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Cobell accounting trial set for October

WASHINGTON - The new judge in the class action lawsuit over the Individual Indian Money accounts waded into the case publicly April 20, ordering a trial that will begin Oct. 10 ''and continue as long as necessary.''

U.S. District Judge James Robertson will review the methodology and results of the Interior Department's accounting process in open court, with plaintiffs on-hand to test or challenge both. The accounting proceeds from a court finding of 1999, in the case now known as Cobell v. Kempthorne, that the Interior Department had not complied with IIM accounting requirements assigned by Congress in the Indian Trust Management Reform Act of 1994. Robertson expects the trial to demonstrate, among other things, whether the IIM accounting Interior has performed so far has fulfilled, or is fulfilling, the 1994 mandates of Congress; whether the defendants have ''unreasonably delayed'' the accounting; and whether ''further relief, if any, should be ordered.''

Interior is the defendant because as the government-delegated federal trustee of the IIM accounts, it has an obligation to manage them for the benefit of the IIM account holders. The plaintiff class, individual Indian account holders in the hundreds of thousands, seeks a correction of the account records and proper IIM account management in the future. Money flows into the accounts from the lease of resources held in trust for individual Indians by the U.S. government.

Nothing suggests the issues will be any less hotly contested than in the past, but the language in the courtroom is apt to be more civil. Robertson replaces the previous judge in the case, Royce Lamberth. Law-schooled attorneys in Washington, speaking on the record but not for attribution due to the animosities aroused by the case, said Lamberth's denunciations of the defendant went beyond the bounds of judicial temperament, a nebulous but recognized standard of the profession. On April 4, Robertson issued a sua sponte (unsought, as in unprompted by any motion of the litigant parties) order that struck from the record a plaintiff motion for ''the ascribing of motives to opposing council and uncivil language generally.''

Keith Harper, an attorney with the Kilpatrick Stockton law firm in Washington, said the plaintiffs revised the motion and submitted it within an 11-day deadline set by the court. He said the plaintiffs post all records in the case. The sua sponte order was not readily apparent on the plaintiff Web site,, as of April 25.

Harper said the plaintiffs and their attorneys welcome the trial order. They asked for a trial on the accounting in December and Robertson's order signifies his determination to move toward resolution of the lawsuit, he said. The plaintiff team has regularly accused Interior and its Justice Department attorneys of deliberate delay and obfuscation in different aspects of the many-faceted case.

The plaintiffs and their attorneys are certain the trial will prove that the government cannot ''produce an accounting for each IIM account,'' as numerous court decisions still require, in part because so many of the documents that are the sources for account transaction records have been lost or destroyed. Interior has tried to compensate for missing source documents in some accounts by statistical sampling of other accounts with extant source documents. The plaintiffs have lodged strong objections, arguing that it's impermissible to extrapolate from account records backed up by source documents to account records without source documents. ''Any statistician will tell you that's impermissible,'' Harper said.

While statistical sampling may be useful in testing a traditional accounting, he added, ''We are against utilizing statistical sampling in lieu of a traditional accounting.''

Robertson's trial order noted that the details of the defendants' accounting obligations are ''unresolved,'' including ''the question of whether statistical sampling will 'satisfy fiduciary standards.'''

Shane Wolfe, a spokesman for Interior, offered no comment on the upcoming trial.

The first of numerous pre-hearing conferences is scheduled for May 9.