WASHINGTON - Closing out 12 years of trial in the Cobell v. Kempthorne lawsuit over the Individual Indian Money trust, U.S. District Judge James Robertson said he thinks any award of restitution or equity to the plaintiffs may reach between nine or 10 digits, but not 11 - that is, somewhere between $100 million and $9.999 etc. billion, but not the $46 billion or $47 billion the injured class of plaintiffs and their attorneys have settled on as their final claim in light of recent government evidence, much less the $58 billion they claimed going into the current ;'money phase'' of the trial.
Robertson ordered findings of fact and law from both attorney teams by July 8, allowed 10 days for one further round of briefing papers after that, and said he will issue his final judgment in the case ''within the month of August.''
Despite the June 9 opening-day heroics of plaintiff attorney Dennis Gingold and lead witness Douglas Laycock, whose testimony led Robertson to thank him for bringing clarity to an obscure corner of law on restitution, restitution depends on proving the government benefitted from IIM funds that should have been paid out to accountholders but were not. On June 25, Robertson concluded, ''I continue to believe that the government has the better of this.''
Whatever his final judgment on restitution, Robertson left the door open to an equity award - in layman's terms, an award in fairness for injuries, in this instance a breach of the government's failure to account for the IIM trust.
No large award would be possible if Cobell were a damages claim, he explained, because the evidence would be considered remote and speculative. ''There is very little evidence on which to base an award covering 120-some years. ... Equity is a different animal.''
In ''American Law in the 20th Century,'' legal scholar Lawrence M. Friedman describes the evolution of equity law as ''a corrective to the common law, which was rather austere, rigid, and formalistic. ... [P]rocedural remedies ... that the common law lacked ... gave equity a power and suppleness that the common law could only dream about.''
Robertson wasn't asking for definitions. He told both attorney teams that he wants ''the standards of proof in equity'' in their July 8 findings of fact and law - something to help him ''take the guesswork out of equity.''
He said he is concerned about the expectations of an award in the case, built up in the press and by plaintiff repetition of the $58 billion figure.
Robertson also left the door open to dismissal of the plaintiff case, as urged on him a second time by Department of Justice solicitor Robert E. Kirschman Jr., defending the Interior Department's management of the IIM accounts. Kirschman said that in laying claim to ''one of the largest judgment awards ever entered by a court,'' the plaintiff attorneys ''presented the thinnest of cases possible,'' marked by ''an utter failure to provide factual evidence.''
In his closing argument, plaintiff attorney Bill Dorris had already refuted Kirschman on crucial and complex issues of IIM ''data points'' and statistical models of revenue collection and disbursement. But he admitted to Robertson that plaintiff evidentiary data hasn't been as solid and certain as the judge would prefer - because the government has made a mess of its IIM record-keeping over the course of 121 years and continues ''monkeying with it in ways they can't explain or even show us.''
Because of bad data, Dorris said, ''We're having to work with what is reasonable.''
Now Robertson interrupted Kirschman to ask: ''What do you say to Mr. Dorris' assertion'' - leveled by others, he added - ''that this [IIM system] is just a construct of the government's, and there isn't any such thing?''
Kirschman said it's just plain wrong.
Robertson pressed him: But whoever used the term before a key government witness on the IIM system?
Kirschman replied, in essence, that he wasn't sure, but someone must have. He asked the judge to focus on evidence and not get caught up in the word system. ''There's no magic in the word system.''
Dorris concluded the plaintiff case with a plea for justice.
''Five hundred thousand Native Americans [IIM accountholders past and present] look to Washington in the summer of 2008 with hope. ... But it's because of where they look'' - not to Capitol Hill or the White House, but to Robertson's courtroom.