[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
DEVELOPING A LEGISLATIVE SOLUTION TO THE INDIAN TRUST FUND LAWSUIT
=======================================================================
OVERSIGHT FIELD HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
Saturday, October 25, 2003, in Billings, Montana
__________
Serial No. 108-71
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
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______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Elton Gallegly, California Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Donna M. Christensen, Virgin
Barbara Cubin, Wyoming Islands
George Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Jay Inslee, Washington
Carolina Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Jim Gibbons, Nevada, Anibal Acevedo-Vila, Puerto Rico
Vice Chairman Brad Carson, Oklahoma
Mark E. Souder, Indiana Raul M. Grijalva, Arizona
Greg Walden, Oregon Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona George Miller, California
Tom Osborne, Nebraska Edward J. Markey, Massachusetts
Jeff Flake, Arizona Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana Ciro D. Rodriguez, Texas
Rick Renzi, Arizona Joe Baca, California
Tom Cole, Oklahoma Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
------
C O N T E N T S
----------
Page
Hearing held on Saturday, October 25, 2003....................... 1
Statement of Members:
Rehberg, Hon. Dennis R., a Representative in Congress from
the State of Montana....................................... 1
Prepared statement of.................................... 3
Statement of Witnesses:
Hill, Vernon, Chairman, Eastern Shoshone Business Council,
Wind River Indian Reservation, Ft. Washakie, Wyoming....... 25
Prepared statement of.................................... 27
Howe, Kayle, Executive Aide to Carl Venne, Chairman, Crow
Tribe of Indians........................................... 13
Prepared statement of.................................... 15
Main, Jerome, Chairman, Fort Belknap Indian Community
Council, Harlem, Montana, Oral statement of................ 35
Matt, D. Fred, Tribal Council Chairman, Confederated Salish
and Kootenai Tribes, Pablo, Montana........................ 3
Prepared statement of.................................... 6
Russell, Majel M., Attorney at Law, Individual Crow Trust
Landowner.................................................. 37
Prepared statement of.................................... 39
Shields, Caleb, Chief of Staff, Assiniboine & Sioux Tribes of
the Fort Peck Reservation.................................. 41
Prepared statement of.................................... 43
Small, Geri, President, Northern Cheyenne Tribe, Lame Deer,
Montana.................................................... 18
Prepared statement of.................................... 20
St. Goddard, Jay, Blackfeet Tribal Business Council,
Browning, Montana, Oral statement of....................... 16
Venne, Carl, Chairman, Crow Tribal Council, Crow Agency,
Montana, Prepared statement of............................. 15
Windy Boy, Alvin, Sr., Chairman, Business Committee, Chippewa
Cree Tribe of the Rocky Boy's Reservation, Box Elder,
Montana.................................................... 8
Prepared statement of.................................... 11
Additional materials supplied:
Baucus, Hon. Max, a U.S. Senator from the State of Montana,
Statement submitted for the record......................... 8
Sinclair, John, Tribal Chairman, Little Shell Tribe of
Chippewa Indians of Montana, Letter submitted for the
record..................................................... 51
OVERSIGHT HEARING ON ``DEVELOPING A LEGISLATIVE SOLUTION TO THE INDIAN
TRUST FUND LAWSUIT''
----------
Saturday, October 25, 2003
U.S. House of Representatives
Committee on Resources
Billings, Montana
----------
The Committee met, pursuant to call, at 10 a.m., in the
Lewis and Clark Room, Montana State University Student Union
Building, 1500 University Drive, Billings, Montana, Hon. Dennis
Rehberg presiding.
Mr. Rehberg. Good morning. I want to thank Troop 93 from
Lockwood for taking their Saturday morning with us and joining
us. And if you will all please rise and please present the
colors.
[Color Guard presentation and Pledge of Allegiance.]
Mr. Rehberg. If you will remain standing, Mr. Windy Boy
will give us an invocation.
Alvin?
Mr. Windy Boy. If you will bear with me, I am going to do
my invocation in my native language, Cree.
[Invocation.]
STATEMENT OF THE HON. DENNIS REHBERG, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MONTANA
Mr. Rehberg. Good morning and welcome to this hearing. I
thank you for coming out on this Saturday morning. Can
everybody in the back hear me OK?
Audience. [Yes.]
Mr. Rehberg. All right, great. Thank you.
I am Denny Rehberg, representing the State of Montana in
the U.S. Congress. I am a member of the Resources Committee,
which is conducting this hearing.
Let me begin by apologizing for the formality of this
hearing, but this is an official congressional hearing so there
are certain procedures that we must conform with.
You will see that there are folks that are recording this
hearing. It has to go through the various parliamentary
procedures to make it the official hearing that we intend it to
be.
This is one, the first, in a series of hearings that will
be conducted either throughout the country and/or in
Washington, D.C.
We have had a couple of hearings already since I have been
in the U.S. Congress, elected in 2000, first sworn in in 2001,
to deal with the Indian Trust Account situations.
For those of us who have been involved in business and in
perhaps a smaller level of government, the state government, it
is incredible to find out that the Federal Government has so
severely, in my estimation, mismanaged their trust
responsibilities for so many years.
I asked my staff to do the best they could to find a
graphic that was presented in the first hearing about a year-
and-a-half ago that I attended in Washington, D.C. It was of
the Philadelphia Inquirer, and it was a placard that was in the
back of the Committee hearing. On this placard was the front
page of this newspaper. It was dated 1876.
And on that date, reported on the front page of that
newspaper, I have the quote. It said the mismanagement of the
Indian Trust Funds dates back to the 1880s. In fact, an article
in a July 6, 1876, newspaper--Philadelphia Press--not
Inquirer--described the gross irregularities in the investment
of the Indian Trust Fund by officers of the government.
On the same page of that newspaper that day they were
announcing the death of General George Custer in Montana.
That will tell you how long this problem has existed.
That's unacceptable, as far as we're concerned.
Now, as we try and make our way through the various
lawsuits that are presented on behalf of the tribes around the
country, and as Congress tries to deal with the problem that
exists, Chairman Pombo has asked if perhaps there is a
legislative solution.
Most of us want to be alive when this is solved. There's no
guarantee of that once it gets into the court process. And I
think you all recognize that as well.
