The lawyers in the long-running Indian trust litigation in Washington find themselves in an odd position: filing a petition for certiorari just two weeks after the sides announced a $1.41 billion settlement to end the case.
This week, lawyers for lead plaintiff Elouise Cobell filed their petition with the U.S. Supreme Court to challenge a ruling in July in the U.S. Court of Appeals for the D.C. Circuit. The settlement is not final and so the lawyers are keeping open their options.
The appeals court ruling erased a $455.6 million award—restitution for the government’s breach of trust in managing billions of dollars flowing from natural resources tied to Indian lands. The court also dismissed a finding that an historical accounting of individual Indian trust accounts is impossible. A three-judge panel said the government has no obligation to conduct a complete historical accounting—just “the best accounting possible” with whatever money Congress decides to appropriate.
“As a result of that holding, the government is responsible only for whatever accounting it chooses to pay for, and Indian beneficiaries will never know what happened to billions of dollars of their assets that the United States purportedly held in trust for them subject to the most exacting fiduciary standards,” Cobell’s lawyers, including D.C. solo practitioner Dennis Gingold and a Kilpatrick Stockton team, said in their petition for certiorari. “The court of appeals’ holding turns traditional, controlling trust law on its head, and is akin to giving the fox sole discretion to determine the security features of the henhouse.”
Cobell’s lawyers, who include Kilpatrick Stockton partner Keith Harper, said in a footnote on the first page of their petition that the plaintiffs and the government executed a settlement Dec. 7 that is contingent on legislation that authorizes payment and, in addition, final approval from the presiding trial court judge.
The settlement gives Congress until Dec. 31 to pass legislation authorizing the deal. The Justice Department and the plaintiffs can mutually agree to extend the deadline. That hasn’t happened. Senate Indian Affairs Committee Chairman Byron Dorgan (D-ND) expressed his support for the settlement at an oversight hearing last week.
The primary thrust of the certiorari petition is that the government has an obligation to account for all trust money regardless of the money that Congress dedicates to the task. A limited accounting of the billions of dollars held in trust, the plaintiffs lawyers said in court papers, goes against the full accounting called for in the Indian Trust Management Reform Act of 1994.
“The limited accounting set out by the court of appeals necessarily would result in the taking of individual Indian trust assets by the United States without any compensation or procedural safeguards,” Cobell’s lawyers said in the petition.
The lawyers said they plan to ask the Supreme Court to hold the certiorari petition in abeyance until the settlement becomes final. A copy of the petition is here.