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Lamberth moves Cobell trust reform case forward

A federal judge opened two new fronts in the Indian trust fund case on Wednesday, ordering a broad historical accounting of billions in Indian money and pledging to resolve contempt allegations against dozens of current and former government officials.

In a 15-page memorandum and order, U.S. District Judge Royce Lamberth said he was frustrated with the failure to resolve the long-running Cobell v. Norton case. He placed the blame on the government, indicting both the Bush and Clinton administrations for continuing to challenge the government's trust obligations to hundreds of thousands of American Indians throughout the country.

"Elderly class members' hopes of receiving an accounting in their lifetimes are diminishing year by year by year as the government fights�and re-fights�every legal battle," he wrote, calling on the Interior Department to complete the accounting of at least $13 billion in funds by January 2009.

And in a separate order, Lamberth scheduled a hearing on March 3 to address contempt proceedings pending against former Interior secretary Bruce Babbitt and a slew of other past and present government officials and attorneys. He said the U.S. Supreme Court's refusal to hear Babbitt's appeal this week "resolve[s] once and for all the question" of his authority to resolve allegations of records destruction.

The twin actions came as three Department of Justice attorneys -- including lead counsel Sandra P. Spooner -- resigned from the case. In court documents, Spooner, Terry M. Petrie and Gino D. Vissicchio did not give reasons for their removal and no replacements were named.

The move harkens back to late October 2001, when Interior Secretary Gale Norton replaced the attorneys handling the case with two new teams shortly before announcing her ill-fated BITAM proposal. Spooner, from Justice's civil division, joined the litigation at that time.

Since then, the Bush administration has taken the case to the D.C. Circuit Court of Appeals several times. In subsequent rulings, the court lifted contempt sanctions against Norton and former Indian affairs assistant secretary Neal McCaleb, blocked the release of contempt reports, allowed Interior to reconnect its computer systems and set aside a broad historical accounting and trust reform order.

The Bush administration hailed each step as a victory in a case they say has lost its "moorings." But the court refused the Norton's request to end the litigation altogether and rejected her attempt to limit the scope of the case.

Lamberth referred to one of the latest rulings when he reinstated the accounting of the Individual Indian Money (IIM) trust. He noted that the appeals court failed to rule on the merits of his order based on a "bizarre and futile attempt" by Congress to impose a one-year delay in the case.

The "midnight rider," as it has become known in Indian Country, was inserted in Interior's appropriations bill without prior consultation. Last week, associate deputy secretary Jim Cason denied "writing" the provision but the White House at the time backed the so-called time out.

Since the rider expired at the end of last year, Lamberth said he was free to take action as the appeals court had envisioned. "Of course, December 31, 2004 has come and gone, and no legislative solution to the issues in this litigation is available or in the offing," he observed.

Rep. Richard Pombo (R-California), chairman of the House Resources Committee, has pledged to work with the Cobell plaintiffs, Interior and other parties to seek a legislative solution. He held a hearing last week and blasted the delay in providing an accounting.

But he also said the long-running litigation is taking away resources the Bureau of Indian Affairs That view is shared by lawmakers of both parties in the House and the Senate, who want to restore funding to education, housing and other programs that were cut by the Bush administration to pay for trust reform.

The battle will resume in light of Interior's estimates that an expanded accounting will cost up to $12 billion and take several years. The department's current project is expected to cost $335 million over five years but Cason said last week the effort wasn't assured of success.

"Congress needs to take a hard look at this," Sen. Tim Johnson (D-South Dakota), a member of the Indian Affairs and Appropriations committees, said yesterday of the funding sought for the accounting. The plaintiffs believe an accounting of any sort carried out by Interior is futile due to missing records and flawed systems.

On the contempt issue, upwards of 50 people are accused of violating a court order by destroying electronic trust fund records. Interior admitted to losing the information but an internal investigation failed to assign blame.

Separate from Interior, Babbitt led a group who sought to have Lamberth removed from deciding the matter altogether. The D.C. Circuit refused, saying the judge has not shown an "appearance of partiality" or acted improperly. The Supreme Court refused to hear the case on Tuesday.

Court Orders:
Historical Accounting | Contempt Proceedings

Relevant Links:
Indian Trust: Cobell v. Norton -
Cobell v. Norton, Department of Justice -
Indian Trust, Department of Interior -