After 12 years, court hopes to resolve 12 year-old trust lawsuit

By Mary Clare Jalonick
Washington, D.C. (AP) 6-08

It has been 12 years since a group of American Indians sued the government, saying Washington had cheated them out of profits from land royalties since 1887.

On June 9, a federal judge began hearings to determine how much he thinks the government should pay the Indians. Yet most of those involved in the case expect an appeal, further extending the dispute. On top of that, it is not clear how any award would be paid: Congress may have to set the money aside, a tough sell in tight time.

All the while, the plaintiffs grow older, nearing the end of their lives, uncertain if even a penny will come their way.

The Indians’ 1996 suit claims they were swindled out of more than $100 billion in oil, gas, grazing, timber and other royalties overseen by the Interior Department since 1887. The Indians rejected a government offer of less than $7 billion last year. Now, they say they are owed $58 billion – a figure they say is the government’s savings from money that should have gone promptly into individual Indian accounts.

The class-action suit covers about 500,000 Indians and their heirs.

The lead plantiff, Elouise Cobell, said the government has “deep pockets because they have taxpayer money and they can drag it out forever.”

The Indians’ lawyers intend to argue that the money should be paid directly and does not require action by Congress. The Interior Department, which declined comment on the case, has argued in filings with the court that the judge lacks jurisdiction to award any money.

Congress could try again to settle the dispute.

Sen. Byron Dorgan, a North Dakota Democrat, and Arizona Sen. John McCain, the likely Republican presidential nominee, tried to do that three years ago when McCain led the Senate Indian Affairs Committee, but they were not able to get the two sides to agree on an amount.

“Congress could step in at any point and decide that enough is enough and just pass a bill to settle the lawsuit at a dollar amount that Congress determines is reasonable,” said Justin Kitsch, spokesman for Dorgan, the committee’s current chairman. “Senators Dorgan and McCain were trying to do this before because it was clear that the federal government is liable, it is just not clear about the exact dollar amount.”

According to Dorgan’s office, Congress already has set aside $340 million for the department to account for the trust money – a process that U.S. District Judge James Robertson deemed inadequate this year.

An 1887 law allotted land to individual Indians and provided that the government would hold the land and any revenue from it in trust for them and for their survivors. Beginning in the 1970s, several reports criticized the government’s management.

Finally, in 1994, Congress demanded that the department fulfill an obligation to account for money received and distributed. A year later, when account statements still had not been reconciled, Cobell, a member of the Blackfeet Tribe from Montana, joined with the Boulder, Colorado-based Native American Rights Fund and others in suing.

The case dragged on for several years, with occasional fireworks.

U.S. District Judge Royce Lamberth ordered the department to disconnect its computers from the Internet for failing to provide adequate security for the Indians’ trust records. He also held President George W. Bush’s interior secretary, Gale Norton, and her Clinton-era predecessor, Bruce Babbitt, in contempt for their handling of the trust fund.

Lamberth later was removed by the U.S. Court of Appeals for the District of Columbia Circuit, which said he had lost his objectivity. The government had asked that Lamberth be replaced after the judge lambasted the department, writing in a decision that it “is a dinosaur – the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago.”

Robertson, who took over, has made it clear he wants to be the last judge on the case.

In his January decision that the Interior Department unreasonably had delayed its accounting, he quoted Charles Dickens’ “Bleak House,” which chronicles a never-ending legal suit. Using passages from that novel, he noted that the “suit has, in course of time, become so complicated” that “no two lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises.”

Robertson later set this week’s trial, with the aim of coming up with a final number.

“It is time to bring this matter to a close with a decision of one kind or another,” he said.

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