FROM THE ARCHIVE

Bush strategy assumes no trust mismanagement

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TUESDAY, NOVEMBER 5, 2002

The Bush administration has launched a sweeping legal strategy aimed at indefinitely delaying resolution of nearly two dozen tribal trust mismanagement cases.

Recently submitted court documents outline a bold attempt to kick tribes out of the federal court system and back into the hands of the Department of Interior, the agency where their money has languished unaccounted for more than a century.

Under the watch of Ross Swimmer, a former Reagan administration official who now heads up a major reform effort at the department, the government says it will finally meet its trust responsibilities. Court papers call for a remand and stay of the tribal cases while the Office of Historical Accounting (OHTA) comes up with a "workplan" for an historical accounting.

After a six-month delay, the Bush administration would then seek another undetermined delay in order to carry out the workplan. The goal is to prove that the United States, as trustee, has never mismanaged Indian funds.

"[T]he United States contemplates a motion for summary judgment (after the remand and after it proffers its historical accounting) seeking judgment that . . . no damages are owed," government attorneys wrote in a September 6 filing in a case involving the Warm Springs Tribes of Oregon.

The court strategy is coupled with an executive fiat imposed by Deputy Secretary J. Steven Griles without public comment or consultation. The same day of the court filing, he approved a policy that directs any challenges of an accounting to the Interior Board of Indian Appeals (IBIA).

The move puts up another roadblack for tribes. Only until all appeals are exhausted before the IBIA, an administrative tribunal whose authority is limited by Secretary Gale Norton, would they be able to return to the court where they started.

The Bush administration is also banking on the Supreme Court's upcoming decisions in the White Mountain Apache and Navajo Nation cases as further defining the contours of their responsibilities. Griles has said repeatedly that the outcome of those disputes will provide "guidance."

The strategy comes in response to an onslaught of trust-related cases in the federal court system. Over the past year, at least 20 tribes have filed lawsuits seeking an accounting of their funds.

The claims are based on the highly successful Cobell class action that represents 500,000 American Indians. With that case still in high gear after six years, the Bush administration is under extreme pressure not only to reform the trust but to defend itself in court.

Some of the cases were filed in the federal Court of Claims and others in federal district courts. Several are under the watch of U.S. District Judge Lamberth, who handles the Individual Indian Money (IIM) case. In July, against the urging of the administration, he said the tribal lawsuits were related to Cobell.

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

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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