Appeals court to hear Norton's contempt appeal

FROM THE ARCHIVE

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MONDAY, APRIL 21, 2003

The federal government is back in court this week to challenge yet another controversial ruling the long-running Indian trust fund lawsuit.

More than two years ago, the Clinton administration asked the D.C. Circuit Court of Appeals to limit the scope and reach of an historical accounting owed to more than 500,000 American Indians. Three judges came back with a unanimous January 2001 ruling that rejected the government's position, along with a rebuke about reform efforts that have arrived "a day late and a dollar short."

Fast forward two years -- and a few hundred million dollars too -- and the Bush administration is in charge of the debacle. Secretary of Interior Gale Norton wants the same appeals court to reverse a court ruling that declared her and former Indian affairs aide Neal McCaleb "unfit" to manage the Individual Indian Money (IIM) trust.

"The Department of Interior has truly outdone itself this time," U.S. District Judge Royce Lamberth wrote in a massive 267-page ruling issued September 17, 2002. "The agency has indisputably proven to the court, Congress, and the individual Indian beneficiaries that it is either unwilling or unable to administer competently the IIM trust."

Officially, Norton is challenging her conviction on five civil charges of litigation misconduct and fraud on the court. Lamberth found that the Interior and its attorneys lied about trust reform and mishandled the accounting owed to Indian beneficiaries.

Broadly, the administration is fighting the court's ability to oversee trust. A Department of Justice brief, filed in December 2002, charges that Lamberth can monitor only whether the government has conducted an accounting but not the "discrete individual steps that would facilitate an accounting."

In addition, Norton is asking the D.C. Circuit to kick a court investigator off the case. The administration alleges special master-monitor Joseph S. Kieffer III is biased and is acting as a litigant rather than a judicial officer.

The appeals court hearing, to take place on Thursday, coincides with two days of contempt proceedings against 39 past and present government officials. Special master Alan Balaran, another court investigator, is to recommend punishment against the officials for destroying trust records in violation of court orders.

And starting May 1, Lamberth will hear "Phase 1.5" of the case to address continued reform efforts and the accounting. Each side has a list of expert witnesses they intend to call in order to help the court decide what action it should take before the case can be resolved.

The heightened court activity comes as Congress grows more weary of the seven-year-old battle. Members of the Senate and House are pushing a settlement to the case in varying degrees of hostility -- House appropriators have called the case a "nuisance" while the Senate Indian Affairs Committee is trying to nudge the parties to the table. At the end of the Clinton administration, the plaintiffs and former special trustee Tom Slonaker, who was fired last July, came to a settlement but the Department of Justice refused to sign it.

Two rulings that require the Interior to act as a trustee are also being appealed by the Bush administration. Those won't be considered this week.

The 2001 case went before two Reagan appointees -- Judge Stephen F. Williams and Judge David B. Sentelle -- and Judge Judith W. Rogers, a Clinton appointee. This week's hearing is before Judge Douglas H. Ginsburg, a Reagan appointee, and two Bush I appointees: Judge Karen Lecraft Henderson and Judge A. Raymond Randolph.

The case is Cobell v. Norton, No. 02-5374.

Contempt II Ruling:
Opinion | Order

Special Master-Monitor Ruling:
Memorandum and Order | Order

First D.C. Court of Appeals Ruling:
COBELL ELOUISE v NORTON, GALE A. (February 21, 2001)

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