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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 -
Cobell v. Norton, Department of Justice -
Indian Trust, Department of Interior -

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 fixes won't solve trust fund problems (11/5)
President Bush 'on the hook' for trust fund delays (11/5)
Norton testimony sought by plaintiffs in trust case (11/5)
Tribal company's work on trust accounting on hold (11/5)
Daschle criticizes 'shameful' rider in DOI budget bill (11/04)
Norton welcomes time-out in Cobell trust fund case (11/4)
Norton appealing Indian trust fund ruling (11/3)
Norton says White House behind trust fund rider (11/3)
House approves trust fund rider in DOI bill (10/31)
Campbell pushes action on trust fund suit (10/30)
Battle brews in House over DOI budget bill (10/30)
Cobell rallies support for trust fund case (10/28)
DOI bill halts Indian trust fund case (10/24)
Bill targets Indian trust fund suit (10/22)
House chairman supports self-governance rider (10/14)
Self-governance tribes fear impact of reorganization (10/09)
Lamberth lays out future of Indian trust reform (09/26)
Court report finds undervaluation of Navajo lands (08/21)
Administration eyes consolidation of Indian appraisals (08/15)
Tally for private attorney fees in Cobell case rises (07/24)
Congress hacks Bush's accounting funds (7/16)
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 Cobell case (06/24)
Norton offered settlement funds for IIM trust (6/20)
Lamberth criticizes interference with trust fund case (05/22)
Bush administration turns to Congress on trust (04/04)

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