COBELL v. NORTON: Overview and Chronology

COBELL v. NORTON: Overview and Chronology

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January 23, 2007

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.

The chronology of the Cobell decade, Posted : January 19, 2007

June 1996
* Lead plaintiff Elouise Cobell files a suit in U.S. District Court in Washington, D.C., against the Department of the Interior (Cobell v. Babbitt) seeking reform of the Individual Indian Money trust system and accounting for 500,000 accounts over 119 years

February 1999
* Interior Secretary Bruce Babbitt, Treasury Secretary Robert Rubin and Assistant Interior Secretary Kevin Gover are found in contempt by Judge Royce Lamberth for failure to produce and protect records

June/July 1999
* ”Trial One” focuses on how to reform the trust accounting system

October 1999
* A mediator is appointed to settle the case

December 1999
* It’s determined that mediation will not lead to a settlement. Lamberth issues opinion stating that Interior has breached its trust responsibilities and orders quarterly reports on its reform efforts

September 2000
* Appeals court hears arguments on Trial One judgment

November 2000
* Treasury discloses that it has destroyed trust documents

January 2001
* Gale Norton appointed secretary of the Interior, making the lawsuit Cobell v. Norton

February 2001
* U.S. Court of Appeals finds in favor of plaintiffs

April 2001
* Lamberth appoints a court monitor to oversee trust reform and report on Interior’s progress

September 2001
* Report finds that IIM trust fund data is in disarray and decades behind schedule due to mismanagement by Interior and BIA senior officials

December 2001
* Lamberth orders Interior to disconnect from the Internet until security safeguards are installed

September 2002
* Norton and Assistant Secretary Neil McCaleb found in contempt of court for withholding evidence

January 2003
* National Congress of American Indians joins plaintiffs

March 2003
* Ross Swimmer appointed as special trustee over trust funds

April 2003
* Department of Interior appeals court ruling that said it is unfit to manage IIM trust accounts

May 2003
* ”Trial Two” commences in hopes of discovering amounts owed IIM trustees

July 2003
* The 44-day Phase Two trial closes
* Contempt charges against Norton and McCaleb thrown out, saying that they could not be held accountable for events that took place before they held office

November 2003
* U.S. Court of Appeals orders a stay of a lower court’s order for a full historical accounting of the IIM trust

April 2004
* Plaintiffs agree on Judge Charles Renfrew and John Bickerman as mediators

September 2004
* Lamberth rules that Interior must provide a ”full and accurate accounting” to IIM beneficiaries before trust lands can be sold by government

October 2004
* Mediation efforts are declared hopeless

December 2004
* U.S. Court of Appeals overrules Lamberth’s deadline of September 2007 for historical accounting, says Interior can use statistical sampling in settling accounts, and permits Interior to devise its own reform plans

March 2005
* Sen. John McCain, chairman of the Senate Committee on Indian Affairs, pledges to address trust reform in a concerted way and give it ”only one good shot”

April/May 2005
* Jim Gray and National Congress of American Indians President Tex Hall co-chair meetings of a national tribal task force working group formed to provide recommendations to the SCIA and the House Resources Committee

June 2005
* The national tribal task force presents a list of 50 principles, including a settlement number of $27.5 billion, to Congress

July 2005
* Lamberth orders Interior to admit to trustees that its accounting may be inaccurate. He calls Interior a ”dinosaur.” McCain and Sen. Byron Dorgan sponsor Senate Bill 1439 (Indian Trust Reform Act of 2005) to distribute IIM funds at a ”fair and equitable rate” and provide a method to consolidate fractionated land

August 2005
* Justice Department requests a hearing to remove Lamberth from the case

January 2006
* Interior is ordered to pay $7 million in attorney’s fees. Interior Associate Deputy Secretary James Cason responds by sending a letter to tribes stating that the payment would adversely affect funding of tribal programs

March 2006
* Norton resigns and Idaho Gov. Dirk Kempthorne is nominated. Case becomes Cobell v. Kempthorne. McCain’s trust reform attempt reaches an impasse as Indian leaders disagree on the elements of reform legislation

July 2006
* Lamberth is ousted from case for intemperate commentary and an appellate court restores Interior’s connection to the Internet. McCain proposes an $8 billion settlement and two draft bills, S. 1439 and H.R. 4322, propose to compensate willing trustees

October 2006
* Plaintiffs reject SCIA proposals

December 2006
* District of Columbia Court Judge James Robertson is assigned to take over the case and congressional session ends with no action taken toward a legislative settlement

Sources: Country Today archives

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