Cobell case moves toward resolution after 12 years

Cobell

Thursday, March 6, 2008

The federal judge handling the Indian trust fund case is moving to resolve the case by the end of the summer despite opposition from the Bush administration.

At a hearing in Washington, D.C., yesterday, Judge James Robertson scheduled a June 9 trial. He hopes the proceeding, which will last about two weeks, will bring an end to the long-running Cobell lawsuit.

"I am absolutely committed to getting this matter resolved ... this summer," said Robertson during the 1.5-hour status conference.

The trial comes nearly 12 years to the day the case was filed on June 10, 1996. Elouise Cobell, a member of the Blackfeet Nation of Montana, and other Indian leaders asked the Interior Department for an accounting of billions of dollars of their trust funds.

In a 165-page decision on January 30, Robertson ruled that such an accounting was "impossible" due to budget constraints and limitations imposed by the Bush administration. Part of his opinion focused on a large sum of money that doesn't appear to be properly accounted anywhere in the history of the trust.

"The best fix I could get on it was somewhere between $3 billion and $3.5 billion," Robertson said yesterday.

Both sides in the case agree at least $13 billion has passed through the trust since the early 1900s. But the discussion of money and whether any is due to Indian beneficiaries drew objections from Robert Kirschman, a Department of Justice attorney.

According to the government's view of the case, the plaintiffs' only claim under the 1994 Trust Fund Management Reform Act is the historical accounting, even if it is incomplete. "That's the remedy contemplated by the act," Kirschman said.

If Indian beneficiaries want to file a lawsuit over trust funds that were never collected, should have been collected or never made it to the right person, they should go to the federal court of claims, Kirschman argued. He also said the government wants to challenge the finding that a complete historical accounting is "impossible."

The government's argument puzzled Robertson, a Clinton nominee who was assigned to the case in December 2006 after the removal of Judge Royce Lamberth. Robertson said it would be a waste of judicial resources to force the case to be heard in yet another court.

"When you tell me that the law of the case says the only relief is an historical accounting ... that doesn't mean very much if an historical accounting is impossible," Robertson told Kirschman. "Then what, is there no relief? Is that the government's position?"

Dennis Gingold, an attorney for the plaintiffs, asked Robertson to schedule a trial to determine the amount that should be in the Individual Indian Money (IIM) trust and to account for the 11 million acres of Indian allotments that have passed out of trust from 1887 to 1934. He said the federal district court has the power to "disgorge" the trust, or restate the dollar values of the accounts.

"We agree completely that this case must end," said Gingold. "Its time," he added. "Twelve years of litigation is enough. One hundred and twenty years of mismanagement is enough."

Robertson initially shot down the idea of a trial in late May -- the date suggested by the plaintiffs -- but came back with the June date. He asked both sides to prepare briefs to address the "disgorgement" the trust, the scope of his powers to order relief to the plaintiffs and an issue related to the way the case was certified as a class action.

Robertson also said he wants to resolve Internet connectivity at the Interior Department. The Bureau of Indian Affairs, the Office of the Special Trustee for American Indians and the Office of the Solicitor remain offline, more than six years after a court investigator found major vulnerabilities in the department's security network.

The judge said he is "inclined to let them turn the switches back on," an issue that could be resolved as early as the end of the month or sometime in April.

Another matter relates to the "historical statements of account," or HSAs, that Interior has been trying to send to Indian beneficiaries for the past few years. Lamberth had blocked their release and Robertson, in his January opinion, said they fail to provide account holders with an accurate view of their trust funds and assets.

Robertson acknowledged there is some value in mailing the HSAs but said they need to be labeled properly with some sort of "Surgeon General's warning" that they are not a complete historical accounting. "We're going to work that out," Robertson said.

After the hearing, Cobell said she was extremely happy that the case was going to trial for a final resolution. She declined to say how much money she believes should be in the trust but said it should run in the billions.

As part of a potential Congressional settlement, the plaintiffs and Indian and tribal organizations asked for $27.5 billion, a figure that includes interest. Gingold said in court yesterday that interest won't be part of the June trial.

"We're not asking for the interest," Gingold told the judge. "That would be damages."

Court Decision:
Findings of Fact and Conclusions of Law (January 30, 2008)

Final Briefs:
Cobell Brief: Conclusions of Law | Cobell Brief: Findings of Fact | DOJ Brief: Findings of Fact and Conclusions of Law

Trial Order:
Cobell v. Kempthorne (April 20,2007)

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

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