January 24, 2001
For Further Information Contact: NARF; Philip Smith, (202) 661-6350
BABBITT'S LAST-MINUTE ORDER TO CONDUCT "STATISTICAL SAMPLING" OF TRUST ACCOUNTS WILL WASTE UP TO $70 MILLION
WASHINGTON, DC – An order by ex-Interior Secretary Bruce Babbitt, issued in the Clinton administration's final days, directs officials to conduct "statistical sampling" of individual Indian trust accounts even though the project does not conform to a federal judge's ruling and may cost up to $70 million with no chance of success.
Indian plaintiffs in Cobell v. Babbitt oppose Babbitt's action saying his December 29, 2000 order is bound to fail because most critical trust documents have been lost or destroyed by the Departments of Interior and Treasury for more than a century, and the Interior's database is unreliable. Plaintiffs believe that senior officials in the Interior Department know that the sampling project is fatally flawed, but that Interior and the Justice Department intend to use it to bootstrap their appeal of a federal court decision that ordered a full accounting of the trusts.
"This is another desperate effort to distract the Courts and Congress from their utter inability to complete a full and accurate accounting, as required by law," said Elouise Cobell, the lead plaintiff. "I certainly hope the Bush Administration can get control of the Justice Department, obey the law and the federal judge's orders and start to restore some integrity to this disgrace."
U.S. District Judge Royce C. Lamberth, in a December 21, 1999 decision that held the government in breach of its trust duties to American Indians, noted that Congress specifically ordered that the Interior Secretary "shall account for the daily and annual balance of all funds held in trust by the United States for the benefit of.an individual Indian. [It] is clear that 'shall' places a mandatory duty on the Secretary of the Interior to take the enumerated action," Lamberth wrote. "Shall means shallThe only issue is whether 'all funds' meant, as defendants [the government] urge, some subset of funds held in the IIM trust. To the contrary, Congress directed that the Secretary of the Interior account for all funds. The Court cannot put a finer point on it than that."
The Justice Department appealed Lamberth's ruling in January 2000. The appeal is currently pending.
Despite the lack of key documents and in spite of Lamberth's ruling, Interior scheduled a series of eighty meetings around the country last year, seeking opinions from Indian trust beneficiaries about the acceptability of statistical sampling rather than an individual accounting to determine the accuracy of current trust accounts.
On January 9, 2000, the Justice Department filed papers notifying the U.S. Court of Appeals of Babbitt's order, together with accompanying memos from Special Trustee Thomas Slonaker and then-head of the Bureau of Indian Affairs Kevin Gover. In his memo, Gover acknowledges that the "overwhelming majority" of Indian trust beneficiaries attending the meetings wanted "a transaction-by-transaction reconciliation" of their accounts, not statistical sampling. The Gover memo cites Congressional concerns, expressed last fall in the Interior appropriations conference report, that an individual accounting would be costly and time-consuming, notwithstanding Judge Lamberth's ruling.
An attempt by lawyers for the Indian plaintiffs to depose Slonaker and Thompson in recent days has been obstructed by the Justice Department. The plaintiffs asked the Court-appointed Special Master, Alan Balaran, on January 18, 2000 to order Interior officials to appear for deposition questioning. During settlement negotiations last year, both Slonaker and Thompson told plaintiffs' attorneys that they believed a statistical sampling would be a significant waste of time and money and that the government is incapable of furnishing an accurate and complete accounting of the trust accounts, as ordered by Judge Lamberth.
The Native American Rights Fund and private attorneys filed the Cobell v. Babbitt class-action lawsuit in 1996 to hold the federal government accountable for the on-going mismanagement of the Individual Indian Money (IIM) trust fund accounts. By law, the accounts are held in trust by the government and are comprised primarily of money that is earned by Indians through leases of their land for oil, gas, timber, ranching and farming. For more information about Cobell v. Babbitt, visit www.narf.org and www.indiantrust.com