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Cobell historical accounting trial starts in DC
Wednesday, October 10, 2007
Filed Under: Cobell
A federal judge in Washington, D.C., will being a trial today into the historical accounting of the Indian trust fund.
Elouise Cobell, a member of the Blackfeet Nation of Montana, sued the Interior and Treasury departments in June 1996. She asked for an accounting of the Individual Indian Money (IIM) trust.
A judge ruled for Cobell in December 1999, ordering the government to conduct the accounting. But there is still no answer on how much money, if any, Indian beneficiaries are owed for the use of their land for oil, gas, grazing, rights-of-way and other activities.
Judge James Robertson is presiding over the case. He wants the government to prove that its accounting plan is adequate.
The trial takes place in Courtroom 23A of the federal district courthouse. It is expected to start every day at 9:30am and end at 5pm.
Get the Story:
American Indian lawsuit sparked by Montana woman being heard (KPAX 10/9)
http://www.montanasnewsstation.com/Glob … ?S=7189895
Indian Trust: Cobell v. Kempthorne http://www.indiantrust.com
Cobell v. Norton, Department of Justice http://www.usdoj.gov/civil/cases/cobell/index.htm
Cobell historical accounting trial underway
Thursday, October 11, 2007
Filed Under: Cobell
A federal judge in Washington, D.C., opened a highly anticipated trial into the Indian trust fund on Wednesday.
Saying it was "a long time in the making," Judge James Robertson, a Clinton appointee, quickly jumped into the open-ended proceeding. He wants to know how much money, if any, Indian landowners are owed for over 100 years of government management of their trust funds.
"We are here for day one of who knows how many days of the trial of Cobell v. Kempthorne," Robertson said, referring to lead plaintiff Elouise Cobell, a member of the Blackfeet Nation of Montana, and Interior Secretary Dirk Kempthorne, one of the named defendants.
Opening statements from the Department of Justice and the Cobell plaintiffs indicate the trial will be a long one. Both sides disagree on just about every aspect of the historical accounting at issue in the eleven-year-old case.
The one area where both sides had expressed some agreement quickly crumbled as soon as Robert Kirschman, a DOJ attorney, spoke. He said the estimate that $13 billion has passed through the Individual Indian Money (IIM) trust since 1909 was too "high" because it included tribal funds and other funds not owned by Indian landowners.
Kirschman said a more accurate throughput was $11.7 billion. But he left the door open for further downward revisions due to ongoing historical accounting work.
On the other hand, Dennis Gingold, one of the attorneys for the plaintiffs, said the $13 billion was actually too low. He cited a previously undisclosed government e-mail from 2001 which suggested the figure was off by at least $15 billion because certain trust funds were never included.
The historical accounting of billions of dollars of trust funds owned by Indian landowners is supposed to resolve this issue. Since 2001, the Bush administration has offered at least three plans to do the work.
The one being considered at the trial was issued in May 2007 and contains a number of limits that Robertson wants to explore. Kirschman, however, urged the judge to take a hands-off approach, saying the government will prove that the accounting is adequate, given funding and time restraints.
"We will request that the matter be remanded to the Department of the Interior, to carry out its historical accounting plan without further interruption," Kirschman told the court.
Gingold asked the judge for the exact opposite. He said the court is one of the few places where Indian landowners feel they can obtain justice.
"What we're looking at is an abuse that has gone on for 120 years and we're hoping this is the beginning of the end of that abuse," Gingold said.
With opening statements completed, the government's first witness took the stand. It was Jim Cason, who is the associate deputy secretary of the Department of the Interior and is the official with the most power over the Indian trust.
After a relatively short direct examination by DOJ attorney John Stemplewicz, Cason defended the 2007 plan amid pointed questions from Bill Dorris, another attorney for the plaintiffs. The major points of contention were the limits placed on the accounting and whether they were justified.
Cason acknowledged that the 2007 plan reduced the amount of work contemplated by plans the department issued in 2003 and 2002. He said Congress was unwilling to fund a billion-dollar historical accounting and that the public was unwilling to wait a long time for the result.
But he was forced to admit that Interior excluded a significant number of Indian landowners from the 2007 accounting plan solely for legal reasons. As one example, beneficiaries who were not on the IIM system when the American Indian Trust Reform Act was passed in 1994 won't receive an accounting.
"It's not based on cost, is it?" Dorris asked of this exclusion. "No," Cason replied.
Cason also admitted that the 2007 accounting plan is not based on a reconciliation of each beneficiaries' IIM account, as prior plans had envisioned. Instead, it focuses on a method that samples transactions across all trust accounts in the system.
Even with this change, Cason acknowledged that the number of transactions being examined under the 2007 plan dropped dramatically from the 2003 plan. Yet he said it would still take four more years to complete the accounting even though the 2003 plan promised it would have been finished by the end of this year.
Cason further said the department has yet to decide how it will account for the paper records of the trust. So far, the work has focused on electronic records from 1985 to the present.
"Do you know how many [paper records] are going to be examined?" Dorris asked. "I don't," Cason said. "Does anybody? Dorris continued. "I don't know that," Cason responded.
Another contentious issue revolved around on a little discussed project known as the Litigation Support Accounting, or LSA. It was developed by the Bush administration after a rider was placed in the 2004 Interior appropriations bill that called for a legislative settlement of the case.
In Congressional testimony and in public statements, Cason has frequently spoke of the results of the LSA. He reiterated some of them yesterday, saying the project showed a "sufficiently low" error rate in the electronic records of the IIM trust.
Based on the results of the LSA, Cason has said that Indian landowners are owed very little for government management of their trust funds. "What we found out of that is that, again, we found a handful of errors," he testified yesterday. "They tended to be on both sides of the ledger, they tended to net out to a relatively small error rate."
But several documents the government placed in the administrative record for the trial appeared to cast doubt on the reliability of those statements. At times, Cason was unable to recall critical details about the project and who made decisions about it.
He also appeared to be unfamiliar with some unusual government documents that suggested the primary basis for the LSA was to limit the government's trust liability and -- in the words of the plaintiffs -- to "drive down" potential settlement figures.
Earlier this year, Secretary Kempthorne, in fact, proposed a $3.5 billion settlement to the case, far lower than the $8 billion that key members of Congress were proposing in late 2006.
One particularly striking government document that was placed in the record spoke of a strategy in which the Bush administration would be able to declare public relations "successes" as it carried out the historical accounting. "I think the Department of the Interior gets no credit for effort," Cason said.
