indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439   fax: 202 318 2182
Indian Law Online Master Degree
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:
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Tim Giago: An independent candidate awakens 'Party' zombies (9/22)
Mark Trahant: Huge crowd turns out for People's Climate March (9/22)
Doug George-Kanentiio: All children are gifts from the Creator (9/22)
Native Sun News: Native women take stand against violence (9/22)
S.E. Ruckman: A remarkable day with arrival of Cobell checks (9/22)
Jon Tester: Bill protects Special Diabetes Program for Indians (9/22)
Dante Desiderio: Working together to address tribal tax issue (9/22)
Vena A-dae Romero: Asserting sovereignty through our food (9/22)
Mark Rogers: Leadership in Native America is at a crossroads (9/22)
Dave Lundgren: BIA must take a closer look at rights-of-way (9/22)
Peter d'Errico: Video uses humor to battle racist NFL mascot (9/22)
Editorial: Poarch Creek gaming deal deserves consideration (9/22)
Native Sun News: Tribes united against Keystone XL Pipeline (9/19)
Regina Brave: The earth that once was will soon be no more (9/19)
Chelsey Luger and Gyasi Ross: A conversation about suicide (9/19)
Cobell settlement checks being cashed across Indian Country (9/19)
Congress passes measure for tribal general welfare programs (9/19)
Native Sun News: US Senate candidates debate Native issues (9/18)
Cobell settlement checks landing in Indian Country mailboxes (9/18)
Sen. Walsh welcomes arrival of last Cobell settlement payout (9/18)
Rep. Daines praises House action on tribal general welfare bill (9/18)
Winnebago attorney joins BIA as a deputy assistant secretary (9/18)
NWIFC schedules briefing on 'Treaty Rights 101' on Capitol Hill (9/18)
Norbert Hill: It's past time to drop the Washington NFL mascot (9/18)
Peter d'Errico: Connecting mascots to racism and termination (9/18)
Opinion: Eliminating NFL team's racist mascot is just the start (9/18)
Student newspaper punished over refusal to print the R-word (9/18)
Officer investigated for 'drunk uneducated animals' comment (9/18)
9th Circuit rules against Chemehuevi Tribe in land deed case (9/18)
Mashable: Oglala Sioux man still pushing MazaCoin currency (9/18)
City won't allow vote on Tohono O'odham Nation casino plan (9/18)
9th Circuit poses tough questions in Big Lagoon casino case (9/18)
North Fork Rancheria banks on voter approval of casino deal (9/18)
KBIC judge dismisses lawsuit challenging plan for new casino (9/18)
Oneida Nation concerned about location of commercial casino (9/18)
Mashantucket Tribe's gaming executive to resign next month (9/18)
Column: Time for Mohegan Tribe to show its hand over casino (9/18)
Native Sun News: Cheyenne River Sioux Tribe honors veterans (9/17)
Mark Trahant: Is independence in the future for tribal nations? (9/17)
Audio: SCIA takes up bill to bar Tohono O'odham Nation casino (9/17)
House approves bill to address tribal general welfare programs (9/17)
House Natural Resources Committee sets markup on tribal bills (9/17)
House subcommittee to hold hearing on bill for Hualapai Tribe (9/17)
9th Circuit takes up Big Lagoon Rancheria gaming land dispute (9/17)
House passes bill to shield Gun Lake Tribe casino from litigation (9/17)
Andre Cramblit: Enjoying life at Dartmouth as a Native student (9/17)
Dina Gilio-Whitaker: Tribes need to lead climate change reform (9/17)
Sarah Deer wins genius grant for work to protect Native women (9/17)
Tex Hall loses bid for another term as chair of North Dakota tribe (9/17)
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.