Judge rejects 'improper' request by Norton

WEDNESDAY, FEBRUARY 6, 2002

A federal judge on Tuesday scolded Secretary of Interior Gale Norton for violating her trust obligations to Indian beneficiaries by seeking to release confidential financial data to Congress and the American public.

In a brief yet tersely worded order, U.S. District Judge Royce Lamberth said he would not allow Norton to make public a report containing account balances and other personal information of Indian account holders. Doing so would violate federal privacy laws and a protective order government lawyers insisted upon more than four years ago, he said.

But pointing to what appeared to be a new low in his lack of patience with the government, Lamberth said the request itself was a "violation" of Norton's most sacred trust duties.

"Secretary Norton has demonstrated once again her total inability to understand the role of a trustee in relation to a beneficiary by seeking to release to Congress -- knowing it will be made public -- the confidential financial information of these beneficiaries," Lamberth wrote.

The order comes on the eve of a Congressional hearing during which Norton was set to release the document at the center of the debate. In a January 15 letter, Rep. Jim Hansen (R-Utah), chairman of the House Resources Committee chairman, asked for the report, which the government claims is a reconciliation of the accounts of four of the five named plaintiffs in the Individual Indian Money (IIM) class action.

As such, lawmakers are interested in hearing whether the effort was successful and how it might relate to an overall historical accounting for 300,000 beneficiaries. Without the report, Marnie Funk, a spokesperson for Hansen, said it was premature to tell how the committee's oversight into the trust fund would be affected.

"It's hard to say," Funk said in an interview yesterday. "Not knowing what's in the report, I can't speculate."

Lamberth did leave open the possibility for Hansen to file a motion to obtain the document. Funk said the committee is still analyzing its options and provided a statement listing "excellent reasons" for wanting the report, calling it "the most detailed analysis in existence."

Even here, though, there is dissent, as the committee's ranking member, Rep. Nick Rahall (D-W.Va.), opposed the Republican request. In a letter sent to Norton on Monday, he warned she would be breaching her trust duties, a position reinforced by Lamberth.

Special Trustee Tom Slonaker, the top trust official within the department, declined to state in an interview his position in the dispute. But he did question whether the effort, which was prepared for litigation purposes at the behest of the Department of Justice team Norton fired last fall, was representative of the monumental task facing the department.

Pointing out that documents were collected on approximately 40 individuals, a far cry from the entire IIM class, he said: "That's a pretty limited sample."

The government spent $20 million to compile the records of the four named plaintiffs and their predecessors. Accounting firm Ernst & Young was then paid about $1 million to analyze the information.

According to court documents, Ernst & Young created "virtual ledgers" for the IIM plaintiffs. They include: Elouise Cobell, a member of the Blackfeet Nation of Montana; Mildred Cleghorn, former chairwoman of the Fort Sill Apache Tribe of Oklahoma; Louis LaRose, member of the Winnebago Tribe of Nebraska; and Earl Old Person, longtime Blackfeet tribal chairman.

The government claimed it could not find records between the year 1915 and 1999 for plaintiff Thomas Maulson, a member and longtime leader of the Lac du Flambeau Band of Lake Superior Ojibwe of Wisconsin.

The House Interior Appropriations subcommittee has also asked for the report. Chairman Joe Skeen (R-N.M.), who is retiring, and ranking member Norm Dicks (D-Wash.), who last year criticized the state of trust reform at an oversight hearing, wrote their own letter to Norton.

Relevant Documents:
Order on Motion to Modify Protective Order (2/5) | Republicans React to Judge's Order (2/5) | Rahall Letter Opposing Request for Report (2/4) | Hansen Letter Asking for Report (1/15)

Relevant Links:
Ernst & Young - http://www.ey.com
House Resources Committee - http://resourcescommittee.house.gov
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Trust Reform, NCAI - http://130.94.214.68/main/pages/
issues/other_issues/trust_reform.asp