Cobell judge orders historical accounting trial

Monday, April 23, 2007  

The Bush administration will have to defend its controversial historical accounting of the Indian trust at a trial this October.

In a five-page order issued on Friday, Judge James Robertson ordered the Interior Department to present its accounting of the Individual Indian Money (IIM) Trust at a trial starting October 10. He noted that it has been more than seven years since the government was told to account for at least $13 billion owed to more than 500,000 Indian beneficiaries across the country.

"More than seven years (and twenty-eight quarterly status reports) after Cobell V, it is both prudent and well within the supervisory powers of this court to review the accounting project in detail, and to do so in open court, where the government may present, and plaintiffs may test or challenge, the methodology and results of the accounting project up to the time of the hearing," Robertson wrote, citing the landmark December 21, 1999, decision that upheld the duty to account for the trust.

Robertson called the open-ended trial to address several unresolved questions in the long-running Cobell case. He hopes to determine whether the government has cured the breaches of trust identified in the December 1999 ruling, whether the accounting satisfies fiduciary trust standards and whether the accounting was "unreasonably" delayed.

With the proceedings set to "continue as long as necessary," Robertson also envisioned a visit to Interior's Indian records repository in Lenexa, Kansas. The Bush administration opened the center to maintain documents related to the IIM trust, which was created in 1887.

The decision marks Robertson's strong intention to resolve the 11-year-old case, which he inherited just four months ago after Judge Royce Lamberth was removed at the request of the Bush administration. It was Lamberth who wrote the Cobell V decision on the accounting, an order that was upheld by the District of Columbia Court of Appeals.

Keith Harper, an attorney for the Cobell plaintiffs, welcomed the decision to call the trial. He said it will finally prove that the government cannot account for the money owed to Indian beneficiaries.

"We can absolutely, conclusively demonstrate without any doubt that the United States cannot -- no matter how long they are given, no matter how many resources they are provided -- perform the accounting that is required by law," said Harper, a member of the Cherokee Nation of Oklahoma.

Government officials disagree. They say the accounting projects have uncovered only a handful of errors in the IIM trust, which sees about $300 million to $400 million a year in revenues from land-based activities such as oil and gas drilling, the distribution of judgment funds and the distribution of per capita funds.

After spending $175 million, "in large part, we're pretty darn close to where we want to be," said Jim Cason, the associate deputy secretary at Interior, at a recent House hearing.

Cason cautioned that the projects have mainly looked at judgement fund and per capita fund accounts, which are not as complex and document-intensive as the land-based accounts. But he suggested further examination of the land-based accounts wouldn't turn up any major errors.

Where the plaintiffs and the government agree is that at least $13 billion passed through the IIM trust since the early 1900s. The trial, as Robertson outlined in his order, would seek to determine whether all of the money has been accounted.

Under common trust law, it is the duty of the trustee to prove the money went to the correct beneficiary. If that can't be shown, the beneficiary is entitled to the money.

"So far, the way the system is set up, they don't have to prove anything," Cason said of the plaintiffs' trust law strategy.

Citing destroyed documents and missing evidence, Harper said it is "impossible" for the government to account for all of the funds. He said Robertson would be able to restate the account balances based on information the plaintiffs plan to provide at trial.

"It is up to the court to determine what alternative equitable remedies are available to the beneficiaries," Harper said. "That's what trust law provides."

Based on the assumption that a certain percentage of the $13 billion was paid to the correct beneficiaries, the plaintiffs have suggested a restatement of at least $27.5 billion, a figure that includes interest on missing payments. The Bush administration has proposed a far lower amount, somewhere in the low millions.

A bill introduced last year would have provided $8 billion to settle the case. The legislation never moved forward because the Bush administration failed to respond before the end of the 109th Congress.

Efforts to resolve the case have been renewed in the 110th Congress. But they are tainted by the Bush administration's proposal to settle more than 200 tribal trust lawsuits, in addition to Cobell, and resolve other trust reform issue for up to $7 billion.

Tribes have objected to the proposal, which they have termed "termination" of the trust. Sen. Byron Dorgan (D-North Dakota), the chairman of the Senate Indian Affairs Committee, said he objects to the inclusion of tribes in any Cobell settlement.

With an eye toward the October 10 trial, Robertson plans to hold a series of status hearings. The first is scheduled at 10am on May 9 in the federal district courthouse in Washington, D.C.

Court Order:
Cobell v. Kempthorne (April 20,2007)

Settlement Letter:
Kempthorne-Gonzales to SCIA (March 1, 2007)

Relevant Documents:
Alberto Gonzales Testimony (March 1, 2005) | SCIA Views and Estimates (March 1, 2007)

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