United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 16, 2012 Decided May 22, 2012

No. 11-5205

ELOUISE PEPION COBELL, ET AL.,

APPELLEES

KIMBERLY CRAVEN,

APPELLANT

v.

KENNETH LEE SALAZAR,

SECRETARY OF THE INTERIOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:96-cv-01285)

Theodore H. Frank argued the cause and filed the briefs

for appellant. 

Anand V. Ramana was on the brief for amicus curiae

Competitive Enterprise Institute in support of appellant.

Thomas M. Bondy, Attorney, U.S. Department of Justice,

argued the cause for federal appellees. With him on the briefs

were Tony West, Assistant Attorney General, Ronald C.

Machen, Jr., U.S. Attorney, and Adam C. Jed and Brian P.
2

Goldman, Attorneys. R. Craig Lawrence, Assistant U.S.

Attorney, entered an appearance. 

Adam H. Charnes argued the cause for appellees Elouise

Pepion Cobell, et al. With him on the briefs were David C.

Smith, Richard D. Dietz, Michael Alexander Pearl, Keith M.

Harper, Dennis M. Gingold, William E. Dorris, and Elliott

Levitas. 

Heidi A. Drobnick was on the brief for amicus curiae

Indian Land Tenure Foundation in support of appellees.

Before: ROGERS, TATEL and BROWN, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: This is an appeal from the

approval of a class action settlement agreement related to the

Secretary of the Interior’s breach of duty to account for funds

held in trust for individual Native Americans. Class member

Kimberly Craven challenges the fairness of the settlement,

contending principally that an impermissible intra-class

conflict permeates the scheme to compensate class members

for surrendering their established right to injunctive relief and

that this conflict undermines the commonality, cohesiveness,

and fairness required by Federal Rule of Civil Procedure 23

and due process. The record, however, fails to confirm either

the existence of the purported intra-class conflict or a

violation of due process. Rather, the record confirms that the

two plaintiff classes possess the necessary commonality and

adequate representation to warrant certification, and that the

district court, therefore, did not abuse its discretion in

certifying the two plaintiff classes in the settlement or in

approving the terms of the settlement as fair, reasonable, and

adequate pursuant to Rule 23(e). Accordingly, we affirm the

judgment approving the class settlement agreement.
3

 I.

In 1996, Eloise Cobell and four other Native Americans

filed a class action alleging a breach of fiduciary duties by the

Secretary in managing the class members’ “Individual Indian

Money” (“IIM”) trust accounts. “The bulk of the trust assets

‘are the proceeds of various transactions in land allotted to

individual Indians under the General Allotment Act of 1887,

known as the Dawes Act.’” Cobell v. Salazar (“Cobell

XXII”), 573 F.3d 808, 809 (D.C. Cir. 2009) (citation omitted). 

The class, certified pursuant to Federal Rule of Civil

Procedure 23(b)(1)(A) and (b)(2), sought injunctive and

declaratory relief in the form of an historical accounting. Id.

1

Their right to an historical accounting arose under the

American Indian Trust Fund Management Reform Act of

1994 (“the 1994 Act”), 25 U.S.C. § 162a et seq. (2006); id. §§

4001–4061. Cobell XXII, 573 F.3d at 810. The Act did not

specify, however, the proper scope of such an accounting or

the methodology by which it could be accomplished. Id. at

813; Cobell XX, 532 F. Supp. 2d at 42. During the initial

stages of the litigation, the Secretary proposed several plans

for accomplishing an accounting. See Cobell XX, 532 F.

Supp. 2d at 47–56. For example, in a 2002 report to

Congress, the Secretary described plans “to conduct a

transaction-by-transaction reconciliation of all funds in the

IIM accounts through December 31, 2000,” and to provide

historical statements of account for each account. Id. at 48. 

The estimated cost was $2.425 billion. Id. Congress

“request[ed] that the Secretary ‘promptly consider ways to

reduce the costs and the length of time necessary for an

1

 The background and the course of the litigation prior to the

proposed settlement agreement entered into on December 7, 2009, can

be found in Cobell v. Norton, 240 F.3d 1081, 1086–94 (D.C. Cir.

2001), and Cobell v. Kempthorne (“Cobell XX”), 532 F. Supp. 2d 37,

39–42 (D.D.C. 2008). 
4

accounting . . . [including] alternative accounting methods.’” 

Id. The Secretary then developed a plan in 2003, which was

to rely on statistical sampling and use only limited

transaction-by-transaction reconciliation, at an estimated cost

of $335 million. Id. at 48–49. “Between 2003–2007,

however, not only did Interior receive only $127.1 million in

appropriations for its IIM historical accounting work, but it

also discovered that the accounting process it had envisioned

would be both more costly and more time-consuming than it

had anticipated.” Id. at 56. Consequently, as the litigation

entered its eleventh year, the issue of the proper scope and

methodology of an historical accounting had yet to be

resolved. In October 2007, the district court held a trial to

address these and other questions. 

