After 11 years of litigation in the courts and debate in Congress,
a federal judge on Wednesday declared a historical accounting of the Indian
In a 165-page decision, Judge James Robertson said the Interior
Department is "unable to perform an adequate accounting" of the Individual
Indian Money (IIM) trust.
The government "has not" and "cannot" cure its
breach of trust to hundreds of thousands of Indian beneficiaries
who have never been told how much money they are owed for the use
of their land, he wrote.
"Indeed, it is now clear that completion of the required accounting is an
impossible task," said Robertson, who describe the breach of trust as
The decision, which came after a 10-day trial last October,
brought immediate praise from Elouise Cobell,
the lead plaintiff in the long-running case.
The Blackfeet woman from Montana filed the lawsuit in June 1996
and has contended that a true and accurate accounting
was not possible.
"This is a great day in Indian Country," Cobell said yesterday.
"We've argued for over ten years that the government is unable to fulfill
its duty to render an adequate historical accounting, much less redress the
historical wrongs heaped upon the individual Indian trust beneficiaries."
But Robertson didn't base his conclusion on the plaintiffs' assertion
that the government has destroyed or has not preserved trust documents.
He said the record was "inconclusive" on that issue.
Instead, he said Interior is unable
perform a satisfactory accounting due to budget constraints imposed by
"In its refusal to appropriate enough money to pay for such an
accounting, Congress has not amended that demand or the common law of
accounting," Robertson observed. "What it has done, instead, is to render a real
accounting impossible -- or, perhaps, to recognize that such an accounting is
impossible, unless it is 'nuts' enough to pay more than $3 billion to hunt down
perhaps $3 billion of unexplained variances in the government's accounts."
Despite recognizing Congressional limits, Robertson did not let
Interior off the hook.
The department's May 2007 accounting plan -- the third
since the start of the Bush administration --
"falls short of its promise to provide
beneficiaries reasonable assurance that
their account balances are accurate," he said.
The main problem with the accounting is that Interior
won't confirm opening balances for any of the IIM accounts,
"If I demand an accounting
for funds in my non-interest earning checking account ...
I would have firsthand knowledge that the account was
indeed opened with, for example, a $500 deposit," he said.
IIM plaintiffs who receive HSAs containing a list of
transactions, however accurate, will have no ability to
contextualize those transactions," he wrote, referring
to the historical statements of account (HSAs) that Interior
wants to provide to beneficiaries.
Robertson also said Interior's failure to tie land -- the corpus of the trust -- to the revenues generated by activities on the land makes it "utterly impossible" for a trust beneficiary to determine whether the department is fulfilling its fiduciary duties. "Beneficiaries are provided no records indicating their historical ownership interests," he said of the accounting plan.
Regarding the actual scope of the accounting, Robertson agreed that
beneficiaries who receive direct payments are not included because said their
funds are never "held" in trust by the government. Similarly, beneficiaries
whose trust funds are managed by tribes -- there are two known cases -- are not
owed an accounting by the government.
On a second scope issue, Robertson said the department cannot exclude
administrative fees and Youpee
interests -- named for a U.S. Supreme
Court Case -- from the accounting. Fees charged by the government and
unconstitutional escheatments of Indian land to tribes must be part of the plan,
Special deposit accounts, however, can be excluded, Robertson concluded.
He said Interior's method for dealing with the accounts -- by going after the
high-dollar ones first -- is reasonable.
But he said Interior's decision to exclude IIM accounts that were closed
before the American Indian Trust Fund Management Reform Act became law and to
exclude predecessor interests is "not sanctioned by the common law of trusts or
the plain terms of the 1994 act."
"The rationale for including predecessor
accounts in the historical accounting process is simply that beneficiaries are
entitled to know where their money came from," he noted.
Robertson plans a hearing in about
30 days to discuss the next step in the case
-- how to "remedy" the situation.
Cobell said the plaintiffs look forward to resolving the case.
"Instead of truthfully seeking to remedy the government's admitted historical
mismanagement, the government elected to fight plaintiffs every step of the way,"
she said. "Judge Robertson has settled the debate in favor of plaintiffs and found that an
adequate historical accounting is, in fact, impossible."
Robertson, a Clinton nominee, is the second judge on the Cobell
case. He was assigned in December 2006 after Judge Royce Lamberth
was removed when the Bush administration raised questions of
bias and impartiality.
In April 2007, Robertson surprised both sides in the case when he
ordered a trial on the historical accounting. The plaintiffs
had long sought one but the government resisted
and asked to be left alone to complete its accounting project.
of Fact and Conclusions of Law
(January 30, 2008)
Final Briefs:Cobell Brief:
Conclusions of Law
| Cobell Brief:
Findings of Fact
| DOJ Brief: Findings
of Fact and Conclusions of Law
Trial Order:Cobell v.
Indian Trust: Cobell v. Kempthorne - http://www.indiantrust.com
v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
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