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FRIDAY, NOVEMBER 2, 2001

In what could spell bad news for the government, the legal team assigned to the trust fund lawsuit has quickly run into problems defending Secretary of Interior Gale Norton and other top officials.

Having already faced criticism in open court by U.S. District Judge Royce Lamberth, the team -- led by Mark Nagle, chief of the civil division at the U.S. Attorney's office in Washington, D.C. -- has potentially lost its chance to challenge some of the most damning findings against Norton. Two deadlines for responding to court monitor Joseph S. Kieffer III's latest report -- which charged that "no one is in charge of trust reform" -- passed this week with no action by government lawyers.

Without responding to report, the government would have an even more difficult time preventing Norton and others from the sanctions, fines and potential jail time that Lamberth appears ready to lay upon them. During a court proceeding on Tuesday, Lamberth impatiently questioned why he should have a contempt trial at all since the government hasn't objected to much of the information in Kieffer's reports.

"What is there left to try regarding Secretary Norton?" he wondered. "I mean the facts as admitted -- since there is no objection to those facts reported in the court monitor's report -- clearly show [contemptuous actions], don't they?"

Literally on the job for days, Nagle was hard-pressed to find answers to Lamberth's repeated queries. In asking for more time to provide a defense, Nagle only said the his colleagues needed to provide an "accurate" response to the charges laid against Norton and others, leading Lamberth to question if they will "miserably" fail in their defense.

But even prior to Nagle and other Department of Justice attorneys taking over the case, there were signs of problems. After Kieffer's first report, which documented the failure to move on an historical accounting, Norton's old lawyers submitted a blistering response that called into question whether the Interior has ever been "ordered" to provide the estimated 300,000 American Indian beneficiaries with an accurate record of their funds.

That challenge, submitted in early August, now lingers over Nagle's head. When questioned why Norton approved a controversial and costly statistical sampling plan "in absolute violation" of Lamberth's December 1999 ruling, Nagle suggested the "wording" of the decision could still be contested, even though a federal appeals court upheld it.

Similarly, the responses -- and their potential problems -- Norton's previous set of lawyers submitted to Kieffer's second and third reports have now been inherited by Nagle. In one, Norton's attorneys said they "reserved" the right to challenge Kieffer's findings in the future.

But Lamberth has effectively said no additional disputes will be accepted. Dennis Gingold, a lawyer for the plaintiffs, agreed, and said the Interior is "dead on arrival" if it intends to question information contained in Kieffer's recent reports.

"These new lawyers are taking a big risk," asserted Gingold during an interview. "Their failure to object to the Kieffer reports constitutes to an admission [of the facts]."

A spokesperson for the Interior, however, disputed Gingold's interpretation. When Lamberth agreed to give the government until November 15 to provide a response, Keith Parsky said Norton's attorneys will still be able to raise challenges to the fourth report and a supplemental issued two days later.

The team Nagle leads is the third the government has assigned since the trust fund case began five years ago.

Get Hearing Transcript:
COBELL V. NORTON: TRANSCRIPT OF STATUS CALL (10/30)

Relevant Links:
Office of the Special Trustee - http://www.ost.doi.gov
Trust Management Improvement Project - http://www.doi.gov/bia/trust/tmip.htm
Indian Trust: Cobell v. Norton - http://www.indiantrust.com

Related Stories:
Judge ready to hold Norton in contempt (10/31)
Interior promises trust fund defense (10/31)
Judge: Norton's actions 'contemptuous' (10/30)
Trust fund defense team scrapped (10/30)
Action on Norton urged 'on all fronts' (10/29)
Norton views broken trust fund system (10/29)