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Robertson rules for government in Cobell

WASHINGTON - United States District Judge James Robertson delivered a nuanced verdict Aug. 7 in the case known as Cobell, accepting the federal government;s estimate that ''no more than $455.6 million is missing from the stated balance of the IIM trust.''

He left distribution of the judgment to a late-August conference, encouraged conversation between the litigants in the meantime, faulted the ''political branches'' of government for failing to ''right historical wrongs,'' noted that his ruling ''neither deals with nor resolves'' potential damages claims of IIM account holders against the government, and summed up the manifest benefits of the 12-year case known as Cobell v. Kempthorne et al., after lead plaintiff Elouise Cobell and current Interior Department Secretary Dirk Kempthorne.

Interior is the federal government's delegate agency in charge of the IIM trust. Individual Indian Money trust beneficiaries brought a lawsuit that ultimately sought between $46 and $47 billion in restitution for government failure to account for the trust.

Reaction immediately gravitated toward the $455.6 million judgment, approximately one one-hundredth of plaintiff claims.

''I am disappointed to say the least,'' Cobell said in a statement. ''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.''

An appeal is under consideration, she added.

Another veteran of IIM issues in Indian country, Rebecca Adamson, president of First Peoples Worldwide in Fredericksburg, Va., called the award a pittance. As founder and president of First Nations Development Institute in the 1980s, she maintained a running engagement with IIM trust management issues throughout the 1990s.

''Once again,'' she commented, ''the government has found a way to get more of Indian assets and resources.''

While her views and Cobell's will find a widespread audience in Indian country, Robertson focused on flaws in the legal theory and data model presented by the plaintiff attorney team.

Once Robertson ruled that statistical sampling is acceptable in the case, given the many IIM documents that have gone missing on the government's watch, data models became essential to the case despite the plaintiff legal theory that ordinary trust law (with its presumptions in favor of the trust beneficiary when a trustee can't account for funds) guides the case. While acknowledging that ''a trustee may not hide behind obscurity that he himself has created,'' Robertson found that the plaintiffs' case did little to prove their claim to an 11-figure award.

''Their model did not make use of the best available evidence and did not make fair or reasonable comparisons of data. Plaintiffs injected bias into their model through use of unfounded adjustments. By deeming all receipts admitted and seeking to put the government to the strictest of proof on all disbursements, plaintiffs' model not only attempted via the 'back door' to impose a 'gold plated' accounting standard the Court of Appeals had already rejected, but it employed a super-strong interpretation of the presumption against the breaching trustee that cannot be equitably applied to the trusts at issue here.

''The plaintiffs' model stands or falls with their legal theory, and it falls. The government's model, on the other hand, fits comfortably within the equitable principles that should be applied with respect to the IIM trust, because it offers a useful way of pricing the considerable uncertainty in the data.''

Interior's Associate Deputy Secretary James E. Cason expressed the department's approval of the decision. ''The department is gratified that the court recognized the complexities and uncertainties involved in the case,'' he said in a statement. ''We look forward to working with the court, the Congress and the plaintiffs to bring the case to final closure.''

Robertson's ruling is accessible online at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?1996cv1285-3573.