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Saturday, April 12, 2014

Lamberth in Cobell Part 2: Contextualizing Litigation Tactics

As a follow up to my first post on Judge Lamberth and the Cobell case and as a way of responding to questions that Glenn raised in the comments, I want to briefly note some historical antecedents of the lawsuit to situate the parties' litigation strategy in a broader context.  I’ll take up the DC Circuit’s decision to reassign the case, and the ultimate result of the Indian trust litigation, in additional posts.

The General Allotment Act of 1887 (the Dawes Act) was in no uncertain terms designed to destroy the tribes and assimilate Indians into anglo-American social and economic systems.  Senator Henry Dawes said that the Indians "have got as far as they can go, because they hold their land in common. . . .  There is no selfishness, which is at the bottom of civilization."*  The Dawes Act would therefore impose individual land ownership on Native Americans in 80- or 160-acre allotments carved out of tribal lands.  The government ended up taking some 90 million acres--65% of tribal lands--for sale to non-Indian settlers and entities (railroads, ranchers, etc.).  The plan was to force massive cultural change--having to tend their allotments would instill in the Indians proper anglo-American values.  Or so went the thinking.  In 1881, President Chester Arthur boasted that allotment "would have a direct and powerful influence in dissolving the tribal bond, which is so prominent a feature of savage life, and which tends so strongly to perpetuate it."  In 1901, Teddy Roosevelt characterized the allotment system as "a mighty pulverizing engine to break up the tribal mass."

Arthur and Roosevelt were right about allotment breaking the tribes, but, of course, dead wrong about the benefits of that process.  Private land ownership was a foreign concept and allotees soon faced tax foreclosure, reversion or bargain-basement sales of their land or its resources.  The proceeds went into the government-managed trust accounts.  And, as the D.C. Circuit noted, for decades before Cobell was even filed "report after report excoriated the government's management of the [Indian] trust funds."  Pre-lawsuit reports from Congress, the GAO, and others all reported basically the same thing--"significant, habitual problems in [the Bureau of Indian Affairs'] ability to fully and accurately account for trust fund moneys, to properly discharge its fiduciary responsibilities, and to prudently manage the trust funds."  The Interior Department itself, in a 2007 report to Congress on the progress of trust reform in the wake of Cobell, called the Indian trust "one of the most notoriously intractable management problems in the federal government." 

The Department admitted most of this mismanagement before the first trial in Cobell, conceding that it "does not adequately control the receipts and disbursements of all [trust] account holders," that it "does not provide all account holders with periodic statements of their account performance," that it "does not provide adequate staffing, supervision, and training for all aspects of trust fund management and accounting," and, in the words of then-Interior Secretary Bruce Babbitt, that "the fiduciary obligation of the United States government is not being fulfilled."  Paul Homan, Clinton-appointed Special Trustee for the Indian trust, testified that "[t]he record-keeping system [for the Indian trust] is the worst that I have seen in my entire life."

Unsurprisingly given their treatment by the government, of which the trust debacle is illustrative, Native Americans' economic circumstances generally are appalling:  Data the 2012 census show that their median household income was $35,310 (compared to the overall national median of $51,371), 29.1% were living in poverty (more than any other racial group, and at a rate significantly higher than the 15.9% national rate), and 27.4 percent lacked health insurance (compared to 14.8 percent nationally).

It is against this background that we should consider the government's approach to defending the Cobell lawsuit.  The system was broken.  Everyone knew it.  Even the Interior Department admitted it.  But the litigation process was notoriously long and convoluted--14 years and nearly 4000 docket entries by the end.  Given the enormous scope and variety of the proceedings, I will only describe a few exemplary bits that are suggestive of the government's general strategy. I do not intend to refute Glenn's suggestion that there were reasons for the government to be frustrated; my point is that there were plenty of reasons for everyone involved--including the plaintiffs and the judge--to be frustrated.  

One could characterize the government's litigation strategy charitably as thoughtful, exhaustive and deliberate, or uncharitably as dilatory and obstructionist.  Beginning with its initial motion to dismiss and continuing through the first Cobell trial (which was held in June 1999 and established the government's trust management failings), the government pursued legal theories that would have completely cut off the Indians' private rights of action for trust violations.  They argued that despite all the problems with its management of the trust, the Interior Department's internal trust reform efforts were proceeding "in a reasonable fashion, [at] a reasonable speed," and that the plaintiffs had no judicial remedy because of sovereign immunity and because Interior had unreviewable discretion to make trust management decisions.  After the trial, Judge Lamberth ordered an accounting and the government advanced its sovereign immunity and agency discretion arguments on appeal.  The D.C. Circuit rejected them and held that "[t]he federal government has substantial trust responsibilities toward Native Americans," and that it was "equally clear [that it] . . . has failed time and again to discharge its fiduciary duties."

