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.