More Errors from Ms. Craven

These personal attacks do nothing but give aid and comfort to those who seek to deny justice to Native Americans.  Their goal is, for whatever reason, to kill the historic settlement Ms. Cobell has achieved.

But for Elouise Cobell’s class action lawsuit filed over 14 years ago, and vigorously litigated over those years, there would not be the historic settlement that has been agreed to by the government.

Ms. Craven can’t seem to get her facts straight or understand what ordinarily is required in fee petitions to a United States District Judge. She now charges baselessly that Ms. Cobell is misleading the public, the plaintiff class, and members of the United States Senate.

In that regard, first, as a matter of practice, attorneys and experts document their time and expenses.  Here, attorneys have documented their time contemporaneously to the tenth of an hour.

Second, the side agreement executed with the government confirms that time records will be furnished with plaintiffs’ fee request.  Except for privileged and other confidential information, all recorded information will be publicly available.

Third, Ms. Craven states that the phrase “where available” implies some sort of improper motive.  She continues to be confused.  “Where available” is included in a side agreement because at the time the agreement was executed, the inventory of available “contemporaneous” documentation for the more than 14 years of litigation had not been completed.  Over the protracted period of this case, records could have been misplaced or lost via computer malfunction or other problem.  The point is that time and charges will not be paid unless they are documented to the satisfaction of the Court.  Here, contemporaneous documentation will be submitted to the Court in support the application. It is “available.”

Fourth, Ms. Craven uniquely misconstrues one of the more than 80 published district court decisions in our litigation to assert that “Cobell plaintiffs are entitled to no monetary recovery whatsoever from the Courts.”  It is puzzling that Ms. Craven chooses to rely on a 2008 district court decision that concludes “that plaintiffs have properly asserted a claim for restitution [and] . . . this Court has both the jurisdiction and the power to adjudicate that claim[] and that the evidence supports an award in the amount of $455,600,000 . . . .”  Further, the Court went on to state that interest on a restitutionary award is also recoverable.  Notably, interest over 120 years is considerable.  Ms. Craven need only review her mortgage note(s) to understand the impact of accrued interest over a long period of time.  Most importantly, plaintiffs appealed that decision on other grounds and the Court of Appeals vacated the order and remanded the case back to the district court.

Fifth, what Ms. Craven dismisses as a “losing lawsuit” is in fact the most significant lawsuit ever litigated on behalf of Native Americans. The decisions enshrined in the district court’s opinions will resonate for generations and provide a road map for future breach of trust claims by both tribes and individuals. For the first time, individual Indian trust beneficiaries can look to a court of law to enforce trust responsibilities heretofore denied by the US Government. And, while more must be accomplished with respect to trust reform, the case has resulted in excess of $5 billion being appropriated to reform the broken trust management systems. Most significantly, for the first time ever each individual Indian trust beneficiary must receive current accountings of their trust assets – a fundamental trust duty owed by a trustee to its beneficiaries.

Sixth, inexplicably, Ms. Craven seems to take perverse pride in the fact that she would rather see 500,000 individual Indians receive no measure of justice. She, of course, is entitled to her opinion, but her opinion does not change comprehensive findings of fact and conclusions of law that are established in more than 80 published decisions in our case.  She should spend the time to review and try and understand them.

Seventh, Elouise Cobell has done more for individual Indian trust beneficiaries than anyone in this country. She has sacrificed mightily for her fellow class members and justice. Her integrity is beyond reproach and she has misled no one in her pursuit of justice for each of the 500,000 members of the class.  We attorneys are honored to represent her and the Cobell class.

Mr. Gingold is the lead attorney for the Indian Plaintiffs in Cobell versus Salazar.