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FRIDAY, APRIL 25, 2003

A federal appeals court on Thursday temporarily suspended a court investigator whose work on the Indian trust fund led to the imposition of contempt sanctions on two Bush administration officials.

In a short order, the D.C. Circuit Court of Appeals took Joseph S. Kieffer III off the case pending further review. Although the Department of Interior has sought his removal, the three-judge panel didn't explain why they acted.

Since April 2001, Kieffer, a former military intelligence specialist, has functioned as a court monitor and, more recently, a special master-monitor in the long-running Cobell case. His suspension has little practical effect because he hasn't issued a major report in more than a year and his work has been held up by government lawyers who have challenged his every move.

But it came at a critical juncture in Secretary of Interior Gale Norton's appeal of her recent contempt citation. Last September, U.S. District Judge Royce Lamberth called Norton and former Indian affairs aide Neal McCaleb "unfit" to manage the trust assets of 300,000 American Indians. The challenge was heard yesterday by the the three-judge panel, one of whom questioned whether the mark on Norton's career was appropriate.

"This has repercussions," said Judge A. Raymond Randolph, a Bush I appointee. "It's a slap on her reputation."

Marc B. Stern, a DOJ attorney, seized on the seemingly favorable hearing he was getting before at least one judge. Saying Lamberth has unfairly inserted himself and his "arms of the court" into the government's activities, he asked the D.C. Circuit to put the case "back on the right track."

"The district court has asked the secretary of Interior to recognize the court as a de facto receiver," Stern said, "inviting the secretary to resign forthwith if she doesn't like it."

Chief Judge Douglas H. Ginsburg, a Reagan appointee, wasn't as receptive and had questions for both the government and plaintiffs. Since Lamberth's ruling was not a final order, he questioned whether the case was rightly before the court.

"We're past the liability phase," he told Stern. "There has to be some reform of the trust."

Elliot Levitas, a former U.S. congressman representing the Indian beneficiaries, underscored the nature of the government's fiduciary relationship. "This is a trust case," he told the court. "It involves the obligations and the duties of a trustee."

Without the court's oversight, Levitas argued that there would be no reform at all. "There's been malfeasance," he said. "There's been intransigence."

Ginsburg and Randolph both focused on the five contempt specifications that formed the basis of Lamberth's 29-day trial that concluded a little over a year ago. They noted that some of the activities for which Norton was held accountable occurred before she joined the Bush administration.

Referring to the failure to initiate an historical accounting of the Individual Indian Money (IIM) trust and problems with a $40 million computer deemed a failure, Ginsburg said: "That is prior to Norton and McCaleb taking office."

The judges also zeroed in on Kieffer's role in the case, asking technical questions about federal rules that govern the conduct of judicial officers. Although the department initially welcomed his presence, top officials -- including Deputy Secretary J. Steven Griles and now-Special Trustee Ross Swimmer -- have accused him of bias.

Randolph even expressed concerns about special master Alan Balaran, whose reports also helped seal Norton's fate. "It sounds more like a special investigator," he told the government's attorney. "You haven't objected to that as far as I can tell."

Judge Karen Lecraft Henderson, another Bush I appointee, did not ask any questions during the hearing, which was scheduled to last 30 minutes but ran nearly an hour and a half.

Norton did not attend the proceedings although Solicitor General Ted Olson, the government's Supreme Court lawyer, sat in the front row. Security in the a packed courtroom was heavy, with officers from the U.S. Marshals Service keeping order. Bill Myers, the Interior's top attorney, was among the spectators as was Norton's personal attorney, Herbert Fenster of Colorado.

The last time the case went to the D.C. Circuit, the court upheld the plaintiffs unanimously. The Bush administration, in the spring of 2001, decided not to seek Supreme Court review.

Dan DuBray, an Interior spokesperson, did not return a request for comment placed before the court issued its order on Kieffer.

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

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