NYTs on Cobell Litigation

From the NYTs:

February 1, 2008

The Verdict: It’s Broken

The case of the mismanaged American Indian trust funds is Dickensian both in length — now 11 years before the courts — and inequity. On Wednesday, Judge James Robertson of the Federal District Court for the District of Columbia ruled that the Interior Department had “unreasonably delayed” its accounting for billions of dollars owed to American Indian landholders and that the agency “cannot remedy the breach.”

There is, of course, no full remedy — not for the historical wrongs or the cynical and shabby accounting or the years of frustration. And as Judge Robertson and others before him have noted, a meticulously accurate tally of what the American Indians are owed is almost certainly impossible. Yet that does not mean that a reasonable compromise cannot be reached or that the government should abandon efforts to find one. A study group set up by Gale Norton, the former interior secretary, in early 2001 was scrapped after less than two years. Simple justice requires a more sustained effort.

In 1996, Elouise Cobell, a Blackfoot Indian, filed a lawsuit claiming that the government had mismanaged billions of dollars in oil, timber and other royalties held in trust for some half-million Indians. The Indians were given land allotments between the end of the 19th century and 1934, a time when it was government policy to try to do away with tribal entities and reservations. The government held title to the land, and these accounts were meant to collect and disburse the revenues.

The simple question is this: can the government account for the money it held in trust? Judge Robertson’s judgment: “It is now clear that completion of the required accounting is an impossible task.” This, as he points out, is an “irreparable breach of fiduciary duty,” a breach that, in our opinion, is all the more galling because these individual trust accounts have come over time to look like a form of paternalistic fraud.

Even with meticulous oversight, monitoring them accurately would have been a tough assignment. But the government’s failure is not simply sloppy bookkeeping. It is willful neglect, including the active destruction of records and the failure to comply with court orders.

As Judge Robertson notes, the fact that the government cannot provide a full accounting for what may be billions of dollars “does not mean that a just resolution is hopeless.” He has scheduled a new hearing to try and find a remedy. We hope it will indeed mark the beginning of the end of this case and the beginning of real equity for the holders of these accounts.