Cobell Case Reaching Climax
Cobell v. Norton is a class-action lawsuit filed on June 10, 1996, in U.S. District Court in Washington, D.C. to force the federal government to account for billions of dollars belonging to approximately 500,000 American Indians and their heirs, and held in trust since the late 19th century. It was initiated by a Elouise Cobell, a remarkable woman and member of the Blackfeet tribe in Montana.
WASHINGTON, July 12 -- U.S. District Judge Royce C. Lamberth has sharply criticized the Interior Department for continuing to mistreat Native Americans.
In some of the sharpest language the judge has used in his nearly 10 years overseeing a class action lawsuit over the government's acknowledged problems in handling individual Indian Trust accounts, Lamberth accused the department of forgetting what the case is all about and praised the Indians who brought the lawsuit.
"After all these years, our government still treats Native American Indians as if they were somehow less than deserving of the respect that should be afforded to everyone in a society where all people are supposed to be equal," the judge wrote.
Lawyers for the Indians had complained the judge that Interior was giving Indians incomplete and inaccurate information about the lawsuit. They said Interior was blaming many of its own administrative problems on the judge and the lawsuit.
Here are some of the highlights of the judge's ruling. It is posted at www.indiantrust.com.
Pg 1-2:
But when one strips away the convoluted statutes, the technical legal complexities, the elaborate collateral proceedings, and the layers upon layers of interrelated orders and opinions from this Court and the Court of Appeals, what remains is the raw, shocking, humiliating truth at the bottom: After all these years, our government still treats Native American Indians as if they were somehow less than deserving of the respect that should be afforded to everyone in a society where all people are supposed to be equal.
For those harboring hope that the stories of murder, dispossession, forced marches, assimilationist policy programs, and other incidents of cultural genocide against the Indians are merely the echoes of a horrible, bigoted government-past that has been sanitized by the good deeds of more recent history, this case serves as an appalling reminder of the evils that result when large numbers of the politically powerless are placed at the mercy of institutions engendered and controlled by a politically powerful few. It reminds us that even today our great democratic enterprise remains unfinished. And it reminds us, finally, that the terrible power of government, and the frailty of the restraints on the exercise of that power, are never fully revealed until government turns against the people.
Pg. 3:
Despite Interior's near wholesale abdication of its trust duties, the vast majority of the Indian beneficiaries remain unaware that anything is out of order.
Pg. 10-11:
The entire record in this case tells the dreary story of Interior's degenerate tenure as Trustee-Delegate for the Indian trust--a story shot through with bureaucratic blunders, flubs, goofs and foul-ups, and peppered with scandals, deception, dirty tricks and outright villainy--the end of which is nowhere in sight. Despite the breadth and clarity of this record, Interior continues to litigate and relitigate, in excruciating fashion, every minor, technical legal issue. See Cobell v. Norton, 357 F. Supp. 2d 298, 306-07 (D.D.C. 2005).
This is yet another factor forestalling the final resolution of the issues in this case and delaying the relief the Indians so desperately need. See id. It is against this background of mismanagement, falsification, spite, and obstinate litigiousness that this Court is to evaluate the general reliability of the information Interior distributes to IIM account holders.
Pg. 32-34
CONCLUSION
While it is undeniable that Interior has failed as a Trustee-Delegate, it is nevertheless difficult to conjure plausible hypotheses to explain Interior's default. Perhaps Interior's past and present leaders have been evil people, deriving their pleasure from inflicting harm on society's most vulnerable. Interior may be consistently populated with apathetic people who just cannot muster the necessary energy or emotion to avoid complicity in the Department's grossly negligent administration of the Indian trust. Or maybe Interior's officials are cowardly people who dodge their responsibilities out of a childish fear of the magnitude of effort involved in reforming a degenerate system. Perhaps Interior as an institution is so badly broken that even the most well-intentioned initiatives are polluted and warped by the processes of implementation.
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The government as a whole may be inherently incapable of serving as an adequate fiduciary because of some structural flaw. Perhaps the Indians were doomed the moment the first European set foot on American soil. Who can say? It may be that the opacity of the cause renders the Indian trust problem insoluble.
On numerous occasions over the last nine years, the Court has wanted to simply wash its hands of Interior and its iniquities once and for all. The plaintiffs have invited the Court to declare that Interior has repudiated the Indian trust, appoint a receiver to liquidate the trust assets, and finally relieve the Indians of the heavy yoke of government stewardship. The Court may eventually do all these things--but not yet. Giving up on rehabilitating Interior would signal more than the downfall of a single administrative agency. It would constitute an announcement that negligence and incompetence in government are beyond judicial remedy, that bureaucratic recalcitrance has outpaced and rendered obsolete our vaunted system of checks and balances, and that people are simply at the mercy of governmental whim with no chance for salvation. The Court clings to a slim and quickly receding hope that future progress may vitiate the need for such a grim declaration.
