Government punished for stonewalling on trust fund

MONDAY, APRIL 1, 2002

A federal judge last week sanctioned the federal government for its handling of the Indian trust fund case but held off on calling Secretary of Interior Gale Norton and others to trial for alleged retaliation against a Bureau of Indian Affairs whistleblower.

U.S. District Judge Royce Lamberth on Friday issued three separate orders addressing unresolved issues in the Cobell class action. The lawsuit has dragged on for more than five years with a number of claims filed by attorneys represented 300,000 American Indians still pending.

Those attorneys can recoup some of the costs associated with arguments advanced during the Clinton administration, Lamberth ruled. He ordered the government to pay 75 percent of fees racked up responding to motions a court appointed official has characterized as "patently frivolous."

In one instance, Department of Justice attorneys filed a motion whose main points had already been rejected twice by the court. In another, they sought to limit the amount of information produced in the case by citing laws they knew to be irrelevant.

The trust fund plaintiffs took the actions as a sign of stonewalling. So did special master Alan Balaran, who issued two legal opinions finding the government's claims to be "groundless" and to have contributed to "unnecessary delays."

Lamberth sided with the plaintiffs and his official and noted that the government failed to challenge Balaran's claims. Although Norton has since fired from her defense the attorneys responsible for the transgressions, the pattern has repeated itself in recent months with respect to court monitor Joseph Kieffer and a scathing information technology report authored by Balaran.

Balaran's opinion regarding a third matter addressed last week may come back to haunt Norton as well. Although Lamberth refused to issue an order to show cause why Department of Interior officials should not be held in contempt for retaliating against Mona Infield, an employee who has been on home duty for two years since speaking out on the case, he left open the door for future proceedings.

Dennis Gingold, an attorney representing the Indian plaintiffs, said yesterday Infield's status has not be resolved. In the past, he has rejected offers from Norton to find a replacement job for the $80,000-a-year computer supervisor and said no new deals have been made.

"To our knowledge, there is no offer from the Interior Department," he said.

Under a May 1999 court order, the government is prohibited from making threats or taking retaliatory action against employees who provide information or testimony in the case. Former chief information officer Dom Nessi, former deputy commissioner Hilda Manuel and other senior management participated in sending Infield to her home in Albuquerque, New Mexico, after she challenged the progress of trust reform.

Against claims by the Interior that it has treated Infield fairly, Balaran recommended Lamberth hold contempt proceedings to address the issue. In a February 2001 opinion, he wrote there was "sufficient evidence" to show department officials violated the anti-reprisal order.

The order has been the subject of numerous disputes. Nearly nine months after Balaran reemphasized the need to protect the rights of employees and in the height of the anthrax scare, Deputy Secretary J. Steven Griles mailed the court order to the homes of every Bureau of Indian Affairs and Office of Special Trustee employee, some of whom were directed to burn the letter.

The trust fund plaintiffs have 30 days to submit to the court a report of fees owed.

Get the Orders:
Sanctions for 'groundless' motion (3/29) | Sanctions for rejected arguments (3/29) | Retaliation against Mona Infield (3/29)

Relevant Links:
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