Held in Contempt

By Silja J.A. Talvi and Brian Awehali, LiP Magazine. Posted March 31, 2003.

Since 1887, the U.S. government has been entitled to lease Indian lands and utilize their natural resources for everything from logging and mining to grazing cattle to pumping oil.
Today, the government does a brisk business in leasing, as royalties from the use of the land add up to more than $1 billion annually.

According to the Interior Department's own figures, 56 million acres of Indian land are now held in "trust" by the U.S. government, which is charged with redistributing most of those royalties to the individuals and tribes whose lands are being leased. Altogether, the Department of the Interior manages over 100,000 leases for approximately 236,000 Individual Indian Money (IIM) account holders--in addition to 1,400 tribal accounts.

Individuals and tribes alike depend on these trust fund disbursements for rent, food, and the basic operation of social services in Indian Country.

The problem: Sometimes those checks arrive, and sometimes they don't. Sometimes the checks might arrive for hundreds or thousands of dollars, and sometimes those checks might only amount to pennies on the dollar. On Indian reservations, the problem has reached crisis levels; a check written out for a smaller amount than expected--or no check at all--can mean the difference between housing and homelessness.

All the while, the Interior Department's officials have made it clear that they're not sure how to fix a broken trust disbursement system, much less how much money is missing, or where the missing funds have gone. For their part, lawyers representing hundreds of thousands of Indians in the largest-ever class-action lawsuit against the government have put the cumulative total at $137.2 billion owed.

No matter what the final figure, there's no doubt that the nation's single most impoverished ethnic group could use a bit of that cash.

It's for this reason that a group representing 300,000 Indian plaintiffs have spent the last six years trying to get the Interior Department to account for all the money that they are owed. The plaintiffs, led by Elouise Cobell, an outspoken female banker and member of the Blackfoot Nation, insist that the Interior Department's officials and employees have broken the "trust" relationship between Indian people and the Federal Government, and are therefore neither fit nor equipped to continue overseeing the vast sums.

Even the federal judge overseeing this landmark case, Cobell v. Norton, has called the BIA the most "historically mismanaged federal program" in the U.S. In February 2002, U.S. District Judge Royce Lamberth had these, sharp words for the Interior Department and Secretary Gale Norton: "[T]he department has now undeniably shown that it can no longer be trusted to state accurately the status of its trust reform efforts. In short, there is no longer any doubt that the secretary of the Interior has been and continues to be an unfit trustee-delegate for the United States."

In November 2001, when Gale Norton became the second consecutive Interior Secretary to face contempt charges in a federal court for failing to provide an accounting of the Bureau of Indian Affairs (BIA) management of IIM accounts, its unlikely she or her co-defendant, former BIA director Neal McCaleb, a Chickasaw Indian, anticipated the emotional force and organizational unity of her detractors.

Both Norton and McCaleb were held in contempt in September 2002 for failing to heed the court's orders to fix trust oversight problems. (McCaleb, the nation's highest-ranking American Indian, resigned three months later, citing the "contentious and litigious environment" ahead of him.)

Norton and McCaleb were not the first government officials to be held in contempt for the handling of Indian trust monies: President Clinton's Treasury Secretary Robert Rubin had his turn at this dubious honor as well. Government officials who let down their constituencies and mismanage millions should be held accountable.

For the Interior Department, the accounting and management of the IIM trust fund has been an exercise in acronyms.

From the perspective of the department, Secretaries Babbitt and Norton have legitimately tried a variety of approaches to reconcile and improve a broken system as quickly as possible .

On January 6, 2003, the Interior Department met a court-imposed "compliance plan" deadline, assuring the court that it took the responsibility of meeting the conditions of the 1994 American Indian Trust Fund Management Reform Act (ITRA) seriously.

The 16-page document (intended to demonstrate to the court what kind of progress the Interior had made in meeting its fiduciary trust obligations) announced a reorganization within the BIA and the Office of the Special Trustee for American Indians. According to the document, the Interior was also undergoing a "reengineering of Interior's trust business processes" and the implementation of a strategic plan formerly known as the Indian Trust Business Plan, and now entitled the Comprehensive Trust Management Plan (CTMP).

The CTMP, in turn, would be administered under the "leadership of the Office of Indian Trust Transition (OITT)."

After a while, the Interior's proclivity for the use of acronyms, appointed offices and grand restructuring plans begins to jumble together into a steaming, swirling bowl of alphabet soup.

In 2001, Norton had already proposed the creation of a new agency, the Bureau of Indian Trust Assets Management (BITAM), to manage IIM accounts. Tribal leaders chafed at not being consulted about her plans, but BITAM remained the Interior's buzzword will into 2002.

In the spring of 2001, Norton proclaimed the staffing of a new division, the Office of Historical Trust Accounting (OHTA), which was supposed to perform a limited accounting of owed trust monies. But in a July 2002 Report to Congress on the Historical Accounting of Individual Indian Money Accounts, the dozens of employees and contract workers hired to work in the office concluded that it would take them 10 years and $2.5 billion to actually do that job. And even then, they admitted, such research and accounting would not necessarily produce usable results.

