Fredericks Peebles & Morgan LLP
ads@blueearthmarketing.com   712.224.5420

Cobell
Judge expresses views on Indian trust fund accounting


With his eyes toward an October trial, the federal judge handling the Cobell trust fund case said on Monday he wants the federal government to show how much money Indian beneficiaries were or weren't paid.

Indian Country deserves to know the answer, Judge James Robertson said at a 2.5-hour status hearing in Washington, D.C. So do Congress and the public, he told lawyers for the plaintiffs and the Bush administration.

"What does it all add up to?" Robertson said. "What are the big numbers?"

The plaintiffs and the government agree that at least $13 billion has passed through the Individual Indian Money (IIM) trust since 1909. Since the Interior Department never performed an historical accounting, neither side can demonstrate how much beneficiaries were or weren't paid.

At the end of the trial, Robertson said he hopes to have the number. "I think the world wants to know this," he said.

That doesn't necessarily mean the plaintiffs, as they have argued under trust law principles, are entitled to a certain amount of money, he noted. A decision on relief will be left for another day, he said, indicating the potential for additional trials or proceedings, possibly on the Treasury Department's trust duties.

As for October, Robertson laid out four main goals for the trial. He wants to examine the scope and nature of the historical accounting plan, the cost of the project, whether it is adequate and how much money went to Indian beneficiaries.

"It's going to be about what you're doing and what you're not doing," he told lawyers from the Department of Justice.

Although he has yet to make any rulings on the matter, Robertson gave both sides his preliminary views. He opposed the Bush administration's notion that the accounting only goes as far back as 1938, the year of one Indian leasing statute.

However, he wasn't prepared to accept the plaintiff's argument that the accounting should go back to 1887, the inception of the IIM trust. "I think the accounting goes back to the '38 act and not further," he said.

Robertson also opposed the proposal to limit the accounting to accounts there were open as of December 31, 2000. The government claims the 1994 Indian Trust Management and Reform Act only mandated a "prospective" accounting.

"I think that's an improper exclusion," he said.

The judge also said it was "improper" to exclude beneficiaries who died before they received an accounting. The government's plan cuts off deceased accounts holders, even if their heirs did not receive their money.

Those views were favorable to the plaintiffs, who argue that Judge Royce Lamberth, who presided over the case until he was removed based on the Bush administration's complaints, and the D.C. Circuit Court of Appeals already resolved these types of issues.

The plaintiffs, however, want to include beneficiaries who receive direct payments from leasing companies and beneficiaries whose trust assets are managed under tribal self-determination and self-governance agreements. At the hearing, Robertson said he wasn't inclined to support those two aspects, or to expand the accounting to account for the 11 million acres held in trust for individual Indians.

Robertson still hopes to visit the government's Indian records repository in Kansas to learn more about the accounting effort. The trip might take place during the second week of the trial, he said, but the dates have to be worked out.

In December 1999, Lamberth ruled that the government must account for "all funds" in the IIM trust, regardless of when they were deposited. The D.C. Circuit upheld the right to the accounting in February 2001.

Following contentious battles at the district court in which Lamberth imposed deadlines, standards and other guidelines on the accounting, the D.C. Circuit intervened and said Lamberth overstepped his grounds. In a later decision, the appeals court said federal appropriations must be considered in determining the scope and nature of the project.

Despite the 1999 decision, the Clinton administration never started the accounting, choosing to appeal instead. Even after the 2001 ruling, then-Interior Secretary Gale Norton -- acting on the advice of an aide who recently married former deputy secretary J. Steven Griles -- attempted to limit the project.

Facing pressure from the court, Norton unveiled the Office of Historical Trust Accounting in July 2001 and said she would "not accept that this is a job too big for us to accomplish." In July 2001, she delivered a plan that said the accounting would cost at least $2.4 billion and take at least 10 years.

