'Historical accounting' ordered in Cobell trust funds case

WASHINGTON - The judge in the Cobell litigation over individual Indian trust accounts has ordered the Interior Department to proceed with a historical accounting of all monies placed in the accounts regardless of when they were deposited. That pushes the time period for the accounting back to 1887 and includes the interests of any individual who ever had assets in the trust accounts.

Under the terms of the "structural injunction" issued Sept. 25 by Judge Royce C. Lamberth in U.S. District Court for the District of Columbia federal circuit, Interior must submit a host of measures and plans for the accounting within 90 or 120 days, and carry them out under the eye of a monitor the judge will appoint. From the special monitor's reports, Lamberth expects to know within a year whether Interior is complying with its plans. Citing the "intransigence" of Interior's resistance to trust management reform, Lamberth retains his court's jurisdiction in the case through Dec. 21, 2009. The decision forbids any stay of the injunction pending the appeal(s) some observers anticipate from Interior.

In addition, Lamberth stated that in the case of definitional differences that have held up accounting processes in the past, "Interior should adopt the interpretation that is most consistent with the most exacting fiduciary standards" applicable to a trustee. He described the provision as regrettable but necessary in view of "Interior's demonstrated tendency to evade its legal obligations by interpreting applicable statutes in an unduly narrow manner."

Throughout more than 350 pages in three documents, Lamberth depicted an agency whose cultural imperatives are to defend the misdeeds of specific bureaus first, then the interests of the larger Interior department, and only then the interests of Indian trustees. "At every opportunity where Interior had to decide whether to honor the IIM beneficiaries' interests, it has decided that its own interest in administrative convenience took precedence."

Lamberth added that remanding trust management reform back to Interior would in effect doom any serious reform process.

Mindful of the difficulties reform of the Individual Indian Monies trust has caused tribal trust beneficiaries, Lamberth pledged the court to "every effort to shape its remedies in a way that will not harm the interests of tribes." He offered the National Congress of American Indians an advisory role in this regard, based on NCAI's "friend of the court" standing in the case.

The decision came down only hours before press time. Indian Country Today will review the decision more thoroughly in next week's edition. The documents can be accessed on the Internet at http://www.dcd.uscourts.gov. Click on Court Opinions at left of the splash page, then on District Court Opinions and finally on Most Recent Court Opinions.