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Cobell hearing brings crucial detail to familiar positions

WASHINGTON - More than a week into the Cobell v. Kempthorne evidentiary hearing over an accounting for the Individual Indian Money trust, both the account holding class of plaintiffs and the defendant Interior Department tried to bolster their known positions with a world of detail, much of it available through court transcripts at the Department of Justice Web site, www.usdoj.gov/civil/cases/cobell/index.htm, or at the plaintiff Web site, www.indiantrust.com. (The DoJ is defending the government's delegate agency in the case, Interior.)

Broadly speaking, Interior hopes to prove that activities it calls a full historical accounting for the IIM trust are sufficient that the court should permit it to proceed without interruption. The plaintiffs hope to prove Interior simply isn't providing the court-ordered full historical accounting of IIM funds that have flowed into the accounts from the lease of assets on land held in trust for Indian individuals by the federal government.

Witnesses are presenting the government's case first. Robert E. Kirschman Jr., an attorney with the DoJ, opened the pleadings by assuring presiding U.S. District Judge James Robertson the evidence and testimony will demonstrate that Interior is performing a historical accounting of IIM accounts ''in a structured and orderly manner. There is no unreasonable delay going on, and there's no basis for such a finding,'' Kirschman said.

Touching on a key consideration, he described the documents and data vital to accounting for IIM transactions as ''variable,'' but also ''accurate and reliable.'' Interior's approach to the accounting has been determined by the congressional appropriations available to it, and by the time required for ''a more detailed accounting'' than statistical sampling can provide. ''And those concerns have been weighed against the competing need to provide useful information to the Indian beneficiaries who can actually use it, and to provide those beneficiaries with this information in a timely manner.''

He added that in addition to its statistical samplings from ''the electronic era population'' of accounts, ''Interior contemplates, as an initial step, sampling from the paper era [prior to approximately 1985] to assess whether the population in the paper era differs from the population in the electronic era. If the results show no differences, it will be statistically valid, then, to apply the LSA results [Litigation Support Accounting from the electronic era] to the paper era, and you will hear evidence of that.''

The initial government witness, Interior Associate Deputy Secretary James Cason, emphasized that there was no model to proceed on in delivering the court-ordered accounting. In moving forward with a 2003 accounting plan that was the basis of ''a new iteration'' in 2007, Cason said, ''Briefly, what we have learned so far in the accounting is that we do have records to do the accounting, that they can be indexed and used by accounting firms to do the work, that we can assemble historical statements of accounts, that we have found errors. They overall tend to be small, tend to be few, tend to be on both sides of the ledger, and tend to net out against each other. We have not found any instances of systemic accounting error or systemic fraud. We have covered a fair amount of territory so far ... we think that the job, as we've defined it, is a doable job.''

But that definition and all it implies will be a crux of the hearing. If there was any doubt, plaintiff attorney Dennis Gingold dispelled it in his opening statement. Gingold said he agreed with Kirschman on three points only: that the government filed a plan with the court July 2, 2000, another plan July 6, 2000, and ''what they've been doing is a litigation support accounting plan, and they are estimating and projecting probabilities as to what might have occurred in certain accounts.''

Otherwise, he swept aside every representation by the government: ''The reality is, the litigation support accounting plan [LSA] is a plan based on documentation in the [IIM] administrative record that is designed for one purpose: to limit the liability of the United States government. That's why it is called the litigation support accounting plan; that's what is being done.

''It is not an accounting that has been declared by this court, it is not an accounting duty that the United States government has owed our clients [IIM account holders] since the government first exercised control over our clients' trust lands, the natural resources, and the funds and proceeds generated therefrom.''

On other key points in the case, Gingold cited Supreme Court precedent in insisting ''all traditional trust principles apply to the government's management of the trust,'' and added that the century-plus old IIM trust was never ''settled'' in the technical legal sense - that is, according to settlement terms agreed upon among the parties in a manner that would obviate a need for judicial resolution. ''The lands were not lands owned by the United States. The resources were not resources owned by the United States. The lands were principally held by the tribes on reservations pursuant to treaties that went back decades before the trust was established in 1887.'' The General Allotment Act of that year (also informally known as the Dawes Act) broke up the reservations, reserving 40 percent of tribal lands west of the Mississippi River for tribes in trust, and 40 percent for Indian individuals (the eventual source of the IIM trust).

''And another 20 percent was available for whatever the United States government wanted to do, whether it wanted to provide the land to homesteaders or various companies that were developing the large cities out West, for railroads, or anything else.

''So your honor, this trust was not settled by the United States government. The land was contributed to the trust, which was owned legally by the Indians. The money that was generated from those lands were monies of the Indians. The trust duties are duties that are established in accordance with trust law.

''Congress established the trust; it did not settle the trust.''