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WASHINGTON � After 11 years, 3,500 documents filed and 80 published decisions, the multi-billion-dollar Indian Trust Fund litigation against the federal government is moving into a crucial new phase, with a new judge, and new but cautious hope that this long journey will end. U.S. District Judge James Robertson is scheduled to begin a trial on Oct. 10 to review the government’s plan for an accounting of thousands of individual Indian Trust accounts, for which at least $13 billion collected from natural resource leases is unaccounted, according to the Indian litigants. Since the turn of the last century, the government as trustee approves all leases and sales of natural resources on Indian lands and collects payments in trusts for disbursement to the Indian land owner. The Department of the Interior manages more than 56 million acres for more than 370,000 beneficiaries and more than 250 tribes. The breach of trust class action � the largest ever filed against the government � was brought in 1996 on behalf of all present and past individual Indian Trust beneficiaries, including more than 300,000 current account holders, with the exception of those who filed separate lawsuits before 1996. Cobell v. Kempthorne, No. 1:96CV01285. The Cobell litigation is not the only Indian Trust-related case before Robertson, who took over the litigation after Judge Royce Lamberth was removed by the U.S. Circuit Court of Appeals for the District of Columbia. The Native American Rights Fund (NARF) last December filed a lawsuit on behalf of 12 tribes seeking a full accounting from the government of tribal, not individual, trust funds. Roughly 70 tribes have filed their own actions. If NARF gets its action certified as a class, it says, the class may include as many as 220 tribes. Nez Perce v. Kempthorne, No. 06-cv-02239-JR. But for now, all eyes are on the Cobell litigation and Robertson’s courtroom. There are similar issues in the two sets of cases, said NARF counsel David Gover, adding, “We’re very encouraged by what the judge is doing, the fact that he has heard enough and said Cobell is going to trial.” The Cobell trial is “absolutely critical, both legally and politically,” said Keith M. Harper, head of the Native American practice at Atlanta-based Kilpatrick Stockton from the Washington office, and Cobell co-counsel with Dennis Gingold. Although the trial will focus on difficult and technical issues surrounding how � and even whether � the government can perform the accounting, Harper said, “It would be our job to make sure it’s not merely technical. I think we have to tell the story here of what is happening to these beneficiaries.” Much of the capital of many Indian communities has been eliminated for generations by government mismanagement of the trust accounts, he said. “We understand we can’t fully compensate these people no matter how successful we are, but, on the other hand, we want to make sure we get at least as much as we can and reform the system so it’s better in the future.” Finding a path In his trial order, Robertson wryly said that the current posture of the Cobell case could not be described in less than 40 to 50 pages. But he succinctly noted key reasons for moving to trial. In late 1999, the Department of Interior was found in breach of its duties under the Indian Trust Fund Management Reform Act of 1994, especially the duties to provide adequate systems for accounting for trust fund balances. The department was ordered to comply. For the next seven years, he wrote, there was “strenuous” litigation over the government’s compliance or noncompliance. After numerous district and appellate court decisions, still unresolved are the details of the government’s historic accounting obligations and a subset of that issue � the question of whether statistical sampling will “satisfy fiduciary standards.” After his own recent efforts to resolve those issues were unsuccessful, he said, it was “prudent” to bring the matter to open court, where the parties could test the government’s accounting project. At the end of trial, he said, he expects answers to the following questions: whether the government has cured the breaches of its fiduciary duties; whether it has “unreasonably delayed” completion of the accounting; and whether further relief should be ordered. And, he wants a dollar figure on money collected and paid out during the relevant period. In recent briefing to the court, the U.S. Department of Justice argues that the government is curing the fiduciary breaches. The Interior Department’s 2007 accounting plan, according to Justice counsel, provides that historical statements of accounts will be given to holders of all individual trust accounts opened on or after Oct. 25, 1994, and the accounting will trace the annual and daily balance of all funds held in trust back to 1938. “Interior’s efforts will provide the best accounting practicable within a reasonable period of time,” the Justice Department has told the court, noting that the Interior Department has spent $127.1 million on the effort in the past four years. The case should be remanded to Interior for the accounting and no further relief is necessary, according to the Justice Department. But the Cobell plaintiffs contend that the accounting can’t be done because of the loss and destruction of critical trust records. Kilpatrick Stockton’s Harper said the trial will show that the government’s plan is unreasonable by any standard � it can’t perform the accounting � and what other remedies are there for the court. The trial is important politically, he added, because the court will decide what the facts are. “This will tell Congress and everybody, in a very public way, who is making accurate statements about what is happening and what is the state of the trust,” he said. Congress will then have the facts necessary to a political solution if it decides to intervene. The government can’t do a proper accounting because it doesn’t have the records, said Professor Robert Anderson, director of the Native American Law Center at the University of Washington School of Law, who has been following the case. “This case cries out for settlement, but you’ve got to have some rational basis for picking a figure,” he said. “When you’re missing 100 years of records, it’s hard to say what the appropriate figure is. I think it will be interesting see the new judge’s take on this. Judge Robertson has a new day here.”

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