FREQUENTLY ASKED QUESTIONS
ABOUT THE SETTLEMENT OF COBELL v. SALAZAR

About the Case

About the Settlement

About the Claims Process





About the Case

Who are the parties in Cobell v. Salazar?

The plaintiffs are American Indian individuals Elouise Pepion Cobell, Penny Cleghorn, Thomas Maulson and James Louis Larose, collectively known as the Named Plaintiffs, and members of the two classes of individual Indians named in the Agreement. There are approximately 500,000 members in the two classes. The defendants are Kenneth Salazar, Secretary of the Interior; Larry Echohawk, Assistant Secretary of the Interior - Indian Affairs; and, H. Timothy Geithner, Secretary of the Treasury.

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Why did the Indians bring a class action against the Secretary of the Interior, Assistant Secretary of the Interior and Secretary of the Treasury?

The suit was filed on June 10, 1996 to address the government’s breaches of trust which resulted in the loss, dissipation, theft, misdirection, misappropriation, and unaccountability of several billion dollars of monies held in trust by the United States for Indian beneficiaries in Individual Indian Money (IIM) accounts.

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What happened in 1996 to prompt the filing of this suit?

Elouise Cobell sought reform of the Individual Indian trust throughout the 1980s and early 1990s. She testified before Congress, co-founded the Indian Trust Monitoring Association and attempted on numerous occasions to obtain redress from the Reagan, Bush and Clinton Administrations. It became clear through these years of dedicated struggle that Ms. Cobell and the other plaintiffs had no recourse to secure redress of their grievances, other than to file this suit.

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Did the case ever go to trial?

Yes. The first trial, in the U.S. District Court for the District of Columbia, in the class action began June 10, 1999. On December 21, 1999, the court ruled that the Departments of Interior and Treasury had breached their trust responsibilities to individual Indian trust beneficiaries, and that the government's belated trust reform efforts were inadequate to cure the ongoing breaches. The decision was appealed by the federal government to the U.S. Court of Appeals for the District of Columbia, but in 2001, the District Court’s order was upheld.

Over the next seven years the case went to trial on many occasions: once each on liability, Internet security, accounting methodology, remedies and trust reform matters, and twice to bring contempt charges against federal officials. The plaintiffs prevailed in every matter in the trial court.

In a 2007 remedies trial, the District Court ruled that the Department of the Interior had continued to breach its duty to account for the trust funds, and that accounting for the funds was impossible because Congress didn’t budget enough funds for the Department to conduct an accounting consistent with its obligations as trustee.

In a 2008 restitution trial, the District Court granted equitable restitution to the plaintiff class based on the shortfall of the trust’s value. The court stressed that the government’s failure to properly allocate and pay trust funds to beneficiaries required restitution or disgorgement of the money that had been withheld. The plaintiff class was awarded $455,600,000 at this time. Believing the amount awarded was too low, Plaintiffs were granted permission to appeal this decision to the D.C. Court of Appeals.

On July 29, 2009 the U.S. Court of Appeals for the District of Columbia ruled on all appeals in the matter, reaffirming the government’s obligation to render an historical accounting vacating the District Court’s restitutionary award and remanding the matter to the District Court. This remand culminated in the December 8, 2009 Settlement.

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Who represented the plaintiffs over this 13-year period?

The legal team for the plaintiffs is led by Dennis M. Gingold, an attorney in private practice in Washington, D.C. Other key members of the team are Keith M. Harper, William Dorris, David Smith and Elliott Levitas, attorneys at Kilpatrick Stockton LLP, and Thaddeus Holt.

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Who funded the plaintiffs’ efforts?

The plaintiffs received support from numerous foundations, including the Lannan, McCarthy, Otto Bremmer, Northwest Area and Ford Foundations. Ms. Cobell received a $300,000 MacArthur Foundation “Genius Award” in 1997, which she contributed to the Individual Indian Monies Trust Correction and Recovery Project.

This financial support was in the form of loans and recoverable grants. Should this case be concluded in favor of the Plaintiffs, either through this Settlement or by order of the Court, these funds will need to be repaid.

