently asked questions” section to answer many of the most common questions we’ve received. http://cobellsettlement.com/press/faq.php. I can’t answer every question, but I will try to answer as many as I can every week.

Why must the settlement approval process occur so quickly? Time is of the essence.
If settlement is not approved in the short term, there is a very real possibility the settlement will fail and the parties will return to active litigation. First, Congress must ratify the settlement agreement before the Court can act to preliminarily approve it. In this election year, further delay will create a more challenging political environment for enactment of the necessary implementing legislation. Congress is a body made up of diverse and varied views and not all have an interest in a successful resolution of this case. Further delay will increase the likelihood that our allies on Capitol Hill focus their attention on other matters. Secondly, the Supreme Court has granted an extension of the time for the parties to submit briefing in connection with its review of the Court of Appeals decision that limits the accounting duty to “low hanging fruit.” It is unlikely that further extensions will be granted by the Supreme Court and further court activity is likely to kill the settlement.

Shouldn’t you and the attorneys be traveling more to Indian Country to explain the settlement? We have spent some time traveling around Indian Country to discuss the settlement, answer your questions and listen to your concerns, but not enough. The problem with traveling around Indian Country to explain the settlement is that it has not received preliminary approval by the Court. What this means is that there is a chance that the Court or Congress could decide to alter or modify the settlement and any information we might share with Indian Country could change, requiring that we make the same trips twice – we can’t afford to be wasteful with our limited resources. In addition, any changes to the settlement agreement by the Court or Congress may result in the settlement being abandoned by either party. Once the settlement has received preliminary approval from the Court, we will undertake an extensive notice process, including travel to Indian Country, to notify class members of the settlement and educate you about your rights and obligations under the agreement.

How will I know if I’m included in the settlement? You will be included in the settlement if you had an IIM account open at anytime between approximately 1985 and September 30, 2009, or you had an individual interest in land held in trust or restricted status by the U.S. government as of September 30, 2009. Certain heirs to deceased class members may be included, as well. I recognize that many individuals have particular circumstances that might make it unclear whether they are included. A process for individuals to self-identify and apply for inclusion in the class will be developed if the settlement is approved. At this stage, the most important thing you can do is to register to ensure that we have a valid address to send you important information. If you are not receiving a quarterly IIM statement, then there is a chance that the government does not have a current address for you and you should register.

How do I register to receive settlement communications? You can register over the phone or Internet.
Internet: https://cert.tgcginc.com/iim/register.php
Telephone: 1-800-961-6109

How did we get from plaintiffs’ calculation of almost $40 billion a few years ago to $1.4 billion today? The $1.4 billion settlement fund for the accounting claims was the product of negotiations between the parties and is, in my estimation, a fair resolution for plaintiffs’ accounting, restitution and damages claims after considering the risk associated with further litigation, the refusal of the Court of Appeals to order the government to provide a full accounting of all funds, and the absence of any time limit for final judgment in this case. It has long been plaintiffs’ position that more than that is due. But what matters is what is recoverable in Court. The litigation could continue another decade or more with no assurance that we will prevail on the merits. Other factors could not be quantified, including the deaths of tens of thousands of beneficiaries since the filing of this case. Those class members will never see the resolution of this case and the prospect of another ten years of litigation means that thousands more will be denied their rights too. It is important to also consider that the district court limited the award following the 2008 trial to only $455.6 million for plaintiffs’ accounting claims – significantly less than the almost $40 billion plaintiffs had requested.

As I indicated in my last Ask Elouise letter, in future letters I’ll answer questions about how much you can expect to receive if the settlement is finally approved as well as questions related to the damages class included in the settlement agreement.

If you have a question, send an e-mail to: askelouise@cobellsettlement.com. Otherwise you can send me a letter to the address below. To expedite the processing of your letters our contractor has set up a post office box in Ohio, but I assure you this letter is coming from me and I will see your letters.

