WASHINGTON, D. C. - Damaging testimony continues to batter Secretary of Interior Gale Norton and BIA head Neal McCaleb in their contempt trial over trust reform in the case of Cobell v. Norton.
A senior official with the Department of Interior spent most of the first week on the stand testifying that Interior and the Department of Justice openly disobeyed a federal judge's ruling that the government provide a full accounting of individual Indian trust funds.
Thomas M. Thompson, who currently serves as Deputy Special Trustee in the Office of the Special Trustee, told the court that after Judge Royce Lamberth ruled in 1999 that the federal government provide a full historical accounting of trust funds, government officials and lawyers ignored the court and began plans for a statistical sampling method.
"They understood I ordered it, but they just didn't want to comply with it," said Judge Lamberth.
"They felt you overreached your authority, your honor," Thompson replied.
Thompson said Interior and Justice disagreed over interpretations of the decision, but ultimately decided that they would not comply, hoping for an appeal of the ruling. An appeals court upheld Lamberth's decision for a full accounting this February.
Following the Appeals Court decision, Secretary Norton publicly announced her support for the statistical sampling plan. Thompson said many in his office voiced concerns and did not believe that sampling complied with the court's ruling.
The government appealed Judge Lamberth's initial decision because the Justice Department believed that Lamberth's ruling went beyond the scope of the law and the intent of Congress. The government claimed that the judge overreached his authority when he ordered a full account of Indian trust funds and appointed himself as the overseer of trust reform efforts.
Thompson testified that Interior arbitrarily limited any accounting to post 1994, even though the Judge ordered an accounting for all funds over the 120 year period that the government has handled the trust.
In 1994, Congress passed the Indian Trust Fund Management Reform Act in an attempt to begin to rectify many long-standing problems with trust assets. The 1994 Act, among other things, created the Office of the Special Trustee for American Indians. Attorneys for the government argued that the law was unclear before 1994 and that the government should be able to move forward with reforms without judicial oversight.
The 1994 law intended the Special Trustee to create an accountable system and implement reforms necessary for the proper discharge of the Secretary's trust responsibilities to Indian nations and people. Since its creation, however, the office has encountered numerous obstacles in resolving myriad levels of mismanagement. The first Special Trustee, Paul Homan, resigned in protest of what he said were attempts to obstruct his efforts to reconcile trust accounts.
The appeals court said that during the initial trial in 1999, Lamberth heard substantial evidence that the government's attempts at reform were " a day late and a dollar short." The court also rejected the government's argument that the 1994 law limited its responsibility. The 1994 law requires an accounting for "all funds," the court said. "All funds means all funds..."
Thompson also testified that Interior failed to inform the court, as ordered, that the computer system set up to handle trust reform was not working. He said he never actually saw the computer system work.
"The data clean-up method needs a total replanning," said Thompson.
Future witnesses at the trial are expected to testify about allegations by a court monitor and investigator appointed by Judge Lamberth to watch the government's progress in trust reform. Their reports accuse the federal government of failing in its plan to resolve the trust funds problem and of intentionally misleading the court and Indian beneficiaries.
Marcella Giles, an attorney who represents individual Indian account holders, followed Thompson on the witness stand. Her testimony deals directly with the government's treatment of account holders and is highly critical of the way government officials conducted consultations.
Attorneys for the plaintiffs say they will call as many as ten witnesses. These include Secretary Norton, Assistant Secretary McCaleb, former Interior Secretary Bruce Babbitt, former Interior Chief of Staff Anne Shields, former Assistant Secretary Kevin Gover, and two other Interior officials, Jeff Ziffer and Dick Fitzgerald.
Judge Lamberth has already brought contempt of court charges against Babbit, Gover and former Secretary of Treasury Robert Rubin. In that decision, the government was only ordered to pay $625,000 of the plaintiff's legal fees. Lamberth said that he would consider personal fines and confinement for government officials if they were found in contempt again.