by Jerry Reynolds
Indian Country Today
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.
”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.
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