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Native landowners say they are owed $58 billion

By JODI RAVE of the Missoulian

A federal judge on Monday will gavel to a start the trial that will potentially award billions of dollars to Native landowners whose income from natural resources has been mismanaged and misused by the U.S. government for more than a century.

"We're going in for the final leg leading to justice," said Elouise Cobell, a landowner and lead plaintiff from Browning. "I'm very confident we will be victorious."

U.S. District Court Judge James Robertson in Washington, D.C., will preside over Cobell vs. Interior Secretary Dirk Kempthorne, in a case pitting a half-million Native landowners against the Interior Department.

Indigenous people claim they are owed at least $58 billion in trust funds that never made it into their money accounts managed by the department since 1887.

Justice Department lawyers have argued the shortfall rests somewhere between $3 billion and

$3.6 billion.

Robertson will move the case forward as he acknowledges that Interior and Justice department representatives oppose "any remedy in this case that has a dollar sign in front of it." He has also noted that Cobell's lawyers have added "considerably more zeros after the dollar sign than the government thinks is possible, or frankly than I think is possible."

In an April hearing, the judge said he aims to address four major concerns as the trial unfolds over the course of the next two to three weeks. First, he will consider whether individuals in the class action suit can request their own day in court. He will also decide how much money is awarded and how it will be distributed. Finally, he will determine the "time value," or whether any interest should be applied to the award.

Cobell, a community developer from the Blackfeet Reservation, filed suit against the Interior Department on June 10, 1996. At stake are award claims stemming from money earned by landowners for grazing leases and sales of timber, oil and gas on

11 million acres of individually owned trust lands. The money was either not collected or deposited into Individual Indian Money, or IIM, accounts.

Court documents and transcripts from the 144-month-long case have confirmed a land management system rife with accounting inaccuracies and bureaucratic incompetence in both the Interior and Treasury departments.

Yet despite hundreds of millions of dollars that have been spent to provide an accounting and fix the broken accounting system, the Interior Department's web of bureaus and agencies remain mired in disorder. Those departments that have IIM trust functions include the Bureau of Land Management, Office of Special Trustee, Office of Historical Trust Accounting, Minerals Management Service and the Bureau of Indian Affairs.

"The BIA is a bureaucratic mess that needs to be reorganized and reenergized," said U.S. Sen. Byron Dorgan, D-N.D., in a June 3 letter to the Interior Department. "If that proves impossible, then maybe it ought to be replaced with an organization that will take effective action to help improve the lives of American Indians."

Dorgan asked Kempthorne to provide relief to the Three Affiliated Tribes on the Fort Berthold Reservation in North Dakota, where oil and gas development has been hindered by the bureau's lack of staff and expertise.

Fort Berthold is surrounded by 49 active drilling rigs, while only one BIA permit has been issued for a drilling rig on the reservation - and that took three years to complete.

The Interior Department's ineffective management "is harming local, tribal and state economies, as well as our national efforts to produce more domestic sources of energy," wrote Dorgan.

As Judge Robertson sets out to determine how much money is owed to individual landowners, he will be making a decision based on tens of thousands of trust fund records that are missing, deleted or destroyed.

Some of the most lucrative accounts in the "common trust fund" have historically arisen from oil and gas production on tribal lands. Yet even today, Cobell lawyers argue, the Minerals Management Service relies upon incorrect data on oil and gas distributions for individual trust beneficiary accounts.

Money paid into the system is not tracked; instead, the department has relied upon the honesty of those leasing Indian land.

But only money that has any sort of accounting track record will be considered in Monday's trial.

"Now what benefit did the government, actual benefit, do you think the government retained from the use of monies that it in fact paid but just can't account for?" Robertson asked the plaintiffs' attorney during April's hearing.

Dennis Gingold replied: "If in fact it paid for it and can't account for it, your honor, I don't know how you can make the assumption they were paid."

Reach reporter Jodi Rave at 1-800-366-7186 or at jodi.rave@lee.net.

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