"Part of our strategy was to segment the work and declare success," Cason said of efforts to reconcile per capita and judgment fund accounts, which are not as complex as land-based accounts whose funds come from oil, gas, grazing and other activities.
The majority of the accounts in the IIM system are land-based and accounting for them costs more money and takes more time than the other types of accounts.
Another LSA issue went to the heart of the low error rate that Cason has frequently cited. A document in the record spoke of an "adaptive" strategy in which missing or unavailable paper records aren't considered hindrances to the historical accounting.
"We did not automatically consider that to be an error," Cason said of missing records.
The first day of the trial ended with Cason still under cross-examination. His testimony is set to resume today. Cathy Ramirez, an employee with the Office of the Special Trustee for American Indians will be the government's second witness.
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Cason concludes testimony in Cobell trust trial
Friday, October 12, 2007
Filed Under: Cobell
The Bush administration only plans to account for about half of the money in the Indian trust fund, a senior official testified on Thursday.
In December 1999, the Interior Department was ordered to account for "all funds" in the Individual Indian Money (IIM) trust. A federal appeals court upheld the ruling in February 2001.
But the Bush administration's latest accounting plan appears to fall short of that goal. Jim Cason, the associate deputy secretary at the Department of the Interior, said only 50 to 55 percent of the money in the IIM trust will be reconciled.
On his last day on the stand, Cason also defended the government's management of the trust. He said the accounting work so far -- which is largely based on electronic data from 1985 through the present -- has turned up no "systemic" errors.
"Generally, the system works very well," Cason testified under cross-examination by the Cobell plaintiffs.
But Cason was forced to admit the department has never fulfilled at least one of its duties to Indian landowners. "It's my understanding that we've never had a regular, periodic accounting," he said.
The Indian trust was created in the late 1800s as a result of the allotment of tribal lands to individual Indians. Since the early 1900s, the government says around $11.7 billion has passed through the system. The plaintiffs say at least $13 billion, and possibly more, has been received.
Some Interior officials, including Special Trustee Ross Swimmer, have asserted that the government has always had a duty to account for these funds. Cason didn't necessarily think that was the case when asked about the lack of prior reconciliation of the IIM trust.
"The Department of the Interior did not anticipate 100 years later that we would have to do this kind of accounting," he said.
But the department did anticipate that Indian landowners would have to pay some of the services they receive from the government. Although Cason and other officials have characterized the trust as a "free" system, he admitted to a "handful" of administrative fees.
"In large part, we don't charge fees" except for a "few cases," Cason said. The administration's May 2007 historical accounting plan, however, won't tell Indian landowners how much they have paid the government, Cason acknowledged.
Cason also said the plan doesn't address an unresolved U.S. Supreme Court decision. In 1997, the justices said Interior violated the constitutional rights of Indian landowners by forcing them to give up their property without just compensation.
The Youpee case affected property owned by about 18,000 individual Indians in the Great Plains and the Midwest. Due to fractionation and probate proceedings, the department has estimated that 775,000 land interests need to be resolved.
"I don't know the exact figure," Cason said. "They're very tiny interests."
The department could revert the interests back to their proper owners or compensate them, Cason said. But when asked whether any final decisions about the Youpee interests have been made, he replied "No."
"We're not doing an accounting for land," he added.
After a few rebuttal questions from the Department of Justice, Cason concluded his testimony yesterday morning. The government called its next witness, Kathy Ramirez, an employee of the Office of the Special Trustee for American Indians.
Ramirez works at the American Indian Records Repository in Lenexa, Kansas, where millions of records that are being used for the historical accounting are stored. "It's in a cave," she told the court.
Ramirez testified about the massive indexing and retrieval system at the AIRR. "I think it's rather impressive," she said of the overall facility, which houses several government agencies as well as commercial entities.
Ramirez didn't have any specific knowledge about the historical accounting of the IIM trust. Her testimony was mainly limited to record keeping practices and a photo presentation of the AIRR.
Judge James Robertson, a Clinton appointee who was assigned the case late last year after the removal of Judge Royce Lamberth, has expressed an interest in seeing the facility as part of the trial.
The next witness was Michelle Herman, one of the many consultants who has been hired by the government as part of the Cobell case. She took the stand late in the day on Thursday.
The proceedings are set to resume today. Robertson has set aside Fridays to address motions, legal issues and administrative matters. Testimony from witnesses is expected to take place Mondays through Thursdays.
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Interior says Cobell suit not worth billions
Monday, October 15, 2007
Filed Under: Cobell
Bush administration officials at the Interior Department don't think the Cobell trust fund lawsuit is worth billions of dollars.
Associate deputy secretary Jim Cason and Special Trustee Ross Swimmer said very few errors have been uncovered in the the Indian trust accounts so far. Any settlement would run in the millions, according to the officials.
Despite those sentiments, the Bush administration has offered $3.5 billion to end the case. Officials said the payment would cover the historical accounting of the trust, plus any damages from breach of trust claims.
Elouise Cobell, the lead plaintiff in the case, says an accounting is impossible. "There's too many missing records," she told The Oklahoman. "Documents are missing, systems are broken."
Cobell, a member of the Blackfeet Nation of Montana, has been in Washington, D.C., for a trial in the accounting. Cason testified in defense of the Bush administration's plan to reconcile transactions in the trust.
Get the Story:
Official says huge payoff isn't justified (The Oklahoman 10/14)
Username: email@example.com, Password: indianz
American Indian trust suit could total billions (The Atlanta Journal-Constitution 10/14)
http://www.ajc.com/business/content/bus … _1014.html
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Interior attorney set to testify in Cobell case
Monday, October 22, 2007
Filed Under: Cobell
Robert McCarthy, a field solicitor for the Interior Department, is set to testify for the Cobell plaintiffs in the Indian trust fund trial.
McCarthy is expected to take the stand on Tuesday. He will contradict testimony from Interior associate deputy secretary Jim Cason, according to the group Public Employees for Environmental Responsibility.
"To the extent that the government is relying upon the credibility of Jim Cason, it is in trouble," PEER Executive Director Jeff Ruch said in a press release.
McCarthy said he warned Interior about numerous problems in the handling of Indian trust accounts. "In July, an Interior audit confirmed Robert McCarthy’s charges but the agency continues to ignore repeated verifications that crippling weaknesses still exist," Ruch said.
Interior is now trying to fire McCarthy, saying he leaked confidential Indian trust data to the media. PEER is defending McCarthy as a whistle blower.
The trial into the historical accounting of the Indian trust started on October 10. It is entering its seventh day of testimony today.
