Here’s the article from Greenwire.
Senate vote on Cobell settlement likely today
Here’s the article from Greenwire.
Cobell v. Salazar
BLT: Cobell Settlement Deadline Extended to Jan. 2011
From BLT:
The extension for congressional authorization of the $3.4 billion settlement in a long-running Indian trust suit in Washington was pushed back today to January 2011, giving Congress more time to examine the deal.
Senior Judge Thomas Hogan of Washington federal district court expressed concern today that Congress has not approved the deal, first announced in December 2009. Hogan met this morning with Justice and Interior department lawyers and attorneys for lead plaintiff Eloise Cobell.
Cobell’s suit, filed in 1996 in the U.S. District Court for the District of Columbia, seeks a historical accounting of billions of dollars held in trust for the use of Indian land for oil, timber and minerals. The terms of the agreement call for $1.5 billion in payment to account holders. Nearly $2 billion would be dedicated to a land consolidation program.
The deadline for congressional authorization has been extended numerous times. Hogan today, repeating earlier public statements, urged Congress to act on the settlement, which he said was negotiated at arm’s length.
A team of Kilpatrick Stockton attorneys, working with D.C. solo practitioner Dennis Gingold, represent Cobell. Deputy Secretary David Hayes of the Interior Department attended today’s session with Interior Solicitor Hilary Tompkins. The plaintiffs’ lawyers, including Gingold and Kilpatrick Stockton partner Keith Harper, met with the government attorneys in Hogan’s chambers for about 30 minutes before holding a public court session.
BLT: Cobell Lawyers Optimistic re: Settlement
From BLT:
The plaintiffs’ attorneys in a long-running Indian trust suit in Washington say they remain confident Congress will approve the $3.4 billion settlement, despite adjournment in the U.S. Senate yesterday without a vote.
The settlement, first announced last December, stalled in Congress amid concern over attorneys fees and equitable distribution of funds to potentially hundreds of thousands of class members.
The suit in the U.S. District Court for the District of Columbia, filed in 1996 by lead plaintiff Elouise Cobell, sought a historical accounting of billions of dollars held in trust by the federal government for accounts tied to oil, natural gas, minerals and timber.
The terms of the settlement have been changed to garner support among Senate Republicans, a lead attorney for the plaintiffs, Washington solo practitioner Dennis Gingold, said today. “There is reason to be optimistic,” Gingold said. “We uniquely have bipartisan support in an environment where you don’t see that often.”
Obama Vaguely Supportive of Cobell Settlement
An excerpt from BLT:
Also at the news conference, a reporter asked Obama whether he can commit to winning legislative approval of two settlements that would end major discrimination claims against the federal government: the Cobell and Pigford II settlements. The Cobell claims relate to unpaid royalties from natural resource extraction on American Indian lands, while the Pigford claims relate to disparate treatment for black farmers in U.S. Department of Agriculture programs.
Obama did not make a commitment, but he said he would try. “It is a fair settlement. It is a just settlement,” Obama said, appearing to conflate the two settlements. “We think it’s important for Congress to fund that settlement, and we’re going to continue to make it a priority.”
The lead lawyer for plaintiffs in the Cobell litigation has accused the White House of not making the settlement a priority.
Cobell Debate on Congress Blog
Read Eloise Cobell, Kimberly Craven, and Richard Monette battle it out (and the Craven piece that started it).
BLT Cobell Update
From BLT:
Members of Congress are still looking for a way to authorize two, billion-dollar agreements that would settle litigation involving the federal government and minority groups.
The House of Representatives had included authority for the settlements in a bill authorizing supplemental war funding. It passed the House July 1. But senators rejected that idea Thursday in the latest setback for the proposed $1.41 billion Cobell settlement for American Indians and $1.25 billion Pigford settlement for black farmers.
On Monday, Cobell Plaintiffs Moved to Withdraw the Cert Petition
According to Bill McAllister, Spokesman for Cobell Plaintiffs.
Will Cobell Be a Grant?
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:
SCOTUSblog lists two Indian law cases as “Petitions to Watch”
SCOTUSblog continues to not take any chances with Indian law cases, listing both Cobell v. Salazar and Arctic Slope Native Association v. Sebeliusas petitions to watch for tomorrow’s conference.
Links to our coverage of the Cobell cert petition and government opposition are here and here.
Cobell Deadline Extended to July 9
From BLT:
The lawyers in the long-running Cobell case have agreed to yet another extension to give the U.S. Senate more time to pass legislation to implement the $3.4 billion settlement resolving the Indian trust suit.
After the House of Representatives on May 28 passed the legislation approving the settlement, the plaintiffs’ lawyers and the Justice Department agreed to push back the deadline for the Senate to vote. That deadline was today. The new deadline is July 9.
“Inasmuch as the House has passed it and the Senate is actively considering legislation, we are hopeful it will be passed,” Kilpatrick Stockton co-managing partner William Dorris said today. Lead plaintiff Elouise Cobell is also represented by D.C. solo practitioner Dennis Gingold.
One issue that is posing a potential roadblock to a Senate vote is an amendment from Sen. John Barrasso (R-Wyo.) that would cap attorney fees in the case at $50 million. Cobell’s lawyers had agreed with the Justice Department that fees would be capped at about $100 million. The plaintiffs lawyers said they would argue for no lower than $50 million.
It remains unknown whether the Senate will even vote on Barrasso’s amendment. Cobell said in an open letter today to Indian Country that the settlement is terminated if there are any changes to its terms.
“Senator Barrasso knows this and he knows that adoption of his amendment would kill the settlement,” Cobell said in the letter. “Why? He is playing Washington politics because the dirty truth is that he would vote against the current Senate bill even if his amendment is adopted.”
Turtle Talk 
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