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Judge puts Norton in contempt over Trust Fund lawsuit

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WASHINGTON ? 'I may have life tenure, but at the rate the Department of Interior is progressing that is not a long enough appointment,' U.S. District Court Judge Royce C. Lamberth wrote Sept. 16 in a searing finding of civil contempt of court against Interior Secretary Gale Norton and Assistant Interior Secretary ? Indian Affairs Neal McCaleb.

The ruling, a spin-off from the Indian Trust Fund class action suit, dripped with years of frustration. In a companion order in the main case, refusing Interior's request to dismiss a court-appointed Special Master, Lamberth blasted Interior Deputy Secretary J. Steven Griles, the point man on Trust reform, and his team of Justice Department lawyers with adjectives (mendacious, meretricious) that boiled down to calling them deceitful.

Although he stopped short of a formal charge of perjury, he left open the possibility of further sanctions, including dismissal of the Justice Department defense team.

Although overshadowed by the ferocious rhetoric in the contempt ruling, this second order raised the issue of outside control of Interior's efforts to clean up the Trust Fund disaster, which Lamberth called 'the gold standard for mismanagement by the federal government for more than a century.' Members of the Tribal Leaders Task Force on the Trust Fund are calling for an outside committee with real power to monitor the clean up. They say that Griles and the Justice Department have been the strongest opponents of the idea.

Lamberth's ruling gave strong support to his Court Monitor Joseph F. Kieffer, III. He dismissed Interior's complaints about Kieffer's alleged bias, saying of one, 'it would be farcical if it were not so cynical,' and gave the Monitor additional powers.

In the contempt ruling, Lamberth said that Norton and McCaleb had 'committed a fraud upon the court' on five issues central to resolving the Trust Fund debacle. The ruling followed a 29-day bench trial spun off from the Cobell v. Babbitt class action charging Interior with the mishandling of massive funds, possibly as much as $10 billion, owed to at least 300,000 Individual Indian Monies (IIM) account holders and further sums owed to tribes.

Although Norton declined to discuss details of the case in an earlier extended interview with Indian Country Today (see page A-2), after the ruling McCaleb defended Interior's performance in an interview with ICT's Southwest Bureau Chief Valerie Taliman, at the Tribal Economic Summit in Phoenix, Ariz.

'Everybody knows these problems existed prior to this administration,' he said. 'The previous administration was held in contempt with some of the same players at Interior. If you look at the specifics of the contempt charges, four of the five all happened in the previous administration. The fifth had to do with IT [Information technology] security and that did happen in this administration. We were working on it but apparently not fast enough.

'So my metaphor for this is that we had a truck that would not pass safety inspection and it got driven into the next administration. We're just the ones who got the ticket.'

Norton also had defenders in Congress. U.S. Rep. J.D. Hayworth, R?Ariz., co-chair of the Congressional Native American Caucus, praised Norton's 'extraordinary attention' to the 115-year-old problem and called the ruling 'misdirected, unfair and untimely.'

Lamberth laced his contempt ruling with extraordinarily strong language. 'In February of 1999,' he wrote, 'at the end of the first contempt trial in this matter, I stated that 'I have never seen more egregious misconduct by the federal government.' Now, at the conclusion of the second contempt trial in this action, I stand corrected. The Department of the Interior has truly outdone itself this time.

'The agency has indisputably proven to the Court, Congress, and the individual Indian beneficiaries that it is either unwilling or unable to administer competently the IIM trust. Worse yet, the Department has now undeniably shown that it can no longer be trusted to state accurately the status of its trust reform efforts. In short, there is no longer any doubt that the Secretary of the Interior has been and continues to be an unfit trustee-delegate for the United States.'

The case has been before Judge Lamberth in the U.S. District Court for the District of Columbia since 1996, and he previously issued contempt orders against Clinton Administration officials Bruce Babbitt, then Secretary of the Interior, and Kenneth Gover, his Assistant Secretary-Indian Affairs.

The decision leaves open the question of future control of the trust accounts. Rather than put them into receivership, as class-action plaintiff Elouise Cobell has requested, for now Judge Lamberth promoted court monitor, Joseph S. Kieffer III, to the role of special master-monitor with added powers to enforce court orders. Kieffer has been court monitor since April 2001, issuing scathing reports on Interior's progress and coming under fire from Norton's attorneys, who called for his removal.