Facing contempt, Norton attacks court monitor

MONDAY, DECEMBER 10, 2001

With contempt proceedings starting this week, Secretary of Interior Gale Norton laid the groundwork for her defense on Friday, launching her biggest attack on a trust fund watchdog she once welcomed into her department.

In a lengthy 200-plus page document, Norton fired off numerous challenges to court monitor Joseph S. Kieffer III, whose reports have largely formed the basis for the contempt charges she now faces. She leaves no stone unturned, objecting to almost every finding, statement and conclusion voiced in four reports and a supplemental Kieffer has issued since being appointed to his position in April.

With U.S. District Judge Royce Lamberth ready to sanction Norton and Assistant Secretary Neal McCaleb for their handling of the trust assets of 300,000 American Indians, the missive represents the Bush administration's attempt to undermine Kieffer's credibility. Presented on behalf of Norton by the U.S. Attorneys office in Washington, D.C., objections are raised on seven major grounds, including alleged hearsay and alleged misinterpretation of government positions and documents.

But were it not for Lamberth, Norton wouldn't have a chance to challenge Kieffer at all. In what has been cited as a major misstep by her old defense team, the Department of Justice's environmental division failed to raise significant objections to the first three Kieffer reports, instead saying they "reserved" the right to do so at a future date.

Only when the U.S. Attorneys office took over the case did Kieffer's final two documents see any challenges. Mark Nagle, the office's civil division chief, then argued Norton should be able to question the first three reports -- even though she had long missed the 10-day deadline to do so.

According to Nagle, the reports contain "a substantial number of facts [that] are deemed established through a process that did not subject them to cross-examination, through a process that included the gathering of statements not under oath, through a process that has led to the preparation of reports that contain hearsay and perhaps in some respects multiple hearsay."

Lamberth had doubts about the argument. During a status hearing held November 30, he questioned why he should let Norton violate yet another one of his court orders, this time the one which established the court monitor.

Of the disputed findings, Lamberth said "they're only beyond the reach because the Department, the defendants, purported to reserve to themselves a right they didn't have."

"What does that mean to a court?" Lamberth continued. "You think any party can just say . . . 'We're not going to comply with your order?'"

Despite his skepticism, Lamberth eventually ceded to the request and signed two orders last week to allow challenges. But by then, he had already indicated the strategy could backfire on Norton because it paves the way for an even more embarrassing trial.

"I can give them their worst nightmare," he said. "[Norton] says you prove every sentence, so I am going to let the plaintiffs prove every sentence."

To attorneys representing 300,000 Individual Indian Money (IIM) account holders, the fact that they must now prove Kieffer's reports down to every word is less a challenge than it is a playground. They plan on calling no less than 30 witnesses to the stand in an attempt to prove Norton and McCaleb should be held in contempt.

First up, said the plaintiffs, is Tommy Thompson, the Principal Deputy Special Trustee in the Office of the Special Trustee for American Indians. Attorney Dennis Gingold believes this career bureaucrat "is a credible witness who speaks without overstating positions."

"We believe he will cast a lot of light on what has occurred during the course of the period of time that this Court has identified in the order," said Gingold.

Keith Harper, the Native American Rights Fund attorney on the case, added that Thompson has knowledge of almost every one of the five contempt charges laid against the Interior. It was Thompson who opposed a Federal Register process regarding a historical accounting that makes up two charges, Harper said.

Harper also said Thompson, as a trust reform project manager, has direct knowledge of the reporting issues that make up two other citations of contempt.

The contempt trial starts today in federal district court in Washington, D.C., at 10 a.m. It is expected to last several weeks.

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 IIM trust.

Today on Indianz.Com:
Norton set for contempt trial (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