COBELL V. NORTON UPDATE

• Jurisdiction: United States

Natural Resources Development in Indian Country
(Nov 2005)
CHAPTER 13C
COBELL V. NORTON UPDATE
Lawrence Jensen
U.S. Department of the Interior
Washington, D.C.

Mr. Jensen currently serves as Counselor to the Solicitor and Regional Solicitor for the Intermountain Region in the U.S. Department of the Interior. For the past 3%p1/2%p years, he has been the Department's lead counsel in Cobell v. Norton, the class action brought by individual Indians in 1996 to obtain an accounting of the Department's Individual Indian Money accounts.

Mr. Jensen also has served as Associate Solicitor for Indian Affairs and Associate Solicitor for Energy and Minerals, and as General Counsel and Assistant Administrator for Water at the U.S. Environmental Protection Agency.

In Cobell v. Norton, D.C. Cir. No. 05-5068, plaintiffs seek an accounting from the government of its management of the monies that it holds in trust for individual Indians. The exact nature and scope of the accounting that must be provided--and whether it is even feasible to perform--has been a matter of contention between the parties since the case was filed in 1996.

In September 2003, following a 44 day trial, the district court issued an injunction that described in great detail the nature and scope of the accounting that the government must perform. The district court issued the injunction even though the plaintiffs did not want it--the plaintiffs had argued at trial that, due to a lack of records, an accounting was impossible and that a model devised by plaintiffs should be used to estimate the amounts owed to the individual Indians. Plaintiffs' theory is that a large percentage of the monies collected by the government on behalf of individual Indians has never been distributed to them, and that they are owed as much as $176 billion.

Among other things, the injunction required the government: 1) to account for every individual Indian money transaction--collection, interest accrual, and distribution--since the General Allotment Act was passed in 1887; 2) to account for monies that were never held in trust by the government, but were paid directly by lessors to the individual Indians; and 3) to give a complete history of all land allotted to individual Indians since 1887. The government estimated that it would cost $12-14 billion dollars to satisfy the requirements of the structural injunction. The government's own accounting plan, which the district court in large part rejected, was...