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How does this Settlement affect tribal claims of fiscal mismanagement against the federal government that are or will be filed by Indian Nations, tribes or bands?

There is no relationship between this Settlement for individual Indians and any other suits or claims filed or pending against the federal government by tribal plaintiffs.

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How did we get from plaintiffs' calculation of almost $40 billion a few years ago to $1.4 billion today?
(Ask Elouise week of February 22, 2010)

Elouise: 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.

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About the Settlement

Is there a monetary amount associated with this Settlement?

Yes. The federal government has agreed to create a $1.412 billion Accounting/Trust Administration Fund and $2 billion Trust Land Consolidation Fund. The Settlement also creates a federal Indian Education Scholarship fund of up to $60 million to improve access to higher education for Indian youth.

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Will the Department of the Interior make changes in its management of individual Indian funds?

Secretary of the Interior Salazar has announced the formation of a Secretarial Commission to provide recommendations for reforming federal management and accounting practices associated with its fiduciary responsibility to individual Indians whose funds and other assets it holds in trust. The plaintiffs are hopeful that this will result in meaningful changes so that additional litigation to achieve this reform is not needed.

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What Indians are eligible to share in the Settlement award?

The Class Action Settlement Agreement announced on December 8, 2009, sets out the eligibility requirements for individual Indians to receive a share of this award. The agreement establishes a Record Date of September 30, 2009, and creates two groups of eligible individuals -- the Historical Accounting Class and the Trust Administration Class. The Historical Accounting class comprises Indians alive on the record date who had at least one transaction in an open IIM account between October 25, 1994 and September 30, 2009. The Trust Administration Class comprises individual Indian beneficiaries alive on the record date who have or had IIM accounts dating from approximately 1985, as well as individual Indians who as of the record date had a recorded or demonstrable interest in land held in trust or restricted status.

Other eligibility conditions and exemptions for each class are detailed in the Settlement Agreement.

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How much will each individual Indian who is a member of one of these classes receive from this Settlement?

The exact amount each individual is eligible to receive varies, based on several factors. Most individual Indian beneficiaries are included in both classes and will receive no less than $1,500 under the terms of the Settlement.

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Who is eligible to participate in the scholarship fund established by the Settlement?

More information about the operation of the scholarship fund will be posted when available. Eligibility will not be limited to those Indians who are beneficiaries under the other provisions of the Settlement.

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When will I receive my funds?
(Ask Elouise week of February 14, 2010)

Elouise: 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.

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When will the settlement be finally approved?
(Ask Elouise week of February 14, 2010)

Elouise: 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.

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When will Congress pass legislation approving the settlement?
(Ask Elouise week of February 14, 2010)

Elouise: I don't know when Congress will pass legislation. The parties agreed to extend the settlement agreement to May 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.

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How much will the attorneys be paid?
(Ask Elouise week of February 14, 2010)

Elouise: 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.

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How much will the named plaintiffs receive?
(Ask Elouise week of February 14, 2010)

Elouise: 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.

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Why must the settlement approval process occur so quickly?
(Ask Elouise week of February 22, 2010)

Elouise: 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.

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Shouldn't Ms. Cobell and the attorneys be traveling more to Indian Country to explain the settlement?
(Ask Elouise week of February 22, 2010)

Elouise: 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.

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How will I know if I'm included in the settlement?
(Ask Elouise week of February 22, 2010)

Elouise: 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.

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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?
(Ask Elouise week of March 1, 2010)

Elouise: 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.

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Who represented these claim-holders' interests during the settlement negotiations?
(Ask Elouise week of March 1, 2010)

Elouise: 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.

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How will the new class be identified?
(Ask Elouise week of March 1, 2010)

Elouise: 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.

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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?
(Ask Elouise week of March 1, 2010)

Elouise: 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.

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I heard that the Settlement Agreement expired on February 28, 2010. Does this mean that the settlement agreement has terminated?
(Ask Elouise week of March 1, 2010)

Elouise: No, the settlement agreement has not been terminated. The parties have agreed to extend the settlement through May 28, 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.

