Cobell judge rejects early end to landmark trial

Cobell

Tuesday, June 17, 2008

The federal judge handling the Indian trust fund lawsuit said on Monday he will wait until he hears all of the evidence before ruling in the landmark case.

Judge James Robertson began hearing testimony last Monday to determine how much money, if any, is owed to hundreds of thousands of Indian landowners. Just four days into the proceeding, the Bush administration asked him to put an end to the plaintiffs' claim for $58 billion.

Attorneys from the Department of Justice said the plaintiffs didn't prove they are owed restitution for the federal government's failure to distribute all of the trust funds. The government's motion was filed on Thursday, a day after the plaintiffs rested their primary case.

But Robertson said he won't rule on the motion until the trial ends. The government is still presenting witnesses and the plaintiffs will be able to call rebuttal witnesses afterwards.

"I'm not finished with any of the issues in this case yet," Robertson said yesterday.

At the same time, Robertson offered some early observations about the testimony presented so far. He said he wasn't convinced that the law, or the evidence, was on the plaintiffs' side when it comes to showing whether the government obtained benefits by failing to distribute all of the trust funds.

"At this point in the trial, the government has the better of the argument on the benefit to the government argument, I believe," Robertson said.

However, he said he still has to grapple with some "murky" law regarding the government's failure to account for all of the trust funds. He considers this to be a separate issue from the one about benefits.

"We have been, I think, proceeding on the premise that under ancient equity cases, if the government can't account for it -- that it's the government's burden to account for that money, and if it can't account for it, then consequences flow," the judge said.

The trial resumed yesterday morning after four days of testimony last week. Robertson only scheduled hearings from Mondays through Thursdays.

Going by the pace of testimony, the trial could wrap up at the end of this week or sometime next week. Earlier this month, Robertson said he expected a two- to three-week proceeding.

The government's first witness, Michelle Herman of FTI Consulting, concluded her testimony yesterday. She was on the stand for more than two days, far longer than any of the plaintiffs' witnesses.

Robertson has said he will a final ruling later this summer.