I was talking with my class the other day about the methodology of fully-developed conspiracy theories and my general skepticism toward them. The undeveloped conspiracy theory works off a form of radical skepticism. How do you know we really landed on the moon? Have you been witness to any of the reality of the moon landings? How do you know it was not all filmed in a studio somewhere? (How do you know, for that matter, that George Washington really existed? Have you yourself seen any of the historical evidence of his life and presidency? Have you carbon dated any of the documents with his signature? Can you personally verify the legitimacy of carbon dating?)

The fully-developed conspiracy theory works in exactly the reverse manner. Fully-developed theories do not work off skepticism, but the overwhelming of skepticism with fact – factual bombardment that constructs your credulity. Theories such as accounts of the assassination of President Kennedy or, more currently, 9/11 Truther conspiracies about U.S. government authorship of the 9/11 attacks can run to hundreds of pages of arcane and even science-based detail. Then, to reemploy the radical skepticism in a converse manner – are you going to make yourself expert in the composition of the steel beams of the World Trade Center towers, their melting temperatures, the combustion temperature of jet fuel, and the physics of building collapse? How do you feel certain these theories are not true?

Undergraduates, and lots of other people, have an unclear understanding of the nature of fact and its distinction from opinion, and then, when they begin to learn the difference, turns facts into totems. As if fact-checking political campaigns is all we need do to settle disputes about social policy. “Just the facts, ma’am.” In fact, not just the facts. Joe Friday then needed to understand the facts, what they added up to, how to read them. The facts are a text, the detective a reader of the text making meaning out of it.

Gary Gutting offered a primer on the subject recently in The New York Times’ The Stone column recently, “Facts, Arguments and Politics.”

What is the moral? That facts alone are necessary but not sufficient for a good argument. As important as getting the facts right is putting the facts into a comprehensive logical structure that supports your conclusion. This structure must present a plausible account of the various factors relevant to the conclusion. Without it, even an impeccable set of facts does not give us a good argument. The recent journalistic trend toward serious fact-checking holds considerable promise for improving our political debates. But we also need a serious effort at argument-checking.

Well, one of the things I like to do with my classes is play with authority – that is, I work against the authority they passively offer texts, and then from and off the authority they place in me. People have to learn to think for themselves somehow: why not pull that thoughtless trust out from beneath them? Just as some slippery slope arguments may not be fallacious – some slopes are slippery; it’s just that you have to demonstrate the existence of the ice – it isn’t as if there are not actual conspiracies in the world. What was, after all, in its secret heyday, the Mafia?

So it is that a little while back I received the latest email update from the administrators of the Cobell Indian Trust Settlement. The Cobell Individual Indian Money Trust Fund case was in many respects the genesis of this blog. Lead plaintiff, Blackfeet Indian and MacArthur Foundation Fellow Elouise Cobell, who died just about a year ago, feared at the time she finally agreed to settle the case after thirteen years that the 500,000 potential beneficiaries of the suit were aging and dying off at an alarming rate, making dramatically reduced compromise in the settlement figure her only conscionable decision. Rather than the $200 billion figure some believed had truly been embezzled by the United States government from the Individual Indian Trusts, Cobell and her attorneys agreed to accept the Obama administration’s offer of $3.4 billion. That settlement was reached in December, 2009. Nearly three years later, settlement trust payments have still to be made.

The first hold up, even before Cobell died, was because of Wyoming Senator John Barrasso, who, of course, was more concerned about the welfare of American Indians than they are themselves. So it has always been. Once Barrasso’s obstruction was overcome, four separate suits objecting to the settlement were filed by four different American Indians. The cases of these four have received scant respect in the courts. Still, the four are appealing. The email updates I receive are addressed to the settlement recipients. Here, in a Q & A, is Dennis Gingold, Lead Counsel, who took over the updates after Cobell’s death:

Why are appellants appealing the court’s rejection of “blatantly mischaracterized” arguments that are “without merit” and otherwise “ignore the history of this hard-fought litigation and enormous obstacles to producing an historical accounting”?  What are the chances of the four appellants prevailing?  Speculation is inappropriate; however, I note a potentially relevant statistic. In 2010, the latest full term of the Supreme Court, the Court reviewed 7,857 petitions for the Court to hear cases. Of those, only 86 were granted. This suggests that there is about a 1% chance that the petitions of Craven et al. will be granted.  As reported by on August 15, Colombe, himself, admitted to the Native Sun News that they, the appellants, were “going to be blown out of the water” by the Supreme Court.  But, even so, in the unlikely event that one of the petitions is granted, your payments may be delayed at least another year.

I am not aware of any case in which the Supreme Court has rejected calls from all three branches of government urging the prompt and fair resolution of a settlement with the United States government.


So, if they have little chance of prevailing on the merits, why are they appealing? I cannot answer that question because I do not know.  Class members, including those who identify themselves as family of the appellants, ask us the same question.  They ask why appellants are doing this when they know that it hurts so many Indian people, including their own grandchildren.  To the extent that the appellants ever believed they had a chance of prevailing prior to May 22, 2012, it is clear that they have very little or no chance of prevailing now. And, should they succeed, that means that the settlement would be terminated and that they and you will receive nothing. It is not within the realm of possibility that Congress will again appropriate $3.4 billion for individual Indian trust beneficiaries.  When so many class members are dying and many must do without heat and adequate shelter this winter, I believe that the efforts of the appellants and their counsel are nothing short of a travesty of justice.

This is all rather extraordinary – a now 16-year lawsuit settlement of an historic financial wrong so direly jeopardized by four different American Indians acting, with so little basis, against the interests of their own. Gingold answered one final question in this latest update.

Who are the attorneys who represent the appellants?  McGuireWoods LLP, a Virginia law firm with a Washington, D.C. office, is representing Kimberly Craven.  An associate in that firm, Anand Ramana, is handling her petition and is counsel of record.  It is the same firm that filed an amicus brief in the Court of Appeals on behalf of Competitive Enterprise Institute (“Institute”) in support of Craven’s meritless arguments.  The Institute is a tax-exempt organization and Wikipedia reports that it is funded by ExxonMobil Corporation, Texaco, Inc., Coca Cola Company, CSX Corporation, FMC Corporation, and others.  The Institute says that it is “dedicated to the principles of free enterprise and limited government.”

Just in case you’ve been wondering where I was going with all of this.


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