The U.S. Court of Appeals has issued nine opinions in the longstanding dispute between a group of American Indians and the Interior Department, and with yet another oral argument session today in the 13-year-old case you can expect at least one more opinion.
“Has it only been 13 years?” Chief Judge David Sentelle said today in court, where more than 100 people interested in the case gathered in the ceremonial courtroom to hear argument. “Some of us didn’t have gray hair when this started,” said D.C. solo practitioner Dennis Gingold, lead counsel for the plaintiffs. “Some of us had hair,” Judge Douglas Ginsburg responded.
The plaintiffs, including Elouise Cobell, a member of the Blackfeet tribe in Montana, allege the government owes billions of dollars for mismanaging a trust fund for the collection and dispersal of royalties from oil and gas companies, among others, that leased Indian land.
U.S. District Judge James Robertson last summer ordered the government to pay $455.6 million to the plaintiffs stemming from mismanagement of the Individual Indian Money trust. Both sides appealed the ruling. Robertson called a full, historical account “impossible” considering the cost of such a pursuit.
Robertson’s award was the centerpiece of today’s argument, and one of the panel judges, Senior Judge A. Raymond Randolph, asked how it can be decided who gets what dollar amount when the individuals in the litigation have never been identified. The class is potentially more than 500,000 American Indians. “You’ve got to make decisions about each individual that Judge Robertson said was impossible,” Randolph said.
Alisa Klein, an appellate lawyer with the Justice Department’s Civil Division, said the government continues to spend “hundreds of millions of dollars” on litigation and accounting. “Your honor, there is no rational distribution mechanism,” Klein said. Klein said the government does not owe anything to the plaintiffs and that Robertson lacked jurisdiction to enter an award.
Gingold, arguing for the plaintiffs, said: “Your honor, it is simply not a good excuse to say, ‘We don’t have the money to account for your funds.’ Inherent in the trust itself is the duty to account.”