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Why have you not traveled to Indian Country before now?
(Ask Elouise week of March 7, 2010)

Elouise: During the course of negotiations, the government resisted allocating any funds for outreach to Indian Country prior to the passage of legislation, despite our strong feelings that it was important to meet with Indian Country to explain the settlement. The government instead assured us that legislation would be passed a few weeks after we signed the settlement agreement on December 7, 2009, and that outreach to Indian Country would take place under the normal notice process in class action lawsuits, which would include extensive travel to Indian Country. Unfortunately, legislation was not passed (and has still not been passed) and the need to meet with Indian Country is stronger than ever. As you know, traveling to many areas of Indian Country is expensive and time consuming, but it is critical, and I can no longer wait for legislation.

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I heard that my settlement check will not be taxable, is this true?
(Ask Elouise week of March 7, 2010)

Elouise: That is correct. We negotiated with the government to include a provision in the legislation and settlement agreement that provides that all settlement proceeds are not considered taxable income by the Internal Revenue Service. If you have a tax preparer or other tax professional you should make sure to inform them of this important settlement benefit. You may want to refer them specifically to the legislation when it is passed and page 42 of the settlement agreement, if they have any questions. A copy of the settlement agreement can be downloaded here.

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I receive federal assistance and I am concerned that receiving a settlement check will affect my eligibility or benefits, what should I do?
(Ask Elouise week of March 7, 2010)

Elouise: You don't have to do anything. The legislation negotiated by the parties provides that the settlement proceeds received will not be treated as income in the month received or as a resource for a period of one year after you receive your check. Congress is currently considering this legislation.

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How much will I receive as part of this settlement?
(Ask Elouise week of March 7, 2010)

Elouise: While it is not possible to precisely calculate how much any particular individual will receive as part of this settlement, I have asked the government to provide a rough approximation of what each individual may receive as a member of the trust administration class. In my next Ask Elouise letter I intend to provide an estimate of the amount you may receive if you are in the trust administration class.

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In your last Ask Elouise letter you indicated that I could remain in the trust administration class and still sue the government for claims related to leases that were active on September 30, 2009, is there any limitation?
(Ask Elouise week of March 7, 2010)

Elouise: Yes, there is a limitation. To the extent the government is acting in any capacity other than as a trustee, you may bring a lawsuit against the government for leases active on September 30, 2009. That means, for example, if the Department of Energy or Department of Agriculture or Department of Defense are leasing or trespassing on your land as of September 30, 2009, you may bring a lawsuit against the government and still participate as a class member in the trust administration class. Moreover, your fiduciary related claims are also preserved where the lease in question predates September 30, 2009, but the injury occurs after September 30, 2009. For a complete list of claims you may bring against the government and continue to remain in the trust administration class, please see pages 44 and 45 of the settlement agreement.

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I've heard that two classes are resolved by the settlement agreement, what does that mean?
(Ask Elouise week of March 14, 2010)

Elouise: A class action lawsuit is a group of people with similar claims that collectively bring an action in court. In this case, two classes of people will have their claims resolved by the settlement agreement. The first is an historical accounting class that includes individuals living on September 30, 2009 who had an IIM account open at any time between October 25, 1994 and September 30, 2009 and had money credited to it. Each individual in the historical accounting class will receive $1,000 instead of, and in the alternative to, the required historical accounting, which the U.S. Court of Appeals described in June 2009 as only an accounting of low hanging fruit.

The second class in the settlement is the trust administration class. This class includes individual Indians who own trust land as of September 30, 2009 or who have or had an IIM account at any point in time between 1985 and September 30, 2009. This second class will receive an additional payment of at least $500.

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I heard that my settlement check will not be taxable, is this true?
(Ask Elouise week of March 14, 2010)

Elouise: That is correct. We negotiated with the government to include a provision in the legislation and settlement agreement that provides that all settlement proceeds are not considered taxable income by the Internal Revenue Service. If you have a tax preparer or other tax professional you should make sure to inform them of this important settlement benefit. You may want to refer them specifically to the legislation when it is passed and page 42 of the settlement agreement, if they have any questions. A copy of the settlement agreement can be downloaded here.

