Three More American Indians File Cobell Settlement Appeals With U.S. Supreme Court

Three more tribal citizens have filed a joint petition with the U.S. Supreme Court to appeal the $3.4 billion Cobell settlement.

WASHINGTON – Three more tribal citizens have filed a joint petition with the U.S. Supreme Court to appeal the $3.4 billion Cobell settlement. Carol Eve Good Bear, a Fort Berthold Reservation citizen; Charles Colombe, a Rosebud Sioux citizen; and Mary Lee Johns, a Cheyenne River Sioux citizen, filed a writ of certiorari on September 19, asking the high court to review their case. They join Sisseton-Wahpeton Oyate citizen Kimberly Craven, who filed her own petition with the court on August 20. She has claimed the settlement is unfair to Indian class members because it violates class-action law, and she has alleged ethical issues involving Cobell lawyers and their fees. Good Bear, Colombe, and Johns are making similar arguments to Craven based on a few legal issues, specifically whether Good Bear should have been allowed to opt out of the historical accounting class created by the settlement and whether the appeals court was right that class-action members in the trust administration class were similar enough to allow certification of the class. The petition draws attention to a 1988 U.S. Supreme Court ruling, Bowen v. Massachusetts, which current justice, Antonin Scalia, had major problems with at the time. The Cobell case has been proceeding in district court under the findings of that ruling, according to the petition, which is authored by lawyer David Harrison. In relation to that ruling, the appellants believe that the overseeing court, the U.S. District Court for the District of Columbia, lacks jurisdiction over the Cobell case. Scalia is the same justice who granted an extension in August for these three appellants to file their appeal. Chief Justice John Roberts recused himself from that decision, having had close connections with both the current overseeing judge in the case, Thomas Hogan, and with one of the lawyers in the case, Adam Charnes, who works for Kilpatrick Townsend & Stockton. The high court hasn’t confirmed whether one of those connections was the reason for his recusal, nor if he would recuse himself if the high court took on one or both of the appeals. A 2010 act of Congress authorized the Cobell settlement, but whether Congress could waive the requirements of due process in district court is for the Supreme Court to consider, according to the petition, referring to a May ruling by the D.C. Circuit Court of Appeals on the Good Bear, Colombe, and Johns appeal. The new petition lets go an earlier argument made by the three appellants that Hogan should have stepped aside because he made out-of-court statements about the case. The Indian appellants have previously told various news outlets that they are concerned that most class members will receive less than $2,000 under the deal, while the lawyers in the case are battling over almost $100 million, and have argued they are due up to $223 million. When asked if she is happy to have company in appealing the settlement, Craven replied with a one-word answer: “Yes!” Dennis Gingold, lead lawyer for the Cobell plaintiffs, said, “[T]he Good Bear appellants have not provided us a copy of their petition. Accordingly, I have no idea what they have filed; however, on May 22, 2012, the U.S. Court of Appeals for the D.C. Circuit pointedly held in an explicit, unanimous per curiam opinion that those arguments are meritless and that their other arguments are ‘utterly meritless.’” In a recent letter to class members, Gingold noted that no payments can be made under the settlement until the appeals run their course. “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,” he wrote in the letter, e-mailed to class members earlier this month, and published online. “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.”