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Bush calls for new judge in Cobell v. Norton case
Tuesday, August 16, 2005

The Bush administration stepped up its campaign against the federal judge overseeing the Indian trust fund, asking an appeals court on Monday to assign a new judge to the case.

In a 23-page motion, government attorneys repeated a host of familiar charges against U.S. District Judge Royce Lamberth. They accused him of overstepping his bounds and being too harsh on the government.

Pointing to a July 12 ruling in the Cobell v. Norton case, the administration called on the D.C. Circuit Court of Appeals to intervene. They said Lamberth went too far in comparing the genocide of Native people to the mishandling of the trust fund.

"The district court's sweeping, unqualified, and wholly disproportionate denunciations of the Department of the Interior and the Department of Justice create at least an appearance that the court will be unable to evaluate discrete undertakings by Interior -- or discrete submissions by Justice –- fairly, dispassionately, and on their individual merit," Peter D. Kiesler, an assistant attorney general and Bush appointee, wrote in the brief. "Reassignment is therefore warranted."

The move is the latest in the administration's long-running attempt to take Lamberth out of the picture. Since taking over in 2001, attorneys for Interior Secretary Gale Norton have challenged every single decision the judge has made, going so far as to ask the D.C. Circuit to end the case altogether.

The administration also mounted a disqualification campaign against a special master and a court monitor who were extremely critical of the government in their reports. Both officials were forced to resign from the case under extreme pressure.

Separately, a group of past and present government officials and attorneys tried to stop Lamberth from moving forward with contempt proceedings. The U.S. Supreme Court declined to get involved and now the Department of Justice has taken up the cause.

But the judge is not the issue, according to attorneys for the Cobell plaintiffs. Dennis Gingold pointed out that Lamberth was a conservative Republican nominee of the late president Ronald Reagan.

"The government's problem is the district court making them account for 100 plus years of bad facts, its pattern of unethical behavior, and its persistent strategy of diversion, delay, and obstruction -- of which this is only the most recent example," he said yesterday.

The motion was filed as part of the government's appeal of a July 12 decision that requires the Interior Department to tell Indian beneficiaries of problems with the trust. The ruling was called unprecedented by both the Cobell plaintiffs and the Bush administration.

"For the first time in the history of this case, the majority of Indian beneficiaries will be aware of the lawsuit, the plaintiffs' efforts, and the danger involved in placing any further confidence in the Department of the Interior," Lamberth wrote.

The appeal is the third case currently before the D.C. Circuit. On September 16, the court will hear the administration's challenge to a broad historical accounting and structural injunction imposed by Lamberth. On October 14, the court takes on the contempt proceeding -- a fallout of the special master disqualification campaign.

Since 2001, the appeals court has struck down three of Lamberth's decisions at the administration's request. All three times, Bush officials claimed victory, although the victories appear to have been short lived and are still in dispute.

In one instance, the D.C. Circuit lifted an order that would have required Interior to shut down its computer systems. At the same time, the court for the first time held that the Interior Secretary has a fiduciary responsibility to protect Indian trust data.

The decision led to a 61-day evidentiary hearing into the state of information technology at the department. During this time, the Bureau of Land Management was forced to cut its Internet connection and embarrassing information was repeatedly aired during the trial.

In the two other instances, the D.C. Circuit stopped the government from complying with a historical accounting and lifted contempt sanctions against Norton and former Indian affairs assistant secretary Neal McCaleb. Both times, however, the court refused to limit Lamberth's jurisdiction and left his findings against Interior undisturbed.

Department of Justice Brief:
Cobell v. Norton (August 15, 2005)

Lamberth Decision:
Cobell v. Norton (July 12, 2005)

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm

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