At U.S. Urging, Court Throws Lamberth Off Indian Case

By Eric M. Weiss
Washington Post Staff Writer
Wednesday, July 12, 2006; A13

A federal appeals court took the rare step of removing U.S. District Judge Royce C. Lamberth from a long-standing legal battle involving billions in Native American oil and gas royalties, saying the judge appears to be biased against the Interior Department.

The U.S. Court of Appeals for the District of Columbia Circuit cited Lamberth's own words to illustrate why he should be removed from the case, Cobell v. Kempthorne , including a July 2005 opinion in which he called the Interior Department "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 pathetic outpost of the indifference and anglocentrism we thought we had left behind."

The court said Lamberth's opinion "extends beyond historical racism and all but accuses current Interior officials of racism."

The ruling removes a sitting trial judge for only the third time in the D.C. Circuit and provides the latest twist in a contentious decade-long class-action lawsuit filed by the Native American Rights Fund over the trust accounts, which were set up in 1887 to compensate Indians for use of their lands . Since Blackfeet tribe leader Eloise Cobell filed the lawsuit in 1996, several independent investigations found that the Interior Department had never kept complete records, used unknown amounts of the funds to help balance the federal budget, and let the oil and gas industry use Indian lands at bargain rates.

The appeals court, in an opinion written by Judge David S. Tatel, said that in addition to Lamberth's harsh words, it also took into account that eight of the judge's past orders have been reversed on appeal, including two reversals that accompanied the removal decision.

"He's coming very close to saying this judge can't be fair," said Stephen Gillers, a legal ethics specialist at New York University. Gillers said that in other cases appeals courts have gone out of their way to stress they have faith in the judge's fairness but are acting out of concern for appearances. "Lamberth is not getting that vote of confidence here," he said. "It's a very strong opinion."

The last time a trial judge was removed from a case was in 2001, when U.S. District Judge Thomas Penfield Jackson was taken off the Microsoft Corp. antitrust case for talking with reporters. The Cobell case will be reassigned to another federal district judge.

"Just as reasonable observers could believe that improper outside contacts influenced a judicial decision," the opinion said, referring to the Microsoft case, "so too is reassignment necessary if reasonable observers could believe that a judicial decision flowed from the judge's animus toward a party rather than from the judge's application of law to fact."

Lamberth is a sharp-tongued Texan appointed to the bench by President Ronald Reagan. He has defenders from all points of the political spectrum and has repeatedly been ranked by lawyers as among the most skilled judges on the court.

"He is a hero and should be treated as a hero," said Stanley Sporkin, a former colleague of Lamberth's on the bench who was removed from the Microsoft case for reading a book that was not part of the official record.

"He is a very bright and able and competent judge who was doing justice," Sporkin said. "And it's hard to fault a judge for that."

But a few of Lamberth's fans said privately that he has lost his patience in the Cobell case and has made himself a target with his aggressive words. Last year, one fellow judge, speaking anonymously, said: "He's been driven beyond the limit of his patience by these people. In his heart, he may know he's no longer dispassionate."

In making the rare request to have Lamberth removed, the Justice Department said that besides using intemperate language, Lamberth has ignored appellate rulings and accused the government of "falsification, spite and obstinate litigiousness" with "no legal or factual basis." Yesterday, a department spokesman said the "decision speaks for itself."

The appeals court's opinion quotes at length from Lamberth's July 2005 opinion, in which Lamberth writes that "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."

But the appeals court said Lamberth was right about the Interior Department -- to a point:

"Although the July 12 opinion contains harsh -- even incendiary -- language, much of that language represents nothing more than the views of an experienced judge who, having presided over this exceptionally contentious case for almost a decade, has become 'exceedingly ill disposed towards [a] defendant' that has flagrantly and repeatedly breached its fiduciary obligations."

The case was heard by a three-judge panel that included Senior Judge Laurence H. Silberman, Judge Janice Rogers Brown and Tatel.

Yesterday's decision would be a professional insult for any judge. Sporkin, referring to his removal from the Microsoft case, said it "was not a good feeling, obviously."

Lamberth declined to comment on the ruling. An Interior Department statement said, "We agree with the Court that the rulings today present an opportunity for a fresh start."

But for Lamberth, the decision might also provide a measure of relief. The case has often seemed like a war of attrition between the court and the two parties. The case's docket sheet contains more than 3,000 entries and, at different times, Lamberth has held former interior secretaries Gale A. Norton and Bruce Babbitt in contempt of court.

"On numerous occasions over the last nine years," Lamberth wrote in the now-infamous July 12 memo, "the Court has wanted to simply wash its hands of Interior and its iniquities once and for all.''

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