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Thursday, September 25, 2003

The federal judge overseeing the Cobell lawsuit today ordered the federal government to complete an historical accounting of billions of dollars of Indian funds by 2007, and affirmed that common trust law applies to the management of that money..

In a 270-page ruling, U.S. District Judge Royce Lamberth largely accepted the historical accounting methodology proposed by the Department of Interior. But he rejected several limits the Bush administration sought to impose on the project, saying that it should go back to 1887, the date the Individual Indian Money (IIM) trust was created, and that it should include the assets of those who died waiting for an accounting.

Lamberth forbade the use of statistical sampling, another one of the government's proposals, except to perform an audit of the trust. The accounting should be conducted based on standards that an accounting firm hired by Interior has developed, he added.

To ensure the government carries out its duties, Lamberth plans to appoint a judicial monitor. The monitor and any agents he or she hires shall have "unlimited access to Interior�s premises and records, as well as the power to conduct confidential interviews with Interior officials and employees," the decision states.

But mindful of the separation of powers, Lamberth said he will instruct the monitor and the agents "not to intervene in the administrative management of Interior, and not to direct the Interior defendants or any of their subordinates to take or refrain from taking any specific action to achieve compliance. It will further direct the monitor and his or her agents not to consider matters that go beyond superintending compliance with this court's injunction."

A separate 79-page decision describes how the Interior will fix the trust and the standards by which it is to be administered. Concluding that the "duties imposed at common law upon trustees govern the administration of the IIM trust," Lamberth identified all of the basic fiduciary duties that are applicable.

Lamberth also recognized the role of tribal governments in the trust. He called on the department to ensure that it follows tribal law when necessary, and allowed the National Congress of American Indians (NCAI) a continued role in the suit as a friend of the court. "It is manifest that the Indian Tribes are major stakeholders in the administration of the IIM trust," he wrote.

In an 18-page order, Lamberth set out timelines for the government to meet in performing the accounting and fixing the system. He said Interior should complete the accounting for per capita and judgment accounts by September 30, 2004; all land-based accounts by September 2006 and all special deposit accounts by September 2007.

Lamberth imposed deadlines on the department's "to-be" project of trust reform. Noting that it is "really only a plan to make a plan," he said it should be completed by March of next year.

Today's decisions come after a 44-day trial Lamberth concluded on July 8.

Decisions:
Historical Accounting | Fixing the System | Structural Injunction

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust

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