June 15, 2010
Dear Indian Country
This is the eleventh letter in a series of open letters that I’m sending to Indian Country. The purpose of this letter is to update you about the settlement and to let you know what you can do to help.
Before the Memorial Day holiday, the House of Representatives voted to pass the “American Jobs and Closing Tax Loopholes Act of 2010” which includes a provision authorizing the Cobell settlement. This is good news and we now await approval in the Senate. I hope that the Senate passes the bill before the July 4 recess, but there is a chance that might not happen.
Individual Indian trust beneficiaries have expressed their overwhelming support for this settlement. Not only does it put $1.4 billion into the hands of individual Indians in a relatively short period of time, but it promises to make another $2 billion available to individual Indians over the next ten years, preserve sacred Indian lands for future generations and create a fund for post-secondary education worth up to $60 million. This is the largest settlement/judgment against the United States since the founding of the Republic and we have a unique opportunity to right an historic injustice. For these reasons I intend to direct our attorneys to work with the government to extend the settlement agreement yet again so that justice may have a chance. However, every extension of time delays the distribution of our settlement funds. Enough is enough. Further, there are a few tribal leaders in Indian Country, some with misguided intentions, who want to terminate the settlement for their own personal purposes.
Senator Barrasso (R – WY), Vice-Chairman, Senator Committee on Indian Affairs, has introduced an amendment that he says would “improve” the settlement agreement. However, the agreement provides that the settlement terminates if there are any changes to its terms. Senator Barrasso knows this and he knows that adoption of his amendment would kill the settlement. Why? He is playing Washington politics because the dirty truth is that he would vote against the current Senate bill even if his amendment is adopted.
Tribal leaders should know better (and most do) than to support a new Senator from Wyoming who rarely, if ever, has supported Indians. Senator Barrasso has made an effort to gain support from certain leaders in Indian Country for his amendment. He argues that his amendment really does not make significant changes to the settlement. Of course, most tribal leaders and individual Indian trust beneficiaries are not buying it. Still, there are a few wrong-headed tribal leaders who support his plan to kill our agreement. If your tribal leaders are voting to change the settlement in any way, they are helping Senator Barrasso kill our settlement and they are depriving you of your money. They do not deserve your vote and should be voted out of office if they stand for re-election. Have your friends and family demand that their tribal representatives support our settlement.
Understanding who is with us and who is against us is important because the National Congress of American Indians says that it will consider a resolution that would help Senator Barrasso kill the Cobell settlement during its conference June 20-23, 2010. If you don’t know whether your representative to NCAI is with you on Cobell, make sure you find out in advance. Any legislative changes to the settlement agreement will terminate the settlement.
Let me also stress that most tribal leaders support our settlement. I thank each of you for resisting the efforts of Senator Barrasso and his staff to undermine what we have achieved.
Will the Native American Bank hold the settlement funds or have any role in distribution? I am the Chair of Native American Bank and I have been asked whether Native American Bank would handle or otherwise be involved in the distribution of our settlement funds. The answer is no. The settlement agreement sets forth standards for selection of a federally insured depository institution that would hold and distribute the settlement funds. Only well capitalized commercial banks with trust powers are eligible for selection (and, the Native American Bank has no trust powers). Only banks with highly rated trust departments and proven experience and skill in the distribution of class action mega-settlements will be considered for this important task. We must be sure that prompt and accurate distributions are made by bankers who understand fully the nature and scope of their fiduciary duties to you. Anything less isn’t good enough.
Does this settlement resolve any future claims? No. The settlement agreement resolves only covered claims through September 30, 2009. It does not resolve any claims that may accrue after September 30, 2009. A list of claims not covered by the settlement agreement (e.g., pre-September 30, 2009 claims that may be brought against the government) can be reviewed here and here. For a complete list of claims, you should consult the settlement agreement.
What does settlement of the Cobell case mean for the tribes and tribal trust cases? Tribes are not parties in our case and would receive no funds from our settlement. Nevertheless, they are beneficiaries of our settlement. We have over 80 published decisions and an encyclopedia of factual findings that have been established in Cobell regarding the government’s trust duties, information technology security, and the destruction of trust records and information. Volumes have been written on the government’s breaches of trust. This material provides a free roadmap to litigation success and it is readily available to tribes in connection with their trust litigation against the government if they decide to actually litigate their cases. On the other hand, I understand that most tribal cases have been dormant (while they have observed our litigation) and their attorneys would prefer a quick settlement so they don’t need to spend the time and resources required to litigate effectively against the United States government. Nonetheless, such tribes and their attorneys are likely to be disappointed because it is also my understanding from conversations with senior Interior and Justice officials and certain tribal attorneys that there will be no settlement with any tribe if Cobell is not settled.
Finally, tribes will benefit directly from the $2 billion land consolidation program which would result in the largest restoration of land to Indian tribes in the history of the United States. It still amazes me that tribal leaders would oppose our multi-billion dollar settlement that so clearly benefits them and their members – even though they, themselves, didn’t do anything to help us. However, this is not the first time in our history that some of our leaders have decided to sacrifice individual Indian interests for their political gain. I am working hard to see that they fail and urge you to do the same.
Prior Ask Elouise letters can be found on the settlement website:
http://cobellsettlement.com/class/ask_elouise.php. We also have a “frequently asked questions” section while includes the most common questions we’ve received as well as questions and answers from prior Ask Elouise letters: http://cobellsettlement.com/press/faq.php. With so many members of the class, I can’t answer every question that you send. The Ask Elouise letters will answer as many questions as possible that are relevant to the entire class.
The most common question I receive every week relates to whether a particular person is included in this settlement. Unfortunately, I do not have that information. The settlement agreement provides general guidelines (see also http://cobellsettlement.com/press/faq.php), but I also understand that many of you have unique or unusual circumstances, which make it unclear to me whether you are included in the settlement class. For those of you who still have questions, I recommend that you register to receive all Court-ordered communications to ensure you do not miss important information. There is no need to register if you are receiving a quarterly IIM statement. The Court ultimately will determine who is included in this settlement. Registration information can be found at the end of this and every Ask Elouise letter.
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.
If you have a question, send an e-mail to: email@example.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.
PO Box 9577
Dublin, OH 43017-4877
Thank you and keep your questions coming!