indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
The University of Tulsa College of Law - Master's in Indian Law
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
Appeals court blocks Norton's appeal in trust case
Wednesday, September 10, 2003

A federal appeals court late Tuesday dismissed the Bush administration's second round of appeals in the Indian trust fund lawsuit, cutting short some of the federal government's options in the long-running case.

In a brief order, the D.C. Circuit Court of Appeals threw out the government's challenges with prejudice, meaning they cannot be filed again. Attorneys for Secretary of Interior Gale Norton asked to withdraw the arguments, but had wanted them preserved for a later date.

A three-judge panel also ordered Norton to show cause why a personal appeal, filed by a private law firm whose fees are being reimbursed at taxpayers' expense, should not be dismissed. The court gave her 30 days to respond "in light of the fact that the Department of the Interior's interests are fully represented" by government lawyers on the federal payroll.

The order, released after hours, means oral arguments that were scheduled for January 2004 are canceled. Norton was seeking to overturn two decisions from U.S. District Judge Royce Lamberth that force the government to act more like a private trustee when handling funds belonging to hundreds of thousands of American Indians.

Dennis Gingold, a Washington, D.C., attorney for the plaintiffs, said the move from the appeals court "reinforces the trust" by applying, to the government, what is known in trust law as a fiduciary exception. Normally, the department can cite the attorney-client privilege or the work product doctrine to keep certain matters private during litigation.

But under the fiduciary exception affirmed in the case, Interior can't hide behind lawyers to keep information from Indian beneficiaries, Gingold said. "The books are wide open," he said.

Gingold also said the move has implications for contempt charges that are in dispute. There are enough judges on the D.C. Circuit in disagreement about the case to warrant reconsideration of sanctions, he argued.

"So we think it's a good sign," he said.

In July, a three-judge panel cleared Norton and former Indian affairs aide Neal McCaleb of lying about failed efforts to reform the trust. Three Republican appointees -- Chief Judge Douglas H. Ginsburg, A. Raymond Randolph and Karen Lecraft Henderson -- handled the contempt appeal.

A different panel made of two Republican appointees -- Harry T. Edwards and David B. Sentelle -- and David S. Tatel, a Democrat appointee, was set to hear the fiduciary exception appeal. Sentelle wrote the February 2001 decision that upheld Lamberth's historic ruling in the case.

The split leaves just three active judges with the potential to tip the case against Norton. That can only happen if the court agrees to hear the plaintiffs' motion to rehear the contempt appeal. The court also has three senior judges who don't normally handle cases.

The makeup of the D.C. Circuit has been a key battleground for the Bush administration since early 2001. Democrats blocked a Senate vote on nominee Miguel Estrada, who decided to drop out of consideration last week.

Another nominee, John G. Roberts Jr., has not come up for a vote. Roberts defended the state of Alaska in the historic Venetie Supreme Court case that determined there was no Indian Country in the state.

The Cobell case has been to the appeals court twice since its inception, costing taxpayers millions in the process. According to a Department of Justice disclosure, Norton's lawyer, Herbert Fenster, and his law firm were reimbursed $491,538.63 to argue on her behalf to the D.C. Circuit. Fenster's work largely consisted of a brief that was filed late and didn't play a role in the court's decision.

A Department of Justice spokesperson had no immediate comment on yesterday's order, which was not faxed from the clerk's office until after 6 p.m. A message was left for a Department of Interior spokesperson.