At trial, the Secretary offered evidence regarding the

latest plan (“the 2007 Plan”) for accomplishing an historical

accounting in compliance with the 1994 Act. The 2007 Plan

relied on statistical sampling for account and transaction

reconciliation to an even greater extent than the 2003 Plan. In

addition, the total number of transactions to be reconciled was

significantly reduced, and the provision of asset statements to

account beneficiaries was eliminated. See id. at 56–58. The

Secretary’s explanation for these changes to the scope and

methodology of the proposed accounting echoed those offered

in 2003 for tailoring the 2002 proposal: “Original cost and

time estimates were off by several multiples, and Congress

failed to appropriate the funds Interior had requested and

expected.” Id. at 58. The 2003 Plan was now estimated to

cost $1.675 billion to complete, with an average cost of

$3,000 to $3,500 for reconciliation of a single transaction. Id. 

In contrast, the Secretary estimated completion of the 2007

Plan would cost $271 million. Id. at 81. Despite the reduced

ambitions of the 2007 Plan, the average cost of the accounting

for a single transaction still would likely exceed the average

value of that transaction, id. at 92, and, more significantly, the
5

2007 Plan would “not provide beneficiaries with information

about the assets from which IIM funds ha[d] been derived,”

id. at 98. 

Given this state of affairs and the likelihood of many

more years of litigation, the parties entered into settlement

negotiations in the summer of 2009. On December 7, 2009,

the parties entered into a class settlement agreement. See

Class Action Settlement Agreement, Ex. 2 to Joint Mot. for

Prelim. Approval of Settlement, Cobell v. Salazar (No. 1:96-

cv-01285) (Dec. 10, 2010). We describe its basic parts:

First, an amended complaint would be filed setting forth

two classes: 

(1) the Historical Accounting Class, consisting of

individual beneficiaries who had an IIM account (with at least

one cash transaction) between October 25, 1994 (the date on

which the 1994 Act became law) and September 30, 2009 (the

“record date” of the parties’ agreement),2 id. § A ¶ 16, and

(2) the Trust Administration Class, consisting of the

beneficiaries3 who had IIM accounts between 1985 and the

date of the proposed amended complaint as well as

individuals who, as of September 30, 2009, “had a recorded or

other demonstrable ownership interest in land held in trust or

restricted status, regardless of the existence of an IIM

2

 The Historical Accounting Class excluded individuals who,

prior to the filing of the original class action, filed actions on their own

behalf for accountings. 

3

 The Trust Administration Class excluded individuals who,

prior to the filing of the amended complaint on December 21, 2010,

filed actions on their own behalf for claims that would have otherwise

fallen under the claim release entered into by the Trust Administration

Class.
6

[a]ccount and regardless of the proceeds, if any, generated

from the [l]and,” id. § A ¶ 35. 

The settlement envisioned that the Historical Accounting

Class would be certified pursuant to Rule 23(b)(1)(A) and

23(b)(2), in the alternative, with no individual right to opt out

of the class; the Trust Administration Class would be certified

pursuant to Rule 23(b)(3) with an opt-out right. Id. § B ¶ 4.b.

Second, the Secretaries of Interior and Treasury would

deposit $1.412 billion into a settlement fund. Id. § E ¶ 2.a. 

From this fund, each member of the Historical Accounting

Class would receive $1,000, id. § E ¶ 3.a, in exchange for the

release of the Secretary of Interior’s “obligation to perform a

historical accounting of [the class member’s] IIM Account or

any individual Indian trust asset,” id. § I ¶ 1. The Trust

Administration Class members would receive a baseline

payment of $500 plus an additional pro rata share of the

remaining settlement funds in accordance with an agreedupon compensation formula. Id. § E ¶ 4.b. The Trust

Administration Class payment would release the Secretary

from liability arising out of any past mismanagement of IIM

accounts and trust properties. The scope of that release would

not be unlimited: for example, claims for payment of existing

account balances, breach-of-trust claims arising after

September 30, 2009, and water-rights claims would fall

outside of its scope. Id. § I ¶¶ 2–3. 

Third, in addition to the class and compensation structure,

the proposed settlement provided for:

(1) establishment of a $1.9 billion Trust Land

Consolidation Fund for the Secretary to acquire fractional

interests in trust lands, id. § A ¶ 36, § F ¶ 2, § G ¶ 2.c;

(2) establishment of an Indian Education Scholarship

Fund, id. § G ¶ 1;
7

(3) potential tax-exempt status, at the election of

Congress, for funds received by the class members, see id.

§ H;

(4) reasonable attorneys' fees, expenses, and costs for

class counsel, to be awarded at the discretion of the district

court, id. § J; and, 

(5) incentive payments for the class representatives, to be

awarded at the discretion of the district court, id. § K.

The proposal also stated that the class settlement agreement

was contingent upon the enactment of legislation by Congress

to authorize certain aspects of the settlement. Id. § B ¶ 1. 

