When Federal District Court Judge Royce C. Lamberth was assigned to Cobell v. Norton nine years ago, it didn’t seem to bode well for the plaintiffs. Lamberth was the fourteenth consecutive white male nominated to the federal bench by Ronald Reagan and had a long background as a government lawyer, including a stint trying field courts-martial in Vietnam for the Pentagon. But Lamberth had a reputation for dealing with cases fairly and his decisions often surprised his conservative backers. That certainly turned out to be the case with Cobell. Since the case’s earliest days Lamberth has consistently sided with the plaintiffs and refused to hide his anger at Interior’s stall tactics, legal maneuvering, and denials of culpability. At times he chides and complains, at others he roars and thunders. He always appears driven by a deep empathy that makes him a true compassionate conservative. And one need not understand the details of Cobell v. Norton to find him entertaining.
Recently, Lamberth has grown increasingly frustrated, even questioning the power of his own seat in the face of hostility from the government he made a career representing. In his most recent opinion he wrote, “Real justice for these Indians may still lie in the distant future; it may never come at all. This reality makes a statement about our society and our form of government that we should be unwilling to let stand.” For its part, the government is not content to have Lamberth on the ropes. Citing “legal errors and unconventional case management,” they’ve asked that the judge be removed from the case. The Justice Department commented that his ruling from July 12, 2005 “is unlike any other judicial opinion that we have ever seen.” Whether or not Lamberth’s vehemence has finally caught up to him remains to be seen, but you can judge his words for yourself. What follows is a sampling of Judge Royce C. Lamberth at his blistering best.
Memorandum Opinion, Contempt Trial, 2/22/99
This two-week contempt trial has certainly proved that the court’s trust in the Justice Department was misplaced. The federal government here did not just stub its toe. It abused the rights of the plaintiffs to obtain these trust documents, and it engaged in a shocking pattern of deception of the court. I have never seen more egregious misconduct by the federal government.
Memorandum Opinion, 12/21/99
The United States’ mismanagement of the IIM trust is far more inexcusable than garden-variety trust mismanagement of a typical donative trust. For the beneficiaries of this trust did not voluntarily choose to have their lands taken from them; they did not willingly relinquish pervasive control of their money to the United States. The United States imposed this trust on the Indian people. As the government concedes, the purpose of the IIM trust was to deprive plaintiffs’ ancestors of their native lands and rid the nation of their tribal identity.
Defendants’ cry of “trust us” is offensive to the court and insulting to plaintiffs, who have heard that same message for over one hundred years. While plaintiffs chose to analogize defendants’ allocution to Lucy pulling away the football from Charlie Brown, the court wonders if the tale of The Little Boy Who Cried Wolf would not have been more appropriate—when the same insincere statement is made time and again, the sincere statement is nearly impossible to discern and impossible to rely upon.
Court Order, 05/17/02
The defendants’ complaint that the plaintiffs’ proposed preliminary injection order is “designed to undermine the effective operations of the Interior Department” would be laughable if it were not so sad and cynical. The Court has yet to see any “effective operations of the Interior Department” regarding these individual Indian trusts. It is therefore beyond the Court’s comprehension how the defendants’ operations could be undermined by virtually anything the plaintiffs’ could suggest. The record of this case suggests that “fixing the system” has gone so far in the wrong direction that the plaintiffs are worse off today than they were six years ago…
Memorandum Opinion, 09/17/02
The Department of Interior’s administration of the Individual Indian Money (“IIM”) trust has served as the gold standard for mismanagement by the federal government for more than a century. As the trustee-delegate of the United States, the Secretary of Interior does not know the precise number of IIM trust accounts that she is to administer and protect, how much money is or should be in the trust, or even the proper balance for each individual account.
Equally troubling is the manner in which the Department of Interior has conducted itself during the course of this litigation… In short, the Department of Interior has handled this litigation the same way that it has managed the IIM trust–disgracefully.
In February of 1999, at the end of the first contempt trial in this matter, I stated that “I have never seen more egregious misconduct by the federal government.” Cobell II, 37 F.Supp.2d at 38. Now, at the conclusion of the second contempt trial in this action, I stand corrected. The Department of Interior has truly outdone itself this time.