With hundreds of thousands of benficiaries and such a long-lived trust, one might have expected the accounting and reform of the system- the obvious remedy--to be a large, time-intensive project.  But this wasn't that.  It took 14 years for the plaintiffs to overcome the government's insistence that the Indians had no remedy at all. 

Now, it may be that the government appealed the trial result (and continued to litigate for a decade more) out of a desire to protect the agency's trust management prerogatives from constraint by court order, but of course that would be a more plausible and acceptable reason had the agency's internal trust reform efforts not been repeatedly deemed massively deficient in the years before the lawsuit and thoroughly proved to be so at trial.  Perhaps a vigorous defense is desirable in its own right regardless of the circumstances--certainly every defendant has the right to contest liability and we've long accepted that adversarial presentation is a valuable tool for working out the truth in factually complex cases (Cobell certainly had complex facts).  But there is something about the government's attempts to cut off the class members' access to any judicial remedy, in the light of its universally recognized failings as trustee, that stands in tension with the idea, reflected in the Supreme Court's pronouncement in Seminole Nation v. United States, that the government "has charged itself with moral obligations of the highest responsibility and trust" in "dealing with the Indians [and] should therefore be judged by the most exacting fiduciary standards."

We can see already some of the reasons why Judge Lamberth might have emphasized the government's tendency to "litigate and relitigate, in excruciating fashion, every minor, technical legal issue" in the opinion that resulted in the case being reassigned.  I leave it to you to assess whether Judge Lamberth's obvious frustration was justified and I'm interested in your thoughts.  Stay tuned--the next post will detail some of the case's headline-grabbing collateral proceedings, including the contempt citations and Judge Lamberth's orders disconnecting the Interior Department from the Internet.  These incidents, too, add important context for thinking about the tone of the judge's most controversial opinion in Cobell.

*Address at the Third Lake Mohonk Indian Conference, 1885, as quoted in Armen MerjianAn Unbroken Chain of Injustice: The Dawes Act, Native American Trusts, and Cobell v. Salazar, 46 Gonz. L. Rev. 609, 615 (2011).  Much of what I am about to say is chronicled in greater detail, and with fuller citations, in the Merjian article (and I'm sure other articles on the Cobell case).

Posted by Garrick Pursley on April 12, 2014 at 09:27 AM in Judicial Process | Permalink


All Lamberth quotes are great and can't pick the best one. I enjoy them all but the Govt just failed in total and will continue do so. I like this one.

"And the court has made the extraordinary declaration that if the
Secretary and other Interior officials "feel that as a result of
this Court's rulings they are unable or unwilling to perform their
duties to the best of their ability, then they should leave the
Department forthwith or at least be reassigned so that they do not
work on matters relating to the IIM trust."

Posted by: Thomas M. Wabnum | Apr 17, 2014 2:29:46 PM

Garrick -- this is obv an awkward thing for you to blog about since you were clerking for the judge and working with him on much of the litigation. And I am certainly biased in my viewpoint having litigated many appeals in Cobell. That said, as you adroitly recognized, there are are at least two sides to this litigation like any others. I hope that in a future post you'll discuss more the chronology of the case and the orders that the Judge issued that were appealed and reversed (they are often singed into my brain having spent a substantial part of my DOJ life on them).
Among other things would love to hear your thoughts on
- The IT security trial and the propriety of ordering the entire department of the Interior to disconnect from the internet that the DC Circuit overturned.
- The accounting order that would have cost billions to put in place (more than in the trust accounts pass through) that the D.C. Circuit overturned.
- The propriety of holding dozens of members of the trial team and the assistant attorney general and others in contempt without an avenue for appellate review.
- Whether based on the Tucker Act or other statutes the case really belonged in the CFC to begin with and whether it was appropriate to continue litigating this in the DDC?
-What you thought of the litigation tactics of the class' lawyers. Now here I have an axe to grind myself since they sough sanctions in the DC Circuit against me and the other appellate lawyers for seeking the case to be reassigned, which it ultimately was. Of course the sanctions were rejected by the DC Circuit, but my view was that they adopted a trench warfare approach and scorched earth intimidation tactic that the judge tolerated and perhaps encouraged?

I could add many more of course. Again, I have my views and you have yours, based at least in part on our roles in this litigation. I would just encourage you, respectfully to address some of the meat of these issues, including the repeated reversals of Judge Lamberth by the D.C. Circuit. It is a shame there has not been more blogospheric discussion of this case, which was truly a fascinating experiment in how litigation can succeed or fail in restructuring a relationship. I would just encourage you to say a bit more on the merits of these issues if you have the chance.

Posted by: I. Glenn Cohen | Apr 16, 2014 12:40:01 PM

Now with substantially fewer typos!

Posted by: Garrick Pursley | Apr 12, 2014 9:28:57 AM

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