So, this hearing is an attempt on the Chairman's part to
find out if there's a desire to enter into the possibility of a
legislative solution.
You know, one of the things that those of us in government
are really good at doing is throwing up our hands and saying,
let somebody else figure it out; we'll just not deal with
something that's either sensitive, controversial or complex.
This chairman, Chairman Pombo, intends to be a different
kind of a Resources Committee chairman.
There has been a bill introduced by Chairman--Mr. Campbell
in the Senate. If you want to talk briefly about it as well, I
am not well-versed in Mr. Campbell's piece of legislation.
That's not our intent today.
Our intent today is to open up the microphone to you all;
give you an opportunity to have your say on an issue that we
believe to be very important to you personally, to your tribes
and ultimately to the people of America to try and come to a
successful conclusion before the year 2050 or beyond. And so
that is our intent; that is our reason for being here.
[The prepared statement of Mr. Rehberg follows:]
Statement of The Honorable Denny Rehberg. a Representative in Congress
from the State of Montana
Good morning everyone and welcome to this meeting of the U.S. House
of Representatives Committee on Resources. This field hearing is a way
for us to bring the legislative process to you so that we can get
feedback from folks who might not get the opportunity to testify at a
hearing in Washington, D.C. I expect that this will be a productive
meeting, what with so many participants--we have several leaders of the
Montana tribes here. I'd also like to thank the folks at MSU-Billings
for letting us use this great room.
The purpose of this hearing is to explore what a legislative
resolution to the Indian trust fund lawsuit might consist of. Chairman
Pombo and I--and other Members of the Committee--feel strongly about
this topic and we wanted to get close to Indian Country and away from
Washington, D.C., to hear from some of the people who are most affected
by this issue.
There is a general feeling that the trust fund lawsuit could drag
on for many more years and cost billions of dollars, while the
individual Indian money account holders get no accounting and get no
money they may be owed by the government. My continued interest is in
reaching consensus and solving this highly charged issue. That's why we
want to hear from you--so we can get an idea of what the Tribal Members
are looking for in a solution. Then, hopefully, the Committee will be
better able to examine various reform proposals.
I'd like to thank all the witnesses for coming here today--some of
you traveled long distances without a lot of notice. I look forward to
hearing all of the witnesses' statements.
______
Mr. Rehberg. The one thing that I am required to do and, if
you will bear with me, part of the procedure is to swear you in
as witnesses. So if you will please rise and repeat after me.
[Witnesses sworn.]
Mr. Rehberg. Thank you very much. I would like to remind
our witnesses today to please limit their oral statements to 5
minutes. Your entire written statement will appear in the
record.
At this time, since I had no preestablished order, if you
don't mind, why don't we start with Chairman Matt and begin
with you, Fred. Thank you for being here.
STATEMENT OF FRED MATT, TRIBAL COUNCIL CHAIRMAN, CONFEDERATED
SALISH AND KOOTENAI TRIBES
Mr. Matt. Thank you. Greetings to you, Congressman Rehberg,
and welcome to Montana.
You know, I think it is probably good for you to come back
every once in a while and smell the roses and feel the nice
cool air of fall, and so I appreciate this Committee tackling
this venture, because it is huge. It has affected Indian
country across the board. It has caused us tribal leaders to
sit at the table and try to come up with ideas of how to help
resolve this.
I have a prepared statement that I would like to read, and
I did submit some copies of a more lengthy written statement. I
will try to be brief, and I will try to stay within the
confines, and bear with me.
Prior to this hearing, we did have--we didn't have
sufficient time, the Tribal Council, to consider and adopt a
formal position with respect to congressional legislation
addressing the Cobell litigation involving Indian trust funds
management. However, I am pleased to be able to provide this
Committee with my own views on the issue.
The Salish-Kootenai Tribes have been very active in Indian
trust fund management. Not only have we participated in the
many Intertribal discussions on how best to resolve the
problems with Federal management of these trust funds, but we
have also taken a more direct approach. We have contracted
under the Self--Tribal Self-Governance Act--to manage our own
trust funds accounts.
I am happy to report to you that the tribal government and
the tribal members alike are very happy with our experience in
taking over administration of the Federal functions, trust
functions.
Due to our experience, we have a unique insight into the
trust funds management issue since we can view it from a
perspective of both accounts manager and accounts holder.
As managers of these accounts, we can appreciate the
complexities in resolving the administration and accounting
issues.
As an account holder, we know as well as everyone that
Federal mismanagement of these trust funds has long worked
great injustices to the many tribal and individual Indian
beneficiaries, injustices that would have not been tolerated
had they occurred in any other segment of American society.
We appreciate that Congress is continuing to look at ways
to correct these injustices and to prevent mismanagement in the
future.
As you are aware, the filing of the Cobell litigation has
resulted in the trust funds mismanagement issue receiving the
attention that it requires. Unfortunately, that litigation was
filed over 7 years ago, and it was only within the last month
that a decision was rendered by the Federal District Court. In
short, the litigation is an extremely lengthy process, and I
believe it is both appropriate and productive for Congress to
try its hand at a remedy for the situation.
One thing we feel strongly about is the potential for the
Congress to spend up to $9 billion doing the historical
accounting that Judge Lanberth ordered. To date, millions of
dollars have been directed to accounting firms, while the
Indian people who may be owed money have received nothing. I am
particularly concerned about our elders who may not last the
additional years it will take for the accounting to take place
and for the litigation and the appeals to run their course.
If the Congress has that kind of money, it could go toward
a compensation fund. It could also be spent on tribal land
consolidation which alleviates the problems associated with
fractionated heirship of land and the accounting nightmares
that accompany trust income associated with property that may
be owned by hundreds and even thousands of people.
We have also been long opposed to the concept of a receiver
being appointed to manage Indian trust funds and, frankly, are
a little concerned about that proposal. It is critical that we
not lose the flexibility we now have with the BIA to meet the
new standards and may be practically unobtainable.
A few days ago, your colleagues in the Senate introduced a
bill, S. 1770, which is called the ``Indian Money Account
Claims Satisfaction Act of 2003.'' Our Tribal staff is still in
the process of reviewing that legislation. However, I would
generally support the bill's approach in that it would provide
individual Indian account holders with a menu of options for
addressing the problem.
