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United States District Court for the District of Columbia (Lamberth J)
12 July 2005
Civil Action No 96-1284 (RCL)
Cobell v Norton is a class-action lawsuit filed on 10 June 1996 in the US District Court for the District of Columbia. The lawsuit aims to call the federal government to account for billions of dollars belonging to approximately 500 000 American Indians and their heirs that have been held in trust since the late 19th century.
The facts underlying the litigation involve a broad sweep of United States history. Although US policy in the 1870s was to locate Indians on reservations, increasing demand for land led non-Indians to break-up of most of the reservations in the 1880s. Thousands of individual Indians generally were allotted beneficial ownership of 80 to 160-acre parcels of land in the break-up. As trustee, the government took legal title to the parcels, established an Individual Indian Trust and thereby assumed full responsibility for management of the trust lands.
As a result of poor record keeping and general mismanagement, the United States government has no accurate records for hundreds of thousands of Indian beneficiaries, nor of the billions of dollars owed to the class of beneficiaries covered by the lawsuit.
The purpose of the litigation, which was filed by Elouise Cobell, a member of the Blackfeet tribe in Montana, and her co-plaintiffs, is two-fold. The plaintiffs hope to call the government to account for the money, and to bring about permanent reform of the system.
After a trial concerning systemic reform, District Court Judge Lamberth ruled on 21 December 1999 that the secretaries of Interior and Treasury had breached their trust obligations to the Indians. The court retained judicial oversight of the system for a minimum of five years, to ensure that it is overhauled, and ordered Interior to provide an historical accounting of all trust funds. An appeal by the government, arguing that the judge had overreached his authority, was unanimously rejected by a three-judge appeals court panel on 23 February 2001.
To help enforce his orders, Judge Lamberth has appointed both a special master, who oversees the preservation and production of trust documents, and a federal monitor, who provides the judge with assessments of the truthfulness of Interior’s representations to the Court regarding execution of trust reform. In his first report to the court, 19 months after Judge Lamberth’s order was handed down, the federal monitor declared that Interior’s stated efforts to provide an accounting in compliance with the order were ‘still at the starting gate’ and had been marked by ‘unrealistic responses and evasion’.
A trial on the first aspect of the litigation, accounting for the money, has not yet been scheduled.
In this case, the plaintiffs sought an order to require the Department of the Interior to inform all members of the class action about the litigation and their rights in relation to the Department of the Interior.
At times, it seems that the parties, particularly Interior, lose sight of what this case is really about. The case is nearly a decade old, the docket sheet contains over 3000 entries, and the issues are such that the parties are engaged in perpetual, heated litigation on several fronts simultaneously. But when one strips away the convoluted statutes, the technical legal complexities, the elaborate collateral proceedings, and the layers upon layers of interrelated orders and opinions from this Court and the Court of Appeals, what remains is the raw, shocking, humiliating truth at the bottom: After all these years, our government still treats Native American Indians as if they were somehow less than deserving of the respect that should be afforded to everyone in a society where all people are supposed to be equal.
For those harboring hope that the stories of murder, dispossession, forced marches, assimilationist policy programs, and other incidents of cultural genocide against the Indians are merely the echoes of a horrible, bigoted government-past that has been sanitized by the good deeds of more recent history, this case serves as an appalling reminder of the evils that result when large numbers of the politically powerless are placed at the mercy of institutions engendered and controlled by a politically powerful few. It reminds us that even today our great democratic enterprise remains unfinished. And it reminds us, finally, that the terrible power of government, and the frailty of the restraints on the exercise of that power, are never fully revealed until government turns against the people.
The Indians who brought this case are beneficiaries of a land trust created and maintained by the government. The Departments of the Interior and Treasury, as the government’s Trustee-Delegates, were entrusted more than a century ago with both stewardship of the lands placed in trust and management and distribution of the revenue generated from those lands for the benefit of the Indians. Of course, it is unlikely that those who concocted the idea of this trust had the Indians’ best interests at heart – after all, the original General Allotment Act that created the trust was passed in 1887, at a time when the government was engaged in an ‘effort to eradicate Indian culture’ that was fueled, in part, ‘by a greed for the land holdings of the tribes’[:] Cobell v Babbitt (‘Cobell V’), 91 F Supp 2d 1, 7–8 (DDC 1999). But regardless of the motivations of the originators of the trust, one would expect, or at least hope, that the modern Interior department and its modern administrators would manage it in a way that reflects our modern understandings of how the government should treat people. Alas, our ‘modern’ Interior department has time and again demonstrated that it is a dinosaur—the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the last pathetic outpost of the indifference and anglocentrism we thought we had left behind.
