Cobell v. Salazar – Page 3

“Business Group Files Opposition To $3.4B Cobell Settlement”: At “The BLT: The Blog of Legal Times,” Mike Scarcella has a post that begins, “A conservative think tank that advocates for free enterprise and limited government is challenging the $3.4 billion settlement in a Native American class action in Washington, saying the judge in the high-profile case should not have certified a class.”

You can access the group’s amicus brief filed yesterday in the U.S. Court of Appeals for the D.C. Circuit at this link.

Here is a link to the BLT coverage.

President Obama Release on the Passing of Elouise Cobell

October 17, 2011Matthew L.M. Fletcher

Here:

Michelle and I were saddened to hear about the passing of Elouise Cobell yesterday. Elouise spoke out when she saw that the Interior Department had failed to account for billions of dollars that they were supposed to collect on behalf of more than 300,000 of her fellow Native Americans. Because she did, I was able to sign into law a piece of legislation that finally provided a measure of justice to those who were affected. That law also creates a scholarship fund to give more Native Americans access to higher education, and give tribes more control over their own lands. Elouise helped to strengthen the government to government relationship with Indian Country, and our thoughts and prayers are with her family, and all those who mourn her passing.

Elouise Cobell Walks On

October 17, 2011October 17, 2011Matthew L.M. Fletcher1 Comment

Unbelievable, shocking news.

Here.

Craven et al. Appeal to Cobell Settlement Does Not Require Appeal Bond

October 7, 2011October 7, 2011Matthew L.M. Fletcher1 Comment

Here is that order:

Cobell DCT Order re Appeal Bond

The Cobell plaintiffs asked for millions:

Pending before the Court are the following motions: (1) Plaintiffs’ Unopposed Motion for Appeal Bond Pursuant to Federal Rule of Appellate Procedure 7 [Docket No. 3856], which seeks “that this Court require [Kimberly] Craven to post a bond or other security in the amount of $8,306,439.93 to ensure prompt payment of plaintiffs’-appellees’ costs on affirmance of this Court’s final judgment order,” Pls.’ First Mot. for Appeal Bond 1; (2) Plaintiffs’ Second Unopposed Motion for Appeal Bond Pursuant to Federal Rule of Appellate Procedure 7 [Docket No. 3859], which makes a similar request that an $8,306,439.93 bond be imposed against the Harvest Institute Freedmen Federation, LLC, Leatrice Tanner–Brown, and William Warrior; (3) Plaintiffs’ Unopposed Motion for Expedited Consideration of Plaintiff[s’] Second Unopposed Motion for Appeal Bond Pursuant to Federal Rule of Appellate Procedure 7 [Docket No. 3860]; and (4) Plaintiffs’ Third Unopposed Motion for Appeal Bond Pursuant to Federal Rule of Appellate Procedure 7 [Docket No. 3869], which further requests that an $8,306,439.93 bond be imposed against Ortencia Ford and Donnelly Villegas. For the reasons set forth below, the Court will deny all four motions.

BLT reports on the judge’s reaction to the plaintiffs’ request:

No opponent of the settlement, Cobell’s lawyers said, “is entitled to a free pass at delaying justice” for the hundreds of thousands of Native Americans who make up the class. The suit, filed in 1996, sought an accounting of the government’s handling of individual Indian trust accounts flowing from the use of land for timber, natural gas and minerals.

“The delay caused by Craven’s appeal means that more elderly and more infirm class members will pass on without obtaining justice that they deserve,” Cobell’s lawyers said in the court filing (.pdf). “The human cost of Craven’s appeal can never be quantified, and as this Court has found, many of the class members depend on their trust funds for the most basic staples of life.”

Craven’s attorney, Theodore Frank of the Center for Class Action Fairness, said in response (.pdf) that the appeal is not frivolous and that Cobell’s lawyers are exaggerating their costs. Frank alleged Cobell’s request for an appeal bond was brought in bad faith and urged Hogan to sanction the plaintiffs’ lawyers.

