Cobell v. Norton
| Decision Date | 18 July 2003 |
| Docket Number | No. 02-5374.,02-5374. |
| Citation | 334 F.3d 1128 |
| Parties | Elouise Pepion COBELL, et al., Appellees, v. Gale A. NORTON, Secretary of the Interior, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 96cv01285).
Mark B. Stern, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Gregory G. Katsas, Deputy Assistant Attorney General, Robert E. Kopp, Director, Thomas M. Bondy and Charles W. Scarborough, Attorneys, Roscoe C. Howard, Jr., U.S. Attorney, Mark E. Nagle and R. Craig Lawrence, Assistant U.S. Attorneys. B. Michael Rauh entered an appearance.
Herbert L. Fenster, Daniel G. Jarcho, Michael J. Bearman and Christina M. Carroll were on the briefs for amicus curiae Gale A. Norton, in her individual capacity, in support of appellant.
Elliott H. Levitas argued the cause for appellees. With him on the brief were Dennis M. Gingold and Keith M. Harper. George W. Austin entered an appearance.
Before: GINSBURG, Chief Judge, and HENDERSON and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
Beneficiaries of Individual Indian Money trust accounts, as a class, sued the Secretary of the Interior and other federal officials, in their official capacities, for breach of fiduciary duty in the management of those accounts. In an earlier appeal, we affirmed the district court's holding that the officials, who serve as trustee-delegates for the federal government, had breached their fiduciary duties, and we remanded the case to that court for further proceedings. Cobell v. Norton, 240 F.3d 1081 (D.C.Cir.2001) ("Cobell VI").
In April 2001, with the consent of the parties, the district court appointed Joseph S. Kieffer III as "Court Monitor" and charged him to "monitor and review all of the Interior defendants' trust reform activities and file written reports of his findings with the Court." In April 2002 the court reappointed Kieffer as Court Monitor, this time over the defendants' objection. On September 17, 2002, the court held Gale A. Norton, Secretary of the Interior, and Neal A. McCaleb, Assistant Secretary of the Interior for Indian Affairs, in contempt of court, elevated Kieffer to the status of "Special Master-Monitor," and scheduled further proceedings. The Department contends that in so doing the district court not only erred, it took control of functions constitutionally reserved to the Executive Branch. We agree that the district court erred, and we reverse Kieffer's reappointment and the citations for contempt. We lack jurisdiction, however, to consider the Department's contention that the court has overstepped its authority.
We recounted the long history of the Government's trust responsibilities to Native Americans in Cobell VI, and we therefore provide only an abbreviated version of that history here. Pursuant to the General Allotment Act of 1887, ch. 119, 24 Stat. 388 (), lands that had previously been set aside for Indian tribes were allotted to individual Indians in fixed amounts; "surplus" lands were opened to non-Indian settlement. The Act created a system in which allotted lands would be held in trust by the United States for 25 years or more, during which period an individual account ("Individual Indian Money" account or "IIM" account) would be created for each Indian with an interest in the allotted lands. The United States would manage the lands for the benefit of the allottees until the expiration of the trust period, at which time each allottee would be issued a fee patent. The Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984 (), ended the practice of allotment but extended indefinitely the trust period for already-allotted lands. Through the operation of these two statutes, therefore, the United States came to hold an estimated 11 million acres of land as trustee for, and with a fiduciary duty to, individual Indian beneficiaries. In 1994 the Congress enacted the Indian Trust Fund Management Reform Act, Pub.L. No. 103-412, 108 Stat. 4239 () ("1994 Act"), recognizing these responsibilities and identifying some of the Government's duties to ensure it meets them. The plaintiffs' lawsuit alleges a breach of these responsibilities.
The duties of the United States as trustee have been delegated to the Secretary of the Interior and the Secretary of the Treasury, see 25 U.S.C. §§ 161-161a, 4001-4011, each of whom is assigned specific tasks. Also relevant to this appeal is the Office of the Special Trustee within the Department of the Interior (and subordinate to the Secretary), which was created by the 1994 Act to oversee the trust reform activities of the Department. Id. §§ 4042-4043.
