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Appeals court clears Norton, McCaleb of contempt
MONDAY, JULY 21, 2003

A federal appeals court on Friday lifted contempt sanctions against Secretary of Interior and former aide Neal McCaleb but refused to wrest the Indian trust fund from the federal judge overseeing the debacle.

The unanimous ruling stated that U.S. District Judge Lamberth "erred" in holding the two Bush administration officials responsible for the failed state of trust reform. To reach this conclusion, a three-judge panel consisting of Republican appointees to the D.C. Circuit Court of Appeals determined that the conduct for which Norton and McCaleb were sanctioned was "criminal" in nature -- even though the government never subscribed to this argument in its briefs or at oral argument.

"Because Secretary Norton cannot be held criminally liable for contempt based on the conduct of her predecessor in office, her contempt conviction cannot stand; she simply cannot be held criminally to account for any delay that occurred prior to her assuming office," Judge Douglas Ginsburg, who was nominated by President Ronald Reagan, wrote in the 31-page opinion.

The judges also revoked Joseph S. Kieffer III as a special master-monitor in the case. Citing his "investigative, quasi-inquisitorial, quasi-prosecutorial" role, they said Lamberth "erred" in reappointing him because the Department of Interior objected.

"When the parties consent to such an arrangement, we have no occasion to inject ourselves into their affairs," the panel wrote. "When a party has for a non-frivolous reason denied its consent, however, the district court must confine itself (and its agents) to its accustomed judicial role."

Despite siding with the Bush administration on the contempt charges and Kieffer's role, the D.C. Circuit disagreed on some important fronts -- including the government's long-standing charge, renewed recently, that Lamberth lacks jurisdiction to review its trust reform initiatives. The Department of Justice had argued that Lamberth overstepped his authority in the September 17, 2002, contempt order and opinion that set into motion Trial 1.5, which concluded July 8.

"As the plaintiffs demonstrate, the orders and the opinion were full of sound and fury, but they signified very little to be done by the DOI," Ginsburg wrote.

Also, the D.C. Circuit highlighted the legal theory behind Lamberth's decision to require Interior to submit an historical accounting plan and a fiduciary compliance plan. The panel cited a 1982 prison reform case, saying it allows courts to appoint, within certain limits, special masters and monitors to report on the progress an entity is making in fulfilling its legal obligations.

For those reasons, Keith Harper, a Native American Rights Fund attorney handling the case, said Friday's ruling does little to affect the seven-year-old class action, which represents more than 500,000 American Indians throughout the country. "In our view, everything is going forward," he asserted in an interview. "What does the Secretary gain? The Secretary loses the contempt [citation] but left standing is so much more, including Trial 1.5."

The Bush administration, on the other hand, declared victory. "This decision is a significant milestone for the American Indians and Alaska Natives served by the Department," the Interior said in a statement. Spokesperson Dan DuBray refused to elaborate.

"We are pleased that the court of appeals took note of the significant positive steps taken by Secretary Norton to address the issues presented in this case and that the court vacated the unwarranted contempt rulings against the Secretary and Mr. McCaleb," added Peter Keisler, an assistant attorney general for DOJ's civil division, in a statement.

Regardless of the ruling, it does not let the Interior "off the hook," Senate Minority Leader Tom Daschle (D-S.D.) said in a statement. "It is widely recognized that Indian trust holders all across the country are being denied funds that are rightly theirs, and it is regrettable that the Interior Department seems to be more concerned about fighting for themselves than in fighting for Native Americans," he said.

In separate orders, the D.C. Circuit dismissed as untimely an appeal by Norton filed by her private counsel, Herbert Fenster of Denver, Colorado, and a similar lodging by the personal attorney for McCaleb, who retired last December citing pressure from the litigation. Both attorneys are being paid with taxpayer funds. The court instead treated the filings as "amicus" briefs.

The case was filed in June 1996 by Elouise Cobell, a former treasurer for the Blackfeet Nation of Montana, and has been characterized by bitter fights in and out of the courtroom. Although the plaintiffs won an historic December 1999 ruling, upheld unanimously on appeal, that found the Interior and Treasury breached their fiduciary obligations, the government has yet to account for the Individual Indian Money (IIM) trust.

The most recent trial was held, Lamberth reasoned, in an attempt to put reform back on track. Norton, through a reorganization that is opposed in Indian Country, argues that progress will be made in the future.

DOJ handled the appeal to the D.C. Circuit but did not try the contempt case, which was argued by the civil division at the U.S. Attorney's Office in Washington, D.C. Lamberth formerly headed that division before being appointed to the federal bench by Reagan.

Get the Decision:
Cobell v. Norton | Per Curiam Order | Order (July 18, 2003)

Relevant Documents:
Plaintiffs' Statement | Department of Interior Statement | Department of Justice Statement | Sen. Daschle Statement

September 17, 2002, Contempt Ruling:
Opinion | Order

Special Master-Monitor Ruling:
Memorandum and Order | Order

First D.C. Court of Appeals Ruling:
Cobell v. Norton(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

Related Stories:
Norton cleared of contempt on trust fund (7/18)
Congress hacks Bush's accounting funds (7/16)
Trust fund provision stripped from House bill (7/15)
Swimmer partly right on trust fund rider (7/14)
Hearsay: House sending message to Lamberth (7/14)
Bill could strip DOI of trust fund management (7/14)
Bush official balks at large settlement for Cobell (7/10)
House takes testimony on trust fund settlement (7/10)
Editorial: Shame on Bush and Congress for rider (7/10)
Judge Lamberth hears closing arguments in Cobell trial (7/9)
Closing arguments set in Cobell trust fund trial (7/8)
Dicks pins anti-Cobell language on Taylor (7/7)
Editorial: Trust fund settlement bill 'disgraceful' (7/7)
Swimmer to appear on Native America Calling (7/7)
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Swimmer recalls 'fuzzy' Reagan years (7/1)
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Pombo targets trust fund settlement program (6/30)
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Swimmer challenged on Bush reform plans (6/27)
Swimmer expected to take stand in Cobell trial (6/25)
Griles gets Cobell wish list from House (6/26)
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Norton offered settlement funds for IIM trust (6/20)
Swimmer testimony to come at end of Cobell trial (06/05)
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Indian trust standards debated (6/3)
Suit aims to halt reorganization (6/3)
Norton starts defense in trust fund trial (6/2)
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Cobell welcomes a settlement to trust case (5/29)
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Tribes oppose OST expansion into Indian County (5/22)
Swimmer: Don't fear changes at Interior (5/22)
On trust, Swimmer turns to private sector (5/14)
Trial in Cobell trust fund case kicks off (05/02)
Bush reform plans debated in trust fund trial (05/02)
Cobell v. Norton Recap: Day 1 of Trial 1.5 (05/02)
Court tackles trust accounting and reform plans (05/01)
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