Bush administration objects to Cobell data request

Tuesday, September 11, 2007  

Despite an order from a federal judge, the Interior Department said on Monday it would not turn over electronic trust data to the Cobell plaintiffs.

In a 20-page filing, lawyers for Secretary Dirk Kempthorne objected to the plaintiffs' request for data on 67 Indian trust beneficiaries. According to the government, the request was too broad and would take too long to fulfill.

"To date, Interior defendants have devoted over 40 man-hours of computer search and data collection time –- more than 20 times the effort plaintiffs proposed –- and the search results and data gathering for three computer systems are not yet complete," the brief from the Department of Justice said.

The objection comes a month before the Bush administration heads to trial over its historical accounting of the Individual Indian Money (IIM) trust. Judge James Robertson ordered an October 10 hearing to determine how much Indian beneficiaries have or have not been paid.

As a prelude to the trial, Robertson on July 9 allowed the Cobell plaintiffs to seek electronic records for no more than 100 trust beneficiaries. He said it was more than reasonable to obtain the data, since it's a part of the accounting process.

At the hearing, Robertson said "the plaintiffs are certainly entitled in their way in this proceeding to essentially test what you have got, and I think that is the way they are choosing to do it."

According to the government, however, the plaintiffs are seeking far too much information than anticipated. DOJ lawyers said the request was filed a month late and said the plaintiffs only provided names of beneficiaries without other identifying information, such as IIM account numbers.

"Plaintiffs provided no addresses; no account numbers; and no dates of birth or death. The omission of such helpful information is unexplained, and seems unusual in light of the fact that plaintiffs' list appears to include some individuals who may have been dead almost a century or more," yesterday's court filing stated.

The government also said too many of the beneficiaries represent the Blackfeet Nation of Montana. Elouise Cobell, the lead plaintiff, is a tribal member and the tribe's former treasurer.

"According to an Interior Department breakdown of IIM accounts as of June 30, 1992, only about 14.3% of IIM accounts and fewer than 8% of IIM funds related to what was then referred to as the BIA Billings Area Office," the filing stated. "Without proof that the 67 names fairly correspond to and represent the class as a whole, their anecdotal experience will provide no probative or reliable information for trial."

Finally, the brief said the plaintiffs' request goes too far in seeking data from nearly a half dozen computer systems, plus other electronic documents that may not be housed in those systems. According to the government, the plaintiffs are even seeking information from systems that don't contain Indian trust data.

What the government said it would provide only comes from three systems -- the Trust Fund Accounting System (TFAS), the Trust Asset and Accounting Management System (TAAMS) and the Historical Accounting Project (HAP) database, a new database created by the Office of Historical Trust Accounting. The Office of Special Trustee spent 13 man-house searching TFAS but only matched 14 out of 67 names, the brief stated.

A search of HAP turned up matches to 47 names while a search of TAAMS turned up 27 names after a "full day" of work, according to the government. The Bureau of Indian Affairs has been performing the TAAMS work, the brief stated.

The Bush administration opposed opening up the trust data to the plaintiffs. A government lawyer said Special Trustee Ross Swimmer told him a search of the systems would be "very involved" and "labor intensive."

The data is crucial to the upcoming trial because the Bush administration has been relying on the data to tell Congress and the public that Indian account holders are owed very little for the management of their trust funds. Associate deputy secretary Jim Cason said in April that the historical accounting of the electronic records has uncovered only a handful of errors.

Both sides agree at least $13 billion has passed through the IIM trust since the early 1900s. They disagree on how much has been paid out, whether it was the right amount and whether it went to the right beneficiaries.

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. 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.

Court Filing:
Objection to Plaintiffs' Request (September 10, 2007)

Relevant Documents:
2007 Historical Accounting Plan (May 2007)

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