Specifically, the bill lays out three alternative
approaches. The first option involves the establishment of an
Indian Money Account Claims Satisfaction (IMACS) Task Force
which would be charged with analyzing trust records and
accounts; developing methodologies for an accounting; and,
subsequently determining the balances of individual accounts.
If the account holders agree with the determination, then
the bill establishes a mechanism by which the Interior
Secretary would then make a full payment in the amount
determined, in exchange for a signed accord and satisfaction.
Upon completion of this, the individual account holders would
be dismissed from the Cobell class action litigation.
However, if an individual did not agree with the IMACS Task
Force determination, a second option would allow the individual
to submit the issue to an arbitration tribunal which the bill
could create. The arbitration would be binding on both the
individual and the Federal Government and, like the first
option, would also result in the individual being dismissed
from the class action litigation.
The third option in S. 1770 is for the individual to remain
part of the Cobell class action litigation. I should note that,
like the Cobell litigation, S. 1770 does not directly address
trust fund accounts where tribes themselves are the account
holders.
I would also like to emphasize that I believe that it is
important to remember that tribes themselves can be part of the
solution. Allowing tribal governments, like the Confederated
Salish and Kootenai Tribes, who contract administration for
trust fund accounts to continue our successful trust management
programs can help to prevent future problems.
Tribal governments are the closest to the trust
beneficiaries, and we have the strongest motivation to properly
handle these monies for our constituents. That is why we have
pressed for inclusion of the Trust Reform Demonstration Project
(section 134) in Fiscal Year 2004 Interior appropriations bill
(S. 1391). This demonstration project would ensure our ability
to continue this effective management without being impaired by
the reorganization of trust functions within the Interior.
On behalf of our Tribal Council, I would like to thank
Congressman Pombo, Chair of this Committee, for his strong
support of this amendment and for the September 30 letter to
the Chairman of the House Interior Appropriations Subcommittee.
We are likewise grateful for the support of the Resources
Committee members.
Over the last decade, a great deal of energy and resources
has gone into trust funds management issues. This is true of
all three branches of Federal Government, as well as scores of
Tribal governments. On behalf of the Confederated Salish and
Kootenai Tribes, I welcome congressional efforts to bring
relief to individual Indian account holders.
As Judge Lamberth recounted in his decision on the Cobell
case, Congress was a catalyst on this issue through its 1992
House Report titled ``Misplaced Trust: The Bureau of Indian
Affairs' Mismanagement of the Indian Trust Fund.''
The Senate bill and this oversight hearing demonstrate that
Congress is not content to set on its hands while the issue is
examined by its sister branches of government. I believe this
engagement by Congress, with active participation from tribal
governments and individual account holders, can be productive
in reaching a solution to a long-standing problem.
Mr. Chairman, I thank you for the opportunity to provide my
views to this Committee.
Mr. Rehberg. Thank you, Chairman Matt.
[The prepared statement of Mr. Matt follows:]
Statement of D. Fred Matt, Tribal Council Chairman,
Confederated Salish & Kootenai Tribes
Greetings Congressman Rehberg. Welcome back to Montana. My name is
Fred Matt and I serve as the Chairman of the Confederated Salish &
Kootenai Tribal Council. Thank you for the opportunity to provide my
views to the House Resources Committee.
Prior to this hearing, we did not have sufficient time for the
Tribal Council to consider and adopt a formal position with respect to
Congressional legislation addressing the Cobell litigation involving
Indian trust funds management. However, I am pleased to be able to
provide the Committee with my own views on the issue.
The Salish and Kootenai Tribes have been very active in the area of
trust funds management. Not only have we participated in the many
intertribal discussions on how best to resolve the problems with
federal management of these trust funds, but we have also taken a more
direct approach: We have contracted under the Tribal Self-Governance
Act to manage our own trust fund accounts. I am happy to report to you
that our Tribal government and Tribal members alike are very happy with
our experience in taking over administration of this federal trust
function.
Due to our experience, we have a unique insight into the trust
funds management issue since we can view it from the perspectives of
both the accounts manager and account holders. As manager of these
accounts, we can appreciate the complexities in resolving the
administration and accounting issues. As an account holder, we know as
well as anyone that federal mismanagement of the trust funds has long
worked great injustices to the many Tribal and individual Indian
beneficiaries--injustices that would not have been tolerated had they
occurred in any other segment of American society. We appreciate that
Congress is continuing to look at ways to correct these injustices and
to prevent mismanagement in the future.
As you are aware, the filing of the Cobell litigation has resulted
in the trust funds mismanagement issue receiving the attention that it
requires. Unfortunately, that litigation was filed over seven years ago
and it was only last month that a decision was rendered by the federal
district court. In short, the litigation is an extremely lengthy
process. I believe it is both appropriate and productive for Congress
to try its hand at a remedy for the situation.
One thing we feel strongly about is the potential for the Congress
to spend up to $9 billion doing the historical accounting that Judge
Lamberth ordered. To date, millions of dollars have been directed to
accounting firms while the Indian people who may be owed money have
received nothing. I am particularly concerned about our elders who may
not last the additional years it will take for the accounting to take
place and for the litigation and the appeals to run their course. If
the Congress has that kind of money, it could go toward a compensation
fund. It could also be spent on tribal land consolidation which
alleviates the problems associated with fractionated heirship of lands
and the accounting nightmares that accompany trust income associated
with property that may be owned by hundreds and even thousands of
people.
We have also been long opposed to the concept of a receiver being
appointed to manage Indian trust funds and, frankly, are a little
concerned about that proposal. It is critical that we not lose the
flexibility we now have if the BIA has to meet new standards that may
be practically unobtainable.
A few days ago, your colleagues in the Senate introduced a bill, S.
1770, which is called the ``Indian Money Account Claim Satisfaction Act
of 2003.'' Our Tribal staff is still in the process of reviewing that
legislation. However, I would generally support that bill's approach in
that it would provide individual Indian account holders with a menu of
options for addressing the problem. Specifically, the bill lays out
three alternative approaches.
