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Trust fund rider faces test in courtroom
Monday, November 24, 2003
The battle over the Indian trust fund moved from the Congress
to the courthouse on Friday as the plaintiffs launched a bid to
keep the long-running lawsuit alive.
Even though more than 500,000 American Indians have won numerous court decisions
affirming their rights, the case is on temporary hold due to high-level
political meddling. Over the objections of account holders, tribes
and their supporters, the White House and
top lawmakers pushed through an appropriations bill that delays the
accounting of at least $13 billion in trust funds.
The so-called "midnight rider" is a direct attack on the trust fund
lawsuit, filed in 1996 on behalf of Indian beneficiaries
around the country. As the Bush administration lost decision after decision
in the courts, officials turned to sympathetic lawmakers who were
eager to rein in the millions that have been spent, largely
unsuccessfully, to correct more than a century of mismanagement.
The legality of those tactics is now before the D.C. Circuit
Court of Appeals.
Both parties have filed briefs hoping
to sway the court as it considers whether to
keep the case on hold or let it move forward.
Led by Elouise Cobell, a banker from the Blackfeet Nation of
Montana, the plaintiffs say the rider violates the
U.S. Constitution.
The legislative branch, they argue, cannot tell the judicial
branch how to interpret laws.
"Simply put, the Constitution does not permit the
legislature to do ... what it does here: crack open
final judgments in specific cases, rewind the process,
and then rewrite the law to readjudicate the outcome,"
the plaintiffs' brief filed on Friday stated.
In seeking to delay the case for up to a year, the
Bush administration attorneys say it would cost at least
$6 billion to carry out the accounting.
They argue that the rider gives Congress a chance
to redefine the rights of Indian beneficiaries under
the American Indian Trust Reform Act of 1994.
"Congress has now altered the governing law, providing that,
pending further congressional action (or decision not
to act), neither the 1994 act nor any principles of
common law" require an accounting, the government's
November 10 brief stated.
Last week, Cobell and attorneys from the Native American
Rights Fund (NARF), the non-profit organization handling
the lawsuit, made the rounds at the National Congress
of American Indians (NCAI) in Albuquerque, New Mexico.
Cobell thanked lawmakers, like Reps. Richard Pombo
(R-Calif.) and Brad Carson (D-Okla.), and organizations
like the National Indian Gaming Association, for
their support in trying to defeat the rider.
"Don't cover your ears on this issue," she told NCAI
delegates on Tuesday, warning that the use of riders threatens
Indian rights beyond just the trust fund case.
"I want you to stand strong. I want you
to stay strong with us."
At an NCAI session on Wednesday, Special Trustee Ross Swimmer, a Bush administration
political appointee, discussed his views on trust reform.
He called Cobell's case "an extremely important issue."
"It has both benefits and certainly has its downsides in
terms of managing the trust and keeping up with what the court wants,"
he said.
Swimmer discounted as "rumor" the suggestion that money
for Indian programs, like education, is being used to fund the
Office of Special Trustee, which he heads.
He said tribal leaders are kidding themselves if they think Congress
would spend that kind of money on Indian Country.
"I'm not going to tell you that it's not important to do a accounting,
but I can think of a lot of ways to spend $7 to $8 billion,"
he said.
Relevant Documents:
Plaintiffs Motion (November 21, 2003) |
Government Motion (November 10, 2003)
Relevant Links:
Indian Trust: Cobell v. Norton -
http://www.indiantrust.comCobell
v. Norton, Department of Justice -
http://www.usdoj.gov/civil/cases/cobell/index.htmIndian
Trust, Department of Interior -
http://www.doi.gov/indiantrust
Related Stories:
Trust reform a big issue at NCAI conference
(11/21)
Tribes still
frustrated on trust reform (11/20)
Norton finally responds to trust settlement
(11/20)
Bush officials blasted by
tribal leaders (11/19)
Cobell
plaintiffs disputing trust fund rider (11/17)
Appeals court puts trust fund ruling on hold
(11/14)
Norton using rider to seek
stay of Cobell case (11/12)
Editorial: White House
actions on trust 'contemptible' (11/7)
Quick
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President Bush 'on the hook' for trust fund
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Norton testimony
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Tribal company's work on trust accounting on
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Daschle criticizes 'shameful' rider in DOI
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Norton welcomes time-out in Cobell trust fund
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Norton appealing Indian
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Norton says
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House approves trust fund rider in DOI bill
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Campbell pushes action on
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Battle brews
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Cobell rallies support for trust fund case
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DOI bill halts Indian trust
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Bill targets
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House
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Lamberth lays
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Court report finds undervaluation of Navajo
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Administration eyes
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Tally for private attorney fees in
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Congress hacks Bush's accounting
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Swimmer partly
right on trust fund rider (7/14)
Bush official balks at large
settlement for Cobell (7/10)
On trust, lawmakers take Bush
officials at face value (06/25)
Private attorneys reap benefits on
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Norton
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Lamberth criticizes interference
with trust fund case (05/22)
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