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Cobell fights effort to oust judge from trust fund case
Monday, August 29, 2005

The plaintiffs in the billion-dollar Indian trust fund lawsuit accused the Bush administration last week of making "utterly and completely false" allegations against the judge handling the case.

Responding to the administration's attempt to oust U.S. District Judge Royce Lamberth, the plaintiffs called for the request to be rejected "out of hand." In papers filed with the D.C. Circuit Court of Appeals, they said the federal government has no grounds to have the Cobell v. Norton case assigned to someone else.

"During the proceedings in this case over the last nine years, Judge Lamberth has gained an in-depth understanding of the history of this case and its factual and legal issues which are fundamental to ultimately bringing this matter to a conclusion," the 36-page brief, filed late Thursday, stated.

"Far more than the 'inefficiency' described by defendants, reassignment would be catastrophic, requiring a new judge to perform the nearly impossible task of gleaning the knowledge gained by Judge Lamberth," it continued.

Describing the ouster campaign as "a direct assault on the integrity" of the court, the plaintiffs challenged the Department of Justice to back up its claims against Lamberth, who compared the handling of the Indian trust to the genocide of Native peoples in a July 12 ruling.

That ruling prompted Interior Secretary Gale Norton and her attorneys to ask the D.C. Circuit to reassign the case to a new judge. They said Lamberth has failed to follow precedent, has expanded the scope of the litigation and has been unfair to the government.

"The district court's sweeping, unqualified, and wholly disproportionate denunciations of the Department of the Interior and the Department of Justice create at least an appearance that the court will be unable to evaluate discrete undertakings by Interior -- or discrete submissions by Justice - fairly, dispassionately, and on their individual merit," Peter D. Kiesler, an assistant attorney general and Bush appointee, wrote in the August 15 request.

According to the plaintiffs, however, Lamberth's harsh treatment is fully warranted. They cited the recent trial testimony of an expert witness for the Interior Department who testified that past Bureau of Indian Affairs officials were racist.

Dr. Edward Angel, a historian and researcher, said former Indian commissioner Cato Sells believe white people were superior to Indians and made policy based on his views. In 1917, for example, Sells issued a "declaration of policy" that divided Indians into "competents" and "incompetents."

Competents, defined as adult Indians of less than one-half Indian blood, would be given complete control of their trust assets, according to the policy. Adult Indians "of one-half or more Indian blood" would be given patents to no more than 40 acres but only "after careful investigation" of their abilities.

"It means the ultimate absorption of the Indian race into the body polite of the nation," Sells declared. "It means, in short, the beginning of the end of the Indian problem."

Angel further testified that the BIA forced fee patents on Indian beneficiaries and then sold the land when the owners couldn't pay taxes. "Many of these patents were issued while the owners were over in France as part of our forces there," he said, according to the plaintiffs' brief.

Former assistant secretary Kevin Gover, who apologized to Native peoples in 2000 for their treatment by the BIA, also described the agency's history as negative. In court testimony, he said "you could have been employed in 1930 and worked a 25-year career to 1995, and gone from a policy ... that was to destroy these communities to one that was to reorganize and rebuild them, and then finally -- again to destroy them."

The reassignment request, and the appeal accompanying it, is the third currently before the D.C. Circuit. On September 16, the court will hear the administration's challenge to a broad historical accounting and structural injunction imposed by Lamberth. On October 14, the court takes on a contempt proceeding related to the Bush administration's successful ouster of the former special master in the case.

The effort comes as Congress attempts to resolve the case although the administration and Indian County are far part on a potential settlement. A coalition that includes the Cobell plaintiffs and major tribal organizations are seeking a $27.5 billion payment, a number that has been criticized by some lawmakers as too high.

Meanwhile, Cobell is visiting several reservations this week to update account holders on the developments in the case, and to hear their concerns and take them to Washington as the settlement legislation is refined. Today, she'll be in Idaho; tomorrow in Arizona; and New Mexico on Thursday.

Cobell also appears on the nationally broadcast radio program Native America Calling (http://www.nativeamericacalling.com) today at 1pm EST.

Relevant Documents:
Plaintiffs' Brief | Commissioner Sells Declaration of Policy

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm

Related Stories:
Cobell to update account holders on lawsuit (8/24)
Editorial: Fix trust fund, don't target Lamberth (8/18)
Norton wants Lamberth taken off Cobell case (8/16)
Cobell Letter: Ross Swimmer can't tell the truth (08/08)
Resolution of Cobell v. Norton appears far away (08/05)
Editorial: McCain and Dorgan should fix trust bill (08/04)
BLM CIO threatened with demotion in Cobell case (08/02)
Indian Country, Interior far apart on trust bill (08/01)
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