WASHINGTON - With final arguments filed and a crucial court decision looming in the class action lawsuit known as Elouise Pepion Cobell et al. v. Dirk Kempthorne, Secretary of the Interior, et al., plaintiff attorney Keith Harper expressed confidence that a favorable decision will be forthcoming from the presiding judge, James Robertson of the District of Columbia federal district court.
The plaintiffs are Individual Indian Money account holders. Throughout a lawsuit filed in 1996, they have argued that the federal government (Interior is its delegate agency over the IIM accounts) has mismanaged the accounts, including revenues due in the accounts, for a century and owes them an accounting of balances as well as reliable IIM trust management and accounting systems now and in the future, pursuant to a 1994 reform law enacted by Congress. The plaintiffs also seek a correction to account balances that could run into tens of billions of dollars, according to various estimates - including one of the government's own. A mediator appointed by Congress has estimated that a ''rough justice'' settlement would range between $7 billion and $9 billion.
Interior, which did not respond to a request for comment on the trial and pending decision, argues that it is in the midst of activities that amount to an accounting. Cobell states that due to billions of documents and records lost or destroyed on Interior's watch, Interior can't perform the actual accounting owed by a trustee to trust beneficiaries under the law. Dennis Gingold, the lead plaintiff attorney, told the judge at trial that Interior's putative accounting is in fact a device for limiting government liability. Cobell said that Interior gave its game away by naming its accounting plan a ''Litigation Support Accounting.''
Harper said he based his confidence on Robertson's character and track record as a careful judge, along with the defendant Interior's failure to produce opposing evidence. The Department of Justice presented no opposing evidence from Interior because it has none, Harper added.
Cobell concurred on both counts, saying of the government's case: ''I think reality is setting in that they don't have the documents to do an accounting. ... That was very plain [at trial]. They don't have the documents.'' Primarily because of missing documents, no accounting firm has ever said an accounting could be done of the IIM trust, she said, repeating a point made in court, despite the government's canvassing of the profession and its payment of vast fees to an assortment of firms.
''They're starting to run out of excuses. ... Tried to run us out of energy, run us out of money. ... We have the truth and the facts on our side. That's why we stay strong and they are weakening.''
Of the judge, she added, ''Judge Robertson was very fair. He was very fair to both sides. ... I think he will make a fair decision.''
Harper explained that a decision from Robertson favoring the plaintiffs would not immediately summon the correction of IIM account balances sought by the plaintiffs. Comparing the trial to a journey, he said the journey to an accounts correction would take place in two or four stages, depending entirely on the judge.
At an unrelated conference in Washington Dec. 3, Harper emphasized the importance of fixing Interior's system for managing the IIM accounts. He denied afterward that the de-emphasis of the money that would flow to IIM account holders from an adjudicated correction of the accounts had anything to do with toning down expectations in advance of the court's decision: ''Not at all.''
In speaking to people who haven't heard him before, Harper said he tends to emphasize that the case is about more than money - it's about fixing the system and the social change that would come to Indian country as a result of forcing the government to live up to its fiduciary duties as a trustee. ''I go back to what Elouise said the first day I met her - this is about changing the system.'' The message was an especially welcome one to an audience drawn from an American Anthropological Association conference, he added.