UPDATED 4:45 p.m.
There will be uncertainty in any accounting of century-old land royalties owed to a class of Indian plaintiffs, but an accounting must still be done, the U.S. Court of Appeals for the D.C. Circuit ruled today in reversing the judgment of a federal district judge.
Last year, U.S. District Judge James Robertson, ruling in a long-running dispute between the Indians and the Interior Department, determined that such an accounting would be impossible because of limited congressional funding. Lawyers for the plaintiffs say the accounting is impossible not because of funding but because historical records no longer exist. The appellate court today said that while it would “indeed be ‘nuts’ to spend billions to recover millions," the trial court can still order an accounting that efficiently uses government resources. The D.C. Circuit opinion is here.
Robertson ordered $455 million in monetary relief, considerably less than the $47 billion that the plaintiffs are seeking. The appellate court ruling vacates the monetary award. In the ruling, there is a suggestion that the litigation, now in its 13th year, is likely to continue for sometime. (Click here for a history of the litigation, provided by the plaintiffs.)
“While we vacate the district court’s orders, including its holding of impossibility, we do so with substantial sympathy, recognizing that our precedents do not clearly point to any exit from this complicated legal morass,” Chief Judge David Sentelle wrote in a July 24 opinion joined by Judge Douglas Ginsburg and Senior Judge A. Raymond Randolph. The court heard the case, now known as Cobell et al. v. Salazar, on an interlocutory appeal.
The appeals court said the “purpose of an equitable accounting, as we have tried to articulate, is for Interior to concentrate on picking the low-hanging fruit. We must not allow the theoretically perfect to render impossible the achievable good.”
Dennis Gingold, a lawyer for the plaintiffs who argued the case in the D.C. Circuit in May, was not immediately reached for comment. Kilpatrick Stockton partner Keith Harper, who is participating in the case, said it’s too early to comment on the ruling. Justice Department Civil Division appellate attorney Alisa Klein argued for the government. There was no immediate reaction from Justice about the ruling.
Cobell, the lead plaintiff in the case, "expressed appreciation for the court not freeing the government from its burden to render an accounting," according to a news release published at 3:30 p.m.
“We will continue to seek justice, no matter how long that takes," Cobell said in a statement. "Tens of thousands of beneficiaries have died while this case has been pending without ever receiving an accounting of their trust assets.” An earlier statement from Cobell in which she expressed disappointment with the D.C. Circuit ruling was retracted.
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