Get the Story:
Press Release: INTERIOR ATTORNEY TO TESTIFY AGAINST GOVERNMENT IN COBELL CASE (PEER 10/22)
DOI attorney faults BIA office in Palm Springs
Wednesday, October 24, 2007
Filed Under: Cobell
An Interior Department attorney who has been locked out of his office at the Bureau of Indian Affairs accused the agency on Tuesday of failing to account for millions of dollars in trust funds.
After a stint in Oklahoma, field solicitor Robert McCarthy went to work for the BIA in Palm Springs, California, over three years ago. He said he quickly learned that the agency didn't have a way to track more than $30 million in annual lease payments owed to members of the Agua Caliente Band of Cahuilla Indians.
"The agency had a very poor system of record-keeping and was grossly mismanaging the leases ... and was generally not enforcing the leases," testified McCarthy, one of the witnesses for the plaintiffs in the Cobell trust fund lawsuit.
Enforcement was so lax that it was impossible to tell whether Agua Caliente landowners received the right amount of money for the use of their land and whether they received it on time, McCarthy said. The BIA essentially relied on the word of developers, private parties and outsiders.
"I saw files that were years in default," McCarthy said of leases that weren't enforced.
Even when a payment was made, the BIA didn't always pass it on to the beneficiary, McCarthy testified. In one case, the BIA kept a trust payment of $130,000 in a "special deposit account" for over 25 years because the agency didn't know whose money it was.
After some research, McCarthy said he discovered the owner "in fact was a very prominent tribal official."
McCarthy and Keith Harper, an attorney for the plaintiffs, were careful not to identify the official but the Department of Justice -- during a particularly harsh cross-examination -- later disclosed it was Barbara Gonzales Lyons, the tribe's former vice chair. One document that was entered into evidence showed she finally got all of her money in late 2004 -- 27 years after it was placed in the SDA.
Despite the apparent mismanagement, the BIA made money off of Agua Caliente landowners. "In virtually every case for virtually every type of administrative action," the agency charged a fee for its services, McCarthy said.
For example, a fee of 1 percent was applied to every single land sale, McCarthy said. In Palm Springs -- where real estate is big business -- this amounted to payments to the BIA that were as high as $60,000, according to one document entered into evidence.
But federal regulations limit fees for land sales to $22.50, McCarthy said. The regulations also cap fees for leases at $500, though that apparently wasn't followed in Palm Springs.
"Those fees are charged in Palm Springs on every lease," McCarthy told the court.
Similar problems were identified in a 1992 audit by the Interior Department's Inspector General. The report recommended the BIA add a field solicitor to the Palm Springs office and develop a system to ensure Agua Caliente landowners were getting paid fair market value and that their leases were being enforced.
The first recommendation was implemented but McCarthy said there was no evidence the BIA was handling the trust "any different from 1992." The agency did buy a computer system to track and enforce the leases but it "was not put into use," he testified.
"I found that it was in a back room in a locked office," he said.
More recently, the BIA started to enter Agua Caliente data into the Trust Asset and Accounting Management System (TAAMS). But a September 2006 memo from a realty officer in Palm Springs called the $40 million system little more than a "database of misinformation," according to a document entered into evidence.
The situation prompted McCarthy to warn his superiors in the Solicitor's Office, the Inspector General and eventually Jim Cason -- the associate deputy secretary at DOI who was in charge of the BIA at the time -- about the problems in Palm Springs. "I was kicked out of my office after I made my disclosures," McCarthy told Judge James Robertson, who wondered why the solicitor was working from home -- with pay -- rather than at the BIA office.
"Everyone stopped talking to me," McCarthy added. "I was shunned."
And when McCarthy informed his superiors that he was going to testify in the Cobell trial, he was told he was going to be fired for allegedly disclosing confidential trust data to the media. The Public Employees for Environmental Responsibility group is defending McCarthy, who has filed appeals over his employment status.
A draft Inspector General audit that has been circulating among Agua Caliente members appears to confirm the lapses in management in Palm Springs. It said BIA lacks a system to account for leases and cited BIA employees who said the TAAMS system was essentially useless.
After his direct testimony, McCarthy was treated in a hostile manner by Robert Kirschman, a DOJ attorney. Kirschman attempted to show that McCarthy tried to take sole credit for identifying the proper owner of the $130,000 trust payment, mischaracterized the way in which Agua Caliente leases are tracked and gave inaccurate information in the memo to Cason.
McCarthy appeared to withstand the scrutiny and Kirschman cut off his cross-examination after seeming to stumble on a question about fees. Kirschman also tried to make an issue out of a memo that he said McCarthy failed to provide to the court.
McCarthy was followed on the stand by Mona Infield, a longtime BIA employee who at one point was sent home for criticizing the agency for its trust management. She is back in her office in Albuquerque, New Mexico, where she is in charge of data recovery efforts.
Infield, a member of the Citizen Potawataomi Nation of Oklahoma, gave succinct but detailed testimony about trust accounting practices dating back to the 1980s. She spoke of outdated systems, missing computer records and a lack of enforcement.
"They were relying on an honor system to pay the royalties," she said of government agencies.
Infield concluded her testimony yesterday afternoon after DOJ attorneys declined to ask questions. Kevin Gambrell, a former DOI trust manager in Farmington, New Mexico, who was removed from his position for alleged insubordination and alleged destruction of documents, was set to testify today.
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Cobell historical accounting trial wraps up
Friday, October 26, 2007
Filed Under: Cobell
After just 10 full days of testimony, the trial into the Indian trust fund historical accounting concluded in Washington, D.C., on Thursday.
Judge James Robertson, who was assigned the case last December, called the trial in April. At the time, he said it would "continue as long as necessary," indicating a potentially long haul that could rival prior proceedings in the 11-year-old case.
Those expectations quickly faded as Robertson, throughout the trial, urged the government and the Cobell plaintiffs to keep their presentations short and to the point. It also helped that the judge decided not to visit the Interior Department's Indian records repository in Kansas as he earlier envisioned.
The speedy pace appeared to surprise both parties. Earlier this week, the Cobell team -- after presenting their first witness on Monday -- predicted the trial would end by Thursday or Friday.
The government and the plaintiffs now have until November 30 to present their final arguments. But just what Robertson will do next is anybody's guess.
"He's so hard to read," a visitor to the courtroom said earlier this week.
The Bush administration wants Robertson to keep his hands off the case so that the Interior Department can finish its historical accounting. The latest plan, issued in May, calls for the project to be finished by the end of 2011.
