USCA Case #11-5205 Document #1335908 Filed: 10/17/2011 Page 1 of 147 NO. 11-5205 ORAL ARGUMENT HAS NOT BEEN SCHEDULED IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., Appellees, Kimberly Craven, Appellant, v. KENNETH LEE SALAZAR, Secretary of the Interior, et al., Appellees. On Appeal from the United States District Court for the District of Columbia, No. 1:96-cv-01285 TFH Opening Brief of Appellant Kimberly Craven CENTER FOR CLASS ACTION FAIRNESS LLC Theodore H. Frank 1718 M Street NW, No. 236 Washington, D.C. 20036 (703) 203-3848 Attorney for Appellant Kimberly Craven USCA Case #11-5205 Document #1335908 Filed: 10/17/2011 Page 2 of 147 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Undersigned counsel certifies the following: A. Parties and Amici The named plaintiffs-appellees are Elouise Pepion Cobell; Penny Cleghorn; Thomas Maulson; and James Louis Larose. They represent two certified classes. The Historical Accounting class consists of beneficiaries of Individual Indian Money accounts, alive as of September 30, 2009 (“the record date”) who had an IIM Account open during any period between October 25, 2004 and the record date and had at least one cash transaction credited to it, excluding those who had filed their own actions prior to the filing of the complaint in this case. The Trust Administration class consists of those individual Indian beneficiaries, alive as of the record date, who have or had IIM Accounts in the “Electronic Ledger Era” (from approximately 1985 to the present), as well as individual Indians who had a recorded or other demonstrable ownership interest in land held in trust or restricted status. The defendants-appellees are Ken Salazar, as Secretary of the Interior; Larry Echohawk, as Assistant Secretary of Interior–Indian Affairs; and Timothy Geithner, as Secretary of Treasury, all named in their official capacities. Ninety-two class members filed objections in the district court to the class action settlement on behalf of themselves and various other class members. Appellant Kimberly Craven is one of those objectors. Objectors Carol Eve Good Bear, Charles Colombe, and Mary Aurelia Johns each filed individual notices of appeal on September 30, 2011, and are listed on the i USCA Case #11-5205 Document #1335908 Filed: 10/17/2011 Page 3 of 147 docket as plaintiffs. Although listed on the district court docket as “Terminated,” other plaintiffs that have appeared before the district court are Earl Old Person and Mildred Cleghorn. Likewise, while listed on the district court docket as “Terminated,” other defendants that have appeared before the district court are the Department of the Interior; Bruce Babbitt, Gale Norton, and Dirk Kempthorne, each in their official capacity as Secretary of the Interior; Robert E. Rubin and Lawrence Summers, each in their official capacity as Secretary of the Treasury; Ada E. Deer, Kevin Gover, and Neal McCaleb, each in their official capacity as Assistant Secretary of the Interior; John D. Leahy; Edward B. Cohen; and Michael G. Rossetti, as Counsel to the Secretary of the Interior. Osage Nation, The Native American Rights Fund, and Mark Kester Brown intervened in the proceeding below. Currently listed on the district court docket as interested parties are Michael A. Hernandez, Delarick Evans, Verlita Sugar, Ortencia Ford, and Lori Villegas. Although listed on the district court docket as “Terminated,” other interested parties that have appeared before the district court are Kathleen Clarke, Joel Hurford, and Ronnie Levine. Quapaw Tribe of Oklahoma, National Congress of American Indians, and Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation participated as amici before the district court. In addition to Kimberly Craven, presently listed on the district court docket as movants are Eleni M. Constantine, Roberta Mcinerney, James Regan, Daniel Mazella, ii USCA Case #11-5205 Document #1335908 Filed: 10/17/2011 Page 4 of 147 Randall Lewis, the United States of America, the Department of the Treasury, Ingrid D. Falanga, Michael B. Jandreau, Accenture LLP, Michael P. Bentzen, Eddie Jacobs, Hart M. Rossman, James E. Cason, Glen Gillett, Michael J. Quinn, Terry Petrie, Richard J. Pierce Jr., Frederick H. Banks, Ben Carnes, William A. Monroe, the Quapaw Tribe of Oklahoma, Dow Jones & Company, Inc., Albert Lee Bynum, Intertribal Monitoring Association for Indian Trust Funds, Native American Industrial Distributors, Inc., National Congress of American Indians, and Donnelly R. Villegas. Other movants that have appeared before the district court and are listed as terminated are Timothy S. Elliott, as Deputy Assistant Solicitor, Department of the Interior; Edith R. Blackwell, as Deputy