Norton's attorneys sanctioned for a third time

THURSDAY, MARCH 6, 2003

The federal judge overseeing the Indian trust fund sanctioned several government attorneys on Wednesday for a "frivolous" attempt to undermine the court's authority.

For the second time in as many months, U.S. District Judge Royce Lamberth lambasted the Department of Justice for their handling of the Cobell litigation. In a 29-page decision, he imposed personal fines on Robert D. McCallum, President Bush's nominee for the number three spot at the department, and four other members of Secretary of Interior Gale Norton's defense team.

"As a direct result of defendants' filing of a frivolous motion, the court and plaintiffs were unnecessarily required to expend time and effort," he wrote. "Defense counsel also wasted [a court official's] time by refusing to respond to his document requests, and refusing to abide by a reasonable rule promulgated by him in response to counsel's obstructionist behavior."

Like his earlier February 5 ruling, Lamberth said he wouldn't bar the federal government from reimbursing the attorneys for out-of-pocket costs they may incur. Nevertheless, Keith Harper, a Native American Rights Fund (NARF) attorney representing more than 500,000 Indian beneficiaries whose trust assets have been mismanaged for more than a century, said the punishment was due.

"Until they understand that people will be held personally liable," he said, "they will continue to mishandle the trust and breach their fiduciary duties."

At the center of the dispute is Joseph S. Kieffer III, a court investigator whose presence in the litigation was initially welcomed by the Bush administration. But after he authored a series of reports critical of the government's failure to reform the Indian trust, top department officials -- including Ross Swimmer, whose nomination as Special Trustee was advanced by a Senate panel yesterday -- questioned his integrity.

Citing his alleged bias, Norton is asking the D.C. Circuit Court of Appeals to kick Kieffer, a former military intelligence specialist, off the case. Oral arguments are scheduled for April 24.

In yesterday's ruling, Lamberth said it was "bizarre" for the government to seek to limit Kieffer's authority. He said the attorneys misrepresented his role in the case and went out their way to attack him when he tried to accommodate their "baseless" positions.

Besides McCallum, the attorneys being sanctioned are lead defense counsel Sandra P. Spooner, Deputy Assistant Attorney General Stuart E. Schiffer and attorneys J. Christopher Kohn and John T. Stemplewicz. All are already on the hook for attempting to "cover up," in Lamberth's words, the botched deposition of a senior trust official and for mailing information to members of the White Mountain Apache Tribe of Arizona without court consent.

Attorneys for the Indian plaintiffs have 30 days to submit to the court a record of their expenses for responding to the matter.

Get the Decision:
Memorandum and Order Denying Defendants' Motion for Protective Order (March 5, 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