Cobell, with her lawyers, including lead lawyer Gingold (seated), in 2009

Cobell Appeals Fail to Sway Court

Rob Capriccioso

WASHINGTON – Four Indian appeals of the $3.4 billion Cobell settlement have failed to pass muster with the D.C. Circuit Court of Appeals.

In a decision announced May 22, a 3-judge panel of the court announced its rejection of an appeal by Kimberly Craven, a Sisseton-Wahpeton Oyate citizen and landowner affected by the settlement, saying her arguments that the settlement is unfair were without merit.

In its 24-page decision, the court suggested that aspects of the fairness inquiry were moot given Congress' decision to appropriate spending for the settlement in 2010. And it further indicated that the settlement was fair because it was the “result of an arms-length negotiation” between the Obama administration and the lawyers for the Indian plaintiffs: “What interests it protected and what benefits it provided were weighed by the district court, and considered in view of the class-member objections," the judges wrote.

In an unpublished order issued the same day, the court knocked down three other appeals by Indian citizens in the Good Bear case who, like Craven, claimed the settlement is unfair for a variety of reasons. “The appellants raise four objections to the multi-billion dollar settlement of this class action,” the judges wrote in that decision. “Two of these arguments are foreclosed by another decision of this court, Cobell v. Salazar, No. 11-5205 (D.C. Cir. May 22, 2012) [the Craven appeal]…. The appellants’ other two arguments, that the district court lacked jurisdiction and that the district judge [Thomas F. Hogan] should have recused himself, are utterly without merit.”

The appellants in that case are Carol Eve Good Bear, a Fort Berthold Reservation citizen; Charles Colombe, a Rosebud Sioux citizen; and Mary Lee Johns, a Cheyenne River Sioux citizen.

On the Craven case, her lawyer, Ted Frank, expressed several concerns with the ruling.

Frank asked why the court even chose to hear the case, if Congress’s action was the ultimate authority in proving fairness. “If, as the Court suggested, we can avoid aspects of the fairness inquiry by giving weight to Congress's decision to appropriate spending for the settlement, even in the absence of any Congressional findings, then the legislation should've precluded the fairness hearing formality entirely and simply distributed the money in early 2011 rather than waste the class's time with legal proceedings whose result was preordained,” Frank said. “But I think the Court's suggestion is a mistake for the reasons we stated in our briefs.”

Frank also found it odd that the court held that a settlement could not be challenged with a “hypothetical” conflict, since he said the conflicts they showed were not hypothetical, and the Supreme Court and other circuits have repeatedly struck down settlements on the basis of hypothetical intra-class conflicts without a particularized showing of evidence.

“[W]e believed we were correct on the law, though we understood that we had an uphill battle given the exhaustion factor of a case that had already generated 22 (now 23) published opinions,” added Frank, of the Center for Class Action Fairness:

Craven and the other appellants now must decide if they want to continue their battle, perhaps taking it all the way to the U.S. Supreme Court, where Indian cases have tended to be contentious and usually not favorable to tribal interests in recent years.

Besides the Supreme Court option, they could choose to accept the ruling and do nothing, or petition for rehearing en banc by the full nine-judge D.C. Circuit.

Frank gave no indication of what Craven might decide to do, saying they are still evaluating their options.

On the Cobell side, optimism was expressed that checks could soon be delivered to Indian class members, who are supposed to receive a combined total of $1.4 billion from the deal. The rest of the $3.4 billion will go to the U.S. Department of the Interior to create a land fractionation buy-back program and a $60 million scholarship fund for Indian students.

Most class members will receive less than $2,000 under the plan, while the Cobell lawyers will get approximately $100 million, which has been one of the many sticking points of the settlement since it was announced in December 2009.

"We are pleased by the appeals court's ruling," lead Cobell lawyer Dennis Gingold said in a statement. "Our deepest regret is that [Elouise] Cobell did not live long enough to see this victory.”

Lead plaintiff Cobell passed away in October 2011, after a short battle with a publicly unnamed type of cancer.

"With this ruling, we hope the courts can proceed with its delayed plan to begin distributing proceeds of this settlement to the over 500,000 Native American Trust account beneficiaries,” added Turk Cobell, the son of Elouise Cobell. “Our family, as well as many other members of the class, look forward to finalizing and bringing closure to this case and the settlement."

The fight between the Cobell lawyers and the appellants has been contentious for months.