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How much will I receive as a member of the trust administration class?
(Ask Elouise week of March 14, 2010 and updated: Ask Elouise week of April 12, 2010)

Elouise: It depends on how much income you've collected into your IIM account. As noted above, each member of the class will receive a baseline payment of $500. Individuals with an IIM account open between 1985 and September 30, 2009 may receive more than $500. This trust administration class payment is separate from, and in addition to, the $1,000 payment to individuals in the historical accounting class and that you can be a member of both classes if you meet the criteria (see above).

The calculation uses an average of the 10 highest years of revenue (deposits) in your IIM account - this is called your Assigned Value. That would determine your share of the trust administration fund, which is tentatively estimated to be between $850 million and $900 million. The following calculations are estimates based on information provided by the government - your final trust administration payment can be more or less.

  • If your Assigned Value is between .01¢ and $5,000, you will receive between $500 and $1,500.
  • If your Assigned Value is between $5,000 and $15,000, you will receive between $1,500 and $5,000.
  • If your Assigned Value is between $15,000 and $30,000, you will receive between $5,000 and $7,500.
  • If your Assigned Value is between $30,000 and $75,000, you will receive between $7,500 and $15,000.
  • If your Assigned Value is between $75,000 and $750,000, you will receive between $15,000 and $150,000.

Individuals with an Assigned Value greater than $750,000 will receive more than $150,000.

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Once I register, how long before I receive communications about this lawsuit?
(Ask Elouise week of March 21, 2010)

Elouise: It depends on when the settlement is approved by Congress. Right now, it is not clear that Congress will pass legislation authorizing the settlement. If Congress passes the legislation, we expect the Court to approve all communications to class members. Such communications would be sent to the addresses on file.

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How can I help support the settlement?
(Ask Elouise week of March 21, 2010)

Elouise: If you are supportive of the settlement, I encourage all class members to write or call their representatives in Congress and urge them to pass legislation authorizing the settlement. We are at a critical juncture and further delay will likely terminate the settlement. Now is the time to act.

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I heard that Osage tribal members are not included in the settlement, is this true?
(Ask Elouise week of March 21, 2010)

Elouise: This is incorrect. Osage tribal members are included in the settlement to the extent that income was deposited into an Osage member's IIM account, or to the extent that an Osage tribal member owns trust land. If an Osage tribal member's headright income had never been deposited into an IIM account, he or she would not be included in this settlement unless he or she otherwise owned trust or restricted land. The Osage Tribe intervened in our litigation and asked the Court to exclude many of its members from the litigation. The Court accommodated the tribe. If an Osage tribal member had income deposited into an IIM account, they would participate like any other IIM accountholder in this settlement.

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How can I participate in the Land Consolidation program?
(Ask Elouise week of March 21, 2010)

Elouise: The government has not yet developed the program. Participation and other details, including valuation of your lands and timing, have not yet been determined. The settlement agreement provides that this is a voluntary program and that you are to be offered fair market value for your land. If you don't believe the offer is fair, don't sell your land.

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I own trust land, but I sold it before September 30, 2009 and I don't have an IIM account, can I participate in this settlement?
(Ask Elouise week of March 21, 2010)

Elouise: No. The settlement agreement provides that if you never had an IIM account, then you must have owned your trust land on September 30, 2009 in order to participate. If you sold or gift deeded your land before September 30, 2009, you will not be eligible to participate in the settlement (unless you had an open IIM account). However, if you sold or gift deeded your land after September 30, 2009, you may still participate.

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I've heard that the government and the tribes will receive money under the settlement, is this true?
(Ask Elouise week of April 5, 2010)

Elouise: No. I too have heard the rumors that tribes or the government will receive money under this settlement agreement. I can assure you that those rumors are false. Tribes are not members of this class. Only individual Indians are members of the class. Moreover, tribes haven't provided one penny in support of this case. And, equally importantly, they will have no role with the administration of the scholarship fund. The government will not receive any money under this settlement agreement. However, I should point out that the government may use up to 15% of the $2 billion Land Consolidation fund to pay for its expenses in managing the program. This means that the government may use up to $300 million of the $2 billion to administer the Land Consolidation fund.

