Judge sets in for long haul on trust fund

FROM THE ARCHIVE

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FRIDAY, FEBRUARY 22, 2002

The federal judge presiding over the trust fund class action heard closing arguments in Secretary of Interior Gale Norton's contempt trial on Thursday, expressing frustration that the long-running debacle may never end.

Saying he has been repeatedly misled by government officials and their attorneys, U.S. District Judge Royce Lamberth spent the day questioning actions taken by both the Bush and Clinton administrations. Whether it was former Secretary of Interior Bruce Babbitt's failure to inform the court of failures associated with a $40 million trust accounting system or Secretary Gale Norton's handling of the Internet shutdown, he was clearly disturbed by the way the drama has unfolded.

In fact, Lamberth often used that word -- "disturbed" -- to describe his reaction to the government's behavior over the years. The other was "duped," a theme repeated throughout the proceedings as he reached back to the initial ruling that was supposed to spur the Department of Interior into action.

"It's beyond belief how the court ever gets control," he said.

To attorneys representing 300,000 American Indian beneficiaries whose $500 million in annual assets are at stake, the only way to end the "nightmare" was to appoint a receiver. Dennis Gingold said Lamberth was the only person who could fix the trust.

"We have a record that is beyond question," he said. "How can the Department of the Interior continue to defend the indefensible?"

Mark Nagle, chief of the civil division of the U.S. Attorney's office in Washington, D.C., attempted to do just that. In a closing argument that lasted a little more than an hour, he said there lacked "clear and convincing" evidence Norton should be held in contempt on five specific charges.

Included among the specifications is the failure to move forward with an historical accounting of the Individual Indian Money (IIM) trust. In his December 1999 ruling, Lamberth ordered the government to account for the funds, a decision upheld on appeal.

But Nagle challenged whether Lamberth forced the government to do anything at all. "Non-compliance with it may be inappropriate," he said, "but it is not contempt."

Nagle also acknowledged reports on the status of trust reform haven't been a "model of clarity [and] completeness." And while the Trust Asset and Accounting Management System (TAAMS) has seen numerous setbacks, he asserted the software isn't a "total failure."

"It is not a perfect system but it has not likewise been a complete failure," he said.

Lamberth appeared especially dismayed here, saying former TAAMS project manager Dom Nessi and others "knew" the system wouldn't live up to its expectations. Yet he was never told of problems before he made his landmark decision.

"They let me rule in ignorance," he charged.

So when he finally discovered -- three months later in March 2000 -- that the system was becoming an entirely different monster, he was flabbergasted. "I knew TAAMS was never going to work the way they told me," Lamberth said.

"That's when I knew I had been duped," he said. "That's when I knew this case was going to go on forever."

It is not known when Lamberth will issue his findings, which could include personal fines for Norton and Assistant Secretary Neal McCaleb. He has also been asked to consider jail time for the top officials.

To that end, the plaintiffs and the government will submit their proposed findings and conclusions next week. Each will have a chance to respond before Lamberth takes the case under consideration.

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