In 2010, Congress enacted the Claims Resolution Act of

2010 (“the CRA”), Pub. L. No. 111-291, 124 Stat. 3064 (Dec.

8, 2010), which “authorized, ratified, and confirmed” the

proposed settlement, id. § 101(c)(1). It also authorized the

district court to certify the Trust Administration Class without

regard to the requirements of the Federal Rules of Civil

Procedure, and provided that such a certification would be

treated as a certification pursuant to Rule 23(b)(3). Id.

§ 101(d)(2). The CRA appropriated funds including funds for

the settlement and land-consolidation funds. Id.

§ 101(e)(1)(C)(I), (j)(1)(A). Settlement funds received by

class members would be tax-exempt under the Internal

Revenue Code. Id. § 101(f). Congress also increased the total

amount of the settlement fund by $100 million, from $1.412

billion to $1.512 billion, id. § 101(j)(1)(A), resulting in

approximately a $300 increase in the baseline payment (from

$500 to $800) due members of the Trust Administration

Class.4

 

4 See Decl. of Michelle D. Herman at ¶¶ 38, 39, Cobell v.

Salazar (No. 1:96-cv-01285) (May 16, 2011).
8

On December 10, 2010, the parties filed a joint motion for

preliminary approval of the class settlement agreement, which

the district court granted on December 21, 2010. The district

court also certified the Historical Accounting Class pursuant

to, in the alternative, Rule 23(b)(1)(A) and (b)(2), and the

Trust Administration Class pursuant to, in the alternative,

CRA § 101(d)(2) and Rule 23(b)(3). Appellant Kimberly

Craven and ninety-one other class members filed timely

objections. At a fairness hearing on June 20, 2011, the district

court heard testimony from objecting class members,

including Craven’s intra-class conflicts objections, along with

arguments in support of the settlement agreement by counsel

for the plaintiff class and the Secretary. At the close of the

hearing the district court explained why it concluded the

settlement was fair, reasonable, and adequate. We summarize

relevant parts.

To begin, the district court acknowledged the objectors’

concerns and that the settlement “may not be . . . as fortuitous

as some wished and do[es not] provide redress for their

wrongs.” Fairness Hr’g Tr. at 217. Nonetheless, the district

court explained that it was “not persuaded that striking a

different balance would have been either achievable in the

negotiating process or more favorable to more members of the

class,” id., nor “that a better result would have been achieved

by taking this case to trial,” id. at 218. First, the parties were

facing “years of litigation . . . with rather dubious chances of

ultimate success.” Id. at 213. They had “found a way out of

the morass that the Court of Appeals said [it] saw no easy exit

from,” and “after 15 years of bitter litigation [the parties had]

. . . entered into a settlement agreement to resolve the issues in

this case, . . . not to resolve every single claim that the Native

Americans may have against the government.” Id. at 214. 

Second, “[t]his settlement at least now provides some measure

of certainty for most class members,” whereby “[t]he vast

majority of class members are entitled to automatic recovery
9

under the historical accounting, and . . . those under the trust

accounting would [be] provide[d] other monies that they can

show they are due.” Id. at 217. The settlement does so,

moreover, in the absence of evidence of an intra-class conflict

among the Historical Accounting Class by providing a nondamages payment of $1,000 to each class member. As for the

Trust Administration Class, it has the commonality,

numerosity, and typicality required by Rule 23. See id. at 233. 

Third, the settlement is reasonable and adequate because it

“affords substantial benefits,” with “a total settlement of $3.4

billion.” Id. at 235. Obtaining Congressional approval and

avoiding Presidential disapproval of the settlement was, the

district court observed, “a remarkable accomplishment by all

sides.” Id. at 215.

By order of July 27, 2011, the district court granted final

approval to the class settlement agreement that the lawsuit be

settled and that the United States pay $3.412 billion — $1.512

billion to the settlement fund and $1.9 billion to the landconsolidation fund — in accordance with the terms of the

settlement agreement and the CRA. Among other actions, the

order set forth the scope of the two plaintiff classes and their

respective claim releases, listed the individuals who had

chosen to opt out of the Trust Administration Class, and

awarded attorneys’ fees and incentive payments to the

remaining class representatives, while denying most requested

additional expenses.5

 A final judgment was signed and

entered August 4, 2011. Craven appeals the judgment and

related orders. 

5

 Plaintiffs’ attorneys were awarded $99 million in fees. 

Eloise Cobell, James Louis LaRose, Penny Cleghorn, and Thomas

Maulson — the class representatives — were awarded incentive

payments respectively of $2 million (inclusive of her expenses),

$200,000, $150,000, and $150,000. 
10

II.

A.

