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THURSDAY, JANUARY 9, 2003

The Bush administration is again asking for permission to communicate with Indian beneficiaries despite a federal judge's rebuke of a policy that limits their rights.

U.S. District Judge Royce Lamberth last month issued a stinging ruling that ordered the Department of Interior to halt distribution of statements that claim to represent a trust fund accounting. He wasn't objecting to the mailings themselves but an executive fiat imposed by Deputy Secretary J. Steven Griles -- without public comment or consultation -- that prevents beneficiaries from taking part of the ongoing Individual Indian Money (IIM) lawsuit.

"The court is thus at an utter loss to understand why defendants thought this court would consider it acceptable for them to include language that extinguishes the very rights that are at the heart of this class action litigation without prior consultation with the court," he wrote on December 23.

But in a motion filed yesterday, attorneys for Secretary Gale Norton said Lamberth was wrong in his assessment of the statements. "[T]he communications by Interior to IIM account holders were made in the regular course of business and did not extinguish the rights of class members in this case," the attorneys wrote.

Norton's defense team also objected to Lamberth's decision to refer at least six Department of Justice attorneys to a disciplinary panel for allowing the mailings to go out. Calling the move "improper," they are seeking to set aside last months' ruling entirely.

The issue speaks to the heart of the IIM suit, which represents more than 500,000 account holders. All are entitled to an accounting of their funds and Interior has been struggling to meet that fiduciary duty.

In early October, Bush officials claimed an initial victory in that effort by sending out accounting statements to the parents and guardians of more than 1,200 minor members of the White Mountain Apache Tribe. Documents sent to the beneficiaries stated that their account balance, approximately $1,800, was "final" unless challenged to the Office of Historical Trust Accounting (OHTA), which is headed by a political appointee, and the Interior Board of Indian Appeals (IBIA), an administrative review board whose authority is limited by Norton.

Lamberth subsequently questioned this policy in a November hearing. "Do you think you have a right to tell [account holders] all their rights are extinguished and not have the court approve that kind of a notice before you do it?" he asked a government lawyer.

"There can be an argument later on what rights they lost," DOJ attorney Phil Seligman said.

The statements were just part of a group of about 14,000 that the department wants to send to tribal members all over the country. Attorneys for the account holders object to the mailings and have called them inaccurate and misleading.

Interior spokesperson Dan DuBray, at the time of the initial mailing, called those complaints groundless. "It would seem that they can't handle the truth," he said of the attorneys.

The OHTA-IBIA policy, published in the Federal Register on September 6, 2002, doesn't just apply to individual Indians. The rights of tribes who seek an accounting of their funds and trust assets would also be limited and government lawyers are seeking an indefinite delay in nearly 20 tribal trust cases in hopes of keeping the disputes at the Interior instead of in the courts.

Relevant Documents:
OHTA Letter to White Mountain Apache (October 9, 2002) | White Mountain Apache Trust Fund Statement (OHTA 2002) | Interior Defendants' Motion for Reconsideration of Order Prohibiting Communications with Class Members (January 8, 2003)

Related Court Decision:
Disciplinary Ruling (December 23, 2002)

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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