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My mother passed away before September 30, 2009, but her estate has not been through probate, can she still participate in the settlement?
(Ask Elouise week of April 5, 2010)

Elouise: Yes. As a general matter, you must be living on September 30, 2009 in order to be included in the classes settled by this agreement. That means that the claims of deceased beneficiaries are not compromised by this settlement. Nonetheless, the settlement agreement provides that if your ancestor's estate is suspended in probate as of September 30, 2009, then his or her IIM account would receive the proceeds from this settlement. This exception is included in the agreement because of the probate backlog at Interior.

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I read your last Ask Elouise letter that "The Osage Tribe intervened in the Cobell litigation and asked the Court to exclude many of its members from the litigation" and I understand that the Osage tribe now disputes that intervention. What is the real deal?
(Ask Elouise week of April 5, 2010)

Elouise: The truth is that the Osage tribe intervened in the Cobell case, asserting that: "At all times before the distribution [of Osage royalties], the funds are held on behalf of the Osage tribe. Statute specifies that royalties are collected for the tribe, the royalties are owned by the tribe . . . ." However, both the U.S. Supreme Court and Congress recognize that the royalties are property of individual Osage Indians. In plain English, the Osage tribe and its lawyers now insist - after 14 years of Cobell litigation - that proceeds of the mineral estate have become property of the Osage tribe until and unless they are distributed to individual Osage trust beneficiaries. As a result, many individual Indian Osage trust beneficiaries are excluded from the Cobell class and may not participate in the settlement.

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I heard that the Court ordered another extension to the settlement agreement; what is going on with the settlement?
(Ask Elouise week of April 12, 2010)

Elouise: We still await Congressional approval of the settlement. The District Court met with both parties on Thursday, April 8, 2010. A transcript can be downloaded here: http://cobellsettlement.com/docs/Settlement_status_hearing.pdf. The Court expressed frustration that Congress has not acted on this settlement which is good for individuals Indians and Indian Country as a whole. It also authorized an extension of the settlement agreement for an additional six weeks, until the start of the Memorial Day recess. The Court also noted that if Congress does not act by the middle of May, it will hold a public hearing and invite the Secretary of the Interior, the Director of Office Management and Budget, and appropriate members of Congress to explain why the settlement has not been authorized by Congress. I continue to be disappointed and frustrated that Congress has not passed legislation at this late date. The settlement is fragile and it will terminate if legislation is not passed. I and our attorneys continue to push for legislation, but we now are analyzing our options in Court in the event settlement continues to be thwarted.

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I have multiple IIM accounts across different regions, do I receive multiple checks under the settlement agreement?
(Ask Elouise week of April 12, 2010)

Elouise: Members of the historical accounting class and/or the trust administration class will receive one payment for membership in each class. This means, for instance, that an individual with five accounts could receive a maximum of two payments: one for his or her membership in the historical accounting class and one for his or her membership in the trust administration class. If an individual has multiple accounts and is a member of the trust administration class, the calculation is as follows: The Assigned Value is calculated on an account by account basis with each of the calculations added together to derive a collective Assigned Value for that individual. In this way, all recorded activity across an individual’s multiple accounts is considered.

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I’ve registered on the website, but I’ve received no communications from anybody about the settlement, what does registration do for me?
(Ask Elouise week of April 12, 2010)

Elouise: If you are not currently receiving an IIM account statement from the government, the most important thing you can do is to register on the website or by calling the toll free number (see below). The purpose of registering your contact information is so that the Court may order that Court-ordered communications be sent to you. These Court-ordered communications will likely include important information about the settlement and your rights and obligations under the agreement. Please be aware that you will not necessarily receive any information until legislation is passed by Congress. You don’t have to register if you don’t want to, but I’m recommending that everybody register to ensure they receive important Court-ordered information.

