In this Oct. 8, 2010, photo, the justices of the U.S. Supreme Court gather for a group portrait at the Supreme Court Building in Washington. Seated from left to right are: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg. Standing, from left are: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr., and Associate Justice Elena Kagan.

Indians Filing Cobell Appeals with US Supreme Court

Rob Capriccioso

WASHINGTON – In perhaps the biggest news to rock Indian country since the $3.4 billion Cobell settlement was announced between the Obama administration and the lead Indian plaintiffs in December 2009, Sisseton-Wahpeton Oyate citizen Kimberly Craven has decided to file an appeal of the deal with the U.S. Supreme Court. Three other Indian appellants who are landowners impacted by the settlement plan to take the same action.

Craven’s writ of certiorari, asking the court to review her case, will be filed on August 20, she told Indian Country Today Media Network. That is the deadline day for her to make the motion.

“After considerable thought, deliberation, and analysis of the ramifications of the Cobell settlement, I have decided to go forward with an appeal to the Supreme Court,” Craven told ICTMN. “With the Cobell attorneys getting $99 million and the government getting its ‘clean slate,’ we are just not getting our fair share for all the historical injustices, [and] loss of culture and economic opportunity for our people.”

Three other Indian appellants, Carol Eve Good Bear, a Fort Berthold Reservation citizen; Charles Colombe, a Rosebud Sioux citizen; and Mary Lee Johns, a Cheyenne River Sioux citizen, plan to take the same step, according to their lawyer, David Harrison. These three appellants will have the chance to review Craven’s filing before they decide what motion they will file with the court.

Good Bear, Colombe, and Johns have until September 19 to file, given an extension granted by the high court. According to the Supreme Court docket, Chief Justice John Roberts recused himself from the decision to grant the extension, passing that duty off to Justice Antonin Scalia, who granted it on August 17. It’s not known why Roberts recused himself, nor if this means that he would recuse himself from the greater case if the court decides to hear one of the appeals.

One possible reason for Roberts’ recusal: He has previously offered high praise for Thomas Hogan, a senior judge with the U.S. District Court for the District of Columbia currently overseeing the case—and who has already deemed the settlement fair, in his opinion. Last year, Roberts selected Hogan to serve as director of the Administrative Office of the U.S. Courts, describing him as "one of our nation's most distinguished judges," who "will bring extraordinary experience and insight to the position by virtue of his prior service to the judiciary," according to an October 2011 press release. Nothing about Hogan is mentioned in Craven's brief.

Another possible reason: Adam Charnes, a Cobell lawyer with the Kilpatrick Townsend & Stockton firm, also has ties to Roberts, having worked under him at a law firm where they were both formerly employed. Roberts was Charnes’ supervisor at Hogan & Hartson for about 10 years, and Charnes was the Cobell lawyer copied in the Supreme Court docket on the Scalia extension.

Craven’s filing is expected to hinge on class-action law, focusing partially on an argument she has made many times before: She does not think it is appropriate that the settlement in effect created a new historical mismanagement class without the benefit of that class being thoroughly vetted by a court to see if it met the legal protections of a class-action lawsuit.

"It's been my belief, since it was first announced, that the Cobell settlement violates due process and federal rules established to ensure class action fairness,” Craven said. “As it stands now, individual Indians have less legal protection than Wal-Mart workers.”

Craven has previously explained in her writings about the case that lead plaintiff Elouise Cobell originally sued in the Court of Equity, where one can only get an action, not damages, for an accounting of the Individual Indian Money accounts by the U.S. Department of the Interior. The Department has admitted under the Obama administration to bungling Indian and tribal trust holdings for many years, likely going back to the 19th Century.

Cobell was ultimately told to go to another venue, the Court of Claims, to have the damage claims heard. Still, she and her lawyers decided to stay in the Court of Equity asking for an accounting—saying many times along the way that the case wasn’t about money, but justice.

Cobell’s thinking here changed at some point in 2009 when she and her lawyers decided to enter intense settlement negotiations with the then-freshly inaugurated Obama administration. Before she passed away in October 2011, she indicated that she was rattled by an August 2008 ruling by U.S. District Court Judge James Robertson, which said the class was due only $455 million and that Interior couldn’t conduct a full accounting. That ruling helped influence her decision to negotiate with Obama’s team.

Cobell placed less public emphasis on an important development that came after that ruling: In August 2009, government lawyers were successful in getting Robertson’s opinion squashed on appeal, with the appeals court saying that an accounting was in some part possible, and the $455 million figure was also off the table.

At times throughout the case, Cobell and her legal team estimated that justice should amount to somewhere near $50 billion—a far cry from the number agreed to by the Obama administration, and a much farther cry from the less than $2,000 each class member is expected to receive if the current settlement is ultimately successful. Her legal team has also said that a widely talked about offer by Sen. John McCain, R-Arizona, to help achieve an approximately $8 billion settlement under the George W. Bush administration in the mid-2000s was never really serious. Those close to the senator say the offer was real.