Jim Cason, the associate deputy secretary at Interior who was the government's primary witness, testified that the "2007 plan is a continuation of the work that we have already accomplished, and the 2007 plan is a road map of the activities that we plan to undertake to finish this job."
The Cobell plaintiffs want Robertson to keep a close eye on Interior. They say it's impossible for the historical accounting to be complete due to missing records, inaccurate data and destroyed documents.
"What that means is that the accounting balances cannot be confirmed," Paul Homan, a banker who was the very first Special Trustee for American Indians, testified.
According to his earlier court order, Robertson plans to determine whether the accounting plan satisfies fiduciary trust standards and whether the accounting was "unreasonably" delayed. He has been concerned about the limits and exclusions the Bush administration has placed on the project.
"This trial is about the adequacy of the accounting," Robertson reiterated this week.
Robertson also wants to determine whether the government has cured the breaches of trust that were first identified by Judge Royce Lamberth back in December 1999. The D.C. Circuit Court of Appeals upheld that ruling in February 2001.
But Robertson has said he is guided by some overarching principles that were more recently articulated by the D.C. Circuit. One ruling blocks his court from dictating the details of the government's plans and another requires him to be mindful of the funding limits imposed by Congress.
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Cobell historical accounting briefs due in court
Friday, November 30, 2007
Filed Under: Cobell
Update: Cobell Briefs: Conclusions of Law | Findings of Fact.
Today is the deadline for the Cobell plaintiffs and the federal government to submit their final briefs in the historical accounting trial.
Judge James Robertson heard 10 full days of testimony in October. He wants to determine how much Indian account holders have, or haven't, been paid for the use of their land.
According to a court order, both parties are to address the following issues: the background/development of the Bush administration's 2007 historical accounting plan, the scope of the plan, the exclusions of the plan, the cost of the accounting and the "throughput" -- or the total amount of money that has passed through the trust.
Robertson also said the parties could address other issues in their proposed findings of fact and conclusions of law.
The Cobell plaintiffs say an accounting is impossible due to missing records, destroyed documents and inaccurate computer systems. The Bush administration wants to follow its plan without interference from the court.
Opinion: U.S. wages war on Indian landowners
Tuesday, December 4, 2007
Filed Under: Cobell | Opinion
"Currently, we continue to wage war against the American Indian by refusal to accurately account for their trust fund money. This deplorable conduct is the subject of a lawsuit brought as a class action by the American Indians before the United States District Court for the District of Columbia styled as Cobell v Kempthorne, (sic Secretary of the US Department of Interior) at case number 96cv01285, Washington, DC.
The case was originally assigned to United States District Judge Royce Lamberth. No person with knowledge of Judge Lamberth’s past decisions would ever claim that he was anti-Federal government.
During the proceedings, Judge Lamberth formed an opinion that the Department of Interior was less than candid concerning the information that should be provided to the Indians to permit a fair trial. In February 1999, after the government’s abuses committed since the case began in 1996 had become intolerable, Judge Lamberth found Secretary of the Interior Bruce Babbitt, Assistant Secretary of the Interior Kevin Gover and Treasury Secretary Robert Rubin in contempt of court for their failure to produce documents, destruction of relevant documents and misrepresentations in sworn testimony.
The Department of Interior appealed Judge Lamberth’s findings to the United States Court of Appeals. In spite of additional false testimony, financial misconduct and bureaucratic retaliation against the Indians by the Department of Interior after entry of the contempt order, the Appellate Court reversed Judge Lamberth’s finding of contempt and removed him from the case. There was no proof that Judge Lamberth had entered the case with any animosity against the government. To the contrary, all negative opinion formed by Judge Lamberth was a result of evaluation of government conduct during the proceeding."
Get the Story:
William Sumner Scott: Where to begin: Wage peace (Spero News 12/4)
Cobell Brief: Conclusions of Law
Cobell Brief: Findings of Fact
DOJ Brief: Findings of Fact and Conclusions of Law http://www.indianz.com/docs/cobell/doj113007.pdf
Cobell: Accounting fiasco result of government myth-weaving
Posted: December 14, 2007
by: Elouise Cobell
Something dramatic and important has happened in the class action lawsuit I filed 11 years ago over the government's admitted mismanagement of the Indian Trust.
It should trouble everyone in Indian country because it signals a 180-degree turn in the way the Interior Department plans its long-promised accounting.
Gone are the government's initial, frank admissions of bungling the trust. In their place are new and troubling claims that the trust was actually well-managed. What losses the government says it can find are relatively small, perhaps several million dollars, since the trust was imposed in 1887.
Only the most unsuspecting rube could listen to such an about-face without skepticism. Thankfully, in Washington and in Indian country, there are not many left. And, for the few that remain, they need only examine the government's bountiful record of lies, misrepresentations, fraud, thievery and outright villainy in all matters involving Indian people.
The evidence our lawyers presented to U.S. District Judge James Robertson in October shows that the problems continue. Indians have been robbed of billions - not millions - of dollars; and the malfeasance continues today as Interior contractors get hundreds of millions of dollars to do little more than perpetuate a myth.
Despite the payment of a king's ransom in taxpayer dollars to the largest accounting firms in the nation, not a single one will provide any assurance that any trust account balance is fairly or accurately stated. One may (properly) inquire how a firm engaged in the practice of rendering opinions and assurance can be paid hundreds of millions of dollars to not render an opinion and not provide the Indian beneficiaries any assurance about the historical management of their trust assets. Everyone else will recognize the government's artless weaving of another dishonest myth.
The sad truth is that more than a billion trust records have been systemically destroyed. Records over several generations across all Indian country have been destroyed. And the evidence indicates that the destruction of trust records continues.
It should come as no surprise then that the government's accounting plan downplays the importance of records. ''The absence of supporting documentation does not imply an error,'' the plan asserts. Contractors are permitted to ''reconstruct missing transaction records'' as they deem appropriate. In other circumstances, the government assumes that disbursements from the Individual Indian Trust were paid to beneficiaries despite the fact that the trust's records systems were not tested and negotiated checks were destroyed, at least for the first 100 years of the trust. The government assumes that oil and gas production and revenue data is accurate notwithstanding that the inspector general has identified fraud in the Minerals Management Service audit process and a Senate Special Committee on Investigations has found pervasive fraud in Indian oil and gas programs.
Instead of preparing a proper accounting plan, the government has prepared a plan that it has captioned the ''Litigation Support Accounting,'' the principal purpose of which is to limit the liability of the government. There is no mention of the government's fiduciary duty to provide a fair and accurate accounting to all beneficiaries for all their trust funds. So, just what does the government's accounting plan entail?
