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Cobell claims to get a price tag this summer

WASHINGTON - At a hearing April 28 in advance of a June 9 trial on the Individual Indian Money trust, Judge James Robertson made it clear the proceedings will produce a sum that is due to the injured class of plaintiffs.

''I'm certainly going to figure out what the dollar figure should be,'' he said. '' ... My stewardship of this case is going to end with something preceded by a dollar sign.''

Robertson added that he doesn't believe the $58 billion sought by the plaintiffs is possible, and lamented the ''lackluster attention'' paid by each side to ascertaining the amount missing from IIM accounts. He asked the status of a sophisticated model for calculations mentioned by the plaintiffs; attorney David Smith said Robertson has seen parts of it, but that the whole model is within the bailiwick of lead plaintiff attorney Dennis Gingold and will be available for the June trial.

Without committing himself to a particular course of action, Robertson speculated that he could issue declaratory judgment awarding the injured class of plaintiffs a sum in restitution, along with a payment order. Then, he suggested, the issue might become ''how many divisions does the pope have,'' a reference to the difficulty of forcing sovereign governments to follow the high road of law courts and moral codes if they won't do so voluntarily.

Robertson also spelled out, in a lengthy exchange with Gingold, that he expects plaintiff attorneys to prove the government's ''actual gain'' from funds they contend have been withheld from IIM accounts. The proved ''actual gain,'' which should have gone to beneficiaries of the IIM trust, would form a basis of any dollar figure he arrives at. He has previously stated that the trial should be over by summer's end.

To summarize a thicket of legal detail: Robertson, in the trial known as Cobell after lead plaintiff Elouise Cobell, ruled in January that the Interior Department (the federal government's delegate agency for managing the IIM trust) can never hope to deliver an accounting of the trust. The accounts receive money due to individual Indians from the lease of assets on land held in trust for them by the federal government - revenue from oil and minerals, timber and water, cattle grazing, etc. The poor state of Interior's records, among other problems, makes a full accounting impossible. That is a violation of trust law, according to plaintiff arguments; and Robertson has accepted that monetary restitution is in order.

But for jurisdictional and other reasons, the plaintiffs can't claim damages in Robertson's court. They have argued instead that the government cannot retain the ''unjust enrichment'' of IIM revenues that were co-mingled in the Treasury Department general account, used to pay down national debt and cover federal deficits so that new loans wouldn't have to be taken out. The unaccounted-for IIM revenues should be distributed now through a court-imposed correction of the accounts, they maintain.

Government attorneys responded that an inability to account for all IIM revenues doesn't prove an ''actual gain'' to the government from retaining them.

''It's a serious issue for them,'' Robertson said, of the burden on plaintiffs to prove an actual gain to the government.

From there, he directed a hypothetical line of questioning at Gingold. What if - as, he said in the hypothetical context, ''everybody knows'' - the government didn't actually retain IIM funds but distributed them to the accounts and simply can't prove it? Why should the government have to pay all over again simply because it didn't keep proper records?

''Because that's what the law is,'' Gingold said.

But in that case, Robertson persisted, what gain has there been to the government?

''That is the problem when you breach ... the trust duty,'' Gingold said.

Robertson, still in hypothetical mode, said he would assume ''in the nature of fair warning'' that the government's inability to account for the IIM trust doesn't prove ''actual gain.''

Gingold replied that the government cannot now take advantage of its failure to keep records by contending that its lack of accounting precludes any proof of actual gain.

''I was just telling you what you'd better try to prove,'' Robertson said.

Among other thorny issues before the court April 28 were how to distribute any sum in restitution, given that some members of the injured class may be due more than others; the ''time value of money''; and whether IIM account holders who accept restitution can still sue the government individually.