After Congressional appropriators balked, Norton submitted a new plan in January 2003 that severely scaled back the accounting. Even then, the department estimated it would cost at least $335 million and take at least 5 years.

On May 31, an entirely new plan was submitted to Judge Robertson, who was eager to receive it. Associate deputy secretary Jim Cason said the project would not be complete until 2011 -- 10 years after the original day Norton originally proposed.

Cason said the department expects to spend $144 million, in addition to $271 million already being spent, to finish. Compared to the 2001 plan, it will have taken Interior the same amount of time to complete less work, albeit at a lower cost.

Relevant Documents:
2007 Historical Accounting Plan (May 2007)

Recent Briefs:
Bush Administration (June 13, 2007) | Bush Administration (June 11, 2007) | Cobell Plaintiffs (May 31, 2007) | Cobell Plaintiffs (May 29, 2006) | Bush Administration (May 11, 2006)

Historical Accounting Report:
Office of the Special Trustee for American Indians Report to Congress (May 2006)

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

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

Relevant 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

Related Stories:
Hearing on Cobell historical accounting trial (6/18)
Cobell prepares for court battle on accounting (5/30)
Cobell prepares for historical accounting trial (5/18)
Judge prods DOI on Indian trust fund accounting (5/15)
First status conference for Cobell accounting trial (5/14)
Cobell status conference pushed back to May 14 (05/02)
Attorney calls $7B Cobell offer pennies on dollar (4/24)
Cobell heads to landmark accounting trial (4/23)
Judge orders Cobell accounting trial for October 10 (4/20)
Jodi Rave: Cobell calls for accountability (4/12)
Editorial: No justice in $7B offer to settle Cobell (4/6)
Lawmaker questions $7B plan to settle trust cases (4/4)
Gonzales' trust testimony downplayed (3/30)
Listening Lounge: House hearing on BIA-OST (3/30)
Mediator suggests $7-9B settlement for Cobell (3/30)
Jodi Rave: Cobell calls trust offer 'insulting' (3/30)
Senate hearing on Indian trust fund litigation (3/29)
Gonzales won't testify on trust fund (3/28)
Supreme Court refuses Cobell appeals (3/27)
Editorial: The billion-dollar question (3/26)
Senate hearing on trust fund litigation on Thursday (3/26)
The downfall of J. Steven Griles (3/26)
Blast from the Past: NBC segment on Cobell (3/21)
Opinion: US owes Indians billions for theft (3/14)
Bush aide linked to Special Trustee firing resigns (3/14)
BIA names new director for Navajo regional office (3/14)
Mother Jones: Pennies on the dollar for Cobell (3/12)
Bush proposes $7B trust fund settlement (3/8)
Dorgan and Thomas disagree on Cobell settlement (1/22)
Jodi Rave: Cobell sees hope for case in new year (1/20)
NewStandard: Tribes turn to court over trust funds (01/08)
Jodi Rave: Interior mum on class action tribal suit (01/05)
Tribes file class action trust accounting lawsuit (01/04)
Cobell honored by AARP Magazine for trust work (12/19)
New Cobell judge knows Interior Department (12/13)
Rahall outlines Indian agenda for 110th Congress (12/11)
New judge assigned to Cobell trust fund case (12/08)
Cobell wins Impact Award from AARP Magazine (12/7)
Editorial: No hope for a Cobell-only settlement (12/1)
McCain staffer: No 'hijinx' during lame-duck (11/24)
Editorial: Another good shot emerges for Cobell (11/10)
Cobell says Bush kills legislative settlement (11/9)
Tribal opposition to trust reform bill growing (11/2)
Editorial: End federal management of trust (11/1)
Tribes face trust challenges from Bush administration (10/31)
