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Nov 15, 2002
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Interior
Dodges Civil Contempt:
Court Describes Department as ‘Reprehensible’
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By Jean Pagano
United States District Judge
Royce C. Lamberth ruled this week on a Motion for Order to Show Cause
in Cobell v. Secretary of the Interior et al. (Cobell).
Judge Lamberth rejected the plaintiffs’ motion by overruling the
Special Master’s recommendation that Secretary Norton and her
counsel be held in civil contempt for their conduct regarding the
Special Master’s Anti-Reprisal Order of February 8, 2001.
The Court found that the Department of
the Interior’s reaction to the Special Master’s Anti-Reprisal
Order was seriously deficient: “The Court finds that while
Interior’s initial reaction to the Special Master’s Anti-Reprisal
Order was reprehensible and came perilously close to ‘deliberate or
reckless disregard,’ their subsequent actions to remedy these
deficiencies mitigate against such a finding.”
The Special Master’s Anti-Reprisal
Order contained three provisions. They are: 1) that all BIA employees
may contact the office of the Office of the Special Master for any
and all issues relating to the protection and preservation of
Individual Indian Money (IIM) records; (2) that all such
communication will be kept strictly confidential; and (3) that any
employee that contacts the Special Master to report on matters
relating to IIM records will be protected from retaliation pursuant
to the Court’s order date May 21, 1999.
The Court, in its denial stated,
“…while the Court possesses grave misgivings regarding Interior’s
initial ‘good faith’ in the matter of the Anti-Reprisal Order,
its subsequent efforts to remedy its own deficiencies constituted
“substantial compliance” with the Anti-Reprisal Order.”
According to the law, ‘substantial compliance’ negates a finding
of contempt.
This issue at hand is that the
Department of the Interior is the trustee for millions of dollars
worth of IIM accounts and even though billions of dollars have passed
through the Department of Interior as trustee, perhaps $10 billion
are missing or misappropriated. Judge Lamberth has required Interior
to provide an accounting of all IIMs. Yet to date, the Department of
Interior under Gale Norton and her predecessor Bruce Babbitt have
been very slow in complying. The Court has had such difficulty in
getting results from the Department of the Interior that it has
appointed a ‘Special Master’ and a ‘Special Master-Monitor’
to help it bring Interior into compliance. The Department is now
asking the people of the United States to pay for its legal costs in
defending itself from Cobell and the affiliated motions
arising from it.
Judge Lamberth cites United States
v. Ryan, 810 F.2d. 650-655 (7th Circuit 1987), in
writing, “The Court observes that, notwithstanding Interior’s
success at purging itself of civil contempt, its initial spotty
compliance with the Anti-Reprisal Order may support a finding of
criminal contempt.”
<> Furthermore, Judge Lamberth states
that he finds it troubling that the Interior Department, under Gale
Norton, refused to comply with the Anti-Reprisal order in the first
place.
<>
<>Judge Lamberth
closes his most recent decision with the following warning: “Although
the Court will stay its hand in this instance, future attempts to
subvert the Special Master’s orders or to retaliate against
witnesses will neither be tolerated nor met with such charity.” |
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