Talk about an abuse of power. Talk about brazen interference with an
ongoing trial on government malfeasance. If things are looking bad for you,
according to the federal government, don’t fire your lawyer – fire the
judge!

On Aug. 16, after severe tongue-lashings from the highly independent and
respected U.S. District Judge Royce Lamberth, the Justice Department took
the very rare step of requesting a hearing to argue the removal of the
judge from the Indian trust case – perhaps the most damning piece of Indian
litigation in the history of the United States.

The move is a tried and true tactic in politics: if you get in trouble, go
after the accuser; attack the opposition, or anyone beginning to line up
against your argument, even if it is the judge. The immediate gain from
this mostly sordid tactic is to change the subject, from you to your
accuser. Make him or her the object of scrutiny.

The three-judge panel, which was to have heard the government’s request for
Lamberth’s removal, has now referred the matter to a second panel of
judges, who likely will not hear the request until spring. Nevertheless,
the government’s move is a bold and outrageous attack on the judge for
showing indignity in the face of continuous stonewalling.

The mammoth Indian Trust case, brought by Blackfeet plaintiff Eloise Cobell
as a class action suit, charges the government with the mismanagement and
loss of monies due Indian tribes and individual Indian account holders. It
has become, necessarily, a litany of malfeasance and mismanagement going
back nearly 120 years.

At various points in the history of the United States, very large tracts of
land belonging to Indian tribes and to individual families – often with
mineral, water and other rights – were taken by legislative and/or
bureaucratic fiat, consistently founded on racial and religious grounds
that were highly discriminatory. Much of the loss cited by Cobell, et al.,
involves the gross mismanagement of accounts by federal bureaucracies
charged with protecting their Indian “wards,” whose property the government
was to hold in trust. But make no mistake; Indian assets were stolen by any
number of thieves both within and external to the government through the
federal “trust” system.

As the 20th century progressed, Indians were largely shut out of the
decision-making process over their lands and resources. In many, many
cases, individual families due the oil and other mineral and grazing
revenues from the lease of their rightfully owned lands were denied their
deserved payments. Often they had access to little or no recourse for their
obvious and unjust losses.

The armed occupation of Wounded Knee in 1973 that galvanized Indian
consciousness of self-government emerged, in part, from the despicable
treatment of Indian “allottees” by BIA managers. In a much more methodical
and well-documented fashion, Cobell’s lawsuit has cracked open the extent
of the injustice, the outright dispossession, by corruption and
incompetence, of a people’s right to their own property and wealth.

In the course of the trial and broad set of investigations and hearings,
Lamberth, a Texan by origin and temperament, has run into his share of
obfuscation from the government side. The judge’s intolerance for court
misconduct is legendary and after nine years (we repeat, nine years) of
trying to get some cooperation from Interior and Justice, Lamberth has been
often frustrated by what he has called, as quoted by The Washington Post,
“scandals, deception, dirty tricks and outright villainy.” Such poignant
and direct language, if not an understatement, it would now seem, should
disqualify him from continuing to adjudicate the case if one were to
believe the government.

The Indian trust case is huge, so large in fact that it starts to interfere
with the general flow of business done by the federal government with
Indian nations in the United States. Nevertheless, as Cobell and most of
the national Indian leadership have concurred, the gross neglect of its
fiduciary obligations to Indians by the government deserves intense
scrutiny. The federal machine is set to delay true deliverance on the case
and would rather minimize or bury the whole history of scandalous
relations.

To everyone’s surprise, the case landed in the courtroom of the rare
independent judge, one who has excellent friends and support on both sides
of the political isle. Once the darling of the Republican right when he was
unrelenting in going after Pres. Bill Clinton’s financial affairs, Lamberth
has castigated government officials on the Cobell v. Norton case through
both Democrat and Republican administrations.

Lamberth, whom the Post calls “a powerful Reagan appointee,” does not hide
his contempt for the shenanigans at the Interior and Justice departments.
The judge is highly frustrated by the same dogged obstructionism that
Indians have experienced for decade upon decade in the United States. Now
that he knows what it’s like – he must be terminated.

The battles going on in Lamberth’s Courtroom 21 merit great attention; not
because the judge has overstepped his boundaries, but because he is not
allowing lawyerly and bureaucratic confusion to cloud his sense of the
obvious fact-patterns represented by the case. Lamberth has held two
secretaries of Interior in contempt of court and imposed fines and other
sanctions against numerous federal officials.

The government argued to the U.S. Court of Appeals for the District of
Columbia Circuit that Lamberth’s “verbal harangues” indicated he had “lost
the appearance of impartiality in the case.” Dennis Gingold, lead attorney
for the trust, put it this way: “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 [attempt to remove the judge] is only the most
recent example.”

The Post recently profiled the case in an editorial and directly questioned
the government’s call for the judges’ removal. The bad feelings run deep,
the Post reported. When Interior’s inspector general questioned the
vulnerability of the agency’s information technology systems, the
tit-for-tat saw the department shut down the BIA’s Web sites for two
months. This is Washington culture at its worst.

Highly ranked, highly energetic and with close supporters across the
political spectrum, Lamberth stands accused of lashing at the government
lawyers for “falsification, spite and obstinate litigiousness.” They say he
has no basis for calling them down that way and want a new judge. No doubt
the judge has a good list of reasons for his sharp critiques. Cobell’s 1996
lawsuit has in fact exposed a wide swath of evidence that government
obfuscation on the factual accounting is part of the pattern of cover-up of
chronic incompetence and worse in accounting practices and in giveaway
contracts of Indian resource sales to oil, gas, coal, uranium and other
industries.

Interior offers the Catch-22 of not providing – even refusing to provide –
credible accounts for property, rent and gas and oil royalties owed to
individual Indians. The stonewalling is legendary and frustrating to the
maximum degree.

The loggerheads of the Cobell case are likely to continue. The general
political climate in the country is tending to sideswipe Indian rights into
the legal dustbin. We are encouraged by the effort of Sen. John McCain to
bring some kind of practical justice to this huge American black eye. We
respect Lamberth’s resoluteness and honesty. We salute Cobell’s courage and
tenacity.

To remove the stalwart judge at this point in the history of the case would
only reaffirm the sense of injustice, based on a racial double standard in
American law when it comes to American Indians. And it would absolve those
who illegally stole assets from Indians. All speed, courage and resolution
ahead is the objective on this most important of cases. But the action to
remove Lamberth from the case now raises an essential question for Indian
country: Is the fix already in?