WASHINGTON – Lead plaintiff Elouise Cobell fastened upon a three-judge panel’s queries on monetary distribution and private trust standards May 11 as a positive indicator of the appellate court’s direction in the marathon lawsuit over federal mismanagement of the Individual Indian Money trust.
“I think the panel listened very well to our argument,” she said. “They brought up distribution, and to me that was a sign that they were thinking that way, that a judge can distribute money.”
In Cobell v. Salazar, both the injured class of Cobell plaintiffs and the federal defense have appealed an August 2008 court ruling that the government owes IIM plaintiffs $455 million in restitution. Department of Justice attorney Alisa Klein argued that the government owes IIM beneficiaries no money and that in any case, no mechanism exists for distributing restitution.
On the point of distribution, plaintiff attorney Dennis Gingold countered that “rough justice” can be realized through per capita distribution among IIM accountholders of monetary restitution – as well as the interest due on restitution.
Klein described the Interior Department’s vast IIM record-gathering effort as an audit of IIM accounts; she maintains that the audit shows the government owes no money or restitution. The assertions, in defiance of court findings of fact that rule an “accounting” of IIM funds outside the realm of possibility due to missing documents, drew scorn from Cobell. “I think they should be charged with perjury every time they get up and lie like that.”
The Blackfeet tribal member added that judges David Sentelle, Douglas Ginsburg, and A. Raymond Randolph showed interest in the issue of private trust standards – a thorny one for Washington D.C. District Court Judge James Robinson. He ruled in August 2008 that the government owes IIM trust account holders $455 million in restitution, a steep decline from the $48 billion claimed by plaintiffs.
“In these uncharted waters,” Robinson wrote, “... [o]ne useful if not very precise pointer provided by case law is that a trustee may not hide behind obscurity that he himself has created. … Thus, a consequence of the government’s failure to account is that evidentiary presumptions run in favor of the plaintiffs. But. ... rules that identify and govern a breach of the accounting duty for a simple, 25-year trust with a single beneficiary cannot be applied, unaltered, to a 121-year-old perpetual trust, managed by civil servants, with rapidly multiplying beneficiaries and a variety of ever-changing assets.”
Gingold renewed the argument for private trust standards May 11. “It’s not an excuse to say we don’t have the money to account for your trust,” Gingold said, responding to a question from the bench on Congress’ reluctance to appropriate the cost of a full accounting for IIM funds.
Keith Harper, Cherokee, an attorney for the plaintiffs with the Washington firm of Kilpatrick Stockton LLC, took a cautionary view on oral arguments. “We think we are right on the law in this case.”
Kendra Barkoff, press secretary for the Interior, said Secretary Ken Salazar would not offer a comment on the May 11 proceedings. She specifically declined to address his reaction, if any, to the DoJ argument that the government owes IIM beneficiaries no money whatsoever. “Just because this is ongoing litigation, we’re not going to comment on that.”
Cobell said a benefit concert by someone like Willie Nelson would do more for organizing popular resistance than criticizing national Indian organizations, expecting more from swamped Cobell attorneys, or second-guessing poverty-stricken IIM beneficiaries.