WASHINGTON - After months of revelations from court officials about the federal government's mishandling of tribal trust assets, plaintiffs in the class action, Cobell vs. Norton, are asking the judge to set a trial date to consider how much the government owes American Indian beneficiaries for more than 100 years of mismanagement.
The action follows recent allegations from court-appointed officials which characterize the government's efforts to reform trust management as a complete failure.
"Unless there is a date set for a trial they will continue to do nothing," plaintiffs' attorney Keith Harper said. "This case is five years old. If you look at what has transpired, the government was supposed to be working on a trust accounting all along."
In December 1999, after three years of litigation, Judge Royce C. Lamberth ruled 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. Judge Lamberth kept jurisdiction over trust reform efforts for five years and ordered Interior officials to file quarterly reports on their progress. The government appealed that decision in January 2000.
Although officials for Interior and Treasury said the judge's decision was justified and that "court supervision actually helps," Justice filed an appeal. However, a three judge panel for the U.S. Court of Appeals agreed with Lamberth and ruled that record keeping and data collection has been so bad the federal government cannot even execute "the most fundamental of trust duties, an accurate accounting."
The plaintiffs are seeking a trial to determine the total amount of funds owed tribal beneficiaries. Court papers recently filed by the plaintiffs show the deadline has passed for seeking review by the U.S. Supreme Court of the Appeals Court decision and plaintiffs say the government must now meet its obligations.
"Treasury Secretary O'Neill, Interior Secretary Norton and (BIA head Neal) McCaleb, accordingly, have no defense and must provide a full accounting of all funds, including without limitation all deposits, withdrawals and accruals in accordance with trust law and without further delay," plaintiffs said in their motion.
Just last month a court monitor issued a report accusing the federal government of failing in its plan to resolve the trust funds problem and intentionally misleading the court and American Indian beneficiaries. In that report, the monitor strongly criticized the sampling plan originally proposed by Interior under former Secretary Bruce Babbitt and initially endorsed by Secretary Norton, despite what the monitor characterized as "little or no research" on whether the plan complied with the court's orders in the case.
Just days before that report was released, Secretary Norton issued two secretarial orders aimed at resolving some of the ongoing problems with American Indian trust reform. One delegates additional authority to the Special Trustee for American Indians to improve his capacity to implement department plans for trust reform, while the other creates a new "Office of Historical Trust Accounting" that will oversee the historical accounting mandated by the court, reversing Norton's earlier support of the sampling plan.
"According to the new secretarial order, they are just now starting work on a plan," Harper said. "This cannot go on forever. The court has the power to set a date and it should, given the government's record of behavior."
The same court official who issued the report criticizing the sampling plan and the government's effort to provide an accounting is expected to release a report critical of the TAAMS System, or Trust Assets and Accounting Management System. The federal government has spent approximately $40 million on the new computer system to track all monies going in and out of trust accounts. It has been widely speculated that this project is also riddled with problems.
The plaintiffs have asked for a trial date of Jan. 8, 2002. To date, approximately $625,000 in sanctions have been leveled against the federal government for violations during the court's consideration of this case.