Judge holds one last hearing before big Cobell trial

Cobell

Tuesday, June 3, 2008

The federal judge handling the Indian trust fund lawsuit said on Monday he plans to hold a two- to three-week trial to determine how much money is owed to hundreds of thousands of Indian beneficiaries.

The trial, which begins next Monday, will focus on amounts in the billions, Judge James Robertson said. In a ruling this past January, he suggested about $3 billion to $3.5 billion in trust funds has been withheld from Indian account holders.

Additional money could be awarded if the plaintiffs can show the federal government benefited from failing to distribute the funds, Robertson noted. "The plaintiffs are going to want to prove that if they number is $1 billion, they are owed $3 billion," the judge said during a two-hour status conference.

Robert Kirschman, a Department of Justice attorney, continued to argue that no money is owed to Indian beneficiaries. Claims that the government failed to collect, or distribute, certain trust funds aren't part of the case, he said.

"The 'should haves' aren't part of this trial," Kirschman told the judge. "We don't think they can prove it," he said of the plaintiffs' claims they are owed billions.

Since being assigned to the case in December 2006, Robertson has steadily moved it forward following years of acrimonious litigation and numerous appeals by the Clinton and Bush administrations. After 12 years, he is promising to come to a final dollar amount by the end of the summer.

In court filings, the plaintiffs argue they are owed $58 billion, a figure that includes "all advantages or benefits" obtained by the government since the inception of the Individual Indian Money (IIM) trust in 1887. A key aspect of the trial will focus on the exact amount of the alleged benefit.

In court yesterday, Dennis Gingold, an attorney for the plaintiffs, cited a slew of cases that he said supported their argument. Expert witnesses will testify about IIM trust funds going back to the late 1800s, he said.

"Each one of our witnesses is relying on the government data," Gingold said.

The government previously acknowledged at least $13 billion has passed through the IIM trust since the early 1900s. During a trial he held last October, Robertson saw government data that led him to believe about $3 billion to $3.5 billion wasn't distributed.

"We saw what the numbers were," he said. "I suspect the numbers are going to be different at this trial."

On Friday, the government in fact submitted a new administrative record that contained revisions to the data. But Kirschman said the analysis -- which is apparently based on studies not seen by anyone outside the government -- won't be made public until it is presented at trial.

Robertson was concerned that the Bush administration would withhold the information and initially ordered the government to turn over the documents to the plaintiffs. But he changed his mind after hearing Kirschman object to the request.

"Just bring your witnesses and we'll see how it goes," Robertson said at the conclusion of the hearing

The trial begins June 9 at the federal district courthouse in Washington, D.C. Testimony will be heard Mondays through Thursday, with every Friday off.

Relevant Documents:
Pre-Trial Order (May 2, 2008)