The following story was written and reported by Evelyn Red Lodge, Native Sun News Correspondent. All content © Native Sun News.
Kimberly Craven, a member of the Sisseton Wahpeton Oyate, has taken her Cobell settlement appeal to the U.S. Supreme Court. Craven filed her petition with the nation’s highest court in Washington, D.C., on Aug. 20, the deadline for making her final appeal. Three other Native American landowners impacted by the settlement – Charles Colombe, Carol Eve Good Bear and Mary Lee Johns – plan to follow suit after being granted a deadline extension by the high court on Aug. 17.
Photo of Supreme Court. COURTESY/CITY-DATA.COM
Cobell settlement on hold
Four appellants petitioning Supreme Court
By Evelyn Red Lodge
Native Sun News Correspondent
WASHINGTON — After 16 years of litigation, the historic $3.4 billion Cobell settlement agreement has once more been delayed in litigation – even as thousands of class-action members await their share.
On Aug. 20, the deadline to appeal a May ruling against her claims by a lower federal court, Sisseton Wahpeton Oyate member Kimberly Craven filed for a writ of certiorari, or cert petition, with the United States Supreme Court as an objector to the Cobell settlement agreement.
Three others – Rosebud Sioux Tribe member Charles Colombe, Three Affiliated Tribes member Carol Eve Good Bear, and Cheyenne River Sioux Tribe member Mary Lee Johns – will also file as objectors as it stands. On Aug. 17, the high court granted the three an extension to appeal until Sept. 22. The requested delay will allow Colombe, Good Bear and Johns to review Craven’s filing before filing their own joint motion with the Supreme Court.
The late Elouise Cobell began a class-action suit in the latter 1990s whereby and through litigation a historical accounting of the mismanagement of funds by the U.S. Department of the Interior was requested.
Craven’s cert petition contends, “After more than fifteen years of litigation originally intended to achieve an adequate accounting for Indians holding Individual Indian Money accounts (trust-land accounts administered by the Interior Department), the (lower) courts …approved a settlement agreement with pervasive intra-class conflicts.”
Tucked into the Cobell settlement is an Indian Education Scholarship fund of up to $60 million and tribal trust-land management claims of $1.9 billion, along with compensation for Individual Indian Money account holders or their heirs. These nearly $2 billion awards further eroded the $3.4 billion settlement.
“I’ve questioned the constitutionality of the settlement since it was first announced,” Craven told the Native Sun News. “I’m especially troubled by the creation of the second class, which includes issues which were never part of the quest for an (IIM) accounting. Most of Indian country has no idea why and what they are being paid for.”
As for the IIM accounting, Craven states in her cert petition that under the Federal Rules of Procedure (23) “No person shall be deprived of property without due process of law; nor shall private property be taken for public use without just compensation” and that due process of law requires adequate counsel representation for all parties.
Craven explains conflicts between the named class members (class representatives), counsel, unnamed parties (absent class members) and any future class members.
In her petition, Craven seeks the court to decide “the quantum of ‘evidence’ necessary to show an intra-class conflict.”
She further seeks a decision as to “whether exorbitant incentive awards to class representatives compromise their ability to independently oversee counsel.” She says a decision finding just that “would significantly strengthen the enforcement of the adequacy requirement – protecting the interests of future generations of class members.”
Craven states intraclass conflicts occurred when “four Class Representatives requested incentive awards and received $2.5 million.” She argues this conflict is not in line with federal procedure, which grants all class members adequate counsel and that incentive payments cloud the ability of class representatives to adequately represent the absent class. Additionally, she says counsel may be quick to settle, as per the settlement they stand to receive $99 million.
In her petition, Craven explains the representatives “claimed they were owed over $10.5 million more in ‘litigation expenses’ that included Representatives’ personal rent and public relations related expenses,” while absent class members are to receive roughly $1,000 each.
In further clarification, she said the representatives will take home “eight times more money” than other class members whose rent was not compensated for.
“Ms. Cobell requested $10 million, but alone received a $2 million incentive award; Mr. LaRose received a $200,000 award; and the two remaining named plaintiffs took in $150,000 each.”
Craven compares the proportion of incentive payments in the Cobell settlement to incentive payments in other class actions. She cites a study by Eisenberg & Miller that states: “The average award per class representative was $15,992, and the median award per class representative was $4,357,” which seems a far cry from tens of millions of dollars awarded to Cobell class representatives.
