On November 26, 2012, the Secretary of the Interior announced in a press release that the Cobell litigation is final and the department will implement the final steps for the settlement payment.

During the past couple of years, everyone has blamed a host of players as reasons for the delay in making payments to class member parties in accordance with the settlement agreement approved by the court in December 2010.

This is neither here nor there now because payment will be forthcoming and everyone will be happy because they may receive their payment just in time for the holidays. Sad to say folks but expectation usually is more exciting than the gift. Many a child has received presents on Christmas morning and exhibited great joy in unwrapping and playing with their new toys on that exciting day. Mom and Dad are happy and relieved to see the joy in their children’s eyes during that wonderful moment. But there is always the day aftereffect.  This occurs when kids see and compare their presents with their relatives' and friends' presents, family and friends have gone home, and all of a sudden kids may feel robbed of their expectation. That pretty red wagon is sitting in the corner with a broken wheel, the doll’s head is broken off, the electronic game isn’t as exciting as they thought, and on and on. A hangover effect roots in and now we need something new to excite us.

It isn’t going to happen folks. The acceptance of the payment will conclude hundreds of years of injustice and failure to adequately protect our treaty rights. It will be hard to express our belief that we were wronged in the past because now it is made right with the settlement and payment. Why? Because the Cobell settlement agreement (Agreement) explicitly states:

…”shall be deemed to have released, waived and forever (emphasis added) discharged the Releasees from, and the Mismanagement Releasors shall be deemed to be forever barred and precluded from prosecuting, any and all claims and/or causes of action that were, or should have been, asserted in the Amended Complaint when it was filed…”

The recipients of the payment are the Releasors. This statement includes both Trust Administration and Historical Accounting Class members evidenced in the Agreement. Now, I’m not a lawyer, but I do understand the English language as written out in the preceding agreement stipulation. Imagine if an individual Indian walks into a Bureau of Indian Affairs (BIA) office and says “I just found out I didn’t receive all of my money in 1988 for a right-of-way payment, can you help me?”  Good luck on that question. Everyone will start over with a clean slate. Most folks really don’t have to worry much if they are members only in the Historical Accounting Class because the Office of the Special Trustee (OST) assumed oversight and management of IIM accounts during the period affecting those class members and has the accounting information necessary to ensure and provide documentation verifying correct payment was received. This class is presumed not to have owned trust land interest prior to the discharge of duties to OST.

 

But for those members of the Trust Administration Class, submitting a complaint to the BIA for possible erroneous or missing trust payments may be entertained, but most likely not acted upon. It will be like the day after Christmas. The toys are broken, not as fun as we thought, didn’t really get what we wanted, etc. We can complain, but it’s too late because now it’s over. I used to think that the moment someone accepted a payment check, it would be done and any complaining about the past would mean nothing. I have now come to understand, it wouldn’t be over once you accepted the check. It was over when the U.S. Supreme Court denied cert on Ms. Kimberly Craven’s appeal, and Ms. Carol Good Bear, Ms. Mary Lee Johns, and Mr. Charles Columbe’s decision to settle with Cobell while on appeal with the U.S. Supreme Court possibly due to the writing on the wall. An article in the November 27, 2012 Rapid City Journal titled “Cobell checks could arrive before Christmas” quoted Cobell Class Counsel Dennis Gingold saying “So, if we keep our fingers crossed, people can have a nice little Christmas.” Shouldn’t a historical case of the magnitude of the Cobell settlement make it a “great Christmas” rather than a “nice little Christmas?” Anyway, it’s going to be a wonderful Christmas in Indian country, until the day after.

Jay Daniels has 30 years of experience working in Indian Country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at his site, RoundhouseTalk.com.

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