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Government accused again for breech of trust

WASHINGTON - Just days after Interior Secretary Gale Norton issued new directives for management of tribal trust funds, a court appointed official in the on-going case of Cobell vs. Norton accuses the federal government of failing in its plan to resolve the trust funds problem and intentionally misleading the court and American Indian beneficiaries.

In a report made public by the judge in the case, federal monitor Joseph Kieffer III is highly critical of Secretary Norton and former Secretary Bruce Babbitt. Kieffer says the sampling plan originally proposed under Babbitt to account for missing information was doomed from the beginning, but was still endorsed by Secretary Norton despite what he characterized as "little or no research" on whether the plan complied with the court's orders in the case.

Kieffer said that after a year and a half of promises that the statistical sampling project was progressing "the status of the actual accounting, with few exceptions, was, for lack of a better term, at ground zero."

Kieffer was appointed by the court to monitor the government's progress and file written reports of his findings over the next year. In the judge's order it was noted that both the plaintiffs and the government had consented to the appointment. Kieffer's appointment followed the public disclosure in February of a memo by senior BIA official Dom Nessi saying that trust reform efforts are "imploding." The contents of the memo contradicted the reports of progress issued by Interior and may have provoked the court.

In December 1999, Judge Lamberth ruled that the American Indian plaintiffs had a judicially enforceable right to an accounting of their money and that the secretaries of Interior and Treasury were in breach of their trust responsibilities to American Indian account beneficiaries. Judge Lamberth kept jurisdiction over trust reform efforts for five years and ordered Interior officials to file quarterly reports on their progress.

Instead of complying with the court's order, Kieffer said Babbitt took shortcuts and only chose a statistical sampling of the accounts and not a full accounting. Kieffer also accuses Interior of misleading the court and American Indian beneficiaries. Kieffer said that officials within Interior came up with the sampling plan before they scheduled a series of meetings to seek the views of American Indian beneficiaries on how to resolve the issue. Kieffer said that the meetings were a sham and were held only to make it appear that work was progressing.

"The hard truth is that the Federal Register notice was never meant to be a means for determining how to conduct the accounting based on the IIM account holders' opinions," Kieffer said. "One thousand Indians traveled countless miles to register their opinions in the consultative or information-gathering process commenced by the Federal Register notice for no reason."

Lawyers for the American Indian plaintiffs in the case say that they are seeking a contempt order for Babbitt and Norton following Kieffer's revelations.

"This report makes the case for a contempt order," said Keith Harper, one of the plaintiffs' attorneys. "You can't just do something like that when Indian people have spent their hard earned money getting to these meetings."

Interior declined to comment on the report, however, Secretary Norton just issued two secretarial orders aimed at resolving some of the on-going problems with American Indian trust reform. One order provides additional authority to the Special Trustee for American Indians, while the other creates a new "Office of Historical Accounting."

Judge Lamberth has said he would consider personal fines and confinement for government officials if they were found in contempt again.