On accounting Norton find her magic date

FROM THE ARCHIVE

Facebook Twitter Email
WEDNESDAY, MARCH 12, 2003

I will not accept that this is a job too big for us to accomplish. It may take time, but the historical accounting must be completed. -- Secretary of Interior Gale Norton, July 10, 2001.

Taking the stand in her own trial more than a year ago, Secretary of Interior Gale Norton seemed genuinely flabbergasted that she was facing contempt charges for her failure to fix the broken Indian trust.

When asked to explain why she affirmed a 11th-hour Clinton administration decision to conduct a statistical sampling of funds held in trust for more than 500,000 American Indians, she didn't see much of a problem. Signing the memo wasn't about limiting her fiduciary duties but rather an attempt to "kick people into gear," she told U.S. District Judge Royce Lamberth.

"I wanted to reject the idea that we only had to do things back to 1994," she testified.

In making that statement, Norton sought to draw a distinction from the Clinton administration, which sought to restrict an accounting to that magic date. She was well aware of a unanimous D.C. Circuit Court of Appeals opinion that obliterated such a position.

"The Court of Appeals clearly threw that out," Norton recounted.

Norton backed up her promise to provide the "long overdue" accounting by withdrawing another set of Clinton-imposed limits. The magic date contained in those court filings was 1951.

The Office of Historical Trust Accounting (OHTA) would look as far back as 1938, Norton's attorneys claimed at the time. Five months later, in July 2002, the office estimated it would cost $2.4 billion over 10 years to do just that.

But in January, Norton found herself retreating. Scaling back the accounting dramatically in response to complaints by members of Congress, she devised a slew of limits that drove down the cost and time estimate to $335 million over five years. She also brought statistical sampling back into the picture.

And she filed new court papers that settled on a magic date for the accounting: October 1, 1984.

Why? Because the Individual Indian Money (IIM) trust beneficiaries, according to the government, filed their lawsuit too late.

"There can be no dispute that plaintiffs -- and the rest of the class -- knew or should have known of their claims long before October 1, 1984," Norton's attorneys wrote in a motion for summary judgment.

The new date is convenient for a couple of reasons. Prior to 1985, the trust fund was handled almost exclusively on paper. Interior calls this the "Paper Records Era" and admits it is a challenge to handle -- due to lost, destroyed or otherwise missing documents.

More importantly, the date matches nicely with a controversial provision of a spending bill that was the subject of heavy debate last summer. The House Interior Appropriations subcommittee added language to restrict the accounting from 1985 to 2000.

Interior calls this period the "Electronic Records Era."

The provision was struck from the House bill by an overwhelming margin. "And yet they (Interior) had nothing to do with it," said Keith Harper, a Native American Rights Fund (NARF) attorney, sarcastically.

"We stunned even the press," recalled Rep. Dale Kildee (D-Mich.), co-chair of the Congressional Native American Caucus. "We certainly stunned the chairman and ranking member of the subcommittee when that vote came out."

Lamberth will be considering Norton's new motion as he advances the case. In May, he will hold a trial to address the historical accounting and a reform plan the Bush administration submitted in early January.

Meanwhile, efforts continue in Congress that stand to affect the dispute. The Interior subcommittee, whose members have grown impatient with the spiraling cost of trust reform, today holds a hearing on the Interior's new budget, which requests a total of $130 million to account for tribal and IIM trust funds. Deputy Secretary J. Steven Griles is the sole invited witness.

Sen. Ben Nighthorse Campbell (R-Colo.), chairman of the Senate Indian Affairs Committee, plans to introduce a bill to settle the historical accounting claims of willing IIM beneficiaries. Paul Moorehead, Campbell's chief aide, said the committee has a "responsibility" to offer alternatives.

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