Cobell v. Babbitt, 012006 DCDC, 96-1285
| Docket Number | Civil No. 96-1285 (RCL) |
| Date | 20 January 2006 |
| Parties | ELOISE PEPION COBELL, et al., Plaintiffs, v. BRUCE BABBITT, Secretary of the Interior, LAWRENCE SUMMERS, Secretary of the Treasury, and KEVIN GOVER, Assistant Secretary of the Interior, Defendants. |
| Court | U.S. District Court — District of Columbia |
Royce C. Lamberth, United States District Judge.
MEMORANDUM OPINION: FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter comes before the court after a six-week bench trial and the submission of an administrative record, proposed findings of fact and conclusions of law by both sides, and responses thereto. Upon consideration of these materials and the record in this case, the court makes the following findings of fact and conclusions of law.
Table of Contents
I. Introduction ....................4
II. Findings of Fact ..................7
A. History Surrounding IIM Trust Establishment ................7
B. The IIM Trust .................12
C. The Indian Trust Fund Management Reform Act of 1994 .................... 19
D. The Strategic Plan ...............22
E. The High Level Implementation Plan (HLIP) . . .23
1. Data Cleanup ...............24
a. OST Trust Fund Records Data Cleanup .24
b. BIA Trust Asset Records Data Cleanup .27
2. BIA and OHA Probate Backlog ........31
3. BIA Appraisal Program ...........32
4. Computer Systems .............33
a. OST Trust Fund Accounting System (TFAS) ................34
b. BIA Trust Asset and Accounting Management System (TAAMS) ......34
5. OST/BIA Records Management ........37
F. Facts Pertaining to Plaintiffs Interference Claims .....................40
G. The Department of the Treasury .........41
1. Time Lapse in Availability of Deposited Funds ..............42
2. Loss of Interest on Issued Checks ..... 44
3. Illegal Document Retrieval and Retention Policies ............45
4. The Sweeping of Money into the Unclaimed Moneys and Miscellaneous Receipts Accounts at Treasury ....... 46
III. Jurisdiction and Scope of Lawsuit .........47
A. Subject Matter Jurisdiction ..........47
B. Waiver of Sovereign Immunity ..........48
C. Plaintiffs Common-Law Claims for Breach of Trust ................57
D. Scope of Lawsuit ................64
E. APA Jurisdiction ...............73
F. Administrative Record .............78
IV. Declaratory Judgment-Basic Principles ........ 79
V. Declaratory Judgment-The Secretary of the Interior .83
A. Overview ....................83
B. Declaration of Trust Duties Arising from the Indian Trust Fund Management Reform Act . .84
1. The Secretary of the Interiors Duty to Perform Accounting on All IIM Trust Money....84
2. The Secretary of the Interiors Duty to Establish Written Plans for Gathering of Missing Information; Document Retention; Business and Computer Systems Architecture; and Staffing of Trust Management Functions ........... 87
(i.) Introduction .............87
(ii.) document retrieval and retention . .88
(iii.) systems architecture and staffing ...91
C. The Deadline for the Discharge of the Secretary of the Interiors Four Declared Planning Duties Has Passed ............... 95
D. The Secretary of the Interior is Currently in Breach of Four Statutory Trust Duties that Warrant Prospective Relief ....... 103
1. The Secretary of the Interior Has No Written Plan to Gather Missing Data....103
2. The Secretary of the Interior Has No Written Plan Addressing the Retention of IIM-Trust Documents Necessary to Render an Accounting ............... 104
3. The Secretary of the Interior Has No Written Architecture Plan ......105
4. The Secretary of the Interior Has No Written Plan Addressing the Staffing of Interiors Trust Management Functions . . 106
VI. Declaratory Judgment-The Secretary of the Treasury... 106
A. The Secretary of the Treasurys Duty to Retain IIM-Trust Documents that are Necessary for the Rendition of an Accounting . 106
B. The Secretary of the Treasury Has Breached His Fiduciary Duty to Retain IIM-Trust Documents and Has No Remedial Plan to Address This Breach of Duty ......... 108
VII. Plaintiffs Obstruction Claims ..........109
VIII. Remedy ......................113
IX. Certification of Order for Interlocutory Appeal . .124
X. Conclusion ....................125
I. Introduction1
It would be difficult to find a more historically mismanaged federal program than the Individual Indian Money (IIM) trust. The United States, the trustee of the IIM trust, cannot say how much money is or should be in the trust. As the trustee admitted on the eve of trial, it cannot render an accurate accounting to the beneficiaries, contrary to a specific statutory mandate and the century-old obligation to do so. More specifically, as Secretary Babbitt testified, an accounting cannot be rendered for most of the 300,000-plus beneficiaries, who are now plaintiffs in this lawsuit. Generations of IIM trust beneficiaries have been born and raised with the assurance that their trustee, the United States, was acting properly with their money. Just as many generations have been denied any such proof, however. If courts were permitted to indulge their sympathies, a case better calculated to excite them could scarcely be imagined. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 15 (1831) (Marshall, C.J.).
