```

[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

 H.R. 887, TO DIRECT THE SECRETARY OF THE INTERIOR TO SUBMIT A REPORT 
                     ON INDIAN LAND FRACTIONATION

=======================================================================

                          LEGISLATIVE HEARING

                               before the

                       SUBCOMMITTEE ON INDIAN AND
                         ALASKA NATIVE AFFAIRS

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                         Tuesday, April 5, 2011

                               __________

                           Serial No. 112-18

                               __________

       Printed for the use of the Committee on Natural Resources

         Available via the World Wide Web: http://www.fdsys.gov
                                   or
          Committee address: http://naturalresources.house.gov

                  U.S. GOVERNMENT PRINTING OFFICE
 65-598 PDF               WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001

                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
             EDWARD J. MARKEY, MA, Ranking Democrat Member

Don Young, AK                        Dale E. Kildee, MI
John J. Duncan, Jr., TN              Peter A. DeFazio, OR
Louie Gohmert, TX                    Eni F.H. Faleomavaega, AS
Rob Bishop, UT                       Frank Pallone, Jr., NJ
Doug Lamborn, CO                     Grace F. Napolitano, CA
Robert J. Wittman, VA                Rush D. Holt, NJ
Paul C. Broun, GA                    Raul M. Grijalva, AZ
John Fleming, LA                     Madeleine Z. Bordallo, GU
Mike Coffman, CO                     Jim Costa, CA
Tom McClintock, CA                   Dan Boren, OK
Glenn Thompson, PA                   Gregorio Kilili Camacho Sablan, 
Jeff Denham, CA                          CNMI
Dan Benishek, MI                     Martin Heinrich, NM
David Rivera, FL                     Ben Ray Lujan, NM
Jeff Duncan, SC                      John P. Sarbanes, MD
Scott R. Tipton, CO                  Betty Sutton, OH
Paul A. Gosar, AZ                    Niki Tsongas, MA
Raul R. Labrador, ID                 Pedro R. Pierluisi, PR
Kristi L. Noem, SD                   John Garamendi, CA
Steve Southerland II, FL             Colleen W. Hanabusa, HI
Bill Flores, TX                      Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Charles J. ``Chuck'' Fleischmann, 
    TN
Jon Runyan, NJ
Bill Johnson, OH

                       Todd Young, Chief of Staff
                      Lisa Pittman, Chief Counsel
                Jeffrey Duncan, Democrat Staff Director
                 David Watkins, Democrat Chief Counsel
                                 ------                                

            SUBCOMMITTEE ON INDIAN AND ALASKA NATIVE AFFAIRS

                        DON YOUNG, AK, Chairman
                 DAN BOREN, OK, Ranking Democrat Member

Tom McClintock, CA                   Dale E. Kildee, MI
Jeff Denham, CA                      Eni F.H. Faleomavaega, AS
Dan Benishek, MI                     Ben Ray Lujan, NM
Paul A. Gosar, AZ                    Colleen W. Hanabusa, HI
Raul R. Labrador, ID                 Edward J. Markey, MA, ex officio
Kristi L. Noem, SD
Doc Hastings, WA, ex officio

                                 ------                                

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, April 5, 2011...........................     1

Statement of Members:
    Boren, Hon. Dan, a Representative in Congress from the State 
      of Oklahoma................................................     4
    Gosar, Hon. Paul A., a Representative in Congress from the 
      State of Arizona, Prepared statement of....................    34
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     5
        Prepared statement of....................................     6
    Markey, Hon. Edward J., a Representative in Congress from the 
      State of Massachusetts, Prepared statement of..............    34
    Young, Hon. Don, the Representative in Congress for the State 
      of Alaska..................................................     1
        Prepared statement of....................................     3
        ``Excerpts of the Government Position on the effort by 
          Cobell lawyers to get $223 million'' submitted for the 
          record.................................................    35

Statement of Witnesses:
    Bordeaux, Rodney M., President, Rosebud Sioux Tribe, South 
      Dakota, Statement submitted for the record.................     9
    Douville, Patricia, Council Representative, Rosebud Sioux 
      Tribe, Oral statement on behalf of Rodney M. Bordeaux, 
      President, Rosebud Sioux Tribe.............................     7
    Monette, Richard, Professor of Law, University of Wisconsin, 
      Madison, Wisconsin, and Former Tribal Chairman and Current 
      IIM Account Holder.........................................    10
        Prepared statement of....................................    11

Additional materials supplied:
    Dorr, Gary, Citizen of the Nez Perce Tribe, Enrollment No. 
      2528, Letter submitted for the record by Congressman Raul 
      R. Labrador (R.-ID)........................................    15
    ``Excerpts of the Government Position on the effort by Cobell 
      lawyers to get $223 million'' submitted for the record by 
      Chairman Don Young.........................................    35
                                     

 
    LEGISLATIVE HEARING ON H.R. 887, TO DIRECT THE SECRETARY OF THE 
 INTERIOR TO SUBMIT A REPORT ON INDIAN LAND FRACTIONATION, & FOR OTHER 
                               PURPOSES.

                              ----------                              

                         Tuesday, April 5, 2011

                     U.S. House of Representatives

            Subcommittee on Indian and Alaska Native Affairs

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to call, at 11:00 a.m. in 
Room 1334, Longworth House Office Building, Hon. Don Young 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Young, Gosar, Labrador, Noem, 
Hastings [ex officio], Boren, Kildee, Lujan, Hanabusa.

STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS FROM 
                      THE STATE OF ALASKA

    Mr. Young. The Subcommittee will come to order. The 
Chairman notes the presence of a quorum. The Subcommittee on 
Indian and Alaska Native Affairs is meeting today to hear 
testimony on H.R. 887, to direct the Secretary of the Interior 
to submit a report on Indian land fractionation, and for other 
purposes.
    Under Committee Rule 4[f], opening statements are limited 
to the Chairman and Ranking Member of the Subcommittee, so that 
way we can hear from our witnesses more quickly.
    However, I ask for unanimous consent to include any other 
Members' opening statements in the hearing record if submitted 
to the Clerk by the close of business today. Hearing no 
objection, so ordered.
    The purpose of today's hearing is to hear testimony on H.R. 
887, a bill that I introduced with the Chairman of the Full 
Committee, Doc Hastings, and the gentleman from Arizona, Mr. 
Gosar.
    H.R. 887 establishes a cap of $50 million on fees and 
expenses that may be awarded to Plaintiffs' attorneys pursuant 
to the Cobell Settlement agreement. It also requires the 
Department of the Interior to submit to Congress a report 
regarding its plans to consolidate highly fractionated Indian 
lands using the $1.9 billion in direct spending provided in the 
Cobell Settlement for this purpose.
    Under the Claims Resolution of 2010, Congress authorized 
the United States District Court to approve the Cobell 
Settlement agreement. Congress did so with assurances from the 
Government and the Plaintiffs that attorneys' fees would be 
limited to an amount between $50 million, and $100 million 
pursuant to a side agreement that they signed in December of 
2009.
    Before this Committee, the Named Plaintiff testified that 
her attorneys, quote, ``had agreed to limit their petition for 
fees to under $100 million.'' Even this amount is excessive in 
my mind.
    As the administration points out, only $360 million of the 
settlement funds are based on claims that counsel actually 
litigated. The remaining funds are the result, not of tens of 
millions of dollars' worth of work performed by class counsel, 
but rather the government's desire to resolve the claims of the 
IIM account holders themselves.
    Paying lawyers $50 million to $100 million for claims 
valued at 360 million sparked a controversy that delayed 
passage of a settlement for an entire year. Not only did the 
attorneys fail to justify these fees to the Committee, but the 
government and Plaintiffs lawyers structured the settlement so 
that all legal fees must be paid by the individual Indians and 
not the government.
    Little did anyone know that the Named Plaintiff who made 
her statement before this Committee, the Plaintiffs were 
apparently concealing the existence of a contingency fee 
agreement providing the attorneys with a recovery of $223 
million.
    It was publicly revealed for the first time two days after 
the President signed the Claims Resolution Act into law. Is 
this a bait-and-switch, a game of Three Card Monte, or a ploy 
to convince the court that $100 million should be kind of a 
consolation prize?
    I don't know how to answer this, but I do know that this 
Committee had a right to know about this contingency fee 
agreement when the Named Plaintiff and her attorneys testified 
about the legal fees of that case to the Committee.
    Today, the Plaintiffs are stonewalling the efforts of this 
Committee to get to the bottom of the fee controversy, and are 
refusing to testify, or to respond to numerous written 
inquiries over the last year seeking information about their 
fees.
    I voted for the Claims Resolution Act, but I now worry that 
the integrity of the Act has been compromised by the 
Plaintiffs' lawyers. Their actions are frustrating the efforts 
of the Members to protect the interests of 500,000 Indians, 
whose payments are now threatened by grossly excessive legal 
fees.
    I don't want to let the government off the hook. The 
Department of the Interior and Justice have refused to testify 
on the grounds that the matter in which the Subcommittee seeks 
testimony is an active litigation. This is not an excuse the 
Committee has historically recognized.
    It is also unprecedented. During the previous 
administration officials with the Department of the Interior 
voluntarily testified on numerous occasions to the House and 
Senate Committees while Cobell was in active litigation.
    They also engaged in confidential mitigation with the 
Plaintiffs under the direct and personal supervision of the 
staff of the House and Senate Committees of jurisdiction, and 
the current administration testified on settlement last year.
    In any case, the Department of the Interior and Justice 
have advised the Committee that the position of the government 
is entirely reflective of the brief that has been submitted to 
the court.
    It is the view of the government on the attorneys' fees 
that it is important for Members to review, but I do not wish 
to take the Committee's time quoting them. As part of my 
written statement provided for the record, I have provided key 
excerpts from the government's position on attorneys' fees.
    May I say that if they continue to stonewall me, I will 
subpoena those people, litigation or no litigation, and then 
see how we go forward from there. At this time, I recognize the 
Ranking Member, the gentleman from Oklahoma, Mr. Boren, for any 
statement that he would like to make.
    [The prepared statement of Chairman Young follows:]

            Statement of The Honorable Don Young, Chairman, 
            Subcommittee on Indian and Alaska Native Affairs

    The purpose of today's hearing is to hear testimony on H.R. 887, a 
bill I introduced with the Chairman of the full Committee, Doc 
Hastings, and the Gentleman from Arizona, Mr. Gosar.
    H.R. 887 establishes a cap of $50 million on fees and expenses that 
may be awarded to plaintiffs' attorneys pursuant to the Cobell 
Settlement Agreement. It also requires the Department of the Interior 
to submit to Congress a report regarding its plans to consolidate 
highly fractionated Indian lands using the $1.9 billion in direct 
spending provided in the Cobell Settlement for this purpose.
    Under the Claims Resolution Act of 2010, Congress authorized the 
U.S. District Court to approve the Cobell Settlement Agreement. 
Congress did so with assurances from the Government and the plaintiffs 
that attorneys' fees would be limited to an amount between $50 million 
and $100 million pursuant to a side agreement they signed in December 
2009.
    Before this Committee, the Named Plaintiff testified that her 
attorneys [quote] ``have agreed to limit their petition for fees to 
under $100 million.''
    Even this amount is excessive. As the Administration points out ``. 
. .only $360 million of the settlement funds are based on claims that 
counsel actually litigated. The remaining funds are the result, not of 
tens of millions of dollars' worth of work performed by class counsel, 
but rather the government's desire to resolve the claims of the IIM 
account holders themselves.''
    Paying lawyers between $50 million and $100 million for claims 
valued at $360 million sparked a controversy that delayed passage of 
the Settlement for an entire year. Not only did the attorneys fail to 
justify these fees to this Committee, but the Government and plaintiff 
lawyers structured the Settlement so that all legal fees must be paid 
by the individual Indians, not the Government.
    Little did anyone know that when the Named Plaintiff made her 
statement before the Committee, the plaintiffs were apparently 
concealing the existence of a contingency fee agreement providing the 
attorneys with a recovery of $223 million. It was publicly revealed for 
the first time two days after the President signed the Claims 
Resolution Act into law.
    Is this a bait-and-switch, a game of Three Card Monte, or a ploy to 
convince the Court that $100 million should be a kind of consolation 
prize?
    I don't know the answer to this, but I do know this Committee had a 
right to know about this contingency fee agreement when the Named 
Plaintiff and her attorney testified about the legal fees of this case 
in this Committee.
    Today, the Plaintiffs are stonewalling the efforts of this 
Committee to get to the bottom of the fee controversy in their refusal 
to testify or to respond to numerous written inquiries over the last 
year seeking information about their fees.
    I voted for the Claims Resolution Act, but I now worry that the 
integrity of the Act has been compromised by the Plaintiffs' lawyers. 
Their actions are frustrating the efforts of Members to protect the 
interest of the 500,000 Indians whose payments are now threatened by 
grossly excessive legal fees.
    I don't want to let the Government off the hook. The Departments of 
Interior and Justice have refused to testify on the grounds that ``the 
matter on which the Subcommittee seeks testimony is in active 
litigation.''
    This is not an excuse the Committee has historically recognized. It 
is also unprecedented. During the previous Administration, officials 
with the Department of the Interior voluntarily testified on numerous 
occasions in House and Senate committees while Cobell was in active 
litigation. They also engaged in confidential mediation with the 
Plaintiffs under the direct, personal supervision of staff of the House 
and Senate committees of jurisdiction. And the current Administration 
testified on the Settlement last year.
    In any case, the Departments of Interior and Justice have advised 
the Committee that the position of the Government ``is entirely 
reflected in the briefs that it submitted to the court. . .''
    The views of the Government on the attorney fees are important for 
Members to review but I do not wish to take up the Committee's time 
quoting them now. As part of my written statement submitted for the 
record, I am providing key excerpts of the Government's position on 
attorney fees.
