Supreme Court won't hear two Cobell appeals

Tuesday, March 27, 2007  

The plaintiffs in the billion-dollar Indian trust fund lawsuit said they will continue to press the case after the U.S. Supreme Court rejected two of their appeals on Monday.

Without comment, the justices declined to review two recent decisions in the long-running lawsuit. One of them involved the removal of Judge Royce Lamberth from the case at the request of the Bush administration.

Elouise Cobell, a member of the Blackfeet Nation who is the lead plaintiff, said she was disappointed the high court didn't act on the appeal. "Until this point, no one on the federal bench had come to understand the more than a century of government wrongdoing in this case better than Judge Lamberth," she said of the Reagan nominee.

But she said the plaintiffs welcomed the assignment of Judge James Robertson, a nominee of former President Bill Clinton, to the case. "Now that the Supreme Court has denied our petition for certiorari, we will turn our full attention to Judge Robertson's courtroom and to efforts to resolve this case expeditiously and fairly," she said.

The second appeal affected information technology security of Indian trust systems. Before being removed, Lamberth ordered the government to disconnect those systems from the Internet in order to protect them from hackers.

"The Interior Department had years of warnings about these security issues and has failed to resolve them," Cobell said.

The D.C. Circuit Court of Appeals, the same court that removed Lamberth, didn't disagree with the assessment, citing documented risks to sensitive financial, personal and other data. But in lifting the disconnection order, the court said the plaintiffs failed to show how they would be directly harmed by computer attacks.

The Lamberth and IT security decisions were issued in July 2006. The Cobell plaintiffs filed their appeals to the high court in December 2006. Final briefs were filed on March 5 before the petitions were considered on March 23.

Chief Justice John G. Roberts didn't participate in either petitions, the Supreme Court noted yesterday. A nominee of President Bush, he used to sit on the D.C. Circuit.

As the litigation continues in court, efforts to settle the case through legislation have failed. The Cobell plaintiffs, tribal leaders and tribal organizations supported a bill in the 109th Congress to end the lawsuit but the Bush administration failed to respond before the end of the session.

On March 1, U.S. Attorney General Alberto Gonzales and Interior Secretary Dirk Kempthorne offered to spend up to $7 billion to settle Cobell and more than 250 tribal trust fund lawsuits. The money would also be used to pay for trust reform, IT security upgrades and other programs at Interior.

The Senate Indian Affairs Committee has scheduled a hearing this Thursday to consider the offer. But the Cobell plaintiffs have openly rejected it and tribal leaders have raised alarms about a controversial proposal to terminate the federal trust responsibility over the next 10 years.

The witness list for the hearing hasn't been made public but Sen. Byron Dorgan (D-North Dakota), the committee chairman, has invited the Cobell plaintiffs and tribal leaders to testify. He also wants Gonzales and Kempthorne, neither of whom have appeared before the panel, to explain the offer and how it was developed.

Supreme Court Docket:
No. 06-867 | No. 06-868

Appeals Court Decisions:
Lamberth Removal | IT Injunction

Committee Notice:
OVERSIGHT HEARING on Indian trust fund litigation (March 29, 2007)

Settlement Letter:
Kempthorne-Gonzales to SCIA (March 1, 2007)

Elouise Cobell Statement:
NO THANKS, WE’LL TAKE THE ACCOUNTING, INDIAN PLAINTIFFS SAY (March 8, 2007)

Sen. Dorgan Statement:
DORGAN SAYS BUSH ADMINISTRATION OFFERS $7 BILLION TO SETTLE SUIT OVER MISMANAGEMENT OF INDIAN TRUST FUNDS (March 6, 2007)

Other Documents:
Alberto Gonzales Testimony (March 1, 2005) | SCIA Views and Estimates (March 1, 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