The first option involves the establishment of an Indian Money
Account Claim Satisfaction (IMACS) Task Force which would be charged
with analyzing the trust records and accounts, developing methodologies
for an accounting, and subsequently determining the balances of
individual accounts. If the account holder agrees with the
determination, then the bill establishes a mechanism by which the
Interior Secretary would then make a full payment in the amount
determined, in exchange for a signed accord and satisfaction. Upon
completion of this, the individual account holder would be dismissed
from the Cobell class action litigation.
However, if the individual did not agree with the IMACS Task Force
determination, a second option would allow the individual to submit the
issue to an arbitration tribunal, which the bill would create. That
arbitration would be binding on both the individual and the federal
government and, like the first option, would also result in the
individual being dismissed from the class action litigation.
The third option in S. 1770 is for the individual to remain part of
the Cobell class action litigation.
I should note that, like the Cobell litigation, S. 1770 does not
directly address trust fund accounts where Tribes themselves are the
account holders/beneficiaries.
I would also like to emphasize that I believe it is important to
remember that Tribes themselves can be part of the solution. Allowing
Tribal governments, like the Confederated Salish & Kootenai Tribes, who
contract administration of trust fund accounts, to continue our
successful trust management programs can help to prevent future
problems. Tribal governments are the closest to the trust
beneficiaries, and we have the strongest motivation to properly handle
these monies for our constituents. That is why we have pressed for
inclusion of a Trust Reform Demonstration Project (Section 134) in the
FY'04 Interior appropriations bill (S. 1391). This demonstration
project would ensure our ability to continue this effective management
without being impaired by any reorganization of trust functions within
the Interior Department. On behalf of our Tribal Council, I would like
to thank Congressman Pombo, Chair of this Committee, for his strong
support of this amendment and for his September 30, 2003, letter to the
Chairman of the House Interior Appropriations Subcommittee. We are
likewise grateful for the support of other Resources Committee members.
Over the last decade, a great deal of energy and resources has gone
into the trust funds management issue. This is true of all three
branches of the federal government, as well as scores of Tribal
governments. On behalf of the Confederated Salish & Kootenai Tribes, I
welcome Congressional efforts to bring relief to individual Indian
account holders. As Judge Lamberth recounted in his decision on the
Cobell case, Congress was a catalyst on this issue through its 1992
House Report, titled ``Misplaced Trust: The Bureau of Indian Affairs'
Mismanagement of the Indian Trust Fund.''
The Senate bill and this oversight hearing demonstrate that
Congress is not content to sit on its hands while the issue is examined
by its sister branches of government. I believe this engagement by
Congress, with active participation from Tribal governments and
individual account holders, can be productive in reaching a solution to
a long-standing problem.
Mr. Chairman, thank you for the opportunity to provide my views to
this Committee.
______
Mr. Rehberg. One of the things a chairman gets to do is
admit mistakes, so I need to very quickly. I apologize, Liz,
for having forgotten to read Senator Baucus' letter. I will do
that now without objection.
There is no objection?
``I am sorry I can't be with you today, but Senate
business has kept me in Washington. I am working on
health care legislation to provide all seniors with a
quality, affordable prescription drug benefit. In
addition, I am working hard on an energy bill to ensure
reliable affordable energy for Montana families,
businesses and tribes.
``It's clear that the Federal Government has
abdicated it is responsibility--Max knows bigger words
than me--of properly managing Indian trust funds.
Unfortunately, the Federal Government's mismanagement
has severely damaged tribal economies. Thousands of
Native Americans across the country have unanswered
questions. It is long overdue to get to the bottom of
the issue, inject some accountability into the system,
and working with tribal leaders, enact real trust
reform.
``On October 21st, Senator Ben Nighthorse Campbell
introduced the Indian Money Account Claim Satisfaction
Act of 2003 in the Senate that in his words, 'would
establish a voluntary, alternative claims resolution
process to reach settlement of the Cobell v. Norton
Class Action Lawsuit.' I encourage you to share with me
your thoughts and views on this legislation.
``I would like to thank Congressman Rehberg for
holding this important hearing today. By working
together we can make a difference.''
Thank you, Senator Baucus. It will be put in to the record.
[The statement submitted for the record by Senator Baucus
follows:]
Statement of The Honorable Max Baucus, a U.S. Senator from the
State of Montana
I'm sorry I can't be with you today, but Senate business has kept
me in Washington. I'm working on health care legislation to provide all
seniors with a quality, affordable prescription drug benefit. In
addition, I'm working hard on an energy bill to ensure reliable,
affordable energy for Montana families, businesses and tribes.
It's clear that the federal government has abdicated its
responsibility of properly managing Indian trust funds. Unfortunately,
the federal government's mismanagement has severely damaged tribal
economies. Thousands of Native Americans across the country have
unanswered questions. It's long overdue to get to the bottom of the
issue, inject some accountability into the system, and working with
tribal leaders, enact real trust reform.
On October 21st, Senator Ben Nighthorse Campbell introduced the
Indian Money Account Claim Satisfaction Act of 2003 in the Senate that
in his words ``would establish a voluntary, alternative claims
resolution process to reach settlement of the Cobell vs. Norton class
action lawsuit.'' I encourage you to share with me your thoughts and
views on this legislation.
I would like to thank Congressman Rehberg for holding this
important hearing today. By working together we can make a difference.
______
Mr. Rehberg. Also, we would like to thank MSU Billings for
allowing us the use of this tremendous facility. They have been
kind over the years to us in allowing us to do this, and it is
very much appreciated. Thank you, MSU Billings.
All right, Chairman Windy Boy.
STATEMENT OF ALVIN WINDY BOY, SR., CHAIRMAN, BUSINESS
COMMITTEE, CHIPPEWA CREE TRIBE OF THE ROCKY BOY'S RESERVATION
Mr. Windy Boy. Thank you, Congressman Rehberg.
Greetings from north central Montana, up by the Canadian
border, home of the Cree and Chippewa people. I am a third-
generation rancher. We hope the prices are going to hang for
another 10 years.
We want to thank you for your invitation to testify today.
Like Chairman Matt, I do have a prepared statement for the
record. I do have a prepared statement. I would also like to
read.
