Will Cobell Be a Grant?

Matthew L.M. Fletcher

My guess is no, but there’s a possibility that the Court will hold the case for a period of time to allow for Congress to decide on the settlement. Not sure what the precedent is for that, however, without the government asking for a hold.

The real question, in my mind, is whether the Cobell plaintiffs should want the Supreme Court to hear this case at all. Recall the Sherrill case, where the Court adopted an unprecedented form of laches coupled with other equitable defenses that effectively nullified the ability of the Oneida Indian Nation to restore its reservation land base through simple repurchase of the land. The lower courts in Cobell did something similar, adopting a theory of impossibility (yet another equitable defense) to reject the Cobell plaintiffs argument that the government must account for all funds.

Luckily, I think, the government opposes the cert petition. And when the federal government opposes a tribal cert petition, they’re almost always denied. In fact, the last time the Supreme Court granted a cert petition brought by tribal interests against the United States (where the government did not consent to the grant) was 1971 (Affiliated Ute Citizens v. United States; interestingly a somewhat similar case….).

So if the Court either grants or denies, how does that affect the Congressional approval of the settlement?

Here is the coverage from Indianz, and the briefs from SCOTUSblog’s Petitions to Watch:

Title: Cobell v. Salazar
Docket: 09-758
Issue: Whether the court of appeals erred in holding that respondents need not conduct an accurate and complete fiduciary accounting of ”all funds” in an Individual Indian Money trust, but instead may substantially limit the accounting duty to one that can be discharged ”in a reasonable time, with the money that Congress is willing to appropriate.”