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Norton rejects invitation to testify on trust fund
Monday, February 28, 2005

Interior Secretary Gale Norton won't testify about allegations of retaliation against Indian beneficiaries, lawyers for the Bush administration said last week.

U.S. District Judge Royce Lamberth invited Norton to testify in a February 8 ruling. He said she would be able to provide evidence that would determine whether the federal government retaliated against account holders by withholding their checks and refusing to communicate with them.

In a response filed last Tuesday, the Department of Justice rejected the invitation. Attorneys said the claims of retaliation aren't supported by evidence in the record and that a hearing on the issue isn't warranted.

But if Lamberth goes ahead and holds a hearing, "officials of a lower level than a Cabinet officer" -- rather than Norton -- should testify, the filing stated.

The government was accused of punishing Indian beneficiaries last fall in the wake of a court ruling that suspended the sale of allotments in Oklahoma. The decision had impacts throughout the nation, with tribal members complaining of mistreatment. They said the Bureau of Indian Affairs held back checks and refused to talk about their accounts, blaming the silence on the court.

"There is activity going on that probably would be best characterized as retaliation," said Michael E. Marchand, a council member for the Confederated Colville Tribes of Washington, at the National Congress of American Indians conference in October. "I don't know what else you would call it." Marchand said the BIA called off a previously scheduled meeting with Colville tribal members due to a "gag order" in the Cobell v. Norton case.

Special Trustee Ross Swimmer refuted the claims at the conference despite issuing a memo that said all communication with beneficiaries should be "put on hold until further notice." Swimmer denied the memo directed the BIA to stop issuing checks but that he had had no control over individual employees who may or may not acted on their own.

In court affidavits, some accounts holders said they were indeed stonewalled by BIA employees. One woman, Carmen Patricio, said she faces eviction and can't pay her electricity and other utilities because she hasn't received a trust fund payment.

After calling the BIA agency in Papago, Arizona, to find out about her money, she was told the agency "could not do anything with the land because of Cobell," according to the sworn statement.

Interior later sought to clarify Swimmer's memo but did not immediately address the check issue. A second clarification, with more explicit instructions to the BIA, came only after Lamberth held a hearing and accused the department of lying to the court.

In last week's response, department said their first clarification did not include the warning to the BIA because the Office of Special Trustee -- not the BIA -- issues checks. According to Norton's lawyers, "the local agency employees to whom the [second] instructions were sent do not send out trust checks" so they are presumably unable to retaliate against anyone.

The Bush administration has given OST more and more power over the daily handling of the trust fund. The agency is now manning a 24-hour "call center" designed to handle inquiries from beneficiaries.

"We have found out that ... in 92 percent [of the calls] the first person they talk to, that person at the call center was been able to answer their question," Donna Erwin, the deputy special trustee, said in an interview earlier this month.

Court Filings:
Norton Declines to Testify | Plaintiffs Cite Retaliation

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
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust