From Law.com:
Congressional approval of one of the largest class action settlements in U.S. history is getting hung up on the issue of legal fees for plaintiffs lawyers.
The $3.4 billion Indian trusts settlement agreed to in December could be scuttled if Congress doesn’t approve the terms of the agreement by May 28, according to The Associated Press.
The tentative settlement would close the books on a class action filed in 1996 on behalf of 300,000 American Indians. The plaintiffs in the suit claimed that as trustee for 145 million acres of land under theDawes Act of 1887, the U.S. Department of the Interior mismanaged trust accounts and allowed the federal government to give the best land to white settlers. The settlement calls for plaintiffs to be paid $1.4 billion — about $1,500 per class member- — and for a $2 billion fund to be set up to buy American Indian land.
The potential snag now, as reported by sibling publication The Blog of Legal Times, is a move by Sen. John Barrasso of Wyoming to cap attorney fees in the case at $50 million. That has one of the plaintiffs lawyers who spent years litigating the matter crying foul.
Dennis Gingold — a solo practitioner in Washington, D.C., who serves as lead counsel to the plaintiffs — told the AP that he will terminate the settlement and resume litigation unless Congress approves the agreement without altering any of its terms. Gingold told The BLT that Barrasso’s sentiments fly in the face of a previous fee cap of $100 million agreed to in December, which would give Gingold and his co-counsel at Kilpatrick Stockton fees totaling between $50 million and $100 million.
Were Gingold and Kilpatrick Stockton to split $100 million, they would be taking a total cut of roughly 7 percent of the $1.4 billion settlement figure; the lawyers’ share shrinks to about 3 percent if the $2 billion trust called for under the proposed settlement is figured in. Either way, the fees would be well below what has been paid out to plaintiffs lawyers in other major class actions such as the one against Enron, as noted by lead plaintiff Elouise Cobell, a former treasurer of Montana’s Blackfeet Nation, in a story by Legal Newsline.
Calls to Gingold and Kilpatrick Stockton litigation partner Keith Harper were not returned by the time of this post. The American Lawyer named both lawyers Litigators of the Week last year for their efforts in reaching an agreement. Kilpatrick disclosed in December 2008 that it had already plowed more than $22 million in legal fees and expenses into the case.
Two years ago The National Law Journal, a sibling publication, named Harper one of its 50 Most Influential Minority Lawyers in America. Before joining Kilpatrick Stockton, Harper was a litigator with the American Indian Rights Fund in Washington, D.C.
Before Harper and Gingold can be compensated for their efforts, the settlement must overcome the final stages of political and legal scrutiny. Gingold told The BLT last week that Barrasso was one of the few opponents raising hackles over the agreement’s terms, noting that plaintiffs “have very strong supporters in the House and Senate.”
Even if Congress approves the settlement by the May 28 deadline — the third such deadline the case has seen to date — it must also be approved by U.S. district court Judge James Robertson.
This article first appeared on The Am Law Daily blog on AmericanLawyer.com.
Turtle Talk 
Like many of the 384,000 federally recognized tribal members who are certified members of the class action lawsuit, Cobell v. Salazar, I was pleased when I learned the Obama Administration and the four named plaintiffs had reached a settlement in December 2009. But after a careful reading of the full settlement, I am disappointed and outspoken in my efforts to educate Indian Country about its ramifications. As the old adage goes, the devil is in the details of what the plaintiffs have agreed to in exchange for settling their 14 year old lawsuit. I see three key issues that must be resolved before the settlement is ratified by Congress and goes back to the Court.
First, the plaintiffs have agreed to the Administration’s request to create a totally new class of plaintiffs to extinguish claims which are entirely outside the scope of the current litigation. The new class, for $500 plus a formula amount, is asked to forever extinguish all their claims for the past mismanagement of their land and its resources – timber, water, grazing or other economic use. The Cobell suit was filed in a Court of Equity that could order an historical accounting as a remedy but it is NOT a court that could award monetary damages. But yet, here we are being offered $3.4 billion dollars? The Obama Administration seems determined “to wipe the slate clean” and “turn a page” without even bothering to find out what is on the slate and whether the page can or should be turned at this time. To many Indian people, a new beginning will consist of restoring and repatriating our homelands to tribes and Indian families in a way that has never occurred before. This new class needs to be dropped out of the proposed settlement. Then the original accounting class might receive between $3,000 to $4,000, not the $1,000 currently proposed.
Secondly, $2 billion of the settlement goes to the Bureau of Indian Affairs (BIA) to purchase back fractioned lands, through the Indian land Consolidation Act that will eventually be returned to the tribes. Neither the tribes, their members or the lawsuit plaintiffs will have any say over which lands are repurchased and consolidated. Rather, the agency most responsible for mismanagement of Indian land will be given sole discretion. After 10 years, any unspent funds revert back to the Treasury. To me, this is an illusory promise and the “reverter clause” is highly frowned upon in class action settlements. The $2 billion should be put in a permanent trust fund account for the tribes where the interest may be spent on repatriating and restoring lands, for tribes and Indian families who want to reclaim their ancestral homelands.
Finally, a $60 million scholarship fund builds from small rebates when Indian people sell their fractioned interest in land. If the seven attorneys named in the proposed Cobell Settlement get their $50 to $100 million right away, let’s endow the scholarship fund upfront and start making funds available immediately for Native youth so often caught in a web of hopelessness. If the attorneys get $100 million — for parity’s sake –let’s dedicate the same to our youth.
Sen. Thomas Barrasso (R-WY) has asked Tribes and Indian people to submit their ideas about how the settlement might be strengthened to better meet the needs of Tribes and Indian people. I appreciate this good faith effort much more than the current efforts to tack the required settlement legislation onto other Congressional bills without benefit of a public hearing on the merits. Transparency is an important element for a healthy democracy – even for Indians.
I’m glad you posted this report, I will forward it to my federal representatives making sure their informed on this matter when it comes before them.
Plus I will forward this report to our UNA members asking them to copy and forward to their federal representatives and tribal council members.
Contacting Congress:
http://www.contactingthecongress.org/