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.
