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A quest for cooler heads in Indian suit against US

A judicial panel cites mismanagement of native trust accounts, but rules the case needs a new judge.

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The lawsuit's name is innocuous enough. But Cobell v. Kempthorne carries 119 years of historical baggage, and its outcome could affect hundreds of thousands of people at a cost of billions of dollars. It's also thorny as a prickly pear, so contentious that a panel of federal jurists this week ruled that the case needs a different judge to oversee it.

The dispute involves royalties due native Americans dating back to 1887. That's when Uncle Sam took control of some 11 million acres of tribal lands in the West as part of the federal policy of forced assimilation. The US was supposed to be paying into Indian trust accounts what now amounts to billions of dollars in revenues from oil, gas, timber, minerals, and grazing on those acres, then disbursing payments to native account holders.

But the whole thing has been mismanaged, federal courts have declared several times since the case began in 1996, and the last three Interior secretaries have failed to fix it. Idahoan Dirk Kempthorne, who recently became Interior secretary, follows both Bruce Babbitt and Gale Norton as lead defendant.

On the other side is Elouise Cobell of Browning, Mont., a member of the Blackfeet Indian Tribe, a rancher and banker, and a recipient of a MacArthur "genius" grant for her work in economic development. She's the lead plaintiff in the class-action lawsuit that bears her name. "The government has abused trust beneficiaries and has failed to fulfill the most basic trust responsibilities owed to us," she said this week.

The courts and most experts have agreed with that assessment. The US Circuit Court of Appeals for the District of Columbia declared this week that "the [US] government has an obligation to rise above its deplorable record and help fashion an effective remedy."

Words like "ignominious," "incompetent," "malfeasance," and "recalcitrance," the three-judge panel wrote, "are fair and well supported by the record." Still, the judges decided, after nearly 10 years on the case US District Judge Royce Lamberth had "exceeded the role of impartial arbiter" in hearing Cobell v. Kempthorne.

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