by Jamin B. Raskin
Law Professor, American University Washington College of Law
Administrative Law Review Winter 2005
May 11, 1998: The Assistant Secretary of Policy, Management and Budget at the Department of Interior sends a Memorandum to Joe Christie at OST:
“The current demand is to produce documents for five accounts__the accounts of the five named plaintiffs. This request has been outstanding since November, 1996. It has always appeared more efficient to collect these records as part of the statistical sampling. Although it should have been clear that this approach involved some risk, it appeared at the time the risk was minimal. Now, the court has ordered that these documents be collected by June 30, 1998.” [FN179]
May 12, 1998: In a deposition, OST senior records official Joe Christie reveals that he has never been asked to produce documents for the five named plaintiffs and that he could not possibly comply with such an order now given the “last_minute nature of the instructions from his superiors.” [FN180] Christie testifies that he had been instructed by Perlmutter to “hold document production in abeyance, despite the court order.” [FN181] Meantime, when plaintiffs try to depose Perlmutter and other high_level Department of Interior employees regarding these statements, the defendants seek “to quash the depositions in their entirety based on the attorney_client privilege.” [FN182]
June 30, 1998: The court’s deadline for compliance with the First Order of Production of Information passes without the defendants producing any documents under Paragraph 19. [FN183] They file no motion to enlarge time or to amend the court’s existing orders. [FN184]
August 18, 1998: Judge Lamberth instructs the defendants that they are “not simply free to disregard the court’s orders.” [FN185] Defendants’ counsel eventually takes the position that the court’s orders “required either documents for the five named plaintiffs or predecessor_in_interest documents, but not both,” [FN186] an interpretation that collides with the plain *257 language of the First Order of Production of Information and has already been rejected by the court. Assistant Secretary Berry then testifies at trial that he is “aware that there have been numerous representations that haven’t been met.” [FN187] The Justice Department apologizes for the inexcusable delays: “That’s right, and that brings me to my second apology, the apology on behalf of the Department of Justice. There’s no question that Your Honor should have been informed earlier, much earlier, and clearly, that we weren’t going to be able to comply.” [FN188]
This pattern of delay and obfuscation__painful to read, dreadful to experience__would continue for more than another year before Judge Lamberth actually conducted a trial on the plaintiffs’ motion and held the government defendants in contempt. It is impossible to follow the maddening, Kafka_esque trail of official misdirection without seeing the logic of Judge Lamberth’s conclusion that the government had, in fact, “abused the rights of the plaintiffs to obtain these trust documents, and it engaged in a shocking pattern of deception of the court.” [FN189] But Professor Pierce overlooks the government’s devious games, inviting us instead to accept that problems “of this type are inevitable in any attempt to conduct a task as vast as the district court required the DOI and the Treasury Department to accomplish in a matter of months.” [FN190] What is remarkable is that Judge Lamberth did not hold the government defendants in civil (or criminal) contempt sooner than he did. If the government could not produce trust documentation for five individual plaintiffs over the course of two years, and still has not done so, how long will it take the government to produce such documentation for the 500,000 plaintiffs who are part of the class action? At this rate, assuming that the defendants comply with Paragraph 19 tomorrow, the class could expect production of their trust documents in another 800,000 years. This is justice denied on the scale of ice ages.
But Professor Pierce is deeply concerned that the first contempt order was directed at Secretaries Babbitt and Rubin and Assistant Secretary Gover rather than their underlings. The cabinet officers should have been left alone because even “Judge Lamberth seemed to recognize that he had absolutely no evidence of any wrongdoing on their part.” [FN191] Yet, it was the government’s own December 16, 1998 motion asking Judge Lamberth to remove the names of all other employees and attorneys from the contempt order that left these three chiefs holding the bag for the whole sordid *258 operation, [FN192] even though the plaintiffs actually wanted the original order to apply to “[d]efendants and their employees responsible for this case, including their attorneys.” [FN193] It therefore seems ironic that Professor Pierce now asks sympathy for Secretaries Babbitt and Rubin and Assistant Secretary Gover and claims that Judge Lamberth had “absolutely no evidence of any wrongdoing on their part.” [FN194] On the contrary, as the leaders of their respective departments, they were responsible for everything that took place under them, especially as the named defendants in a multi_billion dollar lawsuit of historic importance and dimension. Moreover, through their motion to the court (Motion for Leave to File Alternative Form of Order), they each consciously took it upon themselves to suffer the legal consequences of their agencies’ recidivist inertia and indifference. [FN195]
Judge Lamberth’s statement at the rendering of the contempt rulings demonstrates the sobriety and seriousness of purpose that accompanied his decision:
Contrary to the impression some would seek to create, I do not relish holding these cabinet officials in contempt. And I do so today more out of sadness than anger. But courts have a duty to hold government officials responsible for their conduct when they infringe on the legitimate rights of others. These officials are responsible for seeing that the laws of the United States are faithfully executed. In this case, the laws__the orders of this court__were either ignored or thwarted at every turn by these officials and their subordinates. The court must hold such government officials accountable; otherwise, our citizens__as litigants__are reduced to mere supplicants of the government, taking whatever is dished out to them. That is not our system of government, as established by the Constitution. We have a government of law, and government officials must be held accountable under the law.
The court tried to take reasonable steps to allow the defendants to bring themselves into compliance with the court’s stipulated document production order of November 27, 1996 (“First Order of Production of Information”), and its subsequent Scheduling Order of May 4, 1998, which placed the final deadline on the pertinent document production. But the court is left with little choice when the alternative avenues have been exhausted without avail. [FN196] *259 Indeed, the defendants held in contempt did not appeal or seek mandamus of their contempt citations, pretty convincing evidence of the overwhelming proof against them. But Professor Pierce speculates that their failure to appeal reflects a bid by the government defendants and their lawyers to “demonstrate their good faith to the judge,” [FN197] a most dubious prospect given their shocking disregard for the court’s orders, not to mention their demonstrated willingness to appeal the next round of contempt citations in the Phase I trial. He also introduces the possibility that the decision not to appeal may have been due to the fact that “the decisionmakers in the Clinton administration may have been reluctant to challenge many of the judge’s actions for fear that the plaintiffs’ lawyers would use their sophisticated public relations network to hurt the Administration’s reputation among Indians__a constituency that has become important to the Democratic Party.” [FN198] In other words, we are invited to believe that the Indians would not activate their “sophisticated public_relations network” [FN199] against the government merely for concealing their trust information, refusing to abide by court orders and acting in contempt of court, but would unleash the full fury of their press operation if the defendants filed an appeal from their contempt citations. Whatever the thought behind Professor Pierce’s insinuations about the Dmeocratic Party, the violation of Indian rights has been a proudly bipartisan commitment in American history, and it seems the other major political party has been at least equally adept recently at exploiting the Indians. [FN200]
Professor Pierce also takes aim at the second round of contempt findings that followed the Phase I trial. As discussed above, these contempt rulings were overruled by the D.C. Circuit, on the grounds, inter alia, that, seen in context, the citations were actually for criminal contempt rather than civil contempt, and that much of the conduct being punished took place before the defendants took office. [FN201] The fact that the D.C. Circuit reversed Judge Lamberth’s orders on these well_reasoned grounds demonstrates that there are meaningful appellate checks in place against judicial overreaching, something that Professor Pierce is at pains to deny. His article adds nothing to the court’s ruling other than the suggestion that Judge Lamberth “routinely uses threats to initiate contempt proceedings and/or to issue citations for contempt to induce lawyers, witnesses and other government employees to take positions he favors and to refrain from taking positions *260 he disfavors.” [FN202]
As proof of this claim, Professor Pierce offers double blind hearsay in an “anecdote” about an anonymous “former DOI lawyer (now in private practice)” who told Pierce that the DOI’s plans to use “statistical sampling” in the data collection process were dropped after Judge Lamberth allegedly referred to the idea as “contemptuous.” [FN203] In addition, DOI employees apparently became terrified that “any proposed use of statistical sampling would elicit from Judge Lamberth a string of personal insults, a show cause order, and a potential contempt citation.” [FN204] According to Pierce, “Like everyone else involved in the case, the source of this anecdote is unwilling to discuss the case on the record for fear that he will be the subject of reprisals by Judge Lamberth.” [FN205] The source is unnamed, the anecdote unconfirmed, the terrified employees unidentified, the quotation from Judge Lamberth uncited, everything about it undated and unsupported, and the whole premise implausible. This gossip hardly qualifies as academic evidence, but for Professor Pierce, it suffices to condemn a United States District Court judge.