Like Chairman Matt and Salish-Kootenai, Chippewa Cree Tribe
do operate through a contract with both the Indian Health
Service and the Bureau of Indian Affairs. An initiative that we
feel is certainly indicative of the Chippewa and Cree Tribes of
assuming a lot of responsibilities, those responsibilities that
were always given to us, or provided by the United States
government that allows us the flexibility to provide better
services.
To me, unfortunately, a number of initiatives that arose
recently are going to be imperative in how we deliver those
services. Certainly, with this Cobell v. Norton case, certainly
is going to effect my tribe.
But if you don't mind. I would like to read my statement.
Mr. Rehberg. Certainly.
Mr. Windy Boy. I would also like to have you extend my
greetings to Chairman Pombo and let him know we appreciate his
authorization for this hearing. In his short tenure as Chairman
of the Resources Committee, he's really off to great start in
the eyes of many of us in Indian country.
Again, thank you for holding this oversight hearing on
developing a legislative solution to the Indian trust fund
lawsuit.
This, Congressman, is an important issue to all tribes
because the effects of the Cobell v. Norton lawsuit impact all
of Indian country, no matter how large or small your or our
tribes is.
I say this because the Cobell case is not just about money,
such as an accounting and determination of accurate account
balances, but equally as important to ensure that reforms are
in place so that the United States can bring itself into
compliance with its fiduciary duties to both tribal individuals
and to tribes.
It is also important because the reforms will affect the
manner in which programs are run, whether those programs are
directly operated by the Bureau of Indian Affairs, or whether
they are managed by the Tribes such as the Chippewa and Cree
Tribes, who operate all our programs on the reservation.
Although my tribe is the smallest in Montana in terms of
population and land base, we are significantly affected by the
Cobell case, as it is leading to the reorganization and
reengineering of the Bureau of Indian Affairs.
It really hurts us at the reservation level to have
critical funding diverted from tribal programs and be
reallocated to the reorganization hierarchy at the Bureau of
Indian Affairs to pay for litigation costs with both the
individual and tribal cases.
I say this because the funding increases for Indian
programs have been nonexistent in the Interior Appropriations
bill, especially within the Tribal Priority Allocations (TPA)
budget that funds basic governmental services to our people.
The Office of Special Trustee for American Indians (OST) is
slated to receive an 82 percent budget increase, which amounts
to $274.6 million in President Bush's Fiscal Year 2004 budget.
Of this amount, 130 million is supposed to be used to complete
reconciliation of more than 15,000 individual IIM Accounts and
reconcile translations related to the accounts.
Mr. Chairman, I am here today to inform the Committee that
it is imperative that we have congressional assistance in
correcting the trust funds accounting problems that have
plagued the Department of the Interior for years. It has been
over a decade since Congress first ordered the Department to
conduct an accounting for Indian trust funds. Indian country
cannot and should not have to wait any longer. Ten years and
over $600 million spent on trust reform and still no
accounting. Mr. Chairman, Congress must act now.
The legislative involvement and settlement process, the
reorganization of the Chippewa and Cree Tribes is in
structuring any type of legislative solution, I would recommend
that all the necessary parties be at the table. Of course, the
litigants and their representatives must be involved in any
settlement process, and I would also strongly recommend that
tribes be a part of the process to the extent that tribal
interests are affected.
Tribes have certainly made it clear that there are numerous
aspects of the Cobell case that affect our interests,
especially regarding trust reform.
It will be very helpful if senior members of the
authorizing committees of both houses of Congress get involved
to ensure that all parties come and discuss resolutions in good
faith.
The involvement of a mediator, to me, would be essential.
The mediator could be a person with significant political
experience and respect since they must hold parties to a good-
faith effort to resolving the dispute.
The scope of the settlement issues must be predetermined so
that negotiations will not reopen issues that have already been
settled by the court.
Previously settled issues by the court should determine the
necessary legal parameters of any settlement discussions.
The court in Cobell has divided the case into accounting
issues and trust reform issues, and it makes sense to keep the
same sort of division for any type of settlement legislation or
process.
And there should be no preset cap for the settlement.
We must also have full disclosure of material documents and
facts in any settlement process. In addition, the government
should have the burden of providing to tribes all records from
all government agencies and contractors pertaining to the trust
fund claims.
Another important issue to tribes is the assurance that any
settlement claims be recovered from the Judgment Fund, which I
believe is 31 U.S.C. 1304, and can be accessed to cover the
cost of any settlement. In addition, the settlement funds
should not have to be recovered from future Interior
appropriations for Indian programs. This would be
counterproductive to Indian country and our already underfunded
programs.
We oppose, the Chippewa Cree Tribe opposes putting riders
on appropriations bill to deal with this issue and would urge
the Congress to not establish or entertain such provisions.
Tribes, again, must be involved in helping to craft a
compromise on this, and we have had no input into the language
of any rider yet.
As a Self Governance Tribe, we are concerned about how the
trust reform will affect us. We hope that trust reform doesn't
create a situation or ability to have some flexibility in how
we operate the programs is lost. We are concerned that
litigation will lead to stifling degrees of process, procedure
and standards to the point where all tribes must adhere to
methodologies that are counter to our present successful
operations.
In closing, we are again appreciative that we have held
this hearing, and we do think it is important for Congress to
help broker a settlement to the Cobell case.
We can see no benefit in spending the next 5 years in
litigation and nonstop accounting.
We have only just received the new Campbell/Inouye/Domenici
Bill, Senate Bill 1770, the Indian Money Account Claim
Satisfaction Act of 2003. The concepts of reaching a settlement
as conceived of in that legislation are interesting, and I may
supplement my testimony after I have had an opportunity to sit
down with, like Chairman Matt, with my staff and read the
legislation and discuss that with our staff In reference to the
way that we do business in Indian country.
It is certainly different even in your state with the seven
tribes. My objective is to make sure we that don't disturb what
is already working for us. The way that we provide those
governmental service to our people certainly is indicative of a
government-to-government relationship that we have had.
The Chippewa Cree Tribe certainly has compacts already in
place with Bureau of Reclamation, Bureau of Land Management,
and the list goes on. And I am afraid if reform does happen,
that may create an additional bureaucracy for the Chippewa Cree
Tribe.
Mr. Rehberg. Thank you.
