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Bush administration appealing trust fund case again
Monday, November 3, 2003

Creating another delay in the long-running debacle, the Bush administration has mounted a challenge to the latest rulings in the Indian trust fund lawsuit.

In a one-page notice filed on Wednesday, attorneys for Secretary of Interior Gale Norton announced their appeal of three decisions issued by a federal judge. This past September, U.S. District Judge Royce Lamberth ordered an historical accounting of at least $13 billion in Indian funds and said he would appoint a judicial monitor to ensure the federal government is meeting its obligations to hundreds of thousands of American Indians.

The notice doesn't state on what grounds the decisions are being challenged. Norton's explanation will come once she files her opening brief.

But the appeal comes amid heightened scrutiny of the seven-year-old Cobell case. Members of Congress have been seeking ways to resolve the suit, although their approaches have highlighted deep divisions over how best to tackle a problem that is more than a century old.

Last Thursday, a group of lawmakers in the House nearly brought down a $20 billion budget bill over a provision aimed at overturning Lamberth's decisions. They argued that the rider, which was developed in secret, undermines Indian rights.

"The only way we can solve this problem is to sit down and consult, negotiate, and ultimately lead to a settlement," said Rep. Richard Pombo (R-Calif.), chairman of the House Resources Committee, which has jurisdiction over Indian issues.

The provision delays the accounting by one year and purports to dictate how federal law is to be interpreted by the courts. It is scheduled to go before the Senate later today.

At a hearing last Wednesday, Sen. Ben Nighthorse Campbell (R-Colo.), chairman of the Senate Indian Affairs Committee, said he wasn't entirely satisfied with the way the rider was developed. But rather than seeking its removal, he said it gave the plaintiffs, the administration and tribal leaders one year to work out their differences.

"We have to find a solution or it's just simply going to be taken away from us," Campbell said.

Through his committee, Pombo is holding a series of hearings on the case, the latest of which is being held today in Arizona. He hopes to develop a legislative framework for settlement by keeping all parties involved.

Campbell and Sen. Inouye (D-Hawaii) have introduced a bill that would create a new bureaucracy to carry out the historical accounting. Both also back mediation of the case, an idea supported by the plaintiffs and tribal leaders.

Lawmakers who control the federal budget are intent on imposing their own solutions with no involvement of the key players. Unwilling to provide the funds to conduct the accounting or make other fixes, they have made no apologies for attempting to curtail the suit, which they say has cost millions at the expense of other Indian programs.

The Bush administration's appeal will delay proceedings in the case for up to a year, depending on the briefing schedule and the date of oral arguments. The appeal will be handled by the D.C. Circuit Court, which struck down contempt charges against Norton and former Indian affairs aide Neal McCaleb in July.

The same court, in February 2001, affirmed the federal government's duty to conduct an accounting of "all funds" within the Individual Indian Money (II) trust. At the Senate hearing last week, Jim Cason, the associate deputy Interior secretary, said the department still needed guidance on the meaning of the accounting.

Relevant Documents:
Notice of Appeal (October 29, 2003)

Court Decisions:
Historical Accounting | Fixing the System | Structural Injunction

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