Geoffrey Rempel: The truth behind the withdrawn Cobell appeal

Monday, November 12, 2012  

Those of us who have met Mary Aurelia Johns and have had to listen to her shrill and outlandish contentions should not be surprised by her most recent statements, which are reported by Indian Country Today in a November 8, 2012 article entitled Indians Pull Appeal to Cobell Settlement; Government Says Payments By Year’s End.

Her statements are categorically false, misleading, and easily rebuttable by anyone that knows the facts in the landmark Cobell litigation its settlement. Preliminarily, Johns is not an attorney and is not an accountant. She has no experience whatsoever in complex financial litigation. Most importantly, her opinions, commentary, and other self-serving statements about Cobell are utterly meritless and should be ignored entirely by you and other thoughtful readers.

Because Johns is not an attorney and is not an expert on practice before the United States Supreme Court, she has no basis claiming that her petition “was too big of a gamble with [the Supreme Court] and how far it could reach to make changes in Indian law.” Of course, she is wrong.

Cobell v. Salazar is easily and obviously distinguishable from every other Indian case if for no other reason than the settlement has been expressly affirmed, approved, and ratified by Congress in the Claims Resolution Act of 2010. There is no other case like Cobell and it is likely that there never will be another case of this magnitude and importance to individual Indian trust beneficiaries. The case stands alone.

In other words, it can have no other practical application in any other court no matter what issue she appealed. In addition, her attorney made no “Indian law” argument because she did not argue Indian law, nor did the parties. Johns did not gamble with the law; she gambled with class members’ tax-free $3.4 billion dollar settlement.

Keep in mind one other point: Johns had no chance of getting her petition granted once the Supreme Court denied Kimberly Craven’s meritless petition. Zero. So Johns had nothing to lose by withdrawing her petition. She already had lost in every respect – completely and unequivocally.

Next, Johns says that her “original intention” in filing was because she felt Indian Country deserved better. However, by filing her appeal, in the extremely remote possibility that she prevailed, individual Indians would have received nothing. This does not deter Johns who further claims – in clear conflict with reality and the record of the Cobell proceedings – that her appeal was “not without merit.” It is extraordinary how Johns blithely ignores the holdings of, the U.S. Court of Appeals, which describe her arguments as “utterly without merit . . . . contrary to all precedent and to common sense . . . [and] based upon [a] blatant mischaracterization.”

Johns then argues that her appeal led to changes in the land consolidation plan. She says it “was a deal we made [with the government].” However, that, too, is a false and absurd claim. I know for a fact that Johns and her cohorts had nothing to do with the government’s change in its land consolidation policy. The government did not meet with her. There was no deal anyone made with her and she cannot point to any “deal.”

But, what does Johns claim that the government got out of this “deal”? Johns claims nonsensically that the deal was for her “not appealing the decision of the district court back to the court with all the justices reviewing the case.” But, conveniently, Johns forgets that she did not appeal the land consolidation portion of the settlement. As such, she had no standing to appeal land consolidation issues. She can hardly conjure up a claim that could benefit anyone through her appeal, much less with respect to the land consolidation issues.

She concludes stating that “major problems” with the settlement remain, including the amount of attorneys’ fees. However, she did not appeal the U.S. District Court’s judgment on Class Counsel’s fees; nor did she did challenge the attorneys’ fees in her petition. Moreover, no class member appealed the attorneys’ fees, which were found to be fair and reasonable by the District Court.

So, when Johns elected to petition the Supreme Court, she did so for one purpose – to set aside an historic settlement that is important to you and hundreds of thousands of other individual Indians. Precisely, what did she think she was doing before Class Counsel offered her attorney money to drop her appeal so that you could be paid?

One word: greed. By waiting until the last possible moment to settle, she sought to maximize the amount plaintiffs’ counsel would pay because she knew that Class Counsel wanted to ensure checks went out to you before Christmas. This is Johns’ legacy: far from a hero in Indian Country, for eighteen months she held 500,000 individual Indians hostage for her own personal benefit. Ms. Johns should be ashamed of herself.

Geoffrey Rempel, a certified public accountant, is part of the Cobell litigation team.