Alvin Windy Boy. I am certainly in support of any direction
that this Committee takes and would be also supportive of
sitting down and creating some direction.
[The prepared statement of Mr. Windy Boy follows:]
Statement of Alvin Windy Boy, Sr., Chairman, Business Committee,
Chippewa Cree Tribe of the Rocky Boy's Reservation
INTRODUCTION
Congressman Rehberg, thank you for your invitation to testify
today. My name is Alvin Windy Boy Sr., I serve as the Chairman of my
tribe, the Chippewa Cree Tribe of the Rocky Boy's Reservation. Please
extend my greetings to Chairman Pombo, and let him know we appreciate
his authorization of this hearing. In his short tenure as Chairman of
the Resources Committee, he is really off to a great start in the eyes
of many of us in Indian country.
Thank you for holding an oversight hearing on ``Developing a
Legislative Solution to the Indian Trust Fund Lawsuit.''
This is an important issue to all tribes because the effects of the
Cobell v. Norton lawsuit impact all of Indian Country, no matter how
large or small your tribe is. I say this because the Cobell case is not
just about money, such as an accounting and determination of accurate
account balances; but equally as important, to ensure that reforms are
in place so that the U.S. can bring itself into compliance with its
fiduciary duties to both tribal individuals and to the tribes. It is
also important because the reforms will affect the manner in which
programs are run, whether those programs are directly operated by the
BIA, or whether they are managed by tribes such as the Chippewa Cree
who operate all programs on our reservation.
Although my tribe is the smallest in Montana in terms of population
and land base, we are significantly affected by the Cobell case as it
is leading to the reorganization and reengineering of the Bureau of
Indian Affairs.
It really hurts us at the reservation level to have critical
funding diverted from tribal programs and be reallocated to the
reorganization hierarchy at the BIA and to pay for litigation costs
associated with both the individual and tribal cases. I say this
because funding increases for Indian programs have been nonexistent in
the Interior Appropriations bill, especially within the Tribal Priority
Allocations (ATPA) budget that funds basic governmental services to our
people. The Office of Special Trustee for American Indians (OST) is
slated to receive an 82% budget increase (to $274.6 million) in
President Bush's FY 2004 budget. Of this amount, $130 million is
supposed to be used to complete reconciliation of more than 15,000
Individual Indian Money (IIM) accounts and reconcile transactions
related to the accounts.
Mr. Chairman, I am here today to inform the Committee that it is
imperative that we have Congressional assistance in correcting the
trust funds accounting problems that have plagued the Department of the
Interior for years. It has been over a decade since Congress first
ordered the Department to conduct an accounting for Indian trust funds.
Indian country cannot, and should not, have to wait any longer. Ten
years and over $600 million spent on trust reform and still no
accounting. Mr. Chairman, Congress must act now.
LEGISLATIVE INVOLVEMENT AND SETTLEMENT PROCESS
In structuring any type of legislative solution, I would recommend
that all the necessary parties be at the table. Of course, the
litigants and/or their representatives must be involved in any
settlement process, and I would also strongly recommend that tribes be
part of the process to the extent that tribal interests are affected.
Tribes have made it clear that there are numerous aspects of the Cobell
case that affect our interests, especially regarding trust reform.
It will be very helpful if senior members of the authorizing
committees of both Houses of Congress get involved to ensure that all
parties come and discuss resolutions in good faith.
The involvement of a mediator will be essential. The mediator
should be a person with significant political experience and respect
since they must hold the parties to a good faith effort to resolving
the dispute.
The scope of the settlement issues must be pre-determined so that
negotiations will not re-open issues that have already been settled by
the court.
Previously settled issues by the court should determine the
necessary legal parameters for any settlement discussions.
The court in Cobell has divided the case into accounting issues and
trust reform issues. It makes sense to keep the same sort of division
for any type of settlement legislation or process.
There should be no pre-set cap for the settlement.
We must have full disclosure of material documents and facts in any
settlement process. In addition, the government should have the burden
of providing to tribes all records from all government agencies and
contractors pertaining to the trust fund claims.
Another important issue to tribes is the assurance that any
settlement claims be recovered from the Judgment Fund, 31 U.S.C. 1304
can be accessed to cover the cost of any settlement. In addition, the
settlement funds should not have to be recovered from future Interior
appropriations for Indian programs. This would be counterproductive to
Indian country and our already underfunded programs.
We oppose putting riders on appropriations bills to deal with this
issue and would urge the Congress to not entertain such provisions.
Tribes must be involved in helping to craft a compromise on this and we
have had no input into the language of any rider.
As a Self-Governance Tribe we are concerned about how trust reform
will affect us. We hope that trust reform doesn't create a situation
where our ability to have some flexibility in how we operate the
programs is lost. We are concerned that the litigation will lead to
stifling degrees of process, procedure and standards to the point where
all tribes must adhere to methodologies that are counter to our present
successful operations.
In closing we are again appreciative that you have held this
hearing, and we do think it is important for the Congress to help
broker a settlement to the Cobell case. We can see no benefit in
spending the next five years in litigation and non-stop accounting. We
have only just received the new Campbell/Inouye/Domenici bill, S. 1770,
the Indian Money Account Claim Satisfaction Act of 2003. The concepts
for reaching a settlement as conceived of in that legislation are
interesting and I may supplement my testimony after I have had an
opportunity to sit down and read that legislation and discuss it with
our tribal attorney.
Again, thank you.
______
Mr. Rehberg. Thank you, Chairman Windy Boy.
I used to tell a joke about reform, that people support
reform as long it doesn't change anything. Sometimes we worry
that the change is, in fact, worse than the problem in the
first place.
I will announce at the end of the hearing that the record
be left open for additional comments or answering questions
that the rest of the Committee might have of you all. So any
comments that you have about the Campbell bill and such that
will help the Committee better understand this issue would
certainly be welcomed. Just know that the record will remain
open for a period of time. But, I will announce that formally
at the end of the hearing.
Next, I would like to introduce Mr. Kayle Howe, who is here
today representing Carl Venne, Chairman of the Crow Tribe.
Mr. Howe.
STATEMENT OF KAYLE HOWE, EXECUTIVE AIDE TO
CARL VENNE, CHAIRMAN, CROW TRIBE OF INDIANS
Mr. Howe. Thank you, Mr. Rehberg, Congressman Rehberg.
