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Final judgment phase begins in Cobell trial

WASHINGTON - U.S. District Court Judge James Robertson knew a packed courtroom when he saw it June 9, emerging late from his chambers for the start of the final judgment phase in the trial known as Cobell, after lead plaintiff Elouise Cobell.

Cobell and the Individual Indian Money trust accountholders are suing the Interior Department for an accounting of IIM balances.

Robertson has already ruled an accounting impossible, and the question now is whether the government must pay restitution to the tune of $58 billion, as plaintiffs contend, or much less.

Department of Justice solicitor Robert E. Kirschman Jr., defending Interior, would repeat on June 9 the government's position that no admissible evidence proves there have been losses in the billions of dollars from the IIM accounts. He said that depending on the analysis, the provable sum missing from the IIM accounts after 121 years of federal management is either $158 million or, at maximum, $365.7 million.

Plaintiff attorney Dennis Gingold was last seen in Robertson's court absorbing ''fair warning'' from the judge that he would have to prove actual government gain from the IIM accounts - otherwise, with no accounting possible, the government's inability to account for the IIM trust may not in itself prove that it didn't distribute lease income to IIM beneficiaries. Robertson went so far as to hypothesize that ''everybody knows'' the government didn't retain IIM funds, but distributed them and can't prove it.

Despite all that, and the barrages of criticism directed at the Cobell attorneys during their stewardship of the always controversial 12-year case, Gingold approached the biggest stage of his professional life with his customary air of mildly disheveled confidence.

He told the judge the plaintiffs hope to go to final judgment in the case, emphasized that it is based on settled law, and explained that their $58 billion claim is large but just. ''That's a lot of money, but it's been 121 years, and these have been our clients' funds for 121 years.''

Then, somewhat unexpectedly given all that has passed in these proceedings, he settled into his usual fare. The government has breached its fiduciary duty, it has imposed its trusteeship on Indian people and failed them, the cost to it in billions is just too bad, all items of the trust have to be considered in an accounting - by now, well-worn road for an impatient court.

Robertson laced into him right away, the moment he mentioned the millions of acres of land that have allegedly disappeared from the trust. ''We're not talking about land in this proceeding, right? ... In this proceeding we're talking about cash in, cash out. Right?''

Gingold hastened to reassure him. But then he went on, and on. Robertson interrupted to call both attorneys to his desk for a so-called bench conference. The court's online transcript revealed that Gingold was asked to present his opening statement and evidence rather than his closing argument.

Gingold returned to the podium and immediately called his first witness, Douglas Laycock, a professor at the University of Michigan Law School.

About an hour later, Gingold had established an unchallenged mastery of the case. Indian country's long ancestry of underdogs raised their bowls in a ghostly toast - few of them could ever afford goblets, of course, thanks in part to undisputed theft from the IIM accounts that would be testified to in the afternoon - and even the ultra-prepared Robertson didn't refrain. After seeking opinion from Laycock about the legal grounds for issuing both declaratory judgment and restitutionary relief on behalf of the plaintiffs, Robertson issued a direct compliment to Gingold's lead witness.

''There was some dispute about whether I should hear expert testimony from law professors ... I'm presumed to be able to read the cases myself. But you have a gift for making things simple and straightforward, and I appreciate your testimony.''

Under Gingold's questioning, Laycock testified that restitution has a legal (rather than merely descriptive) definition that is at play in the case, that the plaintiffs can elect restitution as a remedy, that restitution lies ''within the waiver'' of federal sovereignty found in the controlling law (that is, the government cannot block restitution in this case as a violation of its sovereign immunity), that another controlling law states the government ''shall'' deposit Indian funds in accounts earning not less than 5 percent interest, and that restitutionary relief (this apparently for Robertson's benefit) is a little-known area of law.

At the end of the day, James Miller, practicing economist, former chairman of the Federal Trade Commission and director of the Office of Management and Budget, testified that the government realizes significant monetary gain from the IIM accounts. When deposited with the U.S. Treasury, IIM funds help to create a buffer against the ''churn'' of Treasury debt, meaning the government doesn't have to borrow against overdrafts from the Treasury General Account.

''It benefits the federal government because they don't have to borrow. ... They don't pay interest on what they borrow.''