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Court tackles trust accounting and reform plans
THURSDAY, MAY 1, 2003

The next phase of the long-running Indian trust fund case gets underway in a federal court today to address the Bush administration's accounting and reform plans.

U.S. District Judge Royce Lamberth called the "Phase 1.5" trial last September because he said the federal government has "utterly failed" to meet its obligations to more than 500,000 American Indians. At the same time, he held Secretary of Interior Gale Norton and former Indian affairs aide Neal McCaleb in contempt for misleading the court about efforts to fix the broken system.

The Bush administration has since challenged the contempt citation and the D.C. Circuit Court of Appeals has already suspended a court official whose reports helped seal Norton's fate. But in a pre-trial conference held Tuesday, Lamberth reiterated that the case isn't dependent on the outcome of the appeal.

With that in mind, attorneys for the plaintiffs will call Paul Homan, the Clinton administration's first special trustee, as their first and chief expert witness. According to Keith Harper of the Native American Rights Fund (NARF), Homan, a former bank executive, will show over the course of a couple days of testimony why the government's plans for an accounting and reform of the Individual Indian Money (IIM) are inadequate.

The alternative, according to the plaintiffs, will be for the court to adopt the plaintiffs' model for an accounting and trust reform. "Our accounting plan, given the realities on the ground and the extraordinary destruction of documents is the best method for an accounting," said Harper.

"Our compliance plan does set forth the standards and duties of this trust," he added.

The government's plan contrasts the plaintiffs plan in many ways. While the plaintiffs assert that an accurate accounting is impossible, the Interior's Office of Historical Trust Accounting, led by Bert T. Edwards, a former Arthur Andersen partner, believes it can complete the project in five years to the tune of $335 million.

As for reform, the Bush administration is reorganizing the Bureau of Indian Affairs (BIA) and the Office of Special Trustee (OST). Officials believe the changes will improve the delivery of services not just to individual Indians but to tribal governments.

Many tribal leaders oppose the changes, said Tex Hall, president of the National Congress of American Indians (NCAI) and an IIM beneficiary, yesterday. "They are operating behind closed doors," he said of government officials.

On the accounting issue, Lamberth on Tuesday rejected the government's motion to throw out the plaintiffs' accounting plan. The Department of Justice said it was a model for breach of trust damages that did not properly belong in the case. But Lamberth, while not ruling on the merits, disagreed and said it is a viable proposal.

"He agrees, conceptually, that our model is the best way to go," Harper said of the judge. "For us, that's huge."

Once Homan is off the stand, the plaintiffs plan to call a slew of witnesses, including government employees and outside experts. They include: Dick Fitzgerald, an OST official, and David Offhauser and Don Hammond, both of the Department of Treasury.

Mona Infield, a BIA computer specialist, is expected to be called to testify about the reform plans. Jerry Morgan and Michael Smith, employees of Native American Industrial Distributors, an Indian-owned firm in Maryland, will also testify about reform.

The plaintiffs have scheduled five witnesses to talk about the accounting. Richard Fasold will testify about the overall model and Matt Gabriel will discuss historical use of Indian land. John Wright will be called for his oil and gas knowledge, Landy Stinnett for his views on minerals development and Allen McQuillan for forestry.

Another possible, but not definite, plaintiff witness is Ivan Makil, former president of the Salt River Pima-Maricopa Tribe of Arizona(*). Makil sat on the special trustee's advisory board until he was removed by federal law earlier this year.

At the pre-trial conference, Department of Justice attorney John Stemplewicz said the government's presentation will take about two weeks. He said Associate Deputy Secretary Jim Cason will be the first witness called.

After Cason would be Special Trustee Ross Swimmer, who will testify about the accounting and reform plans. Additional witnesses include employees of KPMG, an accounting firm, and several other accounting experts. Employees from Electronic Data Systems, a management consulting firm, are also slated.

Stemplewicz said it is possible that OHTA's Edwards and Abe Haspel, Cason's assistant, will be called. The defense also has former Blackfeet Nation chairman Earl Old Person on its list.

The trial takes place in the U.S. District Court in Washington, D.C. It is expected to last more than a month.

*Ed. Note: Ivan Makil is the former president of the Salt River Pima-Maricopa Tribe, not the current president as was earlier stated.

Relevant Documents:
Pre-Trial Order on Accounting Model (April 29, 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