This Court need not sit supinely by waiting, hoping that the Department of Interior complies with the orders of this Court and the fiduciary obligations mandated by Congress in the 1994 Act. To do so would be futile. I may have life tenure, but at the rate the Department of Interior is progressing that is not a long enough appointment.
Memorandum and Order, 03/11/03
Defendants’ attempts to deceive the Court are only made more repugnant by the fact that, in their opposition brief to plaintiffs’ motion for sanctions, defendants attempted to shift the blame for their misleading statements to plaintiffs, claiming that plaintiffs “play off the inherent ambiguities of such terms as ‘accounting’ and ‘audit.’” Defs.’ Opp. at 9. As dubious assertions go, this ranks down at the bottom with “It depends on what the meaning of the word ‘is’ is.”
Memorandum and Order, 04/28/03
Defendants have consistently chosen the coward’s route by failing to provide the IIM beneficiaries with the information that the beneficiaries were entitled to by law, while simultaneously insisting that they were fully complying with their fiduciary obligations to the beneficiaries. Having failed to persuade Congress to pass legislation that would cut off plaintiffs’ claims with respect to all transactions that occurred prior to October 1, 1984, defendants presently invite the Court to make a ruling to the same effect. The Court declines defendants’ invitation.
Memorandum and Order, 05/21/03
The appropriations provisions at issue in this matter appear to represent yet another attempt by defendants to evade the rule of law by any means available to them, no matter how duplicitous or underhanded. They also serve to demonstrate defendants’ manifest hypocrisy. For seven years, in response to any ruling with even an attenuated effect on the operations of the Interior Department, defendants have indignantly charged that the Court was undermining the constitutional separation of powers. This purported indignation stands in marked contrast to the alacrity with which defendants utilized the power of the executive branch to apparently persuade the legislative branch to undermine the effect of judicial orders. But this only scratches the surface of defendants’ profound hypocrisy. For in addition to drafting a provision that would restrict the ability of judicial officials to receive compensation, defendants were simultaneously ensuring that their own attorneys would be fully funded at taxpayer expense. Defendants thus have no problem with spending the taxpayers’ money, as long as it benefits them. But when ordered to compensate judicial officers whose appointment was necessitated by their own misconduct, defendants suddenly become born-again fiscal conservatives.
Memorandum Opinion, 09/25/03
The results of Interior’s failure to take its trust responsibilities seriously are plain today. Although they are citizens of the greatest and most prosperous nation in the world today, the beneficiaries of the IIM trust live under conditions that would not be alien to citizens of the poorest Third World nations. Many of them live in abject poverty.
On October 25 of this year, they will observe the ninth anniversary of the passage of the 1994 Act. One cannot say that the anniversary will be celebrated, for there is little to celebrate. In nine years, although Interior has paid lip service to the importance of trust management reform, it has taken barely any steps towards the performance of an historical accounting.
In sum, Interior has cried wolf over and over and over again to the Indians, to Congress, and to the courts. To be sure, there has been some activity — most notably, the creation of a new alphabet soup of bureaucracies. But activity is not the same thing as progress. And Interior has not demonstrated that it has made any progress, either in complying with its obligation to conduct an accounting for the IIM beneficiaries or in complying with its other fiduciary obligations.
At some point during a confidence game, all but the most credulous individuals realize that they are being duped, and stop playing. For the Court, that point has been reached.
What has become clear from Interior’s repeated placement of its own interests ahead of the responsibilities that accompany its status as trustee-delegate is that it has failed to recognize a crucial fact about the IIM trust fund. The fund is not the government’s money. It belongs to the beneficiaries. The trust fund is supposed to be administered in their best interest, and not simply in a manner that is most convenient to the government. Instead, throughout its management of the IIM trust fund, Interior has chosen to behave almost as though the IIM trust fund were a toy, one that it need not share with anyone else, one that it can abuse and mistreat if it wants to, and no one can tell it differently. The United States was founded upon the principle that its government derives its powers from the consent of the governed. But Interior has stood this proposition on its head.
Memorandum and Order, 02/07/05
The idea that Interior would either instruct or allow BIA to withhold trust payments, and then to stonewall the Indians who dared to ask why, is an obscenity that harkens back to the darkest days of United States-Indian relations. But this idea, no matter how profane and repugnant to the foundational principles of our government, is amply supported in the record by evidence that remains uncontested by any factual proffer from Interior.