***

For instance, Hogan criticized the plaintiffs’ lawyers for contending that there are established practices in the D.C. Circuit for appeal bonds. Cobell’s lawyers, in one instance, pointed to a case in which a federal trial judge declined to order a bond.

Hogan said “it goes without saying” that a published decision denying an appeal bond “cannot credibly be cited as establishing a ‘practice.’” The judge said he was “surprised” Cobell’s lawyers cited to cases that don’t help their cause much.

“It is unclear to the Court whether the unsupported arguments and representations in the plaintiffs’ briefs were intentional, the result of carelessness and haste, or otherwise can be reasonably explained,” Hogan said.

Sanctions, the judge said, are not warranted. But he said he ordered Cobell’s lawyers to file a declaration that addresses the concerns he raised.

The remaining appeal docs are here.

Justice Thomas’ Indian Law Vision

August 29, 2011Matthew L.M. Fletcher7 Comments

Much is being made of Justice Thomas as a rising leader in the Roberts Court, which quietly says a great deal about the incredible conservatism of the Court right now. Justice Thomas views on gun control, which former Chief Justice Burger would have labeled “fraudulent,” are now the law. Jefffrey Toobin’s New Yorker piece, profiled at SBM blog, notes that Thomas’s dissenting and concurring opinions long have espoused well-nigh radical notions of constitutional law, and are now being vindicated one after the other.

Justice Thomas’s radical vision of the law also has touched Indian law. In particular, Thomas has suggested two major changes to Indian law jurisprudence.

First, in White Mountain Apache, he wrote that the trust relationship was more properly viewed as a “guardian-ward relationship,” a view adopted to some extent by the Jicarilla Court just a few months ago:

The Court of Claims has observed that the relationship between the United States and Indians is not governed by ordinary trust principles: “The general relationship between the United States and the Indian tribes is not comparable to a private trust relationship. When the source of substantive law intended and recognized only the general, or bare, trust relationship, fiduciary obligations applicable to private trustees are not imposed on the United States. Rather, the general relationship between Indian tribes and [the United States] traditionally has been understood to be in the nature of a guardian-ward relationship. A guardianship is not a trust. The duties of a trustee are more intensive than the duties of some other fiduciaries.” Cherokee Nation of Oklahoma v. United States, 21 Cl.Ct. 565, 573 (1990) (citations and internal quotation marks omitted).

One can only wonder what Justice Thomas would have done if Cobell had fallen into the Court’s lap. Today’s posting on the lower court’s sarcastic rejection of the government’s position on the merits of the Jicarilla trust claim suggests the DOJ and DOI are more than willing to offer up an argument to return the trust relationship to the Lone Wolf v. Hitchcock era.

Second, Justice Thomas has stated an interest in extending his onslaught on the commerce clause to the Indian Commerce Clause context. In United States v. Lara, he linked Lopez and Morrison to the Indian Commerce Clause: Continue reading →

MSU Lecture on Cobell Settlement (Edward Valandra)

August 15, 2011Matthew L.M. Fletcher

In These Times, In this Land: Objections to the Settlement in Cobell v. Salazar

Lecture/Discussion

With

Lakota Scholar

Edward Valandra

Friday August 19^th 213 Morrill Hall

12 Noon

In December 2009 the U.S. departments of the Interior and Justice reached a settlement on the long-running Cobell class-action lawsuit regarding the federal government’s mismanagement of more than 300,000 individual American Indian and Alaska Native trust accounts.

Edward Valandra, a Lakota scholar and the founder and research Fellow of the Community for the advancement of Native Studies (CANS), will be giving a luncheon talk in the English Department Conference Room, 213 Morrill Hall at 12:00 noon on Friday August 19. He will be critiquing recent developments in Cobell v. Salazar and how they affect the rights of Native peoples in this long standing case.

Sponsored by the Native American Institute and Michigan State University