Craven’s decision to re-examine some or all of this history with the Supremes did not appear to come easy for her, as she consulted friends and foes in the days leading up to the filing deadline. Close to the deadline, she resolved to fast and pray. In the end, the inequities she saw were apparently too great to ignore.

Hints were apparent earlier in the summer that Craven was going in this direction when Indian-focused legal experts began noticing that she was shopping for lawyers after her appeal to the D.C. Circuit Court of Appeals was rebuffed in May. Until then, she had been represented by Ted Frank, of the Center for Class Action Fairness. They parted ways in June.

Frank argued after the unsuccessful appeal that the court made several errors, especially since its decision said that once the U.S. Congress approved the deal in 2010, it was a forgone conclusion—which he strongly believed to be wrong, asking why the court ever decided to hear the appeal if that were the case. Despite that and other major problems with the ruling, Craven did not try to get the appeals court to reconsider before going to the Supreme Court.

Craven’s new lead lawyer representing her in the high court appeal is Andrew Trask of the McGuire Woods firm. According to a biography published by his firm, he has participated in the defense of more than 100 class action lawsuits. He is known as a major class-action legal expert. One of her other lawyers is Anand Ramana, of the same firm, who is admitted to argue before the Supreme Court.

With the filing, yet another waiting game begins for an exhausting case that got its start in 1996. Tribal citizens impacted by the settlement must wait to see if the court decides to take on the case. If it does not, the settlement will be mostly a done deal, with legal fees and other details to work out with the court—and those arguments promise to be heated. If it does take it on, Indian-focused legal experts have previously cited concerns that given the attitudes of the current not-often-Indian-friendly court, the justices could decide to throw out the whole settlement, and/or tinker with trust law. That outcome would leave major questions as to whether a new deal could be struck, and whether the Department of the Interior might ever be persuaded to do a real historical accounting.

It’s an outcome that Craven is willing to risk—even though large swaths of Indian country, particularly poverty-stricken tribal citizens who could use even a little bit of extra money, will no doubt be angry with her. Some have already asked her why she did not choose to personally opt out of the settlement, and pursue her own case. Her response, much like the late-Cobell often said when referring to the litigation, has been that this situation is supposed to be about greater justice. If the Obama administration, the Interior Department, and the Cobell lawyers are allowed to have what she believes to be a flawed settlement that creates bad Indian trust precedent, she has said that a major injustice will have been committed on the estimated 500,000 individual Indians believed to be part of the class—and could hurt Indians with future claims.

Some of the anger Craven could face was apparent in a July 2010 e-mail to ICTMN from Bill McAllister, a spokesman for Cobell at the time, taking issue with congressional critics who were attempting to have the settlement modified in part to get more money sent directly to the class members: “How can [critics of the settlement] be helping account holders if their actions kill the settlement?” he wrote in part. “There will be no money at all to give account holders if these ‘helpers’ succeed. Their efforts should be put in the context of what their actions might do. And one outcome is clearly direct harm to the people they claim to be helping.”

In light of the filing, Craven will also likely face many questions and concerns from some class members, as she did when she decided to file her original appeal with the lower court. That situation was helped along by the Cobell lawyers, who in January sent e-mails to class members, giving them Craven’s contact information and inviting them to query her directly. Their decision was widely decried as an unethical practice by many Indian-focused lawyers, and it seemed clearly intended to intimidate Craven, as well as three other Indian appellants, whose information they also shared.

"They have already made my personal information public urging people to contact me and making me fear for my family's safety,” Craven said. “I have undergone personal attacks at my home and place of work because of exercising my constitutional right to petition the government.

“I have to remember my Dakota ancestors who fought for our treaties and land and made decisions based on how it will impact the seventh generation and stand strong as this goes forward."

Throughout the settlement process – and especially since Cobell passed away – her lawyers have done themselves no favors in the realm of public opinion in Indian country, filing several legal briefs arguing that they deserve to be paid millions more in fees from the settlement. Under the agreement, they would already be getting almost $100 million, but they have argued that over $200 million is what they are due. The Obama administration has opposed these requests for more money. They also spent much of 2010 arguing that the settlement could not be changed, or it would be voided, yet changes have been made to portions of the agreement at least twice, and it remains in place. And some class members have said the lawyers haven’t properly informed them of some decisions that could negatively impact them under the settlement.

The Cobell lawyers, including lead lawyer and private practitioner Dennis Gingold, have yet to respond to requests for comment on the filing.

More on what's included in Craven's filing is here.

More to come.