                                 ______
                                 

STATEMENT OF HON. DAN BOREN, A REPRESENTATIVE IN CONGRESS FROM 
                     THE STATE OF OKLAHOMA

    Mr. Boren. Thank you, Mr. Chairman. After nearly 14 years 
of contentious litigation, Congress, by an overwhelming 
majority, authorized $3.4 billion to settle the Cobell v. 
Salazar class action lawsuit.
    This authorization approved the proposed settlement 
agreement between the United States and over 500,000 individual 
Indian beneficiaries. Last December, we closed the chapter on 
more than 100 years of Federal mismanagement of Indian trust 
funds and land claims.
    After decades of ignoring the problem, Congress passed the 
settlement and President Obama signed it into law. It was an 
historic day for Indian Country, and set in motion the next 
steps for the Judicial Branch to issue its final approval of 
the settlement.
    Indeed, the Cobell Settlement process is a lesson in 
civics. By enacting it in the last Congress, the Legislative 
Branch authorized the funding to effect the settlement. By 
signing the bill, the Executive Branch enacted that authority 
into law. Now the Judicial Branch, in fulfillment of its 
appropriate government function, must decide whether the 
settlement is fair and reasonable before Indian beneficiaries 
may begin to receive payment for overdue justice.
    This decision must include a careful look at attorneys' 
fees. H.R. 887 trends very closely to disrupting the fine 
balance struck by the separation of powers principles that 
guide our government.
    It improperly attempts to interfere with ongoing litigation 
by limiting the amount of attorneys' fees that a Federal judge 
may award. This creates an appearance of undue political and 
Congressional influence over litigation decisions.
    In short, this bill is well meaning, but the fact of the 
matter is that it invites constitutional inquiry and improperly 
interferes with the judicial process. Indian Country has waited 
far too long for justice to be achieved in this case.
    We must now let the Judicial Branch do its work to provide 
finality and close the book on a century of broken promises. I 
will say to the Chairman that I do agree with him. I have a 
concern about these excessive fees, and maybe $50 million is 
the right mark.
    So I look forward to working with you, and I believe that 
the court should sort of do this right now, but I understand 
your frustration, especially with--you know, we want the money 
going to Indian Country, and not a lot of attorneys. So I yield 
back. Thank you.
    Mr. Young. I thank the gentleman, and the one thing that 
bothers me the most was the contingency fee was not announced 
until two days after the bill was signed. And I don't think 
that any of the Plaintiffs would have agreed to that if they 
had not been a contingency fee with one person or a small 
group.
    Because we were told in this Committee that it was less, 
and between $50 million to $100 million, and we thought $100 
million was too much with the bills introduced by the Chairman 
was $50 million.
    The settlement was about $350 million in legal work and 
then they get $100 million, and that is pretty high itself. But 
now it was announced after the fact, and after it was signed 
into law--and I agree with you that justice has been long 
overdue.
    I have been in this program for about 17 years, and when we 
get to a settlement, we originally thought that there was $17 
billion of misconduct by the Federal Government on Native lands 
by very frankly doing some very strange things, and they 
conveniently lost the records.
    And so when they settled this, OK, I said fine, and I voted 
for it. But what bothered me was then we find out there is $223 
million in legal fees. And I have been through this legal 
aspect for a while, and I don't particularly have a great 
fondness for that process.
    So with that, I now recognize the Chairman of the Full 
Committee, Doc Hastings.

 STATEMENT OF HON. DOC HASTINGS, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF WASHINGTON

    Mr. Hastings. Thank you, Mr. Chairman, and thank you for 
introducing H.R. 887, and I am pleased to be a cosponsor of 
that bill. Let us be clear. Every dollar paid to the attorneys 
comes directly out of the pockets of individual Indians.
    This bill is focused on ensuring those individual Indians 
for whom this settlement was reached are the ones who benefit, 
and that what is owed to individual Indians under the law is 
not fleeced away by a handful of lawyers demanding over $200 
million based on a secret deal known only to themselves.
    During the second session of the 111th Congress, when the 
Cobell Settlement was pending, Members of the Committee were 
advised that the lawyers were seeking $50 million to $100 
million in legal fees, and costs, pursuant to an agreement on 
attorneys' fees that was signed by both parties to the lawsuit, 
the government and the Plaintiffs.
    In testimony made in front of this Committee in March of 
2010, the Named Plaintiff said that her attorneys would not 
seek more than $100 million. The government witnesses also 
described the $50 million to the $100 million fee range as 
being agreed upon.
    And it was on those assurances that the Members of this 
Congress made their decision. At the time, the $50 million to 
$100 million fee range was considered by many to be 
extraordinary, including me.
    A number of prominent tribal organizations and known 
experts on the Cobell litigation recommended that Congress 
amend the settlement to impose a cap at $50 million. These 
questions about excessive fees led me twice to file amendments 
to impose such a cap.
    Both times the Rules Committee, under the control of the 
Democrats, blocked me from even offering these ceiling 
limitation amendments. So imagine everyone's surprise when 
shortly after the President signed the Claims Resolution Act 
that the Plaintiffs revealed that they had been hiding a 
contingency fee in which they claim they were owed $223 
million.
    The chief Senate advocate of the Cobell Settlement, Senate 
Indian Affairs Committee Chairman Byron Dorgan, called this 
development shameful, and he went on to say, and I quote, ``it 
is not a level that is acceptable, and is not a level that was 
contemplated by the agreement.''
    Mr. Chairman, I would hope that Members of the Committee 
concur in the statement made by the former Chairman, and that 
we take a real hard look to protect the interests of those 
500,000 Indians that are affected.
    And, last, it is very disappointing that the Department of 
Justice and Interior refused to testify at this hearing. To 
claim that this case is in active litigation as an excuse for 
not testifying just defies all history.
    Time after time, after time, the government had testified 
on this case when it was in litigation. Their position in court 
was to limit fees to $50 million, which of course is what H.R. 
887 would do. They even reiterated that position in refusing to 
testify today in front of the Committee. But even more 
frustrating and outrageous is the refusal of the Plaintiffs' 
attorneys themselves to testify.
    They have been asked to provide this Committee with a copy 
of their secret contingency agreement and other information 
used to justify their fee claim. They refused that request last 
year, and when asked again this year, they again refused.
    So what do they do instead? They hired attorneys to 
represent them--lawyers hiding secret agreements to enrich 
themselves at the expense of individual Indians--lawyers hiring 
lawyers, instead of being open and transparent.
    Mr. Chairman, that is why H.R. 887 was introduced and why 
this hearing is necessary, and why further action by this 
Committee should be expected. Again, I want to commend the 
Chairman for convening this hearing and introducing this bill, 
and I look forward to hearing the testimony of our witnesses.
    [The prepared statement of Mr. Hastings follows:]

          Statement of The Honorable Doc Hastings, Chairman, 
                     Committee on Natural Resources

    I want to thank the Chairman of the Subcommittee for introducing 
H.R. 887 and holding an expedited hearing on it. I am an original 
cosponsor of this bill.
    Let's be clear: every dollar paid to the attorneys comes directly 
out of the pocket of individual Indians. This bill is focused on 
ensuring those individual Indians for whom this settlement was reached 
are the ones who benefit, and what is owed to individual Indians under 
the law isn't fleeced away by a handful of lawyers demanding over $200 
million dollars based on a secret deal known only to themselves.
    During the second session of the 111th Congress when the Cobell 
Settlement was pending approval, Members of the Committee were advised 
that the lawyers were seeking $50 million to $100 million in legal fees 
and costs pursuant to an Agreement on Attorney fees that was signed by 
both Parties to the lawsuit, the government and the plaintiffs.
    In testimony made in this Committee in March 2010, the Named 
Plaintiff said her attorneys would not seek more than $100 million. The 
Government witnesses also described the $50 million to $100 million fee 
range as being agreed upon. And it was on these assurances that Members 
made their decision.
    At the time, the $50 million to $100 million fee range was 
considered by many to be extraordinary. A number of prominent tribal 
organizations and noted experts on the Cobell litigation recommended 
that Congress amend the Settlement to impose a fee cap of $50 million.
    These questions about excessive fees led me twice to file 
amendments to impose such a cap. Both times, the Rules Committee under 
the control of House Democrats blocked me from offering my fee 
limitation amendments.
    So imagine everyone's surprise when shortly after the President 
signed the Claims Resolution Act into law, the plaintiffs revealed they 
had been hiding a contingency fee agreement under which they claim to 
be owed $223 million.
    The chief Senate advocate of the Cobell Settlement, Senate Indian 
Affairs Committee Chairman Byron Dorgan, called this development 
``shameful.''
    Senator Dorgan added that $223 million ``is not a level that is 
acceptable and it's not a level that was contemplated by the 
agreement.''
    Mr. Chairman, I would hope that Members of the Committee concur in 
the statement made by the former Chairman of the Senate Indian Affairs 
Committee, and take steps to protect the interests of 500,000 
individual Indians by supporting H.R. 887.
    Lastly, it is very disappointing that the Departments of Justice 
and Interior refused to testify at this hearing. To claim that the case 
is in active litigation as an excuse just defies all history. Time 
after time after time, the government had testified on this case it was 
in litigation. Their position in court is to limit fees to $50 million, 
which is what H.R. 887 would do. They even reiterated that this is 
their position in refusing to testify before the Committee.
    Even more frustrating and outrageous is the refusal of the 
plaintiff attorneys themselves to testify. They've been asked to 
provide this Committee with a copy of their secret contingency 
agreement and other information used to justify their fee claim. They 
refused this request last year. And when asked again this year they 
again refused. So what did they do? They hired attorneys to represent 
them.
    Lawyers signing secret agreements to enrich themselves at the 
expense of individual Indians.
    Lawyers hiring lawyers instead of being open and transparent.
    This is why H.R. 887 was introduced, its why this hearing is 
necessary and its why further action by the Committee should be 
expected.
    Again, I thank and commend Chairman Young for convening this 
hearing. I look forward to hearing the views of today's witnesses on 
this issue.
                                 ______
                                 
    Mr. Young. I thank the Chairman. We only have two witnesses 
today. They are Patricia Douville, and I believe she represents 
the Rosebud Sioux Tribe; and Professor Richard Monette, of the 
University of Wisconsin-Madison School of Law, an IIM Account 
Holder and a former Tribal Chairman. Welcome.
    Like all our witnesses, your written testimony will appear 
in full in the hearing record. I also ask you to keep your oral 
statements to five minutes as outlined in your invitation 
letter from the Committee, and under Rule 4[a].
    Our microphones are not automatic, and so please press the 
button when you are ready to begin. I would like to explain the 
timing lights. When you begin to speak, our clerk will start 
the timer, and a green light will appear. After four minutes, a 
yellow light will appear, and at that time you will begin to 
conclude your statement.
    And at five minutes the red light will come on, and you may 
complete your sentence, but at that time I must ask you to 
please stop. So, with that, I will call on Patricia first. 
Please, Madam, you are on.

STATEMENT OF PATRICIA DOUVILLE, COUNCIL REPRESENTATIVE, ROSEBUD 
   SIOUX TRIBE, ON BEHALF OF RODNEY M. BORDEAUX. PRESIDENT, 
               ROSEBUD SIOUX TRIBE, SOUTH DAKOTA

    Ms. Douville. Good morning, Mr. Chairman, and Committee 
Members. On behalf of the Rosebud Sioux Tribe, the Sicangu 
Lakota Oyate, I would like to thank you and the Committee for 
convening this hearing to direct the Secretary of the Interior 
to submit a report on Indian land fractionation, and for other 
purposes.
    My name is Patricia Douville, and I am a member of the 
Tribal Council of the Rosebud Sioux Tribe, and an testifying 
today in that capacity.
    Although now considered a single Indian tribe, the Rosebud 
Sioux Indian Reservation is historically a confederation of 
seven Bands and Sub-Bands from all over the Midwest, and 
central, and southern Canada. The present-day Rosebud 
Reservation is located in south-central South Dakota, and was 
established by the authority of the 1868 Great Fort Laramie 
Treaty.
    The Indian Reorganization Act of June 18, 1934, also known 
as the Wheeler-Howard Act, or informally, the Indian New Deal, 
was a United States Federal legislation which secured certain 
rights to Native Americans, including Alaska Natives.
    These include activities that contributed to the reversal 
of the Dawes Act's privatization of common holdings of American 
Indians and a return to local self-government on a Tribal 
basis.
    The Act also restored to Native Americans the management of 
their assets, being mainly land, and included provisions 
intended to create a sound economic foundation for the 
inhabitants of Indian reservations.
    Section 18 of the IRA conditions application, or 
membership, of the IRA on a majority vote of the affected 
Indian Nation or Tribe within one year of the effective date of 
the Act, 25 United States Code 478. The IRA was the initiative 
of John Collier, Senior, Commissioner of the Bureau of Indian 
Affairs from 1933 to 1945.
    The Rosebud Sioux Indian Reservation ratified the IRA on 
June 18, 1935, and now called itself the Rosebud Sioux Tribe. 
Subsequently, on April 7, 1943, the Rosebud Sioux Tribe formed 
Tribal Land Enterprise, TLE, under the authority of the Act to 
actively pursue and purchase tribal-allotted lands that would 
have traditionally been lost by the Patent-Fee process.
    TLE historically becomes one of the first tribally owned 
and operated land consolidation programs in the United States. 
Since 1943, TLE now has in its control over 800,000-plus acres. 
These acres are used by the Tribe for agricultural, economic 
development, and of course, Tribal member residential use.
    The Rosebud Sioux Tribe has proven to the Department of the 
Interior and the Bureau of Indian Affairs that Tribes have the 
capability, the knowledge, and the foresight to control the 
destiny of its tribal lands. After all, isn't it true that we 
Native Americans and Alaskan Natives should know what is in our 
best interests?
    The Cobell Settlement brings forth many questions to me, my 
Tribe, and those Tribes who were affected by the failure of the 
Bureau of Indian Affairs to properly provide trust management 
of our individual allotted Tribal members.
