on the day he announced his resignation as assistant secretary
for Indian affairs. November 21, 2002.
Neal McCaleb resigned as head of the Bureau of Indian Affairs
more than two years ago but his past may come back to haunt
him in the Cobell v. Norton trust fund lawsuit.
When he announced his retirement on November 21, 2002,
McCaleb blamed the "contentious" nature of the lawsuit.
"Unfortunately, the litigation has taken first priority in too many activities,
thus distracting attention from the other important goals that could provide
more long-term benefits for Indian Country," he said in a statement.
McCaleb left that environment behind when he resigned a month later.
But with information technology the current focus of the case, he may once
again be drawn back into the debate for his role in destroying e-mail
documents in potential violation of court orders.
U.S. District Judge Royce Lamberth raised the matter last week
during the evidentiary hearing into the Interior Department's computer
systems. He said he still hadn't decided whether to hold McCaleb
in contempt for destroying trust records.
"He testified nobody ever told him about any of
those things, so he never knew that he couldn't erase his
e-mail," Lamberth said on May 3.
"He testified. The Secretary testified to the contrary,
that she had told him, and he said she was lying."
To clear up the apparent disconnect, Lamberth suggested he
might have to hold yet another evidentiary hearing.
"He shortly after that resigned, so I haven't taken any further action yet,"
the judge said.
McCaleb's e-mail incident first came to light only a month before
he announced his resignation and was a major factor in his
decision to leave. In October 2002, government lawyers disclosed
that he erased his electronic communications for a period of
10 months despite court orders and internal policy to the
McCaleb chalked it up to a "misunderstanding" and said
his executive assistant at the time was supposed to be keeping
copies of his correspondence, which included figures on the
amounts of money going in and out of Indian trust fund accounts.
But in a court deposition, the assistant refuted McCaleb's
characterization of events. And he later testified that
he was never specifically instructed to preserve his e-mails or, for
that matter, about his duties as a trustee to individual
Indians and tribal governments.
A court investigator later accused McCaleb of lying about the
"The special master's investigation revealed that, not only did the former
Assistant Secretary-Indian Affairs delete individual Indian trust records in
derogation of a myriad of legal and trust principles but, when his actions came
to light, fabricated a story that attempted to blame others for his misdeeds,"
Alan Balaran, who has since left the case, wrote in a January 2003 report.
By then, as Lamberth noted last week, McCaleb was already gone from
the department. However, whether he can still be held accountable
is open for debate.
The incident was raised in the context of the potential destruction
of information related to the "penetration" tests of DOI's
computer systems. Lamberth is concerned that
Internet Security Systems (http://www.iss.net
), a firm hired
to test the systems, may be destroying documents with Interior's knowledge
The Cobell plaintiffs have sought an order to prevent that from
happening. But John Warshawsky, a Department of Justice lawyer, said
one wasn't necessary because ISS documents are not trust documents.
"The bottom line," he said, "is that
penetration testing documents are not documents relating to
Indian money trust funds or individual Indian trust assets."
The order may or not be an issue because ISS employees who conducted
the tests appear to have preserved vital information, including drafts
of their reports to the Interior Department's Inspector General.
"You really are the perfect pack rat, aren't
you?" Lamberth told Scott Miles, an ISS employee who testified that he was
able to hack into the Bureau of Land Management and gain access to
Indian trust data. "I like that. It makes him a great resource."
Special Report:OF THE
SPECIAL MASTER REGARDING THE DELETION OF INDIVIDUAL INDIAN TRUST INFORMATION BY
FORMER ASSISTANT SECRETARY-INDIAN AFFAIRS NEAL MCCALEB
(January 24, 2003)
Relevant Documents:Dan DuBray
E-mail to Aurene Martin
| Neal McCaleb Draft
(October 19, 2002) | Neal
McCaleb Final Declaration
(November 19, 2002)
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Reform, NCAI - http://www.ncai.org/main/pages/