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Cobell legal team awarded fees for trust fund fight
Tuesday, December 20, 2005

The federal judge handling the Indian trust fund lawsuit awarded the Cobell legal team $7.1 million on Monday for successfully fighting for the rights of hundreds of thousands of account holders.

In a lengthy decision, U.S. District Judge Royce Lamberth said the Cobell plaintiffs are entitled to recover fees and expenses for their work in the case. He ordered the United States to pay $4.5 million in legal fees and $2.5 million in expenses because the federal government's position was not "substantially justified."

"Here, plaintiffs achieved more than 'excellent results,' they achieved a 'stunning victory,'" Lamberth wrote.

The award covers the first five years of the case, from the day it was filed on June 10, 1996, to February 23, 2001, the day the D.C. Circuit Court of Appeals affirmed the federal government's responsibility to conduct an historical accounting of Indian trust funds.

Throughout this time, the Interior, Treasury and Justice departments argued there was no duty to account, a position they lost at the district court and appeals court level. Under the Equal Access to Justice Act (EAJA), this means the government wasn't justified in its defense, Lamberth said.

Lamberth also noted that the government and its attorneys have "demonstrated an unprecedented level of defiance" since the start of the case nine years ago. "In the first of these instances, defendants made numerous illegitimate representations, failed to correct known misrepresentations, and neglected to inform the court about self-inflicted obstacles to comply with its discovery obligations," the decision stated. "As a result, the court held both trustee-delegates in contempt of court - a decision that was never appealed."

Therefore, Lamberth ruled that the Cobell plaintiffs are entitled to a "fee enhancement" due to the government's "bad faith."

Lamberth, however, cut down the plaintiffs' original request for $14.6 million in fees by half. He agreed that some of the work performed by the team was "clerical" in nature and couldn't be covered under EAJA.

He also refused to award fees for time the plaintiffs spent speaking on media-related activities, such as talking to the press about the case. He denied compensation for settlement talks between the two parties that ultimately failed and deducted other fees for proceedings that that were previously compensated.

Attorneys for Interior Secretary Gale Norton had opposed the fee request, calling it extraordinary and unwarranted. But Lamberth rejected most of the government's objections.

"By any yardstick, defendants' conduct can not reasonably be characterized was as 'substantially justified,'" Lamberth wrote.

Of the $7.2 million award, $1.5 million is going to the Native American Rights, a non-profit organization that has been fighting the case since 1996. Another $2.0 million is going to Dennis Gingold, the lead attorney.

Neither NARF, Gingold, nor any of the other members of the legal team have been paid by Elouise Cobell, the lead plaintiff, for several years. They have been compensated for their work through EAJA filings.

"While I would rather not have to spend a dime on lawyers, Indian beneficiaries know that without our legal challenge to the Indian trust system, the government would have continued to do absolutely nothing to resolve the long-standing problem with our Individual Indian trust accounts," Cobell said yesterday in a statement.

Some members of Congress have criticized the lack of progress in the case, saying it only benefits lawyers and accountants. With the backing of the Bush administration, they passed bills to restrict fees awarded to court officials while agreeing to compensate Interior Department employees who hired attorneys.

Despite the misgivings, Congress has given more than $3 billion to Interior for trust reform projects since the start of the case. Most of the spending has occurred during the Bush administration, which allocated $335 million to conduct a limited historical accounting of the Individual Indian trust accounts after losing in court.

Cobell Court Fees:
Memorandum and Order (December 19, 2005)

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm

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Lamberth critical of Norton's 'bad faith' on trust fund (10/25)
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DOI's Internet connection shut down for third time (03/16)
Lamberth defends special master against attack (03/16)
Anderson praises Cobell suit in NCAI speech (2/25)
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Cobell plaintiffs disputing trust fund rider (11/17)
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