Today in the Cobell case, Judge Robertson issued his findings of fact and conclusions of law on the government’s “accounting.” The document is available here.
Here’s the story from Indianz.Com
Judge: Cobell historical accounting ‘impossible’
Wednesday, January 30, 2008
Filed Under: Cobell
The federal judge handling the Cobell trust fund case has issued his
findings of fact and conclusions of law on the Bush administration’s
historical accounting.
In a 165-page decision, Judge James Robertson said the Interior
Department is “unable to perform an adequate accounting” of the
Individual Indian Money (IIM) trust. He said the government “has not”
and “cannot” cure its breach of trust to hundreds of thousands of
Indian beneficiaries.
“Indeed, it is now clear that completion of the required accounting is
an impossible task,” the judge wrote, describing the breach of trust as
“irreparable.”
Robertson arrived at the conclusion not based on the plaintiffs’
argument that there are too many destroyed and missing records.
Instead, he said Interior cannot perform a satisfactory accounting
given budget constraints imposed by Congress.
“In its refusal to appropriate enough money to pay for such an
accounting, Congress has not amended that demand or the common law of
accounting,” Robertson observed. “What it has done, instead, is to
render a real accounting impossible — or, perhaps, to recognize that
such an accounting is impossible, unless it is ‘nuts’ enough to pay
more than $3 billion to hunt down perhaps $3 billion of unexplained
variances in the government’s accounts.”
Even though he recognized Congressional limits, Robertson did not let
Interior off the hook. He said the department’s most recent accounting
plan “falls short of its promise to provide beneficiaries reasonable
assurance that their account balances are accurate” because it doesn’t
confirm opening balances or go all the way back to the inception of the
IIM trust.
Robertson said Interior’s failure to tie land — the corpus of the
trust — to the revenues generated by activities the land makes it
“utterly impossible” for a trust beneficiary to determine whether the
department is fulfilling its fiduciary duties. “Beneficiaries are
provided no records indicating their historical ownership interests,”
he said of the accounting plan.
Regarding the actual scope of the accounting, Robertson agreed that
beneficiaries who receive direct payments are not included because said
their funds are never “held” in trust by the government. Similarly,
beneficiaries whose trust funds are managed by tribes — there are two
known cases — are not owed an accounting by the government.
On a second scope issue, Robertson said the department cannot exclude
administrative fees and Youpee interests — named for a U.S. Supreme
Court Case — from the accounting. Fees charged by the government and
unconstitutional escheatments of Indian land to tribes must be part of
the plan, he said.
Special deposit accounts, however, can be excluded, Robertson
concluded. He said Interior’s method for dealing with the accounts —
by going after the high-dollar ones first — is reasonable.
But he said Interior’s decision to exclude IIM accounts that were
closed before the American Indian Trust Fund Management Reform Act
became law and to exclude predecessor interests is “not sanctioned by
the common law of trusts or the plain terms of the 1994 act.” “The
rationale for including predecessor accounts in the historical
accounting process is simply that beneficiaries are entitled to know
where their money came from,” he noted.
Robertson plans a hearing in 30 days to discuss the next step in the
case — how to “remedy” the situation.
Turtle Talk 