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Judge denies remand for tribal trust lawsuits

WASHINGTON - The judge in the lawsuit over the Individual Indian Money trust has denied a federal government request to delay litigation in 37 separate lawsuits over tribal trust funds.

The tribes suing the Interior Department over the management of their trust funds, in the Washington court of U.S. District Judge James Robertson alone, range from the Ak-Chin and the Assiniboine and Sioux of Fort Peck at the top of the alphabet, to the Winnebago, Wyandot and Yankton at the tail end. Excepting the deep South, Alaska and Hawaii, they come from every region of the country.

The IIM lawsuit, known as Cobell after lead plaintiff Elouise Cobell, is also before Robertson. It charges Interior with failing to account for revenues due in the trust accounts not of tribes, but of individual beneficiaries. The latest of multiple trials in that case closed out in October, and a decision on the activities Interior terms an accounting (plaintiff attorneys contend the activities amount to a device for limiting federal liability for funds missing from the accounts) is pending.

The tribal trust lawsuits call for judicial review of Interior's obligations as a trustee for the beneficiary tribes. Robertson wrote that Interior previously indicated, in requesting a consolidation of four cases, that ''if remand were granted'' it would ''define and complete the [trust] accounting for those Tribes ... [and] present the accountings, along with the supporting administrative records, to Plaintiffs for their review.''

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Six months later, Robertson writes in his Dec. 19 denial of remand and stays of litigation in all 37 cases: ''The actual remand motion the government has now filed is not so optimistic. Now, instead of defining, completing and presenting its accountings to plaintiff tribes, the government undertakes only to 'prepare a historical accounting plan for all tribes [including those that have not brought suit].''' (Emphasis added by the court.)

After clarifying that he considers the word ''remand'' to be ''imprecise and even misleading'' in context (the government's request for remand asks the judge to send the 37 cases ''from a reviewing court back to an administrative agency for further proceedings'') and uses it only because the litigants and other court rulings have, Robertson adds that nothing prevents the government from developing and implementing an accounting plan. ''The agency's desire for uninterrupted time to complete an accounting plan could not be fulfilled by the granting of its motion in any event, as 65 other tribal cases - before 27 judges - are pending in federal district courts in Oklahoma and the federal court of claims. ...

''There is no compelling reason to postpone these [37] cases for six months while the defendant articulates its response to trust-related concerns the department has been aware of for at least twenty years.''

In closing, Robertson states: ''Consideration of the remand issue itself has delayed the tribal lawsuits nearly six months. Granting the remand would therefore result in the delay of an entire year. Defendants argue that plaintiffs would not suffer prejudice 'considering the early stage of litigation at which this motion is filed.' ... Though some of these cases were filed in the waning days of 2006, others were filed in 2002, and the department has been on notice of these concerns for decades. In view of that history, a six-month delay at this juncture would be inappropriate.''

Accordingly, Robertson denies the government's motion, lifts a previous stay of litigation, and charges the plaintiff tribes with filing status reports on their cases and proposing a schedule of proceedings, presumably including trial dates.