    Mr. Chairman, what is paramount in Indian Country today 
with this settlement is the following. Cap the lawyer fees to 
$50 million. Second, ensure that the Tribes who were wronged by 
the Department of the Interior and the Bureau of Indian Affairs 
are properly and justly provided with the settlement funds for 
repurchasing of fractionated or restricted lands.
    What worries me, Mr. Chairman, is the problem of the BIA 
administering these repurchasing funds with a time limit that 
is stipulated within the settlement agreement to a period of 10 
years.
    Mr. Chairman, is it peculiar that those who violated the 
trust responsibility that put this Federal Government in a 
lawsuit, which it lost, is again in control of these dollars?
    Mr. Chairman, if this Committee has the authority to act 
and make recommendations, then please consider that Tribes also 
lost lands to the Homestead Act, which some would argue 
violated our great treaties.
    The allowance for tribes to purchase fee lands within their 
original boundaries with these settlement dollars would help 
correct historic injustices. Thank you.
    [The prepared statement of Mr. Bordeaux follows:]

     Statement submitted for the record by Mr. Rodney M. Bordeaux, 
  President, Rosebud Sioux Tribe (As given by Ms. Patricia Douville, 
               Council Member of the Rosebud Sioux Tribe)

    Good morning Chairman Doc Hastings and Committee members. On behalf 
of the Rosebud Sioux Tribe, the Sicangu Lakota Oyate, I would like to 
thank you and the committee for convening this hearing to direct the 
Secretary of the Interior to submit a report on Indian land 
fractionation, and for other purposes. My name is Patricia Douville and 
I am a member of the Tribal Council of the Rosebud Sioux Tribe and am 
testifying today in that capacity.
    Although now considered a single Indian tribe, the Rosebud Sioux 
Indian Reservation, is historically a confederation of 7 bands and sub-
bands from all over the mid-west and central and southern Canada. The 
present-day Rosebud Reservation is located in South-Central South 
Dakota and was established by the authority of the 1868 Great Fort 
Laramie Treaty.
    The Indian Reorganization Act of June 18, 1934, also known as the 
Wheeler-Howard Act or informally, the Indian New Deal, was a U.S. 
federal legislation which secured certain rights to Native Americans, 
including Alaska Natives. These include activities that contributed to 
the reversal of the Dawes Act's privatization of common holdings of 
American Indians and a return to local self-government on a tribal 
basis. The Act also restored to Native Americans the management of 
their assets, being mainly land, and included provisions intended to 
create a sound economic foundation for the inhabitants of Indian 
reservations. Section 18 of the IRA conditions application, or 
membership, of the IRA on a majority vote of the affected Indian nation 
or tribe within one year of the effective date of the act (25 U.S.C. 
478). The IRA was the initiative of John Collier Sr., Commissioner of 
the Bureau of Indian Affairs from 1933 to 1945.
    The Rosebud Sioux Indian Reservation ratified the IRA on June 18, 
1935 and now called itself the Rosebud Sioux Tribe. Sub sequentially, 
on April 07, 1943, the Rosebud Sioux Tribe forms Tribal Land Enterprise 
(TLE) under the authority of the act to actively pursue and purchase 
tribal allotted lands that would have traditionally been lost by the 
Patent-Fee process.
    TLE historically becomes one of the first tribally owned and 
operated land consolidation programs in the United States. Since 1943 
TLE now has in its control over 800,000 plus acres. These acres are 
used by the tribe for agricultural, economic development, and of 
course, tribal member residential use.
    The Rosebud Sioux Tribe has proven to the Department of Interior 
and the Bureau of Indian Affairs that tribes have the capability, the 
knowledge and the foresight to control the destiny of its tribal lands. 
After all, isn't it true that we Native Americans and Alaskan Natives 
should know what is in our best interest?
    The Cobell Settlement brings forth many questions to me, my tribe, 
and those tribes who were affected by the failure of the Bureau of 
Indian Affairs to properly provide ``trust management'' of our 
individual allotted tribal members.
    Chairman Hasting what is paramount in ``Indian Country'' today, 
with this settlement, is the following; cap the lawyer fees to 50 
million dollars, secondly, ensure that the tribes whom were wronged by 
the Department of Interior and the Bureau of Indian Affairs are 
properly and justly provided with the settle funds for repurchasing of 
fractionated or restricted lands.
    What worries me, Mr. Chairman, is the problem of the BIA 
administering these repurchasing funds with a time limit that is 
stipulated within the settlement agreement to a period of ten years. 
Mr. Chairman is it peculiar that those who violated the trust 
responsibility that put this federal government in a lawsuit, which it 
lost, is again in control of these dollars?
    Mr. Chairman if this committee has the authority to act and make 
recommendations then please consider that tribes also lost lands due to 
the Homestead Acts which some would argue violated our great treaties. 
The allowance for tribes to purchase fee lands, within their original 
boundaries, with these settlement dollars would help correct historic 
injustices. Thank you.
                                 ______
                                 
    Mr. Young. Thank you, Lady, for your fine testimony. 
Richard, you are up.

     STATEMENT BY PROFESSOR RICHARD MONETTE, UNIVERSITY OF 
  WISCONSIN-MADISON SCHOOL OF LAW, FORMER TRIBAL CHAIRMAN AND 
                   CURRENT IIM ACCOUNT HOLDER

    Mr. Monette. Good morning, Chairman Hastings, Chairman 
Young, Ranking Member Boren, and Members of the Committee, I am 
also honored to be on the panel with the Rosebud Sioux Tribal 
Leader.
    Mr. Chairman, Ms. Cobell and the attorneys told us all that 
they would keep the class informed through a website. In fact, 
the court once noted--and I will quote: ``The Plaintiffs 
generally have utilized their website as the primary means to 
communicate with class members.''
    Well, more specifically, Mr. Chairman, on November 5, 1998, 
the judge struck from the complaint all of the claims that had 
to do with money, and we talked about this being potentially a 
$17 billion case.
    One of the reasons that it went from $17 billion down to a 
much lower amount is because in 1998, in November, the judge 
struck from the complaint all of the claims that had to do with 
money, and he made it clear that the only claims that would 
survive were those that were about accounting.
    And then he ordered, quote, ``that the Plaintiffs within 
five days of this order shall post on the front page of 
Plaintiffs' website, in a conspicuous manner, a notice to the 
class.''
    However, in that very month, and months to follow, the 
website simply stated, and I brought a copy here if you would 
like to see it from November of 1998, there are no records to 
display for this month.
    The single biggest event in the history of this litigation, 
and they didn't tell the class. That was a common practice. In 
fact, it is fair to say that we were outright lied to all 
along.
    I will say that the Christian Science Monitor wrote in an 
article in 2002, and they were quoting Ms. Cobell, and she said 
that ``one of the persistent rumors I always hear is that I am 
somehow going to make millions of dollars in reward money for 
taking on the lawsuit,'' she said, shaking her head. And then 
she said, quote, ``I stand to gain no more than any other trust 
fund recipient.'' Well, today, we know that Ms. Cobell stands 
to gain well over $2 million from the settlement, while the 
vast majority of class members will receive less than $2,000. 
She lied.
    The Federal Court once wrote that it has been observed that 
by moving for class certification, the class representative 
and, in this case Ms. Cobell, has voluntarily taken on a court-
imposed fiduciary responsibility.
    Evidently, Ms. Cobell does not feel that that obligation 
applies to her. It is safe to say that we all felt duped. 
Former Senator Dorgan has said that he is incensed at the 
amount of the request. He has intimated that Congress would not 
have passed it if he had known.
    In a separate petition for attorneys' fees filed recently 
by the Native American Rights Fund (NARF), here is what they 
wrote. This is the Native American Rights Fund, who started 
this lawsuit. ``Unlike the other attorneys who have petitioned 
the court for fees in this case, NARF is not seeking a premium, 
a bonus, or a fee multiplier.'' So I guess now we know even 
what NARF thinks about the attorney request.
    If Members of Congress who moved the settlement, and NARF, 
which brought the suit, feel deceived, imagine why we, the IIM 
account holders, feel deceived about this lawsuit. There is a 
growing sentiment out there, in fact, that the request for $223 
million in legal feels is designed to make a $99 million 
settlement look reasonable. Even $50 million is not reasonable.
    Lawyers take contingency fee cases all the time. They jump 
at the chance to win big. They run the risk of winning nothing. 
That is what happened in this case. They won nothing.
    The trial court ordered $455 million, and that an 
accounting could not be done. The appeals court said that an 
accounting could be done, and they vacated the $455 million. 
That is where we stand with this case, zero dollars on the 
table.
    They filed an intent to appeal with the United States 
Supreme Court, and then thinking that they were going to lose 
in front of a Republican-controlled court as they said, they 
withdrew their appeal.
    And so we stand now with an appeals court opinion that says 
that they won nothing but an accounting. Ironically, maybe that 
was a win for some of us IIM account holders, because that is 
what we wanted, an accounting.
    But when all they could receive was an accounting, there 
was no money in that for lawyers. So, very clearly, they went 
then and began to talk to this body, to the Department, and 
conjured up a lawsuit and a settlement so they could get paid a 
lot of money, and the rest of us very, very little. Thank you.
    [The prepared statement of Mr. Monette follows:]

       Statement of Richard Monette, Associate Professor of Law, 
              University of Wisconsin, Madison, Wisconsin

    Good morning Chairman Hastings and Chairman Young, and members of 
the Committee. My name is Richard Monette and I am an Associate 
Professor of Law at the University of Wisconsin in Madison. I am an 
enrolled member and former Tribal Chairman of the Turtle Mountain Band 
of Chippewa, and an IIM account holder. I was invited to present my 
views on the attorney's fees portion of H.R. 887, specifically on the 
adequacy of the Plaintiff attorney's relationship with the unnamed 
members of the Plaintiff class, so I will limit my comments to those 
matters.
    A sentiment is growing that Plaintiff attorneys' request for 223 
million dollars in legal fees is designed to make a 99 million dollar 
request appear reasonable. Mr. Chairman, even 50 million dollars in 
attorney fees in this case is not reasonable.
    Lawyers take cases on contingency fee bases all the time. They jump 
at the chance to win big. They run the risk of winning nothing. The 
latter is what occurred in the Cobell case.
    As a factual matter, after nearly thirteen years Plaintiffs finally 
got a judgment from the Trial Court for 455 million dollars and a 
ruling that an accounting could not be done. However, the Trial Court's 
decision was appealed, and the Court of Appeals vacated, set aside the 
455 million dollar award and ruled that an accounting could be done. 
Ironically, Mr. Chairman, the ruling from the Court of Appeals could be 
considered a win, since an accounting is what the IIM account holders 
actually wanted--no money, but an accounting. ELOISE PEPION COBELL, et 
al., Plaintiffs, v. BRUCE BABBITT, Secretary of the Interior, et al., 
Defendants, 30 F. Supp. 2d 24, 39 (D.C. D.C.)(``The plaintiffs have 
repeatedly and expressly stated that their Complaint does not seek an 
additional infusion of money or other damages for other losses, but 
rather requests only an accounting.'') The problem with that, to some, 
was the Court of Appeals' decision didn't put any money in the hands of 
the attorneys. By the way, it certainly didn't put any money in the 
hands of Class Representatives, since the Department of the Interior 
has stated publicly that it had in fact conducted an accounting of the 
IIM accounts for Ms. Cobell and named Class Representatives and found a 
variance of less than one hundred dollars.
    At that juncture, Plaintiffs filed an intent to appeal with the US 
Supreme Court. However, apparently thinking they would lose, they never 
did complete the appeal. Rather they withdrew their intent to appeal 
and decided to take the route of colluding with the Department of the 
Interior, deceiving this Congress into creating a new Class of 
Plaintiffs and new claims that were never litigated, and then awarding 
millions to the lawyers who had thus far lost the case. To add insult 
to injury, a deal was offered for over seven billion dollars, but 
Plaintiff attorneys summarily turned it down, doing more to protect 
their own interests than those of the Individual Indian Account holders 
they represented. Frankly, they should get nothing.
    Mr. Chairman, it's safe to say we all were duped. Former Senator 
Dorgan has said he is incensed at the amount of the request. In a 
separate petition for attorney fees, the Native American Rights Fund 
writes: ``Unlike the other attorneys who have petitioned the Court for 
fees in this case, NARF is not seeking a premium, bonus, or fee 
multiplier.'' Is it still a surprise that the thousands of unnamed 
Plaintiffs also now feel duped as well?
    In a Legal Times blog on December 18, 2010 Plaintiff Attorney Keith 
Harper tells the reporter that the attorneys have in fact agreed to 
limit their fee claim. The sophisticated minds at the Blog understood 
them to be saying exactly that. If a legal publication understood the 
attorneys' to have agreed to limit their fees, then surely the average 
IIM beneficiary could not be faulted for getting the same 
understanding. And if the Blog (and other news media got it so wrong, 
wasn't it incumbent upon the Cobell attorneys to correct this mis-
impression for the benefit of their clients? Class counsel have a high 
duty to the Class Members. These duties include loyalty, the avoidance 
of self-dealing, and truthfulness in representations to the Class. 
Having just litigated a case relating to the fiduciary duties of a 
Trustee, the attorneys were well acquainted with the fiduciary duties 
owed the Class. How can Class Counsel reconcile their actions relating 
to attorney fees with their duties to the Class? Should the inference 
of that bad intent be made?
    Class Counsel assert in their fee petition that they had a written 
agreement with Class Representatives that they would recover a 
contingency fee of 14 percent of all funds provided under the 
settlement. If they had such an agreement and intended to use it to 
justify a fee greater than $100 million, didn't they have a duty to 
reveal this to the Class? Didn't they have a duty to reveal this to 
Congress? The inference of improper behavior is further supported by 
statements made by Dennis Gingold after a Senator raised the 
possibility of limiting the amount authorized for attorney fees. Mr. 