Fully implemented, the Litigation Support Accounting entails the reconciliation of 6,600 transactions. That's it; there's nothing else planned. And, on this point, the government appears to be truthful because reconciliation work on the 6,600 transactions was completed in 2005, more than two years ago, and there's been no discernible reconciliation activity since. It is difficult to articulate just how meaningless the reconciliation of 6,600 transactions is to this class of all past and present individual Indian Trust beneficiaries, but the government's witnesses during the October trial provide valuable insight into some of the ways this accounting falls far short.
Of the approximately 500,000 current Indian Trust beneficiaries who are covered by our lawsuit (no one knows how many deceased beneficiaries are in the certified class), 268,000 will receive a statement under the government's plan. The balance of the 232,000 beneficiaries will be told nothing. As noted above, 6,600 transactions are to be reconciled. This means that no more than 1.3 percent of the certified class of plaintiffs will have any reconciliation activity in their account. If you are lucky enough to be one of the 1.3 percent of beneficiaries to have one of the transactions in your account reconciled, you should know that the transaction was not reconciled according to any professional standards used by any licensed professional anywhere in the world for any purpose.
If you are a potential recipient, you should know a few more things. You should also know that there is no assurance that the statement you receive is even relevant to your trust funds because the government has not devised a way to test whether all revenues are properly posted to your account. You should know that the government has not tested the accuracy of your contemporaneously recorded land ownership interests. You should know that the opening balance in your account was never verified. You should know that the government did not verify that the interest earnings in your account were correct. You should know that the government did not verify that your ancestor's trust assets, which you inherited, were properly and accurately transferred to you. You should know that if the government failed to collect your trust funds or deposited your trust funds in a different account that it will not be reflected in your account. And, of course, no independent certified public accountant is willing to provide you any assurance whatsoever. They know the so-called accounting work is a sham.
Many will express shock or dismay that the executive branch has wasted hundreds of millions of dollars on favored accountants and statisticians with nothing to show for it while we, as a nation, are at war overseas.
As a citizen and a taxpayer, I am outraged. However, as an Indian Trust beneficiary engaged in a decades-long fight against this government, I can no longer express surprise, just disgust.
The Interior Department is engaged in myth-making of historic proportions and it continues to be laid bare in the federal district court in Washington, D.C.
Elouise Cobell is a member of the Blackfeet Nation from Browning, Mont. She is the lead plaintiff in the class action lawsuit Cobell v. Kempthorne, which challenges the federal government's admitted mismanagement of the Indian Trust.
Cason: Historical accounting: Fact, not myth
Posted: January 18, 2008
by: Jim Cason
This is a pivotal time in Indian country for the class of Individual Indian Money account holders represented in the Cobell v. Kempthorne lawsuit. As the Department of the Interior makes significant progress conducting the historical accounting of funds that went into and out of IIM accounts, it is apparent that few mistakes in the accounting have been found and that ample trust records exist to support our accounting efforts.
No doubt that over the years, the Cobell case has brought needed attention and resources to improve the management of Indian trust assets. However, instead of breathing a collective sigh of relief that the historic administration of the Indian trust funds has, for the most part, been careful and accurate and that beneficiaries were receiving the funds collected from the use of their trust assets, the plaintiffs are continuing to spread fear, mistrust and doubt among class members. In a recent Indian Country Today op-ed, the plaintiffs state that ''Indians have been robbed of billions - not millions - of dollars'' and that the ''robbery'' continues even today [''Accounting fiasco result of government myth-weaving,'' Vol. 27, Iss. 28].
The lead plaintiffs have claimed that as much as $176 billion is owed to account holders. This figure is based on the largest myth of all: the assumption that the government has failed to distribute a single penny of the money it has collected on behalf of Indian accountholders since the inception of the trust over 100 years ago. Every account holder who has ever received a payment from his account ought to know that this assumption is preposterous. In fiscal year 2007, for example, more than 530,000 checks were distributed to account holders worth more than $200 million.
It is troubling that the plaintiffs continue to propagate such myths, especially in the face of volumes of evidence to the contrary, and in light of other pressing matters in Indian country that need attention. During the 10-day trial on Interior's historic accounting plan in October 2007, facts about how the historical accounting is being accomplished as well as the accounting findings to date were shared with the U.S. District Court. While the plaintiffs' attorneys had the opportunity to question every government witness and to introduce their own witnesses, no evidence of government ''robbery'' was introduced. No evidence to demonstrate billions of dollars of undistributed funds was provided to the District Court judge. Not a single account holder, including lead plaintiff Ms. Elouise Cobell herself, was willing to testify that she was failing to receive funds collected on her behalf.
We encourage all individual Indian beneficiaries and other interested parties to become more fully informed about the status of the historical accounting project. Transcripts of each day of the trial and Interior's historical accounting plan are readily available for review and thoughtful consideration. (For information on obtaining these documents, call the Trust Beneficiary Call Center at (888) 678-6836.)
It is true that before the accounting began, Interior didn't know what the results would be or what historic problems with the trust it would find. It wasn't known if the records required to perform the accounting, spanning many decades, would be available. However, no evidence that ''more than a billion trust records have been systemically destroyed,'' as plaintiffs allege, has been found. The Indian trust records needed for the accounting generally do exist and have been collected, indexed and imaged. Based on the findings from the accounting to date, mistakes have been relatively few and relatively minor. Overpayments have been found at about the same rate as underpayments.
One heartening finding of the historical accounting has been that the vast majority of the BIA employees who were in charge of recording each financial trust transaction did their jobs well and kept the important trust records that are required for the accounting today. They faithfully documented funds that came into and went out of the trust. Indian trust employees knew they were serving their neighbors, friends and family members and performed their duties with honesty and integrity. Indian beneficiaries also deserve credit for knowing when their payments were due and for what amounts, and for working with Interior employees when problems needed to be addressed. Today, Interior stands ready to mail tens of thousands of completed historical account statements as soon as the District Court judge approves them for distribution.
Even though Interior has found that it can successfully perform the accounting, plaintiffs' attorneys continue to insist that an accounting is impossible. They want the court to simply ignore what the records indicate. We, like the plaintiffs in this case, are awaiting the opinion of the U.S. District Court regarding the sufficiency of our historical accounting plan and the results that have been provided to the court to date. All three branches of the federal government have been intimately involved in the design, funding and oversight of this important initiative and are dedicated to a full, fair and final resolution of this matter.
