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Lamberth critical of Norton's 'bad faith' on trust fund
Monday, October 25, 2004

Blasting the Interior Department's "sordid history of mismanagement and neglect," a federal judge on Friday ordered the government to inform Indian beneficiaries of their rights in the long-running trust fund case.

In a 46-page decision, U.S. District Judge Royce Lamberth recounted what he said were repeated failings of the Bush administration. He accused Interior Secretary Gale Norton of retaliating against Indian beneficiaries by cutting off communication with them, suggesting that their royalty checks could be withheld and taking other actions to undermine the trust relationship.

"What is clear is that the Secretary, in a fit of pique and perhaps anger at both the court and the plaintiffs," he wrote, "simply retaliated against the Indian beneficiaries under the thin disguise of a preposterous and facially false 'interpretation' of the court's order."

Lamberth took aim at the department's actions in recent weeks that led to widespread confusion throughout Indian Country. Based on a memo from Special Trustee Ross Swimmer, Bureau of Indian Affairs officials threatened to hold back payments and refused to talk to landowners about any trust-related issues. In some areas of the country, callers to the local agency were greeted with a telephone message blaming the BIA's silence on the court.

Swimmer denied that his memo led to a breakdown of the trust relationship. "There's no retaliation," he said at the National Congress of American Indians on October 23. "In fact, there is an attempt to comply to the greatest extent possible with whatever orders come out of the Cobell court."

"We were told, by the court, in no uncertain terms that there was to be no communication with the beneficiaries, written or oral," he added.

Swimmer also denied that he suggested royalty checks would be delayed, claiming he used the word "may," although the word didn't appear in his September 30 memo.

"The operative word is 'may,'" he said. "At no time did I ever enter a directive to any employees of [the Office of Special Trustee] or BIA saying, 'Don't send checks.'"

Swimmer acknowledged that not everyone may have followed his advice. Speakers at the conference confirmed they were indeed told of delayed payments and other problems due to the court order.

"It's really difficult to reconcile some of the statements we hear from Swimmer with what I see at home," said Michael E. Marchand, a council member for the Colville Tribes of Washington. "It seems like we're talking about different worlds."

Marchand said BIA officials refused to attend a meeting of over 9,000 tribal members based on Swimmer's memo. "They weren't really happy when they were told that our trustee wasn't even allowed to speak to us, communicate to us or even communicate the memo because they told us that would be a violation of the memo," he told Swimmer.

"There is activity going on that probably would be best characterized as retaliation," he said. "I don't know what else you would call it.'

Lamberth, in his decision, agreed with the assessment, going so far as to call Norton's arguments to the contrary "lies" and "bad faith." "These actions, of course, were taken pursuant to a deliberate, infantile, and frankly ridiculous misinterpretation of this court’s straightforward order," he observed.

In hopes of resolving the situation, Lamberth said he was clarifying a recent court order that led to the mess. He approved two notices to be sent to Indian beneficiaries who wish to sell their land or who receive a "statement" of an historical accounting of their trust funds.

The notices inform beneficiaries of their right to consult the plaintiffs in the Cobell case. Both documents state that the sale of land or acceptance of the accounting statement do not terminate any rights as part of the litigation, as the Bush administration had argued.

"The court held a hearing and found that, like the [accounting] statements, the land-sale related communications did in fact threaten to extinguish rights of plaintiff class members," Lamberth wrote.

Previously, the Bush administration sought to terminate an account holder's right to challenge the accounting under a policy approved by Deputy Secretary J. Steven Griles. The policy was implemented in the Federal Register in September 2002 with no prior consultation of tribes or individual Indians.

Lamberth also rejected the government's attempt to remove "scandalous" material from court briefs filed by the plaintiffs. Attorneys for Norton claimed the statements had nothing to do with the case.

Lamberth found otherwise, citing a litany of complaints lodged against the department under both Republican and Democrat administrations. He said the record is rife with examples of destroyed documents, misleading court reports and "unsavory" behavior.

"If seeing their conduct described in writing is so disturbing, perhaps Interior and its counsel should consider conducting themselves differently," Lamberth wrote.

Get the Decision:
Cobell v. Norton (October 22, 2004)

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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