My name is Kayle Howe, and I am here today with my legal
counsel, Mr. James Yellowtail. I just make that for the record.
And we would also apologize for Mr. Venne not being able to
be here today. Chairman Venne is on his way to Las Vegas to be
a part of the hearing that is being held there by, I believe
Ross Swimmer. I don't know his actual function at this time.
However, we do appreciate the fact that we have the
opportunity to address an issue that is very large in its
capacity. It encompasses quite a few natives throughout the
nation, and it does bring to light the fact that we do have
this Cobell case having been brought to light on the fact that
there are many, many Indians that are being afflicted by this.
Particularly on the Crow Reservation, we have I believe 1.2
million acres of individually owned trust land, and we have
7,303 IIM accounts that this will directly accounts, and which
encompasses 460,000 acres of trust land on my reservation.
My reservation consists of 2.3 million acres, and
therefore, this problem that we perceive is enormous. And I
know that the animosity of the whole thing is that we have
11,000,000 acres nationwide being protected by the government,
and so this problem is enormous.
And the Crow Tribe is very concerned as to how we come to
some kind of litigation settlement and see that the members of
the tribe of which we are responsible for as well as the
Federal Government.
In 1948, there was an Act passed. It was the Competent
Lease Act. Any member that owned land under five, came under
the Competent Lease Act, and so there was indirect payments
made.
That accounting is not possibly trackable, however, it
could be, but the length of what things are taking place now,
it is going to be a lot greater to try and find out what
amounts of money are actually missing and actually put in to
place.
So, we would ask that if these statutory laws that are
being put in place would encompass all of this in
consideration, that it would benefit the tribal members as well
as the tribes in which they work hand-in-hand.
As my associate, Mr. Windy Boy, had mentioned earlier, it
is to the benefit of the tribe and tribal members that this Act
should be encompassed. However, not always is it possible for
the government to come back, ask these questions and give them
the opportunity to address these things.
We really very greatly appreciate the fact that you are
holding this hearing today and giving us the opportunity to
make such a presentation on behalf of the tribe.
We have fractionated lands of individually owned lands
because of five members or more become heirs.
The Bureau of Indian Affairs is directly responsible for
overseeing the monies that are disseminated to the members. And
in accounting errors that we have seen and heard by way of
Cobell v. Norton, it is just an atrocity that the tribe has to
suffer such problems that we have seen in the nation's
newspapers, USA Today, everybody has published them; everybody
is aware of this. We all have the ideas of how to solve the
problems, but what we adopt to depend on is Congress, the
United States congressional body, for they were given the
fiduciary duty to pass on to the Bureau of Indian Affairs, who
has established under the Department of Interior, and we at
home wonder how and where is somebody going to come up with a
solution that is going to benefit us as Indians.
We have this problem, and it is always a negative impact on
the funding and the delivery of services to the Crow Tribe
because we are so far away. We have other members that are
involved in the Congress, and they are not necessarily aware of
the problem they have here in Montana.
However, I believe we have a good representative, such as
yourself and others, that will try and resolve the problems we
have, and so we felt very confident in coming here today.
The Crow Tribe believes that any process that allowed the
Indians an option to opt out of the suit, may it be a lot
quicker, we would look and entertain these options.
And I believe there were three options given to us. We
would try and entertain that as part of the prerogative that
would give the individual owners as well as the tribe a lot
more leeway of getting to the bottom of this.
As it was said here earlier, we do need to get on with
business, and we do not need to be sitting in litigation
fighting over all the money that --we need money as well as
everybody else; every other government needs money.
We, as a tribe, own one-tenth of all the land that is under
management by the Federal Government, and we would like to see
our members receive the services and the monies that were
suppose to be going to them. However, through problem areas of
not following competently accounting procedures and everything
of this nature, we were not able to foresee this problem until
Cobell brought it to light.
Cobell brought something to light that I think everybody
knew about but didn't know quite how to get the spotlight shed
on it.
And so we feel that this document we foresee and have heard
will come to be resolvable through the efforts of your office,
that of our tribe and the members of which we will have
meetings with and explain the situation, giving them the
options that you are presenting here today. We are looking at
entertaining all avenues of trying to resolve the problems we
have.
The BIA and Cobell and Interior and whoever else, Judge
Lamberth, we know they have good intentions. Everybody has
there own agenda. We as the Crow Tribe have ours, and we will
keep your office and the offices of those that we know need to
be kept in contact, we'll be in contact with them through our
legal counsel, through the Chairman's office and anybody else
that might be of service to your office.
We would appreciate your having come here again, sit down
with us and talk to us of matters that we find that are very
important.
Our members, our individual members would appreciate the
fact that maybe this extension that you have given to the
tribes will also be given to them.
Thank you.
Mr. Rehberg. Thank you, Kayle.
[The prepared statement of Mr. Howe on behalf of Carl Venne
follows:]
Statement of Mr. Kayle Howe, Executive Aide to Carl Venne,
Chairman, Crow Tribe of Indians
Good Morning, Congressmen Pombo and Rehberg, my name is Kayle Howe,
and I am honored to present testimony at this field hearing on behalf
of the Crow Tribal Chairman, Carl Venne. Chairman Venne has asked me to
convey his personal appreciation for the opportunity to express the
views of the government of the Crow Tribe on the critically important
question of how best to resolve the issues raised in the Cobell
litigation.
The Crow Tribal Administration commends the Cobell plaintiffs
because their litigation has exposed the historical mismanagement of
the Indian trust and focused the attention of Congress and the
Department of the Interior on the necessity for trust reform. We
believe that for both individuals and Tribes, a fair and reasonable
accounting of trust funds managed by the United States is simple
justice which must occur. Tribes and their members are unequivocally
entitled to receive the entire value of their trust assets. The
question is how best to guarantee that result.
