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

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

Cobell Appeals Fail to Sway Court

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In an unpublished order issued the same day, the court knocked down three other appeals by Indian citizens in the Good Bear case who, like Craven, claimed the settlement is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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Cobell Appeals Fail to Sway Court

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