The three remaining Indian appellants have made the difficult decision to ask the U.S. Supreme Court not to consider their petition to appeal the $3.4 million Cobell settlement. The court dismissed the petition on November 6.
“We pulled our case out of the Supreme Court,” Mary Aurelia Johns, a Cheyenne River Sioux citizen, told Indian Country Today Media Network. “This was based on the fact that it was too big of a gamble with this court and how far it could reach to make changes in Indian law and hurt Indian country. None of us were willing to go down in history as the ones who caused this.”
Johns said the original intention for filing the appeals was because they felt Indian country deserved better. They have questions now whether the Supreme Court justices would feel the same way.
The other two appellants were Carol Eve Good Bear, a Fort Berthold Reservation citizen, and Charles Colombe, a Rosebud Sioux citizen.
Johns said the appeals by Indians were not without merit. She said the appeals were responsible for getting the federal government to change the $1.9 billion portion of the agreement designated for the U.S. Department of the Interior to establish a land consolidation program so that the money there would not be used as a loan to tribes. Under Congress’ authorizing language of the settlement, liens could have been placed on all income from sales of land acquired by the federal government under the land consolidation program until the tribes paid the liens back. In essence, by turning that property over to a tribe with a lien on it, Interior would have been forcing tribes to take loans to get the land.
“This was a deal we made [with the government] for not appealing the decision of the district court back to the court with all justices reviewing the case,” Johns said.
Because they also stopped their Supreme Court appeal, which was based partially on class-action law, the major problems they and other Indians had with the settlement remain in it. Namely, the lawyers in the case are scheduled to receive approximately $100 million, while most class-action members will receive less than $2,000.
“This has been a long struggle, and I still believe the Cobell agreement was not in the best interest for Indian country,” Johns said. “[But] if we did win, and then the ruling took away from anything to do with [Indian] trust [law], we would have ultimately lost for our people, and we just could not go there and take a chance. It was a very, very difficult decision.”
Kimberly Craven, a Sisseton-Wahpeton Oyate citizen whose own appeal of the settlement was denied to be heard by the high court in late-October, said she was surprised and disappointed that the other three Indians chose to drop their appeal. She strongly believes that the settlement is flawed and that Indians could have gotten a better deal.
Dennis Gingold, the lead Cobell lawyer, had been highly critical of the Johns, Good Bear, and Colombe appeal when they filed it in September.
“It is truly the poorest Supreme Court cert petition that I have ever reviewed, and it confirms the soundness of findings made by the U.S. Court of Appeals for the D.C. Circuit in its per curiam opinion, e.g., that Harrison blatantly mischaracterized facts and that his arguments are utterly without merit, unsupported by precedent, and lack common sense,” Gingold told ICTMN in September regarding the appeal, filed by Indian lawyer David Harrison.
In a new letter to class members sent by e-mail November 7, Gingold said that Johns, Good Bear, and Colombe ”agreed to dismiss with prejudice their Supreme Court petition in return for Class Counsel’s agreement to pay their attorney’s fees and expenses out of attorneys’ fees we expect to receive.
“Because of the Supreme Court’s rejection of Craven’s petition, we believe the other appellants have realized what everyone else had known all along: that their appeal had no merit and no chance of success,” Gingold wrote. “However, because it had the potential to delay further your settlement payments, we, Class Counsel, offered to pay the three petitioners their attorney’s fees and expenses out of our attorneys’ fees. This will greatly increase the likelihood that we can begin to disburse settlement funds to you before Christmas and before winter is fully upon you.”
How much money Johns, Good Bear, and Colombe will receive from this deal with the Cobell lawyers has not been announced.
Sources close to the case said the Cobell lawyers had previously offered money to the appellants to dismiss their appeals, but, until now, all had rejected those offers.
Secretary of the Department of the Interior Ken Salazar said recently that he anticipates that payments to Indian class members could go out by the end of the year.
Gingold said in his letter that within the next month or so, the government will pay into the Cobell account at J.P. Morgan, the approved settlement bank, settlement funds out of the Claims Judgment Fund of the United States.
“However, before that payment is made, the Attorney General must certify that the case is final and an Assistant Secretary of the Treasury must certify that it is proper to access the Judgment Fund to make that payment,” Gingold said. “Secretary Salazar has assured Indian country that the government is ‘ready to hit the ground running as soon as the Supreme Court makes a decision.’ We believe him. Accordingly, there is good reason to be optimistic.”