Today, Interior knows more than it did a decade ago when Elouise Cobell filed her lawsuit. Individual Indian beneficiaries can have confidence in the historical accounting work being done; confidence in the government employees, highly credible accounting firms, statistical consultants and historians participating in the effort; and confidence in the integrity of the data they receive.
Jim Cason is the associate deputy secretary for the U.S. Department of the Interior.
Judge: Cobell historical accounting 'impossible'
Wednesday, January 30, 2008
Filed Under: Cobell
The federal judge handling the Cobell trust fund case has issued his findings of fact and conclusions of law on the Bush administration's historical accounting.
In a 165-page decision, Judge James Robertson said the Interior Department is "unable to perform an adequate accounting" of the Individual Indian Money (IIM) trust. He said the government "has not" and "cannot" cure its breach of trust to hundreds of thousands of Indian beneficiaries.
"Indeed, it is now clear that completion of the required accounting is an impossible task," the judge wrote, describing the breach of trust as "irreparable."
Robertson arrived at the conclusion not based on the plaintiffs' argument that there are too many destroyed and missing records. Instead, he said Interior cannot perform a satisfactory accounting given budget constraints imposed by Congress.
"In its refusal to appropriate enough money to pay for such an accounting, Congress has not amended that demand or the common law of accounting," Robertson observed. "What it has done, instead, is to render a real accounting impossible -- or, perhaps, to recognize that such an accounting is impossible, unless it is 'nuts' enough to pay more than $3 billion to hunt down perhaps $3 billion of unexplained variances in the government’s accounts."
Even though he recognized Congressional limits, Robertson did not let Interior off the hook. He said the department's most recent accounting plan "falls short of its promise to provide beneficiaries reasonable assurance that their account balances are accurate" because it doesn't confirm opening balances or go all the way back to the inception of the IIM trust.
Robertson said Interior's failure to tie land -- the corpus of the trust -- to the revenues generated by activities the land makes it "utterly impossible" for a trust beneficiary to determine whether the department is fulfilling its fiduciary duties. "Beneficiaries are provided no records indicating their historical ownership interests," he said of the accounting plan.
Robertson plans a hearing in 30 days to discuss the next step in the case -- how to "remedy" the situation.
More details to be posted.
Findings of Fact and Conclusions of Law (January 30, 2008)
Cobell statement on historical accounting decision
Wednesday, January 30, 2008
Filed Under: Cobell
Elouise Cobell, a member of the Blackfeet Nation of Montana who is the lead plaintiff in the Indian trust fund lawsuit, issued the following statement today after a federal judge said an historical accounting is impossible.
"This is a great day in Indian Country.
"We've argued for over ten years that the government is unable to fulfill its duty to render an adequate historical accounting, much less redress the historical wrongs heaped upon the individual Indian trust beneficiaries.
"Instead of truthfully seeking to remedy the government's admitted historical mismanagement, the government elected to fight plaintiffs every step of the way.
"Judge Robertson has settled the debate in favor of plaintiffs and found that an adequate historical accounting is, in fact, impossible.
"Plaintiffs look forward to Judge Robertson's scheduling of a hearing 'determining an appropriate remedy' in light of their failure to render the court-ordered accounting."
Next hearing in Cobell case set for March 5
Thursday, February 21, 2008
Filed Under: Cobell
A federal judge will hold a status conference on March 5 to discuss the next step in the Cobell trust fund case.
Last month, Judge James Robertson ruled that an historical accounting of the Individual Indian Money (IIM) trust was "impossible." He now wants to discuss a "process for determining an appropriate remedy" for hundreds of thousands of Indian landowners.
The hearing will take place at 2:30pm in Courtroom 23A of the federal courthouse in Washington, D.C.
Findings of Fact and Conclusions of Law (January 30, 2008)
Judge sets June 9 trial to resolve Cobell case
Wednesday, March 5, 2008
Filed Under: Cobell
Judge James Robertson today scheduled a June 9 trial to resolve the Cobell trust fund case.
Robertson said the proceeding will last about two weeks. He said a decision on a remedy for the hundreds of thousands of Individual Indian Money (IIM) beneficiaries will be ready by the end of the summer.
The trial comes almost 12 years to the date the case was filed on June 10, 1996, by Elouise Cobell, a member of the Blackfeet Nation of Montana, and other Indian leaders.
Get the Story:
Judge Wants to Resolve Indian Lands Case (AP 3/5)
http://ap.google.com/article/ALeqM5gROd … wD8V7H8HG0
Robertson: End is in sight for Cobell v. Kempthorne
Posted: March 07, 2008
by: Jerry Reynolds / Indian Country Today
WASHINGTON - As far as his court is concerned, Judge James Robertson declared from the bench at a March 5 hearing, the case known as Cobell will be over by the end of summer if not before.
After hearing from both plaintiff and defense attorneys on the subject of monetary restitution due, or not due as the government argued, to Individual Indian Money trust account holders, Robertson said he had heard too much rhetoric and needed more concrete specific detail.
Among the rhetoric was a subdued debate on the precise legal definition of ''damages'' (the plaintiffs seek recovery or restitution) and the actual nature of the trust ''corpus'' or revenue-generating resource (plaintiff lead attorney Dennis Gingold later said the corpus includes some 40 and more million acres of land lost to Indians since Interior took over its management).
Gingold emphasized that plaintiffs do not seek interest on any losses - ''That would be damages'' - but only restitution or recovery of unaccounted-for funds that rightfully belonged to IIM beneficiaries.
Against the government's proffered interpretation of ''law in the case,'' as determined by a 1994 reform act of Congress, Gingold argued that it is for plaintiffs, not a trustee in breach of fiduciary duty through failure to account, to define a remedy. Accordingly, Robertson called on Gingold and his team to submit a detailed written request for ''equitable disgorgement'' (in layman's terms, recovery of revenues lost to government failure to account for the IIM trust).
He added that it ''had better'' address so-called ''Section 23,'' a specific provision of class action law much dwelt upon by the government's Department of Justice attorney, Robert E. Kirschman Jr. Robertson said, without further elucidation, that it could represent a ''significant snag'' in the case. The government will respond, plaintiffs will revisit in light of the government's responses, and a trial will begin on June 9 if all goes according to Robertson's schedule.
''The purpose of this is to bring this thing to a conclusion. ... A result of some kind should come of this,'' Robertson said.
