A Cravenly op-ed

Ms. Craven now contends that senators were not advised that the settlement is “constitutionally dubious.” Unfortunately, she leaves her readers guessing about what may be unconstitutional about the settlement.  To my knowledge, she is not even an attorney and falls far short of a constitutional scholar. Nor does she profess any special knowledge of trust law, the Cobell litigation or class-action lawsuits. Indeed, her “legal” support is an obscure website maintained by a South Carolina attorney. I can assure you that the attorneys who litigated this case for more than 14 years did more than reference dubious legal conclusions from an Internet website. Some of the finest attorneys in private practice and the federal government have combed through the settlement agreement word by word to ensure that it meets the requirements set forth in the Federal Rules and is otherwise consistent with governing law.

The claim that the settlement creates a new “‘un-litigated’ class — the trust mismanagement class” is manifestly false. Had Ms. Craven understood the litigation and settlement agreement, she would have known that the trust mismanagement class includes, among other things, claims for underinvestment, misappropriation, theft, loss of funds, errors, untimely deposits and restitutionary claims. These (and other) claims are embedded in the original complaint filed over 14 years ago. To be sure, there are other claims that are settled by the settlement agreement, but that is common in class-action lawsuits.  Importantly, any class member may preserve their claims by opting out of that portion of the settlement agreement.

Ms. Craven says that plaintiffs’ counsel are not required to document their time on this case. To the contrary, they are required to file statements documenting their “contemporaneous…and complete daily time, expense, and cost records.” Here, the documentation will be publicly available and any class member, including Ms. Craven, would be able to file comments or objections to requested attorneys’ fees in the United States District Court. Under Federal Rules of Civil Procedure and the law of the D.C. circuit, it is the United States district judge who determines the adequacy of such time records as well as the merits of the fee application.

The formula to distribute settlement funds to the class necessarily relies on information maintained by the Department of the Interior. They are the only readily available data from which one can make reasonable determinations of each individual’s claims. Ms. Craven suggests no other database that is available to ensure greater accuracy in individualized determinations. Indeed, because of the government’s systematic destruction of trust records for generations, no better class-wide information is known to exist. And, we can’t create a database out of whole cloth. Ms. Craven also fails to state how the distribution formula can be improved.

It is estimated that hundreds of thousands of class members have died during the pendency of this case.  How many more will pass while Congress bickers over partisan politics? One more death is too many.  What is the price of justice for individual Indians, many of whom are financially vulnerable and desperately need a measure of justice now more than ever? Still, eight months after the settlement agreement was executed, I’ve yet to hear a sound criticism from Ms. Craven or anyone else about why this agreement is unfair. Here, there is no doubt that justice delayed is justice denied.

Elouise Cobell is the lead plaintiff in Cobell v. Salazar, a class-action lawsuit over the federal government’s mismanagement of Individual Indian Trust Accounts. Ms. Cobell is a member of the Blackfeet Nation and lives in Browning, Mont.


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