Cobell historical accounting trial underway

Thursday, October 11, 2007  

A federal judge in Washington, D.C., opened a highly anticipated trial into the Indian trust fund on Wednesday.

Saying it was "a long time in the making," Judge James Robertson, a Clinton appointee, quickly jumped into the open-ended proceeding. He wants to know how much money, if any, Indian landowners are owed for over 100 years of government management of their trust funds.

"We are here for day one of who knows how many days of the trial of Cobell v. Kempthorne," Robertson said, referring to lead plaintiff Elouise Cobell, a member of the Blackfeet Nation of Montana, and Interior Secretary Dirk Kempthorne, one of the named defendants.

Opening statements from the Department of Justice and the Cobell plaintiffs indicate the trial will be a long one. Both sides disagree on just about every aspect of the historical accounting at issue in the eleven-year-old case.

The one area where both sides had expressed some agreement quickly crumbled as soon as Robert Kirschman, a DOJ attorney, spoke. He said the estimate that $13 billion has passed through the Individual Indian Money (IIM) trust since 1909 was too "high" because it included tribal funds and other funds not owned by Indian landowners.

Kirschman said a more accurate throughput was $11.7 billion. But he left the door open for further downward revisions due to ongoing historical accounting work.

On the other hand, Dennis Gingold, one of the attorneys for the plaintiffs, said the $13 billion was actually too low. He cited a previously undisclosed government e-mail from 2001 which suggested the figure was off by at least $15 billion because certain trust funds were never included.

The historical accounting of billions of dollars of trust funds owned by Indian landowners is supposed to resolve this issue. Since 2001, the Bush administration has offered at least three plans to do the work.

The one being considered at the trial was issued in May 2007 and contains a number of limits that Robertson wants to explore. Kirschman, however, urged the judge to take a hands-off approach, saying the government will prove that the accounting is adequate, given funding and time restraints.

"We will request that the matter be remanded to the Department of the Interior, to carry out its historical accounting plan without further interruption," Kirschman told the court.

Gingold asked the judge for the exact opposite. He said the court is one of the few places where Indian landowners feel they can obtain justice.

"What we're looking at is an abuse that has gone on for 120 years and we're hoping this is the beginning of the end of that abuse," Gingold said.

With opening statements completed, the government's first witness took the stand. It was Jim Cason, who is the associate deputy secretary of the Department of the Interior and is the official with the most power over the Indian trust.

After a relatively short direct examination by DOJ attorney John Stemplewicz, Cason defended the 2007 plan amid pointed questions from Bill Dorris, another attorney for the plaintiffs. The major points of contention were the limits placed on the accounting and whether they were justified.

Cason acknowledged that the 2007 plan reduced the amount of work contemplated by plans the department issued in 2003 and 2002. He said Congress was unwilling to fund a billion-dollar historical accounting and that the public was unwilling to wait a long time for the result.

But he was forced to admit that Interior excluded a significant number of Indian landowners from the 2007 accounting plan solely for legal reasons. As one example, beneficiaries who were not on the IIM system when the American Indian Trust Reform Act was passed in 1994 won't receive an accounting.

"It's not based on cost, is it?" Dorris asked of this exclusion. "No," Cason replied.

Cason also admitted that the 2007 accounting plan is not based on a reconciliation of each beneficiaries' IIM account, as prior plans had envisioned. Instead, it focuses on a method that samples transactions across all trust accounts in the system.

Even with this change, Cason acknowledged that the number of transactions being examined under the 2007 plan dropped dramatically from the 2003 plan. Yet he said it would still take four more years to complete the accounting even though the 2003 plan promised it would have been finished by the end of this year.

Cason further said the department has yet to decide how it will account for the paper records of the trust. So far, the work has focused on electronic records from 1985 to the present.

"Do you know how many [paper records] are going to be examined?" Dorris asked. "I don't," Cason said. "Does anybody? Dorris continued. "I don't know that," Cason responded.

Another contentious issue revolved around on a little discussed project known as the Litigation Support Accounting, or LSA. It was developed by the Bush administration after a rider was placed in the 2004 Interior appropriations bill that called for a legislative settlement of the case.

In Congressional testimony and in public statements, Cason has frequently spoke of the results of the LSA. He reiterated some of them yesterday, saying the project showed a "sufficiently low" error rate in the electronic records of the IIM trust.

Based on the results of the LSA, Cason has said that Indian landowners are owed very little for government management of their trust funds. "What we found out of that is that, again, we found a handful of errors," he testified yesterday. "They tended to be on both sides of the ledger, they tended to net out to a relatively small error rate."

But several documents the government placed in the administrative record for the trial appeared to cast doubt on the reliability of those statements. At times, Cason was unable to recall critical details about the project and who made decisions about it.

He also appeared to be unfamiliar with some unusual government documents that suggested the primary basis for the LSA was to limit the government's trust liability and -- in the words of the plaintiffs -- to "drive down" potential settlement figures.

Earlier this year, Secretary Kempthorne, in fact, proposed a $3.5 billion settlement to the case, far lower than the $8 billion that key members of Congress were proposing in late 2006.

One particularly striking government document that was placed in the record spoke of a strategy in which the Bush administration would be able to declare public relations "successes" as it carried out the historical accounting. "I think the Department of the Interior gets no credit for effort," Cason said.

"So part of our strategy was to try to segment the work" and declare success, Cason said of efforts to reconcile per capita and judgment fund accounts, which are not as complex as land-based accounts whose funds come from oil, gas, grazing and other activities.

The majority of the accounts in the IIM system are land-based and accounting for them costs more money and takes more time than the other types of accounts.

Another LSA issue went to the heart of the low error rate that Cason has frequently cited. A document in the record spoke of an "adaptive" strategy in which missing or unavailable paper records aren't considered hindrances to the historical accounting.

"[W]e did not consider that automatically to be an error," Cason said of missing records.

The first day of the trial ended with Cason still under cross-examination. His testimony is set to resume today. Kathy Ramirez, an employee with the Office of the Special Trustee for American Indians will be the government's second witness.

Trial Transcripts:
Day 1, AM Session

2004 Interior Appropriations:
H.R.2691 | H.Rept. 108-330

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