CERF NOTE: In an unrelated case involving federal Indian policy, tribal attorneys take exactly the OPPOSITE argument taken in the Lara case. In Lara, tribal attorneys argue that Congress, using it's "plenary power" over Indian affairs have the power to overturn federal court interpretations of federal laws. Here they argue Congress cannot, because of Constitutional limitations, interfere with federal court interpretations of federal law.

WASHINGTON, Nov. 22, 2003 -- Lawyers for Indians seeking an accounting of billions of dollars of trust funds and millions of acres of land and natural resources held for them in trust by the federal government asked an appeals court late Friday night to reject as unconstitutional a so-called "midnight rider" that Congress hurriedly adopted this month at the request of the White House and the Interior Secretary to delay the long-promised, court-ordered accounting.

In a motion filed in the U.S. Court of Appeals for the District of Columbia, the lawyers said that the rider attached to the Interior Appropriations Bill for Fiscal Year 2004 is clearly unconstitutional because it seeks to tell federal courts how to interpret existing law and it nullifies and reopens prior final judgments of federal courts.
(emphasis added)

Supreme Court Justices from John Marshall to Antonin Scalia have ruled that Congress cannot interfere with federal courts in this manner, the lawyers informed the appellate court.

The provision, which has been denounced by Indian leaders, was slipped into the Interior Appropriations bill without a hearing. It purports to suspend a recent court order that tells the government it must account for all assets held in trust for individual Indians since 1887 when the Trust was first established.

But the lawyers point out that the provision, called a "midnight rider" because of the surreptitious way it was added to the Interior bill, will do irreparable harm to hundreds of thousands of Indians who depend on their
Trust revenue as their primary source of income to pay for food, clothing and shelter. The Court of Appeals and the District Court have previously declared that the Indians have been irreparably harmed by the Interior Secretary's malfeasance and inept handling of the Trust assets.

The filling challenges the efforts of the White House and Secretary Gale Norton to use the rider to evade their trust responsibilities and to further delay the accounting that U.S. District Judge Royce Lamberth ordered on December
21, 1999, and affirmed by the Court of Appeals on February 23, 2001. Both Judge Lamberth and the Court of Appeals held that the Trust was subject to pervasive mismanagement by the government for generations.

The White House and the Interior Secretary complained to Congress that the accounting for the troubled Trust would cost upwards of $14 billion because of the massive loss, destruction, and corruption of trust records.
But lawyers for the Indians said that that estimate was admission that the court-ordered accounting is impossible, notwithstanding Norton's representations to the Courts to the contrary.

Citing the Indians 7½-year-long court fight and a 1994 Indian Trust Reform Act that ordered the accounting, the lawyers informed the Court of Appeals that "there can be no honest contention that the midnight rider is
constitutional."

The serious problems in the Trust were "not created by, nor the fault of, the beneficiaries, but rather were solely the fault of the Trustee-Delegates [e.g., Secretary Norton] whose malfeasance, neglect and worse over the last 100
years left the Trust and supporting documents in shambles," the brief stated.

The Indian's lawyers also asked the court to lift the administrative stay of the lower court injunction requiring the accounting and institutional reform. Such a stay must first be determined by the district court, the brief noted.

Led by Elouise Cobell, a member of the Blackfeet Tribe of Montana, the Indians filed their multibillion dollar class action lawsuit to account for the Trust assets and fix the broken Trust management systems in June 1996.

The government has yet to provide a court-ordered accounting for a single one of the hundreds of thousands of Trust accounts.

The entire brief will be available at www.indiantrust.com 
For additional information: Call Bill McAllister at 202-257-5385 (media calls only).

ALSO

From Indianz.Com. 
URL: http://www.indianz.com/News/archives/002701.asp 


Trust fund rider faces test in courtroom
Monday, November 24, 2003 

The battle over the Indian trust fund moved from the Congress to the courthouse on Friday as the plaintiffs launched a bid to keep the long-running lawsuit alive. 

Even though more than 500,000 American Indians have won numerous court decisions affirming their rights, the case is on temporary hold due to high-level political meddling. Over the objections of account holders, tribes and their supporters, the White House and top lawmakers pushed through an appropriations bill that delays the accounting of at least $13 billion in trust funds. 

The so-called "midnight rider" is a direct attack on the trust fund lawsuit, filed in 1996 on behalf of Indian beneficiaries around the country. As the Bush administration lost decision after decision in the courts, officials turned to sympathetic lawmakers who were eager to rein in the millions that have been spent, largely unsuccessfully, to correct more than a century of mismanagement. 

The legality of those tactics is now before the D.C. Circuit Court of Appeals. Both parties have filed briefs hoping to sway the court as it considers whether to keep the case on hold or let it move forward. 

Led by Elouise Cobell, a banker from the Blackfeet Nation of Montana, the plaintiffs say the rider violates the U.S. Constitution. The legislative branch, they argue, cannot tell the judicial branch how to interpret laws. 

"Simply put, the Constitution does not permit the legislature to do ... what it does here: crack open final judgments in specific cases, rewind the process, and then rewrite the law to readjudicate the outcome," the plaintiffs' brief filed on Friday stated. (emphasis added)

In seeking to delay the case for up to a year, the Bush administration attorneys say it would cost at least $6 billion to carry out the accounting. They argue that the rider gives Congress a chance to redefine the rights of Indian beneficiaries under the American Indian Trust Reform Act of 1994. 

"Congress has now altered the governing law, providing that, pending further congressional action (or decision not to act), neither the 1994 act nor any principles of common law" require an accounting, the government's November 10 brief stated. 

Last week, Cobell and attorneys from the Native American Rights Fund (NARF), the non-profit organization handling the lawsuit, made the rounds at the National Congress of American Indians (NCAI) in Albuquerque, New Mexico. Cobell thanked lawmakers, like Reps. Richard Pombo (R-Calif.) and Brad Carson (D-Okla.), and organizations like the National Indian Gaming Association, for their support in trying to defeat the rider. 

"Don't cover your ears on this issue," she told NCAI delegates on Tuesday, warning that the use of riders threatens Indian rights beyond just the trust fund case. "I want you to stand strong. I want you to stay strong with us." 

At an NCAI session on Wednesday, Special Trustee Ross Swimmer, a Bush administration political appointee, discussed his views on trust reform. He called Cobell's case "an extremely important issue." "It has both benefits and certainly has its downsides in terms of managing the trust and keeping up with what the court wants," he said. 

Swimmer discounted as "rumor" the suggestion that money for Indian programs, like education, is being used to fund the Office of Special Trustee, which he heads. He said tribal leaders are kidding themselves if they think Congress would spend that kind of money on Indian Country. 

"I'm not going to tell you that it's not important to do a accounting, but I can think of a lot of ways to spend $7 to $8 billion," he said.