Notwithstanding all of this, defendants, the trustee-delegates of the United States, continue to write checks on an account that they cannot balance or reconcile. The court knows of no other program in American government in which federal officials are allowed to write checkssome of which are known to be written in erroneous amountsfrom unreconciled accountssome of which are known to have incorrect balances. Such behavior certainly would not be tolerated from private sector trustees. It is fiscal and governmental irresponsibility in its purest form.
The United States mismanagement of the IIM trust is far more inexcusable than garden-variety trust mismanagement of a typical donative trust. For the beneficiaries of this trust did not voluntarily choose to have their lands taken from them; they did not willingly relinquish pervasive control of their money to the United States. The United States imposed this trust on the Indian people. As the government concedes, the purpose of the IIM trust was to deprive plaintiffs ancestors of their native lands and rid the nation of their tribal identity. The United States reaped the benefit of this imposed program long agosixty-five percent of what were previously tribal land holdings quickly opened up to non-Indian settlement. But the United States has refused to act in accordance with the fiduciary obligations attendant to the imposition of the trust, which are not imposed by statute.
The defendants cannot provide an accounting of plaintiffs money, which the United States has forced into the IIM trust. This problem, which has been handed down from administration to administration of apologetic United States trustee-delegates to generation upon generation of helpless beneficiaries, continues today and is the basis for this lawsuit. It imposes far more than pecuniary costs, although those are clear and cannot be overstated. Plaintiffs class includes some of the poorest people in this nation. Human welfare and livelihood are at stake. It is entirely possible that tens of thousands of IIM trust beneficiaries should be receiving different amounts of moneytheir own moneythan they do today. Perhaps not. But no one can say, which is the crux of the problem.
Plaintiffs bring this lawsuit to force the government to abide by its duty to render an accurate accounting of the money currently held within the IIM trust. But plaintiffs must remember that this is a lawsuit. They cannot treat the court as a grievance committee for the United States mishandling of the trust. Whether plaintiffs like it or not, only Congress can play that type of role. For everyone involved must consider not only plaintiffs rights, but also the constitutional role of courts in American government. This court can consider only plaintiffs soundly grounded causes of action, and it cannot provide relief beyond them. The component of the case currently before the court concerns the issue of whether defendants are in breach of any trust duties such that plaintiffs should be afforded some prospective relief to prevent further injury of their legal rights. Plaintiffs have stated and proved certain valid legal claims that entitle them to relief.
For the reasons stated below, the court finds that the United States government, by virtue of the actions of defendants and their predecessors, is currently in breach of certain trust duties owed to plaintiffs. The government recently has taken substantial steps toward bringing itself into compliance in several respects. Nonetheless, given the long and sorry history of the United States trusteeship of the IIM trust, the defendants recalcitrance toward remedying their mismanagement despite decades of congressional directives, and the consequences of allowing these enumerated breaches of trust to continue, the court will retain continuing jurisdiction over this matter. It would be an abdication of duty for this court to do anything less.
II. Findings of Fact
A. History Surrounding IIM Trust Establishment
As Chief Justice Marshall noted in 1831, the United States-Indian relationship is perhaps unlike that of any two people in existence and marked by peculiar and cardinal distinctions which exist nowhere else. Cherokee Nation, 30 U.S. at 16. In the early 1800s, the United States pursued the policy of removali.e., the relocation of tribal communities from their homelands in the East and Midwest to remote locations in the newly acquired Louisiana Purchase territory. Trial Tr. at 846. In 1824, the Bureau of Indian Affairs (BIA) was created to...
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