LAWYERS URGE COURT TO REJECT "MIDNIGHT RIDER" AND ALLOW TRUST FUND ACCOUNTING TO BEGIN
WASHINGTON, Nov. 22 -- 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.
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’ 7 ½.-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 http://www.indiantrust.com
Indian Trust
To view the latest information concerning this case, please go to: http://www.indiantrust.com
and see articles in the Indian Trust series in our International Law section.
WASHINGTON, Nov. 22 -- 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.
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’ 7 ½.-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 http://www.indiantrust.com
Indian Trust
To view the latest information concerning this case, please go to: http://www.indiantrust.com
and see articles in the Indian Trust series in our International Law section.