Washington, DC — An Interior Department attorney who revealed extensive mismanagement of Indian properties has been named as a witness against his own agency in a multi-billion dollar lawsuit, according to filings released today by Public Employees for Environmental Responsibility (PEER). At the same time, the decision whether to fire that attorney for disclosing government misdeeds has been elevated to the Interior Solicitor, a presidential appointee.
Robert McCarthy, a Field Solicitor based in Palm Springs, is charged with violating the Trade Secrets Act, an obscure criminal statute, for revealing major ongoing mismanagement to a newspaper reporter. Now McCarthy has been named as a witness against the government in a decade-long lawsuit brought by tribal members to force an accounting of Indian trust funds collected by the federal government. This legal battle in which plaintiffs claim $28 billion is owed is called Cobell v. Kempthorne after its lead plaintiff and the current Interior Secretary.
As a result of being named a witness, McCarthy becomes subject to a special court order enjoining any “retaliatory action or making threats of such action against any person who has been identified as a Potential Witness in this case.” Paradoxically, Interior is proposing to fire McCarthy for the very same disclosures that have made him into a protected Cobell witness.
The decision about whether to act on the proposed firing of McCarthy was originally assigned to Deputy Solicitor Larry Jensen but Jensen recused himself because he is in charge of defending against the Cobell case. Jensen referred the matter to the Solicitor David Bernhardt, who was confirmed by the Senate in September 2006 to head the 300-lawyer office. The matter has sat on Bernhardt’s desk for the past two weeks without any decision.
“No one doubts that Robert McCarthy is telling the truth about the extent of losses to members of Indian tribes due to government incompetence, neglect and malfeasance,” stated PEER Executive Director Jeff Ruch, whose organization is representing McCarthy along with the Government Accountability Project. “In this quintessentially Washington drama, the only issue is whether a government lawyer will be allowed to speak the truth.”
The main concern that McCarthy has repeatedly raised to the Inspector General, Congress and the media is that millions of dollars a month in lost revenues to tribal members are continuing to this day. In turn, the government and taxpayers are liable to repay those losses, according to the Cobell litigants.
“Interior’s inability to even track revenues owed to Native-American property-holders is only compounded by the attempt to cover-up that failure,” Ruch added. “The Interior Department and its Solicitor’s Office are daily becoming more entangled in the webs of their own deceptions.”
The Cobell case is slated to begin hearings before the federal district court in Washington, D.C. on October 10th although extensive pre-hearing motions are expected.