Meantime, Professor Pierce seems uninterested in the substantive question of whether a process of statistical sampling was consistent with the government’s statutory and fiduciary duty to conduct an adequate accounting. Surely it was not. Indeed, the defendants’ own expert flatly and unequivocally rejected any notion that a statistical sampling process could suffice to constitute an adequate accounting. [FN206] Notably, the government could not cite a single case to support a statistical sampling methodology for rendering an honest accounting of individual trust assets. [FN207] It is also noteworthy that the Supreme Court in 1999 categorically rejected the use of statistical sampling for the purposes of counting the population under the Census Act. [FN208]
B. The Internet Disconnect Orders
Professor Pierce castigates Judge Lamberth for ordering the Department of Interior to disconnect its computers from the Internet to safeguard and preserve trust information. [FN209] As with the contempt rulings, Professor *261 Pierce makes the mistake of treating the Internet disconnection rulings as “collateral” to the main issues. [FN210] The defendants’ trust obligation, however, to maintain and protect trust information, both on paper and on_line, “goes to the very heart of this litigation,” as Judge Lamberth has correctly answered. [FN211] These orders were not motivated by spite, but by the court’s determination to protect the plaintiffs’ rights to secure trust information that is their private property. It is a cardinal principle of trust law that the trustee must protect and safeguard for the beneficiary not only his or her property, but also the information about it. [FN212] To quote the D.C. Circuit, “As trustee delegates these officials had a clear obligation to maintain trust records and furnish such records to beneficiary upon request.” [FN213]
On December 5, 2001, Judge Lamberth issued an order compelling the DOI to “immediately disconnect from the Internet all information technology systems that house or provide access to individual Indian trust data” and all computers “within the custody and control of the Department of the Interior, its employees and contractors, that have access to individual Indian trust data.” [FN214] This order was based principally on the Report and Recommendation of the Special Master Regarding the Security of Trust Data at the Department of Interior. [FN215] The Special Master’s report collected and analyzed no fewer than 30 detailed reports about the Department of Interior’s chronic computer security problems over a decade_long period “by a variety of entities, including the General Accounting Office, the DOI’s Inspector General, consultants to the DOI, and a House subcommittee.” [FN216] These reports painted a devastating portrait of the giant *262 breakdown in the DOI’s computer security efforts. [FN217] The government not only consented to the adoption of this Report in its entirety, but explicitly acknowledged “significant deficiencies” in its trust record computer security system. [FN218] The Special Master’s computer security expert was able to hack into the Department of Interior’s computer systems harboring trust records and simply remove or delete trust records without any audit trail. [FN219] This situation was untenable.
Of the many reports assessed by the Special Master, Professor Pierce focuses on the 2000 Report of the House Subcommittee on Government Management, Information, and Technology. [FN220] The Subcommittee gave the whole federal government a “D_” grade for the security of its computer systems and a grade of “F” to the Department of Interior. [FN221] One might be forgiven for assuming that this flunking evaluation, rendered wholly independent of Judge Lamberth, confirms the wisdom of his order. Professor Pierce, however, notices that the Subcommittee gave a similar flunking grade to the Office of Personnel Management (OPM), the Small Business Administration (SBA), and the DOJ, Labor (DOL), Agriculture (DOA), and Health and Human Services (HHS). [FN222] Now, a new argument presents itself: “If the DOI’s computer security deficiencies justified judicial takeover and shutdown of the DOI’s systems, it would follow that courts should also take over and disconnect the equally deficient systems at the OPM, SBA, DOJ, DOL, DOA and HHS.” [FN223]
But Professor Pierce’s suggestion elides the specific legal reason Judge Lamberth has ordered the DOI to disconnect from the Internet: to protect the 500,000 Cobell plaintiffs’ confidential trust information from tampering, deletion, damage, spying, and exposure. There is no similar compelling reason in the course of ongoing litigation to disconnect the Internet from these other agencies’ systems that we know of. At least Professor Pierce does not tell us if the government has any other trust relationship within these agencies giving rise to the “most exacting *263 fiduciary standards” that lie at the heart of this case. [FN224]
Furthermore, Judge Lamberth points out in his response to Professor Pierce that the Subcommittee actually gave number grades to the various departments based on a series of stringent criteria and that the Department of Interior finished dead last, with a 17 score out of 100, far behind the next_lowest agency, the Department of Labor, which scored 38. [FN225] To accept Professor Pierce’s trivialization of the DOI computer security situation, we would have to ignore not only the entire legal context__the fact “that information necessary to the very livelihood of 500,000 of this nation’s poorest citizens was consistently at risk,” [FN226] as Judge Lamberth put it__but also the fact that the Department of Interior’s systems were radically more vulnerable than any other federal department on a range of criteria that included the existence of entity_wide security programs, access controls, the ability to continuously provide service in the event of interruption, checks on unauthorized changes to computer programs, and successful restriction of access to sensitive operating system files. [FN227]
Professor Pierce’s opposition to the Internet disconnect orders based on their costs tells us nothing about their lawfulness or propriety, any more than the “costs” of desegregation discredit Brown v. Board of Education [FN228] or the “costs” of protecting extremist political protestors discredit decisions protecting their free speech rights. Professor Pierce, however, has undoubtedly piqued interest with his section called “The Costs of Judge Lamberth’s Actions,” and we should, in all fairness, pay attention to the material equities on both sides of this type of order.