Get the Decision:
Cobell v. Norton (September 9, 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:
Cobell asks full panel to rehear contempt case (09/03)
Cobell: Taxpayers foot bill for private lawyers (09/01)
Cobell: Delay and deception in trust fund case (09/01)
Trust: 'At least someone is standing up for us' (09/01)
Tally for private attorney fees in Cobell case rises (07/24)
Contempt charges against Interior vacated (7/21)
Commentary: Critics of Cobell, Lamberth shortsighted (7/21)
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)
Swimmer finally off the stand in Cobell trial (7/3)
Swimmer testimony in Cobell trial wrapping up (7/2)
Swimmer recalls 'fuzzy' Reagan years (7/1)
Lamberth questions Norton's trust limits (7/1)
Pombo targets trust fund settlement program (6/30)
Swimmer testifies on trust fund accounting (6/27)
Swimmer challenged on Bush reform plans (6/27)
Swimmer expected to take stand in Cobell trial (6/25)
Griles gets Cobell wish list from House (6/26)
Taxpayers fund private attorneys to tune of $3M (6/25)
Norton offered settlement funds for IIM trust (6/20)
Swimmer testimony to come at end of Cobell trial (06/05)
Cason to take stand in Indian trust fund trial (6/4)
Indian trust standards debated (6/3)
Suit aims to halt reorganization (6/3)
Norton starts defense in trust fund trial (6/2)
Tribes stress unity on trust reform solutions (6/2)
Cobell welcomes a settlement to trust case (5/29)
Lamberth criticizes interference with trust fund case (05/22)
Tribes oppose OST expansion into Indian County (5/22)
Swimmer: Don't fear changes at Interior (5/22)
On trust, Swimmer turns to private sector (5/14)
Trial in Cobell trust fund case kicks off (05/02)
Bush reform plans debated in trust fund trial (05/02)
Cobell v. Norton Recap: Day 1 of Trial 1.5 (05/02)
Court tackles trust accounting and reform plans (05/01)
Court hears Norton's trust fund appeal (4/25)

Copyright � 2000-2003 Indianz.Com
More headlines...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Democrats make urgent case for Hillary Clinton as president (7/28)
Mark Trahant: The story is far from over for Senator Bernie Sanders (7/28)
Native Sun News: Indian Health Service eyes new hospital in Rapid (7/28)
Brandon Ecoffey: Oglala Sioux Tribe must start fitness revolution (7/28)
Ivan Star Comes Out: Show respect for sacred Lakota family unit (7/28)
Gyasi Ross: It's gonna be awhile before the first Native president (7/28)
Harlan McKosato: Violence against Native people swept under rug (7/28)
Harold Monteau: Even more lessons in indigenous law and policy (7/28)
Indian Country shares spotlight at Democratic National Convention (7/27)
Recap: Native American Council at Democratic National Convention (7/27)
Lakota Country Times: SuAnne Big Crow Center focuses on fitness (7/27)
Native Sun News: Tribal college showcases works of Lakota artists (7/27)
Vi Waln: Too many of our own people continue to smoke cigarettes (7/27)
Andre Cramblit: Growing wiser in my return to Dartmouth College (7/27)
Indian Country makes presence known at Democratic convention (7/26)
Tim Giago: Questioning the motto of GOP candidate Donald Trump (7/26)
Lakota Country Times: Oglala team lands Indian relay title again (7/26)
Native Sun News: Tribes honor author of Indian Child Welfare Act (7/26)
Delphine Red Shirt: Let's eat food that's always been good for us (7/26)
Peter d'Errico: Luci Tapahonso tackles legacy of boarding schools (7/26)
Donald Trump tried to partner with Agua Caliente Band on casino (7/26)
Native American Council meets at Democratic National Convention (7/25)
Police officer cleared over fatal shooting of Navajo Nation woman (7/25)
Doug George-Kanentiio: Donald Trump and his campaign of hatred (7/25)
Native Sun News: Tribal advocate focuses on Great Plains efforts (7/25)
Lakota Country Times: Descendants of Pine Ridge legend gather (7/25)
Johnny Rustywire: Navajo mother works hard at motel for family (7/25)
Alex Jacobs: Nation finally admits problem with policing and race (7/25)
Dwaine Perry: Ramapough Lunaape Nation marching for justice (7/25)
Charges filed for assault on disabled member of Nisqually Tribe (7/25)
Man arrested for American Indian Movement flag settles lawsuit (7/25)
Interior Department consults tribes about new trust reform law (7/22)
Training sessions planned for final Indian Child Welfare Act rule (7/22)
Yurok Tribe shares sad news about salmon festival -- no salmon (7/22)
Mark Charles: An entire nation's big problem with Donald Trump (7/22)
Mark Trahant: Donald Trump promises a world with no treaties (7/22)
Native Sun News: Appeal delays release of Keepseagle checks (7/22)
Lakota Country Times: Oglala Sioux Tribe hosts walk for cancer (7/22)
James Giago Davies: Police officers get away with 'kill option' (7/22)
Andre Cramblit: Police officer shootings seem far too common (7/22)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.