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Judge seeks to break impasse over trust systems
Tuesday, July 29, 2003

The federal judge overseeing the Indian trust fund has extended a ruling that bars the Department of Interior from reconnecting its computer systems to the Internet without court approval.

U.S. District Judge Royce Lamberth issued the preliminary injunction late yesterday afternoon in an attempt to resolve an impasse between his court and the Bush administration. Special master Alan Balaran and government attorneys have been bickering for months over computer systems that house billions of dollars in Indian funds.

Instead of allowing the dispute to continue, Lamberth decided to act. Otherwise, he wrote in a 35-page opinion, American Indian beneficiaries would be harmed by Interior's security loopholes.

"The court finds that the continued operation of computer systems connected to the Internet that either house or provide access to individual Indian trust data, and which have not been demonstrated to be secure from Internet access by unauthorized persons, constitutes further and continuing an irreparable injury to plaintiffs," he wrote. "Their continued operation provides an opportunity for undetectable unauthorized persons to access, alter, or destroy individual Indian trust data via an Internet connection."

Lamberth's order, however, includes a number of provisions that limit its impact. Within the next 10 to 15 days, the government can provide the court a list of computer systems that should be exempt from the shutdown, including those "essential for protection against fires or other threats to life or property." The order doesn't apply to systems that don't come in contact with Indian funds.

The injunction also has little effect on the Bureau of Indian Affairs (BIA) and the Office of Special Trustee (OST), the two agencies whose computer vulnerabilities have been exploited. BIA and OST systems have yet to be reconnected to the public Internet while improvements are being made.

Nevertheless, Lamberth warned, in a footnote, that the department should not use the decision to justify delays in payments to account holders. When the computer systems were first cut in December 2001, thousands went without checks for months.

"Under no circumstances, however, shall the Interior defendants exploit or otherwise manipulate these circumstances and conditions to delay unduly the prompt distribution to plaintiffs of their desperately-needed trust funds," Lamberth wrote. "This court will view any such delay as a willful breach of the fiduciary duty that the United States government owes to individual Indian trust beneficiaries."

The government has admitted several that it is lacking adequate security precautions. In spring of 2001, the BIA moved its computer center from Albuquerque, New Mexico, to suburban Washington, D.C., under the guises of improving the systems.

But problems persisted, even by Interior's own experts and staff. The situation culminated with an explosive November 2001 report in which Balaran detailed how a computer team he hired was able to break into the BIA without a trace.

Following discussions between the court, the plaintiffs and Interior, Lamberth approved a "consent decree" on December 17, 2001, that guides how the computer systems are to be reconnected. Associate Deputy Secretary Jim Cason was designated the lead on the issue, and from all indications, it appeared the arrangement was working.

Conditions started to deteriorate in April, when the government moved to deny Balaran access to the systems, arguing that the consent order does not allow him to perform "penetration" tests to ensure fixes are in place.

Lamberth, in his opinion, noted that such tests are vital. "Without any such means of verification, the court would have no assurance that the reconnected systems could not be accessed by unauthorized users," he said.

The preliminary injunction can be appealed to the D.C. Circuit Court of Appeals.

Get the Decision:
Memorandum Opinion | Preliminary Injunction (July 28, 2003)

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
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust

Related Stories:
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Tally for private attorney fees in Cobell case rises (07/24)
Contempt charges against Interior vacated (7/21)
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Neal McCaleb happy court is off his back (7/21)
Editorial: DOI, Congress can't be trusted to do right (7/21)
Editorial: What about holding tribes accountable? (7/21)
Norton cleared of contempt on trust fund (7/18)
Congress hacks Bush's accounting funds (7/16)
Trust fund provision stripped from House bill (7/15)
Swimmer partly right on trust fund rider (7/14)
Hearsay: House sending message to Lamberth (7/14)
Bill could strip DOI of trust fund management (7/14)
Bush official balks at large settlement for Cobell (7/10)
House takes testimony on trust fund settlement (7/10)
Editorial: Shame on Bush and Congress for rider (7/10)
Judge Lamberth hears closing arguments in Cobell trial (7/9)
Closing arguments set in Cobell trust fund trial (7/8)
Dicks pins anti-Cobell language on Taylor (7/7)
Editorial: Trust fund settlement bill 'disgraceful' (7/7)
Swimmer to appear on Native America Calling (7/7)
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