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FRIDAY, FEBRUARY 22, 2002

U.S. District Judge Royce Lamberth is set to decide in the coming weeks whether to hold Secretary of Interior Gale Norton and Assistant Secretary Neal McCaleb in contempt for their handling of the Individual Indian Money (IIM) trust.

With charges covering actions that took place during the Clinton administration up until the present, Lamberth has to reach back more than two years in some instances to determine whether a fraud has been committed upon his court. Based on the failure to conduct an historical accounting, the acknowledged deficiencies of a $40 million trust accounting system and the status reports on trust reform that have just seen a major makeover, he is being urged to take the IIM trust out of the government's hands and give it to a judicial receiver.

Throughout the course of the 29-day trial that ended yesterday, Norton's legal team has sought to provide testimony and evidence to counter such a drastic move. Although initial challenges to the reports of a court monitor were dropped, her attorneys -- while admitting shortcomings -- have maintained there has been no wrongdoing.

"We are not arguing for exoneration or vindication," said Mark Nagle of the U.S. Attorney's office in Washington, D.C, urging Lamberth to look at "where things are going" before ruling.

But of the five specifications before him, Lamberth only needs one to come to a finding of contempt. Going by his heightened concerns over the information technology (IT) failures at the Department of Interior, he has found the one area where judicial oversight is probably the most warranted.

"Untold amounts of money could have disappeared from the accounts," Lamberth said of the vulnerable computer systems, "and the Interior can't tell us if money has disappeared."

"That's what's the most shocking of all," he continued. "How a trustee can get into the position of allowing those systems to be totally at risk . . . almost boggles my mind."

Norton, her top officials and government attorneys have repeatedly told Lamberth, Congress and Indian Country that security is their "top priority." At the same time, her defense team has had little to say in response.

The most significant statement Nagle made yesterday about the charge was: "IT security is a problem."

The way the government has handled the charge has raised more questions than answers, as Lamberth has indicated in recent days. After initially deciding to split Norton's defense into two phases, including one specifically on IT security, her attorneys changed their mind.

But by then, the one witness who could have testified most about the vulnerabilities -- former Bureau of Indian Affairs computer official Dom Nessi -- was already off the stand. So without anyone to at least explain the lapses, Norton's attorneys instead chose to submit written documents to address the charge.

Even when Norton took the stand, she was evasive. Dennis Gingold, an attorney representing the Indian beneficiaries, tried in vain to pinpoint when she knew about the problems.

"I don't really recall specifically," she said last week.

Lamberth last month warned Norton's legal team that a report documenting the vulnerabilities is, on its face, enough to find her in contempt. Yet the attorneys failed to dispute special master Alan Balaran's findings, a move which would appear to almost guarantee sanctions, fines and potential jail time.

Indeed, Lamberth has questioned the silence. He wondered yesterday why Norton and her top aide, Deputy Secretary J. Steven Griles, have not taken corrective action against employees, or initiated a process to do so.

"Your clients said all they needed to say about that," smirked Lamberth of the pair.

Balaran has recommended the court, at bare minimum, take control over information technology. Still frustrated that payments to thousands of Indian landowners are still tied up, Lamberth may just do that.

Lamberth also said on Wednesday he would consider "seriously" a request by the plaintiffs to enforce distribution of the funds. While doubting whether the Interior would follow his directives, he noted the process by which the department is to work with his court has largely failed.

Relevant Links:
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Trust Reform, NCAI - http://130.94.214.68/main/pages/
issues/other_issues/trust_reform.asp

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