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Millions on hold in tribal case

 

Star Tribune

A Feb. 6, 2002 file photo shows National Congress of American Indians President Tex Hall, left, with Elouise Cobell of the Blackfeet Tribe of Montana, center, and Jimmy Goddard, from the same tribe, on Capitol Hill Wednesday, Feb. 6, 2002.

WASHINGTON - A class-action settlement that could bring $45 million to American Indians in Minnesota remains locked in a legal tug-of-war pitting four people with tribal roots in North and South Dakota against hundreds of thousands of Indian landowners longing to close the ledger on an issue that has plagued their families for generations.

The landmark Cobell vs. Salazar agreement, one of the largest and longest class-action decisions ever approved against the U.S. government, acknowledges that the U.S. Department of Interior persistently and purposely mismanaged Indian trust funds dating back to the late 1880s.

If a three-judge panel upholds the ruling in federal court, the agreement will bring a windfall to tens of thousands of residents in the Upper Midwest beyond Minnesota, with $55 million destined for South Dakota, $54 million for North Dakota and $27 million for Wisconsin, out of the total $3.4 billion awarded, according to Geoffrey Rempel, an accounting consultant for the Cobell lawyers.

In a related class-action suit brought by 41 American Indian tribes over mismanagement of tribal money and trust lands, the federal government will pay more than $1 billion under a settlement announced this week, with about $7 million of that coming to Minnesota tribes. The Bois Forte Band of Chippewa will receive $1.443 million, while nearly $2 million will be split among all seven of the Minnesota Chippewa tribes. Officials with the Leech Lake Band of Chippewa confirmed on Thursday that the band will receive $3.5 million.

But that money goes to the tribal entities, while the Cobell money would go to individual tribal members, who continue to wait.

More delays possible

Now a dispute over the government's role has sparked lawsuits that threaten to further delay the federal payouts. One of the central complaints is that the Bureau of Indian Affairs intends to use more than half the settlement -- approximately $1.9 billion -- to buy back much of the mismanaged land before offering to return it to tribal control, at a cost.

Allowing the federal government to redistribute land on which they admitted mismanaging oil, gas, grazing, timber and other royalties doesn't sit well with Kimberly Craven, whose lawyers filed an appeal heard in court last month. Craven also is arguing that the settlement shortchanges tribal members who owned land that once was rich in resources but now has been stripped of its value.

"It's like they're dangling carrots in front of starving rabbits," said Craven, a registered member of the Sisseton-Wahpeton Oyate tribe of South Dakota. "People have no idea what they're giving up."

$1,800 for years of pain

Dennis Gingold, the lead litigator in the Cobell case, said that landowners aren't required to sell the land but that the appeal threatens to take away everything.

"If they win," Gingold said, "... [people] get nothing."

While the debate continues thousands of miles away, Gayle Harmon of Fridley is among more than 20,000 Minnesota residents waiting for the opportunity to file for her share of the settlement, more than two years after Congress approved the deal.

For a combined acre of land on the Leech Lake Reservation in northern Minnesota and the Lake Traverse Reservation in northeast South Dakota, Harmon could reap a one-time payment of up to $1,800. It's a pittance, Harmon said, for an issue that pained her parents and grandparents until their deaths.

"They went to their graves believing you just can't trust the government," Harmon said. "A lot of people from my generation feel the same way."

As recently as 2005, plaintiffs in the Cobell case speculated that the government's liability could top $100 billion. At times, during 13 years of negotiations, even the U.S. Department of the Interior projected its tab would be double or more what the Cobell lawyers eventually settled for in 2009. The size of the settlement has even perplexed legal scholars, who expected a larger figure.

"It's a compromise in the broadest sense of the term," said Matthew L.M. Fletcher, director of the Indigenous Law & Policy Center at the Michigan State University College of Law. "It relieves the government of a big headache they've had for a long time."

Another round of oral arguments is scheduled for mid-May in D.C.'s federal appeals court, with two claimants from South Dakota and another from North Dakota joining Craven in arguing that the settlement is unfair.

'A small win'

The Cobell agreement would benefit up to a half-million tribe members across the country, including almost every recognized tribe west of the Mississippi River. Most of the Minnesota payments will be meager compared with payouts in states such as oil- and natural gas-rich Oklahoma and timber-heavy regions of the Pacific northwest, Gingold said.

The government would pay most class-action members between $1,000 and $2,000, with some landowners receiving more to make amends for the mismanage royalties.

Kevin Leecy, president of the Minnesota Indian Affairs Council and chairman of the Bois Forte Band of Ojibwe, along with chairmen from several other Minnesota tribes, declined to comment because the case is under appeal.

"The problem is sufficiently complex that it's very hard to find a solution that fits every account holder," said Eric Eberhard, a professor and Distinguished Indian Law Practitioner at the Seattle University School of Law. But, he said, "without a settlement, I don't think there was a ... remedy for the problems that have been revealed."

Elouise Cobell, a member of the Blackfeet Indian Tribe from Montana who championed the case for decades, died in October, never seeing her estate's $2 million share of the settlement.

Chairman Tom Maulson, of Wisconsin's Lac du Flambeau Tribe, and two other plaintiffs named in the case could get six-figure payouts. Though not as distrustful of the government as Craven, Maulson still wants a tribal-appointed committee to monitor the planned land redistribution.

"[The settlement is] a small win," Maulson said, "but it's like the government still has their hands in the cookie jar."

In Minnesota, even four-figure payouts would collectively provide an "incredible economic boost" to Indian country, said Mark Anderson, a Bois Forte Band member and Minneapolis-based attorney for the Minnesota Chippewa Tribe. "It's going to put money in the hands of people."

That's not quite enough for Harmon. She remembers seeing her mother, in the hours before death, urging her to secure the deed for the family lands.

"It isn't fair, because of all that's happened over all the years," Harmon said. "There's so many layers with the issue, you'll never get to the bottom of it."

Corey Mitchell is a correspondent in the Star Tribune Washington Bureau. Twitter: @StribMitchell

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