Gingold told the press, and hence the Class, that ``any change'' to the 
settlement would render it null and void.'' If the settlement is really 
good for the beneficiaries, how can an attorney who has a fiduciary 
duty to the Class, threaten to scuttle the entire deal if his fees are 
limited to a mere $50 million? And how is it that the huge changes he 
is now requesting do not render it null and void?
    Thus, Mr. Gingold and Mr. Harper were not telling the truth to the 
press, to Congress, and to the Class to which he owed a fiduciary duty 
when they said they would request fees between 50 million dollars and 
100 million dollars, and they evidently flat out lied to us all when 
they said that changing the deal would render it null and void. We can 
never know how the truth might have changed the course of events. Would 
Congress have approved the deal knowing the attorneys would seek $223 
million? Would beneficiaries have been more vocal with Congress if they 
did not fear that the attorneys would scuttle the case if fees were 
limited? What we do know is this: there is no reason the deal cannot be 
modified if the parties want it modified. What we do know is that 
Congress has a special duty to Indians and that it can protect them 
from the rapacious greed of counsel who have failed to be straight with 
their clients.
    The average members of the Class have been lied to all along. In 
the Christian Science Monitor Ms. Cobell was quoted as saying, ``One of 
the persistent rumors I always hear is that I'm going to somehow 
collect millions of dollars in reward money for taking on the 
lawsuit,'' she says, shaking her head. ``I stand to gain no more than 
any other trust fund recipient. . ..'' Christian Science Monitor, ``A 
Blackfeet's Crusade to settle accounts with US'' March 20, 2002 (by 
Todd Wilkinson) Today she stands to gain well over two million dollars, 
while the vast majority of class members will receive less than two 
thousand dollars. ``It has been observed that by moving for class 
certification..., the class representative has voluntarily taken on a 
court imposed, fiduciary responsibility.'' v. Pennsylvania Department 
of Corrections, 876 F. Supp. 3. 1437, 1457 (E.D. Pa. 1995). Evidently, 
that obligation does not apply to Elouise Cobell.
    Ms. Cobell and her attorneys stated they would keep the Class 
informed through its website. However, in the period following the 
judge's order striking all money claims from the lawsuit and making 
simply an accounting lawsuit, the website simply stated: ``Nothing to 
report''. We now know why.
                                 ______
                                 
    Mr. Young. I was going to let you keep going. That sounded 
kind of interesting to me.
    Mr. Monette. I have lots to go on.
    Mr. Young. And you can digress again as you go through this 
process. Thanks to both witnesses for the testimony that you 
have had. I am really interested in this, because as I said, I 
started this 17 years ago with that group that you talked 
about.
    And we really believed that it was more than $17 billion, 
and that the judge messed that up a little bit, but to have a 
settlement, and then have that money taken away, and have the 
Plaintiff have $2 million as you said, that is very interesting 
to me. So we will continue on that.
    Do you have a statement, young lady? You said it has been a 
tough day already, and we are not even up to eleven o'clock, or 
11:30.
    Mrs. Noem. Well, I have just been behind schedule today. I 
was over on the Senate side.
    Mr. Young. Oh, that is a dark place. Don't ever go to the 
dark place.
    Mrs. Noem. I know, but I would appreciate the honor of 
introducing Patricia, who is from South Dakota, and if you 
would allow me that leeway, Mr. Chairman, that would be great.
    So, thank you, and it is my great honor to introduce 
Patricia Douville, Council Representative of the Rosebud Sioux 
Tribe of South Dakota, my home. Patricia was born and raised on 
the Rosebud Indian Reservation, and represents the Ring Thunder 
Community.
    I had the pleasure of meeting with Patty over the last few 
months, and it has been wonderful to hear from her first-hand 
some of the successes, as well as the concerns, of the Rosebud 
Sioux.
    So thank you for coming to testify today, Patty, I 
appreciate that. It is wonderful to see you again, and I know 
that you have already given us your statement, and I thank you 
for that, and I look forward to working with you again in the 
future. Thank you, Mr. Chairman.
    Mr. Young. Thank you, Lady, and Mr. Boren, you have some 
questions?
    Mr. Boren. I have a few questions, Mr. Chairman. There is 
always a South Dakota connection, and as I mentioned to Mrs. 
Noem, my wife is from Aberdeen, South Dakota, and so there is 
always somehow where we are connected to South Dakota.
    Let me start out by saying that the court has issued a 
stay, and so the reason why the witness list here is a little 
bit thin is because there are a lot of people who may want to 
talk, and who may want to share their opinions, but they are 
bound by the court decision that they can't share their 
thoughts with us.
    And I want to go to Mr. Monette here just quickly. You 
know, you are a law professor. How do you feel about Congress 
ejecting itself in active litigation? Does this implicate 
separation of powers and due process principles? Do you have 
any pause there when Congress tries to interject itself in the 
middle?
    Mr. Monette. I think it is fair to say that I normally 
would have pause, but Congress has set the threshold for this 
settlement, and I think the fact that Congress maintains its 
jurisdiction in doing so.
    Mr. Boren. So in any other case, because this is the Cobell 
case, you would say that the Congress should not interject 
itself? I mean, this is special because it affects you, or 
because--what is the----
    Mr. Monette. I will be in court making the argument that 
Congress has already injected itself. Congress waived the rules 
of civil procedure, the Federal rules, yet said that they would 
waive them so that the court could certify the second class, 
the Trust Administration Class, which had never been presented 
to the court.
    The class had not been certified, and it could not be 
certified because there is no commonality or typicality among 
the members. And Congress invoked its Article I powers to 
create that jurisdiction under the Court's Article III powers. 
We have some pretty clear arguments in our court that that is 
inappropriate.
    In fact, there is a recent quote from Justice Scalia, and 
in fact quoting another case from before, talking about, and I 
will quote, ``the astounding principle that Congress can invoke 
its Article I powers to expand or contract the Court's Article 
III powers.''
    That is what the Congress did in this settlement in the 
first place. It expanded the Court's Article III powers in a 
way that the Court could not have done on its own. It did not 
and could not have had that case or controversy in front of it.
    That is why on November 5, 1998, that is why the case went 
from $17 billion down to a much lower amount, because the Court 
had to extract all those monetary claims because it knew that 
it did not have the jurisdiction.
    And it was not just because Congress had not waived its 
immunity. It is because the Court had not certified a class, 
and I said that earlier. If the Court thinks that it can 
certify this class, and if Congress thinks that it can, then 
make the court do it.
    Then come back and settle that if you want, but let us 
first see if the court can exercise its Article III 
jurisdiction and certify that class, and it could not.
    Mr. Boren. OK. So as a legal scholar would you agree that 
the Court does have discretion to award a greater or lesser 
amount to class counsel in suits such as these? Do they have 
that authority?
    Mr. Monette. Generally the judge has discretion. Now, we 
have a long history in Indian Country of limiting attorneys' 
fees in land claims to 10 percent of the claim, and there have 
been a lot of lawyers that got very wealthy off of that in the 
last 70 or 80 years, and that should be followed here.
    Based on what DOJ said they actually won--I mean, we can 
hear about 14 years of litigation, but the fact of the matter 
is that they lost that. Then we had six months of negotiation. 
$223 million is a pretty good deal for six months of 
negotiating behind closed doors.
    What they should get is what they won, 10 percent of $360 
million, tops, and nothing beyond that.
    Mr. Boren. OK. I may have some further questions, but I am 
going to yield back right now. I am going to yield back.
    Mr. Young. I thank the gentleman. Mr. Labrador.
    Mr. Labrador. Mr. Chairman, I just have a statement from a 
citizen of the Nez Perce Tribe, and I just want to ask for 
unanimous consent to insert it into the record.
    Mr. Young. Without objection, so ordered.
    Mr. Labrador. And I yield back to the Chairman.
    [A letter from Gary Dorr, Citizen of the Nez Perce Tribe, 
submitted for the record by Congressman Raul R. Labrador (R.-
ID), follows:]

Gary Dorr
Citizen of the Nez Perce Tribe
Enrollment No. 2528
P.O. Box 202
Worley, ID 93976

The Honorable Don Young
United States House of Representatives
Chairman, Subcommittee on Indian and Alaska Native Affairs
Washington, D.C. 20515

Dear Mr. Chairman:

    I strongly support H.R. 887, Section 2. I am a Citizen of the Nez 
Perce Tribe, IIM Account holder, and an owner of farm land held in 
trust on the Nez Perce Indian Reservation. Many of the Indians in the 
Pacific Northwest who are in possession of trust land being leased by 
Commodity farmers have not been adequately represented by the Cobell 
Legal team inasmuch as the settlement will not fairly compensate all 
Indian land owners equally. The Cobell Legal team did not take into 
consideration the most basic of all land leasing concepts used with 
regularity by the Pacific Northwest Indian Land Owners. As stipulated 
in 25 CFR 162.227, Indians have always been allowed to negotiate direct 
pay from their lessors. Pacific Northwest Indian lessees utilize this 
form of payment for grain or other commodity crops. This process means 
that the farmers pay the Indian Land Owners Directly in lieu of 
directing payment through the Bureau of Indian Affairs or Office of 
Special Trustee by way of the Individual Indian Money Accounts (IIM 
Accounts).
    As it stands now, the Cobell Settlement will pay for an Historical 
Accounting Class and for Trust Administration Class. As I understand 
it, any Indian who has had an IIM Account is part of the Historical 
class. Any Indian who had money passing through the IIM Account will 
receive five hundred dollars or more depending on how much money passed 
through the IIM Account as part of the Trust Administration Class. If 
my sister who lives in California elected to receive her crop payments 
from our Nez Perce Reservation land through her IIM Account, which 
would have been legal, and I elected to receive Direct Payment from the 
farmer on our land on the same lease, then under the Cobell Trust 
Administration payment schedule my sister will stand to gain more than 
I would for the same piece of land, for the same mismanagement, for the 
same historical background on the land handed down to us from our 
ancestors. This payment schedule as stipulated under the Trust 
Administration Class portends to create even more mismanagement of 
funds rightfully gained by Indian Land Owners a situation which should 
have been more than evident when this esteemed group of legal 
professionals undertook representing all Indian Land Owners without 
their consent.
    Secondly, the Historical Accounting Class will also unfairly award 
some Indian IIM Account holders. That an Indian held an IIM Account is 
not merely an acceptable reason to receive a payment for the Cobell 
Settlement. The reason is rather simple. Not all Indians receive money 
through their IIM Accounts for leasing or land use. We have multiple 
thousands of Indian children who receive Tribal per capita payments 
which are held in their IIM Accounts and are released when they turn 18 
years of age. Many of these children are in receipt of their Tribe's 
Casino per capita payments. There is no other reason some Indian 
Children have or had an IIM Account between October 25, 1994 and 
September 30, 2009 other than they are or were receiving Tribal per 
capita payments. There was no mismanagement of trust assets in many of 
these incidents because not every Indian is a land owner. Many of these 
accounts can be reviewed by the Tribe and the Individual Indians to see 
that, given the relatively short time frame and miniscule number of per 
capita payments, this particular group of Indians has been paid exactly 
what was deposited and owed to them. Yet, as part of this Cobell 
Settlement, they will be receiving one thousand dollars for a mistaken 
belief that they have had trust assets mismanaged. Again, the apparent 
lack of understanding on the part of the Cobell legal team has led to 
what will once again result in further mismanagement and depletion of 
funds due to Indian Land Owners.
    I feel that based on these two strikingly obvious mistakes and a 
litany of additional mistakes as articulated by Richard Monette and 
others, that the Cobell Legal Team has not represented the best 
interest of all Land Owners. In light of the fact that now we will not 
be able to come back and resolve this after this settlement unless we 
opt out of our respective classes, I strongly support this 
Subcommittee's actions to take effective and resolute action to limit 
the payment given to the Cobell Legal Team to 50 million dollars. We 
Individual Indians have been put between a rock and a hard place and 
there is no recourse of going back as a result of the manner in which 
the Cobell Legal Team has ramrodded this shoddy settlement through the 
courts supposedly on behalf of all Indians.
    The Cobell Legal Team now claims to have represented us without our 
consent and sought to represent all of us without consulting with the 
most learned of all Indians, the Individual Land Owners. This group of 
Individual Land Owners is now beset with a terrible struggle to gain 
effective legal representation on our own if we opt out because many of 
our lawyers will be representing Tribes, which is a different class 
altogether.
    This situation of further mismanagement of Individual Indian Assets 
created by the Cobell Legal Team is regrettable, unacceptable, and must 
not be rewarded with funds which will be withdrawn from the very class 
of people being represented. I strongly support the limitation of 
payment to the Cobell Legal Team to 50 million dollars. I know of other 
Indians who also support limiting payment to the Cobell Legal Team and 
oppose the entire Cobell Settlement, but have neither the means nor the 
support of their elected leaders who are representative of a different 
class to gain any significant momentum to oppose the entire Cobell 
Settlement.
    I thank you and the other members of Congress for your time to 
consider the plight of an Individual Indian Land Owner in this grave 
situation, and I hope for adequate relief from further mismanagement of 
Individual Trust Assets, which would be further amplified if the Cobell 
Legal Team received more than 50 million dollars.

Sincerely,

Gary Dorr,
Citizen of the Nez Perce Tribe
Enrollment Number 2528
                                 ______
                                 
    Mr. Young. Mr. Kildee.
    Mr. Kildee. Thank you, Mr. Chairman, and thank you for 
having this hearing. I am not an attorney, which is sometimes 
an advantage and sometimes a disadvantage. But I think all of 
us at this table have purity of intention, and we want to do 
what is just and what is right.
    I have some concerns about opening the case up in some way 
and maybe putting something in jeopardy, and so I am going to 
be very cautious on that. But I do recognize that everyone up 
here has a record and a background that shows the purity of 
intention. But sometimes I look at unforeseen consequences and 
I want to be very careful with that, and with that, I will 
yield back the balance of my time, Mr. Chairman.