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How can I, or my children, participate in the Scholarship Fund?
(Ask Elouise week of April 18, 2010)

Elouise: The procedures have not been determined. The first step is to choose a recipient organization following the Court’s preliminary acceptance of the settlement agreement. The settlement agreement provides that plaintiffs identify 2 or 3 organizations that are capable of administering the scholarship fund. The Secretary of the Interior must select one of those organizations to administer the fund. You should also know that up to $60 million of the scholarships will be funded through the settlement agreement. This funding is tied to the Land Consolidation program, which must be completed within ten years. In other words, the Scholarship Fund may be not funded fully for ten years, if it is funded at all.

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I know the government has breached its trust responsibility because I’ve lived with it every day, does this settlement mean that I can now trust the government to manage my land and money?
(Ask Elouise week of April 18, 2010)

Elouise: Absolutely not. Prudent trust management is dependent on, among other things, effective systems, complete and accurate records, and competent staff. Today, they don’t exist. As a result, the government remains in breach of trust duties that it owes you as a matter of law. Never again should individual Indian trust beneficiaries blindly hope that the government and its delegates and agents manage their money or land. Make sure that you and your children hold government officials fully accountable and demand that they manage your assets prudently and solely in your best interests, not theirs. If this case has stood for anything, it is that you are entitled to know exactly what the government has done with your land and your money. Demand that information and make sure that government officials discharge their duties to you.

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So, if the systems and information are not fixed, why did you settle?
(Ask Elouise week of April 18, 2010)

Elouise: This was perhaps the most difficult decision I’ve had to make in this case. Nobody is claiming that the broken trust management systems are fixed or that tomorrow the IIM Trust will be managed prudently. That can’t happen without the appointment of a receiver. I’ve fought for almost 15 years to fix the trust, but I’m keenly aware that there are limits to what courts currently are willing to do. As a general matter, a court can’t spend money on better trust systems and won’t order the government to fire incompetent officials and hire 5 or 500 or 5,000 competent employees with trust experience. And, today, courts are unable to order unethical government officials to act ethically; much less, force incompetent employees to become competent. Judges aren’t magicians. I settled because the oldest members of our class are dying every day and they are entitled to a measure of justice after waiting 15 years, and longer. This settlement is not perfect but it is an important first step. I am encouraged that Interior Secretary Ken Salazar says that he takes trust reform seriously, as evidenced by Secretarial Order 3292 that establishes a commission on Indian trust administration and reform. We’ll judge him on what that commission actually accomplishes.

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I heard that Senator Barrasso sent a letter to tribal leaders trying to kill the settlement, is this true?
(Ask Elouise week of May 3, 2010)

Elouise: Yes. It is unfortunate that Senator Barrasso from Wyoming (Vice-Chairman of the Senate Committee on Indian Affairs) has come out against settlement of this long-running litigation which is of utmost concern to Indian Country. On April 27, 2010, Senator Barrasso sent a letter to all tribal leaders proposing to change the settlement agreement because he says that his changes would "improve the settlement." That is not true. The Senator and his staff know that their proposed changes are material and necessarily would kill the settlement that we have worked so hard to reach. What is particularly disappointing to me is that I sat down with Senator Barrasso in his office to discuss the terms of settlement. The only major issue he raised in our meeting was the reasonableness of the agreed-upon attorneys’ fees, which I said are low because of the size of the recovery and the hard work done by our counsel. He looked me in the eye following my explanation and told me to my face that the settlement is OK with him. In fact, his attorney, who sat across from me, told him that the attorneys’ fees are fair. Frankly, the attorneys’ fees are very low - a maximum of 3% of our recovery - compared to the 25%-40% and more that attorneys typically are paid when they successfully sue bad doctors for medical malpractice. Think of the amount of time our lawyers have spent on this case (14 years) and the risk they took to achieve for you the largest settlement with the government in history.

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So, what does this mean for the settlement?
(Ask Elouise week of May 3, 2010)

Elouise: Nobody ever said working with Congress would be easy or that we would receive unanimous support, no matter how just our cause. I and our attorneys will continue to push Congress to do the right thing and pass legislation authorizing the settlement. It’s difficult to predict what the impact of his letter might be. I hope that he will come to his senses and realize that this is the best deal possible for all parties at this point in time, but if he doesn’t there will (hopefully) be a vote and he can have his counted. In the mean time, Senator Barrasso’s letter underscores how important it is for all of you - including those of us who live in Wyoming - to write your representatives in Congress and urge them to pass legislation without further delay.

