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Judge removes hurdle to challenge of $3.4 billion Indian lands settlement

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Thursday, Oct. 6, 2011
By Joshua Armstrong
Cronkite News

WASHINGTON – A federal judge has removed a hurdle for people challenging the U.S. government’s $3.4 billion settlement of an Indian land mismanagement lawsuit, the largest government settlement in U.S. history.

U.S. District Judge Thomas F. Hogan ruled in Washington Wednesday that Kimberly Craven and two others do not have to put up an $8.3 million bond before they challenge the settlement of Cobell v. Salazar, a 15–year lawsuit covering more than a century of mismanagement by the federal government.

The opinion in the U.S. District Court for the District of Columbia also said Craven’s opponents could face sanctions for improper citation of law that bordered on “misrepresentation.” Hogan wrote that he will order them to file an explanation before deciding if penalties are warranted.

“The court recognizes that sometimes a litigant’s resort to persuasive writing versus objective writing leads to unwitting overzealousness in the presentation of arguments, but the plaintiffs’ motion and reply brief go beyond fair advocacy and border on misrepresentation,” the opinion stated.

Dennis Gingold, an attorney for the class represented in Cobell, said late Wednesday he did not believe his staff improperly cited anything nor asserted false conclusions and they “are working to provide clarification to the court.”

The case was filed in 1996 by Eloise Pepion Cobell and other Native Americans who sought retribution for more than a century of mishandled American Indian trust royalties. The trusts were established to let nontribal groups use Native American lands for things such as oil development and timber harvesting. Trust money is held by the government in Individual Indian Money (IIM) accounts.

An estimated 500,000 Native Americans ultimately became part of Cobell’s class–action suit. They, the Interior Department and the Treasury Department agreed in 2009 to settle the suit for $3.4 billion. The settlement was approved by Congress and signed by President Barack Obama in 2010.

Craven has challenged the process that will be used to allocate the settlement money, which will be based on the size of IIM accounts.

She asserted that because the settlement will weigh payments on the worth of a person’s IIM account, people who suffered large losses – and thus have less in their accounts – could receive less than people whose account was handled properly and earned more money. Settlements will be based on an IIM’s 10 highest–earning years.

In mid-September, Craven agreed with a motion to expedite the appeal. Final briefs for both sides will be due Jan. 6.

“We’re very comfortable with the strength of our appeal on the merits and look forward to presenting it to the court,” said Theodore Frank, Craven’s attorney.

Two other groups appealed after the deadline to file: the Harvest Institute Freemen Federation, Leatrice Tanner-Brown and William Warrior; and Ortencia Ford and Donnelly R. Villegas. Hogan said neither of those groups would have to post an appeal bond if their challenges go forward.