The plaintiffs filed this lawsuit in 1996. In 1998 the district court divided the litigation into two "phases." Phase I was to address "fixing the system," that is, "reforming the management and accounting of the IIM trust," and Phase II would concern "correcting the accounts" by "performing a historical accounting of the IIM trust accounts." In 1999 the district court held Secretary of the Interior Bruce Babbitt, Assistant Secretary Kevin Gover, and Secretary of the Treasury Lawrence Summers had breached their fiduciary duties. The court issued a declaratory judgment to that effect and remanded the case to the Interior and Treasury Departments for them to bring themselves into compliance with the law, and to take certain steps the court deemed necessary to provide an accounting of the IIM trust. Cobell v. Babbitt, 91 F.Supp.2d 1, 58 (D.D.C.) ("Cobell V"). In order to assure the defendants' compliance, the court retained jurisdiction and ordered the defendants to file quarterly status reports "setting forth and explaining the steps that defendants have taken to rectify" the breach. Id. at 59. Finally, the court certified its decision for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Id.
In February 2001 we affirmed the order of the district court: The Government indeed had breached its fiduciary duty. Among many other things, it "does not know the precise number of IIM trust accounts that it is to administer and protect," and "it does not know the proper balances for each IIM account." Cobell VI, 240 F.3d at 1089. Although we determined that the district court had mischaracterized some of the defendants' actions — for instance, their failure to "retrieve and retain all information concerning the IIM trust that is necessary to render an accurate accounting" — as independent violations of a fiduciary duty, rather than as "support for the ... court's ultimate conclusion that appellants have unreasonably delayed the discharge of their fiduciary obligations to IIM beneficiaries," 240 F.3d at 1104, 1105, we upheld the district court's "ultimate conclusion" as fully justified. Id. at 1105. We also held the district court's remand of the matter to the agencies and its retention of jurisdiction were appropriate remedies. Id. at 1107-09.
While Cobell VI was pending before us and thereafter, the Department and its officers took a number of steps relevant to this appeal. Beginning in March 2000 and continuing apparently to the present, the Department filed the quarterly reports required by Cobell V. In April 2000 the Department published a notice in the Federal Register proposing a method for performing an historical accounting and seeking public comment thereon; and in December 2000 it chose statistical sampling as the method it would use.
In April 2001 the district court appointed Kieffer as Court Monitor. As noted, the Department consented to this appointment, regarding which it expressed the "hope that this will in fact be a positive step forward so that resources can be more directed towards trust reform and less directed towards litigation." The order appointing Kieffer stated he would In April 2002 the district court "propose[d] to extend Mr. Kieffer's term of service for at least an additional year." The Department objected to Kieffer's reappointment unless several conditions were met. The district court accepted some but not all those conditions, and reappointed Kieffer.
Four days later (April 19) Kieffer, with authorization from the district court, attended a meeting with Deputy Secretary of the Interior J. Steven Griles, the Special Trustee, and other departmental officials; the plaintiffs were not represented at the meeting. The district court found this was one of many internal DOI meetings Kieffer attended; the meeting was called at Griles's request; it was a "heated meeting [that] resolved nothing." The district court also found that at the meeting the Court Monitor discussed with Interior officials his concerns about the way they were doing their jobs — concerns that he was subsequently to report to the district court. The district court characterized Kieffer's actions as "an effort to set the stage to convince the parties attending the meeting to find some way to work together."
On June 14 the Department moved the district court to revoke Kieffer's appointment as, and to clarify the role of, the Court Monitor. The Department argued that its previous objections "presaged" the April 19 meeting, at which, the Department claimed, Kieffer demonstrated his intention and his ability to assert powers constitutionally reserved to the Executive Branch of the Government.
Meanwhile the Monitor's reports, which were, to say...
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