Beyond the $3,737,945 assertedly paid to private lawyers by the Department of Justice, [FN229] Pierce proclaims: “I believe that Judge Lamberth’s contempt and disconnect orders have already cost the nation billions of dollars more.” [FN230] This is a staggering, indeed bewildering, estimate. How does he arrive at the multi_billion dollar price tag? Professor Pierce explains:
Although I would like to support that estimate with a comprehensive study, complete with formulas, data and explanations of my methodology, I can provide nothing of the sort. This is beyond my *264 capabilities for many reasons, e.g., inadequate time and expertise, inadequate access to data, and intractable problems in attempting to estimate costs attributable to effects like poor morale. [FN231]
Brushing aside this absence of data, methodology, time, or expertise, Professor Pierce simply returns to the personal anecdote as evidence by offering some “illustrative descriptions of some of the costs stemming from Judge Lamberth’s actions.” [FN232]
The first anecdote has nothing to do with the Department of Interior but is more of a hypothetical reader_participation survey. Citing the pervasive shutdown of computer systems in the United States in the fall of 2003 to purge worms and viruses, Professor Pierce writes that, “Many readers can empathize to some degree with the DOI’s plight based on their own personal experiences with their organizations’ brief disconnects from the Internet.” [FN233] Professor Pierce invites his readers to “[i]magine how much more serious the effects of a shutdown would be that lasted not for hours or days, but for months and years. The disconnections at the DOI lasted from one month to nearly two years.” [FN234] Yet, given the common experience of losing Internet access and the fact that the affected employees enjoyed continued access to telephones, faxes, overnight mail, home computers and so on, the billion_dollar estimate seems madcap and fanciful indeed.
Professor Pierce provides sparse guidance to try to quantify his imaginary costs. He speculates that “millions of citizens” seeking to use the National Park Service online reservation service experienced problems determining park hours. [FN235] As evidence, he shares this sad story: “Several friends described to me their own frustrations with this situation, and the disruptive effects it had on their vacation planning.” [FN236] Now were it not anecdotal and useless as a legal, policy, or scholarly argument, I might be tempted to point out, by way of refutation, that my friends Soroush Shehabi (then a Department of Justice lawyer) and Nancy Bagley were married in Yosemite National Park during the period of the DOI internet shutdown, and their wedding went off without a hitch. Their 300 guests must be subtracted from the “millions” that Professor Pierce imagines to have been inconvenienced as severely as his “several” anonymous friends who confided to him their frustrations about the “disruptive effects” that Judge Lamberth’s orders had on their “vacation planning.”
In justifying his spectacular estimate of the costs of the Internet shut_down at the DOI, the momentarily derailed vacation planning of his friends *265 is the most concrete information Professor Pierce has to offer. He goes on to confess, however, that he “suspect[s] that Judge Lamberth’s constant and threatening use of contempt citations has imposed costs on the DOI at least as great as the costs of his computer disconnect orders.” [FN237] It is difficult to imagine costs equal to those associated with Professor Pierce’s frustrated vacation_planning friends, but he insists that we try. Although he still has no hard numbers or data to share, he formulates his cost estimate this way:
Imagine how you would feel if your boss, her predecessor, and seventy_five of your colleagues were repeatedly and officially characterized by a federal judge as incompetent liars and frauds over a period of years. Imagine also how you would react if someone asked you to work on the project that spawned this constant stream of nasty invectives (sic) and threatened sanctions. The DOI’s employees are well aware of Judge Lamberth’s reign of terror, and they are truly terrorized. [FN238]
Actually, everyone who worked for President Clinton had a boss who was vilified on a daily basis, on a far more public stage, as a liar and a fraud. He was charged by an Independent Counsel with obstructing justice and perjury and even impeached by the U.S. House of Representatives. [FN239] Many Clinton Administration figures faced prosecution and investigation. Yet, the Constitution permits public officials to be sued and prosecuted. [FN240] Similarly, not a day goes by for the employees of President Bush and Vice_President Cheney when their bosses are not publicly, though perhaps unofficially, denounced as warmongers, liars, and frauds. Professor Pierce declines to put a specific price tag on Judge Lamberth’s verbal “reign of terror” so it must rest with his overall estimate that these feelings cost the taxpayers “billions” of dollars. But to allow the Indian trust fund trustees to mismanage billions of dollars of private trust property simply to protect government employees from feeling embarrassed about their bosses’ misconduct would enable, rather than cure, their ongoing pathology.
Professor Pierce next charges that Judge Lamberth’s “reign has affected the DOI’s efforts to provide an accurate accounting for the Indian trust accounts and its corollary effort to improve its computer security because these efforts require the active participation of hundreds of the DOI employees within all of the Department’s many agencies.” [FN241] This may be Professor Pierce’s most striking scholarly discovery of them all. It turns out that Judge Lamberth, who has for years tried to face down bureaucratic obstructionism to render an honest and legally required accounting for the Indians, has actually been thwarting the Department, which apparently *266 would have been making huge strides towards a fair accounting had it not been for Judge Lamberth’s incessant pestering. Somehow this epiphany has escaped the attention of the Indian plaintiffs, who have not yet filed their own judicial misconduct complaints against Judge Lamberth for blocking the Department of Interior’s untiring (if undetectable) efforts to give them an honest accounting of their moneys.
Of course, Professor Pierce provides no evidence to show that Judge Lamberth is damaging the trust accounting rather than rescuing it after decades of mismanagement. He has not collected any anonymous questionnaires that show the DOI employees are unwilling to work on the project, he has not studied turnover rates at the DOI, nor has he compared the number of employees who feel empowered and emboldened by Judge Lamberth to do honest work on the accounting project with the number who feel “terrorized” by his steely resolve to get the job done. Moreover, he has not considered how the Department of Interior’s proven retaliation against employees for giving honest testimony in Cobell completely contradicts his argument. [FN242] Instead, Professor Pierce relies for this theory on a single anonymous source who gives an unquoted, undated, and unverified interview that is dependent on blind hearsay that is not on file with the Administrative Law Review: [FN243] “One of my anonymous sources at DOI described to me his efforts to enlist personnel at non_BIA DOI units participate in this massive undertaking. He described people who were frozen with fear when he mentioned Cobell v. Norton or Indian trust accounts.” [FN244]
If this paraphrased DOI Deep Throat is not quite enough to prove Judge Lamberth has cost the nation “billions” of dollars, Professor Pierce has saved his most powerful and revealing point about the economics of Judge Lamberth’s decisionmaking for last. “Judge Lamberth,” Professor Pierce writes, “has even affected the way that I counsel students.” [FN245] Many of his students have fine academic records, we are told, and:
are naturally attracted to the many law firm jobs that pay over twice as much as a government job initially and ten times as much after a decade or two, but I always encourage them to look seriously at the alternative of taking a position with the government. I tell them that they may *267 discover that the lifestyle advantages and intrinsic rewards of working for the government more than compensate for the sacrifice of millions of dollars in lifetime earnings. I tell them that they may feel better about themselves and their lives if they take the Metro home to their modest home in Alexandria at five, after spending the day helping to improve the air quality in a national park, rather than drive their Lexus LS 430 home to their mini_mansion in McLean at ten, after spending the day helping a polluter avoid the expense of installing a new pollution control device. [FN246]
Professor Pierce, however, can no longer go out on a limb to counsel students to accept low_paying government jobs and settle in modest quarters in Alexandria because of the terrifying climate engendered by Judge Lamberth:
Unfortunately, I now must add a caveat to my standard advice to students, for I cannot in good conscience recommend that any of them take a job at DOI . . . . If this situation persists, it is hard to imagine how the DOI will ever find qualified people to take jobs as lawyers, accountants or IT professionals. [FN247]
Again, Professor Pierce fails to offer any evidence that DOI is experiencing problems hiring lawyers or other professionals because of the Cobell case or even that his advice to his students has succeeded in steering their career paths away from the Department of Interior.