Similar examples of expenditure without result riddle the Interior's recent history. Thirty million dollars spent on data cleanup, for instance, resulted in a computer specialist's admission, in court, that he could not certify that a single account had been cleaned up despite the fact that tens of millions had already been spent.

In their own "Compliance Action Plan" submitted to Judge Lamberth on January 6, 2003, Cobell and her peers point out that the government now has a genuine opportunity to redeem itself to Indian trust beneficiaries by taking quick and decisive action.

In doing so, plaintiffs took the opportunity to excoriate the Interior Department's tactics: "[The] defendants are forever reorganizing themselves, moving organizational boxes around on a chart, devising new acronyms, and renaming tasks and entities in deeper and deeper bureaucratic jargon in a pathetic effort to create the phony impression of, if not progress, at least movement."

Unwilling to wait for the Interior to make real progress, the plaintiffs asked Judge Lamberth to consider their own proposal: Take trust management out of the hands of the Interior altogether. Key to the proposal is the idea that the IIM trust accounts should immediately be taken over by an "unconflicted" trust administration solely devoted to fixing and administering the trust debacle.

Cobell and lead attorneys from the Native American Rights Fund have emphasized that such an administration, made up of non-governmental employees, and funded with permanent appropriations, could hire the competent staff and supervisors necessary to ensure the proper management of trust money.

As Tex Hall, president of the National Congress of American Indians told the New York Times in early January, "This isn't taxpayer money. This is our money that the government took, and they have to give it back."

Moving Forward

Because of their statistically small numbers, the majority of congressional representatives outside of states like South Dakota, New Mexico and Arizona can safely ignore all but the most cursory issues pertaining to the modern struggles of American Indians. For U.S. politicians, the benefits of pushing for meaningful reform of federal Indian policy are negligible.

Between American politicians whose interest in Indians is tangential and inconsistent, and a majority non-Indian citizenry whose awareness of Indian realities is minimal, at best, the categorical failings of the BIA and Interior Department are simply allowed to pile up, year by year.

"Where has Congress been while this mugging has gone on for nearly six years?," asked Cobell of the House Resources Committee in 2002.

One saving grace has been increased attention from Senators John McCain (R-AZ), Tom Daschle (D-SD), and Tim Johnson (D-SD), who introduced S. 2212, the "Indian Trust Asset and Trust Fund Management and Reform Act" in April 2002.

The "discussion" bill--so entitled to encourage comment and modification, as warranted--focuses on the creation of a Deputy Secretary for Trust Management and Reform, and specific provisions for tribal participation and self-determination in the trust reform process.

"There is no more important challenge facing the tribes and their representatives in Congress than that of restoring accountability and efficiency to trust management," said Sen. Daschle when the bill was introduced.

Added Sen. Johnson, "Of all the extraordinary circumstances we find in Indian Country ... I do not think there is any more complex, more difficult and more shocking than the circumstances we have surrounding trust fund mismanagement."

But what happens from here, of course, is anybody's guess.

Will the Interior Department continue to invent an endless stream of new proposals and official acronyms to conveniently skirt their fiduciary obligations? At least in the near future, such a strategy seems likely, even predictable.

Will Cobell and her fellow plaintiffs eventually wear the government down? Anything is possible. Even now, signs are emerging that the White House itself wants to push the Interior Department to settle to prevent the additional costs of further litigation, as noted in a June 2001 letter from the Office of Management and Budget to the Interior Secretary.

But such settlement seems furthest from the Interior's agenda. J. Steven Griles, Deputy Interior Secretary, had this to say to the New York Times: "I am not settling a case with taxpayer money for billions of dollars when there is no supporting evidence that the money they say they lost ever existed."

In fact, a critical June 2002 report from the Office of the Inspector General (OIG) seemed to point toward the Department's "bunker mentality" where trust reform is concerned. "The Cobell litigation has so embroiled and angered those involved that they cannot see or think clearly in order to make a correct decision," as the OIG reported. "Every effort is thwarted by internal discord, distrust and a dysfunctional reluctance to assume ownership."

And so while a legitimate accounting of monies owed by the Interior becomes less and less likely, hundreds of thousands of Indians continue to go without what they're owed.

From the standpoint of Indian trust account holders, the trust debacle is but the latest insult in what amounts to a historical miscarriage of decency and justice toward the descendants of America's first inhabitants.

"Many of the intractable problems the tribes and federal policy makers wrestle with today stem from the wreckage caused by these misguided policies of the past," Senator John McCain noted while introducing S. 2212 last year.

"It took over 100 years to create the problems we now confront with the Indian trust funds and assets," he added. "The Indian people did not create these problems. The Federal Government did."

Silja Talvi and Brian Awehali are the editors of LiP Magazine.

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