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FRIDAY, JANUARY 11, 2002

Attorneys for Secretary of Interior Gale Norton launched the government's long-awaited contempt defense on Thursday with the unsurprising request that the major charges against her and Assistant Secretary Neal McCaleb be dismissed.

Even though the Department of Interior never informed a federal judge that a $40 million trust accounting system failed its first round of tests, there is no evidence a "fraud" was committed on the court, asserted Scott Harris of the U.S. Attorney's office in Washington, D.C. And while the department has yet to begin an accounting of the assets of 300,000 American Indians, top officials aren't in violation of a court order which required them to do so, he continued.

"We don't believe the plaintiffs have met their burden of proof," said Harris. "Their burden of proof has to be established . . . by clear and convincing evidence."

Along with civil division chief Mark Nagle, Harris said that 15 days of testimony by three witnesses "cannot be the basis for contempt." Although "delays were to be expected" in the fulfillment of the Interior's trust obligations, added Nagle, there was never an "intent" to mislead anyone -- even if top officials failed to reveal their actions to Congress, the courts or Indian Country.

"Does that silence constitute fraud?" asked Nagle.

While reserving judgement on the move to drop the charges, U.S. District Judge Royce Lamberth didn't seem impressed by the government's offering. When Harris said there was no evidence the Clinton administration intentionally sought to hide the true status of the Trust Asset and Accounting Management System (TAAMS) in the fall of 1999, Lamberth questioned the proposition.

"Then you think it's just an accident that it didn't happen?" shot back Lamberth.

And when Nagle argued that the Interior's decision to hold nationwide consultation sessions on an historical accounting was made in "good faith" while an appeal -- ultimately rejected -- was being pursued, Lamberth appeared skeptical.

"I'm trying not to interrupt you," said Lamberth.

With that, the government called to the stand its first witness. John Snyder, an employee of the Interior's chief information office, was questioned about his role in the development of TAAMS, an information technology project that has seen numerous setbacks and forms the basis of two contempt charges.

But like his boss Daryl White, who testified on behalf of the plaintiffs, Snyder said his role was of an advisory nature. He said he became involved in the project at its early stages but had no "voting" authority.

Nevertheless, Snyder acknowledged that the initial test of the software's capabilities in September 1999 wasn't a success. "The process didn't go like it was supposed to," he said.

"It tends to make doubt," he continued, "and we didn't need that."

However, just two months later, he claimed further tests showed promise. "It was much improved," he said of results obtained around Thanksgiving.

Just weeks later, Lamberth issued his landmark decision which ordered the government to conduct an historical accounting, to provide quarterly status updates and to complete a plan on how they would come into compliance with a 1994 trust reform law. The government's alleged failure to live up the order is the basis of four contempt charges against Norton and McCaleb.

A fifth regarding computer security was added last month after a court investigator showed that hackers could easily break into the Individual Indian Money (IIM) trust.

Testimony continues today with Snyder expected to resume the stand at 10:30 a.m.

Relevant Links:
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Indian Trust: Cobell v. Norton - http://www.indiantrust.com

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