Furthermore, she claims the U.S. Court of Appeals for the District of Columbia’s “opinion creates a circuit split on the question of how to treat incentive payments.” As legally defined by federalism.typepad.com, a circuit split is a “disagreement between one or more federal circuit court of appeals on an issue concerning federal statutory or constitutional law.”
Craven cites several sources in her cert petition that explain, “There is ‘no consistent standard for evaluating and approving special compensation for named plaintiffs.’”
In comparison to other suits, “some 28 percent of class action settlements include incentive payments to the named plaintiffs, and those payments are usually ‘modest,’ in the range of a few thousand dollars,” she further cites.
She also claims that “lower incentive awards are unlikely to push class representatives into agreeing to deals that are bad for the remainder of the class.”
As a result, Craven says the absent class (unnamed parties) were denied just compensation and adequate representation, adding that the absent class had to settle for “rough justice” as Congress refused to make funds available for an adequate accounting of the mismanaged trust accounts of each member of the absent class. As stated in court documents, Congress decided through years of litigation that “an adequate accounting to each class member was prohibitively expensive.”
Seemingly, “rough justice” and fair justice become synonyms as no one knows exactly how much money was mismanaged and how much each individual account is owed. Some recipients will receive far less than they are actually owed. Conversely, some will receive far more than they are actually owed.
Fair becomes unbalanced and rough becomes chasmal, as one of the other three Cobell settlement objectors points out.
Charles Colombe along with Carol Eve Good Bear and Mary Lee Johns are at this point considering filing a brief in the Craven objection to the settlement. Colombe confirmed by phone Aug. 24 that they have obtained an extension to file until Sept. 22.
“We have a dilemma here: a fairness dilemma. I believe there should be a settlement, and I support the government position on that,” he told Native Sun News. However, Colombe says the tribes are benefiting from settlement agreements which he supports, but the “individuals are left with less money.”
As for the historical accounting of IIM account holders he said, “I am sure (the government) is able to do an accounting. I think the accounting alone would cost more to do than the settlement.”
According to the three-party extension court documents, Colombe, Good Bear and Johns filed the extension petition as the deadline for their Supreme Court cert petition would have expired on Aug. 20.
As Craven was also concerned for an opt-out in the settlement for IIM account holders and heirs, these petitioners asked in their extension petition “whether a mandatory class,” as the settlement resolves all claims, “can be created in a settlement action for monetary relief without an opt out provision?”
In referring to the extension petition, Colombe told NSN the parties are not sure what or if they may file a brief with the Supreme Court appeal.
The three appellant’s joint petition claims, “The (cert petition) will address an important question regarding the lower courts’ evasion of this court’s (Supreme Court) clear and unequivocal rulings on the essential element of commonality in class action proceedings.”
However, the petition states it was also filed as the parties’ attorney, David C. Harrison, is also involved in a complex 42-year-old water rights litigation, which made him unable to meet the Aug. 20 deadline to file in the appeal.
In the meantime, the Social Security Administration issued an emergency message stating it “would exclude distributions of tribal trust fund settlements from a member’s countable income and resources for purposes of determining eligibility” for receiving certain public benefits, according to a press release from Fredericks Peebles & Morgan LLP posted on www.kawnation.com.
The press release says, “In 2005, the Ute Indian Tribe represented by Fredericks Peebles & Morgan, LLP filed suit against the United States for mismanagement of the Tribe’s trust assets and when the Tribe received the settlement funds in March 2012, it distributed the settlement funds on a per capita basis to each of its tribal members. The settlement funds were awarded to the Tribe to settle ongoing litigation against the United States regarding the government’s mismanagement of tribal trust assets.”
According to the release, the trust fund settlement will not be counted “as income and resources for purposes of determining eligibility for SSI (Supplemental Security Income) or Medicare Part D.”
Additionally, “In May of 2012, the Ute Indian Tribe advocated for an exemption of these funds from program eligibility with the Social Security Administration, the State of Utah, Utah state agencies, and several other federal agencies on the basis that a one-time per capita distribution should not affect public assistance currently received by the most vulnerable members of the Tribe’s community.”
It is unclear how long this latest delay may take and that decision is in the hands of the court.
(Contact Evelyn Red Lodge at firstname.lastname@example.org)
Native Sun News: Cobell settlement on hold with more appeals
Posted: Friday, August 31, 2012
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