Norton challenges judge on trust fund receiver

FROM THE ARCHIVE

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MONDAY, NOVEMBER 19, 2001

Even though she has failed to provide the most basic services to American Indian beneficiaries, a federal judge cannot take the broken trust fund system away from Secretary of Interior Gale Norton because doing so would be unconstitutional, government attorneys claim.

Appointing a receiver, or outside caretaker, for the Individual Indian Money (IIM) trust would exceed the powers of the judicial branch, Norton's lawyers are arguing. Federal courts cannot assume the role the U.S. Constitution has given to the White House in deciding who will oversee the accounts of an estimated 300,000 American Indians, they said.

"[A]ppointment of a receiver to assume the duties of the Secretary," Norton's attorneys said, "would encroach impermissibly on the constitutionally appointed function of the Executive Branch."

Neither can a court violate powers of the U.S. Congress, Norton's defense claims. A 1994 law aimed at reforming the IIM trust entrusts her with authority over the system -- even if she can't fix it -- and no judge can remove her of that duty, they added.

So instead of siding with the plaintiffs in a class action lawsuit against the government, Norton's defense team says she should be allowed to strip the Bureau of Indian Affairs of its core responsibilities to Indian Country. Even though she has provided no timetable for what a consulting firm she hired suggests will take at least a year, a major reorganization of her department will finally fulfill the government's obligations to account holders, they said.

"The Secretary's reorganization plan will create a single, accountable trust reform office with line authority over Indian trust functions and oversight by the Special Trustee," the attorneys conclude.

Contained in a lengthy court filing, these arguments are Norton's long-awaited response to a growing set of contempt charges laid against her and her top officials, attorneys and senior management. Written by the civil division of the Department of Justice, they were submitted to U.S. District Judge Royce Lamberth last week, just in time to meet his deadline.

But if Norton were looking to avoid controversy and show that the proof is -- in the words of one Interior official -- "in the pudding," she has found none of that. Not only have the plaintiffs in the IIM class action criticized her proposal as a last-minute excuse to delay justice to account holders, tribal leaders have denounced the plan as one crafted without their input.

Tex Hall, chairman of the Mandan, Hidatsa and Arikara Nation of North Dakota, was one of many who have spoken out against the overhaul since it was given to Judge Lamberth under cover of darkness last Wednesday. He questioned why Norton would propose changing the government-to-government relationship with tribes when the lawsuit in question has only determined failures in the handling of individual Indian assets.

"This reorganization doesn't solve any of the problems raised by the court," he said. "We need management of our trust funds in a way that holds the [government] accountable, not a new bureaucracy that has no relationship with tribes."

Norton's plans have also raised concerns among members of Congress who have echoed Hall's sentiments. Calling for hearings on the matter, Rep. Nick Rahall (D-W.Va.), the ranking member on the legislative panel with jurisdiction over Indian issues, said his Congressional committee was not properly consulted either.

"While I am open to innovative ideas about how to fix the Indian trust fund management problems, it unfortunately appears that, once again, the Department of the Interior is taking drastic action affecting the income of Native Americans without input from the account holders," the top Democrat on the House Resources Committee said.

Until next week, however, Indian Country won't get any insights on how Lamberth will view what Ron Allen, chairman of the Jamestown S'Klallam tribe of Washington, called a dramatic change to the government's "strong moral, ethical and legal obligations to Indian nations." On November 30, Norton's lawyers and the IIM plaintiffs will be back in court in Washington, D.C., to update Lamberth on their views.

Tribal leaders next week will also be meeting to discuss the reorganization at the annual convention of the National Congress of American Indians. In what is predicted to be a lively discussion, Deputy Interior Secretary J. Steven Griles and Assistant Secretary Neal McCaleb are slated to address the gathering on the proposal.

The Washington, D.C.-based lawyers who are representing the IIM plaintiffs told Indianz.Com they are planning to submit all of their legal arguments to Lamberth before Thursday.

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