Indian trusts need intervention

Outside editorial

Posted: Sunday, December 30, 2001

The following editorial appeared in Saturday's Washington Post:

Two years ago, U.S. District Judge Royce Lamberth gave the government one last chance to begin setting straight the long-abused system under which money is held in trust accounts for hundreds of thousands of Native Americans. The order came in a class action lawsuit filed by beneficiaries of these accounts. The trusts, as the D.C. Circuit Court of Appeals later put it, "were created over one hundred years ago through an act of Congress, and have been mismanaged nearly as long."

The mismanagement has been so bad that the Interior Department no longer knows who has accounts or how much they should be worth. This would be intolerably bad government under any circumstances, but it is particularly infuriating because the money is not the government's to squander. It belongs to individual Indians, as the proceeds of land that was taken from them but was supposed to be developed (by oil exploration, for example) for their benefit. The plaintiffs have been seeking not damages but an accounting and a restoration of the system.

Convinced that the government was finally serious about trust reform and had a credible plan, Judge Lamberth decided in 1999 not to put the system into receivership but to monitor the government's reform efforts. During the past six months, two officials appointed by the judge to watch over trust reform have issued a slew of reports suggesting that abuse of the trusts goes on and that reform is something of a myth.

Among the conclusions: The new computer system that was supposed to be the centerpiece of Interior's efforts to fix the system is riddled with problems and may never work; computer security is so lax that hackers can attack data relatively easily over the Internet; the department never got off the ground with a historical accounting of the trust; the efforts to clean up historical data are, as the court's monitor put it, "in disarray"; and, to top it off, the court itself was misinformed about how badly things were going in all these areas.

Judge Lamberth, known for being tough on government lawyers, has responded with characteristic zeal and - as he did earlier in the litigation - has been holding high-profile contempt hearings. But when all of the table-pounding is done, the problem of how to fix the trusts will remain.

The executive branch has shown itself not up to the task. Successive administrations have promised much and delivered little, and there is little reason for confidence in Interior Secretary Gale Norton's latest plan. As ugly as the prospect of a judge supervising a federal agency is, a receiver may not be avoidable at this point. But the litigation can do only so much. Even if as accurate a historical accounting as possible is performed, the records are such a shambles that it won't be good enough. Eventually the White House and Congress will have to intervene and broker a political settlement. At the rate trust reform is going, serious top-level federal involvement cannot come too soon.

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