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Judge weighs next step in tribal trust lawsuits
Friday, July 25, 2008
Filed Under: Cobell | Trust

As the landmark Cobell Indian trust fund suit heads into its final chapter, a federal judge on Thursday contemplated opening a new one for hundreds of tribes.

Judge James Robertson plans to wrap up the 12-year-old Cobell case next month by putting a dollar figure on money owed to hundreds of thousands of individual Indians. He's now being asked to consider similar claims on behalf of more than 200 tribes in the lower 48 states and in Alaska.

Thirty-seven tribes have lawsuits before Robertson that seek an historical accounting of their trust funds and assets. The cases represent some of the largest trust accounts at the Interior Department.

Additionally, the Native American Rights Fund has filed a lawsuit that seeks to represent the tribes that have not filed an accounting lawsuit. Though the exact number of plaintiffs hasn't been tallied, the case could end up representing more than 200 tribes.

The sheer magnitude of the claims has the Bush administration worried about liability. In testimony to Congress, former U.S. Attorney General Alberto Gonzales, who resigned under a cloud of scandal, estimated the cases could cost more than $200 billion.

The tribal cases "dwarf the claims in Cobell," John Martin, a Department of Justice attorney, told Robertson at lengthy hearing yesterday morning.

But Keith Harper, a former NARF attorney who works on the Cobell case and also represents some of the tribes with accounting lawsuits, insisted the issue isn't about money. He said tribes are only seeking to enforce the duties they are owed as trust beneficiaries.

"At this point, we are not looking for money at all," said Harper, who now works for the Kilpatrick Stockton firm.

Melody McCoy, a NARF attorney, also shifted the discussion away from dollar figures. She asked Robertson to certify a class action -- similar to Cobell -- to represent hundreds of tribes that have not received an accounting of their funds and assets.

"There is plenty of evidence in the record that shows defendants have not fulfilled their most basic fiduciary obligation," said McCoy.

During the hearing, Robertson heard arguments on the government's motion to dismiss eight of the tribal cases and on NARF's motion for class certification. He made no decisions but he was clearly concerned about the direction the lawsuits might take.

"I see the management problems .. being Cobell revisited," Robertson said. "And nobody wants that."

But Robertson appeared willing to give tribes their day in court because he said the government has failed to answer a simple question. "Has there been an accounting or not?" he asked.

Martin didn't directly respond to the question at first but later said the Arthur Andersen "reconciliation" reports that were provided to more than 300 tribes in the mid-1990s represented a type of accounting. He argued that Congress, through the American Indian Trust Fund Management Reform Act of 1994, modified the government's trust duties to tribes.

"The terms of the accounting have been set by the settlor -- Congress," Martin told the court. He implied that the act allowed individual Indians to seek a broader type of accounting.

Steven Gordon, an attorney for two of the 37 tribes, disputed the government's characterization. "The answer is there has not been accounting," he said. "We haven't had an accounting and we are entitled to one."

Settlement discussions are ongoing with some of the tribes and the government has not asked to dismiss all of the cases. "But I'm not holding my breath," said Gordon, who represents the Pechanga Band of Luiseno Indians and the Colorado River Indian Tribes.

Some of the tribes with accounting lawsuits have money damage cases pending in the U.S. Court of Federal Claims. Others have cases pending in federal courts across the nation.

One of the largest breach of trust cases could be headed to the U.S. Supreme Court, if the Bush administration has its way. The Navajo Nation is seeking billions of dollars for a coal lease approved during the 1980s.