Judge opens landmark trial in trust fund case

Cobell

Tuesday, June 10, 2008

The landmark trial in the Indian trust fund case began on Monday as the Bush administration drastically revised some key figures in the long-running lawsuit.

During opening statements, attorneys for the plaintiffs and the federal government clashed over the amount of the money at issue in the dispute. Both sides promised to present testimony and evidence in hopes of putting a dollar value on the table.

"We're looking at a judgment," plaintiffs' attorney Dennis Gingold said, "that is substantially in the billions of dollars. That's a lot of money but it's been 120 years."

Department of Justice attorney Robert Kirschman challenged the claim, citing new studies that he said showed 99 percent of the money that came into the trust was paid to Indian beneficiaries. According to the government, only between $158 million and $365 million is in dispute.

"There is no legal or factual basis to pay the plaintiffs billions of dollars or anything even close to $1 billion," Kirschman told the court. "This amounts to millions, not billions."

The new figures differ dramatically from those the government presented during a trial last year. Based on the earlier numbers, Judge James Robertson has suggested somewhere between $3 billion to $3.5 billion remains in dispute.

After hearing from four witnesses yesterday, Robertson didn't seem to get any closer to clarifying the amount. But he dropped some hints about the legal remedies he is considering as he attempts to put the 12-year-old case -- which was filed on June 10, 1996 -- to rest.

"Remember, we're trying to put together a number here," Robertson said.

Robertson indicated he might be looking at issuing a declaratory judgment to order the government to deposit a certain amount in the Individual Indian Money (IIM) trust. That judgment could be supplemented by "restitution" to the plaintiffs, a figure based on the alleged benefits the government obtained by failing to distribute the trust funds.

"Can there be restitution for a failure to account?" Robertson asked the plaintiffs' first witness.

Douglas Laycock, a professor at the University of Texas-Austin School of Law and an expert on restitution, appeared to agree that such a strategy would protect at least some part of a final judgment from being overturned on appeal. But he said the judge would be "breaking new ground" regardless of the outcome.

James C. Miller III, who served as director of the White House Office of Management and Budget during the Reagan administration, followed up with testimony about the alleged benefits the government obtained through its management of the trust. He said the government doesn't have to borrow as much money to keep running because it can rely on the funds derived from activities on Indian lands.

"There is a significant and quantitative benefit to the United States," he said.

Miller was the fourth witness to testify for the plaintiffs on the first day of the trial. The fast-moving pace was welcomed by Robertson but the government attorneys objected on the grounds that they weren't being given enough time to prepare their cross-examinations.

If the pace is maintained, the plaintiffs' attorneys said they might be able to wrap up their case by the end of this week. Robertson is only hearing testimony on Mondays through Thursdays.

The trial will resume this morning at 9:30am with the government's cross-examination of Miller. On Wednesday, Robertson will start after the lunch hour due to other matters in his court.