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TUESDAY, JUNE 3, 2003

Federal statutes trump common law trust standards, an expert for the Bush administration said in federal court on Monday.

John H. Langbein, a Yale University law professor, testified on the first full day of the federal government's defense in the ongoing Indian trust fund trial. In the private sector, the problems associated with the Department of Interior's system would not be tolerated, he told the court.

"Not only would the OCC shut down the trust," he said, referring to the Office of the Comptroller of the Currency, the federal agency that regulates the nation's banks, "so would the shareholders."

But the unique attributes of the Indian trust preclude common law standards from always being applied, Langbein testified. Since the federal government is a sovereign, it has the power to change the trust without regard for negative effects on tribal or individual beneficiaries, he said.

"When you have the United States, in legislation, insisting on something which is not necessarily in the best interests of the beneficiaries, the United States prevails," he opined.

For that reason, Langbein said, proposals to impose common law trust standards on the Interior can't be squared with existing law. In passing various statutes, including the Dawes Act of 1877 and the American Indian Trust Reform Act of 1994, Congress has modified the trust.

"Congressional action prevails over the more general principles of the trust," he said.

Even the Freedom of Information Act (FOIA) has altered the federal government's trust obligations, Langbein asserted. Citing Department of the Interior v. Klamath Water Users Protective Association, a 2000 Supreme Court case, he said the trustee's duty to protect Indian beneficiaries was limited by the right-to-know law.

When Congress makes appropriations, the trust is also modified, he told the court. By not funding the Interior for certain activities, such as an historical accounting, lawmakers are effectively terminating the trust until they decide -- if at all -- to restore it, he said.

The testimony brought questions from U.S. District Judge Royce Lamberth, who is handling the seven-year-old case. Just last week, he rebuked Congress for interfering with the lawsuit and yesterday, he recalled a legislative attempt to limit an historical accounting of the trust from 1985 to the present.

"That is the equivalent of Congress saying, 'We hereby suspend that activity,'" said Langbein.

The standards that apply to the trust have been a key concern of the plaintiffs in the case. Without clear guidelines, they believe the system, plagued by a century of mismanagement, will never be fixed.

Tribes are also lobbying Congress to enact trust standards, an effort the Bush administration opposes. The Supreme Court's recent decisions in the Navajo Nation and White Mountain Apache Tribe cases have prompted renewed debate about the extent of the trust relationship.

Langbein is set to return to the stand today to continue cross-examination by the plaintiffs, who sought to disqualify his testimony. Mark Brown, an attorney for the plaintiffs, said law professors are routinely disqualified because they tend to offer conclusions of law, but Lamberth rejected the request.

Special trustee Ross Swimmer is slated to testify once Langbein is off the stand but he is currently in Tulsa, Oklahoma, attending to his wife, who had a medical emergency, a Department of Justice attorney said. Swimmer is expected to return to Washington, D.C., sometime this evening but his schedule is not definite.

Associate Deputy Secretary Jim Cason attended the proceedings yesterday. He is also expected to be called as a witness for the government.

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust

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