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Cobell v. Kempthorne continues

WASHINGTON – Under most circumstances a $455.6 million legal judgment to Indian plaintiffs would be seen as a step in the right direction, but, for the plaintiffs of the ongoing Cobell v. Kempthorne litigation, it signified another low-point in a year filled with ups and downs.

The case, which has gone through numerous appeals since it was first filed in 1996, involves approximately 500,000 American Indian plaintiffs who have made strong arguments that their trust assets have for decades been mismanaged by the federal government.

Things were looking up in January when a judge in the lawsuit over the Individual Indian Money trust denied a federal government request to delay litigation in 37 separate lawsuits over tribal trust funds.

By June, the legal argument phase over money owed in the case was in full swing. The initial moments of the latest iteration of the trial featured some favorable moments for the plaintiffs, who argued the government owed IIM beneficiaries $58 billion due to mismanaged accounting.

But then came a decision in August from U.S. District Judge James Robertson that IIM account holders deserved $455.6 million for 121 years of IIM trust mismanagement. The figure was less than the total amount spent by Congress and the federal government over the past decades trying to fix the IIM management system.

Robertson, in effect, accepted the government’s estimate that “no more than $455.6 million is missing from the stated balance of the IIM trust.”

“I am disappointed to say the least,” lead plaintiff Elouise Cobell said in a statement after the ruling. “We believe we presented a strong, compelling case that individual Indian trust beneficiaries are entitled to much more than the government’s admitted mismanagement of our trust monies over the past 120 years.”

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After the ruling, W. Ron Allen, chairman of the Jamestown S’Klallam Tribe, said he was stunned. But said he felt a general feeling in the air that it was time to move on. If, by moving on, Allen meant accepting the judgment, he was soon proven wrong.

Many in Indian country believed the judgment to be far too low, and that the case should be appealed. Cobell announced definitively in September that an appeal would go forward. That month, she wrote in an Indian Country Today editorial that the case was more than about money, and noted that she wanted to see an end result of a much stronger trust agreement between the federal government and Native people.

“As for the money, we intend to tell the U.S. Court of Appeals for the District of Columbia that the judge was wrong here, too,” Cobell said. “Under trust law, we believe we’re entitled to interest on the $455.6 million. He gave us no interest, even though the trust laws make clear interest was to be paid Indians for all monies the government holds for them.”

Not only did the Indian plaintiffs decide to challenge the ruling, but so, too, did the federal government on partial grounds that Robertson took too lenient a view of the government’s fiduciary obligations as trustee of the IIM accounts.

The D.C. Circuit Court of Appeals in November agreed to hear the plaintiffs’ appeal, but developments have been slow moving since then. Thus, in December, the plaintiffs asked a federal appeals court to speed up its review of their appeal.

“Time is of the essence as ‘innumerable’ elderly and infirm plaintiff-beneficiaries have died, and will continue to die, out of the certified class,” stated a motion for expedited appeal filed by the plaintiffs’ lawyers Dec. 9.

As of press time, no decision had been made as to when the new appeal case would be heard.