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Slap on the wrist for Lamberth is a grand slam for trust plaintiffs

WASHINGTON - The U.S. Court of Appeals for the District of Columbia ruled
against District Court Judge Royce C. Lamberth on a narrow point Dec. 3,
but delivered a strongly-worded verdict against the government in the
ongoing lawsuit over the Indian trust funds.

Lamberth erred when he ordered the disconnection of Interior Department
computers over security issues without evidentiary hearings last March 15,
the appellate court ruled. The court remanded the decision back to Lamberth
for reconsideration. Keith Harper, a Native American Rights Fund attorney
for individual Indian trust beneficiaries in the class action lawsuit,
declined to predict the court's next steps, but said the plaintiffs would
welcome evidentiary hearings. The security lapses in Interior's information
technology systems that moved the court have only gotten worse since March
15, he added. Plaintiff attorneys have petitioned the court for evidentiary
hearings, and a related "discovery" schedule, on the matter.

"We are concerned that the government [Interior] will wrongly be led to
bring up all their computers ... We do not want to be in a position where
further irreparable harm is done."

All of Interior's computers would include those at the BIA and the Office
of the Special Trustee, which had already been shut down and were not at
issue in Lamberth's March 15 order.

Beyond the narrow boundaries of the March 15 remand, however, the Dec. 3
appellate decision affirmed Lamberth's court in its authority over the case
and its scope of activity in handling it. Interior had challenged both in
its appeal of the March 15 injunction. The appellate court used notably
sharp language in turning the broader issues against Interior. It also
explicitly rejected Interior's argument that Lamberth's ruling transgressed
a statute of Congress that prevented expenditures on "historical accounting
activities," pointing out that "the plain text" of the statute concerns
only the historical accounting "rather than the [Interior] Secretary's
current trust obligations addressed in the March 15, 2004 injunction."

The appellate court proceeded to reject a series of Interior challenges to
the Lamberth court's authority. In reviewing these "unpersuasive"
challenges, the court all but accused Interior and its attorneys of
deliberate misrepresentation: "It is only by mischaracterizing the March
15, 2004 injunction that the Secretary can now contend that the district
court dictated Interior's action for improving IT [information technology]
system security, and therefore violated the separation of powers."

Harper said the message here is for Congress. Interior's battalion of
attorneys and administrators is a regular presence on Capitol Hill, he
said. "They're up there spreading misinformation routinely" about the trust
funds lawsuit.

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"They effectively characterize Lamberth as a rogue court. What this
decision does is answer that question. It's one thing to criticize one
court. But now are they going to criticize the whole circuit? At what point
do we say Interior is the problem here?"

The appellate court appeared to pass that point on page nine of its Dec. 3
decision, where it gutted the government's central argument (at least
during Secretary Gale Norton's tenure), namely that the class action
lawsuit over the Individual Indian Money trust is an administrative law
case, of a kind familiar to government agencies. The Dec. 3 decision
insists that it is an Indian trust case, open to broader remedies than an
administrative law case would entertain.

Quoting a precedent case, the appellate court wrote that the Interior
Secretary "'cannot now try to escape h[er] role as trustee by donning the
mantle of administrator' to claim that courts must defer to h[er] expertise
and delegated authority."

Lamberth's district court, then, "retains substantial latitude, much more
so than in the typical agency case, to fashion an equitable remedy because
the underlying lawsuit is both an Indian case and a trust case in which the
trustees [the federal government and its delegate, Interior] have
egregiously breached their fiduciary duties."

That difference "makes all the difference in the world," Harper said,
"because the remedies are so much broader in a trust case" than in an
administrative law case. "That's what we've been arguing about all along."

The Dec. 3 ruling does not bode well for two other government motions, one
to have the case dismissed or Lamberth's role diminished and another to
banish Lamberth from the case under terms of the congressional statute on
historical accounting.

In an unrelated development, Interior's deputy secretary, J. Steven Griles,
resigned after a stormy tenure that featured continuing payments from
clients the department had continuing relations with (Griles announced that
he would recuse himself from decisions concerning them, but participated
with them in meetings on regulations that concerned them). The Washington
Post reported that one of Griles' leading critics, David Hirsch at Friends
of the Earth, "mocked the idea that Griles was returning to private life" -
he never left it, Hirsch told the Post, having worked at Interior for his
former clients.