Robertson stirred much of Indian country in January, when he issued a lengthy opinion that the federal government (as represented by its delegate agency, the Interior Department) simply cannot deliver an accounting, now or ever, of revenue due in each Individual Indian Money account. The accounts, managed by Interior, have been set up to receive revenues from assets - among them land, timber, water, oil and minerals - on trust land.
According to a host of reports, the accounts have been mismanaged by Interior since their inception. Robertson's January ruling put paid to the government's marathon argument that it would deliver an acceptable IIM accounting if unimpeded by the plaintiffs. The Cobell case takes its informal name from lead plaintiff Elouise Cobell, a Blackfeet banker.
Robertson encouraged Kirschman that the activities long construed by Interior as an ''accounting'' haven't been wasted, even though they don't amount to an accounting. And in a somewhat arch-seeming aside, he told him that he will not consider it a good use of federal judiciary resources to pull his trial up short only to see it start up again somewhere else.
On an issue Robertson characterized as ''collateral,'' he gave the plaintiff attorneys until March 26 to argue a case for keeping Interior's trust-related computers disconnected from the Internet. Without a showing of substantive reasons for maintaining the disconnection order of a previous court in the case, he said, he'll be inclined to throw the switch on again, as it were.
Cobell plaintiffs seek $58B for Indian trust beneficiaries
Friday, March 21, 2008
Filed Under: Cobell
In papers filed on Wednesday, the Cobell plaintiffs asked a federal judge to put $58 billion in the Indian trust.
Citing more than a hundred years of mismanagement, attorneys said hundreds of thousands of Indian beneficiaries are owed the money for misuse of their land and assets. The 80-page filing accused the federal government of enriching itself by failing to disburse trust payments to tribal members across the country.
"What rightfully belongs to plaintiffs includes the value of the government's unjust enrichment and all advantages or benefits obtained in connection with its breaches of trust," attorneys wrote.
Based on data provided by the Interior Department and the Osage Nation of Oklahoma, the plaintiffs added up the money they say should have been in the Individual Indian Money (IIM) from 1887 to 2007. The numbers show IIM beneficiaries and Osage "headright" owners are owed $58 billion for the 120-year period.
The figure is more than twice the amount that the Cobell plaintiffs and other Indian organizations said they would accept to resolve the case. In June 2005, the plaintiffs proposed a $27.5 billion settlement for the historical accounting of the IIM trust.
Key members of Congress responded with an $8 billion proposal, which the plaintiffs gave serious consideration. But the Bush administration waited until March 2007 to offer $3.5 billion to resolve the accounting, pay for future damages claims and terminate its liability for the trust.
Despite the diverging views, lead plaintiff Elouise Cobell, a member of the Blackfeet Nation of Montana, said $58 billion was low. Prior calculations by her lawyers put the accounting as high as $176 billion, but that figure included interest, which the plaintiffs are not seeking as part of the litigation.
"We believe that our numbers are very conservative and represent the minimum harm that Indians have suffered under our broken trust system," Cobell said.
The Bush administration has vehemently disputed the idea that money is owed to IIM beneficiaries. Attorneys for Interior Secretary Dirk Kempthorne, who has not taken an active role in Indian trust matters, have said the only resolution to the Cobell case is the historical accounting and nothing more.
But Judge James Robertson, who was assigned to the case in December 2006, has ruled that an accounting is impossible due to budget restraints imposed by Congress and limits placed on the effort by the Interior Department. At a hearing earlier this month, he rejected the government's notion that the Cobell plaintiffs have to go to another court to find justice.
"When you tell me that the law of the case says the only relief is an historical accounting ... that doesn't mean very much if an historical accounting is impossible," Robertson told a Department of Justice attorney. "Then what, is there no relief? Is that the government's position?"
Robertson will hold a trial starting on June 9 to finally put an end to the case. He hopes to issue a ruling by the end of the summer.
The Bush administration has until April 9 to respond to the plaintiffs' filing.
MEMORANDUM IN SUPPORT OF EQUITABLE RESTITUTION AND DISGORGEMENT (March 19, 2008)
http://www.indiantrust.com/_pdfs/200803 … onMemo.pdf
House panel threatens to cut historical accounting
Friday, April 4, 2008
Filed Under: Cobell | Politics
Key House lawmakers said on Thursday they are considering reducing, or even eliminating, funds for the Bush administration's historical accounting in hopes of sending a message to the judge handling the Cobell trust fund case.
Rep. Norm Dicks (D-Washington), the chairman of the House Interior Appropriations subcommittee, said he agreed with Judge James Robertson that a complete accounting of the Indian trust was impossible. But he was upset that the Interior Department's fiscal year 2009 budget seeks $56.4 million to continue the effort.
"To me, it's just a big waste of money," said Dicks. "I'm for cutting it out."
Rep. Todd Tiahrt (R-Kansas), the panel's ranking Republican, wasn't ready to take the money out of the upcoming budget. He said he was worried that doing so would make the federal government look bad in the long-running case, which Robertson hopes to resolve this summer after 12 years of litigation.
"I think that there may be reason to continue it, but at what level?" he asked. "If we're funding something at $55 million that's impossible, maybe we should only try $5 million of an impossibility."
Rep. Jim Moran (D-Virginia), on the other hand, eagerly supported Dicks' contention that Indian landowners aren't owed any money for the handling of their trust assets and funds. He said a litigation-driven project that the subcommittee funded -- without consulting Indian Country -- uncovered just "one error" in the accounts of the five-named plaintiffs in the case.
"This isn't working," he said of the historical accounting effort. Of the plaintiffs' recent request for have $58 billion restored to the trust, he said "that's never going to materialize."
Special Trustee Ross Swimmer cautioned the subcommittee against cutting the historical accounting out of the budget. He said that would impact the administration's stance in the litigation "very negatively."
"It would be almost considered by the court as being in contempt," Swimmer told lawmakers.
Swimmer, however, said the government has considered asking Robertson for some sort of court order that would put a halt to the accounting. In December 1999, Judge Royce Lamberth, who was removed from the case at the request of the administration, issued a decision that required Interior to fulfill its duties under the American Indian Trust Fund Management Reform Act of 1994.
"That's certainly a consideration and it has been brought up a few times," Swimmer testified. "We have discussed that."
At the same time, he said the ongoing efforts of the Office of Historical Trust Accounting can be used to prove that Indian beneficiaries -- as well as tribes that have filed their own cases -- aren't owed any money. He also invited lawmakers to consider amending the 1994 act.
"There's no question that the judge would welcome Congress clarifying what the act actually required in terms of historical accounting," Swimmer said. "That has yet to be done, it's never been done, and that is one of the reasons that's led to this [situation]."