The present motion asks the Court to revisit what has become one in a list of lamentable circumstances revealed by this litigation: Despite Interior’s near wholesale abdication of its trust duties, the vast majority of the Indian beneficiaries remain unaware that anything is out of order. Interior distributes various kinds of information to Indian beneficiaries, and the beneficiaries, uninformed of the wretched state of things at Interior, make decisions that affect their trust assets on the basis of that information. The plaintiffs now ask the Court to consider the possibility that Interior’s ghastly past performance calls into question the reliability of any information it distributes to the Indians. If Interior cannot truthfully guarantee that it is providing the beneficiaries with accurate information on which to base decisions that materially affect their interests in the trust, then the beneficiaries deserve, at the very least, a warning to that effect. Any ordinary, reasonable trustee under similar circumstances would have given each and every beneficiary such a warning years ago. Unhappily, Interior is no ordinary trustee.
Interior’s management of the Indian trust has been a nightmare from the beginning. A 1992 congressional report noted:
Scores of reports over the years by the Interior Department’s inspector general, the U.S. General Accounting Office, the Office of Management and Budget, and others have documented significant, habitual problems in the [Bureau of Indian Affairs’s] ability to fully and accurately account for trust fund moneys, to properly discharge its fiduciary responsibilities, and to prudently manage the trust funds.
… Despite this show of concern, the record in this case establishes that Congress’s efforts to address the problem have failed. Not surprisingly, Interior’s internal efforts to reform trust management, lately undertaken at this Court’s direction, have also universally crashed and burned. What remains is the same situation that obtained at the outset of this case: Interior’s unremitting neglect and mismanagement of the Indian trust has left it in such a shambles that recovery may prove impossible.
The ignominious record speaks for itself …
The problems that result from Interior’s inability to maintain complete and accurate records of the IIM [Individidual Indian Money] trust are compounded and made more intractable by the penchant of Interior’s employees, officials, and litigation counsel to be less than forthcoming with the Court. Aside from the 1999 contempt citations mentioned above, the Court also held Secretary of the Interior Gale Norton and former Assistant Secretary of Indian Affairs Neal McCaleb in civil contempt for, among other things, misleading the Court about the status of Interior’s trust reform efforts and computer security. See Cobell v Norton, 226 F Supp 2d 1, 29–46, 88–130 (DDC 2002) … In December 2002, the Court referred a number of Interior’s litigation counsel from the Department of Justice to the Court’s Committee on Grievances after reviewing evidence indicating that they had participated in Interior’s efforts to communicate with plaintiff-class members without authorization from plaintiffs’ counsel in violation of DC Rule of Professional While the contempt citations themselves were vacated on appeal … the Court of Appeals did not call this Court’s findings of fact into question. As such, the factual findings that supported the 2002 contempt citations will be treated as having been established. Cobell v Norton, 283 F Supp 2d 66, 85 (DDC 2003).
…
Add vindictiveness to dishonesty and managerial ineptitude. Interior has demonstrated a tendency to retaliate against both the Indian beneficiaries and its own employees when it feels slighted. On May 21, 1999, the Court entered an Order providing that:
The Department of the Interior, together with all of its supervisory officials, are hereby enjoined from taking any retaliatory action, or making any threats of such action, for providing testimony or information in this action, against (1) any person who has identified as a potential witness in this case ..., (2) any person who is called upon through legal process ... to give testimony or provide other information in this litigation, or (3) any person individually identified by Plaintiffs, in writing, to Defendants as a potential witness in this action.
…
It is illustrative enough of the depths to which Interior has sunk that the Court found it necessary to issue a general anti-retaliation order in the first place; but Interior’s subsequent willful retaliation against its own employee in the face of such an order betrays a truly Machiavellian guile.
