Judge opens electronic data to Cobell plaintiffs

Tuesday, July 10, 2007  

A federal judge on Monday said he would allow the Cobell plaintiffs to obtain electronic records of their trust fund data.

The plaintiffs have been seeking the data since the inception of the case 11 years ago. So Judge James Robertson said it was more than reasonable for the Interior Department to produce the records as part of the historical accounting effort.

But Robertson warned the plaintiffs not to use the exercise as a stunt or a fishing expedition. "I can sniff that out pretty well," he said during a status conference yesterday afternoon.

The move nevertheless drew objections from the Department of Justice. Attorney Michael Quinn said he previously spoke with Special Trustee Ross Swimmer about obtaining electronic records when the plaintiffs previously requested them.

"It's not just pressing a button and having those [records] pop out," Quinn said. He said Swimmer told him the effort would be "very involved" and "labor intensive."

Keith Harper, an attorney for the plaintiffs, said the government should be able to provide the data since it's already in electronic format. "The burden is slight," he told the court.

The plaintiffs want information on no more than 100 Individual Indian Money (IIM) account holders, Harper said. The data comes from three trust systems: the Integrated Resource Management System, the Land Record Information System and the Trust Asset and Accounting Management System.

The request is limited to the so-called "electronic era" of the IIM trust, Harper added. The Interior Department only started putting the information into computer systems starting in 1985.

The data could prove to be crucial because the Bush administration has been relying on its analysis of the electronic era data to tell Congress and the public that Indian account holders are owed very little for the management of their trust funds. In testimony to a House subcommittee in April, associate deputy secretary Jim Cason said the historical accounting project has uncovered only a handful of errors.

The electronic era will be among the many aspects of the trust that will be put to the test come October 10, when Robertson starts a trial on the historical accounting. The judge has held three status conferences to sort out some of the issues he will be trying in the coming months.

At the second status conference in June, Robertson said he wants the federal government to show how much money Indian beneficiaries were or weren't paid. Certain limits the Bush administration placed on the accounting -- such as excluding deceased beneficiaries -- aren't acceptable, he said.

Robertson reiterated the focus of the trial during yesterday's hearing. He also provided more details on how he expects the proceeding to unfold.

Unlike most other trials where the plaintiff goes first, he said the government will present its side first. Department of Justice attorneys agreed they would proceed in that manner.

Robertson set deadlines for both sides to exchange witness lists and further briefs. He also said documents that were admitted during previous trials are "presumed" to be admitted during the upcoming trial, though he said the government would be able to object based on relevance.

Finally, Robertson ordered the government to tell the court about the "throughput" of the IIM trust and about the costs associated with performing a more expansive accounting. The government was not planning on filing such information because it's not part of the administrative record submitted last Friday.

The two issues, however, are key to determining whether account holders were paid and whether the historical accounting as envisioned by the government will comply with the law, Robertson said. At least $13 billion has passed through the trust since the early 1900s, both sides in the case agree.

What happens after the trial remains an open question. Robertson has said it would be for another day to determine whether Indian beneficiaries will receive any money.

The Cobell plaintiffs, along with national Indian and tribal organizations, have called for a $27.5 billion payment, which includes interest. The figure is based on the assumption that a certain percentage of the $13 billion throughput was paid to the proper beneficiaries.

Independent experts have agreed that a settlement should be in the billions, with figures ranging from $6 billion to $10 billion provided in Congressional testimony. A bill that was introduced last year would have provided $8 billion to end the case.

The Bush administration, on the other hand, believes account holders are owed in the low millions. A counterproposal to the settlement bill would have provided up to $3.5 billion to end the Cobell case and extinguish any future damages claims.

Relevant Documents:
2007 Historical Accounting Plan (May 2007)

Recent Briefs:
Bush Administration (June 13, 2007) | Bush Administration (June 11, 2007) | Cobell Plaintiffs (May 31, 2007) | Cobell Plaintiffs (May 29, 2006) | Bush Administration (May 11, 2006)

Historical Accounting Report:
Office of the Special Trustee for American Indians Report to Congress (May 2006)

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