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comanchewinds's picture
Submitted by comanchewinds on
It appears Craven has some hidden motives because she has been a saboteur of the Cobell lawsuit a very long time. If she is as spiritual as she claims she would allow the lawsuit to conclude, if only for the needy Native Americans, who are legion. Craven is not seeking justice but wants to kill the lawsuit altogether and the Supreme Court with its many far right judges, would do just that. Long before this time, Indian leaders from all across the United States should have put the pressure on Craven to end her endless appeals. The Cobell lawsuit is now a political football with Craven clearly at the helm. History will be kind to Elouise Cobell and her name will always be held in high reverence. Not so for Kimberly Craven. History will not hold Craven with much esteem. Indeed if she is remembered at all, her status with Native Americans, will not be much higher than George Armstrong Custer.

ndngrrl's picture
Submitted by ndngrrl on
VERY well said comanchewinds. I myself feel like crying. I was so hoping for some of this money right now. My electricity is about to be shut off AGAIN and I am out of places I can turn to for any kind of assistance. I am pretty sure we will loose our apartment just in time for Christmas this year. THANK YOU so much KIMBERLY CRAVEN. Oh yeah one last thing.... YOU SUCK!

rosestar's picture
Submitted by rosestar on
Tomorrow is the day when we (500,000 Native american class members referred to in the Cobell settlement) would have found out when we are getting our money that Mrs. Cobell fought so furiously for us. But instead these people, who should have opt out of the settlement and pursued their own case instead of wasting the time and money for all of us other class members, are holding up the settlement that the great majority of us approve of. Why are they wasting our time and money? They've already had their day in court and the judges upheld the decision. My mother has already passed on and I'm getting up their in age and I hope I get to see the payment that I have waited for these last 17 years! I think it's time to get over it and let the rest of us class members who do approve of this case to get our reward. These people have taken up too much of our time and money from the settlement already! They need to live with it or take their own case to court and let the cobell settlement go forward!

darnellwhitsock's picture
Submitted by darnellwhitsock on
How is this the biggest news to rock Indian country since the settlement?? Does her petition have a prayer of succeeding??? The SC takes how many cases in a year? Maybe 50? And how many thousands of petitions are filed each year? Thousands? Tens of thousands? What awful sensational reporting, rob. And rob, why don't you mention that it was plaintiffs counsel that sought to overturn the 2008 decision? You make it sound like the govt was the only party seeking to change the ruling and they just happened to get the $455m overturned? What do you think the plaintiffs were appealing just out of curiosity? And Kimberly. You are worse than Custer. At least Custer fought and died on his principles. You are like trying to catch air. What principles do you stand for? Now you're worried about attorneys fees of 3% after 17 years of litigation? Are you crazy? You tonk anybody does anything for free? Let alone white Washington suits? Why didnt you appeal the fees? Now you're arguing that we re not getting "our fair share", but you never appealed the overall amount! Oh, and good job counting Kim. How do you think you're going to win with out chief justice Roberts recused from hearing your appeal? Good luck there! And where precisely was Elouise told to go to the court of claims? Wouldn't that mean her case was dismissed? Something in your reasoning doesn't make sense. If she had no claim in equity! Why did the govt settle the largest case ever? I know you think Elouise is trying to pull one over on you Kimberly, but come on. Get over it. The only people ur hurting are the people you purport to represent. You can't win it's impossible. I know you live in Colorado is a nice house, but my sisters and nephews and uncles live in a two bedroom house on the plains. What are they going to do this winter. Who are you to decide that they aren't deserving of justice? Custer got justice eventually. But you are worse than Custer and we don't want your brand of justice.

wezlee's picture
Submitted by wezlee on
if she don't win maybe she will go to the united nations or e.t. for help oh don't forget the queen mum now and german chancellor angela merkelfor help.

candyo's picture
Submitted by candyo on
I think if every person who believes in the Cobell Lawsuit would sign a petition stating as such and those individual Native Americans who think that the settlement should proceed and that Kimberly Craven et al, should drop the appeals - the Supreme Court would see to it that, the majority of the Native Americans want the Cobell Settlement and that those who are in dispute should opt out.

tesescobar's picture
Submitted by tesescobar on
so you all think she is wrong?? my opinion is that every IIM account holder should be only want $2000 what is that gonna get will only last what a day or soo...n they want to put 2.2million in scholarships? its a waste when yall dont use your education..n jus be drunk all the time!..its 3.4billion everyone should get at least 1million..dang i cant believe u want the whiteman and govt to get this land money back in there hands..what fools u all are..i will be inheriting IIM accounts..and i can wait for the money..thats why you go to work everyday and pay your bills. instead of being drunk n high! im glad someone wants to appeal the case..and that robert dude is out because he scared to lose his before you say stuff..ive been following it since it started. if this was in my name i would be appealing it too..i wouldn't let them screw me...haha what can u do with $2000 tell me please..your children need it..n you can use it to pay for your own college..not many natives go to college..n if they do they drop out n return to there rez n be waited 17yrs you can wait another 1yr or 2..blind ppl i swear..good job craven!!!!...idgaf wut u all say..she is standing up for you tooo...

sunny's picture
Submitted by sunny on
Wow you really are showing your ignorance. You're assuming every native is "drunk all the time" as well as we all don't use our education. Come on sweetie you apparently don't know what you are talking about and have no class clearly. You’re a shame to the native people. Also you appear to be the only one that needs to stop drinking and get an education. You can't even spell or write a complete sentence. Stick to the comic books please. Leave the native issues to folks who really care.