Ask Elouise
Cobell Settlement
PO Box 9577
Dublin, OH 43017-4877

Thank you for your commitment and patience during this long and difficult process.

Best wishes

Elouise Cobell
Browning, Montana

As many of you know, on December 7, 2009, we signed a settlement agreement with the government which marked the first step toward resolving the long running Cobell class action lawsuit. Since that time, I’ve been asked hundreds of questions about the case and the settlement agreement. I can’t answer every question in one letter, but I am committed to writing an open Ask Elouise letter every week answering many of your important questions. If you have a question, send an e-mail to: askelouise@cobellsettlement.com, or send a letter to:

Ask Elouise
Cobell Settlement
PO Box 9577
Dublin, OH 43017-4877

When will I receive my funds? It depends on when Congress passes legislation implementing the settlement and it is finally approved by the courts. The settlement agreement provides that the first payments should begin shortly after final approval and will continue for at least six months pursuant to Court order. I know many of you are concerned that it may take years to receive your share. That isn’t true. We have designed a formula to ensure that won’t occur.

When will the settlement be finally approved? After legislation is passed, the district court will schedule a hearing to consider the settlement and decide whether to grant Preliminary Approval of the settlement. At that point, there will be a 2 - 3 month period where notice will be provided to class members after which a “Fairness Hearing” will be held so that the Court can hear any objections to the settlement. If the judge deems the settlement fair, then he will issue an order of “Final Approval.” The court of appeals may then consider any appeal from class members. If there is no appeal, payments should begin sixty days following Final Approval. If the court of appeals accepts an appeal, payments could be substantially delayed.

When will Congress pass legislation approving the settlement? I don’t know when Congress will pass legislation. The parties agreed to extend the settlement agreement to February 28, 2010. I’m hopeful that legislation will be passed by then, but it might not happen. If it does not happen, I’ll consult with our attorneys about our options.

How much will the attorneys be paid? The Court will determine attorneys’ fees, but the attorneys have signed a separate agreement with the government agreeing to not ask for more than $99.9 million. This is less than 3% of the settlement funds – a very low percentage for attorneys in class action lawsuits. Consider that attorneys representing tribes under Indian Claims Commission Act generally received 10% as mandated by statute and attorneys involved in suits related to Enron received 9.5% (almost $700 million). Many medical malpractice attorneys receive over 30%; and, the tobacco attorneys received billions of dollars and very few did more than file a complaint in order to immediately negotiate a settlement. Most cases don’t even involve discovery, let alone go to trial, but our attorneys have prosecuted seven major trials in this case, litigated countless appeals, filed thousands of papers and reviewed tens of millions of pages of discovery without receiving due compensation for their services. I fully support the fee application. It is in fact unusually low for attorneys involved in complex, heavily litigated class action lawsuits. Frankly, I am concerned that if the legal fees for our attorneys are unreasonably low that will discourage competent lawyers from future representation of Native Americans in class action litigation against the government. It is also important to recognize that members of the class will have an opportunity to inform the Judge if they oppose the fee award.

How much will the named plaintiffs receive? The Court will also determine amounts to be paid to the named plaintiffs for their time and costs, also called “incentive payments.” This case was funded in large measure by the Blackfeet Reservation Development Fund (“BRDF”), a grass roots community development organization which assists Indian communities understand their trust assets. I have also given a significant amount of money to the case out of my personal funds. Funds were used to pay for experts, class communications and costs related to the prosecution of this case. During settlement negotiations, we estimated that these costs were in the range of $15 million. To date, very few of BRDF’s costs have been reimbursed and I have never been reimbursed for funds that I’ve contributed to the prosecution of this case. No tribe has ever given money for this case.

In future Ask Elouise letters, I’ll answer questions about how much you can expect to receive if the settlement is finally approved as well as questions related to the damages class included in the settlement agreement. Thank you for your commitment and patience during this long and difficult process.

Best wishes,
Elouise