IT WAS BAD enough that the government has, for many decades, so mismanaged the trusts it controls for individual Indian beneficiaries that nobody today knows who has what accounts or their proper magnitude. For that matter, it was bad enough that the government grossly failed under court order to produce relevant documents when a group of the supposed beneficiaries sued to force the government to fix the system and restore the accounts to their proper level. One hoped that it couldn't have gotten worse than the day that U.S. District Judge Royce Lamberth held two Cabinet secretaries in contempt for the discovery abuses and courtroom misrepresentations concerning document production. But that hope was naive. Last Monday, Judge Lamberth's court-appointed investigator -- Alan Balaran -- issued a report alleging that discovery abuses at the Treasury Department were continuing "at the exact time the secretary of the treasury was held in contempt for violation of his discovery obligations."
It seems that the department, despite clear orders not to destroy material relevant to the litigation, inadvertently destroyed 162 boxes of material that may or may not have been relevant to the case. The destruction does not appear to have been a deliberate effort to thwart the plaintiffs, but the obligation of the lawyers in question to inform the court of the error was unmistakable. Despite this, the special master found, for many weeks Treasury did not tell the Justice Department that potentially discoverable documents had been destroyed. The court itself did not learn for 14 weeks.
"This is a system clearly out of control," wrote Mr. Balaran. "What make these violations particularly egregious is that they were by no means isolated incidents in this litigation. Rather, they constituted part of a greater pattern of obfuscation that has permeated [this] litigation." This is clearly right.
Moreover, it is difficult to separate the abuses within the litigation from the abuses that are the subject of the litigation. This is not to accuse the administration of intentionally seeking to perpetuate the abuse of the trust; it seems to be attempting to rebuild the trust system. But the central issue in this litigation is the failure of the government over an obscenely long period to live up to the solemn obligation it incurred when Indian lands were placed in trust by the federal government for the individual benefit of Native Americans.
Where the government supplements that failure with repeated improprieties in the litigation itself, and when all of these abuses serve to frustrate redress for the plaintiffs, the government's behavior begins to look like a continuous line of disservice. Misleading courts is no way to instill faith that the trust system is being properly restored.