Bush administration calls for end in Cobell case
"The brief charges that Lamberth and his officials ... have taken too many over-reaching actions, including holding Norton and other Cabinet members in contempt..."
April 9, 2004
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In one of his first major speeches, new Bureau of Indian Affairs head Dave Anderson told tribal leaders that the Cobell trust fund lawsuit has been a "good thing" for his beleaguered agency.
"A lot has happened because of Cobell," Anderson said at the National Congress of American Indians in February.
But in a brief filed with a federal appeals court this week, the Bush administration said that good thing must come to an end. Attorneys for Anderson and Interior Secretary Gale Norton, who are named defendants in the eight-year-old case, asked for the lawsuit to be removed from the court system altogether.
"This case has lost its moorings," the administration wrote on Tuesday.
The request came in a challenge to an order U.S. District Judge Royce Lamberth issued last September. In a 270-page opinion, the judge said it was impossible to let the Interior Department manage the assets of an estimated 300,000 individual Indians without court oversight.
The department, he wrote, "has an unprecedented opportunity within its grasp: to take real steps now to redress some of the harm that has been inflicted against some of this nation's most impoverished citizens, and to take real measures that will improve the quality of their lives."
The administration's brief to the D.C. Circuit Court of Appeals argues that Norton has been doing just that since she took office three years ago. Government attorneys cite the completion of historical accounting statements for more than $100 million per capita and judgment funds held in trust for individual Indians. The accounting is the central issue in the case.
But there is little mention of work done on behalf of hundreds of thousands of Indian landowners whose oil, gas, grazing and other royalty payments make up the bulk of the Individual Indian Money (IIM) trust. Since the early 1900s, these lands have generated at least $13 billion in revenues. None of it has been accounted.
What small progress has been made on the land-based accounting is attributed to Congress. The brief centers on last fall's bitter fight over a rider in the Interior appropriations act that delayed the massive project for at least a year pending further Congressional action.
Indian Country united in opposition to the measure, which was inserted over the objections of many members of Congress. The rider barely passed in the House by 11 votes in October.
The government's attorneys now say it is solid basis for an end to Judge Lamberth's -- or any other judge for that matter -- role in the management of the IIM trust. "Whatever function continuing district court jurisdiction might have been thought to serve in 1999 has vanished five years later," the brief declares.
Lamberth's handling of the case also plays a significant part of the administration's appeal.
The brief charges that Lamberth and his officials -- two court masters who have been forced off the case amid controversy over their high-profile roles -- have taken too many over-reaching actions, including holding Norton and other Cabinet members in contempt, to ignore.
"In short, even if it were not otherwise clear that no basis for continuing jurisdiction exists, the experience of the past five years demonstrates that the public interest would not be served by a further extension of judicial oversight," the brief states.
That attitude drew criticism from Sen. Tom Daschle (D-S.D.), who represents about 40,000 account holders in South Dakota. "The department's suggestion that it has the Indian trust management problem in hand, thereby rendering the Cobell lawsuit moot, does not pass the laugh test," he said on Wednesday.
The brief isn't the first time the government has sought to do things on its own. The Clinton administration took the stance that Interior didn't have to provide an accounting of the trust at all, or if one was required, it would end at 1994, the date of the American Indian Trust Fund Management Reform Act. The administration also asked the appeals court to end Lamberth's jurisdiction.
Just a couple of weeks after Norton took office in February 2001, that line of defense was rejected by the D.C. Circuit in a unanimous decision. The 1994 law requires an accounting of "all funds, irrespective of when they were deposited," the court wrote.
In addition to Lamberth's orders on the accounting and trust reform, the Bush administration is challenging his decision to order a shutdown of the Interior's Internet connections. The systems were put back online by the D.C. Circuit pending resolution of the dispute.
The court battles continue as attempts to provide a resolution to the case advance. This week, the Cobell plaintiffs praised the selection of two mediators. Retired federal judge Charles B. Renfrew and professional mediator John G. Bickerman were announced on Monday.
Appellate Court Briefs in Cobell v. Norton (Department of Justice)
Indian Trust: Cobell v. Norton - http://www.indianz.com/myredir.asp?url=http://www.indiantrust.com/
Cobell v. Norton, Department of Justice - http://www.indianz.com/myredir.asp?url=http://www.usdoj.gov/civil/cases/cobell/index.htm
Indian Trust, Department of Interior - http://www.indianz.com/myredir.asp?url=http://www.doi.gov/indiantrust/
Bush administration turns to Congress on trust (04/04)
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