As an initial matter, Craven contends that the law of the case

bars approval of the settlement agreement. She points to

Cobell XXII, where this court vacated the judgment in favor of

the plaintiff class and the order of a restitution award, holding

that such an award would be arbitrary, inaccurate, and unfair

to some class members in the absence of an historical

accounting, 573 F.3d at 813. A lump-sum award, whose

magnitude was of uncertain origin, the court stated, was an

improper equitable judgment for the class’s claim; “without an

accounting, it is impossible to know who is owed what,” and

so “[t]he best any trust beneficiary could hope for would be a

government check in an arbitrary amount.” Id. Although

Cobell XXII did address the issue of a remedy for the

historical-accounting claim, the law-of-the-case doctrine has

no application here. 

Under the law-of-the-case doctrine, “the same issue

presented a second time in the same case in the same court

should lead to the same result.” LaShawn A. v. Barry, 87 F.3d

1389, 1393 (D.C. Cir. 1996) (en banc) (emphasis in original). 

Cobell XXII involved the same case, the same court, and the

same parties as the current appeal, but the court’s holding

arose in a different context at an earlier stage of the litigation

and the statements with regard to its holding spoke to a

different issue — one that did not involve the terms of the

class settlement agreement now under review. The court did

not address, nor could it given the stage of the proceedings, the

propriety or fairness of a two-class settlement involving pro

rata as well as per capita payments. The distribution method

for the lump-sum award had not yet been determined and so

could not have been at issue in Cobell XXII, see Cobell v.

Kempthorne (“Cobell XXI”), 569 F. Supp. 2d 223, 253 (D.D.C.
11

2008). Furthermore, the factors that guided the exercise of the

district court’s equitable power in addressing the claims for

injunctive and declaratory relief under review in Cobell XXII,

are distinct from those that govern the district court’s approval

of a settlement. Compare Cobell XXII, 573 F.3d at 813

(discussing the interplay of the 1994 Act and equitable

principles in determining scope of an historical accounting)

with FED. R. CIV. P. 23(e) (setting the procedure for approving

a class settlement). 

The class settlement agreement was the result of

discussions post-dating Cobell XXII in which the parties,

facing nigh insurmountable obstacles to achieving their

original goal, decided to pursue another approach to resolving

their protracted differences. Given the distinction between

Cobell XXII and the current appeal, the law of the case does

not foreclose approval of the class settlement agreement. To

the extent Craven suggests that the lawsuit could be settled

only for some type of historical accounting but not for

monetary relief, her contention fails, see infra Part II.B; to the

extent she contests the fairness of the distribution scheme, her

contentions also fail, see infra Part II.C.

B.

Craven contends with respect to the Historical Accounting

Class that “a mandatory [Rule] 23(b)(2) class settlement

without [an] opt-out right is inappropriate where relief is

predominantly monetary, especially when individual class

members are required to waive rights to injunctive relief

already won in litigation.” Appellant’s Br. at 28

(capitalization removed). This argument mischaracterizes the

Historical Accounting Class.

Rule 23(b)(2) provides for class certification where “the

party opposing the class has acted or refused to act on grounds

that apply generally to the class, so that final injunctive relief 
12

. . . is appropriate respecting the class as a whole.” FED. R.

CIV. P. 23(b)(2). Just such a circumstance presents itself here:

the Secretary refused to provide an historical accounting to

IIM account holders; their claim for injunctive and declaratory

relief in Count I of the amended complaint applied to the

Historical Accounting Class as a whole. 

Craven disagrees. The $1,000 per capita settlement

payment, she maintains, monetizes the historical-accounting

claims so that what was a uniform, indivisible remedy

becomes divisible and individualized, and therefore

certification of the Historical Accounting Class pursuant to

Rule 23(b)(2) is precluded by Wal-Mart Stores, Inc. v. Dukes,

131 S. Ct. 2541, 2557–58, 2560 (2011). This is so, Craven

says, because the historical accounting has greater value to

class members with significant trust-mismanagement claims,

who may use the information from the accounting to obtain

substantial monetary relief, than to those with negligible trustmismanagement claims for whom the accounting may provide

little or no benefit. In other words, because some plaintiffs

stand to gain more from claims based on the information an

historical accounting would produce, the injunctive relief

sought is worth more to them than it is to other class members. 

Assuming that the $1,000 per capita settlement payment

monetized the requested injunctive relief, certification of the

Historical Accounting Class as a Rule 23(b)(2) class was

nonetheless appropriate because of the unusual circumstances

surrounding this litigation. Craven’s argument ignores that the

record developed through extensive and hard-fought litigation

indicates that the different interests she alleges likely do not

exist and that even if they do exist, they would not be revealed

by the type of sampling-heavy accounting that would almost

certainly occur if the plaintiff class prevailed in the litigation. 

See Fairness Hr’g Tr. at 213, 218; Cobell XX, 532 F. Supp. 2d

at 56, 103. Interior had performed a fairly extensive
13

accounting in the course of the litigation but found only minor

discrepancies. At trial, the district court observed that “one

permissible conclusion from the record would be that the

[Secretary] has not withheld any funds from plaintiffs’

accounts.” Cobell XXI, 569 F. Supp. 2d at 238. This court’s

decision in Cobell XXII placed significant limits on the

Secretary’s accounting duty, clarifying that Interior need only

provide “the best accounting possible . . . with the money that

Congress is willing to appropriate.” 573 F.3d at 813. Given

that any additional accounting funded by Congress would

likely rely heavily on statistical sampling, even if latent intraclass conflicts did exist, they would be unlikely ever to be

discovered. All of this suggests that the information produced

from an historical accounting is not likely to be worth

significantly more to some class members than to others, and

thus the $1,000 settlement payment is properly viewed as nonindividualized and does not run afoul of Wal-Mart.