This hope is sustained in part by the fact that the Indians who brought this case found it in themselves to stand up, draw a line in the sand, and tell the government: Enough is enough--this far and no further. Perhaps they regret having done so now, nine years later, beset on all sides by the costs of protracted litigation and the possibility that their efforts may ultimately prove futile; but still they continue. The notice requirement established by the Court today represents a significant victory for the plaintiffs. For the first time in the history of this case, the majority of Indian beneficiaries will be aware of the lawsuit, the plaintiffs' efforts, and the danger involved
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in placing any further confidence in the Department of the Interior. Perhaps more importantly, the Indians will be advised that they may contact class counsel for guidance on their trust-related concerns. This likely will bring to light a wealth of new evidence concerning Interior's mismanagement of the trust; it will also open an avenue to relief for individuals throughout Indian country whose suffering might otherwise be buried forever in a bureaucratic tomb.
Real justice for these Indians may still lie in the distant future; it may never come at all.
This reality makes a statement about our society and our form of government that we should be unwilling to let stand. But perhaps the best that can be hoped for is that people never forget what the plaintiffs have done here, and that other marginalized people will learn about this case and follow the Indians' example.
COBELL v. NORTON: An Overview
Cobell v. Norton is a class-action lawsuit filed on June 10, 1996, in U.S. District Court in Washington, D.C. to force the federal government to account for billions of dollars belonging to approximately 500,000 American Indians and their heirs, and held in trust since the late 19th century.
Through document discovery and courtroom testimony, the case has revealed mismanagement, ineptness, dishonesty and delay by federal officials, leading U.S. District Judge Royce Lamberth to declare their conduct "fiscal and governmental irresponsibility in its purest form."
Then-Secretary of the Interior Bruce Babbitt, Assistant Secretary of the Interior Kevin Gover and Treasury Secretary Robert Rubin were held in contempt of court in February 1999 by Judge Lamberth for their departments' repeated delays in producing documents, destruction of relevant documents and misrepresentations to the court in sworn testimony. As the case proceeds, new revelations of false testimony, financial misconduct and bureaucratic retaliation have continued to surface.
The facts underlying the litigation involve a broad sweep of United States history. Although U.S. policy in the 1870s was to locate Indians on reservations, hunger for the land by non-Indians led to a break-up of most of the reservations starting in the 1880s. Thousands of individual Indians generally were allotted beneficial ownership of 80- to 160-acre parcels of land in the break-up. As trustee, the government took legal title to the parcels, established an Individual Indian Trust and thereby assumed full responsibility for management of the trust lands. That included the duty to collect and disburse to the Indians any revenues generated by mining, oil and gas extraction, timber operations, grazing or similar activities.
As a result of more than a century of malfeasance, the United States government has no accurate records for hundreds of thousands of Indian beneficiaries nor of billions of dollars owed the class of beneficiaries covered by the lawsuit. The suit encompasses approximately 500,000 Indian beneficiaries.
The purpose of the litigation - which was filed by Elouise Cobell, a member of the Blackfeet tribe in Montana, and her co-plaintiffs - is two-fold: to force the government to account for the money, and to bring about permanent reform of the system.
Judge Lamberth bifurcated the case along those lines. After a trial on Phase One - reform of the system - Judge Lamberth ruled on December 21, 1999 that the secretaries of Interior and Treasury had breached their trust obligations to the Indians. The court retained judicial oversight of the system for a minimum of five years, to ensure that it is overhauled, and ordered Interior to provide an historical accounting of all trust funds. An appeal by the government, arguing that the judge had overreached his authority, was unanimously rejected by a three-judge appeals court panel on February, 23, 2001.
To help enforce his orders, Judge Lamberth has appointed both a special master, who oversees the preservation and production of trust documents, and a federal monitor, who provides the judge with assessments of the truthfulness of Interior's representations to the Court regarding execution of trust reform. In his first report to the court - 19 months after Judge Lamberth's December 21, 1999 order - the federal monitor declared that Interior's stated efforts to provide an accounting in compliance with the order are a sham, are "still at the starting gate" and have been marked by "unrealistic responses and evasion."
A trial on Phase Two - accounting for the money - has not yet been scheduled.
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