FROM THE ARCHIVE

Lamberth criticizes interference with trust fund case

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THURSDAY, MAY 22, 2003

The federal judge overseeing the Indian trust fund sent a strong message to Congress and the Bush administration on Wednesday, warning against efforts to "undermine" the landmark case.

In an eight-page decision, U.S. District Judge Royce Lamberth said he will not reduce compensation owed to two court investigators who have criticized the Department of Interior's failing trust reform initiatives. He blasted language in the 2003 omnibus appropriations bill, a massive 3,000-page package that funded almost every single agency, as potentially unconstitutional.

"The appropriations provisions at issue in this matter appear to represent yet another attempt by defendants to evade the rule of law by any means available to them, no matter how duplicitous or underhanded," he wrote. "They also serve to demonstrate defendants' manifest hypocrisy."

The provisions surfaced last summer from the House Interior Appropriations subcommittee. Citing concerns about the spiraling costs of trust reform, the panel's leaders, former Rep. Joe Skeen (R-N.M.) and Rep. Norm Dicks (D-Wash.), limited the amounts paid to Alan Balaran and Joseph S. Kieffer III, the special masters in the Cobell case.

At the same time, the subcommittee authorized the federal government to pay for private attorneys hired by past and present government officials whose behaviors have been questioned by the court's masters. Department of Justice documents show that the attorneys are receiving up to $200 an hour, depending on experience.

"Defendants thus have no problem with spending the taxpayers' money, as long as it benefits them," Lamberth responded, ordering the government to detail how much the private attorneys have received. "But when ordered to compensate judicial officers whose appointment was necessitated by their own misconduct, defendants suddenly become born-again fiscal conservatives."

Roger France, a staff assistant to Rep. Charles Taylor (R-N.C.), the new chairman of the Interior subcommittee, defended the spending caps. He said Congress is "fully within its rights" and wasn't trying to interfere with the judicial branch.

"We're just trying to keep the taxpayers from paying more than what the leader of the free world receives," he said yesterday. "There's nothing unreasonable about that."

In his decision, Lamberth said the appropriations language only applies to the Interior. France agreed with that assessment but said the Department of Treasury, the other defendant in the case, wouldn't pay the special master fees either.

A Treasury spokesperson declined to comment as a did a Justice spokesperson who said the decision was being reviewed. According to France, the White House decided that the Interior's budget -- including Indian programs -- would be hit.

"Treasury doesn't pay them in any event," he said. "They are paid out of the Interior."

Dennis Gingold, an attorney representing 500,000 American Indians in the lawsuit, said it doesn't matter who reimburses the court. "That's their problem," he said of Congress and the executive branch. "The court isn't constrained by what they do. They are liable for the fees of the court officials and they are liable for what they owe beneficiaries."

Top Interior officials have repeatedly denied their involvement with the budget bill, which was stripped of another provision that would have limited an historical accounting of the Indian trust. But they have made no secret of their support for the private attorney fees provision.

"The Justice Department has approved personal attorneys for us all," Deputy Secretary J. Steven Griles told Taylor and Dicks in March.

"I think we oughta stay with it," said Dicks.

Lamberth gave the government 30 days to detail the "all funds that defendants have used to pay private attorneys for fees and costs incurred in connection with the present litigation for representing employees or former employees of the Department of the Interior. Such written statement shall include both the hourly rates of each of the above-mentioned attorneys, and the total number of hours that each of the above-mentioned attorneys has billed to date."

Balaran, who has over a decade of experience, is being reimbursed at a rate of $200 an hour. According to statistics cited by Lamberth, the going rate is $325 an hour. Kieffer, a former military intelligence specialist, was receiving $250 an hour up until he was suspended temporarily by the D.C. Circuit Court of Appeals last month.

Get the Decision:
Memorandum and Court Order (May 21, 2003)

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

Related Stories:
Appeals court halts work of trust fund master (04/25)
DOJ seeks to limit payment for court officials (03/21)
Spending bill keeps provisions affecting Cobell (02/14)
Norton again refuses to pay court official (02/03)
Lamberth tempted by disqualification campaign (01/21)
Judge rejects campaign against trust oversight (10/01)
House clears DOI budget bill (7/18)
Rahall statement on trust fund (7/18)
House vote a victory on trust fund (7/18)
Debate rages on Interior bill (7/17)
White House approved DOI spending bill (7/17)