Judge to issue final ruling in Cobell case in August

Cobell

Thursday, June 26, 2008

The federal judge handling the landmark Indian trust fund lawsuit said on Wednesday he will issue a final ruling in August.

After 10 days of trial, Judge James Robertson heard closing arguments in the 12-year-old case. Though he has ruled that the federal government cannot account for billions of dollars in Indian trust funds, he cautioned against an equally large final judgment.

"From where I sit today, the dispute in the case is between 10 digits and 9 digits," Robertson said, referring to the dollar figures at issue.

Robertson's commentary indicates that he is considering an award of no more than $10 billion. That's in the range suggested by several independent experts who have told Congress that the case is worth anywhere from $6 billion to $10 billion.

But it's far less than the $58 billion in restitution the Cobell plaintiffs sought in their initial filings. Based on new data produced during the trial, the request was lowered to $46 billion.

"A large number should not turn this court away from justice," said plaintiffs' attorney Bill Dorris during closing arguments. "The amount is high but the years have been many."

On the other hand, a 9- to 10-digit dollar award would be much higher than the amount suggested by the Bush administration. According to the federal government, the overwhelming majority of funds in the Individual Indian Money (IIM) trust have been distributed.

"At worse, no more than $409.8 million cannot be explained in the IIM system," said Department of Justice attorney Robert Kirschman. To the extend that any award is being considered, "it should be a low amount indeed," he said.

Elouise Cobell, a member of the Blackfeet Nation of Montana, and four other Indian leaders filed the case on June 10, 1996, during the Clinton administration. The lawsuit was certified as a class action to represent hundreds of thousands of current and former trust beneficiaries who never received an accounting of their funds.

The first major victory came in December 1999, when Judge Royce Lamberth held that the American Indian Trust Fund Management Reform Act of 1994 required the Interior Department to account for "all funds" in the IIM trust. The D.C. Circuit Court of Appeals in February 2001 upheld the decision, noting that the law did not create the duty to account but merely affirmed it.

Once the Bush administration came on board, the case took on a particularly acrimonious tone. After a slew of trials, contempt charges and appeals, Lamberth was removed from the case in July 2006 amid complaints about his impartiality.

Robertson was assigned to the case in December 2006 and pledged to resolve it as quickly as possible. He convened a trial in October 2007 to examine all of the issues surrounding the historical accounting.

In January 2008, Robertson ruled that the accounting was "impossible" due to funding restraints and limitations placed on the effort by the Bush administration. He started a trial on June 9 to finally put an end to the long-running case.

The trial focused on the plaintiffs' claim that they are entitled to restitution for the failure to account and for the benefits allegedly obtained by the government for failing to distribute all of the trust funds to beneficiaries. By adding up the data from 1887, the inception of the IIM trust, to 2007, the plaintiffs arrived at $46 billion.

The government responded during trial that the overwhelming majority of trust funds were distributed. Witnesses testified that the government did not benefit from the trust, which they said represents only a small portion of the trillion-dollar U.S. economy.

A separate issue in the case -- that of trust reform -- has not been on the radar since the appeals court struck down one of Lamberth's rulings. Yesterday, Dorris said the plaintiffs will ask Robertson to drop those claims without prejudice.