… Interior’s wrath was turned on the Indian beneficiaries themselves in the wake of the Court’s September 29, 2004 order restricting communications between Interior and class members concerning sales of Indian trust land (the ‘land-sales order’). … Evidence collected by the plaintiffs demonstrated that ‘[d]uring the period between October 1, 2004 and October 8, 2004, a number of individual Indian trust beneficiaries were denied either their trust checks or information regarding their trust checks by BIA employees who cited this Court’s [land-sales] Order as justification.’ Cobell v Norton, 335 F Supp 2d 531, 542 (DDC 2005). Of course, the Court had previously made clear at a hearing held on October 1, 2004, that the land-sales order had no effect whatsoever on Interior’s ability to distribute trust checks. …
Apparently, Interior’s withholding of trust checks or information about trust checks from the Indians was one outward manifestation of a period of Byzantine maneuvering within the department in an attempt to either evade or, failing that, mischaracterize and vilify this Court and the land-sales order. See Cobell v Norton, 224 FRD 266, 269–71 (DDC 2004) (discussing these activities in detail). As the Court explained, the evidence strongly supports the inference that:
Either (1) the Secretary [of the Interior] was grossly negligent when she failed to add a proscription against the withholding of trust checks to the set of instructions distributed by Interior to the BIA on October 4, 2004, when the risk that checks would be withheld in the absence of such a proscription was reasonably foreseeable; or (2) the Secretary intentionally omitted a proscription against the withholding of trust checks from the October 4 instructions despite her knowledge that checks would likely be withheld in the absence of such a proscription.
Cobell, 335 F Supp 2d at 542. In light of the record in this case, the Court found it more likely that the Secretary’s actions constituted willful misconduct, and invited the Secretary to give testimony to the contrary if the Court’s conclusion was in error. … The Secretary declined the Court’s invitation.
But these are only examples. The entire record in this case tells the dreary story of Interior’s degenerate tenure as Trustee-Delegate for the Indian trust – a story shot through with bureaucratic blunders, flubs, goofs and foul-ups, and peppered with scandals, deception, dirty tricks and outright villainy – the end of which is nowhere in sight. Despite the breadth and clarity of this record, Interior continues to litigate and relitigate, in excruciating fashion, every minor, technical legal issue. See Cobell v Norton, 357 F Supp 2d 298, 306–07 (DDC 2005). This is yet another factor forestalling the final resolution of the issues in this case and delaying the relief the Indians so desperately need. See id. It is against this background of mismanagement, falsification, spite, and obstinate litigiousness that this Court is to evaluate the general reliability of the information Interior distributes to IIM account holders.
This is not the first time the Court has considered authorizing some form of notice to plaintiff-class members, though the propriety of class-wide notice is a matter of first impression. …
The plaintiffs’ motion … asks this Court to grant relief under Federal Rule of Civil Procedure 23(d). The plaintiffs argue that all communications from Interior to Indian beneficiaries containing IIM trust-related information threaten to extinguish the recipients’ rights as members of the plaintiff class. As such, they conclude, all such communications should be accompanied by a notice similar to notices the Court has required Interior to distribute in the past. Additionally, the plaintiffs want Interior to bear the burden and cost of distributing the notice. The Court agrees with the plaintiffs, and will order that Interior include a modified version of the plaintiffs’ proposed notice with all written communications from Interior to current and former IIM account holders at Interior’s expense. …
The plaintiffs advance a single argument in support of class-wide notice: In light of Interior’s record, no information disseminated by Interior to class members can be presumed reliable. As such, any decisions that Indian beneficiaries make on the basis of information from Interior likely will be less-than-fully informed, although the Indians have no way to know that. One of the rights the plaintiffs seek to vindicate in this litigation is the right of the Indian beneficiaries to a full and accurate accounting of the Indian trust, which is essentially the right to have complete and reliable information on which to base decisions affecting their interests in the trust. Thus, the plaintiffs insist, inducing the beneficiaries to make trust-related decisions before completion of the court-ordered accounting is tantamount to extinguishing their rights to that accounting. See Plaintiffs’ Motion [2746] to Require Defendants to Give Their Beneficiaries Notice of Defendants’ Continuing Inability or Refusal to Discharge Their Fiduciary Duties …, at 1–2.
…
Interior does not dispute the factual predicates of the plaintiffs’ argument. Interior concedes that all trust-related information Interior communicates to Indian beneficiaries is inherently unreliable. Of course, anything other than a concession of this point would be laughable in light of the record in this case. The factual record, composed of the accumulated detritus of nine years spent examining Interior’s odious performance as Trustee-Delegate for the Indian trust, is certainly clear enough and smattered with a sufficient number of specific abuses to satisfy the Gulf Oil standard for relief under Rule 23(d). If Interior cannot even ascertain the number of existing IIM account holders, how can any of its more complicated calculations, such as land appraisals, be trusted? If Interior is willing to deceive this Court, why would anyone think that Interior would hesitate to lie to the Indians?