Yet the ideological framing of legal career choices here is deeply revealing. We are invited to see the paradigm of private legal practice as a big corporate law firm defending environmental polluters and the paradigm of government practice as the Department of Interior defending environmental quality. In the Cobell case, however, the Interior defendants and their Justice Department lawyers are hiding from the court the trust decisions they have made about Indian lands that have allowed large corporations to exploit that land for scandalously small and sub_market payments. [FN248] Corporate lawyers and government lawyers here form not *268 opposing teams, but a single axis of injustice against which Indian country must struggle. [FN249]
III. Where Does the “Reign of Terror” Truly Exist?
The vast and perhaps unbridgeable distance between Professor Pierce and Judge Lamberth in this case can be measured in both facts and values. The “facts” generally offered to us by Professor Pierce are personal vignettes and vague anecdotes about friends and anonymous sources who formerly worked for the government. When Professor Pierce makes declarative legal statements__”It is the first modern case in which a cabinet officer has been held in contempt of court” [FN250]__he is often wrong. More importantly, Professor Pierce seems oblivious to the government’s general treatment of American Indians’ rights over more than a century and blind to its record of intransigence, obstructionism, deception, and concealment in the Cobell case itself.
As one might expect, the opposing views of the relevant facts in Cobell reflect deep and powerful differences in values, feelings, and moral perspectives. Professor Pierce in his article repeatedly invites us to identify *269 with other people__the DOI and Treasury Department officials forced to “search an incredible volume of records,” [FN251] the Secretaries of the Interior and Treasury treated with “harsh characterizations” [FN252] in contempt citations, Professor Pierce’s “friends” trying to make their vacation reservations for cabins and campsites in national parks who cannot find the information they need on the Internet, [FN253] people whose bosses have been “officially characterized by a federal judge as [] incompetent lying fraud[s],” [FN254] and a professor of administrative law who finds himself in the melancholy situation of no longer being able to recommend to his law students a career at the Department of Interior because of Judge Lamberth’s “reign of terror” there. [FN255]
At no point does Professor Pierce ask us to identify with the American Indian plaintiffs in Cobell who have the actual and valid legal cause of action in the case. At no point does he ask us to imagine what it might be like to grow up poor on an Indian reservation, with miserable health care, bad nutrition, poor job prospects, and the haunting ubiquitous legacy of centuries of massacre and dispossession of your ancestors. He does not urge us to imagine how it might feel to have no property or wealth at all, but the knowledge that the federal government has taken your family land and holds it in your name and, while you are supposed to be collecting the revenues from it, you never receive or hear anything. At no point does he wonder about what it might be like to have the government violate its trustee obligations to you as a citizen_beneficiary and then do everything in its power to prevent the rendering of a complete and honest accounting.
The remarkable thing about Judge Lamberth__a conservative man who was appointed to the bench by President Ronald Reagan and served before that as the Chief of the Civil Division of the U.S. Attorney’s Office for the District of Columbia in the years between 1978 to 1987__is that he has never lost sight of the rule of law and our universal equality as citizens before it, never presumptively placed the interests of high and mighty government officials before the interests of the plaintiff Indians, and never forgotten about the private property that this case is about. [FN256] In this sense, Judge Lamberth represents the best of a property_rights judicial conservatism that is not conveniently turned off when members of the wrong racial or ethnic minority group assert their rights. His withering and unflinching reply to Professor Pierce over the Internet disconnect order *270 captures well the fundamental values difference between the two:
The Professor discusses . . . the impact of those whose jobs were disrupted or whose vacation in Yellowstone Park were disrupted, or the inability of those who engage in the scholarly study of oil flow to continue their work. Not once does the Professor mention the reason for the shutdown: that information necessary to the very livelihood of 500,000 of the nation’s poorest citizens was consistently at risk. Apparently the Professor assumes the Court was wrong to balance the interests of the nation’s most indigent citizens against those who could not reserve a “cabin or campsite” because Interior stored its Park Service data on a computer system that also had access to the protected trust data. [FN257]
As Judge Lamberth has already defeated Professor Pierce’s effort to cite him for judicial misconduct, he can surely fend off the further scandalous attacks on his character, such as the statements by the apparently clairvoyant Professor Pierce, who describes Judge Lamberth’s future reactions and behavior on the bench. [FN258] Significantly, even if we were inclined to take up Professor Pierce’s proposal for a “new remedy” for abusive judging__adoption of a new “posture of willingness” [FN259] by the Chief Judge of the Circuit to file a complaint against an errant judge__it would make no difference here because the acting Chief Judge, David Sentelle, has already dismissed as groundless Professor Pierce’s complaint against Judge Lamberth. The actual threat to Judge Lamberth’s excellent adjudication of the trust claims in Cobell thus lies not with Professor Pierce, but with the Republican_controlled Congress, which appears determined to find some way to stay or nullify settled judgments in the case. [FN260]
For academics, this affair raises profound questions about scholarly standards. Legal scholarship should enrich our understanding of the law as a discipline; it should not consist of dressed_up legal complaints in particular cases. Scholarly evidence should be available in the world, testable, verifiable, and accessible to other researchers; it should not rely on *271 blind hearsay and paraphrases of anonymous subjects known only to the author. Cost estimates of litigation should involve some methodology and relationship to facts.
But, above all, there is a moral question relating to the use of language and academic authority. The phrase “reign of terror” has its origins in the period of 1793_94 when the French Revolution took a dark turn into war dictatorship and its Committee of Public Safety conducted a series of spectacular public executions of presumed enemies of state. Judge Lamberth’s management of the Cobell litigation has nothing to do with public executions or the spreading of mass terror, and linking him with this period is unfair.
Indeed, pasting this label on Judge Lamberth reveals a kind of massive projection and inversion of reality. If there is an authentic “reign of terror” lurking in this case, it is the one that the United States government has administered over the Indian population since white settlers arrived on these shores. The terror has consisted of massacre; distribution of cholera blankets; destruction and division of communities; dispossession of land; removal; expulsion; allotment; trust control of land; trust fraud and mismanagement; naked bureaucratic defiance of law; and legislative attacks on settled judgments, all in a continuing sequence of violence, cruelty, and highway robbery.
