Appeals court calls for Indian trust accounting in Cobell case


The Interior Department must account for billions of dollars in Indian trust funds, the D.C. Circuit Court of Appeals ruled on July 24. In a unanimous, the court said the federal government remains in breach of trust for failing to account for the Individual Indian Money (IIM) trust. The D.C. Circuit said a federal judge erred when he concluded that the effort was “impossible.”

“The statute gives the plaintiff class a right to an accounting,” the court said, referring to the American Indian Trust Fund Management Reform Act of 1994. However, the accounting won’t include accounts that were closed as of 1994, the D.C. Circuit said. And the effort won’t have to be “theoretically perfect” and can include statistical sampling of certain transactions, the court noted.

“The purpose of an equitable accounting, as we have tried to articulate, is for Interior to concentrate on picking the low-hanging fruit,” the decision said. “We must not allow the theoretically perfect to render impossible the achievable good.” The decision essentially gives Interior the approval to complete the accounting it started during the Bush administration. The department has limited the project in response to concerns from Congress about the cost and the benefits.

Judge James Robertson, who has been handling the case since December 2006, will be tasked with the “equitable power to enforce the best accounting that Interior can provide, with the resources it receives, or expects to receive, from Congress,” the D.C. Circuit said. After a trial, Robertson in January 2008 said the accounting was “impossible.” He cited Congressional budget restraints, along with limits Interior placed on the project. He then conducted another proceeding to determine how much money, if any, was owed to the plaintiffs in the Cobell lawsuit. In August 2008, he said the plaintiffs were owed $455.6 million.

The D.C. Circuit vacated that final judgment, essentially taking dollar amounts out of the picture for now. The plaintiffs had sought billions of dollars, while the government said no money was owed.
“We will continue to seek justice, no matter how long that takes,” lead plaintiff Elouise Cobell, a member of the Blackfeet Nation of Montana, said in a statement.”

Tens of thousands of beneficiaries have died while this case has been pending without ever receiving an accounting of their trust assets,” Cobell said. She also said the plaintiffs would renew their request to have a receiver appointed to make decisions affecting the IIM trust.