Ruling clears way for appeals of Indian trust deal

By Matt Volz
Helena, Montana (AP) October 2011

A federal judge has cleared the path for appeals to move forward in a $3.4 billion U.S. government settlement over mismanaged American Indian land royalties, a ruling expected to further delay resolution of the 15-year lawsuit.

U.S. District Judge Thomas Hogan of the District of Columbia ruled that none of the challengers has to put up an $8.3 million bond before proceeding with an appeal.

Six separate notices of appeal have been filed since Hogan approved the settlement in August.

The settlement would resolve the lawsuit led by Blackfeet tribal member Elouise Cobell of Browning, Mont., on behalf of an estimated 500,000 Native American plaintiffs. The lawsuit claims U.S. officials stole or squandered billions of dollars in royalties owed over a century for land leased for oil, gas, grazing and other uses.

After the first three notices of appeal were filed, Cobell’s attorneys asked Hogan to require each appellant to put up an $8.3 million bond. They argued that an appeal could delay by a year or more the disbursement of money to the plaintiffs who have been waiting for 15 years, and many of them may not live to see the payments.

They also argued appeals would put off reforms and a planned consolidation of fractionated Indian land included in the settlement.

Lead attorney Dennis Gingold said last month the $8.3 million would cover lost interest, increased settlement administration costs, legal fees and assembling documents in the case.

Hogan denied the request. He said in his ruling that the plaintiffs’ attorneys inflated how much the appeals would cost and misrepresented the court’s record in issuing such appeal bonds.

“While the court is sympathetic to the plaintiffs’ concern that the appeals will delay the administration and distribution of the settlement to so many people who have waited so long for justice, that does not translate into a willingness by this court to quietly overlook the misleading case citations and unsupported legal argument” by the plaintiffs’ attorneys, the judge wrote.

Hogan ordered Cobell’s attorneys to explain whether their errors were intentional or the result of carelessness or haste.

Gingold, speaking through his spokesman Bill McCallister, said his legal team will conform with the order and explain and clarify its position.

Theodore H. Frank, the attorney for one of the appellants, Kimberly Craven of Boulder, Colo., had objected to the bond request, saying it would squelch any appeal.

“They were not interested in the $8 million. They were interested in preventing the D.C. circuit (court) from hearing what my client has to say,” Frank said.

Craven argues the lead plaintiffs abandoned their attempts to have the government account for how much money had been lost in exchange for a cash settlement, and then deprived other plaintiffs of a chance to opt out of the deal.

She also argues Cobell and the other lead plaintiffs stand to make so much money in the settlement that their interests in the deal are not the same as the other 500,000 plaintiffs. 

Frank estimated arguments in the appeal would not happen until early next year. He dismissed the plaintiffs’ objections about the settlement being delayed, saying the appeal deserves to be heard.

“The case has taken this long because that’s the way the class counsel has negotiated this case,” Frank said. “They had to have known that this would not get resolved before 2012.”