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Cobell Settlement: New Ask Elouise Letter

This open letter discusses events and issues in the Cobell case since the last communication on May 22, 2012.

Dear Indian Country,

This open letter discusses events and issues in the Cobell case since the last communication on May 22, 2012. Unfortunately, your settlement trust payments continue to be blocked because of appeals taken by four class members and their attorneys. The four class members are Kimberly Craven, Charles Colombe, Carol Eve Good Bear, and Mary Lee Johns.

Until their appeals are exhausted or withdrawn, no payments may be made to desperate class members, no scholarship money may be provided to needy Indian students, and no money is available to purchase fractionated interests in land that would be consolidated and transferred to tribes free of liens. In short, another winter is approaching, but there is no money for you, your children, and grandchildren because of Craven, Colombe, Good Bear and Johns – as well as their attorneys.

So, what is the current status of the case?Weren’t their appeals resolved by the court of appeals on May 22, 2012? No. On May 22, 2012, two separate three-judge panels of the United States Court of Appeals for the D.C. Circuit concluded that the settlement is fair and they affirmed unanimously the district court’s order granting final approval of the Cobell settlement. This is a major victory for you; however, it is not the end. All four appellants elected to seek review by the Supreme Court of the United States. The appeal to the Supreme Court is not a right and the objectors must petition the Court to hear their arguments. Craven’s petition was filed August 20. Colombe, Good Bear and Johns, whose appeals are consolidated, sought a 60-day extension to file their petition. We vigorously opposed that request, but they were granted a 30-day extension to file their petition – until September 19, 2012. Our opposition to the Craven petition, as well as the government’s opposition, is due on September 22.

What did the Court of Appeals say? In a 24-page decision, a three-judge panel rejected all the arguments of Kimberly Craven because they all are without merit. Craven claimed, among other things, that the settlement is not fair to her. The Court of Appeals disagreed, finding, in part, that she “mischaracterize[d] the Historical Accounting Class” and that Craven “offer[ed] no persuasive evidence to support her claim of unfair compensation [for Trust Administration Class members].” Craven personally attacked Elouise, suggesting baselessly that Elouise had colluded with the government to reach a settlement. Craven’s contention was rejected emphatically by the Court of Appeals, which found that “Ms. Cobell’s singular, selfless, and tireless investment of time, energy, and personal funds to ensure survival of the litigation ... undermined any attempt to imply that Ms. Cobell had improperly colluded with the Secretary to settle.” Notably, the Court held that Craven “ignore[d] the history of this hard-fought litigation and the obstacles to producing an historical accounting.”

On the same day that Craven’s appeal was rejected as meritless, a second three-judge panel of the D.C. Circuit summarily rejected every argument of Good Bear, Colombe and Johns, pointedly holding that two of their four arguments were disposed of by the Craven decision. The U.S. Court of Appeals admonished the three appellants and their counsel for making two arguments that were “utterly without merit,” that relied on a “blatant mischaracterization,” or were “contrary to all precedent and to common sense.”

Why are appellants appealing the court’s rejection of “blatantly mischaracterized” arguments that are “without merit” and otherwise “ignore the history of this hard-fought litigation and enormous obstacles to producing an historical accounting”?What are the chances of the four appellants prevailing? Speculation is inappropriate; however, I note a potentially relevant statistic. In 2010, the latest full term of the Supreme Court, the Court reviewed 7,857 petitions for the Court to hear cases. Of those, only 86 were granted. This suggests that there is about a 1 percent chance that the petitions of Craven et al. will be granted. As reported by on August 15, Colombe, himself, admitted to the Native Sun News that they, the appellants, were “going to be blown out of the water” by the Supreme Court. But, even so, in the unlikely event that one of the petitions is granted, your payments may be delayed at least another year.

I am not aware of any case in which the Supreme Court has rejected calls from all three branches of government urging the prompt and fair resolution of a settlement with the United States government. You may recall that the settlement received bi-partisan support in Congress. The Senate unanimously passed the Claims Resolution Act of 2010 (the “CRA”) and that House voted overwhelmingly to ratify the settlement and appropriate all necessary funds. The President signed the CRA into law, at which time he emphasized the importance of the settlement both to individual Indians and the United States government. Six judges sitting in the district court and court of appeals carefully reviewed the record evidence and the law and they rejected as meritless each of appellants’ arguments.

So, if they have little chance of prevailing on the merits, why are they appealing? I cannot answer that question because I do not know. Class members, including those who identify themselves as family of the appellants, ask us the same question. They ask why appellants are doing this when they know that it hurts so many Indian people, including their own grandchildren. To the extent that the appellants ever believed they had a chance of prevailing prior to May 22, 2012, it is clear that they have very little or no chance of prevailing now. And, should they succeed, that means that the settlement would be terminated and that they and you will receive nothing. It is not within the realm of possibility that Congress will again appropriate $3.4 billion for individual Indian trust beneficiaries. When so many class members are dying and many must do without heat and adequate shelter this winter, I believe that the efforts of the appellants and their counsel are nothing short of a travesty of justice.

