WASHINGTON – A three-judge panel of the U.S. Court of Appeals for the District of Columbia today heard the first of four appeals to the $3.4 billion Cobell Indian trust settlement.
The appeal, by Sisseton-Wahpeton Oyate tribal citizen Kimberly Craven, is based on several legal arguments that say the settlement, announced between the Obama administration and the lead plaintiffs of the case in December 2009, is unlawful and unjust.
The deal impacts up to 500,000 Indian class members. The case, based on decades of confirmed mismanagement of their royalties by the U.S. Department of the Interior, was first filed by Blackfeet Nation citizen Elouise Cobell in 1996. She passed away due to complications from cancer last October.
“Signals were ambiguous,” Ted Frank, the lawyer for Craven, assessed of the hearing to Indian Country Today Media Network soon after the 40-minute oral arguments ended. Frank leads the Center for Class Action Fairness.
One of the panel members, Judge David Tatel, outwardly expressed skepticism of one of Craven’s arguments, based on recertification, but the court also offered skepticism of the appellees’ “Congress approved it, so it must be valid” argument.
“But neither necessarily means anything, and there were several important issues that weren't discussed at all,” Frank said. The court can still consider these issues in coming to a final decision.
Supporters of the settlement, including Blackfeet Nation citizen Jimmy St. Goddard representing Elouise Cobell, showed up in the nation’s capital to watch the legal process unfold.
In Craven’s legal briefings to the court, she labeled the proposed distribution of the settlement as “upside-down” in that “greatest alleged injuries” would receive “the least amount of money.” She argued, too, that “[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.”
Frank has cited case law that says 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. This has not happened in this instance, according to Craven’s briefings.
Craven’s court papers have also citied inconsistencies in the arguments of lawyers for the Cobell appellees.
The Cobell lawyers have raised a number of objections to Craven’s appeal, some of which the court seemed to seriously consider during the hearing.
Some tactics that the Cobell lawyers have taken outside of court, including providing phone numbers and addresses of Craven and other appellants to class members, have been viewed unfavorably across Indian country, prompting ethics and harassment concerns.
The court is scheduled to hear three more appeals on May 15, centering on objections from tribal citizens Carol Eve Good Bear, Mary Lee Johns, and Charles Colombe.
Good Bear and Johns both recently reacted negatively toward the Cobell lawyers’ release of their private contact information to the class members.
“To put my name out there for the public, I think that’s scary that these attorneys would use this tactic and intimidate me into dropping my appeal,’’ Good Bear told the Associated Press in January. “I don’t have protection. If somebody is upset about all this and comes at me with a gun, what am I supposed to do?’’
In terms of the Craven appeal, the court can take as long as it wants in coming to a decision, but a ruling is widely anticipated by parties in the case before the May 15 arguments of the other appeals begin.
If any of the appeals are successful in stopping the settlement, all or part of the deal could be off the table, but lawsuits and settlement talks could hypothetically begin anew. There is also a possibility that a successful appeal could lead to the Cobell lawyers appealing that decision to the U.S. Supreme Court—not lately a friendly place for Indian interests.
Frank said that Craven’s appeal was heard separate from the other appeals because there was no move to consolidate them.
“Because we filed our notice of appeal two months ahead of them, and agreed to an expedited schedule, our briefing was already on file before the court could set a briefing schedule for the second set of appeals,” Frank said.
Barring something highly unusual, under guidelines set by the court, there can be no more appeals of the settlement other than the four currently in process.