A Letter from Class Counsel

Concerns have recently been expressed that the second payments under the Cobell settlement – the Trust Administration payments – have not yet been distributed. Please be assured that the Court, the Claims Administrator and Class Counsel are taking all measures necessary to make sure those payments are distributed as quickly as possible consistent with the terms of the settlement.

In particular, frustration has been expressed with the Claims Administrator, the Garden City Group (“GCG”), suggesting it is responsible for the payments not having been mailed. GCG, just like the parties, is required to follow the terms of the Settlement Agreement approved by Congress and the Court, including the timeline set forth in that agreement for mailing of Trust Administration Class payments. At this point, not all requirements imposed by that agreement for mailing of the Trust Administration payments have been satisfied.

Unfortunately, implementation of the settlement was delayed for a year while Congress considered it and almost another year and a half while four individuals appealed the District Court’s order approving it. These were matters over which we had no control. However, once the appeals expired in late November 2012, we worked with the District Court and GCG to make sure that distribution of the Historical Accounting payments, commenced within 30 days. In fact, GCG was able to commence distribution in three weeks after receipt of the final data for distribution.

Unlike the Historical Accounting Class payments, under the terms of the Settlement Agreement as approved by Congress and the Courts, the Trust Administration payments could not be distributed immediately after the expiration of the appeals. Instead, these payments can be made only after all Trust Administration Class members have been identified. This was due to the fact that, in many cases, the Department of Interior had no record of trust beneficiaries on its electronic systems, requiring they self-identify.

Therefore, in order to make sure that everyone who was eligible had an opportunity to participate in the settlement, the Settlement Agreement provided additional procedures for identifying Trust Administration Class Members. These procedures included a Supplementary Notice to Trust Administration Class members that commenced shortly after the appeals expired, along with a claim filing and review process. All claims were to be submitted by March 1, 2013.

During the claims process, there were concerns expressed by class members in Oklahoma who were experiencing difficulties obtaining records to support their claims due to the absence of those records on Interior’s systems and the devastating tornados that affected much of the state. Therefore, the claims process was extended by the Court to make sure that these individuals had an opportunity to participate. As ordered by the Court, claimants had until September 4, 2013 to request an appeal of a claim denial to the Special Master appointed by the Court.

The claims process was successful as over 485,000 claims were filed. All of those claims were reviewed and timely determinations made by GCG. Over 2,400 appeals from those decisions, many several hundred pages in length, are being carefully considered by the Special Master. As provided for in the Settlement Agreement, once all Trust Administration Class members are substantially identified and the Department of Interior has calculated the pro rata share of the settlement to which each Trust Administration Class member is entitled, we will promptly request that the Court approve the Trust Administration payments. We can’t predict with certainty when these matters will be completed enabling us to request payment from the Court. However, we will provide continual updates as new information becomes available to keep you advised of the status of those payments.

Meanwhile, we continue to work with the Court and GCG to ensure the settlement is administered in accordance with the highest standards. When the Cobell case settled, we inherited the Department of Interior’s records of individual Indian beneficiaries – including the many inaccuracies known to exist within those records. However, a commitment was made that the Cobell settlement would not suffer from the deficiencies that historically afflicted the Indian trust system – in particular that everyone who was eligible to participate in the settlement would have an opportunity to do so. Individual Indian trust records have markedly improved as a result of the Cobell lawsuit. However, problems remain. Delays in, or the absence of, probates have resulted in individuals who had passed away remaining on the list of living trust beneficiaries. Multiple records often exist for a single beneficiary. The Department of Interior still does not know the identity of some trust beneficiaries and current contact information was not available for tens of thousands of known beneficiaries.

We continue to work through these issues. By way of example, to date, through extensive outreach and working directly with tribal governments and GCG, we have been able to locate over half of the 65,000 individuals on the government’s “whereabouts unknown” list published by the Office of the Special Trustee, to insure they receive their settlement funds. Thousands more continue to contact us each month. This has been a serious deficiency that has plagued the individual Indian trust since its inception. We are committed to make sure that it does not continue.

If you have contact information for anyone on the government’s “whereabouts unknown” list, please contact the Claims Administrator at 866-591-2958.

Once again, please be assured that we are doing everything we can to make sure all class members receive their payments as soon as possible. We understand the frustrations experienced over the timing of payments. Many beneficiaries are in great need of these funds and we will continue to do everything we can to make sure the payments go out as soon as possible.

You are welcome to email us at beneficiaryline@kilpatricktownsend.com or call us at 866-383-6554 if you have any questions at all.

David Smith and Bill Dorris