The subcommittee has repeatedly tried to eliminate funds for the accounting, change the scope of the accounting and settle the case. But other members of the House -- mainly those that belong to the bipartisan Congressional Native American Caucus -- beat back one such effort in the summer of 2002.
At the time, the Bush administration denied asking for the provisions at issue even though former deputy Interior secretary J. Steven Griles had encouraged the subcommittee to consider limiting the government's trust duties during a hearing earlier that year.
A second attempt in the summer of 2003 led to a one-year hold on the accounting. This time, the White House acknowledged it was behind the "time out" and the Congressional Native American Caucus was unable to defeat the appropriations language.
The House Appropriations Committee ended up adopting a report with language that closely tracked the testimony Griles gave at a hearing earlier in 2003. Griles is currently serving prison time for lying to Congress about his dealings with a convicted tribal lobbyist.
Robertson has scheduled a hearing on April 28 to weigh further issues in the case. He plans to start a trial on June 9 to address the remedy available to the plaintiffs. He expects the proceeding to last a couple of weeks and he has said he hopes to issue a final decision in the case later this summer.
Fri April 11, 2008
U.S. government rejects a $58B Indian payout
By Chris Casteel
WASHINGTON — The U.S. government doesn't owe money to American Indians suing over management of their trust accounts, and their claim for $58 billion is "absurd,” the government says.
The Indians originally sued the government in 1994 seeking a full accounting of the funds held by hundreds of thousands of individual Indians, and the lawsuit should be dismissed if they no longer want that accounting, the government says in a brief filed Wednesday in U.S. District Court here.
Moreover, the U.S. judge presiding over the case doesn't have the authority to award any money to the Indians and should cancel the trial scheduled for June on the matter, the government says.
The government's brief came in response to one filed by the plaintiffs three weeks ago seeking $58 billion to compensate for money they say was collected by the government for individual Indian trust account holders but not paid to the accounts.
According to the Indians, about $3 billion was collected in the past 120 years for the accounts but never paid. Holding on to that money has allowed the government to borrow less money to finance its spending, the plaintiffs say.
And, they say, based on Treasury bill rates going back over the time period, the government's reduced borrowing costs have meant a total benefit of $58 billion.
Equitable relief sought
Aware that U.S. District Judge James Robertson cannot require the U.S. government to pay damages, the Indians say the money owed isn't damages but "equitable” relief that any financial trust would have to provide if it improperly benefited from the use of trust funds.
The Indians also are asking the judge to return to the trust all the land that has been sold since the trust's inception in the late 19th century. An estimated 40 to 54 million acres were allotted, but only about 10 million acres remain.
The land is the source of most of the money in the individual Indian trust accounts. Robertson recently ruled that it would be "impossible” for the government to perform an historical accounting reaching back more than a century and provide accurate account balances to about 300,000 account holders. In its brief this week, the government rejected every argument the Indians made about why the trust is owed money and how much is owed.
Judge likely to award money in Indian trust case
By MATT APUZZO
The Associated Press
Monday, April 28, 2008; 6:20 PM
WASHINGTON -- After a 12-year legal fight, a federal judge said Monday he likely will award money to Indians whose lands have been mismanaged by the government.
Whether they'll ever see that money is another matter.
The lawsuit claims the government has mismanaged billions of dollars in royalties held in trust from American Indian lands dating back to 1887. U.S. District Judge James Robertson ruled in January that a full accounting at the Interior Department has become impossible.
Lawyers for the Indians contend the government must pay $58 billion, to be divided among hundreds of thousands of Indian trust accountholders. The government opposes that calculation.
Robertson scheduled another round of hearings in June to resolve the case.
"One way or another, the result of this case is a dollar figure," Robertson said Monday, but he said an appeals court may decide otherwise.
Further complicating matters, the amount of money is so large _ roughly five times the size of Interior Department's annual budget _ Congress would almost certainly have to vote to spend the money before it could be paid out.
Robertson expressed skepticism at the figure Monday, saying it had "considerably more zeros after the dollar sign" than he thought possible.
Regardless of the total, he said he needed to put a final figure on paper "so somebody in the other branch of government can figure out what to do about it."
Robertson said he was also concerned with the plan to distribute the money, since some accountholders certainly lost more money than others. Lawyers said that since determining those differences was impossible, the money should be divided evenly among more than 300,000 accountholders.
On the Net:
U.S. Department of the Interior: http://www.interior.gov
http://www.washingtonpost.com/wp-dyn/co … sec-nation
Judge issues pre-trial order in Cobell trust case
Tuesday, May 13, 2008
Filed Under: Cobell
The June 9 trial to resolve the Cobell v. Kempthorne Indian trust fund case is quickly approaching.
Judge James Robertson intends to put a dollar figure on the money owed to hundreds of thousands of Individual Indian Money (IIM) beneficiaries. His rulings have suggested anywhere between $3 billion and $3.6 billion was not distributed to account holders.
In a May 2 pre-trial order, Robertson said the plaintiffs will go first. He said they have the burden of proving how much money Indian beneficiaries are owed, a figure that could include Osage head right funds, judgment and per capita accounts and money deposited in IIM accounts on behalf of tribes.
Roberton also said the plaintiffs have the burden to establish whether the government received some sort of "benefit" for the use of Indian trust funds and whether Indian beneficiaries are entitled to that money.
After the plaintiffs present their case, Robertson said the government will have the burden of refuting it. He said he will consider evidence "bearing on the percentage of monies collected by the IIM trust system that have been disbursed to beneficiaries – and the percentage that ought to have been disbursed," according to the pre-trial order.
The trial takes place in the federal district courthouse in Washington, D.C. Robertson has said he expects it will last a couple of weeks. He plans to issue a final ruling later in the summer.
Judge holds final hearing before Cobell trial
Monday, June 2, 2008
Filed Under: Cobell
The federal judge handling the Cobell v. Kempthorne trust fund case is holding a pre-trial conference today at 2pm in Washington, D.C.
The conference is the last before the June 9 trial. Judge James Robertson plans to resolve the 11-year-old case by putting a dollar figure to the amount of money owed to individual Indian beneficiaries.
The trial is expected to last a couple of weeks. Robertson hopes to issue a final ruling by the end of the summer.
Judge holds one last hearing before big Cobell trial
Tuesday, June 3, 2008
Filed Under: Cobell
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.
Pre-Trial Order (May 2, 2008)
http://www.usdoj.gov/civil/cases/cobell … _order.pdf