Consider a small part of this real reign of terror as related by Benjamin Franklin in his famous piece of January 1764 describing the murderous violence by “armed frontiersmen” [FN261] against Indians during Christmas week 1763 in Paxton, Pennsylvania. Unlike Judge Lamberth’s critics discussing the trust beneficiaries, Benjamin Franklin:
identified the Indian victims by name. One very old man, Shehaes, had known William Penn and had sat down to treaty with the original proprietor in 1701. Peggy was Shehaes’s daughter: “She worked for her aged father, continuing to live with him, though married, and attended him with filial duty and tenderness.” John was “another good old man.” John Smith was “a valuable young man,” Peggy’s husband and father of their three_year_old child . . . . [FN262]
And so on: it was important to Franklin that people see the Indians as real people with families and lives of their own. In A Narrative of the Late Massacres in Lancaster County, of a Number of Indians, Friends of This Province, Benjamin Franklin recounts in chilling detail the atrocities committed by fifty_seven armed white men against these Indians:
They surrounded the small village of Indian huts, and at just break of day *272 broke into them all at once. Only three men, two women, and a young boy were found at home, the rest being out among the neighbouring white people, some to sell the baskets, brooms and bowls they manufactured, and others on other occasions. These poor defenceless creatures were immediately fired upon, stabbed and hatcheted to death! The good Shehaes, among the rest, cut to pieces in his bed. All of them were scalped, and otherwise horribly mangled. Then their huts were set on fire, and most of them burnt down. When the troop, pleased with their own conduct and bravery, but enraged that any of the poor Indians had escaped the massacre, rode off. [FN263]
At that point, the magistrates of Lancaster County took the remaining members of the tribe into custody for official protection, but Franklin explains that this did nothing to stop the white mob from finishing its dirty work:
Those cruel men again assembled themselves, and hearing that the remaining fourteen Indians were in the work_house at Lancaster, they suddenly appeared in that town, on the 27th of December. Fifty of them, armed as before, dismounting, went directly to the work_house, and by violence broke open the door and entered, and with the utmost fury in their countenances. When the poor wretches saw they had no protection nigh, nor could possibly escape, and being without the least weapon for defence, they divided into their little families, the children clinging to their parents. They fell on their knees, protested their innocence, declared their love to the English, and that, in their whole lives, they had never done them any injury; and in this posture they all received the hatchet! Women and little children__were every one inhumanely murdered!__in cold blood! [FN264]
The murderers took off on their horses and forever escaped legal punishment or sanction. “But the wickedness cannot be covered,” Franklin wrote. “The guilt will lie on the whole land till justice is done on the murderers. THE BLOOD OF THE INNOCENT WILL CRY TO HEAVEN FOR VENGEANCE.” [FN265]
This little exercise in terror and murder recorded with heartbreaking intensity by Benjamin Franklin is part of the vast historical reign of terror against the Indians that continues in a different guise today. This history now includes the bungled, fraudulent handling of Indian trust funds, a kind of malicious financial mismanagement that would have caused “a war” had it been committed against other American citizens in the Social Security *273 system, according to one Congressman. [FN266] Unlike Professor Pierce, Benjamin Franklin’s sympathies lay with the Indian victims of white violence and abuse, not with government officials blocking an historical investigation.
In the post_September 11 age of al Qaeda and Osama Bin Laden, we should all surely be careful about promiscuously throwing the word “terror” around. Yet, I do not suppose that the families of victims of the catastrophic terrorism of 9/11 would begrudge the use of the word “terror” to describe the miserable and brutalizing experience of Indians dealing with the federal government over the centuries in the United States. The word fits in this context.
The word does not fit as Professor Pierce uses it. To use “terror” to describe the experience of well_paid and well_defended government officials and civil servants asked to produce documents in a federal lawsuit, especially a suit seeking to vindicate Indian property rights, reflects, at the very least, a profound moral dyslexia. I could quote a large group of anonymous friends who agree with me, but I choose rather to take credit for my own views of the matter. For Professor Pierce to call Judge Lamberth’s work on the Indian trust case a “reign of terror” is just plain wrong.
[FNa1]. Professor of Law, American University Washington College of Law. A.B. Harvard College 1983, J.D. Harvard Law School 1987. The author is “of counsel” to the plaintiffs’ legal team in Cobell v. Norton and wishes to thank his co_counsels Keith Harper, Dennis Gingold, and Elliott Levitas for their insightful comments. He also wishes to give special thanks to his colleague Andrew F. Popper for his vision.
[FN1]. Jean_Jacques Rousseau, The Confessions and Correspondence 397 (Christopher Kelly et al. eds., Univ. Press of New England 1995).
[FN2]. See Cobell v. Norton, 283 F. Supp. 2d 66 (D.D.C. 2003); Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003); Cobell v. Norton, 226 F. Supp. 2d 1, vacated in part by, 334 F.3d 1128; Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001); Cobell v. Babbit, 91 F. Supp. 2d 1 (D.D.C. 1999); Cobell v. Babbit, 188 F.R.D. 122 (D.D.C. 1999); Cobell v. Babbit, 52 F. Supp. 2d 11 (D.D.C. 1999); Cobell v. Babbit, 37 F. Supp. 2d 6 (D.D.C. 1999); Cobell v. Babbit, 30 F. Supp. 2d 24 (D.D.C. 1998).
[FN3]. Richard J. Pierce Compl. at 1.
[FN4]. Mem. of Judge David Sentelle on Judicial Council Compt. 04_01, May 17, 2004.
[FN5]. Id. at 2.
[FN6]. See Order of the Judicial Council for the District of Columbia (July 9, 2004).
[FN7]. Richard S. Pierce, Jr., Judge Lamberth’s Reign of Terror at the Department of the Interior, 56 Admin. L. Rev. 235 (2004).
[FN8]. See Leonard M. Baynes, Deregulatory Injustice and Electronic Redlining, 56 Admin. L. Rev. 263 (2004).
[FN9]. See Andrew P. Morriss, Bruce Yandle, Andrew Dorchak, Regulating By Litigation: The EPA’s Regulation of Heavy_Duty Diesel Engines, 56 Admin. L. Rev. 403 (2004); see also Cary Coglianese, E_Rulemaking: Information Technology and the Regulatory Process, 56 Admin. L. Rev. 353 (2004); Heather E. Kilgore, Signed, Sealed, Protected: Solutions to Agency Handling of Confidential Business Information in Informal Rulemaking, 56 Admin. L. Rev. 519 (2004); Sarah M. Haley, Single_Judge Adjudication in the Court of Appeals for Veterans Claims and the Devaluation of Stare Decisis, 56 Admin. L. Rev. 535 (2004)
[FN10]. See infra Part I.
[FN11]. Cobell v. Babbit, 30 F. Supp. 2d 24 (D.D.C. 1998).
[FN12]. Id.
[FN13]. See supra note 2 (listing the relevant cases of Cobell v. Norton and Cobell v. Babbitt).
[FN14]. Id.
[FN15]. See generally Cobell, 283 F. Supp. 2d at 66; Cobell, 334 F.3d at 1128.
[FN16]. See infra notes 91_93.
[FN17]. See, e.g., Cobell v. Norton, 226 F. Supp. 2d 1, 155 (D.D.C. 2002), vacated by, Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003), reh’g en banc denied, Oct. 20, 2003; see also Cobell v. Norton, 205 F.R.D. 52, 54_ 55 (D.D.C. 2002).
[FN18]. See Cobell, 226 F. Supp. 2d at 146_47 (“The Court has thus chosen to stay its hand for the last time so that it can see whether the defendants … can finally comply with orders of this Court and begin to discharge their fiduciary obligations properly.”).
[FN19]. The Court’s inherent power to apply sanctions in litigation for party and lawyer misconduct includes a broad array of powers. See Daniel S. Jacobs, The Role of the Federal Government in Defending Public Interest Litigation, 44 Santa Clara L. Rev. 1, 5_6 (2003) (arguing that the government is no different from the private litigant when deciding whether to apply sanctions). “The inherent power encompasses the power to sanction attorney or party misconduct, and the power to enter a default judgment. Other inherent power sanctions available to courts include fines, awards of attorneys’ fees and expenses, contempt citations, disqualifications or suspensions of counsel, and drawing adverse evidentiary inferences or precluding the admission of evidence.” Id. (quoting Shepherd v. Am. Bread Co., 62 F.3d 1469, 1475 (D.C. Cir. 1995)) (citations omitted).
[FN20]. 5 U.S. 137 (1803).
[FN21]. See id. at 146 (“It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress.”).
[FN22]. Rousseau, supra note 1, at 397.
[FN23]. Cobell v. Norton has produced numerous judicial decisions. The history of the case is described in Cobell v. Norton, 283 F. Supp. 2d 66 (D.D.C. 2003) and Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003).
