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Interior again shifts duty to account for Indian trust
Wednesday, December 5, 2007
Filed Under: Cobell

In February 2002, former Interior Secretary Gale Norton took the stand in the Indian trust fund case to reject the Clinton administration's attempts to limit the historical accounting.

Norton, an attorney, said a federal appeals court "clearly threw out" a limited accounting. "I wanted to reject the idea that we only had to do things back to 1994," she testified.

Before her arrival, government attorneys filed motions to base the accounting on the American Indian Trust Fund Management Reform Act of 1994 and not on the historical trust, which dates to the late 1800s. Shortly after taking the stand, Norton formally withdrew those arguments from the court record.

Five years later, Norton's successor has something else in mind. Secretary Dirk Kempthorne, who has been on the job for more than a year but hasn't taken a visible role on trust reform, has gone back to 1994 in hopes of limiting the Interior Department's workload and the cost of the accounting.

In a 200-page brief filed last Friday, the 1994 date comes up dozens of times as attorneys for Kempthorne seek to justify the limits that the Bush administration has imposed on the accounting again. According to the government, Interior's duty to account is based on the 1994 trust reform act and not on its historical fiduciary obligations.

"The 1994 Act does not require accountings for accounts closed prior to its enactment," the brief states. "The Act does not mandate an accounting for all funds that 'were' or 'have ever been' deposited or invested."

As a result, Interior argues it does not have to account for:

• Accounts that were closed as of October 25, 1994 -- the date Congress passed the trust reform act.
• Closed accounts belonging to deceased Indian landowners because their funds "are" no longer held in trust.
• Transactions earlier than June 24, 1938 -- the date of another Indian trust fund act.
• Landowners who received direct payments from energy companies and other developers because those funds were never "held" in trust by the government.

Despite the limits, the government calls the accounting plan "generous" because it goes as far back as 1938 for certain transactions. The brief claims Interior doesn't even have a duty to account for transactions prior to October 1, 1984.

The 1984 date comes from the general six-year statute of limitations imposed on lawsuits against the government. Interior claims the clock started running in 1990 because Congress included "toiling language" on Indian trust claims in an appropriations act that year.

In a trust case involving two Wyoming tribes, the Bush administration asked the Supreme Court to rule that the rider bars claims prior to October 1, 1984. The justices, however, declined to take the case.

The Cobell plaintiffs filed their own briefs on Friday that called on Judge James Robertson to reject Interior's attempts to limit the accounting. In a statement, lead plaintiff Elouise Cobell of the Blackfeet Nation of Montana called the plan flawed.

"The government's proposal is nothing more than a cruel hoax: a plan that would give most Indian trust beneficiaries little of the information that a true accounting would provide," Cobell said.

In October, Robertson heard 10 full days of testimony about the accounting. He has questioned some of the limits being imposed by the Bush administration but has not made any rulings on the issue.

This December marks the eighth anniversary of Judge Royce Lamberth's ruling that Interior must account for "all funds" in the Individual Indian Money (IIM) trust. The Bush administration got him removed from the case over claims of bias.

Final Briefs:
Cobell Brief: Conclusions of Law | Cobell Brief: Findings of Fact DOJ Brief: Findings of Fact and Conclusions of Law

Trial Order:
Cobell v. Kempthorne (April 20,2007)

Relevant Links:
Indian Trust: Cobell v. Kempthorne - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm

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