The plaintiffs in a class action lawsuit alleging that the federal government has made such a mess of the $2.5 billion Indian trust fund program that the court should take control said yesterday they will rest their case today, several weeks earlier than they had planned, because victory is a "a slam dunk."
After hearing testimony from only five of the 30 witnesses they had intended to call to the stand, lawyers for the Native American Rights Fund said they will rest their case this morning after making some procedural motions. They said there is no need for additional evidence because the government has, in effect, admitted a breach of trust after mismanaging the trust accounts.
"The government's stipulations and what our witnesses have testified [have] already established our case," said Keith Harper, attorney for the rights fund. "The documentary evidence is so overwhelming that it is unnecessary to bring in a whole slew of witnesses to say the same thing."
U.S. District Judge Royce C. Lamberth began hearing testimony on Thursday contending that decades of mismanagement by the Interior Department, the Bureau of Indian Affairs and the Treasury Department has deprived Indians of billions of dollars that had accumulated in individual trust fund accounts created to compensate them for use of their land and to pass along royalties from the sale of oil, natural gas, timber and other natural resources.
There are about 350,000 accounts held by individual Indians and 1,500 tribal accounts amounting to $2.5 billion, with more than $350 million going through the trusts each year. Independent audits have shown that Interior has been unable to document $2.4 billion in transactions over a 20-year period, and both sides agree that the record-keeping has been a shambles for at least 75 years.
While it has not been ascertained that the money is missing, documents cannot be found to show where much of it came from or where it went. Officials concede that the documents are scattered in disarray in file cabinets in dozens of BIA offices around the country in a system that Assistant Secretary for Indian Affairs Kevin Gover has called "a logistical nightmare." However, they say the problems long preceded this administration and were ignored by Congress.
Harper said a major turning point in the trial came last week when Gover and Interior Secretary Bruce Babbitt agreed to six stipulations, including admissions that Interior does not adequately control receipts and disbursements in all Indian trust accounts, does not provide all account holders with periodic statements of their accounts' performance, does not have written policies and procedures for all trust fund management and accounting functions, and does not provide adequate staffing, supervision and training for all aspects of trust fund management.
"Their policy has been to deny, deny, deny," Harper said. "Now, they are admitting there is a breach of trust, but they're saying, 'Please don't have judicial oversight.' "
Rex Hackler, BIA director of communications, said the trust program has been "broken" for over a century and that this is the first time the bureau has the funds to fix it. He denied that the outcome of the trial is a foregone conclusion. "We think the plan we're on is going to get it fixed, and that's what you're going to hear from us during the rest of the trial," he said.
Earlier this year, Lamberth held Babbitt, Gover and Treasury Secretary Robert E. Rubin in contempt of court for failing to turn over records to the Indians' lawyers. The judge was so critical of the government lawyers working on the case that a new set of attorneys has taken over.
Harper said that even without the testimony of the other plaintiffs' witnesses, the introduction of 10 General Accounting Office reports detailing trust fund mismanagement proved their case. One GAO report in May said Interior was spending $60 million on a new computer system to reconcile the accounts without even knowing if it will work.
Harper said the BIA does not have enough reliable trust account information to put into the new computer system to straighten out the bookkeeping. "It will be garbage in, garbage out," Harper said, adding that allowing the government to try to fix the system now "will not make it any different."
He said the only answer for the court now is to appoint a special master or receiver to oversee the reform of the trust program.
CAPTION: Interior Department official Kevin Gover calls the fund's files "a logistical nightmare."