6

Moreover, this case is extraordinary in that Congress not

only expressly authorized, ratified, and confirmed the

settlement, but also appropriated $3.4 billion to fund it.

Although Congress made no express findings about the

propriety of (b)(2) certification of the Historical Accounting

Class, given the lengthy litigation and the limited funds

available for further accounting, Congress’s judgment that

uniform payments would adequately compensate class

6

 See McReynolds v. Merrill Lynch, Pierce, Fenner & Smith,

Inc., 672 F.3d 482, 490–92 (7th Cir. 2012) (citing FED. R. CIV. P.

23(b)(2), (c)(4); Allen v. Int’l Truck & Engine Corp., 358 F.3d 469,

472 (7th Cir. 2004) (citing Jefferson v. Ingersoll Int’l Inc., 195 F.3d

894, 898–99 (7th Cir. 1999))); Gooch v. Life Investors Ins. Co. of Am.,

672 F.3d 402, 433 (6th Cir. 2012); see also 2 ALBA CONTE &

HERBERT B. NEWBERG, NEWBERG ON CLASS ACTIONS § 4:14, at 105,

§ 4:20, at 145 (4th ed. 2002 & Supp. 2011).
14

members for an accounting right that it created carries

significant weight and sets this case apart from others.

C.

Craven also contends that the Trust Administration

Class’s distribution scheme is unfair under Federal Rule of

Civil Procedure 23(e) “because it bears no relation to the

underlying claims and perversely undervalues the claims of

the most injured class members while providing windfalls to

class members who have suffered little or no injury.” 

Appellant’s Br. at 23 (capitalization removed). Her challenge

rests again on an alleged intra-class conflict that arises from

the distribution scheme’s under- and over-compensation of

class members. Although disclaiming any suggestion that

Rule 23(e) fairness requires a perfect allocation of payments

among individual class members, see Appellant’s Br. at 25,

Craven nevertheless maintains that under the existing

distribution formula, some members of the Trust

Administration Class likely possess more valuable claims than

do others and therefore the per capita baseline payment undercompensates the former while over-compensating the latter, an

inequity that the pro rata payment does not remedy. As the

district court found, however, the distribution scheme is fair,

Fairness Hr’g Tr. at 219, and “[i]t is hard to see how there

[c]ould be a better result,” id. at 218, because Craven offers no

persuasive evidence to support her claim of unfair

compensation. Absent such evidence, Craven’s intra-class

conflict contention cannot undermine the overall fairness of

the distribution scheme and she thus fails to demonstrate an

abuse of discretion by the district court. See Richards v. Delta

Air Lines, Inc., 453 F.3d 525, 530 (D.C. Cir. 2006); Pigford v.

Glickman, 206 F.3d 1212, 1216 (D.C. Cir. 2000). 

1. The Secretary initially questioned Craven’s standing to

present this challenge because he understood her to claim only

injuries to third parties and not to herself. See Appellees’ Br.
15

at 43 n.7. Craven’s declaration disposes of that conjecture; it

identifies how she is personally injured as a result of the

district court’s certification of both classes.7

 Craven Decl. ¶¶

6–7, 11; see also 28 U.S.C. § 1653; Am. Library Ass’n v. FCC,

401 F.3d 489, 494 (D.C. Cir. 2005). Moreover, the

Secretary’s suggestion overlooks the fact that the two major

components of the settlement — the Historical Accounting

Class and the Trust Administration Class — are inextricably

intertwined. The historical accounting that the plaintiff class

sought — but which is taken away by the settlement — would

have provided evidence of the value of each class member’s

IIM account and thereby shown, among other things, whether

there was an intra-class conflict. The settlement agreement

makes the challenges unseverable. See Class Action

Settlement Agreement, § M ¶ 6. Craven thus has established a

7

 By sworn declaration, submitted in response to the court’s

call for supplemental briefing on standing, Craven states that she is

“prejudiced by the settlement in multiple respects.” Craven Decl. ¶ 2. 

Craven holds an interest in real property held in trust by the Secretary. 

Id. at ¶¶ 3, 5. Under the class settlement agreement, she is, according

to the settlement administrator, entitled to a per capita payment of

approximately $1,800 and a pro rata payment of approximately $600. 