The Court is offended that the individuals responsible for these acts would cite the Court’s Orders as justification; but the perniciousness and irresponsibility demonstrated by blaming the Court pales in comparison to the utter depravity and moral turpitude displayed by these individuals’ willingness to withhold needed finances from people struggling to survive and support families on subsistence incomes. These actions, whether Interior ordered them taken or merely turned a blind eye and allowed them to occur, are a testament to the startling inhumanity of government bureaucracy.
Memorandum and Order, 07/12/05
At times, it seems that the parties, particularly Interior, lose sight of what this case is really about. The case is nearly a decade old, the docket sheet contains over 3000 entries, and the issues are such that the parties are engaged in perpetual, heated litigation on several fronts simultaneously. But when one strips away the convoluted statutes, the technical legal complexities, the elaborate collateral proceedings, and the layers upon layers of interrelated orders and opinions from this Court and the Court of Appeals, what remains is the raw, shocking, humiliating truth at the bottom: After all these years, our government still treats Native American Indians as if they were somehow less than deserving of the respect that should be afforded to everyone in a society where all people are supposed to be equal.
For those harboring hope that the stories of murder, dispossession, forced marches, assimilationist policy programs, and other incidents of cultural genocide against the Indians are merely the echoes of a horrible, bigoted government-past that has been sanitized by the good deeds of more recent history, this case serves as an appalling reminder of the evils that result when large numbers of the politically powerless are placed at the mercy of institutions engendered and controlled by a politically powerful few. It reminds us that even today our great democratic enterprise remains unfinished. And it reminds us, finally, that the terrible power of government, and the frailty of the restraints on the exercise of that power, are never fully revealed until government turns against the people.
Our “modern” Interior department has time and again demonstrated that it is a dinosaur—the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the last pathetic outpost of the indifference and anglocentrism we thought we had left behind.
The entire record in this case tells the dreary story of Interior’s degenerate tenure as Trustee-Delegate for the Indian trust—a story shot through with bureaucratic blunders, flubs, goofs and foul-ups, and peppered with scandals, deception, dirty tricks and outright villainy—the end of which is nowhere in sight.
While it is undeniable that Interior has failed as a Trustee-Delegate, it is nevertheless difficult to conjure plausible hypotheses to explain Interior’s default. Perhaps Interior’s past and present leaders have been evil people, deriving their pleasure from inflicting harm on society’s most vulnerable. Interior may be consistently populated with apathetic people who just cannot muster the necessary energy or emotion to avoid complicity in the Department’s grossly negligent administration of the Indian trust. Or maybe Interior’s officials are cowardly people who dodge their responsibilities out of a childish fear of the magnitude of effort involved in reforming a degenerate system…. Perhaps the Indians were doomed the moment the first European set foot on American soil. Who can say? It may be that the opacity of the cause renders the Indian trust problem insoluble.
The plaintiffs have invited the Court to declare that Interior has repudiated the Indian trust, appoint a receiver to liquidate the trust assets, and finally relieve the Indians of the heavy yoke of government stewardship. The Court may eventually do all these things—but not yet. Giving up on rehabilitating Interior would signal more than the downfall of a single administrative agency. It would constitute an announcement that negligence and incompetence in government are beyond judicial remedy, that bureaucratic recalcitrance has outpaced and rendered obsolete our vaunted system of checks and balances, and that people are simply at the mercy of governmental whim with no chance for salvation. The Court clings to a slim and quickly receding hope that future progress may vitiate the need for such a grim declaration.
This hope is sustained in part by the fact that the Indians who brought this case found it in themselves to stand up, draw a line in the sand, and tell the government: Enough is enough—this far and no further. Perhaps they regret having done so now, nine years later, beset on all sides by the costs of protracted litigation and the possibility that their efforts may ultimately prove futile; but still they continue.
Real justice for these Indians may still lie in the distant future; it may never come at all. This reality makes a statement about our society and our form of government that we should be unwilling to let stand. But perhaps the best that can be hoped for is that people never forget what the plaintiffs have done here, and that other marginalized people will learn about this case and follow the Indians’ example.