Craven had partially argued in her case that the proposed distribution of the settlement was “upside-down” in that “greatest alleged injuries” would receive “the least amount of money.” She also argued that Cobell lawyers had changed some of their positions, especially on the ability of the federal government to compute individualized damages, that they had made before the settlement was announced.

The Cobell lawyers fired back in January by writing and distributing a letter online and via e-mail that listed the addresses and phone numbers of the people who have chosen to appeal the settlement, adding that class members could directly contact the four appellants to learn their “motives.” That action was widely rebuked, and prompted ethics and harassment concerns.

The Cobell lawyers, lead plaintiffs, and the Obama administration first announced the deal in December 2009. It was approved by Congress in 2010, and determined to be fair at a fairness hearing by the overseeing court in 2011. The settlement was derived after years of stalling by the U.S. government in admitting that it had shortchanged hundreds of thousands of Indians while mismanaging trusts it held for them by the Interior Department.

Some in Indian country have taken the position that even though the settlement is likely flawed, it deserves to be fulfilled in honor of the lady who spent almost two decades fighting in court for justice. At the same time, some, like the Indian appellants, fear it creates an unfair precedent that may benefit lawyers more than individual Indians.

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husbandofmoonlight's picture
Submitted by husbandofmoonlight on
If the situation were completely reversed; the USA would never had taken the case to any other court than those at the "international level"---and they would not have accepted anything less than they asked for. The irony here is that even though the USA is paying what amounts to "chump change for stealing so much"---they are as a result of their own corruption forced to "borrow the money" from China-----since they still cannot seem to manage their own fiscal affairs in the first place. But then, when your entire history and present existance is based on hyprocrisy, duplicity lies and deception----you can get away with just about anything for awhile. I would remind the readers that Native America was "here" at least 15K years ago; the European Invasions and the Americans are simply a "mark on the wall of our evolution"-----if taken as whole; the USA is now showing all of the classic signs of collapse; and they seem any day now, since not learning from any of the "previous empires" are repeating all of the same mistakes (indeed the Americans make the Romans look like amateurs) and are about to turn on themselves and their absolute corruption will cause them to devour themselves---absolutely--and they will most likely be remembered by the future as a terrible example and a horrible mistake humanity must learn from if there is any hope for a future for humanity. WE----will be here even then. "If the USA were any other criminal nation the 'Americans' would invade the USA to keep the world safe; and they would be justified."

candyo's picture
Submitted by candyo on
I'm an enrolled member of a federally, recognized Tribe in Oklahoma and I am thankful for Eloise Cobell for bringing to people's attention that such a terrible injustice was on-going toward all of the Individual Indian Money holders or beneficiaries for over a hundred years. I read about it when it first began as Cobell vs. Kempthorne or Dept of Interior. Then, I read about the governments lawyers taking boxes and boxes of documents by the truckloads to the shredders and how so many unanswered questions to why they never had an accounting of how much the Trust accounts had deposited for each Individual Indian Money account holder... It seemed like it was taking too long for them to come up with how much was in their accounts. No one knew the answers??? Then, after they got rid of the first Judge, they got a new judge who decided the government never kept up with how much was put in the accounts so they went on to how much they should give them just to get the case off the books. Its just a little rough justice, I guess cause now that the appeals are over those people who have owned Individual Indian Money accounts since 1887 for the oil and gas leases on their Native lands, or cattle leases, or timber leases, are going to receive only $1,000.00 and we know from watching the oil spill in the gulf how much oil comes out of the ground just on the Horizon Well, nope it doesn't seem fair but I think that Congress was determined to get it settled and pay the IIM beneficiaries something. It is a longtime coming to many who were getting checks for 2.00 a year from the U.S. Treasury Dept. I would not call it a windfall but a big windy!

normanmicco's picture
Submitted by normanmicco on
I think the Cobell lawyers are getting too much money also.Us individual Indians have gotten the shaft in the past on various issues and once again are getting shafted. This federal appeals court are like all mean White people,they like to tell and treat Indians any way they desire. They say,"You take this or else!"and if we want anything we must submit just like Black people did in the 1800's.We might as well say to this appeals court,"Yes Master Sir,I's do what you wants me to." How I long for yesterdays when I could just shoot the Whites.Now,I live in a civil society where I must use the court system composed of mostly White people on the United States Supreme Court.I say appeal to the high court just to show this appeals court they do not have the final word in this important legal issue.