Cobell attorney criticizes Bush changes to bill (10/27)
Staff confirms Bush behind Cobell proposals (10/26)
Bush seeks major changes to Cobell bill (10/24)
Senate committee holds more Cobell meetings (10/23)
Time running out on Cobell settlement bill (10/23)
Cobell sees parallels in Aboriginal wage theft (10/16)
NCAI to consider resolution in support of Cobell bill (10/6)
Bush assailed for 'ambush' on Indian health care (10/5)
Latest delay in Cobell settlement tied to White House (10/3)
Cobell: Interior mishandles Indian money too (10/2)
Navajo woman fights for trust fund accountability (9/25)
Senate committee sends Cobell letter to Kempthorne (9/18)
Interior delays Cobell settlement legislation (9/15)
McCain firm on $8B settlement for Cobell (9/5)
Senate staff to discuss Cobell settlement in Tulsa (8/30)
Cobell shifts appeal strategy to keep judge on case (8/29)
Cobell fights for judge in trust fund case (8/25)
Senate committee to discuss Cobell settlement (8/24)
Human Rights Magazine: Cobell, Native issues (8/22)
Editorial: Justice for Indian account holders (8/18)
Professor: Removal of Judge Lamberth a tragedy (8/7)
Cobell eager to settle Indian trust fund lawsuit (8/7)
Letter: Nearly $1B wasted on Swimmer's trust reform (8/7)
Editorial: Stop delaying settlement to Cobell (8/4)
McCain puts twist in Cobell settlement bill (8/3)
Bush officials asked McCain to delay Cobell settlement (8/3)
Cobell settlement bill 'dead' in Congress (8/2)
Time running out on Cobell settlement bill (7/28)
Editorial: It's time for settlement on Cobell (7/28)
Ross Swimmer: Interior still 'working' on trust (7/28)
Cobell issues statement on settlement talks (7/25)
Cobell settlement awaited in Indian Country (7/25)
Jodi Rave: Cobell worried about settlement legislation (7/24)
Mark Trahant: It's time for the U.S. to keep its word (7/17)
Editorial: Lamberth too honest in trust fund case (7/17)
Cooler heads sought in Indian trust fund fight (7/14)
Lamberth removed from Cobell trust fund case (7/12)
Lamberth is third judge removed by D.C. Circuit (7/12)
Cobell settlement rumored to be in the billions (7/5)
Cobell rallies for support on trust fund lawsuit (06/19)
Editorial: Give Kempthorne a chance on Cobell (6/15)
Cobell files contempt charges against Kempthorne (6/13)
Editorial: Dirk Kempthorne arrives in Washington (6/13)
Swimmer calls Cobell settlement 'reparations' (5/8)
Cobell: Settle Indian trust fund case for billions (4/20)
Cobell to appear on C-SPAN Washington Journal (4/12)
Cobell renews call for receiver as court hears case (4/12)
Cobell vows fight to resolve trust fund lawsuit (4/10)
Cobell plans big showing on day of court hearing (4/4)
Jodi Rave: Tribes alarmed at trust reform initiative (4/3)
Cobell addresses trust fund mismanagement (3/30)
Ross Swimmer: Indian trust not about mismanagement (3/29)
Norton denies fraud or major problem with trust (3/29)
GAO report warns of billions in lost oil, gas royalties (3/29)
Witness list for hearing on Indian Trust Reform Act (3/28)
DOI trust reform meeting set for Portland, Oregon (3/24)
Kempthorne faces hot issues at Interior Department (3/21)
DOI pressed for more clarity on trust initiative (3/3)
Congress urged to settle Cobell lawsuit for billions (03/02)
Listening Lounge: Joint hearing on Cobell v. Norton (03/01)
Interior hits the road with new trust reform initiative (02/08)
Jodi Rave: Garcia calls for settlement of Cobell (2/3)
Cason slashes BIA budget and blames it on Cobell (2/3)
Tribes discuss trust reform bill, Cobell settlement (1/31)
Commentary: Swimmer still not telling the truth on trust (1/26)
Opinion: Indians want $12B of 'YOUR' money (01/10)