Norton challenges contempt recommendation

THURSDAY, NOVEMBER 15, 2001

Secretary of Interior Gale Norton should not be held in contempt for violating a court order even though some of her employees acknowledged they didn't receive the document until months after it was issued, her new defense team has told a federal judge.

Despite the findings of a court investigator, a number of Interior offices received the order prohibiting retaliation against employees in a "timely manner," the attorneys claim. And even though Norton has no way of proving that all of her subordinates received the document by any particular date, it is "reasonable" to assume they did, they argue.

Special master Alan Balaran's recommendation of contempt was based on a "misunderstanding," the U.S. Attorneys office writes. Therefore, Norton shouldn't be sanctioned by U.S. District Judge Royce Lamberth because the Interior has taken "additional steps" to ensure the anti-reprisal order has been delivered to all employees, they conclude.

Contained in a November 9 filing, the response is the first serious challenge raised by Norton's new defense team, who was hired after the Department of Justice's environmental division was kicked off the case. Composed of two separate groups of lawyers, the U.S. Attorneys office in Washington, D.C., is handling the contempt charges being laid against Norton and other government officials.

In the eyes of the plaintiffs in the billion dollar class action suit who want Norton fined and sent to jail, the new lawyers aren't doing a better job than the old ones. "It's business as usual," said Dennis Gingold, a Washington, D.C., attorney representing an estimated 300,000 Individual Indian Money (IM) account holders.

At the center of the dispute is a court order issued just days after Norton took control of the Interior. Besieged by charges of intimidation against top officials and senior Bureau of Indian Affairs management, Balaran on February 8 instructed all department employees to receive an order prohibiting retaliation should they come forward with information on the trust fund.

According to Balaran, the government has "failed to substantially comply" with the directive despite numerous attempts to make sure it was distributed properly. He cited evidence that some employees of the Office of Trust Records (OTR), headed by Ken Rossman, testified they did not receive the order until months later.

In their rebuttal, Norton's lawyers don't provide specific proof against those findings. Even though they acknowledge Rossman waited until March 15 to confirm his office received the order, they insist -- based on testimonials from other OTR employees -- it was distributed weeks prior.

And to show the government has taken measures to ensure all employees have received the order, Norton's attorneys cite Deputy Secretary J. Steven Griles' decision send it the homes of 11,000 Bureau of Indian Affairs and Office of Special Trustee employees. They don't tell Lamberth, however, that a number of employees were told to burn the letter due to an anthrax scare.

Additionally, Norton's attorneys dispute Balaran's finding that government attorneys drafted testimonials in a deliberate attempt to mislead Lamberth. Since Rossman and other employees wrote their own declarations, DOJ attorneys can't be blamed, they said.

Today, Norton's attorneys will submit a filing responding to another set of contempt charges. They will also argue why Lamberth should not appoint a receiver to take care of the trust fund.

Today on Indianz.Com:
Objections voiced over trust fund choice (11/15)

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