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Reynolds-Cobell plaintiffs plan appeal on Lamberth

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WASHINGTON – The plaintiffs in the long-running lawsuit to force an accounting of the Individual Indian Money trust filed one appeal Aug. 24, announced a headline-making separate appeal to the U.S. Supreme Court at the same time, and then on Aug. 28 “reconsidered those plans” and decided to file the separate appeal with the same appeals court as the first.

The unusual sequence of events comes at a critical hour of the attempt to move legislation through Congress that would settle the case. The Senate Committee on Indian Affairs is in the midst of field hearings and negotiations to win approval of a proposed $8 billion legislative settlement. But many details still have to be worked out, and the attention of lawmakers as a whole is turning toward the November elections. Following its traditional August recess, Congress returns to Washington to concentrate on spending bills, then leaves at the end of September to work on election campaigning.

The appeals (which are not directly related to the legislation) ask the full U.S. Court of Appeals for the District of Columbia to review the decisions, by a three-judge panel of the same court, to reassign the judge in the case and to reinstitute Internet connectivity of active IIM records at the Interior Department.

The appeal first announced for the Supreme Court, but actually filed in appellate court with a date of Aug. 25, involves the panel’s decision to remove District of Columbia Circuit Court Judge Royce Lamberth from the case by reassigning him. The panel of judges ruled that Lamberth had lost his judicial dispassion in the case, a view disputed by the plaintiffs.

“It is unprecedented for a federal judge to be reassigned under these circumstances, especially where, as here, the judge has presided over a complex case for ten years,” stated lead plaintiff Elouise Cobell, in an initial media release of Aug. 24.

“And we think it extraordinary for an appellate court to accede to the government’s wishes because the judge accurately described the historic mistreatment of Indians, conduct that even the court of appeals agreed is deplorable.”

But on reconsideration, the full court criticized in those words will be asked to revisit its own three-judge panel decision of July 11. In the interim, the Bush administration weighed in with concerns about the $8 billion legislative settlement package, leading to the postponement of a scheduled SCIA hearing.

In a second media release dated Aug. 28, Cobell speculated that the administration’s response may carry weight with the full court: “If the decision was made because court of appeals judges believe that the administration would resolve this case expeditiously and fairly, the judges are terribly mistaken.”

She added, “It is the conduct of government officials that must be publicly condemned and severely sanctioned until it stops, not the esteemed judge who has the intellectual integrity to describe such repugnant behavior.”

The other filing, of Aug. 24, asks the same full court to review the decision, by the same three-judge panel, that restored the Internet connectivity of active IIM records. Lamberth had ordered Interior to shield the records from the Internet because of breaches in the security of the accounts uncovered by the court. The three-judge panel threw out his order, leading plaintiffs to argue that the accounts are again exposed to computer-based abuses due to shortcomings in the security of computer systems at Interior.