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Cobell trial ends year with possible decision

WASHINGTON - The trust funds lawsuit known as Cobell , after lead plaintiff Elouise Cobell, began the year with a new judge and the all-too-familiar prospect of drawn-out litigation. But a long-anticipated trial commenced Oct. 10 and closed out before the month was over. The litigants offered their final arguments in written form by Nov. 30, and the year neared its end with a decision possible any day.

The case's first judicial overseer, Royce C. Lamberth, won admirers throughout Indian country with a veritable anthology of withering broadsides from the bench against the Interior Department for its conduct of the case and for its ''degenerate tenure'' over the Individual Indian Money trust accounts. But these very trademarks led to his removal from the case on a complaint by Interior attorneys.

(Interior, the defendant in the case, has mismanaged the IIM trust for more than a century, according to a succession of government reports, private sector analysts, congressional findings and IIM account holder complaints. IIM account holders brought suit in 1996 as an injured class, alleging Interior's failure to deliver the full historical accounting called for in a 1994 reform law.)

The new judge in the case, District of Columbia District Court Judge James Robertson, marched to a more temperate drummer, limiting the scope of legal proceedings to the original intent of the lawsuit - to force an accounting for revenues due in the IIM accounts over time - and enforcing strict rules of conduct on the feuding attorney teams. By the trial's surprisingly early end, according to plaintiff media contact Bill McAllister, both sides understood the rules and played by them.

For a case that involved layer upon layer of complex data and generated no end of documents, the outline of each side's argumentation proved readily comprehensible once Robertson had enforced his rules. Interior insisted that it is accounting for IIM funds and fixing the flaws that produced the reform law and the lawsuit. Deputy Secretary James Cason testified that Interior hopes to proceed by statistical sampling, generating an error or discrepancy rate for accounts in the ''electronic era,'' comparing that rate to the much more limited transaction data available from the ''paper era'' (i.e., most of the years the IIM accounts existed) and assuming that the results are representative enough to stand for the entire time it has managed the accounts. Interior's Justice Department attorneys have also emphasized ''agency discretion,'' in effect insisting that a government agency shouldn't be held to the same fiduciary standards of accountability as private sector trustees; and they maintain that the department's accounting activities must be judged in light of the congressional appropriations that fund them. Interior hopes to continue with the activities it calls an accounting, unhampered by plaintiffs' complaints or court actions.

Attorneys for the injured class, on the other hand, stated in strong terms that Interior's activities do not and cannot amount to an accounting by commonly accepted standards, and that the department's primary purpose is to limit the government's liability for mismanaging the IIM accounts over more than a century. They called for Interior to be held to the strict standards that govern any other trustee, as demanded in law as they see it; and they dismissed statistical sampling as an inadequate substitute for the actual accounting Interior cannot deliver due to missing records lost on its watch. The plaintiffs hope for a fix to Interior's IIM accounting system and practices, as well as for a finding that the IIM account balances should be corrected to reflect revenue mismanagement affecting tens of billions of dollars - economic lifeblood sucked dry for a century by sheer mismanagement, in the phrasing of plaintiff attorney Keith Harper, a partner with the Kilpatrick Stockton law firm in Washington.

As the old year rang out, Robertson's decision was in the offing, apt to come down any day. At an unrelated conference in Washington Dec. 3, Harper said the plaintiff attorneys are confident Robertson will rule fairly.