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Do I have to fill out paperwork to be included in the settlement?
(Ask Elouise week of May 3, 2010)

Elouise: You do not have to fill out paperwork if you are receiving a quarterly IIM account statement - the Court will order that communications be sent to you directly. However, if you think you might be included in the settlement and you are not receiving quarterly IIM account statements, you should make sure to register for all Court-ordered communications. By registering, you ensure that you will receive important information from the Court about your rights and obligations as a potential member of the class. If you are not receiving quarterly IIM account statements, it is possible that you will have to fill out some paperwork to be included in the settlement. This information will be included in the Court-ordered communications. Instructions for how to register are at the bottom of this and every Ask Elouise letter.

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Is this a per-account payment or a per-person payment?
(Ask Elouise week of May 3, 2010)

Elouise: The settlement will result in payments to individual Indian class members. Individuals will only receive one payment as a member of a class. That means you could receive one payment as a member of the historical account class and a second payment as a member of the trust administration class.

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Will the Native American Bank hold the settlement funds or have any role in distribution?
(Ask Elouise week of June 15, 2010)

Elouise: 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.

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Does this settlement resolve any future claims?
(Ask Elouise week of June 15, 2010)

Elouise: 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.

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What does settlement of the Cobell case mean for the tribes and tribal trust cases?
(Ask Elouise week of June 15, 2010)

Elouise: 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.

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In your last letter, you mentioned that Senator Barrasso (R - WY), Vice-Chairman, Senator Committee on Indian Affairs introduced an amendment that he says would "improve" the settlement agreement even though it would terminate the settlement, what is the status of his amendment?
(Ask Elouise week of July 7, 2010)

Elouise: Thanks to your overwhelming support, Senator Barrasso was unable to bring his amendment to the floor for a vote. Your letters and calls to members of Congress had a significant impact on the outcome. Unfortunately, Senator Barrasso still doesn't understand, or doesn't care, that Indian Country overwhelmingly supports this settlement. According to statements reported in the press, he is more determined than ever to rob you of your victory in this case and it is likely that he again will attempt to introduce an amendment to terminate the settlement at some time in the future. We remain on guard against his efforts to further harm individual Indians.

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You also mentioned that the National Congress of American Indians was considering a resolution supporting the Barrasso amendment, what is the status of that resolution?
(Ask Elouise week of July 7, 2010)

Elouise: I attended the NCAI event in Rapid City, South Dakota beginning June 20, 2010. A small, rabid group of tribal representatives sought to support Senator Barrasso's amendment and, thereby, kill your settlement, but their effort was defeated soundly and NCAI passed a resolution urging Congress to reject the Barrasso amendment and pass authorizing legislation as soon as possible. It is important to remember that this class is made up solely of individual Indians trust beneficiaries; tribes have their own litigation (and, at times, the agenda of a few tribal leaders is inconsistent with individual Indians' interests), but they don't represent your interests in this litigation.

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Will any Interior contractors with experience on Indian issues be selected to assist with the distribution of settlement proceeds or to hold the funds pending distribution?
(Ask Elouise week of July 7, 2010)

Elouise: Absolutely not. This is a conflict of interest. To allow the same contractors, who have been peddling their services that fail to deliver promised benefits to Indian Country, to have any role in the distribution of settlement funds would be insane. For the first time in history, your funds will be held securely, managed prudently, and distributed competently by able and experienced professionals. I know of no Interior contractors that meet the highest fiduciary standards that you are owed.

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Where can I review the amount of time the attorneys have spent on the litigation?
(Ask Elouise week of July 7, 2010)

Elouise: Pursuant to an agreement between the parties, statements regarding counsels' billing rates and related records supporting daily time, expense and cost records will be filed with the Court and available to the public. This documentation will be filed no later than 30 days following preliminary approval of the settlement agreement by the Court. Preliminary approval by the Court cannot occur unless and until Congress authorizes the settlement.