Id. at ¶ 5. “Every dollar that the distribution formula provides to

overcompensate per capita recipients thus disadvantages the subclass

of class members like [Craven] who are entitled to pro rata

distributions.” Id. at ¶ 6. Craven further declares that her pro rata

distribution will be reduced as a result of incentive payments to the

class representatives. Id. Additionally, Craven states, and specifically

explains a basis for, her belief that she has “a meritorious claim for

trust mismanagement worth more than the approximately $2400 [she]

will receive in the settlement.” Id. at ¶ 7. In a similar fashion, she

supports her belief that she “may have other claims for trust

mismanagement” in connection with her real property that she is

“unaware of because [she has] not yet been able to exercise [her]

rights to a[n] historical accounting,” rights which were extinguished

by the settlement, id. at ¶ 11. See id. at ¶¶ 8–11.
16

non-speculative basis for asserting an “injury in fact,” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992), that gives her

standing to challenge not only the certification of the

Historical Accounting and Trust Administration Classes but

also the fairness of the Trust Administration Class’s

distribution scheme. Any other conclusion would prove a

bitter irony for those who have lost their earned right to an

historical accounting under the 1994 Act. See Union Asset

Mgmt. Holding A.G. v. Dell, Inc., 2012 WL 375249, at *2 (5th

Cir. Feb 7, 2012) (citing Devlin v. Scardelletti, 536 U.S. 1, 6–7

(2002)); cf. In re Vitamins Antitrust Class Actions, 215 F. 3d

26, 28–29 (D.C. Cir. 2000). 

2. Although Craven has standing to challenge the fairness

of the distribution scheme on the basis of the alleged intraclass conflict, her contention fails on the merits. As an initial

matter, Craven’s discussion of a hypothetical conflict is an

inadequate basis for vacating the class settlement agreement.

See Eubanks v. Billington, 110 F.3d 87, 98 (D.C. Cir. 1997). 

And her concrete examples fare no better. Craven references

congressional testimony (attached to a supplemental brief that

the district court struck as untimely, see infra Part II.E)

regarding the value of potential claims held by a particular

class member. Other evidence indicates that the class

member’s ancestor likely released his claim to oil and gas

royalties in exchange for a lump-sum payment from his tribe

when the tribal council, pursuant to a 1919 congressional

Indian Appropriations Act, asserted tribal mineral rights.8

 See

also Cobell XX, 532 F. Supp. 2d at 95–97. Even assuming

those claims survived, that class member, like any other class

8 See HISTORICAL RESEARCH ASSOCS., MINERAL LEASING ON

ALLOTTED INDIAN LANDS: U.S. GEOLOGICAL SURVEY INVOLVEMENT

& HISTORICAL RECORDS ASSESSMENT 24–29 (2000) (labelled

“Privileged and Confidential,” but appearing in Pls.-Appellees’ public

appendix at 118–23).
17

member who is allegedly under-compensated by the

distribution formula, could have opted out of the Trust

Administration Class; the record indicates the class member at

issue declined to do so. 

Indeed, the existence of the opt-out alternative effectively

negates any inference that those who did not exercise that

option considered the settlement unfair. The district court,

although acknowledging the possibility that some class

members may not have read or fully understood the

settlement-notice documents, was satisfied that the opt-out

provision fulfilled its purpose of protecting objecting class

members, Fairness Hr’g Tr. at 225, finding that the “extensive

and extraordinary notice” procedures, id. at 230, ensured

“hundreds of thousands” of class members “knew about th[e]

settlement and understood what they were getting into and

approved it,” id. at 238. Craven does not suggest these

findings are clearly erroneous. See FED. R. CIV. P. 52; In re

Vitamins Antitrust Class Actions, 327 F.3d 1207, 1209 (D.C.

Cir. 2003).

Other portions of the record also contradict the inequity

Craven alleges. The historical-accounting records examined

thus far have revealed only minor errors in trust accounting. 

In 2007, Interior reported that it successfully traced 94.7% of

over 47 million IIM transactions occurring between 1985 and

2007,9

 “reflect[ing] the reality that, in the absence of some

kind of equitable evidentiary presumption in favor of the

plaintiffs, one permissible conclusion from the record would

be that the government has not withheld any funds from

plaintiffs’ accounts,” Cobell XXI, 569 F. Supp. 2d at 238. 

9

 See DEPT’T OF THE INTERIOR, OFFICE OF HISTORICAL TRUST

ACCOUNTING,DATA COMPLETENESS VALIDATION:INTERIM OVERALL

REPORT 28 (2007) (Pls.-Appellees’ App’x 194).
18

Craven’s attempt to support her intra-class conflict attack

by turning, in her reply brief, to the accounting received by the

class representatives is not well taken. She maintains that,

prior to the settlement agreement, the class representatives

received historical accountings that showed their trust claims

to be of little value; their interests therefore were in conflict

with those of the rest of the class members who did not know

how they would fare under the distribution scheme. First, as

discussed, few if any class members are likely to have trust

claims of substantial value. Second, even assuming Craven is

properly responding to Plaintiffs-Appellees’ argument that

there is no conflict among unnamed class members, see Am.

Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir.

