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Interior Indian trustee responds to posting

COMMENTARY | January 14, 2006

Ross Swimmer says critical piece by DC attorney Lee Helfrich ‘reflected commonly held misunderstandings’ and offers answers to the questions she posed.

By Ross Swimmer
Special Trustee for American Indians,
U.S. Department of the Interior

We appreciate that you continue to publish stories about the ongoing Cobell v. Norton Indian trust lawsuit. But sadly, your December 16 piece reflected commonly-held misunderstandings about the Department of the Interior’s role in the case. To help provide some of the missing facts, I thought I would take the opportunity to respond to the questions the writer posed.

Why is the Interior Department litigating so hard to dilute its responsibilities to Indians?

Interior is not fighting hard to dilute its responsibilities but to fulfill them. The purpose of the lawsuit was to compel the Department of the Interior to do an accounting of Indian trust funds. Interior has made substantial progress in this area. Soon after Secretary Norton assumed her position, she created the Office of Historical Trust Accounting to complete the historic accounting required. Since then, Interior has gathered, indexed and imaged millions of trust records, and has established a state-of-the-art storage facility in Lenexa, Kansas. The facility now houses over 250 million pages of records. With the help of several of the nation’s top accounting firms, Interior is preparing account statements going back (in some cases) as far as 1938 for Individual Indian Money account holders. We have already completed statements for more than 30,000 beneficiaries. So far, more than $100 million has been spent toward accomplishing the accounting. (By the time Interior’s accounting plan is completed, it is expected to cost in excess of $300 million.) Based on the results of the accounting to date, the multi-billion dollar payment plaintiffs seek is not justified.

In the years since the accounting project began and preliminary results were published, plaintiff’s lawyers have initiated a series of court filings that have managed to delay and frustrate the very accounting they asked for in the beginning. Motions have been filed seeking contempt charges against Secretary Norton, challenging Interior’s IT security and effectiveness, rebuking our accounting plan, and delaying us from mailing historical accounting reports to Indian trust beneficiaries. People who work on trust matters at Interior have had their integrity and ethics attacked (this includes many of the plaintiff’s own clients as most staff members in Indian Affairs at Interior are American Indian), and plaintiff’s lawyers have asserted that “the vast majority” of trust records have been, and continue to be, destroyed. As mentioned above, since the beginning of this action more than 250 million pages of documents have been collected, so far, for continued preservation and the historic accounting work.

It is also often overlooked that, with help from Indian leaders from across the country, Interior undertook a thorough review of its trust management practices and, based on that review, is now implementing a comprehensive trust reform plan for the management of the Indian trust.

The question is not why Interior is fighting so hard to “dilute its responsibilities,” but, more importantly, why the tremendous accomplishments in trust reform and the progress made in accounting efforts so far continue to be dismissed.

Why is Interior hiding the full extent of its historic neglect and disregard of its Trust obligations from the courts, Congress, the public and the Indians themselves?

In the early years of the case, Interior stipulated to numerous problems with the management of the Indian trust. Since 2000, Interior regularly prepares quarterly reports on its trust reform activities and accounting efforts and makes these available to beneficiaries, the public, the courts and Congress. As well, all court and Congressional testimony are available online.

While history has not been kind to American Indians, including numerous shifts in federal policy such as the “allotment era” that formed the trust in the late 19th century, it is irresponsible to suggest that the people who work in Indian Affairs today—more than 90% of whom are American Indians—are continuing detrimental practices. I’m proud to work with the people at Interior who strive to better the lives of Indian people across the nation. 

Why is Interior putting its own institutional and industry’s interests above those to whom it owes the highest duty known to law?

Congress has a fiduciary responsibility to Indian trust beneficiaries that is carried out by Interior.  Interior acts as a trustee for Indian beneficiaries’ trust assets. We take our responsibility to consider the interests of these beneficiaries above all else very seriously.

Our day to day business managing Indian Affairs—including the leasing and management of trust assets—is based on federal regulations, Congressional mandates and appropriations requirements, and common fiduciary trust practices. I believe that the better the people of Indian Country fare in the leasing of their trust land, the better Interior fares in supporting its mission to improve the quality of life for Indian communities. More funds can mean improved lifestyles, education, and health care. Many people think that we can somehow curry favor with one company over another, but that is not the way we function. For example, current federal regulations require producers of oil on Indian trust land to pay a minimum of 16.66 percent in royalties (compared to other federal fee land, which receives only 12.5 percent), unless the Indian mineral owner agrees to a lower rate.