[FN24]. See supra note 2 (listing the relevant cases of Cobell v. Norton and Cobell v. Babbitt).
[FN25]. Pierce, supra note 7, at 236.
[FN26]. Cobell, 240 F.3d at 1086.
[FN27]. Cobell, 283 F. Supp. 2d at 72. Professor Pierce apparently borrows Judge Lamberth’s “chapter” phraseology but changes the judge’s description of “one of the darkest” chapters in our history to “one of the saddest,” which is like describing Russian progroms or the Rwandan genocide as a “sad chapter” rather than the demolition of a people and a crime against humanity. See Pierce, supra note 7, at 236.
[FN28]. Cobell, 283 F. Supp. 2d at 73.
[FN29]. Id.
[FN30]. Id.
[FN31]. Id.
[FN32]. Id.
[FN33]. Cobell, 283 F. Supp. 2d at 73.
[FN34]. Id. (citing Cherokee Nation v. Georgia, 30 U.S. 1 (1831)).
[FN35]. Worcester v. Georgia, 31 U.S. 515, 520 (1832).
[FN36]. Indian Removal Act, 21st Cong. 148, 4 Stat. 411 (1830).
[FN37]. Cobell, 283 F. Supp. 2d at 73.
[FN38]. Id.
[FN39]. Id.
[FN40]. Id. For the full text of the Treaty, see Treaty of New Echota, Dec. 29, 1835, 7 Stat. 478.
[FN41]. Id. at 73_74.
[FN42]. Id. at 74.
[FN43]. Id.
[FN44]. Id. For a description of the allotment process, see id. at 74 n.2 (quoting Kicking Woman v. Hodel, 878 F.2d 1203, 1204 n.1 (9th Cir. 1989)).
[FN45]. Cobell, 283 F. Supp. 2d at 74 (quoting Vine Deloria, Jr. & Clifford M. Lytle, American Indians, American Justice 8 (1983)).
[FN46]. Kenneth H. Bobroff, Retelling Allotment: Indian Property Rights and the Myth of Common Ownership, 54 Vand. L. Rev. 1559, 1565 (2001).
[FN47]. Id. at 1568.
[FN48]. Id.
[FN49]. Id. at 1569 (quoting Merrill E. Gates’ address at the Lake Melonk Conference (1900), reprinted in Americanizing the American Indians, 339_40, 342 (Francis Paul Prucha ed., 1973)). In this speech, Gates borrowed language from President Theodore Roosevelt. Id. at 1610.
[FN50]. Cobell v. Babbitt, 91 F. Supp. 2d 1, 7_8 (D.D.C. 1999).
[FN51]. See Cobell v. Norton, 283 F. Supp. 2d 66, 74 n.2 (D.D.C. 2003) (“According to Bureau of Indian Affairs’ records, roughly 585,000 acres of Indian lands were allotted prior to 1887.”) (citing testimony of Dr. Edward Angel).
[FN52]. Act of Feb. 8, 1887, ch. 119, 24 Stat. 388, repealed by Pub. L. No. 106_462 § 106(a)(1), 114 Stat. 2007 (Nov. 7, 2007).
[FN53]. Cobell, 283 F. Supp. 2d at 74.
[FN54]. Id.
[FN55]. Id.
[FN56]. Id. (citing The General Allotment Act, supra note 52).
[FN57]. Id.
[FN58]. Cobell v. Norton, 240 F.3d 1081, 1087 (D.C. Cir. 2001).
[FN59]. See Bobroff, supra note 46, at 1560_61.
[FN60]. Id. at 1561.
[FN61]. See id. at 1609_11 (noting that the best lands often went to white settlers).
[FN62]. Cobell, 283 F. Supp. 2d at 75.
[FN63]. See id. (telling of the distinct separations between the Indian nations and their neighboring white communities).
[FN64]. Id.
[FN65]. Indian Reorganization Act, June 18, 1934, Pub. L. No. 73_383, 48 Stat. 984.
[FN66]. Cobell, 283 F. Supp. 2d at 75.
[FN67]. Id.
[FN68]. Cobell, 240 F.3d at 1087.
[FN69]. Cobell, 283 F. Supp. 2d at 76.
[FN70]. Id.
[FN71]. Id.
[FN72]. Id.
[FN73]. Id.
[FN74]. Id. at 77.
[FN75]. H.R. Rep. No. 103_778, at 9 (1994).
[FN76]. Cobell, 283 F. Supp. 2d at 77 (quoting “Misplaced Trust: The Bureau of Indian Affairs’ Mismanagement of the Indian Trust Fund,” described in H.R. Rep. No. 103_778, at 9_10 (1994), reprinted in 1994 U.S.C.C.A.N. 3467, 3468_69).
[FN77]. Cobell v. Babbitt, 91 F. Supp. 2d 1, 12 (D.D.C. 1999).
[FN78]. Oct. 25, 1994, Pub. L. No. 103_412, 108 Stat. 4239 (creating guidelines for reforming the Trust).
[FN79]. Cobell, 283 F. Supp. 2d at 78 (quoting 140 Cong. Rec. H27,243 (1994)).
[FN80]. Id. at 78_79 (quoting 40 Cong. Rec. H27,243_44 (1994)).
[FN81]. Id. at 79 (quoting 139 Cong. Rec. S9586 (1993)).
[FN82]. Id. at 80 (quoting Hearing on H.R. 1846 and H.R. 4833 before the Subcommittee on Native American Affairs of the House Committee on Natural Resources, 103d Cong. 64 (Aug. 11, 1994)).
[FN83]. Id.
[FN84]. See American Indian Trust Management Reform Act, 25 U.S.C. § 4043 (1994).
[FN85]. See Cobell v. Norton, 30 F. Supp. 2d 24, 28 (1998).
[FN86]. See id. at 28.
[FN87]. Cobell, 283 F. Supp. 2d at 81.
[FN88]. Id.
[FN89]. Id.
[FN90]. Pierce, supra note 7, at 239.
[FN91]. See supra note 2.
[FN92]. Cobell v. Babbitt, 91 F. Supp. 2d 1 (D.D.C. 1999).
[FN93]. Id.
[FN94]. Id. at 58.
[FN95]. Id. at 59.
[FN96]. Id.
[FN97]. Cobell, 91 F. Supp. 2d at 59.
[FN98]. Cobell v. Norton, 240 F.3d 1081, 1094 (D.C. Cir. 2001).
[FN99]. Id. at 1110.
[FN100]. Id. at 1106.
[FN101]. Id.
[FN102]. Cobell v. Babbitt, 37 F. Supp. 2d 6, 9 (1999).
[FN103]. Id. at 38.
[FN104]. Id. at 39.
[FN105]. Cobell v. Norton, 226 F. Supp. 2d 1 (2002).
[FN106]. Id. at 161.
[FN107]. Id.
[FN108]. Id. at 11.
[FN109]. Id. at 114, 118.
[FN110]. Id. at 118_22.
[FN111]. Cobell, 226 F. Supp. 2d at 122.
[FN112]. Id. at 124_27.
[FN113]. Id. at 127_28.
[FN114]. Id. at 147.
[FN115]. Id.
[FN116]. Id. at 147.
[FN117]. Cobell, 226 F. Supp. 2d at 147_48.
[FN118]. Id. at 146_47 n.154.