2008), and that Craven could show that the distribution

scheme did over-compensate the class representatives, she has

still failed to present persuasive evidence of class members

who are under-compensated by the distribution scheme and

thus failed to demonstrate the alleged conflict. Craven’s

evidence also does not establish that the distribution scheme

over-compensates the class representatives. Only a partial

accounting of the class representatives’ IIM accounts was

performed in 2001, which revealed “small variances” in the

analyzed transactions. Cobell XX, 532 F. Supp. 2d at 50. The

class representatives thus stand in the same position as all

other class members — lacking the historical accounting to

which they are entitled under the 1994 Act and therefore

lacking accurate information from the Secretary of the value

of their claims. 

Furthermore, as mentioned, the record indicates that any

feasible accounting would be unlikely to provide evidence of

the alleged intra-class conflict. Craven’s position leaves this

problem unaddressed, neglecting to account for the changed

circumstances during the fifteen years between the

commencement of this litigation and its settlement in 2011. 

By the time the parties entered settlement negotiations
19

following Cobell XXII, it had become clear that the Secretary

would be unable to perform an accounting of the IIM trust

under the 1994 Act with the degree of accuracy desired by the

plaintiff class. See Cobell XXII, 573 F.3d at 813–15; Cobell

XX, 532 F. Supp. 2d at 103. Trust records had been lost or

destroyed, Cobell XX, 532 F. Supp. 2d at 45–46, fractional

ownership rendered accounting difficult, see Cobell XXI, 569

F. Supp. 2d at 249, and changes to Interior’s trust-accounting

system had complicated accounting efforts, see Cobell XX,

532 F. Supp. 2d at 43–44; HISTORICAL RESEARCH ASSOCS.,

supra note 8, at 25 (Pls.-Appellees’ App’x 119). Preliminary

work had revealed that even a partially complete accounting

would be prohibitive in cost, see Cobell XX, 532 F. Supp. 2d at

81–82; the record was clear “on the tension between the

expense of an adequate accounting and congressional

unwillingness to fund such an enterprise,” id. at 103 n.21. In

view of these realities, this court in July 2009 instructed “the

district court to use its equitable power to enforce the best

accounting that Interior can provide, with the resources it

receives, or expects to receive, from Congress.” Cobell XXII,

573 F.3d at 811. This instruction underscored the reality that

the original goal of the litigation — a complete historical

accounting for each class member — would not be realized. 

Instead, any historical accounting that would result from

continued litigation would likely be severely limited in scope,

heavily restrained by cost, and thus unlikely to reveal the

existence of — much less remedy — the intra-class conflict

Craven alleges. 

 Viewed, then, not in the hypothetical light cast by

Craven’s challenge, but in the actual light illuminating the

parties’ negotiations, the district court reasonably concluded

that the class settlement agreement offered a fair resolution of

the plaintiff classes’ claims free of impermissible intra-class

conflict.
20

D.

Additionally, Craven challenges the certification of the

Trust Administration Class as inconsistent with constitutional

due process. She maintains that the commonality and

cohesiveness requirements of Rule 23 are of constitutional

magnitude inasmuch as they inform adequacy of

representation, which is a clear constitutional pre-requisite to

class certification. She relies on Phillips Petroleum Co. v.

Shutts, 472 U.S. 797, 811–12 (1985), involving claims for

money damages, as well as Hansberry v. Lee, 311 U.S. 32, 37

(1940), involving injunctive relief, and points to this court’s

acknowledgment of the due-process implications of adequate

representation in National Association for Mental Health, Inc.

v. Califano, 717 F.2d 1451, 1457 (D.C. Cir. 1983), and

Phillips v. Klassen, 502 F.2d 362, 366 (D.C. Cir. 1974). 

Craven fails, however, to show that certification of the Trust

Administration Class violated due process. 

Where money damages are sought, due process requires:

(1) adequate notice to the class; (2) an opportunity for class

members to be heard and participate; (3) the right of class

members to opt out; and (4) adequate representation by the

lead plaintiff(s). Phillips Petroleum, 472 U.S. at 811–12. 

Given the district court’s findings regarding the extensive

notice of the proposed settlement that was provided to class

members, the opportunity for class members to present their

objections and participate in the fairness hearing, and the right

to opt out, Craven’s due-process objection boils down to a

challenge to the adequacy of class representation. As Craven

suggests, the adequate-representation element of due process

overlaps with Rule 23(a)’s requirement that “there are

questions of law or fact common to the class,” FED. R. CIV. P.

23(a)(2). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

626 n.20 (1997). Under Rule 23(a), commonality requires that

plaintiffs advance a “common contention” that “must be of
21

such a nature that it is capable of classwide resolution —

which means that determination of its truth or falsity will

resolve an issue that is central to the validity of each one of the

claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551. The

Trust Administration Class satisfies this requirement. 