Did you disclose confidential information about the appellants to us? No, notwithstanding false statements made by Craven, Good Bear, Colombe, and Johns in that regard, each filed in the public record his or her own contact information, including home addresses phone numbers and other such information. Indeed, they or their attorneys disclosed that information publicly nearly one and one-half years ago. Today, the information remains in the public record. Any of you may visit the Clerk of the U.S. District Court at the courthouse or download the information from Internet. See e.g., Dkt. Nos. 3740 at 7 (Craven), 3746 at 105, 108 (Good Bear), 3746 at 238 (Colombe), and 3746 at 150 (Johns).

I understand that Craven is now saying that the creation of the Trust Administration Class was not part of the original complaint, is this true? No. This is another instance where Craven fundamentally is wrong. The complaint that Plaintiffs filed in June 1996, among other things, sought equitable relief, including an adequate accounting of IIM Trust assets and restitutionary relief that is based on whatever the accounting would reveal. Further, the original class certified by the U.S. District Court in February 1997 consisted of all past and present individual Indian trust beneficiaries. Trust Administration Class Members were included in the class certified almost 16 years ago. Put another way, principal claims of the Trust Administration Class were included in the complaint filed in 1996 for the class certified by the U.S. District Court on February 4, 1997.

I’ve also read that Craven is arguing that the incentive awards to Ms. Cobell and the other named plaintiffs are exorbitant and a Supreme Court decision supporting her argument “would significantly strengthen the [future] enforcement . . . and protect[] the interests of future generations of class members.” What does she mean and how would this protect me in any future lawsuits? This is a misguided, erroneous, and fallacious argument. Not a single argument advanced by Craven will “protect[] the future generations of class members.” She does not explain how any judgment finding that this particular incentive payment is “exorbitant” would protect you, an individual Indian class member, in some future class action litigation that no one wants to file. Indeed, because no one will ever bring another class action lawsuit of this nature to trial, her argument makes no sense and it is extremely misleading.

But, the incentive payment is larger than average, right? Yes, it had to be in order to reflect the extraordinary efforts of the named plaintiffs. Both the U.S. District Court and the U.S. Court of Appeals for the D.C. Circuit held that Craven has “ignor[ed] the history of this hard-fought litigation and the obstacles to producing an historical accounting.” No named plaintiff in a class action case has made sacrifices that Elouise made during the last 15 years of her life. She used hundreds of thousands of dollars of her own money to fund experts in the litigation and she devoted much of her adult life to the successful prosecution of this case. Unlike Craven, Elouise is a genuine American hero and as President Obama eloquently stated, “[h]er persistent and determined leadership in the pursuit of justice for all Native American’s will leave an enduring legacy.”

What have you done to speed up this process? We have done everything that is legally possible. In addition, we reached out to the attorneys who represent each of the appellants on multiple occasions to urge them to consider the financial and human cost to the class members, all to no avail.

When can we expect to be paid? Unfortunately, as a result of their actions, your payments could be delayed several more months and perhaps longer – possibly to 2013, or even 2014. If Craven, Good Bear, Columbe, and Johns had not pursued their meritless appeals, you would have been paid by now, the scholarship fund would have been established, and land consolidation would be under way. Even now, if each of these appellants withdrew their appeals, you would receive your first check within a few weeks.

Who are the attorneys who represent the appellants? McGuireWoods LLP, a Virginia law firm with a Washington, D.C. office, is representing Kimberly Craven. An associate in that firm, Anand Ramana, is handling her petition and is counsel of record. It is the same firm that filed an amicus brief in the Court of Appeals on behalf of Competitive Enterprise Institute (“Institute”) in support of Craven’s meritless arguments. The Institute is a tax-exempt organization and Wikipedia reports that it is funded by ExxonMobil Corporation, Texaco, Inc., Coca Cola Company, CSX Corporation, FMC Corporation, and others. The Institute says that it is “dedicated to the principles of free enterprise and limited government.” If that statement is true, why would the Institute want to deny individual Indians their property rights, particularly given that the Institute states that the restoration of property rights is one of its goals.

McGuireWoods is also the same law firm that recently was cited for an “egregious” ethics violation by a panel of the U.S. Court of Appeals for the 9th Circuit in an antitrust case. As a result of its cited misconduct, the Court of Appeals affirmed the District Judge’s denial of the law firm’s request for attorneys’ fees. The firm says that it is representing Craven for free.

David Harrison is an Albuquerque, New Mexico lawyer and Osage Indian who represents Good Bear, Johns, and Columbe. He is a former BIA employee. The Court of Appeals found that certain of the arguments and representations he made to it are “utterly without merit,” a “blatant mischaracterization,” and “contrary to all precedent and to common sense.” Quite a dubious achievement, even for Mr. Harrison! If as the judges say he blatantly mischaracterized facts and the litigation record and if as they say he misstated controlling law, why should you believe that his statements to you about the Cobell case are truthful or sensible?

This and other Ask Elouise letters can be found on the settlement website: There is also a “frequently asked questions” section to answer the most common questions received:

Kind Regards,

Dennis Gingold

Lead Counsel, Cobell Plaintiffs