    Mr. Young. Ms. Noem.
    Mrs. Noem. Thank you, Mr. Chairman. I have a question for 
Ms. Douville. Thank you for your testimony. It highlighted an 
important issue that the Cobell Settlement brings to light, 
which is that the Bureau of Indian Affairs has not measured up 
to its trust management responsibilities.
    So what suggestions do you have for BIA to further and to 
better fulfill their responsibilities?
    Ms. Douville. What I believe is that the Department needs 
to get the Tribes, the Native Americans, involved in all the 
decision making for a true government-to-government 
consultation, so we can be equal partners sitting at the table, 
and making decisions. As I have stated before, we are capable 
and knowledgeable of doing for ourselves.
    Mrs. Noem. OK. A follow-up question. Could you tell me a 
little bit about the Tribal Land Enterprise, or the TLE, and 
how those lands are used? Specifically, how they benefit the 
Tribes.
    Ms. Douville. OK. Well, it is obvious that we know how to 
best manage our lands, and the government should not be getting 
in our way of allowing the lands to be used by the Tribes as we 
see fit is the best for us, but in accordance with our 
treaties. We know how to develop and we know what we need, but 
the government has to remember that they do have trust 
responsibilities to us.
    Mrs. Noem. Is there anything that is preventing the Tribe 
from using land consolidation funding to buy fee lands within 
the boundaries of the reservation?
    Ms. Douville. Well, with this settlement, yes, there is. It 
states in the settlement that only fractionated or restricted 
lands could be purchased with this. But what we would like to 
see is that fee lands would be able to be purchased with those 
monies also.
    Mrs. Noem. OK. Thank you for that clarification. I 
appreciate it. I yield back the balance of my time, Mr. 
Chairman. Thank you.
    Mr. Young. You guys are short today. Mr. Lujan.
    Mr. Lujan. Mr. Chairman, thank you very much, and I would 
very much agree with the sentiments that were shared by Mr. 
Kildee as well, and making sure that in the end, I think that 
we all share the same goals.
    As far as making sure that we are able to provide some 
resolution to the many years that many of our Tribal brothers 
and sisters very clearly were discriminated against, and as we 
talk about how this funding should have gone to many people, 
and it didn't.
    And in the end, I hope that is what we are able to 
concentrate on, and I would ask Ms. Douville and Mr. Monette if 
you would agree with that?
    Mr. Monette. Very much.
    Ms. Douville. Yes.
    Mr. Lujan. With that being said, Mr. Chairman, learning 
from the last hearing, I will make sure that I submit some of 
my comments into the record as well. But a question that I have 
for Mr. Monette is that in your written testimony, you state 
that there is no reason that the settlement cannot be modified 
if the parties want it modified.
    Being that there is a settlement that was put forth for 
approval before Congress, doesn't that indicate that the 
parties to this settlement have already agreed to the 
stipulations of the settlement?
    And if they don't want it modified, how would that impact 
it?
    Mr. Monette. Well, I guess some of it is to put all of that 
in context. I think that it is fair to say that what I said 
earlier is that this settlement can be modified by this body 
for sure.
    And as I made my point, I hope earlier would not be a 
violation of any separation of powers at all. But we had 
witnesses from the Cobell camp testifying here, as well as in 
the newspapers, saying that when in the first instance the 
Chairman of this Committee, and including the Member on the 
dark side, on the other side of the Hill, also proposed to 
limit the attorneys' fees, the attorneys for Cobell said that 
any modification would render the settlement null and void, and 
that there could be no changes.
    And when he said that, what was on the table at the most 
was an agreement that they told all of the class members, and 
told all of you, that they would limit their fees between $50 
million and $99 million.
    So to me, I mean, if he is asking for $223 million. It 
sounds like he wants to render the settlement null and void. So 
in the court can it be modified?
    Mr. Lujan. But, Mr. Monette, the position that that 
individual may have taken, does that fundamentally change the 
language associated with the agreement? I guess I am not 
following. I don't know that.
    Mr. Monette. Well, we unnamed class members, and I 
appreciate the opportunity to testify for a lot of them that 
don't have the money to pay for million-dollar lawyers, we 
unnamed class members are owed huge obligations when a class 
settlement is made.
    But when a class action is certified, and in fact as I read 
earlier, the sort of trust fiduciary responsibility that is 
imposed on the class member, the attorneys become the trustee 
for the unnamed class members, because they are not at the 
table, and they don't know the negotiations that are going on.
    The judge becomes a trustee, and the model professional 
rules put a very high standard on the judge, as do the Federal 
Rules of Civil Procedure, on the judges. Of course, we have a 
trustee down the street, and we know where we have been with 
that one.
    It is unfortunate that where we have been with that one 
that we feel like that we have been in the same place with the 
rest now.
    Mr. Lujan. Mr. Chairman, if I could get back to the 
question, which is fundamentally what I think I have heard from 
some of the questions is that if you change the settlement 
agreement, and if there were amendments that were made, 
wouldn't it render the settlement null and void under the terms 
of the settlement agreement?
    And wouldn't that potentially force parties back to 
resuming litigation?
    Mr. Monette. If this body does it, I don't think it would. 
If you are asking me do I think it would be a good idea to take 
them back to the table and make them certify that second class, 
and actually litigate the claims, I would prefer that that 
occur. Absolutely.
    Mr. Lujan. And, Mr. Chairman, the question is that if 
changes were made to the settlement, wouldn't that render the 
settlement void under the settlement agreement?
    Mr. Monette. If we have an understanding that the 
contingency fee arrangement that we have not heard about, this 
14 percent, was well hidden and is not part of the settlement, 
then I can agree.
    Mr. Lujan. Let me ask it this way, Mr. Chairman, could it 
jeopardize the settlement agreement if it is amended?
    Mr. Monette. Yes, and it should.
    Mr. Lujan. Thank you, Mr. Chairman. I yield back my time.
    Mr. Young. Just for the gentleman's information, what 
concerns me the most is that I served on this Committee, and I 
have watched this as I said for 17 years. It was my 
understanding that the agreement was between $50 million and 
$100 million.
    And I thought that $100 million was extraordinary. Now, the 
Cobell attorneys took a cheap shot at me, and I will not 
forgive them for that. They thought that I was the originator 
of the bridge to nowhere, and if you really want to get me 
pissed off, you just mention that a few times, and that we had 
no right to do it.
    And we were not aware of this on the Senate side, nor the 
House side, and then to disclose that after the fact is I 
think--that it does not have anything to do with the agreement.
    I really believe that the agreement, if we wish to have it 
stand, should stand, and with the understanding of what fees 
would be paid. Ten percent is a standard fee, and I have said 
that $99 million was awful high, and then to come back with 
$223 million, and then have the Plaintiff say this will 
jeopardize the settlement, that was not part of the settlement.
    It was not on the table, and that is where the frustration 
comes from the Chairman and myself. That was uncalled for 
because I don't believe that there would have been a settlement 
reached even with the Justice Department, if they were aware of 
that.
    Now, that is what we want to find out, were they aware of 
it, and was the Department of the Interior aware of it, and if 
they were, we were not aware of it, and we were the ones that 
had to pass the law.
    And we did that with the understanding that we wanted a 
settlement done, and that there would be a payment to the 
lawyers of a certain amount, between $50 million and $100 
million.
    And now we come out and here it is $223 million. That is 
where I think that if we were to change the legal fees, how 
could it destroy the agreement. I don't understand that. The 
good lady from Hawaii. I love being the Chairman. I can talk 
all day long, but go ahead.
    Ms. Hanabusa. Thank you, Mr. Chairman. Mr. Chairman, and 
thank you for the witnesses here, I was not here, and so please 
bear with me. I do happen to be an attorney, and Professor 
Monette, I am also very familiar with class actions.
    One of the things that I am curious about is that in a 
class actions case, the fee is usually determined by the court 
after a hearing. Has that fee amount been determined yet? My 
understanding is that it has not.
    Mr. Monette. The fee amount has not been determined yet.
    Ms. Hanabusa. And it is also clear from what has been 
presented that there was some agreement that it would be 
between $50 million and $100 million, and it seems like the 
Class Plaintiffs' attorneys, have requested $223 million. Am I 
understanding that correctly?
    Mr. Monette. They said that is what they deserve in the 
case, and to the court.
    Ms. Hanabusa. But have they requested $223 million from the 
court, or is it----
    Mr. Monette. They did not request anything beyond that 
statement, and so it sounds like their request.
    Ms. Hanabusa. So we really don't know at this point in time 
whether they are going to breach the $50 million to $100 
million by going in for $223 million. Would that be a correct 
statement?
    Mr. Monette. We don't know that they are going to get any 
more than the hundred-million. Well, right now we don't. That 
is still to be determined.
    Ms. Hanabusa. So it would seem to me that it would be 
proper for Congress to take the position that what Congress' 
understanding was as to the fee structure, but it seems like 
there may have been an understanding of somewhere between 50 
and a hundred, but not the $223 million, which they may 
request, which they have not done at this point in time. Do you 
agree with me?
    Mr. Monette. I would agree that Congress seems to have 
authorized between 50 and a hundred-million.
    Ms. Hanabusa. But not anything more than that?
    Mr. Monette. But not anything more.
    Ms. Hanabusa. And that would be something that I would 
assume that the Court, in making an understanding and 
determination as to what the fee structure should be, that they 
would take into consideration what Congress' understanding was. 
So wouldn't you agree with me on that?
    Mr. Monette. One would hope. Yes, I would agree with you on 
that.
    Ms. Hanabusa. Thank you. Now, Ms. Douville, one of the 
things that I am interested in here in reading what has 
happened is this concept of fractionation, and how it would 
come to that.
    The BIA actually is authorized to do that within 10 years, 
and your concerns are very valid, but what I am also concerned 
about is that as these lands are purchased--and I think in your 
testimony, you said in fee. Were they intended to purchased in 
fee, and become part of Indian Country at that point?
    Ms. Douville. Yes. Right now the fee lands that we have on 
our reservations, we purchased that on our own, and we would 
like to see this money be used also to be able to purchase 
those, because in the settlement, it does say that only 
fractionated or restricted lands can be purchased with this.
    Ms. Hanabusa. So that is the $1.9 million portion of the 
settlement?
    Ms. Douville. No, $1.9 billion, yes.
    Ms. Hanabusa. Yes, $1.9 billion. The thing that I am 
curious about is that my understanding is that Indian Country 
is held basically in trust.
    Ms. Douville. Yes.
    Ms. Hanabusa. So the concept of purchasing it in fee, and 
then it would then become part of Indian Country. So it would 
then be held in trust for--would it be a Tribal entity?
    Ms. Douville. For the reservation.
    Ms. Hanabusa. For the reservation itself?
    Ms. Douville. Yes.
    Ms. Hanabusa. And that would of course then protect any of 
that purchase from being taxed by any other governmental 
entity?
    Ms. Douville. Yes, it would be non-taxable.
    Ms. Hanabusa. Yes, and that was my concern. When I saw the 
purchase and fee, I wanted to be clear that the purchase and 
fee would result with no tax.
    Ms. Douville. Yes.
    Ms. Hanabusa. Thank you. And you, of course, also object to 
any of the monies--and I assume that is because you view it as 
taking away from the purchasing of the land if the attorneys 
walked off with this unconscionable amount of money?
    Ms. Douville. That is just an outrageous amount of money to 
be taking for what little they have done basically.
    Ms. Hanabusa. And you are a class member?
    Ms. Douville. I am an IIM account holder, yes.
    Ms. Hanabusa. And you would, of course, object at any 
proceeding that the court may hold on the issue of attorneys' 
fees?
    Ms. Hanabusa. I object to the attorneys' fees even being at 
$50 million right now.
    Ms. Hanabusa. I understand that, but it seems like Congress 
may have approved somewhere between $50 million and $100 
million.
    Ms. Douville. Yes.
    Ms. Hanabusa. Thank you very much. Thank you, Mr. Chairman.
    Mr. Young. Mr. Labrador
    Mr. Labrador. Thank you, Mr. Chairman. I just have a few 
questions. I am trying to understand the issue a little bit 
better. I am new to the Congress, and I was not here when the 
settlement was approved.
    And it seems like it is one of the few issues where maybe 
there is some bipartisan support, and some bipartisan questions 
also. So I just want to understand, kind of following up the 
good gentle woman from Hawaii's questions. If the attorneys 
signed a document that said that we are not going to ask for 
anything more than $99 million would you agree to that?
    Mr. Monette. I would never agree to that
    Mr. Labrador. You would never agree to that?
    Mr. Monette. No. Before this body was duped into enabling 
that settlement last year, I came here and argued that the 
monetary claims had been taken off the table, and if this body 
had not put those claims back on the table, we would simply be 
talking for an accounting, and the attorneys would be way, way 
less than that. Let us talk $1 million or $2 million.
    And that is actually what they won. They did not win 
anything beyond that. They came here and convinced the 
Department and this body that they had done all this work, and 
had won things beyond that, and this body authorized a 
settlement that had an agreement between $50 million and $100 
million.
    It never should have done that. I will never agree with 
that. Now, if you are asking me a legal question did this body 
authorize it?
    Mr. Labrador. Yes.
    Mr. Monette. It did, and this body should undo that
    Mr. Labrador. So that is a different question. So I just 
want to understand where you are coming from. Your statement 
then is that even if they told you right now that they went to 
the court and they said $99 million is the most that we are 
going to ask for, you are not in agreement with that, correct?
    Mr. Monette. I am not in agreement with that
    Mr. Labrador. Patricia, how about you?
    Ms. Douville. I don't agree with that at all. For one 
thing, if they did the due diligence that they should have, 
then the people in my region, in our area, the large land-based 
tribes that are going to be affected mostly from this 
settlement, did not get any information, and was not even 
properly informed as to what this settlement entailed, who was 
a class member, or even if there was going to be a monetary 
value placed on to it.
