Elouise Cobell, the lead plaintiff and driving force behind the now fourteen-year-old Individual Indian Money Trust Fund suit has been issuing periodic reports since news of a settlement of the case back in December. I wrote about it in The Nature of Things.

Although the “Ask Elouise” letters, sent to those on the litigation listserv are intended to keep the members of the litigation class informed, they provide important information about matters of importance to anyone who has taken an interest in this case. To begin, the settlement is not complete, and still in danger of being lost, until Congress ratifies the settlement agreement.

Why must the settlement approval process occur so quickly? 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.

Any settlement of a lawsuit involves compromise, sometimes the very painful and disappointing acceptance of terms far from true justice. Cobell, without whom there would have been no suit and no measure of justice in this matter, had to make a very difficult decision. She explains it again.

How did we get from plaintiffs’ calculation of almost $40 billion a few years ago to $1.4 billion today? 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.

AJA