Norton calling witnesses in trust fund trial

MONDAY, JUNE 2, 2003

The plaintiffs in the billion-dollar Indian trust fund suit rested their case on Friday, paving the way for the Bush administration to defend its historical accounting and reform plans.

U.S. District Judge Royce Lamberth spent most of the month of May receiving testimony critical of the Department of Interior's efforts. He will now hear from another group of witnesses whose goal is not only to prop up the government's plans but to convince the court not to interfere with them.

The first scheduled witness is John Langbein, a Yale University law professor who is considered an expert on trust and reform issues. Last year, he appeared at the height of the Enron financial accounting scandal, calling on Congress to enact strict standards on company pension plans, the type that caused Enron employees to lose their life savings.

"Unless you change [the law], I can predict to you with utter certainty that such cases will happen again, as they have repeatedly in the past," Langbein told the Senate Committee on Governmental Affairs in written testimony.

Langbein isn't expected do the same for two plans Secretary of Interior Gale Norton submitted to the court this past January. Rather, as Department of Justice attorney John Stemplewicz said in an opening statement May 1, he will testify that the plaintiffs' competing proposals require acts of Congress, something beyond Norton's control.

Key to implementing Norton's plans is the government's second witness: special trustee Ross Swimmer. Swimmer, a former Reagan administration official, has been deposed once in the Cobell case, and once for the Navajo Nation's $600 million breach of trust claim, but his appearance in the trial will be his first on the stand.

Swimmer is largely responsible for a reform plan that calls for the reorganization of the Bureau of Indian Affairs (BIA) and the expansion of the Office of Special Trustee (OST). Although tribes and the plaintiffs oppose the changes, he is moving forward as the trial proceeds.

Associate Deputy Secretary Jim Cason and Deputy Secretary J. Steven Griles are considered possible witnesses for the defense but are not definite. Others on the government's list include employees from KPMG, an accounting firm; Edward Angel, an historian who has worked with the Department of Justice on record collection issues; and Joseph Rosenbaum, the accountant that produced the infamous Ernst & Young report that purported to show a $61 discrepancy in four trust accounts.

The trial could be over by the end of the month, the plaintiffs believe. They are asking Lamberth, at the conclusion of the proceedings, to call another trial to determine the balances of the Individual Indian Money (IIM) accounts. If the court agrees with the request, and there are no delays sought by the Bush administration, they say the six-year-old case can be wrapped up by the end of the year.

In other trust-related developments:

The D.C. Circuit Court of Appeals on May 28 denied a motion by former Interior Secretary Bruce Babbitt, former Interior solicitors Ed Cohen and John Leshy; and current Interior solicitor Edith Blackwell to stay contempt proceedings before U.S. District Judge Royce Lamberth. The three are accused of violating court orders against destruction of trust records.

The Department of Justice filed a brief on May 29 seeking to disqualify special master Alan Balaran from the case. The 15-page brief accuses Balaran of "actual bias" against the government, citing a recent report that was allegedly drafted with the help of a contractor who worked for a company that had a contract dispute with the Department of Interior.

The National Congress of American Indians (NCAI) met on May 29 to discuss participation in the case. Tribal leaders are considering filing a brief to halt the reorganization of the Bureau of Indian Affairs (BIA) and the expansion of the Office of Special Trustee (OST).

The Department of Interior on May 30 announced the first of several briefing sessions on the reorganization. The first will take place June 3 in Albuquerque, New Mexico, at the DoubleTree Hotel. Meetings are planned in each of the 12 BIA regions but officials have not released a full schedule.

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