Although Craven characterizes the Class as “sprawling” and

encompassing “dozens of wildly different theories of

liability,” Appellant’s Br. at 42, all of the class members’ trust

claims revolve around resolution of a single issue — the extent

of the Secretary’s fiduciary obligation as trustee of the IIM

accounts. To the extent Craven’s commonality objection rests

on the purported intra-class conflict between over- and undercompensated class members, her contention fails for lack of

persuasive evidentiary support, see supra Part II.C.2.

Nor, as Craven maintains, did the district court’s award of

incentive payments to class representatives create an

impermissible conflict requiring decertification of either class. 

To the extent Craven’s argument that the incentive awards

create an intra-class conflict hinges on the size of the incentive

awards, her brief focuses on the class representatives’ request,

not on the terms of the class settlement agreement, the district

court’s findings, or the district court’s actual award. Although

the district court acknowledged in ordering the incentive

payments that such awards “are routinely provided to

compensate named plaintiffs for the services they provide and

the risks they incur[] during the course of class-action

litigation,” Fairness Hr’g Tr. at 238, the class settlement

agreement provided no guarantee that the class representatives

would receive incentive payments; it left that decision and the

amount of any such payments to the discretion of the district

court. The Secretary’s opposition to the magnitude of the

class representatives’ proposed incentive payments

highlighted the uncertain status of such payments at the time

of the settlement. In describing Ms. Cobell’s singular,

selfless, and tireless investment of time, energy, and personal
22

funds to ensure survival of the litigation as meriting an

incentive award, the district court found such contributions

undermined any attempt to imply that Ms. Cobell had

improperly colluded with the Secretary to settle prematurely in

order to collect a fee. See id. at 239. It also denied altogether

the class representatives’ request for expenses incurred prior to

December 7, 2009 (the date of the settlement agreement),

finding that, with the exception of Ms. Cobell, they had failed

to show directly-incurred expenses; with regard to Ms. Cobell,

her expenses were incorporated into her incentive payment. 

Craven thus fails to show either an error of law or clear

factual error in the district court’s due-process analysis. 

E.

Craven’s other challenges also fail. First, the district

court’s reference to the small number of objectors was one of

many observations, not a dispositive finding in its fairness

analysis amounting to legal error. Nothing in the district

court’s observation was inconsistent with the caution that

should be exercised in “inferring support from a small number

of objectors to a sophisticated settlement,” In re Gen. Motors

Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d

768, 812 (3d Cir. 1995). See also In re Gen. Motors Corp.

Engine Interchange Litig., 594 F.2d 1106, 1137 (7th Cir.

1979). 

Second, Craven fails to show that any prejudice resulted

from the district court’s striking of her supplemental brief as

untimely, so the error, if any, was harmless. See Burkhart v

Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1214 (D.C.

Cir. 1997). The district court allowed Craven’s counsel to

present those arguments at the fairness hearing. See Fairness

Hr’g Tr. at 77–78. Even now Craven fails to identify any

argument in her supplemental brief that was not presented to

the district court.
23

Finally, Craven’s general objection to the fairness of the

class settlement agreement focuses on the information-deficit

concern discussed previously: without an historical

accounting, it is impossible to tell whether some members are

being over-compensated while others are being undercompensated, and yet class members are being forced to

surrender their right to an historical accounting and are

thereby left without the information needed to establish the

value of their claims. The protracted and contentious nature of

this litigation underscores the reasonableness of the district

court’s evaluation of the fairness and adequacy of the class

settlement agreement under Rule 23(e). Congress had shown

no inclination to fund the historical accounting to which the

plaintiff class was entitled under the 1994 Act. The question

was could the class nonetheless benefit appropriately without

it. Class counsel acknowledged that, despite significant work

with existing data, efforts had failed to show significant

accounting errors in the IIM accounts, see Cobell XXI, 569 F.

Supp. 2d at 238. The class settlement agreement was the

result of an arms-length negotiation. What interests it

protected and what benefits it provided were weighed by the

district court, and considered in view of the class-member

objections. The settlement acknowledged the plaintiff class’

entitlement to an historical accounting and that the United

States would pay for the surrender of that right and for trust

claims in accordance with an agreed-upon formula. The

settlement further provided that the Secretary would attempt to

purchase fractional ownership shares to enable accurate

accounting in the future in fulfilment of the Secretary’s trust

responsibilities. Congress has approved the settlement and

appropriated the necessary funds. For Craven to characterize

the settlement as “tak[ing] shortcuts to solve the problem at

the expense of individual rights,” Appellant’s Br. at 13, and

“tak[ing] a series of impermissible shortcuts that abuse the

class action process to settle this case,” id. at 15, is to ignore
24

the history of this hard-fought litigation and the obstacles to

producing an historical accounting. 

 

Accordingly, we hold that in approving the class

settlement agreement pursuant to Rule 23(e) the district court

did not abuse its discretion in focusing on the significant

benefits for each class member in view of the realities facing

them after fifteen years of litigation, including multiple

appeals, and we affirm the judgment certifying the two

classes, approving the terms of the settlement, and

encompassing the provisions of the July 27, 2011 order.