    I, myself, as an IIM account holder, just got mail, 
something in the mail saying do you want to be a class member 
or do you not. There was nothing really available to us.
    So a lot of the class members, first class members, don't 
really understand the settlement, and don't know what it is 
really going to do for us.
    Mr. Labrador. So, in essence, you are more here to try to 
have us invalidate the agreement, and not necessarily argue 
about attorneys' fees?
    Mr. Monette. I am here asking that the attorneys' fees be 
based on what they in fact won. If the agreement stays in 
place, fine. Well, I am not fine with that either, but----
    Mr. Labrador. Well, that is not what I am asking. So you 
want the attorneys' fees to be $1 million or $2 million?
    Mr. Monette. I want the attorneys' fees to be based at most 
on what all the parties agree that they might have won on the 
accounting part of this case, which is the only class that was 
certified, and the only claims that were litigated, the only 
litigation that was ruled upon by a judge.
    Mr. Labrador. Thank you. I have no further questions.
    Mr. Young. Mr. Boren.
    Mr. Boren. Thank you, Mr. Chairman. I just have--I want to 
make some clarifications here. We have a lot of numbers that 
are being thrown out. You just mentioned $2 million, and you 
just mentioned 10 percent, which is roughly $30 million.
    We have a number between $50 million and $99 million. I 
think the attorneys actually asked for $99 million, but then in 
some of their submissions, they said that it could go up to 
$223 million.
    And I think that all of these numbers that are floating 
around goes back to why we need the judiciary to make this 
determination. We have as a Congress said between $50 million 
and $99 million.
    The thing that I am most worried about is let us say 
whatever the number is that they come up with, and I am of the 
opinion that it should be lower. But let us say they come up 
with a number that not all of us can agree on.
    We open this back up again and we are sitting here 20 years 
later, and Mr. Kildee, and Mr. Young, and other people who have 
been here a long time, have worked on this issue for Indian 
Country.
    The last thing that I want to see are these account holders 
not getting their money, and the people not being served, and a 
real accounting not being done. So I think that we have a 
hearing in June that is coming up, and some further hearings on 
where we might go, and they may come back, and the judge may 
come back because it is at his discretion, and be at a lower 
number.
    So I think that we may be a little bit premature in doing 
anything. I think that this hearing is very important, and I 
thank the Chairman for having it, but we may be back, let us 
say, in July having to revisit this issue, because we may, as 
Mr. Kildee said, I think we all have purity of heart. We want 
to do what is best for Indian Country and for Tribes.
    I am not an attorney, just like Mr. Kildee is not an 
attorney, and so I may be wrong in some of my statements, but I 
think this is an ongoing fluid process that we will hear more 
about in the coming days, and I thank the Chairman for having 
this hearing.
    Mr. Young. Mr. Gosar.
    Dr. Gosar. Professor, you seem to take a strong position 
that the Plaintiffs' class action attorneys had a conflict of 
interest, and even sold out the class for less money than what 
was offered in the settlement, simply to ensure a payment for 
the lawyers.
    Are there any professional rules of ethics in the legal 
profession that prohibit these kinds of dealings? And what 
exactly should the class counsel have done under the 
circumstances; and last, has a bar complaint been filed, or 
should one be filed?
    Mr. Monette. I do believe that there are conflicts. The 
Federal Rules of Civil Procedure has several provisions that 
address the kinds of conflicts that we have here. I think that 
it is fair to say that several people are contemplating bar 
complaints.
    I have been contacted by different people in that regard. I 
think to put the matter squarely on the table, if they have 
cover in what they have done, it is because of what this body 
did.
    I mean, it is high time to defer to the judiciary now. Last 
year, this body gave the judiciary jurisdiction over a lawsuit 
that it didn't have. The Constitution requires a case or 
controversy, and with the Trust Administration Class, there was 
none.
    There was no case or controversy, and they could not bring 
it. That is why they had to come here to have this body do it. 
So what we get is this body teasing up a settlement to get some 
buy-in from Tribal leaders and others, and we get these other 
things put on the table, such as scholarships and consolidation 
money.
    Now, with the Member who is familiar with class action 
lawsuits, would then be familiar with reverter clauses in 
settlements, in themselves are not a dirty word. Sometimes they 
are defensible.
    But when a reverter clause is used simply to inflate the 
settlement as a means to inflate the attorneys' fees, those 
reverter clauses are frowned upon by everybody that I have 
read. We have a reverter clause in the settlement.
    Now, your DOJ people last year testified that it was not, 
and it says that if all the money is not spent in the 
consolidation program, it shall return to the Treasury. Now, 
the only way that it could be more of a reverter clause is if 
it used the word revert instead of return. But it is a reverter 
clause in every sense of the word.
    And so we get this $2 billion added on to make this look 
like a big settlement to justify the inflated attorneys' fees. 
That is the classic kind of reverter clause that is frowned 
upon by every court in the land.
    And so, yes, it is fair to say that there is a conflict. It 
is fair to say that perhaps the class members should have known 
what was going on all along, and you all had a discussion about 
whether you knew, and whether the Department. How about the 
client? That might have been nice if we had known what was 
going on.
    We didn't, and so absolutely I think there is a conflict, 
and I think that people will raise those conflicts, and I 
wouldn't be surprised to see a bar complaint as well.
    Dr. Gosar. And how formally would you put that in place?
    Mr. Monette. How formally would I?
    Dr. Gosar. How would you formulate that to go into fruition 
if that was the case?
    Mr. Monette. Well, I appreciate the question, and with all 
due respect, if I am the one who is going to do that, I don't 
think that this is the appropriate body to say that.
    Dr. Gosar. Thank you. Ms. Douville, you take issue with the 
BIA's management of Indian Affairs. Many of the Tribes in my 
district have told me of the great difficulties with the BIA's 
incompetence in delaying an action.
    These Tribes ask us for block grant funding so that they 
can decide how and when to conduct their operations on their 
own lands without a bureaucrat intervening. Do you share these 
sentiments?
    Ms. Douville. Yes.
    Dr. Gosar. Do you have problems with BIA mismanagement?
    Ms. Douville. Yes, I do.
    Dr. Gosar. Can you specify?
    Ms. Douville. What I have a problem with is how we are not 
consulted. We are never at the table. We are never invited to 
the table, and we as Tribal leaders and Indian people, and 
Tribes, we know like I have said, we know what is going on with 
us, and we know what is in our best interests.
    Dr. Gosar. Do you think the tribes will be more self-
reliant if we used block grants?
    Ms. Douville. Yes.
    Dr. Gosar. So that would take us down the road instead of 
waiting for a bureaucrat to make a decision?
    Ms. Douville. Yes, that would help us, but like I have said 
before, there are constitutional mandates with our treaties 
that the government needs to keep in mind, and that it is the 
law of the land. That is part of our constitution, and the BIA 
does have trust responsibilities to us.
    Dr. Gosar. I understand. Thank you very much.
    Mr. Young. Would anybody else from this side like to ask 
any more questions? Everybody is quiet? And you are a lawyer? I 
would watch you. Anybody on this side?
    Ms. Hanabusa. Mr. Monette, I understand, and I hear loud 
and clear your frustration. Are you an actual certified--did 
you opt in as a class member?
    Mr. Monette. I still have my letter sitting on my kitchen 
table, but you will recall that in the one class, you passed a 
settlement that doesn't allow me to opt in or opt out. I am 
stuck.
    Ms. Hanabusa. I was not here. I am sorry.
    Mr. Monette. OK. So they passed this class that said that 
we can't opt out, which may in fact raise some other 
Constitutional issues as you may know.
    The second class that this body created in order to inflate 
the fees, we can opt out.
    Ms. Hanabusa. But the first class, if I understand what you 
said, is an accounting, right?
    Mr. Monette. Right.
    Ms. Hanabusa. And you have no objections to that decision, 
and that is the proper class as far as you are concerned as I 
hear you?
    Mr. Monette. I hold three separate IIM accounts, and I 
thought after 14 years that I was going to get an accounting. 
That is what I wanted.
    Ms. Hanabusa. And that is really all that you said that you 
wanted in terms of a remedy, was the accounting?
    Mr. Monette. That is what all of us thought we were getting 
from the people that I have spoken with, and that is what they 
wanted. Now, if you want to write a $100,000 check, I will take 
that, too, but we wanted an accounting.
    Ms. Hanabusa. But then you need the second class for that?
    Mr. Monette. No, you don't need a second class. You need 
Congress to authorize it, just like they are doing it for 
lawyers.
    Ms. Hanabusa. But the second class, or the second part that 
we are discussing now, which is the issue of where the 
attorneys' fees is falling into, that you are saying is what 
Congress authorized?
    Mr. Monette. Yes.
    Ms. Hanabusa. Because as I understand from what little I 
have read on this, is that there was no class certification on 
any other issue other than the accounting portion. Is that 
correct?
    Mr. Monette. Right. That is right.
    Ms. Hanabusa. No, I have not read the Cobell Settlement, 
but I intend to do it now. My understanding is that there has 
never been any adjudication of anything as to the merits. It is 
just that the settlement was reached and that settlement has 
become a public document, correct?
    Mr. Monette. Correct.
    Ms. Hanabusa. So how does that public document, or in terms 
of the settlement, which is usually as a result of the class 
action that is filed, how does that then interface with what 
you are saying Congress did?
    Do you understand what I mean? You have a legal document, a 
class action, and a complaint which requests certification, 
which according to you on the issues that the Congress then 
addressed, was not certified, and was not before the court.
    So somehow what you are saying Congress did, and what was 
not before the Court, has somehow got to be melded together to 
become the Cobell Settlement?
    Mr. Monette. It is a fascinating, and one of the most 
convoluted stories that I have ever come across. Congresswoman, 
the judge, on November 5, 1998, of his own accord, not being 
asked by the Plaintiffs or the Defendants, struck wording from 
the complaint.
    And all of the wording had to do with whether we were 
asking for money, because he said I don't have the jurisdiction 
over that. So I will strike that all out so that we are going 
forward simply on an APA type of ex parte, waiver of sovereign 
immunity claim. And so that is why it proceeded on that.
    Fourteen years later, when they come to Congress with the 
first class that was certified and the court had jurisdiction 
over, they added in a second class that was not certified, and 
that the court did not have jurisdiction over, and would not 
unless Congress did what it did.
    And that is not to say that what Congress did is 
constitutional, simply because of what I am saying, is that if 
the court thought it had a case or controversy in front of it, 
it would have certified that class before it sent it to 
Congress, but it didn't, and it couldn't.
    So it asked you all to do it, and so this body then created 
a case or a controversy, the legislation, in invoking Article I 
powers for an Article III court. That likely is 
unconstitutional as well.
    Ms. Hanabusa. Then I think that if you feel that way, you 
would challenge it.
    Mr. Monette. I intend to.
    Ms. Hanabusa. And that is what I thought you were going to 
say. Now, given that scenario, there still is this document 
called the Cobell Settlement that has been entered into court, 
and that was arrived at how, if you can tell me?
    Mr. Monette. That was arrived at when they lost at the 
trial court, and it went to the appeals court, and they vacated 
the money, and said an accounting can be done. Now they are 
going, crap, now the highest court that we have gone to says 
that we have to do an accounting.
    And they are learning that perhaps the accounting is not as 
bad as they thought. In fact, the Department of the Interior 
came out publicly at that time and said we have done a complete 
accounting of the five named class representatives, and there 
is a variance and a total of less than $100. Those are the 
Named Plaintiffs.
    So at that point, they filed in the Supreme Court, and 
thinking that we are going to lose. We are going to lose on a 
variety of grounds here, particularly because if the Court 
orders any money, we are in violation of the Tucker Act 
precedent.
    So that is where the story takes over, and so they come to 
this body and do what they did. Well, maybe more specifically 
on your question, they then went behind closed doors at the 
Department of the Interior, and the Department of the Interior 
said, well, perhaps we will help you get this settlement 
through, and what is in it for us.
    And the Plaintiffs' lawyers said, well, how about if 
instead of just settling all these accounting claims, how about 
if we let you guys off the hook on all these oil, and gas, 
coal, and water claims that these Indians have as well.
    We will let you off the hook and put that on the table. A 
few people said you don't have the right to put that on the 
table. Either side. It is not part of the lawsuit. They put it 
on the table and brought it here, and got this body's stamp of 
approval on that.
    Ms. Hanabusa. Thank you. Thank you, Mr. Chairman.
    Mr. Young. Mr. Gosar.
    Dr. Gosar. Just two quick questions, Professor. How is it 
that class action counsel can seek over $220 million for legal 
fees, but the average class member gets about $2,000?
    How is it that that type of disparity is fair and 
reasonable to the injured party? Are class action lawsuits 
simply a way for attorneys to get rich by using claimants like 
the Cobell Plaintiffs as straw men?
    Mr. Monette. Right. It is becoming known as the settlement 
class action, and not settlement of a class action, but a 
settlement class action, put forth simply for the purpose of 
settling.
    And in fact it has evolved so that we save more time, and 
money, and efficiency, and you will get a Merck, or a Pfizer, 
or somebody who will get these kinds of settlement class 
actions, and simply say, look, let us go in the back room and 
settle it, OK?
    And they have never even gone through the exercise of 
establishing or certifying a class, establishing jurisdiction, 
and the courts and the law professorate are increasingly 
frowning on that, because it is starting to put some real 
twists and glitches in the law.
    Dr. Gosar. So restrictive reform should be enacted or 
should be looked at in regards to that?
    Mr. Monette. Absolutely.
    Dr. Gosar. Thank you very much.
    Mr. Young. If there are no more questions, I am going to 
ask a couple of questions. If anybody wants to leave, fine, 
just whatever you want to do.
    Richard, has the Plaintiffs lawyers received any previous 
compensation in this case?
    Mr. Monette. They have.
    Mr. Young. What amount was it, and what was it for?
