WASHINGTON – Federal District Judge James Robertson on Jan. 30 delivered a closely reasoned decision in Cobell v. Kempthorne et al., putting to rout the Interior Department’s long insistence that it is accounting for the Individual Indian Money trust and will complete an accounting if unhindered by the plaintiffs.
In a 165-page document dense with arcane considerations, Robertson gutted the government’s key positions. He gave it as findings of fact and conclusions of law ”that, although the defendants have attempted and continue to attempt to cure the breach of their fiduciary duty … they have not succeeded in doing so; … that the historical statements of account contemplated by defendants’ latest accounting plan will not satisfy defendants’ duties ‘rooted in and outlined by the relevant statutes and treaties … [and] defined in traditional equitable terms’ …; and … that the defendants have unreasonably delayed the completion of the required accounting. Indeed, it is clear now that completion of the required accounting is an impossible task.”
He made nonsense of several lesser points that Interior’s Justice Department attorneys have struggled with might and main to establish over the years, in particular their determination to limit Interior’s scope of activity to only those funds held in trust since 1938 (when Congress enacted a provision of the Indian Reorganization Act), and their assertions of a low error rate in known IIM accounts. Interior and its contractors pursued inconsistent definitions of error, such that misspellings counted toward an error rate while missing documents and ”incorrect IIM numbers” did not. As for Interior’s interpretation of a 1938 ”start date” to its obligations, Robertson quoted the 1994 law requiring the Secretary of Interior to ”account for the daily and annual balance of all funds held in trust by the United States for the benefit of an Indian tribe or an individual Indian which are deposited or invested pursuant to the Act of June 24, 1938 …”
Robertson goes on to comment, ”The Interior Department reads limitations into those words that are not there. The reference to ‘the Act of June 24, 1938’ does not set a start date for the accounting. All it does is identify the funds for which Congress has mandated an accounting. … The 1938 Act was not the first statute affirming Interior’s duty to account for Indian Funds … but, even if the duty to account had not been mentioned in any statute, ‘the government’s preexisting duty to provide an accounting to IIM trust beneficiaries … inheres in the trust relationship itself.’ … A legislative command to trace IIM trust funds only as far back as June 24, 1938 would have been nonsensical, and no legislative history supports such a reading.”
Robertson supports a few of Interior’s much-debated proceedings – statistical sampling of the accounts, for instance, is described as a reasonable attempt to strike a balance between accuracy and the runaway cost of a transaction-by-transaction full forensic accounting, especially in view of Congress’s meager funding of its own 1994 reform mandate. Overall he gives Interior ”substantial credit” for its careful effort, and he praises individual Interior employees as dedicated public servants who did their best to accomplish the impossible. Their efforts have measurably improved Interior’s present and future management of the IIM trust, Robertson suggests.
”It is not methodology, however, but scope and expected results, that are ultimately fatal to the adequacy of Interior’s accounting project.”
In failing to provide IIM beneficiaries with disclosure and description of the underlying ”property items” that generate revenues for the IIM accounts, with verified opening account balances, or with sufficient information to hold the federal trustee accountable, ”Interior has not – and cannot – remedy the breach of its fiduciary duty to account for the IIM trust,” Robertson determines.
Other remedies are the next step in the trial. Robertson found extensive fault with the estimates of monetary liability from both sides. A ”remediation phase” hearing has been scheduled for March 5.
”I’m not sure what there is to appeal is at this point,” said plaintiff attorney Keith Harper, anticipating the government’s response. ” … The facts are the facts and the law is the law. … The breach is indeed a breach and it can’t be repaired … They said it was black, we said it was white, and the court has now decided we were right.”
In Montana, Blackfeet lead plaintiff Elouise Cobell described herself as ”feeling pretty good. Our plaintiffs are just delighted. One of them said ‘This is better than winning the Super Bowl – Cobell Bowl XX,” a reference to the shorthand title of Robertson’s opinion (Cobell XX) and the Super Bowl’s well-known penchant for Roman numerals.
”When you first heard, you felt like hyperventilating. And then you felt the emotion,” in her case most especially when Robertson referenced the beneficiaries who have been born into the case (as members of the plaintiff class of IIM accountholders) and others who have died out of it.
Another emotional moment for her occurred when Robertson wrote of Judge Royce C. Lamberth’s ”heroic stewardship” of the case, now in its 11th year before the courts. Lamberth’s removal from the case, on a complaint by the government after he had given it every chance to cease its obstructionism, according to Cobell, she described as devastating.
”But he made many landmark decisions in this case.”
Given Interior Secretary Dirk Kempthorne’s stated desire to resolve the case, ”We look forward to seeing him at the March 5 remediation hearing,” Cobell said.
The Interior Department did not respond to a request for comment.
