Norton set for contempt trial

MONDAY, DECEMBER 10, 2001

In what is expected to be an all-out brawl, Secretary of Interior Gale Norton and Assistant Secretary for Indian Affairs Neal McCaleb are set to go to trial today for their handling of the Individual Indian Money (IIM) trust fund.

The contempt proceedings, part of a lawsuit brought on behalf of 300,000 American Indians, are the first for the Bush officials. Previously, three members of the Clinton administration -- former Interior Secretary Bruce Babbitt, former Assistant Interior Secretary Kevin Gover and former Treasury Secretary Robert Rubin -- were held in contempt and fined $600,000 in February 1999 for failing to produce documents relevant to the trust.

Due to numerous challenges raised by Norton's defense team, a lengthy trial is foreseen by attorneys representing the account holders. Keith Harper of the Native American Rights Fund and Dennis Gingold plan to call almost 30 witnesses, with the first two set to take the stand this week.

Here is some background on the affair.

The Charges
Norton and McCaleb face five contempt charges, identified in a November 28 court order and a December 6 supplemental. Of the counts, four stem from reports issued by court monitor Joseph S. Kieffer III and the final from an investigation by special master Alan Balaran.

The charges are:

Failing to comply with the court's order to initiate a historical accounting project.
U.S. District Judge Royce Lamberth ruled on December 21, 1999, that federal law entitles IIM beneficiaries to a full and accurate historical accounting of their assets, "without regard to when the funds were deposited."

Since then, little has been done to discharge this basic duty. In his first report, Kieffer found that the Clinton administration did not move forward the project significantly.

Kieffer also found that Norton signed off on a statistical sampling project with little research into whether it would fulfill her duties under federal law and comply with the 1999 order. During an October 30 hearing, Lamberth said this action was "clearly contemptuous."

Norton subsequently dropped the plan and created the Office of Historical Trust Accounting to handle what she termed "long overdue." The office has so far released reports saying it won't come up with a more detailed plan -- including dates -- until mid-2002.

Committing a fraud on the court by concealing the department's true actions regarding the historical accounting project during the period from March 2000, until January 2001.
In his first report, Kieffer called the Clinton administration's Federal Register process to consult with account holders a sham, saying it was initiated to delay an accounting while the Department of Justice appealed Lamberth's ruling.

Kieffer also said the outcome of the process, statistical sampling, was essentially pre-decided despite the wishes of account holders and objections from some members of the administration. In a December 1999 memo, Babbitt approved a sampling project of about 350 accounts.

A federal appeals court subsequently struck down the government's appeal and upheld Lamberth's decision. The Bush administration later decided not to take the case to the Supreme Court.

Committing a fraud on the court by failing to disclose the true status of the TAAMS project between September 1999 and December 21, 1999.
In two reports, Kieffer focused on critical trust reform projects: the Trust Asset and Accounting Management System (TAAMS) and data cleanup, a TAAMS subproject.

Kieffer's second report called TAAMS, which is supposed to bring trust accounting into the 21st century, a $40 million system teetering on collapse. He also said Clinton officials knew about its failures as early as the summer of 1999, when Lamberth was holding his first trial.

More specifically, he pointed to a September 1999 meeting during which Anne Shields, Babbitt's chief of staff, and other officials discussed whether they should inform Lamberth of TAAMS' failures. For whatever reason, the court was not informed and TAAMS continued on a path to virtual self-destruction.

Keiffer's third report centered on data cleanup, or the verification of records that are fed into the TAAMS system. The report stated that full cleanup is perhaps a decade or more away, casting doubt on whether TAAMS will ever be fully functional.

Subsequently, Lamberth has said TAAMS is indeed a "total failure."

Committing a fraud on the court by filing false and misleading quarterly status reports starting in March 2000, regarding TAAMS and BIA Data Clean-up.
Despite knowing about TAAMS and cleanup failures, Kieffer in his two reports found that the true status was often not provided in the government's court-mandated status reports.

Produced every quarter per Lamberth's order, Kieffer instead found that passages regarding the projects often said progress would be presented in the next report -- yet those updates never came.

In a fourth report and a supplemental document, Kieffer also found that conflicts among top officials and government attorneys led to less than truthful reports and a full-month delay in the submission of the most recent one. Lamberth later called the delay in the 7th Quarterly Report "game playing" among Norton and top officials.

Norton has since failed to turn in her 8th report. It was due last week.

Committing a fraud on the court by filing false and misleading representations, starting in March 2000, regarding computer security of IIM trust data.
In March 2000, the Interior said it needed to move the Bureau of Indian Affairs' computer center from Albuquerque, New Mexico, to suburban Washington, D.C., in order to fix known network security vulnerabilities.

Since then, special master Alan Balaran has found that none of the problems were addressed. Further, he found that the government never informed Lamberth of the holes, despite having commissioned numerous reports and investigations.

Norton's administration was informed in August that court hackers broke into the BIA's Office of Information Resource Management and numerous IIM systems. However, her department waited until last week to shut their networks in an attempt to correct their "significant deficiencies."

The Reports
Court monitor Joseph S. Kieffer III has issued four reports and a supplemental document since being appointed to watch over the Interior on April 16.

The following articles discuss the reports and their findings:
Report 1:
Norton slammed by trust fund monitor (7/12)
Report 2:
Court monitor sets sights on software system (8/1)
Court report criticizes trust fund software (8/10)
Report 3:
Norton hit on trust fund progress (9/18)
Report 4, 5:
Infighting delaying trust fund fix (9/20)
Objections delaying trust fund report (9/6)
Trust fund fix risking 'failure' (10/10)
Memo: Solicitor's order was 'intimidating' (10/10)
In The Hoop: Interior Bungling (10/10)
Trust fund progress testing 'credibility' (10/11)
Norton blasted on trust fund (10/17)

Special master Alan Balaran has released numerous opinions since being assigned to the case. Although he has made numerous contempt recommendations in his reports, the only one being addressed now is the security of individual Indian trust data.

The following articles deal with the opinion:
Interior holding back security reports (6/29)
Trust fund security document filed (11/14)
Judge holds secret hearing (11/23)
Judge holding secret trust fund hearing(12/3)
Judge holding secret hearings (12/4)
New: Security report released (12/4)
Report reveals attacks on tribal, Indian trust (12/5)
No Trust: Hacking the Department of Interior (12/5)
Judge cuts trust fund access(12/5)
Judge orders Interior to cut Internet access (12/6)
Norton delaying trust fund report (12/6)
Security contempt charge added (12/6)
DOI Shutdown: 'We're Hurting Tribes' (12/7)
From the top, a gamble in trust (12/7)
Judge holds security hearing (12/8)

Today on Indianz.Com:
Norton attacks court monitor (12/10)

Relevant Links:
Indian Trust, Department of Interior - http://indiantrust.doi.gov
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