    Mr. Monette. If you can figure that out with me, because 
that is like pulling teeth. Talk about digging for the needle 
in the haystack. They have--and in fact when they have won on 
those rare occasions in these 14 years, they made petitions 
under the Equal Access to Justice Act, and got paid.
    And I am told that it is in the millions. They got paid 
when they actually won a motion. They want money now over and 
above that, but I can't figure out how much. I did not file a 
FOIA because you all thought that you were going to get that 
information last time, and evidently you have not, and I 
haven't either.
    Mr. Young. Now, as a lawyer, and I have some lawyers, and I 
have a nice one sitting at the front dais up here, I want to 
know why we don't know who--well, who paid it? Was it the 
taxpayer?
    Mr. Monette. The taxpayer did, and because of that, of 
course, we should have a right to find out. I will say that I 
just did not pursue it as much as I should have, because this 
body thought that it was going to, and I guess I was going to 
wait until you did, and told us all.
    Mr. Young. But if it is the taxpayers, then we have a right 
to know how much.
    Mr. Monette. Absolutely.
    Mr. Young. So I would suggest that I will use that 
subpoena, and we will get that information, because I think 
that is very important as to how much money they received from 
the taxpayers already in this case. So thanks for answering 
that question.
    You already stated this, I think, and you said that the 
Plaintiffs took a route of colluding with the Department of the 
Interior to create a new class of claims, and that is what I 
thought you were referring to a while ago behind doors; is that 
correct?
    Mr. Monette. Exactly.
    Mr. Young. And you said in a statement that the Plaintiffs 
summarily rejected a $7 billion offer to settle. Where was that 
from, the $7 billion?
    Mr. Monette. Well, I think that is more than urban legend, 
but we did have on the Senate side them floating the numbers, 
and Senator McCain in fact was the person who floated it most 
clearly.
    I think it was $7.8 billion, I think, and what we have 
heard--and remember now that some of this was going on with 
some people who were informed, and when tribal leaders are 
having a meeting, and I find a way to squeeze myself in the 
door sometimes.
    So there was communications from the Department that they 
had communicated with The Hill, and that there would be 
agreement on that figure, and that it was Mr. Gingold, the 
Cobell attorney, who flat out rejected that amount.
    Mr. Young. Did the Plaintiffs know that as far as the other 
class action?
    Mr. Monette. The unnamed Plaintiffs, the class itself, 
didn't know.
    Mr. Young. So Patricia didn't know that?
    Ms. Douville. No.
    Mr. Monette. No.
    Mr. Young. And would you have been happy with the $7 
billion?
    Ms. Douville. I would be happy with just a completed 
accounting.
    Mr. Young. The reason that I ask that question is that what 
we wanted was an accounting, and that is what I wanted when I 
started this a long, long time ago. You may not be aware of 
that.
    Patricia, you are right. The oil lease, and the coal 
leases, and the things that went on with this government, we 
estimated it at over $17 billion of mismanaged, misdirected 
utilization of Native lands for the benefit of whom, I don't 
know, other than a few individual people.
    And we were looking for that to establish the amount that 
was owed, and for the Committee to just keep in mind, this was 
an agreement reached, and why I don't know, other than the fact 
like you said that they went down, and we won't have any more 
auditing, and we won't have any more looking for those records 
that were conveniently lost, and that way you will be off the 
hook.
    And I think that was the urging of people to settle this so 
that the Federal Government would not be on the hook. But that 
deprived the Alaskan--well, Alaskans lost $700 million by the 
way, and that is over just a short period of time, and with the 
same type of action under the BIA.
    And by the way, Patricia, we are going to write a bill that 
gives you the ability to do these things without having to go 
through the BIA. We are going to do that, because I think you 
have that responsibility.
    Richard, you said that it was money that was always part of 
this case, and that one of the outgrowths of the accounting 
itself would be a restatement of the accounts. Now, what does 
that mean? Well, that is what she said.
    Mr. Monette. I am not sure what he meant, but if there were 
variances----
    Mr. Young. And that was testimony that was provided to us 
by the way.
    Mr. Monette. Oh, OK. The idea was that if there are 
variances in the account, that if the account had too much, 
maybe they would take some out. Of course, the idea being that 
the account had too little, and that number would simply be 
corrected.
    And if that were the case that it would still fit within 
the equitable remedy, and not asking for an infusion of cash, 
but simply adding a zero, or a one, if that is what was needed 
on the account, and thereby fitting within the Federal District 
Court's jurisdiction.
    And that is why those arguments were consistently made, but 
it sounds like he said a little more there, and I am not sure 
that I can explain that.
    Mr. Young. I will get that to you. Do you think that H.R. 
887 creates any separation of powers problem? I believe you 
already addressed that. In other words, in passing this bill to 
limit attorneys' fees improper legislative meddling for the 
Judicial Branch?
    Mr. Monette. Absolutely not, not on the settlement that 
this body enabled and authorized.
    Mr. Young. Because we did it. We passed a law, and we can 
change what we want.
    Mr. Monette. It could not even be on the court's table if 
this body bad not taken this action. Certainly this body can 
follow up and change a provision.
    Mr. Young. Should Congress allow the District Court to have 
complete discretion over the award of attorneys' fees?
    Mr. Monette. No.
    Mr. Young. No? I knew you were going to say that. And in 
the lawsuit of Cobell versus Salazar, is it customary for the 
members of the class to pay attorneys' fees, or the government 
to pay them?
    Mr. Monette. Well, it is customary for the Defendant to pay 
them when it is a suit against the government. So the 
government would pay, and there is some disagreement on that by 
the way.
    Mr. Young. Before the Cobell Settlement was publicly 
announced did class counsel ever say that their efforts would 
result in individual Indians bearing all costs associated with 
the litigation?
    Mr. Monette. Not that I know of. I mean, there is a classic 
contingency fee, and they are saying fourteen-and-a-half 
percent, then we would assume that that fourteen-and-a-half 
percent would come off the top.
    But our understanding, and it did not take a lawyer to have 
this understanding, that if this is simply an accounting case, 
then there is not going to be any cash being exchanged, and 
simply changing numbers on the accounting ledger.
    At that point the lawyers would make their arguments to the 
court under the Equal Access to Justice Act for payment, and 
they would present their actual hours to the court, and if they 
thought that they could do that, and if they thought they could 
get $223 million, then you should let them have at it, but my 
bottom-dollar bet is that they can't.
    Mr. Young. OK. Now, the government refused to testify 
today, but nevertheless the government is on record as saying, 
quote, ``after Plaintiffs' 2011 victory on appeal, they 
suffered nine straight defeats at the appellate level.'' What 
is in evidence of those defeats?
    Mr. Monette. Well, right now where we stand is that they 
lost. There is no money on the table. The Appeals Court took 
the $455 million off the table and said an accounting can be 
done, and so go do it, and that is where we stand.
    Now, to me--I mean, this is the irony perhaps in this, and 
I am sure that this will get used against me by the Cobell 
lawyers, but to me I won, because the Appeals Court said that 
an accounting can be done, and so go do it. That is what I 
wanted.
    So the lawyers, they lost, because if it is just an 
accounting that is going to be done, there is no way that they 
can justify millions of dollars.
    Mr. Young. OK. Now, you said that the lady is going to win 
$2 million, and Patricia is going to get maybe $2,000?
    Mr. Monette. That is what they put out to the public.
    Mr. Young. Well, where does she get the $2 million?
    Mr. Monette. That is actually in the statement that they 
sent to the class members, that Ms. Cobell stands to recover $2 
million. The other Named Plaintiffs, $150,000 each, and then 
the rest of the class will be between $1,000 or $1,500.
    If they accept the second class, and have no more activity, 
or perhaps a lot more than that. I should point out by the way 
that there is a small number of class members who will get a 
significant amount.
    And it is because that second class has as a formula the 
activity in the account. So if you had a lot of activity in 
your account, then they are going to use a formula to get you 
money.
    And let me tell you something here that I think you will 
find interesting. We have unnamed class members out there who 
have no activity in their account during that period but one. 
They sold their land.
    Let us say they sold their land near Agua Caliente near 
Palm Springs in California for $10 million, let us say, OK? One 
event in that account period, and based on that $10 million 
sale, that formula is going to get them another one to $2 
million.
    Nobody argues that there was any mismanagement of that 
account. Nobody argues that they didn't get fair market value 
for their land, but they had activity in their account over 
that 20 year period. They sold land, and now they are going to 
get a windfall bonus from that.
    Now, how is that fair to her? Can I say what I said last 
year? That is about the worst thing that this Congress has ever 
done to Indian tribes, and right up there with termination and 
allotment. This will be one of the worst things in the history 
of the Federal-Tribal relations.
    Mr. Young. Now, realistically, I am not going to disagree 
with you, because it was sold to me as a booger. I am just 
raising the legal fees, but I never agreed with this to begin 
with basically.
    Everybody said, well, let us get it out of the way. Let us 
put it away and we will get it done, but that was--and pardon 
the expression, but it smells. And I don't know whether we can 
undo it, but one thing that we can do if I am not mistaken in 
that $223 million that they are asking for, it comes out of 
every individual Native, and in fact deprives the right to 
consolidate the lands.
    Is that really the problem? Well, how much money is 
supposed to go to consolidation?
    Mr. Monette. $1.9 billion.
    Mr. Young. $1.9 billion out of?
    Mr. Monette. $3.4 billion.
    Mr. Young. $3.4 billion, and the rest of it goes to the 
Plaintiffs deal, and how much consolidation will occur with 
that $1.9 billion? Not very much will it?
    Mr. Monette. Well, it will depend on the reservation. Some 
of the valuations that are done by the Bureau of Indian Affairs 
are high, and so of course it will be less. Some of them are 
very, very low, depending on where you are in the country, and 
it can go a long ways.
    But what we get is that we get these bureaucrats down there 
doing these plans for consolidation. The consolidation should 
be geared toward making the community work, especially for 
business, commerce, economic development. If you go out to some 
of these reservations, these allotments are scattered all over 
the place.
    Mr. Young. I just came out of Arizona, and I saw it.
    Mr. Monette. And the Bureau of Indian Affairs, in their 
wisdom of doing these allotments 60 or 70 years ago, didn't 
think of, for example, a small tidbit like a downtown.
    So you drive on these reservations, and you have a tire 
shop here, and a markers and monument shop there, and a hair 
design shop there, all an eighth-of-a-mile apart on all of 
these allotments, and there is no efficiency, no place to park, 
a waste of gas, a waste of time for people.
    And the Tribes would like to look at these consolidation 
plans and make them work, including to join the real world with 
economic development, getting some trade and commerce, and some 
business activity.
    And right now the way it is done, and I am pretty certain 
the way that the Bureau will do it in the future, will not 
facilitate any of that, and that will be a dirty shame as well.
    Mr. Young. Well, I am just going to ask both of you as I 
have asked the other witnesses before us, what ideas you have 
on how we can improve this situation, and I agree with the 
bureaucrats and the stagnation of the Department of the 
Interior and the BIA.
    It has been badly serving the American Indians all this 
time, and we want that information so that we can be helpful. 
Ms. Noem, you have a question?
    Mrs. Noem. Thank you, Mr. Chairman. I just had a follow-up 
for Ms. Douville. The question is what is your feeling in your 
Tribe specifically? Do they prefer this type of monetary 
settlement, or is their goal just to have a complete 
accounting?
    Ms. Douville. Thank you. Well, we are talking about the 
most impoverished people that America has, and at this time the 
amount of money that is going to be given to them is a huge 
amount of money, and it is needed.
    It is much needed in Indian Country, and so with that, it 
is accepted, the first class to be accepted, and you get that 
$1,000 no matter what, even if you want to be a Plaintiff or 
not. You get that.
    So the acceptance of that is good, but they don't 
understand what strings are attached to the second class of 
money that is going to be given out, and I don't think it is 
fair for this settlement to basically dangle a carrot in front 
of a starving rabbit, and that is what this is doing.
    So, I, myself personally don't believe that this is good 
for us, but on the Tribe's side, I can say that it will help, 
but also in this settlement agreement, it also states that it 
is for individuals.
    They don't have any stipulations for the Tribes themselves. 
It was for the individuals, and so the Tribe does not take a 
stand as to what their position would be, because it is an 
individual's case.
    Mrs. Noem. A follow-up question. So if attorneys receive 
$223 million, and maybe Mr. Monette can answer this, as opposed 
to the $50 million or $99 million cap that this bill proposes, 
where do they take that money from? Where is the money 
literally coming from if that cap is not there?
    Mr. Monette. It will come from the amount of money that is 
uncertain that is set aside to address this formula. So 
everybody gets their thousand, and then they get $500-plus 
according to the formula.
    So that plus according to the formula has an uncertain 
amount of money in it. It will come from that. At least that is 
the best reading of it right now.
    Mrs. Noem. So the more money the Plaintiffs made, the less 
money that will go to individuals eventually?
    Mr. Monette. A direct dollar for dollar.
    Mrs. Noem. OK. I appreciate that. Thank you, Mr. Chairman.
    Mr. Young. Mr. Boren.
    Mr. Boren. OK. This is my last statement. I have been a 
proponent of tort reforms since I have come to Congress. I am 
actually the Co-Chair of the Civil Justice Caucus, and so I am 
not a big fan of these large fees.
    But I also believe that a lot of these attorneys will not 
enter into representation unless they have an incentive to make 
these cases. In most contingency fee based cases, it is about 
33 percent of the take.
    In our offices, we deal every day in Social Security 
Disability Cases, and of course, I always say don't hire an 
attorney. We will do it for you. But a lot of them take 33 
percent.
    So we have to have some incentive for these attorneys to 
make this case. The money though that comes to pay these 
claims, it is from Title 31 of the United States Code, Judgment 
Fund, and not from other Indian monies.
    And so that is one thing that I wanted to clarify, and then 
another thing that I wanted to clarify, Mr. Monette, you made 
some statements about, well, it could have been $.8 billion. 