Interior also concedes that Indian beneficiaries make decisions that affect their trust assets in reliance on information from Interior. Together, these concessions entail the conclusion that communications from Interior threaten class members’ right to make fully informed decisions about their trust assets. Thus, all communications from Interior to class members containing information on which a class member might base a trust-related decision violate the class communication order for the same reason that land-sales-related communications were found to violate the class communication order. For this reason, the Court will again supplement the class communication order to require that henceforth every written communication from Interior to current and former IIM account holders must contain a notice designed to protect the rights of the class. The functional effect of the relief granted today is to eliminate the ‘ordinary course of business’ exception from the class communications order.
The Court will require that notice accompany all written communications from Interior to current or former IIM account-holders because Interior cannot determine which IIM account-holders are class members. … The Court will not, however, require that notice accompany oral communications. Interior has previously used supposed restrictions on oral communications to the disadvantage of the Indian beneficiaries. See Cobell, 224 FRD at 270 (noting that Interior closed down BIA offices and routed telephone calls to prerecorded messages in an effort to ‘adhere’ to what Interior perceived to be the Court’s restriction on land-sales-related oral communications) …
Notice must accompany all written communications from Interior to current or former IIM account-holders without regard to subject matter. This requirement ensures maximum protection, as it is difficult to determine, ex ante, the kinds of information that might influence an Indian beneficiary’s trust-related decisions. With so much at stake, the Court greatly prefers over-inclusion to under-inclusion. Furthermore, this requirement should make today’s Order clear enough to forestall the kind of confusion and misadventure that held sway at Interior in the wake of the Court’s land-sales order. And, relieving Interior of the undoubtedly complicated and time-consuming task of differentiating between kinds of communications also seems to significantly decrease the resource-burden imposed by today’s notice requirement. …
The plaintiffs argue that Interior, rather than the plaintiffs, should bear the costs – both financial and logistical – of providing the required notice. … Nefariously, this is the only argument in the plaintiffs’ motion that Interior genuinely attempts to take issue with. … Nevertheless, Interior’s arguments are ultimately unconvincing, and the Court will require that Interior expend both the effort and the funds required to ensure that the notice approved in today’s order goes out with all future communications from Interior to current or former IIM account holders.
Generally, the ‘plaintiff must bear the cost of notice to the class[.]’ Eisen v Carlisle Jacquelin, [1974] USSC 108; 417 US 156, 178 (1974). However, the Supreme Court has provided that ‘where a defendant can perform one of the tasks necessary to send notice [to a plaintiff class], such as identification [of the class members], more efficiently than the representative plaintiff, the district court has discretion to order him to perform the task under rule 23(d).’ … Where a district court orders a class-action defendant to perform a task necessary to distribute notice to the class, the court ‘must exercise its discretion in deciding whether to leave the cost of complying with its order where it falls, on the defendant, or place it on the party who benefits, the representative plaintiff.’ …
The Supreme Court provides guidance for allocating the work involved in sending notice, advising district courts to consider whether the defendant can perform some notice-related task ‘with less difficulty or expense than could the representative plaintiff.’ … Here, including the required notice in mailings that Interior already planned to distribute to IIM account holders will be substantially more efficient than requiring the plaintiffs to send out the notices in a separate mass mailing. Interior has ready access to contact information for IIM account holders, so that for Interior, all that today’s order really requires is the insertion of one additional piece of paper into regular mailings. Moreover, the principal purpose of the notice approved today is to warn the Indians about the potential unreliability of Interior’s communications. Including the notices with the communications they reference reduces the potential for confusion and misinterpretation of the notice. The Court will, therefore, allocate to Interior the tasks of (1) preparing enough copies of the notice for one copy to be included in every written communication sent to a current or former IIM account-holder; and (2) attaching a copy of the notice to each such communication prior to distribution.
…
To determine which party should bear the monetary cost of sending notice to the class, ‘the test should be whether the expense is substantial.’ … If found to be substantial, the court ‘should be considerably more ready to place the cost of the defendant’s performing an ordered task on the representative plaintiff, who derives the benefit[.]’ … The cost of performing a notice-related task allocated to the defendant may remain with the defendant, for example, where the ‘expense involved [is] so insubstantial as not to warrant the effort required to calculate it and shift it to the representative plaintiff,’ or where ‘the task ordered is one that the defendant must perform in any event in the ordinary course of its business.’ …
Including the approved notice in its mailings to current or former IIM account holders falls squarely within the ordinary course of Interior’s business. … But even the cost of an ordinary-course-of business task should be borne by the plaintiff if the expenses involved would be ‘substantial.’ … Interior makes no argument that the cost of including notice in mailings to IIM account holders would be substantial, and the insertion of one additional sheet of paper into each mailing does not seem likely to generate appreciable expense. … The Court thus concludes that Interior should expend the cost as well as the effort required to distribute the approved notice as provided in today’s Order. …
Interior objects to much of the content of the plaintiffs’ proposed notice, which reads as follows:
You are receiving this notice because as an individual Indian trust beneficiary, you may be a member of the plaintiff class in the Cobell v. Norton litigation.
