FROM THE ARCHIVE

Court blocks Norton's historical accounting scheme

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TUESDAY, MARCH 4, 2003

The federal judge overseeing the trust fund lawsuit rejected on Monday the Bush administration's second attempt to extinguish the rights of Indian beneficiaries.

Last December, U.S. District Judge Royce Lamberth blasted Secretary of Interior Gale Norton and her attorneys for sending information to members of an Arizona tribe without court approval. But since the Department of Justice asked for a reconsideration, he was forced to explain his decision all over again.

"There is no better way to waste the limited resources of a court than for a party to ask it to return to issues that the party has already litigated and lost," he wrote in a 17-page ruling.

The dispute involves notices the Department of Interior mailed to 1,200 minor members of the White Mountain Apache Tribe. The government at the time said the information represented an historical accounting of a judgment fund owed to the account holders.

That claim, which is at the center of the lawsuit, didn't necessarily trouble Lamberth -- it was the department's move to terminate the rights of account holders after 60 days unless the information was challenged. Deputy Secretary J. Steven Griles implemented the policy without public comment or tribal consultation.

Norton's attorneys later argued that wasn't the case. Lamberth said their actions proved otherwise.

"Accordingly, defendants' convenient post hoc representations that they never intended the notices to extinguish the rights of class members to a full and accurate accounting are demonstrably false," he wrote.

Last fall, attorneys for the Indian plaintiffs asked the court to prevent the statements from being distributed. But instead of waiting for a ruling on the matter, Interior officials "went ahead and mailed out over a thousand statements to class members, so that they could issue a press statement lauding their own valiant efforts at trust reform," Lamberth charged.

Keith Harper, a Native American Rights Fund (NARF) attorney representing the plaintiffs, lauded the decision. He said it forces the government to live up to its responsibilities as a trustee.

"Indian trust beneficiaries should not be treated any differently that other trust beneficiaries," he said.

Bert T. Edwards, the director of the Office of Historical Trust Accounting (OHTA), was the Interior official responsible for the notices. In an interview last month, he said the department hopes to send a total of 42,000 statements to affected account holders within the next year and one-half.

"If they think there is a mistake and we don't think so, there's an appeal process," he said. Griles designated the Interior Board of Indian Appeals (IBIA), whose decisions can be overridden by Norton, to hear any challenges.

In addition to affirming his ruling on the notices, Lamberth refused to rescind his referral of six Department of Justice attorneys for their role in the debacle. Lamberth said he "will leave it to the disciplinary panel to determine whether defense counsel committed an infraction of the ethics rules."

Some of the attorneys have been personally sanctioned for a separate incident. One is Robert McCallum, who heads the DOJ division handling Norton's defense and is also President Bush's nominee as associate attorney general, the third highest-ranking post in the department.

Get the Decision:
Memorandum and Order (March 3, 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
Trust Reform, NCAI - http://www.ncai.org/main/pages/
issues/other_issues/trust_reform.asp

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