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About the Claims Process

Who is affected by this Settlement? Who is eligible to make a claim?

The Settlement will affect individual Indian trust beneficiaries, including over 500,000 current IIM Account Holders.

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What groups will receive benefits?

Two groups or "classes" will receive benefits under the Settlement - The Historical Accounting Class and the Trust Administration Class.

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Who is in the Historical Accounting Class?

The Historical Accounting Class is made up of individual Indian beneficiaries alive on September 30, 2009:

  • Who had an IIM Account open during any period between October 25, 1994 and September 30, 2009,
  • Which IIM Account had at least one cash transaction credited to it at any time as long as such credits were not later reversed.

(There are some exceptions to this as outlined in the Settlement Agreement.)

Beneficiaries deceased as of September 30, 2009 are included in the Historical Accounting Class only if they had an IIM Account that was open as of September 30, 2009. The estate of any beneficiary who dies after September 30, 2009 but before distribution is in the Historical Accounting Class.

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Who is in the Trust Administration Class?

The Trust Administration Class is made up of individual Indian beneficiaries alive on September 30, 2009:

  • Who have or had IIM Accounts in the "Electronic Ledger Era" (Department of the Interior dating from approximately 1985 to the present), as well as
  • Individual Indians who, as of September 30, 2009, had a recorded or other demonstrable ownership interest in land held in trust or restricted status, regardless of the existence of an IIM Account and regardless of the proceeds, if any, generated from the Land.

(There are some exceptions to this as outlined in the Settlement Agreement.)

This Class also includes certain estates, including:

  • The estate of any deceased beneficiary whose IIM trust accounts or IIM trust interests had been open in probate as of September 30, 2009.
  • The estate of any beneficiary in the Trust Administration Class who dies after September 30, 2009 but before distribution.

It does not include beneficiaries deceased as of September 30, 2009.

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Can an individual Indian be a member of both classes?

Yes. Most individual Indian IIM Account Holders are members of both classes.

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What should individuals who believe they may be eligible in one or both of these classes do next?

When IIM account holders learn of the Settlement, they must decide whether or not to participate in the Trust Administration Class. If the Claims Administrator has current address information for Class Members, Class Members are not required to take any action to participate. If the Claims Administrator does not have current address information, Class Members should register with the Claims Administrator. Go to www.cobellsettlement.com/register.php to register. If they decide not to participate in the Settlement, they must tell the Claims Administrator they are not participating.

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How much money will IIM Account Holders receive from this Settlement?

The individual Indian beneficiaries are included in both Classes and will receive no less than $1,500 under the terms of the Settlement. There will be a number of distributions:

  • Each member of the Historical Accounting Class will be paid $1,000 after Final Approval of the Settlement.
  • Members of the Trust Administration Class will get at least $500, and then a percentage of the remaining Fund based on the number of individuals sharing in the Fund. Certain costs, reserves and attorneys fees will be paid out of this Fund before distribution of the pro rata share.

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What are the rights of IIM Account Holders who are Class Members?

Class Members have the right to exclude themselves from the Trust Administration Class only and keep their rights to file a lawsuit on their own for the same claims, if they wish, or they can remain in the Settlement.

Those who remain in the Trust Administration Class have the right to object to or comment on any aspect of the Settlement and have the right to be heard in Court.

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If class members do not exclude themselves, can they sue the government for these claims?

No. If Class Members do not exclude themselves they will no longer be able to sue the U.S. Government for the claims settled in this litigation.

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What should IIM Account Holders or their heirs do now?

IIM Account Holders or heirs of IIM Account Holders who have not been receiving information on their IIM account from the government should register now at www.cobellsettlement.com/register.php. They will then receive further information and the Settlement Notice.

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How do Account Holders or their heirs register to receive notices and information?

Account Holders and their heirs can register now by going to www.cobellsettlement.com/register.php or by calling the Settlement’s toll-free telephone information line, 800-961-6109.

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