[FN119]. Id. at 11.
[FN120]. Cobell v. Norton, 334 F.3d 1128, 1147_50 (D.C. Cir. 2003).
[FN121]. Id. at 1146_47.
[FN122]. Id. at 1147_50.
[FN123]. Id.
[FN124]. Cobell v. Norton, 283 F. Supp. 2d 66, 86 (D.D.C. 2003).
[FN125]. See id. at 127 (concluding that “Interior has failed to direct this Court to any case law that would preclude the issuance of a structural injunction in the present case”).
[FN126]. Id. at 86.
[FN127]. See In re Phillip A. Brooks, 2004 WL 2032521 (D.C. Cir. Sept. 14, 2004).
[FN128]. Pierce, supra note 7, at 235.
[FN129]. See, e.g., Bruce Babbit, Former Interior Secretary, To Speak At CU_Boulder April 20, News Release, Univ. of Colorado at Boulder, Apr. 7, 2004, at http://www.colorado.edu/news/releases/2004/112.html (last visited Jan. 11, 2005) (calling the former Secretary and Arizona governer “one of the West’s most important Western political figures…”); Ex_treasury Secretary Rubin Named to Harvard Board, CNN.com, Apr. 8, 2002, at http:// archives.cnn.com/2002/fyi/teachers.ednews/04/08/harvard.rubin.reut (last visited Jan. 11, 2005) (heralding the former Secretary as “one of the most accomplished and admired Harvard alumni of his generation”); Secretary of the Interior Wins Sheldon Coleman Great Outdoors Award, American Recreation Coalition, June 15, 2004, at http://funoutdoors.com/node/view/945 (last visited Jan. 11, 2005) (recognizing Secretary Norton’s “leadership on behalf of outdoor recreation”).
[FN130]. Patriot Act of 2001, Pub. L. No. 107_56, 115 Stat. 272 (codified as amended in scattered sections of 272 U.S.C.).
[FN131]. See Memorandum from Judge Royce Lamberth, to Honorable David B. Sentelle, Acting Chief Judge United States Court of Appeals for the District of Columbia Circuit, at 36 (Apr. 19, 2004) (arguing that Professor Pierce’s renderings of events are based on “patently false statements, half_truths, and assertions aimed solely to malign”).
[FN132]. Memorandum from Judge David B. Sentelle, Acting Chief Judge United States Court of Appeals for the District of Columbia Circuit (May 17, 2004) (discussing Judicial Council Complaint 04_01).
[FN133]. Order of Judicial Council, supra note 6.
[FN134]. See id. (denying Professor Pierc’s petition for review and thereby exhausting Professor Pierce’s legal remedies against Judge Lamberth).
[FN135]. See Pierce, supra note 7, at 235 (opening his article with the statement “Cobell v. Norton is an extraordinary case” (citation omitted)).
[FN136]. Id.
[FN137]. Id. at 236.
[FN138]. 319 U.S. 624 (1943).
[FN139]. 347 U.S. 483 (1954).
[FN140]. 384 U.S. 436 (1966).
[FN141]. 410 U.S. 113 (1973).
[FN142]. Pierce, supra note 7, at 235.
[FN143]. See McBride v. Coleman, 955 F.2d 571 (8th Cir. 1992).
[FN144]. See Sierra Club v. Ruckelshaus, 602 F. Supp. 892 (N.D. Cal. 1984).
[FN145]. See In re Attorney General of the United States, 596 F.2d 58 (2d Cir. 1979), cert denied sub nom., Socialist Workers Party v. Attorney General of the United States, 444 U.S. 903 (1979).
[FN146]. See Mescal v. United States, 161 F.R.D. 450, 455 (D.N.M. 1995).
[FN147]. Pierce, supra note 7, at 236.
[FN148]. Memorandum from Judge Royce Lamberth, supra note 131, at 8_9.
[FN149]. Pierce, supra note 7, at 239.
[FN150]. Id. at 239_40.
[FN151]. Id. at 239.
[FN152]. Id. at 240.
[FN153]. Id.
[FN154]. See Cobell v. Babbitt, 37 F. Supp. 2d 6 (D.D.C. 1999).
[FN155]. Pierce, supra note 7, at 240_41.
[FN156]. Id. (citations omitted).
[FN157]. See id. at 241_42.
[FN158]. Id.
[FN159]. See Memorandum from Judge Royce Lamberth, supra note 131, at 15 (stating that the order of production “require[ed] all of the defendants to produce ‘[a]ll documents, records, and tangible things which embody, refer to, or relate to IIM accounts of the five named plaintiffs”‘).
[FN160]. See id. at 15 (citing Transcript of November 27, 1996 Status Call at 3).
[FN161]. Id.
[FN162]. Cobell v. Norton, 240 F.3d 1081, 1093 (D.D.C. 2001) (citations omitted).
[FN163]. See Memorandum from Judge Royce Lamberth, supra note 131, at 15 (quoting the First Order of Production).
[FN164]. Id. (quoting Transcript of December 6, 1996 Status Call at 8).
[FN165]. Id.
[FN166]. Id. (citing December 27, 1996 Status Report at 7).
[FN167]. Id. at 15_16.
[FN168]. Id. at 16 (citing Feb. 11, 1997 status Report at 4).
[FN169]. Memorandum from Judge Royce Lamberth, supra note 131, at 16.
[FN170]. Id.
[FN171]. See id. (noting that after the March 3, 1997 deadline passed, the court held monthly status calls “to determine the status of document production”).
[FN172]. See id. at 16 (citing Transcript of May 19, 1997 Status Call at 10).
[FN173]. Id. at 16_17 (emphasis added).
[FN174]. Id. (citing Defendants’ Exhibit #26 to Contempt I Trial) (emphasis added).
[FN175]. Memorandum from Judge Royce Lamberth, supra note 131, at 17.
[FN176]. Id.
[FN177]. Id.
[FN178]. Id. at 18.
[FN179]. Id. at 19.
[FN180]. Id. at 18 (citing Christie Deposition at 216_18).
[FN181]. Memorandum from Judge Royce Lamberth, supra note 131, at 18.
[FN182]. Id. (citing Defendants’ Motion to Quash, for Protective Order, and for Expedited Consideration).
[FN183]. Id.
[FN184]. Id.
[FN185]. Id. at 18 (citing Transcript of Aug. 18, 1998 Status Call, at 24_25).
[FN186]. Id. at 19.
[FN187]. See Memorandum from Judge Royce Lamberth, supra note 131, at 19 (citation omitted).
[FN188]. Id. (citation omitted).
[FN189]. Cobell v. Norton, 37 F. Supp. 2d 6, 38 (D.D.C. 1999).
[FN190]. Pierce, supra note 7, at 241.
[FN191]. Id. at 242.
[FN192]. See Cobell, 37 F. Supp. 2d at 8_9. Judge Lamberth granted the government’s motion “with some pause.” See Pierce, supra note 7, at 240.
[FN193]. See Cobell, 37 F. Supp. 2d at 8 n.1.
[FN194]. See Pierce, supra note 7, at 242.
[FN195]. See Cobell, 37 F. Supp. 2d at 21_22 (noting that the defendants “have displayed an evident sense of nonurgency bordering on indifference, contrasting vividly with the spurt of activity on the heals of plaintiffs’ motion for a finding of contempt”).
[FN196]. Id. at 14_15.