The Cobell v. Norton litigation was filed by Elouise Cobell and other named plaintiffs on June 10, 1996 in the U.S. District Court for the District of Columbia on behalf of all current and past beneficiaries of the Individual Indian Money (‘IIM’) Trust (‘Cobell Class’). This lawsuit is an action in equity to enforce the trust duties that the United States government owes to the Cobell Class. Named as defendants are the Interior Secretary, the Assistant Interior Secretary-Indian Affairs, and the Secretary of the Treasury who, in their official capacities, are trustee-delegates for the government in the management and administration of the IIM Trust (‘Trustee-Delegates’). The Trustee-Delegates have admitted that they do not know whether the information that they are providing to you about your Trust assets is accurate and complete. In addition, they have been held in breach of fiduciary duties that the United States government owes the Cobell Class. As a result, the Trustee-Delegates have been ordered to provide the Cobell Class an accounting of their conduct and an accounting of all items of the IIM Trust since its inception. They also have been ordered to discharge their trust duties in accordance with all applicable statutory, treaty, and common law.
A future trial is necessary, but is not yet scheduled, for the Court to assess the adequacy of the Trustee-Delegates’ accounting. Until such time as the Court has judged an accounting to be adequate and it has found that the Trustee-Delegates are discharging their fiduciary duties prudently and in accordance with law, the Court in Cobell v. Norton has determined that it is essential to ensure that communications by and between the government and the Cobell Class do not interfere with the class members’ right to an accurate and complete accounting or otherwise adverselyaffect their rights in this litigation.
In that regard, the United States Court of Appeals has held that each individual Indian trust beneficiary has a right to an accurate and complete accounting and other relevant information regarding his or her trust assets. However, the government is currently unable to provide all individual Indian trust beneficiaries an accurate and complete accounting of their trust assets and is unable to provide a timetable for when that accounting will be rendered. A beneficiary’s right to request and receive relevant information regarding their trust assets is not on hold pending the resolution of this litigation on the merits or the rendition of an adequate accounting. Any beneficiary may request that the government provide relevant information regarding their trust assets at reasonable intervals.
Each class member also has a right to consult with class counsel regarding this notice or their rights as individual Indian trust beneficiaries. For further information you may access the Cobell Class website, www.indiantrust.com or contact the following counsel for the Cobell Class: Dennis M. Gingold, Esq., 607 14th Street, N.W., 9th Floor, Washington, DC 20005, phone: (202) 824-1448, fax: (202) 318-2372, email: dennismgingold@aol.com, or Keith Harper, Esq., Native American Rights Fund, 1712 N Street, N.W., Washington, DC 20036-2976, phone: (202) 785-4166, fax: (202) 822-0068, email: harper@narf.org.
…
Interior correctly observes that the Court rejected similar language in the plaintiffs’ proposed land-sales notice … because ‘several of the assertions in the plaintiffs’ proposed notice are disputed matters currently pending before the Court of Appeals.’ Cobell, 224 FRD at 280. While many of Interior’s appellate issues have been resolved, … some matters related to the now-reissued structural injunction remain pending. …
Having resolved Interior’s content-related objections, the Court also finds that the plaintiffs’ proposed notice is too long, contains overwrought language and sentence structure, and communicates unnecessary details. When paring down the plaintiffs’ proposed land-sales notice, the Court expressed its faith in ‘the ability of plaintiffs’ counsel to provide all who inquire with additional information related to the details of this litigation; as well as with a full description of the rights of class members.’ … The Court retains this faith today, and concludes that providing contact information for plaintiffs’ counsel in today’s notice allows for omission of some detail.
The Court will require that the following modified notice be included in all future written communications from Interior, its agents, representatives, employees, officials, or counsel to past or present IIM account holders:
Please be aware that past and present Individual Indian Money (‘IIM’) Trust account holders may be members of a class action lawsuit, Cobell v. Norton, No. 1:96CV01285 (DDC) (Judge Lamberth). The defendants in this lawsuit, the Secretary of the United States Department of the Interior and the Secretary of the United States Department of the Treasury, are the federal government’s Trustee-Delegates for the IIM Trust. The Court in the Cobell case has ruled that the Department of the Interior must provide each IIM Trust beneficiary with a complete and accurate accounting of his or her IIM Trust account. Because other related matters are not yet resolved, the Cobell case is still pending and the accounting has not yet been completed.