Associate Solicitor, Department of the Interior; Robert Lamb; James Douglas, as Chief of Staff, Office of the Special Trustee for American Indians, Department of the Interior; Dominic Nessi; M. Sharon Blackwell; Hila Manuel; Steven Swanson; John Berry; James A. Eichner; Phillip A. Brooks; John S. Most; Glenn Schumaker; Chester Mills; Lois J. Schiffer; Anne Shields; David Shuey; Terry Steele; Terrance Virden; Deborah Maddox; John A Bryson; William G. Myers, III; David Shilton; Daryl W. White; Tom C. Clarke II; Sabrina McCarthy; Peter D. Coppelman; Kenneth Paquin; Kenneth Russel; Willa B. Perlmutter; Charles W. Findlay; Michael Carr; James Simon; Sarah Himmelhoch; Bert T. Edwards; J. Steven Griles; W. Hord Tipton; and Kenneth F. Rossman. Leatrice Tanner-Brown; William Warrior; and Harvest Institute Freedman Federation, LLC unsuccessfully moved to intervene, and appealed the denial of their iii USCA Case #11-5205 Document #1335908 Filed: 10/17/2011 Page 5 of 147 motion to intervene and the final judgment; that appeal is pending in this Court (No. 11-5158). On information and belief, the Competitive Enterprise Institute will make a motion to appear as amicus in this appeal. A number of Indians, Indian tribes, and Indian organizations have made inquiries about appearing as amici in this appeal, but have not yet confirmed that they will seek to do so. B. Rulings Under Review Craven appeals the final judgment of the district court dated August 4, 2011 (Dkt. 3853) (A837–55); the July 27, 2011 order granting final approval of the settlement (Dkt. 3850) (A784–836); the December 21, 2010 orders granting preliminary approval of the settlement and certifying the trust administration class (Dkt. Nos. 3667 and 3670) (A647–53); and the June 8, 2011 order striking Craven’s opposition brief to the settling parties’ motions for final approval (Dkt. 3799) (A746). The district court’s July 27, 2011 order incorporated the district court’s oral ruling from the bench on June 20, 2011 (found at Dkt. 3839, Ex. 3) (A771–83). The district court’s decision in the July 27, 2011 order to forbid opt-outs from the Historical Accounting class was explained in opinions dated June 17, 2011 (Dkt. 3828) (A747– 52) and September 12, 2011 (Dkt. 3867) (A867–74) relating to motions of the Quapaw Tribe to intervene. All of these rulings were issued by Senior Judge Thomas F. Hogan. iv USCA Case #11-5205 Document #1335908 Filed: 10/17/2011 Page 6 of 147 C. Related Cases This case has previously been before the Court on the following appeals and writs of mandamus: Nos. 08-5500 and 08-5506, Cobell v. Salazar, 573 F.3d 808 (D.C. Cir. 2009) No. 05-5269, Cobell v. Kempthorne, 455 F.3d 317 (D.C. Cir. 2006) No. 05-5388, Cobell v. Kempthorne, 455 F.3d 301 (D.C. Cir. 2006) No. 03-5288, In re Kempthorne, 449 F.3d 1265 (D.C. Cir. 2006) No. 05-5068, Cobell v. Norton, 428 F.3d 1070 (D.C. Cir. 2005) No. 03-5314, Cobell v. Norton, 392 F.3d 461 (D.C. Cir. 2004) Nos. 03-5262 and 04-5084, Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004) Nos. 03-5047 to 03-5050 and 03-5057, In re Brooks, 383 F.3d 1036 (D.C. Cir. 2004) No. 02-5374, Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003) Nos. 00-5081 and 00-5084, Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001) Appeal No. 11-5158 (D.C. Cir.) from this case, involving the failed intervention of two individuals and an organization that were not members of the class, is also pending in this Court. Craven does not believe that the issues in No. 11-5158—which were previously addressed in Harvest Inst. Freedmen Fed’n v. United States, 80 Fed. Cl. 197, 199 (2008), aff’d, 324 Fed. App’x 923 (Fed. Cir. 2009); Harvest Inst. Freedmen Fed’n v. United States, No. 2:10-cv-449, Dkt. 10 (S.D. Ohio May 25, 2010); and Harvest Inst. Freedman Fed’n, LLC v. United States, No. 2:10-cv-1131 (S.D. Ohio) (Jan. 31, 2011), appeal pending No. 11-3113 (6th Cir.)—are relevant to Craven’s appeal. A motion to v USCA Case #11-5205 Document #1335908 Filed: 10/17/2011 Page 7 of 147 dismiss for lack of jurisdiction is pending. Harvest Inst. Freedman Fed’n’s Sixth Circuit appeal No. 11-3113 relates to this litigation in that it challenges the constitutionality of the Claims Resolution Act of 2010, albeit on grounds unrelated to Craven’s appeal. Appeal No. 11-5229 (D.C. Cir.) from this case was noticed by three class members, Lori Villegas, Ortencia Ford, and Donnelly R. Villegas, on September 1, 2011. These appellants did not object to the approval of the settlement, have not moved to intervene, and do not appear to have appellate standing to challenge the final judgment. Appeal No. 11-5270 (D.C. Cir.) from this case was noticed by objector Carol Eve Good Bear on September 30, 2011.