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New Cobell judge has experience with DOI
Wednesday, December 13, 2006

The new judge for the Cobell trust fund lawsuit has experience with the Interior Department, though it hasn't always been a positive one.

U.S. District Judge James Robertson has sat on the bench since 1994, after being appointed by President Bill Clinton. In those years, he has several Indian law disputes on topics like land-into-trust, gaming and sovereignty.

But it's a recent case on federal recognition that tested Robertson's patience with the Bureau of Indian Affairs. He blasted the agency for failing to make a timely decision on the petition for the Mashpee Wampanoag Tribe.

"The people involved in making the decisions at the BIA have completely lost track of the whole concept of deadlines," Robertson said at a February 2005 hearing.

Robertson was so fed up with the inaction that he imposed deadlines on the agency. But rather than follow the order, government lawyers appealed and got it overturned.

The same scenario faces the judge as he takes on the largest class action against the government. Filed in 1996, the Cobell case has appealed nearly a dozen times as the government, during both the Clinton and Bush administrations, has sought to limit its trust responsibilities.

The effort ramped up during the Bush administration, resulting in the unprecedented removal of Judge Royce Lamberth. Government lawyers claimed he was biased, a charge they levied against two other court officials who also left the case.

Elouise Cobell, the lead plaintiff, hopes Robertson won't meet a similar end. She pledged to try and get the dispute resolved as soon as possible.

"We want to see this case resolved quickly," Cobell said last week after Robertson was assigned to the case. "We will work in good faith with Judge Robertson to end this century-long injustice that the government has done to Native people."

In his Indian law cases, Robertson has expressed sympathy for tribal plaintiffs. After being overturned on appeal in the Mashpee case, he continued to rail against the BIA and its management practices.

Robertson already knew about the federal recognition process from an earlier case he handled involving the Ramapough Mountain Tribe of New Jersey. He heard evidence of a leak to an unfriendly Congressman and alleged mishandling of documents but concluded the BIA didn't break the law by rejecting the tribe.

On land-into-trust, Robertson dealt with the Indian Gaming Regulatory Act and its application to restored tribes. He rejected an anti-casino group's attempt to block a land-into-trust acquisition for the Pokagon Band of Potawatomi Indians of Michigan.

Robertson heard more gaming-related issues in a lawsuit over membership in the Shakopee Mdewankanton Sioux Community of Minnesota. Some tribal members challenged the BIA's approval of an adoption ordinance, which would have spread casino per capita payments among more people.

In attempting to resolve the dispute, Robertson was careful not to tread on tribal rights. "The court is sensitive to the federal government's long-standing policy of encouraging tribal self-government and recognizes that this policy reflects the Indian tribes' retention of attributes of sovereignty over their members and territories," he wrote in December 2006.

But he questioned why the members who opposed the ordinance were excluded from Interior's appeals process. The case was sent back to the department for further review.

In a more recent case, Robertson heard from a small California tribe whose leaders have been embroiled in a leadership feud for several years. The dispute centered over the interpretation of a little-noticed amendment to the Indian Reorganization Act that was passed in March 2004.

Robertson refused to free the California Valley Miwok Tribe from federal oversight. The BIA refuses to recognize the tribe's governing structure and has pulled funding for the tribe's self-determination contracts due to the leadership fight.

Despite his experience, Robertson hasn't handled any trust-related cases. He came close in a lawsuit over BIA's decision to reject a lease for a hog farm on the Rosebud Sioux Reservation, but the case was transferred to a federal court in South Dakota.

Robertson has heard a number of cases involving administrative law, which has been a central part of the Cobell lawsuit. Most of these cases involved environmental groups who challenged Interior's decision-making. One case was a challenge from a coal company.

Assignment of New Judge:
Cobell v. Kempthorne (December 7, 2006)

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

From the Indianz.Com Archive:
Judge won't free tiny tribe from BIA oversight (04/21)
Judge quits court in protest of Bush spy program (12/21)
Judge blasts BIA for delays in recognition case (2/15)

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