Often, there are many other issues that plague the leasing of Indian trust land, such as the huge problem of land fractionation (where land gets divided time and again as it is passed from generation to generation). We currently are managing individual allotments that have more than 1,000 owners. If, for example, a grazing lease on such an allotment earns $10,000 a year and every owner has an identical interest in the land, each of those 1,000 owners would receive only $10 a year. Today, Interior is responsible for managing more than 14,000 accounts that contain less than $1 and have had no activity within the last 18 months.  Fractionation was cited as a problem more than 75 years ago; it is just recently being seriously addressed by Congress and the tribes.

Why is Interior refusing to acknowledge that its conflicting priorities disable it from meeting its Trust duties? Why is it refusing to entertain settlement?

This lawsuit has been ongoing since 1996, and there is widespread hope across Indian Country, in the administration, and in Congress that an acceptable solution can be achieved for the good of all Indian people. But we feel that to be fair to all parties involved, including every American taxpayer, a solution must be found based on the facts and the evidence rather than emotional rhetoric.

Interior’s accounting experts have uncovered no evidence of fraud or widespread systemic error in the U.S. government’s handling of the individual Indian accounts.  The few errors that have been found are generally small in monetary value, and fall on both sides of the ledger. This picture is significantly different from that offered by the plaintiffs. To suggest that money collected on behalf of beneficiaries was not distributed to beneficiaries is baseless. Such institutional fraud could not survive over 100 years given all the scrutiny of the Indian trust.                                                                 

While it may be hard to absorb, considering what people have read about Interior and the Indian trust, Indian trust agents did, in good faith, distribute funds to beneficiaries over the years and did attempt to keep good records. (It is also understandable that people think—because beneficiaries may receive small checks—that they are being cheated, but the reasons behind these small checks generally have their roots in other problems such as land fractionation.)  

There have been several times over the years where we have, to borrow your phrase, entertained settlement, including recent participation in a several-month mediation process. But time and again it has been apparent that, considering our findings, the gap is too wide between what we and the plaintiffs feel is a fair settlement. In good conscience, it is impossible to split the difference between the $176 billion plaintiffs claim they are owed, or the $27.5 billion they now say they will accept in settlement and the much smaller amounts that our accountants say may be owed.

Why is Interior even fighting so hard to retain control over Indian issues?

This question shows a lack of understanding about the government-to-government relationship with sovereign tribes across the nation, which have steadfastly opposed removing Interior as trustee. We greatly respect this relationship, and work closely with tribal leaders and Indian organizations to craft our management practices. Indian Affairs employees throughout the country are also continually working to foster self-determination and self-governance opportunities for tribes to assume the management of federal programs (An aside: Interior is the largest single employer in Indian Country).

There are certainly many problems in Indian Country that need attention from tribes, Congress, and Interior. As often as possible, we work with Indian organizations to tackle these issues. For example, we recently formed a partnership with the Indian Land Tenure Foundation to provide training and assistance on new federal probate requirements. We look forward to building more partnerships, and working closely with tribal leaders throughout Indian Country.

Perhaps this last question is better directed to Indian tribes and individual beneficiaries. During the past 30 years I have been associated with Indian issues, I notice that even discussions about the vague possibility of downsizing or moving Indian affairs from Interior brings alarm and a large negative outcry from leaders and individual Indians throughout Indian country.

The Cobell lawsuit and various investigative reports have brought a lot of attention to the issues surrounding the Indian trust, and we appreciate that. We would ask that anyone involved recognize that things are not the same today as they were when the case was filed. To discount our accounting and reform work, and the data we are collecting, is detrimental to the process of finding a fair and just solution for all Indian trust beneficiaries—something we all hope can happen sooner rather than later.

Ross Swimmer is the Special Trustee for American Indians at the Department of the Interior. 

For more information on the historical accounting and other reform efforts, see the 23rd Quarterly Report to the Court at www.doi.gov/ost.


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08/17/2009, 03:20 AM

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