While the Cobell case is ongoing, the Court has determined that it is essential to ensure that communications from the Department of the Interior do not adversely affect the rights of IIM Trust account holders who are also members of the Cobell lawsuit. For that reason, this notice is included with this communication for the information of current and former IIM Trust account holders.
Evidence introduced in the Cobell case shows that any information related to the IIM Trust, IIM Trust lands, or other IIM Trust assets that current and former IIM Trust account holders receive from the Department of the Interior may be unreliable. Current and former IIM Trust account holders should keep in mind the questionable reliability of IIM Trust information received from the Department of the Interior if and when they use such information to make decisions affecting their IIM Trust assets.
Current and former IIM account holders have the right to consult with the attorneys for the class in Cobell v. Norton regarding this notice or any other matter related to the IIM Trust. For further information you may access the Cobell class website, www.indiantrust.com or contact the following attorneys representing the Cobell class: Dennis M. Gingold, Esq., 607 14th Street, N.W., 9th Floor, Washington, DC 20005, phone: (202) 824-1448, fax: (202) 3182372, email: dennismgingold@aol.com, or Keith Harper, Esq., Native American Rights Fund, 1712 N Street, N.W., Washington, DC 20036-2976, phone: (202) 785-4166, fax: (202) 822-0068, email: harper@narf.org.
While it is undeniable that Interior has failed as a Trustee-Delegate, it is nevertheless difficult to conjure plausible hypotheses to explain Interior’s default. Perhaps Interior’s past and present leaders have been evil people, deriving their pleasure from inflicting harm on society’s most vulnerable. Interior may be consistently populated with apathetic people who just cannot muster the necessary energy or emotion to avoid complicity in the Department’s grossly negligent administration of the Indian trust. Or maybe Interior’s officials are cowardly people who dodge their responsibilities out of a childish fear of the magnitude of effort involved in reforming a degenerate system. Perhaps Interior as an institution is so badly broken that even the most well-intentioned initiatives are polluted and warped by the processes of implementation. … The government as a whole may be inherently incapable of serving as an adequate fiduciary because of some structural flaw. Perhaps the Indians were doomed the moment the first European set foot on American soil. Who can say? It may be that the opacity of the cause renders the Indian trust problem insoluble.
On numerous occasions over the last nine years, the Court has wanted to simply wash its hands of Interior and its iniquities once and for all. The plaintiffs have invited the Court to declare that Interior has repudiated the Indian trust, appoint a receiver to liquidate the trust assets, and finally relieve the Indians of the heavy yoke of government stewardship. The Court may eventually do all these things—but not yet. Giving up on rehabilitating Interior would signal more than the downfall of a single administrative agency. It would constitute an announcement that negligence and incompetence in government are beyond judicial remedy, that bureaucratic recalcitrance has outpaced and rendered obsolete our vaunted system of checks and balances, and that people are simply at the mercy of governmental whim with no chance for salvation. The Court clings to a slim and quickly receding hope that future progress may vitiate the need for such a grim declaration.
This hope is sustained in part by the fact that the Indians who brought this case found it in themselves to stand up, draw a line in the sand, and tell the government: Enough is enough – this far and no further. Perhaps they regret having done so now, nine years later, beset on all sides by the costs of protracted litigation and the possibility that their efforts may ultimately prove futile; but still they continue. The notice requirement established by the Court today represents a significant victory for the plaintiffs. For the first time in the history of this case, the majority of Indian beneficiaries will be aware of the lawsuit, the plaintiffs’ efforts, and the danger involved in placing any further confidence in the Department of the Interior. Perhaps more importantly, the Indians will be advised that they may contact class counsel for guidance on their trust-related concerns. This likely will bring to light a wealth of new evidence concerning Interior’s mismanagement of the trust; it will also open an avenue to relief for individuals throughout Indian country whose suffering might otherwise be buried forever in a bureaucratic tomb.
Real justice for these Indians may still lie in the distant future; it may never come at all. This reality makes a statement about our society and our form of government that we should be unwilling to let stand. But perhaps the best that can be hoped for is that people never forget what the plaintiffs have done here, and that other marginalized people will learn about this case and follow the Indians’ example.
A corresponding Order will issue today.
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