by Bill McAllister
Denver Post Washington Bureau Chief
The Denver Post
WASHINGTON – There are moments when Dennis Gingold seems hardly a legal threat
to anyone. After all, the curly haired former Denver lawyer has had only one
case in the past six years. His tiny office, overlooking Pennsylvania Avenue
near the White House, is awash in a sea of 3-foot-high stacks of unsorted paper.
And there’s the 6-foot, wooden cigar-store Indian outside the door, hardly
the appropriate symbol for a man who has been battling for American
Indians since 1996.
“It’s not politically correct,” Gingold quickly acknowledges. Then he
adds: “I’m not politically correct.”
As dozens of federal lawyers can ruefully attest, however, the 52-year-old
Gingold – a New Jersey native who punches with all the subtlety of Mike
Tyson and talks like television detective Andy Sipowicz – is not someone
to cross.
While Gingold has had only one lawsuit, he has won every major decision in
the case. Today he is on the verge of forcing the Interior Department to
give up one of its prized, historic functions: serving as the government’s
trustee for the nation’s Indians.
In the process, Gingold seems likely to win a contempt-of-court citation
against the Bush administration’s top Indian-affairs aide and Interior
Secretary Gale Norton, the former Colorado attorney general who came to
the capital with an unblemished record.
The charge: failing to care for the Indians and billions in trust funds
that the government has been handling for them since 1887.
“There are billions of dollars at stake here – monies not properly handled
by the U.S. government,” says Gingold, his voice rising in anger. It’s
even more than the $10 billion figure he has used in the past, Gingold
says, probably more than anyone will ever know because the government’s
lax record-keeping.
The government, Gingold’s critics would counter, has known that for
decades. But until Gingold came along, no one had devised a legal theory
to make the government come clean with 350,000 individual accounts being
held for some of the nation’s poorest citizens.
To do that, Gingold – whom one government lawyer calls “The Terrorist” for
his no-holds-barred courtroom style – fashioned a lawsuit that many
initially called questionable. Then, to the amazement of some in the
government, Gingold refused to budge over efforts to settle the case out
of court.
In the process, Gingold has defeated numerous officials and lawyers who
have challenged him. In 1999 he won contempt citations against three
Clinton administration officials – two of whom were Cabinet officers.
He since has initiated similar proceedings against 39 other current and
former officials and forced the Justice Department to send in a
replacement team of lawyers after he questioned the ethics of the first
team.
Zealous. Combative. Confrontational. Gingold, who agreed to be interviewed
but not photographed, concedes he is all three. Indians, he argued, need
someone with a strong will to defend them from a government that has lied
and misled them since 1887, when Uncle Sam set up the first trust
accounts, believing Indians could not manage their own money.
“Confrontation is the only weapon we have,” Gingold said. And anyone who
has watched Gingold in Courtroom 21, where the case has played out, will
attest that Gingold is constantly on the offensive.
Indeed, he became so passionate during one hearing that U.S. District
Judge Royce C. Lamberth cautioned him: “We can’t right all wrongs here.”
“He’s not going to give you much room for abusing the rights of
plaintiffs,” said Keith Harper, a senior lawyer with the Colorado-based
Native American Fights Fund, which has worked on the case with Gingold.
“He’s held their feet to the fire.”
Government lawyers, burned by Gingold’s assaults on their ethics, declined
to discuss his style.
Gingold, a 1974 graduate of Seton Hall Law School, makes no excuses,
saying it’s the government that should apologize. Lawyers who have known
him for years say Gingold places a high value on ethics. But Gingold also
says he was misled by government lawyers in their many months of working
to settle the case out of court.
“He’ll be there ’til the glaciers all melt,” says Thad Holt, an Alabama
lawyer who has worked with Gingold. “The stalling tactics are never going
work with Dennis.”
Besides, Gingold says, government lawyers were never serious about
settling the case.
His explanation for the government’s decision to fight the case is backed
in part by the testimony of a Treasury official, who said government
officials long have viewed the trust funds as a “government slush fund”
that could be used to lower the national debt.
That’s why, Gingold says, the government has never come close to settling
the case despite the $614 million taxpayers have spent since 1996 trying
to reform the system. But the government’s legal defense has been off the
mark since the lawsuit was filed, largely because the government rejected
Gingold’s insistence that it had a bank-like trust responsibility to the
Indians.
Throughout the case, federal lawyers maintained that the trust
relationship was subject to various arcane laws, such as the
administrative procedures act. No, Gingold insisted, it is a trust
relationship, like those any commercial bank faces, and it is subject to
the same rules that apply to any trust.
Gingold said that when he outlined his legal strategy for the case to lead
plaintiff, Elouise Cobell, a member of Montana’s Blackfeet Tribe, some
were aghast.
It would be a trust case, he said, not a claim against the government that
might end up in the Court of Claims, a special court here that considers
complaints against the government over contracts.
To the amazement of federal lawyers, both Lamberth and then the U.S. Court
of Appeals for the District of Columbia bought Gingold’s argument. Since
then, the Justice Department has fought a defensive battle with Gingold.
Gingold had met Cobell in the late 1970s when he was in Denver, first as
regional counsel for the Comptroller of the Currency’s Denver office. She
was an executive of the Montana’s Blackfeet National Bank, the nation’s
first Indian-owned bank.
“I think that the stars are aligned for this case,” Cobell said. “He
opened doors that no one had ever opened before. It is going to make for
total opportunity for Indian people.”
As for Gingold, there are battles ahead and he isn’t pulling punches.
Asked what he would advise the judge to do with Norton, he said: “I’d tell
the judge to ask the secretary to bring her toothbrush.”
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