Peter Rutledge , associate professor, was quoted in an Oct. 14 Atlanta Journal-Constitution article about a class-action lawsuit filed by Native Americans against the U.S. Department of the Interior. See his comments in the story below.
American Indian trust suit could total billions
Big Atlanta law firm has long history with case

From: Atlanta Journal-Constitution Date: Oct. 14, 2007 Author: Bill Torpy It has taken 120 years, Elouise Cobell said, but Indians throughout the nation are situated to finally get a glimmer of justice in a Washington, D.C., courtroom.

Cobell, a Blackfoot Indian from Montana, is lead plaintiff in a massive class-action lawsuit against the U.S. Department of Interior, demanding an accounting for nearly 11 million acres that was parceled up and put into individual trusts for Native Americans in 1887 under the Dawes Act. The government deemed Indians incapable of handling the land responsibly, so it administered financial matters.

The bitter legal odyssey involving a major Atlanta law firm is again in federal court as a judge must decide how the government will determine how much is owed to some 500,000 Indians whose land has been leased to timber, ranching, farming, oil and mining operations. Billions of dollars could be at stake.

"This is the big trial, the trial that we have waited for years," Cobell said before opening statements Wednesday.

Proponents of the suit - filed in 1996 - say it's a classic case of David vs. Goliath. But in this case, David has a large slingshot in the form of Kilpatrick Stockton, a large, international law firm based in Atlanta.

The logistics and the numbers involved in the case are staggering. The circumstances surrounding the case often border on the preposterous.

The judge has held three Cabinet members in contempt of court and ordered the Department of Interior to disconnect its computers from the Internet to secure Indian trust data. U.S. District Judge Royce Lamberth also labeled the department racist. He was removed from the case last year by an appeals court after government attorneys argued that he sounded as if he leaned toward the plaintiff's table.

Former Interior Secretary Gale Norton, one of three Cabinet members held in contempt, has said a 1999 ruling would cost the department more than $12 billion if it had to trace back every one of the 365,000 "Individual Indian Money" accounts back to 1887. There have been more than 100 million transactions in those accounts. Millions of records have been destroyed. Millions more lost. Many have been contaminated by rat feces and must be accessed by workers wearing moon suits. With the court decisions, the government faces an impossible task, Cobell said.

"The government cannot do an accounting [of all parcels] and they know it. And if they can't do it, they have to stand up and admit it," Cobell said. "But they'll be liable for our money. It's our money."

The suit is not about money per se. It's to determine who is owed what. But this case almost certainly will lead to another claim, one for repayment.

Accountants for Cobell's team have determined the government owes Indians $176 billion, a figure that includes a century of interest.

Ross Swimmer, who as head of the Interior Department's Special Trustee for American Indians oversees the effort to fix the trust, said such figures are simply a call for reparations.

The government, in response to the lawsuit and a related law, built a facility in Kansas, has collected 400 million pages of Indian documents and is wading through them to trace payments.

"We want to prove the system has worked and has paid out the income to the proper beneficiaries virtually from the start," said Swimmer, a former Cherokee principal chief.

The government, in a worst-case scenario, owes millions, not billions, he said.

Often, because of "fractionalization" or the generational multiplication of heirs for each tract, Indians often receive monthly checks totaling a few cents. Of 30 million trust transactions between 1985 and 2000, he said 20 million were for less than $1.

Recipients "tend to take the check and frame it and say how ridiculous it is," Swimmer said.

Last year, Congress stepped into the fray and floated a figure of $8 billion to settle this and other Indian cases. Cobell called that figure inadequate and said Interior, which oversees the Bureau of Indian Affairs, has purposely dragged out the lawsuit to wear down its opponents.

"Their tactic was to run us out of money and then we'd finally pick up and go home," she said of the case, which has generated more than 3,500 docket entries, enough to fill a room at the courthouse. Cobell has raised millions of dollars to pursue the suit. But plaintiffs gained staying power a decade ago when they brought in Kilpatrick Stockton, a silk-stocking firm with deep Atlanta roots and deeper pockets.

Peter Rutledge, a Catholic University of America law professor who has followed the case, said bringing on a large firm like Kilpatrick allows the plaintiffs "to handle the scorched-earth policy of the government."

"Because the stakes are so high," Rutledge said, "everyone feels they must slug it out for a while to get in the best position for negotiations."

Kilpatrick partner Elliot Levitas, a former congressman from Georgia, was brought into the case a decade ago by a friend from his days as a student at Oxford University.

The 76-year-old lawyer is clearly enjoying himself. Behind his desk is a courtroom artist's rendition of Levitas cross-examining Interior Secretary Bruce Babbitt, who angrily waves a finger at his inquisitor. Babbitt, a lawyer himself, said he felt like he was pistol-whipped. Levitas took that as a compliment.

Also, the case is a bit more spiritually rewarding than many others because large firms often represent established interests.

"In this case, we're representing the good guys," Levitas said.

Asked if the firm was handling the case for free, Levitas replied laughing, "Oh, Lord, no. If so, I'll be sorely disappointed." He added that the firm, if successful, could get a "substantial" fee.

Kilpatrick Stockton has spent millions of dollars pursuing the case and has at least a dozen attorneys working on it, including co-managing partner William Dorris.

"We bring anyone we can and put them on the front lines," Levitas said.

The case has helped the firm expand into another potentially lucrative area.

"We have established a considerable Native American law practice," Levitas said. That includes litigating environmental issues on reservations, handling other trust cases, real estate and financing matters, and casinos.

"There never has been a case like this" Levitas said with a gush of enthusiasm. "This is an epical, historical piece of litigation. It'll be studied in law school for years."

The case has been a history lesson.

In 1887, Indian families and individuals were allotted 40- to 160-acre parcels and encouraged to farm or ranch. The thought was this would "civilize" them, Lamberth, the previous judge in the case, noted in a ruling. He added that the system was soon seen as "an abysmal failure."

Lamberth wrote that Interior 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 anglo-centrism we thought we had left behind."

But a federal appeals court, at Interior's urging, last year ruled the judge went too far in his rulings and removed him, saying there was an appearance of bias.

A new judge will determine which course to take - the plaintiff's desire for a full historical accounting with reconstruction of records for all individual accounts ever held, or the government's request for a limited accounting, including statistical sampling.

Few believe any resolution in the case is on the horizon. Asked if the case would still be active next year, Swimmer, the government trustee, laughed and said, "Ohhh, yeah."