FROM THE ARCHIVE

Trust fund contempt decision appealed

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MONDAY, DECEMBER 9, 2002

The Bush administration on Friday launched a broad challenge to a federal judge's ruling that declared Secretary of Interior Gale Norton and Indian affairs aide Neal McCaleb "unfit" to manage money belonging to 500,000 American Indians.

In an opening brief filed in federal appeals court, government lawyers admitted that the Department of Interior hasn't fixed the broken Indian trust. But they said U.S. District Judge Royce Lamberth went too far when he held Norton and McCaleb in contempt for lying about the failed effort.

"The court has taken the remarkable step of branding these officials 'unfit,' and advising the Secretary to resign if she finds the court's rulings unacceptable," the Department of Justice wrote.

The government also questioned Lamberth's decision to order Norton to submit, by January 6, 2003, plans to reform the Individual Indian Money (IIM) trust. Such a requirement, the brief argued, has "relegated her to a role as a commenter rather than a decisionmaker."

Finally, the administration renewed its attempt to remove a court investigator from the case. Joseph S. Kieffer III, whose reports laid the foundation for Norton's contempt citation, knows too much from personal interviews with Interior officials, government attorneys alleged.

"Given his background of extensive personal knowledge derived from ex parte contacts in this case, he cannot now serve as an impartial and unbiased adjudicator," the filing stated.

Attorneys representing the Indian plaintiffs derided the brief and predicted the District of Columbia Court of Appeals would dismiss it by Christmas. "It's clear the lawyers who appealed this don't know the case," said lead attorney Dennis Gingold. "They don't know what they are doing."

Gingold also pledged to seek additional punishment against Norton and McCaleb for filing a "frivolous" appeal. "I imagine we will have the first contempt proceeding before the court of appeals," he said.

The government's challenge stems from three rulings Lamberth issued on September 17. One was the contempt finding and the order to submit the plans while the other two related to the appointment of Kieffer as a special master-monitor.

Generally, both types of rulings are not appealable. In a separate motion, also filed on Friday, government attorneys conceded this point -- but urged the D.C. Circuit to expedite its review anyway.

The Clinton administration fought Lamberth's original decision to order an accounting of the IIM trust. In February 2001, just weeks after Norton took office, a three-judge panel of the D.C. Circuit unanimously affirmed the ruling.

Dan DuBray, an Interior spokesperson, did not return a request for comment. But some tribal leaders fear the appeal will only lead to further delays.

"A lot of time and energy and a lot of money is being spent on this," said Tex Hall, president of the National Congress of American Indians (NCAI). "After a while you have to say: 'Is the government really capable of reforming?' Maybe the receiver isn't a bad idea after all."

Just last week, McCaleb -- who is leaving at the end of this month -- announced a reorganization of the Bureau of Indian Affairs (BIA) and the Office of Special Trustee (OST), the two agencies with the most responsibility to Indian beneficiaries. Although he said the department was moving submit its reform plans, the appeals brief suggested the January 2003 deadline would not be met.

Relevant Documents:
DOJ Brief (12/6) | DOJ Motion (12/6) | Plaintiffs Move to Dismiss Appeal (11/26)

Relevant Links:
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Trust Reform, NCAI - http://www.ncai.org/main/pages/
issues/other_issues/trust_reform.asp

Related Stories:
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McCaleb being deposed today on e-mails (12/6)
Trust records office shuffled again (12/6)
McCaleb announces reorganization (12/5)
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McCaleb to announce BIA reorganization (12/4)
Cobell trust claim not based on damages (12/3)
Trust budget prompts concerns (11/27)
McCaleb faces continued probe (11/26)
Opinion: U.S. hypocrisy on trust fund (11/26)
Interior's casualties of war (11/25)
Editorial: McCaleb 'had enough' (11/25)
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McCaleb resigning from BIA (11/22)
17 months at arm's length (11/22)
End of road for Neal McCaleb (11/22)
Opinion: IIM lawsuit is about dignity (11/22)
Norton fights contempt citation (11/20)
Tribal organization subpoenaed (11/20)
Lamberth upheld on contempt (11/20)
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Norton again blames Cobell (11/18)