FROM THE ARCHIVE

Court challenges move to 'extinguish' rights

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MONDAY, NOVEMBER 4, 2002

Indian account holders who fail to challenge trust fund statements that have been questioned by a federal judge stand to lose their rights under a new Bush administration policy.

Last month, the Department of Interior -- without court approval -- mailed out the statements to the guardians of 1,200 Indian children who are beneficiaries of a land settlement fund. According to a disclaimer enclosed with the document, those who fail to dispute the information within 60 days forfeit undisclosed rights.

The statements were accompanied by a policy, announced without consultation with tribes or individual Indians, that also attempts to limit court challenges. A month earlier on September 6, Deputy Secretary J. Steven Griles unilaterally directed all historical accounting appeals to the Interior Board of Indian Appeals (IBIA), an administrative board whose authority is contingent on the will of political appointees.

The changes became immediate upon publication in the Federal Register. But serious doubts about them were raised on Friday by the federal judge whose rulings have affirmed the rights of 500,000 Individual Indian Money (IIM) account holders.

"You think you have a right to tell them [individual Indians] all their rights are extinguished?" asked U.S. District Judge Royce Lamberth.

Phil Seligman, a Department of Justice attorney representing Secretary Gale Norton and Indian affairs aide Neal McCaleb, defended the Interior's actions. "The Secretary is required to give these types of material," he said.

But under repeated questioning, Seligman declined to explain exactly the nature and extent of the rights at stake. "There can be an argument later on what rights they lost," he responded.

Lamberth also disputed whether the statement fully informed account holders of their ability to contact attorneys who are representing the Cobell class action and have won victory after victory in the six-year-old case. "It's not tricky at all," he said.

Dennis Gingold, lead attorney for the plaintiffs, said the policy was an attempt to circumvent court orders and undermine the court's authority. "If Enron did this, it would be mail fraud," he told Lamberth.

He also charged that the Bush administration was trying to poke holes in the successful case. "It's clear what they are trying to do is break up the class," he said.

Lamberth, however, stopped short of imposing a temporary restraining order against the government. Instead, Seligman agreed that the Interior would stop sending out the statements until the court can rule on the issue. Both sides will prepare additional briefs as directed by Lamberth.

The statements in question are part of a larger group of 12,000 prepared by the Office of Historical Trust Accounting (OHTA), which is under the supervision of Ross Swimmer. The majority are going to members of the White Mountain Apache Tribe of Arizona who are either of minor age or are incapacitated for whatever reason.

In late June, OHTA's authority was extended to tribal trust accounts as well. As with the IIM accounts, no public announcement of consultation was made.

Relevant Documents:
Office of Hearings and Appeals; Review of Historical Trust Accounting | PDF: Office of Hearings and Appeals; Review of Historical Trust Accounting

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
Trust Reform, NCAI - http://www.ncai.org/main/pages/
issues/other_issues/trust_reform.asp

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