Well, I heard that from John McCain.
    I mean, that to me is what we call at home a wag. It is 
something that you kind of pull out of the air, and a lot of 
this stuff, you may not have been privy to. So that is 
something else that I want to point out.
    But again I think that this hearing is very important, and 
I am glad that the Chairman has had it. I think we may be 
coming back and revisiting these same issues in a few months.
    And, yes, Congress can pass any bill that it wants to, and 
it can do anything that it wants to, but all this work that has 
gone into this settlement, and even if it is not perfect, no 
settlement is perfect. There are some flaws.
    But the last thing that we needed to do was unwind decades 
of work, tons of work, on behalf of individuals, and do I think 
that $2,000 is enough? Probably not.
    But we need to be careful that Indian Country gets $2,000 
instead of zero. So as we move forward, I just want to be very 
deliberative, and I am glad that the Chairman had this hearing, 
and I won't say anything else. Thank you.
    Mr. Young. One thing. Richard, did you say that you were 
going to file a brief on this matter?
    Mr. Monette. I intend to, yes.
    Mr. Young. And are you going to do that pro bono, or are 
you going to be hired to do so?
    Mr. Monette. I am going to do that pro bono, and I am going 
to find a Plaintiff, and I have, an IIM account holder who has 
enough money, so she won't accept money in exchange. We are 
going to have a lawsuit.
    Mr. Young. Remember, that is on the record. If you win, 
there will be no money in exchange.
    Mr. Monette. That is on the record, yes.
    Mr. Young. I want to thank both of you. I think that this 
has been very informative, and rewarding, in the sense that we 
will be looking at this again. I would like to do something 
prior to the decision of what attorneys they are going to get, 
and maybe I can give a little direction to the Justice 
Department, and maybe it won't. I don't know.
    But there is no way I think that we should be paying $223 
million for an $86 million settlement. That is about what it 
was. A thank you to the both of you, and with that, this 
meeting is adjourned.
    [Whereupon, at 12:23 p.m., the Subcommittee was adjourned.]

    [Additional material submitted for the record follows:]

    [The prepared statement of Mr. Gosar follows:]

      Statement of The Honorable Paul A. Gosar, a Representative 
                 in Congress from the State of Arizona

    Mr. Chairman, thank you for giving me this opportunity to address 
the subcommittee. And I want to thank our witnesses here today as well 
for taking the time to present their views and information to Congress.
    My district in Arizona has the largest Indian Reservation in the 
country. It is home to the Navajo Nation. My district has many tribes 
of Apache, the Yavasupai and the State of Arizona as 22 federally 
recognized tribes.
    I have stated publically my support for H.R. 887, and in addition, 
I declared before the House my serious concerns about the $227 million 
lawyer fee request.
    In the Cobell, case, we found the mismanagement of the Native trust 
monies abhorrent and the need for an accounting great. That was 
certainly an injury to the Native peoples. But I oppose a second injury 
to the Native peoples. It shocks the conscience to see such a large 
request. Every dollar paid out in legal fees is a dollar the injured 
Native Americans will not have.
    I recognize that the work done by Plaintiffs' counsel on behalf of 
the claimants was important. But to see lawyers' fees in the hundreds 
of millions, compared to the average award to the injured American 
Indians of $2,000 tells me we have a serious problem. For that reason I 
have proposed, in H.R. 1150, class action reform in the area of health 
insurance, and I will continue to focus on legal reform. We cannot 
tolerate a legal system where the injured parties get a trifle after 
years of litigation, and the lawyers walk away with hundreds of 
millions. If there is a better case for legal reform than Cobell, I am 
not aware of it. I therefore support this legislation, H.R. 887, that 
limits the fee award to $50 million. But H.R. 887 is simply a remedy 
for one case. What Cobell tells us is that the system is broken and we 
need to reform it.
    Let me say a word about why H.R. 887 is fundamental to us on this 
Committee, and to all of Congress. Congress has the ultimate power over 
Indian affairs. It also has the duty to protect Native American rights. 
The Indian Commerce Clause conveys the express power to Congress over 
Native American affairs. As a result of these powers, it is well 
established that Congress has plenary power over Indian affairs. It is 
up to us, members of Congress, to make sure we exercise these 
supervisory obligations. This hearing, and H.R. 887, are part of these 
constitutional duties. We would be remiss if we let such an onerous and 
overreaching fee request proceed forward and allow the American Indians 
to be victimized yet again.
    The federal government has a ``trust relationship'' between it and 
the Native American tribes. This trust relationship obligates Congress 
and the federal government to protect the well-being of Native 
Americans, peoples who tendered their lands in return for this trust. 
We, the guardians in Congress, must now intervene to protect those 
under our care, especially where a fee dispute now creates a conflict 
of interest between the class members and their legal counsel.
    In rectifying the breach of fiduciary duty documented in Cobell, we 
cannot allow another breach to proceed under our noses. Just as the 
government has a fiduciary duty to the Native Americans in the first 
instance in ensuring trust monies are not misappropriated, so too 
Congress has plenary power to ensure that the Native American class 
members are not gouged in a fee award.
    Thank you again for coming to this hearing today and giving me the 
opportunity to speak and listen.
                                 ______
                                 
    [The prepared statement of Mr. Markey follows:]

     Statement of The Honorable Edward J. Markey, Ranking Member, 
                     Committee on Natural Resources

    Mr. Chairman, H.R. 887 is unjust, unwise and likely 
unconstitutional. As a result, it should remain un-enacted.
    This legislation is unjust because it represents an unwarranted 
intrusion into pending litigation. Congress has provided statutory 
authority, and the courts have established case law, setting out a 
process and standards for determining attorney's fees. In the Cobell 
case specifically, both the pending settlement agreement and the 
legislation enacted last Congress funding that agreement, recognize 
that the amount of attorney's fees is properly determined by the Court, 
not the Congress.
    The Court will review the entire, 15-year history of this landmark 
litigation, including detailed filings documenting expenses, hours 
worked, billing rates, benefits provided to the plaintiffs and relevant 
precedent. All parties will have an opportunity to present arguments 
and then the Court will apply the relevant law and award the 
appropriate fees. And each step of this process will be public and 
transparent.
    In contrast, H.R. 887 would simply impose an arbitrary number 
selected by Chairman Young and Chairman Hastings. Period. It is clear 
which of these two approaches would reach a more equitable conclusion.
    It should be noted that this Committee has a checkered history when 
it comes to intervening in ongoing litigation. Under previous 
Republican Chairmen, this Committee injected itself into court 
proceedings regarding bonding requirements, the Antiquities Act, 
federal whistle-blowers, and even a failed Texas Savings and Loan. The 
end result of these intrusions was, at best, to create the appearance 
of political gamesmanship in the judicial process and at worst to 
actually tip the scales of justice.
    This legislation is also unwise because it jeopardizes the entire 
settlement. The agreement ending this massive case is not final and 
resolution of the attorney's fees is an open question before the court. 
Should Congress, without process or justification, impose an arbitrary 
cap on those fees, the settlement could collapse and the litigation 
could resume.
    While the amount to be paid by the government pursuant to the 
settlement is significant, the amount awarded to the plaintiffs by a 
jury could be more--potentially much more. Given that the assets 
mismanaged by the federal government are worth billions of dollars, 
that the mismanagement went on for more than a century, and that there 
are half a million plaintiffs--rash, political moves which could 
destroy this settlement would cost the taxpayers dearly.
    And lastly, H.R. 887 is almost certainly unconstitutional because 
it violates the Separation of Powers Doctrine. Just as the Congress 
could not pass a law reversing the class action status granted in this 
case, or granting summary judgment to the defendant, we cannot pass a 
law setting specific attorney's fees. The Federal District Court for 
the District of Columbia has the requisite information, pleadings, 
process and authority to resolve this issue; Congress should allow the 
Court to do its work.
    The truth is, if we were truly committed to reducing attorney's 
fees in this case, we had ample time to intervene. Congress could have 
lowered these attorney's fees--or avoided them altogether--by stepping 
in to right the wrong done to the Cobell plaintiffs at any point during 
the 100 years it went on. To circle back now, just as this century of 
injustice is on the verge of being remedied, to complain about the 
terms, is plainly wrong.
    I would like to thank the witnesses for their time and effort to be 
here today. I yield back.
                                 ______
                                 
    [``Excerpts of the Government Position on the effort by 
Cobell lawyers to get $223 million'' submitted for the record 
by Chairman Don Young follows:]

         Excerpts of the Government Position on the effort by 
                   Cobell lawyers to get $223 million

             Submitted for the Record by Chairman Don Young

            Subcommittee on Indian and Alaska Native Affairs

                   Hearing on H.R. 887, April 5, 2011

    (All excerpts are from the Defendants' Response and Objections to 
Plaintiffs' Petition for Class Counsel Fees, Expenses and Costs Through 
Settlement, filed in U.S. District Court for the District of Columbia, 
02/24/11)
    Class counsel cannot escape a simple fact: although they enjoyed 
some early success in this case, they have already been compensated for 
that success through prior fee petitions. But since their 2001 success 
in the Court of Appeals, class counsel have lost virtually everything 
they have tried, being rebuffed in nine consecutive Court of Appeals' 
decisions. Throughout that period, rather than advancing this case to 
conclusion, class counsel embroiled the Court, class members, and the 
government in a series of wasteful diversions characterized by ad 
hominem attacks on government officials and a lack of any discernible 
benefit to the class. The broader resolution of Individual Indian Money 
(IIM) management issues and the determination of Congress to bring 
these issues to a close address claims not pursued by plaintiffs and 
unconnected to the detours they actually pursued. (pp. 1-2)
    Even a fee of $99.9 million--all class counsel are permitted to 
seek--is grossly excessive. (p. 2)
    Class counsel contend that they ``have litigated novel issues and 
navigated a series of ten interlocutory appellate decisions,'' Pet. at 
18, but after a partial victory in Cobell VI (for which they have 
already been paid), the work for which they now seek fees resulted in 
nine straight defeats before the D.C. Circuit. (p. 10)
    By 2007, class counsel had been paid approximately $8.9 million in 
fees, costs, and expenses. (p. 14)
    [T]heir total includes billable hours for which counsel have 
already been paid--or worse, that counsel have claimed and the Court 
has already rejected. (p. 16)
    Assuming that there are, in fact, contingent fee agreements 
totaling 14.75%, applying that percentage to the proper $360 million 
common fund results only in a payment of $53.1 million. But no basis 
exists for using that claimed 14.75% percentage at all. (p. 15)
    When seeking to certify the original class in 1996, plaintiffs 
stated that class counsel ``are working on an hourly basis; none has 
been retained on a contingent fee (though some have agreed to withhold 
a portion of their hourly charge until a favorable termination of the 
case).'' (p. 15)
    Much of class counsel's efforts over the past decade have been 
devoted to sideshows having little to do with achieving the historical 
accounting that plaintiffs sought. Class counsel's skirmishing ran up 
costs for both sides. (p. 10)
    The incivility for which the Cobell litigation has become known 
presents no better argument for payment and should not be rewarded. (p. 
11)
    Class counsel sought to have the Secretary of the Interior held in 
contempt and expanded this vendetta to virtually every lawyer and 
official at the Departments of Justice, Interior, and Treasury who had 
any role in the case, leading to the pendency of contempt or sanctions 
charges against 70 individual government employees, of whom 31 were 
targeted multiple times. The ploy needlessly interfered with the duties 
and personal lives of scores of public servants and cost the government 
more to defend the case because of the collateral attacks, but it 
garnered nothing for plaintiffs' case and provided no benefit to the 
class. (p. 11)
    Even worse than the diversions from issues in the case is that 
costs were driven up by tactics that affirmatively frustrated the 
historical accounting that plaintiffs sought. (p. 12)
    The class members should not be taxed tens of millions of dollars 
to compensate attorneys for efforts that frustrated the very remedy 
that they purported to seek. (p. 13)
    Despite those representations, counsel now argue that their service 
to those clients merits a payment of more than twice that amount--
further depleting the funds available for payments to class members by 
more than $120 million. Pet. at 25. Plaintiffs' proposed order directs 
that the class's custodian of funds ``promptly shall pay to Class 
Counsel $223,000,000.00 [in] fees and $1,276,598 in expenses and 
costs.'' [Dkt. 3678-15]. (p. 3)
    They then petitioned under EAJA and obtained an award of over $7 
million in fees and expenses for their work, which the government 
promptly paid. They also received over $750,000 in additional fees and 
expenses relating to discovery disputes. (p. 4)
    After that initial phase, class counsel had little success. The 
case degenerated into a series of contempt and sanctions motions 
against 70 people and protracted efforts to shut down the Department of 
the Interior's computer systems. The trial court conferred a few 
temporary victories--a contempt citation against the Secretary of the 
Interior and an order to disconnect most of Interior's computer 
systems--but those were short-lived. After Plaintiffs' 2001 victory on 
appeal, they suffered nine straight defeats at the appellate level. (p. 
4)
    The Court of Appeals expressly rebuffed class counsel's effort to 
dispute their losing streak: ``Plaintiff-beneficiaries'. . .only 
example of a break in the constant stream of reversals. . .'' (p. 4)
    Class counsel's petition asks class members to foot the bill for 
their years of fruitless digressions from the core issue in the case. 
Settlement was precipitated not by class counsel's litigation efforts 
(which, in the years since they were paid for previous work, failed), 
but by the government's decision to end the litigation on terms that 
required congressional approval and set a better course for Interior 
and its relationship with Native Americans. (p. 5)
    Class counsel justify their excessive fee petition by inflating 
both the amount of the fund for which they are responsible and the 
percentage to which they are entitled. (p. 7)
    The $1.9 billion appropriated for land consolidation is likewise 
not the product of class counsel's efforts, was not sought in the 
original or amended complaint, and is simply irrelevant to the 
calculation of any common fund. (pp. 9-10)

                                 

```