Denver Post Editorial
U.S. Interior Secretary Gale Norton should use a federal appeals court ruling as political leverage to resolve the Indian trust fund mess.
Last week’s unanimous decision by the U.S. Circuit Court of Appeals was a slam-dunk victory for Indians who sued the government to clean up the trust fund. The government was supposed to collect money from mineral royalties, grazing leases and so forth on Indian lands, but in most cases the Indians never got the billions of dollars they were due.
After reviewing the bungled accounting and broken promises, the one liberal and two conservative judges on the Washington, D.C., appeals bench said a district court has every right and reason to supervise efforts to clean up the mess.
In this case, the government can’t claim to have the same administrative discretion as it would have in, say, building campgrounds or choosing defense contractors. Instead, the government agreed to act as a trustee for the Indians, and in doing so took on all the strict legal obligations incumbent on any trustee.
Those duties are well-established: to keep proper records, provide an accurate accounting to the beneficiaries and manage the money in the beneficiaries’ best interests. For example, if you have an Individual Retirement Account, the money is held in trust for you. Imagine how upset you’d be if the trustee said it couldn’t tell you how much money you had and refused to let you see the financial records. Now multiply that anger by 300,000 Indians for more than 100 years, and you can understand why the Indians are furious.
The government simply has run out of excuses. While the Justice Department could try to appeal the decision to the U.S. Supreme Court, that move might only delay the inevitable duty to pony up – while further running up taxpayers’ costs.
Since Interior is the client in this case, it should call the shots.
Norton should use the appeals court’s strongly worded decision as a tool to fix the mess once and for all. The government already collected the payments but didn’t forward the cash to the Indians, so the money could just be lost in the labyrinth of federal bookkeeping. Finding the bucks to settle the case may be a matter of cleaning up Uncle Sam’s spreadsheets.
Moreover, the U.S. Treasury Department has a kind of rainy day fund used to deal with unexpected contingencies and legal settlements for all federal agencies. The most palatable time to access that money is when the overall budget looks good – and right now seems ideal. Note that tapping into the contingency fund would not impact any proposed tax cuts, since the money can’t be used for any other purpose.
But the move would let Norton end a major public embarrassment plaguing the Interior Department. Most importantly, it would give Norton and her boss, President Bush, an unusual position in America history: as government leaders who actually kept their promises to the Indians.
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