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Open Letter from Elouise Cobell
The summer of 2006 has been an extremely volatile one for our cause. On July 11 the U.S. Court of Appeals removed U.S. District Judge Royce C. Lamberth from our case. In so doing, we lost the services of a dedicated and fair jurist who had presided over our case since its inception in 1996.
All individual Indian trust account holders should consider Judge Lamberth’s removal a travesty of justice. It is, as columnist Suzan Shown Harjo said, yet another rebuke to one of the “good people” who is trying to change the way the U.S. Government deals with Native People.
Because the appeals court removed the judge at the same time that it was finding the government’s conduct in our case deplorable, we plan to appeal his removal. We will argue that the removal of a judge from a case he has faithfully presided over for 10 years is itself without precedent.
We will also tell the Supreme Court that the very conduct that made Judge Lamberth so troubled with the government was, in fact, well documented by the appeals court. The decision of the three-judge appeals court panel was as strong a denouncement of the trustee-delegates’ conduct as we have ever seen: “To be sure, Interior’s deplorable record deserves condemnation in the strongest terms,” the court said. “Words like ‘ignominious” and “incompeten[t]’…and ‘malfeasance’ and ‘recalcitrance’ are fair and well-supported by the record.” It reinforced earlier rulings by the appeals court that the government has abused its trust obligation and has failed to fulfill its most basic responsibilities to the individual Indian trust beneficiaries.
It should be stressed that, according to the court of appeals, the removal of our judge in no way exonerates the Departments of Interior and Justice. Most importantly, the decision reaffirms the merits of our case (a “worthy cause”) and it underscores the core theme of Judge Lamberth’s most recent decisions.
His removal was unusual because the appeals court noted approvingly that Judge Lamberth’s strong language was based properly on irrefutable evidence of government misconduct. Indeed, Judge Lamberth’s order of July 12, 2005, was “nothing more than the views of an experienced judge who, having presided over this exceptionally contentious case for almost a decade has become exceeding ill disposed toward [a] defendant that has flagrantly and repeated breached its fiduciary obligations.”
As we have learned from the past decade, the United States government resists change fiercely. That’s even when the need for that change is well documented and punctuated by a century of malfeasance and continuing abuse. We expect they will fight our effort to get the Supreme Court to review both the judge’s removal and the vacation of the injunction he had issued on the Interior Department’s computer system. Those systems were shown to be wide open to computer hackers, placing all our trust records at risk of being altered.
Even the appeals court acknowledged that fact. “To be sure,” it said, “we have no doubt Interior’s trust account information has serious reliability problems.” That makes the need for an injunction even more pressing.
Finally, the appeals court ruling urged the parties “to work with the new judge to resolve this case expeditiously and fairly.” Of course, this is precisely what we have engaged in for the last 10 years only to be thwarted time and again by the Department of the Interior and its Department of Justice attorneys who would rather delay a resolution of this matter and leave it to the next administration. Even now, less than a month after the July 11 decisions, we are aware that mid-level bureaucrats in Interior and Justice are urging members of Congress to reject legislation that would resolve the case. As usual, the government has no interest in a resolution that is “expeditious and fair”.
This is not to say that my attorneys and I believe these decisions will further delay a resolution of this case. Indeed, there are reasons to be hopeful that a new judge will not wait another 10 years (or more), as the government now proposes, to render an historical accounting. Especially since the material facts are not even disputed by the government. Moreover, various media outlets are now reporting that Senator McCain is pressing legislation that would settle the case for $8 billion. This is a far cry from the over $27 billion we proposed last summer, but after bearing personal witness to the hardship and abuse that continues to be heaped upon the individual Indian beneficiaries after 10 years of hard-fought, acrimonious litigation I have directed my attorneys to seriously consider this offer. This nation’s first citizens are also its poorest and any resolution that is “expeditious and fair” should be seriously and thoughtfully considered. We will be examining this legislation to make sure it is just that.
If you are an account holder or a trust beneficiary, now is the time to express your concerns and hopes about a possible settlement to your member of Congress. It’s time for Indian Country to speak. The bureaucrats have had their say.
/s/
Elouise Cobell
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Who is telling the truth about the Indian Trust? You decide.
Check brochures produced by the plaintiffs in Cobell vs. Kempthorne against a taxpayer-funded brochure produced by Interior SecretaryKempthorne .
The plaintiffs’ brochure accurately describes the status of Kempthorne’s continuing failures to reform the long-broken Indian Trust. The plaintiffs have challenged Secretary Kempthorne to submit her brochure to the federal courts for review.
Click here for the Plaintiff’s brochure
Click here for the government’s brochure
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There is no restriction on oral (spoken) communications between the government and Individual Indian trust beneficiaries, including those who wish to sell, exchange, convey or convert their Trust land. The U.S. District Court for the District of Columbia confirmed this on October 22, 2004; however, written communications from the BIA and other bureaus or offices within the Interior Department concerning the sale, exchange, conveyance, and conversion of Trust land (and the historical accounting) must include a Notice prescribed by the Court.
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