Like a lot of voters and taxpayers, those of us suing the Secretary of the Interior over the Individual Indian Trust fiasco are disgusted by politicians or bureaucrats who steadfastly refuse to accept responsibility for their own failures.
But in the past two weeks, it's as if Interior Secretary Gale Norton just can't help herself, even when her lack of accountability is driving her off a legal and policy cliff. This is disgraceful for a fiduciary.
The environment in which Ms. Norton finds herself, as far as the Individual Indian Trust is concerned, is as follows: Individual Indians are furious. Congress is openly frustrated and angry. So are Indian tribes throughout the West. And so is the federal judge presiding over the trust litigation and Norton's first contempt trial. The judge has expressed disbelief at her repeated failure to understand her trust duties and has hinted that soon she is going to take a long walk on a short plank.
It might be a good time for Norton to show sincere contrition and finally accept responsibility for her failure to clean up the trust and act like a real trustee, not just the vacuous politician that she appears to be. But don't hold your breath.
Here's a small but telling example. In a recent op-ed in Indian Country Today (Feb. 27), Norton subtly shifted the blame for the shamefully mismanaged, multi-billion dollar Individual Indian Monies (IIM) trust from herself to her thousands of nameless, faceless employees.
"As trustee," she says, "the department is responsible for about 11 million acres of land owned by individual Indians?"
Wrong. The trustee responsible for the IIM trust is the United States of America. That duty is delegated to the Secretary of the Interior. She personally is responsible for the trust mess, not "the department."
(In the same vein, she writes that "the High-Level Implementation Plan ? has failed to accomplish significant progress," and "The Trust Asset and Accounting Management System ? has yet to achieve many of its objectives.")
Norton's fudging may sound minor, but it is symptomatic of almost six years of deception and shameless side-stepping by the Interior Secretary in the IIM trust lawsuit ? both Norton and her predecessor, Bruce Babbitt. In fact, the High-Level Implementation Plan was a fraud; her subordinates testified to that under oath and she knows it.
"It makes you wonder why I'm sitting here," said U.S. District Judge Royce C. Lamberth wearily.
On the final day of Norton's contempt trial on Feb. 21, Lamberth said that as a result of both Babbitt's and Norton's repeated and continuing deception, he had been "duped." It was another telling example.
On Dec. 5, Lamberth had ordered Interior to unplug from the Internet all IIM trust-related computers. He was forced to do so because ? notwithstanding material misrepresentations to the contrary by both Norton and Babbitt ? the systems have no security to protect individual Indian trust funds and trust data. He ordered Interior to install adequate security, including firewalls and intrusion detection software that any financial institution must have for handling billions of dollars in trust funds. In addition, Judge Lamberth instructed Norton to get the trust checks out ASAP and provide a temporary solution to do that without delay.
Unfortunately, Secretary Norton seized the opportunity to drag her feet for nearly three months. No computers meant no IIM trust checks for thousands of Indian trust beneficiaries, many of whom are among the poorest people in this country. By stringing along the beneficiaries, the Secretary wanted to punish the trust beneficiaries for challenging her authority and make the judge to look as if he had over-reached.
In late February, a Justice Department lawyer told Lamberth the problem had largely been fixed. "You should know the checks have gone out to the Indians ?. To the extent you've been told that checks have not gone out, that's not true," the attorney said.
Later the same day, Tex Hall took the witness stand. A North Dakota rancher, Hall is a tribal leader and president of the National Congress of American Indians, a major tribal organization. Hall said that IIM checks, in fact, had not gone out, prolonging serious hardship in Indian country. People who rely on IIM payments cannot pay their bills.
"I mean, after 60 days, the debt collectors start coming," Hall said. "After 90 days, the lawyers start coming; and that's the case that the people are put in right now."
"So," said Judge Lamberth, "if it was represented to me that all the grazing checks have gone out, you would say that's not true."
"I would say that is definitely not true," said Hall.
Lamberth said later he was "dumbfounded" by Hall's testimony and the government's mendacity. "If, on this 29th day of a contempt trial, I'm still having to play word games with the government to find out the facts, it's beyond belief how the Court ever gets control over this matter."
But as the legal and Congressional pressure mounts, Norton is resorting to word games more, not less. Hall testified that a tribal leaders' task force he heads is "100 percent opposed" to Norton's plan for reorganizing her trust responsibilities. Norton says she is "optimistic."
Actually, Hall said, after a recent three-day retreat with Norton, he too was duped by the Secretary because he believed, wrongly, that Norton genuinely was listening to the tribal leaders.
"And so we left that Sunday evening on a good note," he said, "and matter of fact, I even ? I even ? I and Chairman Elvin Windy Boy from Chippewa Cree offered a pray out there, because we knew that hundreds of years ago there were many Native Americans that probably died and that probably fought the cavalry in this country out there, and in our own spiritual way we called on the Creator to help bless the grounds and our working relationship that we were there. So we included all of the Department's officials. We all did a prayer circle and we held it right on the grounds in Shepherdstown [WV] to make sure we had a good meeting, we'd leave in a good way, and I thought we accomplished that."
So, Hall said, "I was really disheartened to hear the Secretary say" ? when she testified to Congress two days later ? " that her plan ? was superior."
Regrettably, nothing has changed. The Interior Secretary continues to make more broken promises; individual Indian trust funds and critical records continue to be lost, stolen or destroyed. Individual Indians continue to suffer because the Interior Secretary believes she is above the law. Personal penalties for contemptuous conduct and a receiver appointed by Judge Lamberth may be the only solutions for this nightmare.
Elouise Cobell, Blackfeet, is the lead plaintiff in the class action lawsuit over Interior Department mismanagementof individual Indian trust accounts.