WASHINGTON – Kimberly Craven – the Sisseton-Wahpeton Oyate woman sometimes incorrectly styled as the sole objector to the Cobell settlement – is moving forward with her appeal, taking on the objections of the Cobell lawyers one by one. In the process, the motives of the lawyers are getting a fresh airing in public.
On January 6, Craven filed a 40-page reply brief with the U.S. Court of Appeals for the D.C. Circuit to combat numerous objections the Cobell plaintiffs raised in December to her appeal, first filed last September.
Of note, Craven labels the proposed distribution of the settlement as “upside-down” in that “greatest alleged injuries” would receive “the least amount of money.” The brief also states, “[c]lass members with no hope of recovery have an interest in a settlement that wildly overcompensates them at the expense of class members who do have legitimate claim.”
Cobell lawyers have previously argued that Craven is speculating that class members suffered different types of individualized damages.
But Craven argues in the new brief that through the course of the Cobell case, that position is the exact one that Cobell lawyers sometimes argued from. Now, for some reason, they have changed their position. Craven also argues that case law says that when settling parties ask a court to evaluate a settlement of different types of claims, they must demonstrate that they have investigated each of these claims and that the settlement fairly approximates their litigation value. She says that this has not happened in this instance.
The arguments between the two sides have proven heated, which is not surprising since there is so much money – and principle – on the line. In short, the appeal centers on the appropriateness of a $3.4 billion settlement agreed to by the Obama administration in 2009, approved by Congress in 2010, and determined to be fair at a fairness hearing by the overseeing court in 2011. That 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 U.S. Department of the Interior.
Adding to the sensitive nature of the situation is the death of lead plaintiff Elouise Cobell in October, after a short battle with a publicly unnamed type of cancer. Revered by many in Indian country, some Indians have taken the position that even though the settlement is flawed, it deserves to be fulfilled in honor of the lady who spent almost two decades fighting in court for justice.
Craven has long argued on a number of grounds that the settlement is anything but fair, and that it shouldn’t be approved just because Cobell said she was trying to bring justice to Indians. When Craven formally objected to the case last June at the fairness hearing, she presented a five-point case based on problems she sees with the legality of the settlement itself. She additionally raised arguments against the millions of dollars the plaintiffs’ lawyers and lead plaintiffs would receive under the plan. In comparison, most Indian beneficiaries would receive less than $2,000.
Court documents filed by Craven as the preliminary appeal process has played out indicate that some class members in the suit with claims against the government for mismanagement of their trust assets would receive less money than some class members with lesser claims.
Cobell lawyers have raised a number of objections to Craven’s appeal. “Our views on Craven are set forth with precision and in detail in our appellate briefs and our responses to her objections, our joint motion for preliminary approval and our motion for final approval in the district court,” noted Dennis Gingold, the lead lawyer for the plaintiffs.
Appeals documents filed by the plaintiffs are available online at http://www.indiantrust.com/. Gingold would not offer comment on specific questions about the appeal posed to him by Indian Country Today Media Network in early January, citing that the “matter is in litigation.”
In court papers, the Cobell lawyers have sometimes painted Craven as attempting to delay the settlement. Craven has responded that this is not true, and her lawyer has indicated that she has beaten all deadlines for filings in the appeal thus far—even one that would have given more beneficiaries time to appeal had she waited to file. In September, she further agreed to expedite the briefing schedule for the appeal.
Also in September, the Cobell lawyers argued in favor of an $8.3 million appeal bond that would have effectively prevented Craven from carrying out the appeal, since she doesn’t have that much money. Judge Thomas Hogan – who had approved the settlement in June – said the request bordered on “misrepresentation” and was not based in law.
The lawyer for Craven, Ted Frank, of the Center for Class Action Fairness, has offered rationale for the wiliness of the Cobell lawyers to make such claims, however inaccurate they have proven to be: “Remarkable the things lawyers are willing to claim when they have up to $111 million of fees at stake,” he wrote on his company’s website in September.
Frank has offered more insight on his website (http://centerforclassactionfairness.blogspot.com/) in recent months, imploring individual beneficiaries to contact the Cobell lawyers for questions they might have about the case. “For obvious reasons, I can’t talk to class members individually about the appeal,” Frank wrote on the site in August. “If you want to know why Ms. Craven appealed, you should read Ms. Craven’s filings.
In a jab to the Cobell lawyers, Frank added, “Perhaps you should ask your attorneys why you had to find this out on my website rather than on the Indian trust website; they’re quick to update the website with their own filings; it’s not like any of this is secret. Why are your attorneys hiding this from you? What are they afraid of?”
Indeed, some information one might expect to find on the Cobell Indian trust website to help clarify matters for possible beneficiaries is not there. And when Cobell arguments have proven unsuccessful, such as with the appeal bond matter, they are sometimes removed from the site altogether.
The information complexities, as well as the heated debate between the two sides, will climax in court on February 16 when oral arguments are scheduled to begin.