[FN197]. Pierce, supra note 7, at 253 n.121.
[FN198]. Id.
[FN199]. Id.
[FN200]. See Susan Schmidt, Insiders Worked Both Sides of Gaming Issue, Wash. Post, Sept. 26, 2004, at A1 (describing Republican lobbyists and operatives maneuvering duplicitously to shake down Indian tribes for lobbying fees).
[FN201]. See Cobell v. Norton, 334 F.3d 1128, 1150 (D.C. Cir. 2003).
[FN202]. Pierce, supra note 7, at 244.
[FN203]. Id.
[FN204]. Id.
[FN205]. Id.
[FN206]. See Cobell v. Norton, 283 F. Supp. 2d 66, 189 (D.D.C. 2003).
[FN207]. See id. at 192 (“[N]one of the cases cited by Interior provide support for the use of sampling methods in the performance of a trust accounting.”).
[FN208]. See Department of Commerce v. United States House of Representatives, 525 U.S. 316, 343 (1999) (“[W]e conclude that the Census Act prohibits the proposed uses of statistical sampling in calculating the population for purposes of apportionment.”).
[FN209]. See Pierce, supra note 7, at 245_46 (discussing the internet disconnect orders).
[FN210]. See id. at 245 (describing the internet disconnect orders as “[t]he other collateral proceedings”).
[FN211]. Memorandum from Judge Royce Lamberth, supra note 131, at 31; see also Cobell v. Norton, 240 F.3d 1081, 1105 (D.C. Cir. 2001) (discussing the D.C. Circuit’s recognition that the government’s “broad duty to provide a complete historical accounting to IIM beneficiaries” may also “include an obligation to develop or obtain computer software capable of tracking and reconciling fund data, hire staff sufficient to execute management duties, and implement specific plans to ensure that all reasonable efforts are made to provide the most complete and accurate historical accounting of IIM trust funds that is possible”).
[FN212]. See, e.g., Restatement (Second) of Trusts § 172 (1959) (“The trustee is under a duty to the beneficiary to keep and render clear and accurate accounts with respect to the administration of the trust.”); id. § 173 (“The trustee is under a duty to the beneficiary to give him upon his request at reasonable times complete and accurate information as to the nature and amount of the trust property, and to permit him or a person duly authorized by him to inspect the subject matter of the trust and the accounts and vouchers and other documents relating to the trust.”); id. § 176 (“The trustee is under a duty to the beneficiary to use reasonable care and skill to preserve the trust property.”).
[FN213]. Cobell, 240 F.3d at 1093.
[FN214]. Cobell v. Norton, 205 F.R.D. 52, 55 (D.D.C. 2002).
[FN215]. Report and Recommendation of the Special Master Regarding the Security of Trust Data at the Department of the Interior, Dec. 4, 2001 [hereinafter Special Master Report].
[FN216]. Pierce, supra note 7, at 245.
[FN217]. See id. (noting that the “reports described in detail a wide variety of inadequacies in the DOI’s computer security”).
[FN218]. See Consent Order Regarding Information Technology Security, Dec. 17, 2001 at 4 (“Interior Defendants recognize significant deficiencies in the security of information technology systems protecting individual Indian trust data. Correcting these deficiencies merits Interior Defendants’ immediate attention.”).
[FN219]. Special Master Report, supra note 215, at 24_35 (finding that “[m]anagement officials and software programmers could add, change, and delete without sufficient audit trails to identify the individuals who entered or changed the data”).
[FN220]. Computer Security Report Card: Hearing Before the Subcomm. On Gov’t Mgmt., Info. & Tech. of the House Comm. On Gov’t Reform, 106th Cong. 260 (2000).
[FN221]. See id. at 8.
[FN222]. See id. at 16.
[FN223]. Pierce, supra note 7, at 246 n.90.
[FN224]. Cobell, 240 F. 3d at 1099.
[FN225]. Memorandum from Judge Royce Lamberth, supra note 131, at 33 (citing Special Master Report, supra note 215, at 45_46).
[FN226]. Id. at 35.
[FN227]. See Special Master Report, supra note 215, at 45_46.
[FN228]. 349 U.S. 294 (1955).
[FN229]. Pierce, supra note 7, at 247 n.95 (citing Dep’t of Justice Rep. to the Court at 1, Cobell v. Norton, No. 96_1285 (D.D.C. filed June 18, 2003)). These fees paid by taxpayers to private counsel representing Secretary Norton and others are, of course, likely to be considered taxable income to the person represented by such lawyers.
[FN230]. Pierce, supra note 7, at 247.
[FN231]. Id.
[FN232]. Id.
[FN233]. Id.
[FN234]. Id. at 247_48.
[FN235]. Pierce, supra note 7, at 248.
[FN236]. Id.
[FN237]. Id. at 248_49.
[FN238]. Id. at 249.
[FN239]. See H. Rep. No. 105_830 (1998).
[FN240]. See Clinton v. Jones, 520 U.S. 681 (1997).
[FN241]. Id. at 249.
[FN242]. See Cobell v. Norton, 2002 WL 31060154 (D.D.C.) (2002) (granting a show cause order against the government defendants for contempt and sanctions based on violation of an anti_retaliation order after they retaliated against Department of Interior employee Mon Infield for giving affidavits to the court).
[FN243]. Editor’s Note: Consistent with standard law review practice, some resources may remain on file with an author. Accordingly, the Administrative Law Review invites readers who seek more information on this source to contact Professor Richard J. Pierce, Jr. directly at The George Washington University Law School.
[FN244]. Pierce, supra note 7, at 249.
[FN245]. Id.
[FN246]. Id. at 249_50.
[FN247]. Id. at 250.
[FN248]. See Site Visit Report of the Special Master to the Office of Appraisal Services in Gallup, New Mexico and the Bureau of Indian Affairs Navajo Realty Office in Window Rock, Arizona, August 20, 2003 at 3 (reporting that “Navajo allottees receive payments for [Rights of Way]” from corporations using their land that are “‘much less’ than those payments received by neighboring tribes and private landowners” and quoting statement of Bureau of Indian Affairs Realty Officer Graham that “Navajo allottees do not receive ‘the benefit of the bargain,’ i.e. [Right of Way] payments comparable to those received by similarly situated private and tribal landowners”); id. at 37 (concluding that Secretary of Interior has violated its trust duty to ensure just compensation to Indian beneficiaries for rights of way as it “erased, deleted, and misplaced trust information vital to the valuation of [Rights of Way].”).
[FN249]. If Professor Pierce really wants us to focus on the damage the case has done to his campaign to promote public service options to his students, it must be observed that Judge Lamberth’s administration of the Cobell case has then actually done us another favor by bringing Professor Pierce’s pinched vision of legal practice and public interest to the light of day. As an informal career counselor, Professor Pierce has apparently structured his students’ professional options as a choice between becoming a well_paid corporate lawyer defending polluters or taking a medium salary as a Department of Interior lawyer working 9 to 5 and defending with blind zeal the government’s mismanagement of the Indian trusts. It is a telling dichotomy he has created, one that not only denies the possibility of people in big law firms doing socially valuable work or government lawyers working past 5:00 p.m., but one that erases the independent public service option. After all, Professor Pierce’s students might consider working for justice_seeking public interest groups like the Native American Rights Fund, which is helping to represent the plaintiffs in Cobell. From the vignette Professor
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