Judge presses Interior on historical accounting plan

Tuesday, May 15, 2007  

The federal judge handling the Indian trust fund case pushed the Bush administration on Monday to finalize its historical accounting plan, citing delays that could hinder an upcoming trial.

During a two-hour-plus hearing in Washington, D.C., Judge James Robertson said he was promised the plan over a month ago. But a Department of Justice lawyer wasn't able to confirm an exact release date.

"Come on guys, this has been a long time coming," Robertson said. "What's the holdup?"

Robertson contemplated an order to force the Interior Department to finalize the plan but resisted the idea in hopes of avoiding the legal acrimony that has characterized the 11-year-old Cobell case. "I don't want any more contempt citations," he said. "I don't want any more sanctions."

With an October 10 trial on the historical accounting approaching, however, the judge said swift action is crucial. "I can't wait till September for it," Robertson said. "It seems to me the plan itself will be subject to [some] challenge."

Pressed on the matter, Robert E. Kirschman of the Department of Justice said the plan will be released in "coming weeks," perhaps as early as May 31. He said it was still being reviewed by the Interior Department, whose Office of Historical Trust Accounting is handling the effort to tell Indian beneficiaries how much they are owed for the use of their land.

Keith Harper, a member of the Cherokee Nation of Oklahoma and an attorney for the plaintiffs, criticized the effort. He said Interior is excluding hundreds of thousands of Indian account holders from the accounting and has limited the project in other ways that are contrary to law.

"They can't do the accounting because they've destroyed documents and the data is unreliable," Harper said.

The plaintiffs and the government remain far apart on the details and scope of the accounting, which was ordered back in December 1999 and upheld on appeal in February 2001. Work only began after the Bush administration issued its first plan in June 2002, which was revised in January 2003 and will be further amended by the new document.

The trial, set to start October 10, seeks to address some of the differences but the two sides have differing views on how it will be conducted. "You're all wrong," Robertson said to both parties during the hearing.

He said the plaintiffs are seeking too much information ahead of trial while the government wants to limit testimony and witnesses. However, he agreed to accept two briefs from the plaintiffs to explain issues such as the exclusion of beneficiaries who receive direct payments, deceased beneficiaries and their heirs and beneficiaries whose accounts were closed and who won't be receiving an accounting.

Robertson also agreed to consider the plaintiffs' requests for documents related to the accounting. But he warned the attorneys that he won't let the discovery process delay the upcoming trial.

On a separate issue, Robertson rejected the government's motion to dissolve a 2001 consent order on information technology security. The agreement, entered by Judge Royce Lamberth following a court investigation that showed billions of dollars in Indian trust funds were vulnerable to computer hackers, keeps Interior bureaus and offices off the Internet until they can demonstrate they are secure.

The overwhelming majority of Interior's computer systems are back online but the Bureau of Indian Affairs and the Office of Special Trustee remain disconnected more than five years later. Robertson said he wouldn't lift the consent order unless he is shown proof that the two agencies have fixed their IT problems.

"You haven't made the requisite showing that you have the security," he said. But if the government comes to the court with proof, he said he likely to dissolve the agreement so BIA and OST can get back on the Internet.

On a third issue, Robertson tried to resolve another acrimonious matter: legal fees to the plaintiffs. He said it was taking far too much time to resolve how much money is owed to attorneys for successes in the case.

"I'm frankly disappointed with both parties on this particular issue," Robertson said. He ordered the plaintiffs to resubmit certain legal bills and hoped to resolve a dispute that dates to motions filed back in 2000 and 2001.

The next status hearing is set to take place June 18. Robertson hopes to hold a series of conferences in advance of the open-ended October trial.

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