Nationwide, the Department of the Interior manages almost 11
million acres of individually owned Indian lands. One-tenth of all
individually owned Indian land is located solely within the Crow
Reservation. There are 1.2 million acres of individually owned trust
land and 7,303 IIM accounts on the Crow Reservation. Each account
holder is impacted by the Cobell case. The Crow Tribe, which owns
460,000 acres of trust land, initiated a lawsuit against the United
States in 2002 for a complete and valid accounting of Tribal trust
funds. Like the individuals, the Crow Tribe will also be affected by
the Cobell case because the solutions for solving the individual claims
will also have application to Tribal claims. Under the structural
injunction recently imposed by the District Court, the individual
account holders have but a single option and that is to await the
outcome of a lengthy and expensive accounting process. Because of the
unique circumstances pertaining only to the Crow Tribe, we support an
expansion of the range of reasonable alternatives for Crow Tribal
account holders.
In 1948, the Crow Tribal members were made ``competent'' Indians by
the Congress. This competency designation provided statutory authority
for Crow Tribal landowners to manage their lands. For lands with five
or fewer owners, competent Crow Tribal landowners can negotiate their
own leases without governmental supervision and receive direct payments
from lessees completely outside of the system of governmental receipts
and disbursements. The BIA's only role in the case of competent leases
is to record the document. For fractionated lands with more than five
owners, managerial responsibility remains in the BIA. Crow Tribal
landowners have a long history of managing their own lands and continue
to do so today. Thus, for many competent Crow Tribal members, the
lengthy and expensive process of recreating their IIM accounts imposed
by the Cobell structural injunction may be needless use of limited
resources. The Crow Tribal Administration is concerned that the
continuation of costly litigation will negatively impact funding for
the delivery of critical services for both the Tribe and its members.
Therefore, the Crow Tribe believes that the time has now arrived to
consider options to resolve the IIM account holders litigation.
The Crow Tribe believes that any process that allows individual
Indians the option to elect to resolve their individual trust fund
claims against the United States is a move to empower the individual
Indian. For Crow landowners, such individual prerogative is completely
consistent with their history of decision making as competent Indians.
We further believe that any voluntary settlement process should extend
to those tribal members who have had land managed by the BIA. Because
the Cobell class numbers in the hundreds of thousands, individual class
members have little or no control over the progress of the litigation.
A voluntary settlement option broadens their options and provides them
with that control.
On behalf of Chairman Venne, thank you for this opportunity to
present the views of the Crow Tribe and thank you for the very gracious
courtesy which has been extended by this Committee.
______
Mr. Rehberg. I really appreciate you being here, Jay. I
understand there is a funeral up in your neck of the woods, and
it means a lot that you would take time away from that to be
here today.
So, I now ask you to give your testimony. Jay St. Goddard
from the Blackfeet Tribe.
STATEMENT OF JAY ST. GODDARD, CHAIRMAN,
BLACKFEET INDIAN TRIBE
Mr. St. Goddard. Thank you, Mr. Rehberg.
Thank you for this time and this opportunity to speak on
behalf of the Blackfeet people I represent as Chairman. And
also here with me is Vice Chairman James Sang In Door.
I am just here to represent the people that elected me in
as leader for the Blackfeet Nation up in the mountains border
and Canadian border up against the beautiful Rocky Mountain
front.
I am here on behalf of the Cobell litigation court case
that is going on. I have only been here a year-and-a-half but
have been getting strongly involved with the situation.
As Tribal Chairman of the Blackfeet, we do come
representing the Cobell case and the individual account
holders. And I got some writing here that I would just like to
read out, and then I will kind of make some comments. And I
just want to thank you for the time.
The Cobell rider is unjust, unnecessary and illegal.
No. 1, the practical impact. The Cobell plaintiffs have
waited over 100 to get a full accounting. Now is not the time
for delay.
In fact, many of the Cobell beneficiaries will remain
income depends on proper accounting or dying. If the Interior
Department is allow to delay, the older beneficiaries will
never be repaid.
No. 2, perception. The Interior Department is dragging its
feet, yet again delaying a full accounting based on common law
judiciary obligations.
After 7 years of litigation and nearly 10 years under
congressional directive, the Interior Department cannot certify
an accuracy of a single one of the estimated 500,000 current
individual Indian trust accounts. It is time for DOI to start
work now.
No. 3, likelihood of success. There is no question that the
Cobell plaintiffs are likely to win. The Interior Department
knows this, and that is the reason they are asking for a delay.
It simply is not in keeping with American justice to delay the
likely meritorious legal claims of hundreds of litigants
because the losing party does not like the result.
4, unnecessary. The courts are the proper forum for
determining whether the Interior Department should be granted a
stay, not Congress.
First of all, the Interior Department has a right to ask
for a stay, both at the District Court and Appellate Court
level. They do not so yet, but still can. It is not Congress --
Congress' place to do the Interior's work for them.
Second, there are complex legal and historical issues
regarding methodology of accounting and fixing the system that
court experts are in a much better position than Congress to
make a fair decision.
5, sign our report. Help to end the Cobell v. Norton
litigation. Expose the inadequacies of the Interior Department
that led to the 1994 Trust Reform Act.
Now that the Cobell plaintiffs are on the verge of seeing a
historical injustice righted, Congress should not undermine
Congressmen. Sign ours legacy.
6, if Congress can overturn the District Court's ruling
now, what is to stop them from doing so in the future? In fact,
why not try to overturn the court's ruling anytime the Indians
win?
And finally, legality. Permanently preventing the Cobell
plaintiffs from receiving their right to a historical
accounting would constitute a taking of property without due
process violation and would be fully compensable.
Rogan v. Zimmerman Brush Co., 455 U.S. 422, 428-29 in 1982.
Elaine v. Central Hannover Bank & Trust Company 339 U.S. 306 in
1950.
While the rider at the stake is not permanent, it raises
serious question of fairness and could ultimately lead to a
takings claim.
With that, that was from a --just a note from the
Blackfeet.
Also, really do appreciate this time you are taking to hear
tribal leaders here in Montana and the nice wide-open state we
live in; the beauty of it.
And I know you are here, and you read the letter from
Baucus. And as Tribal leaders and government-to-government
relations, this is big, as Mr. Matt stated. This is the next
biggest thing in Congress, in Washington, D.C., right now
besides the Iraq war. That is how big this thing is.
We are very concerned, and I am here representing our
individual trust account holders. And as leader of the
Blackfeet Nation, I need to be on top of this. And I do feel
the courts need to decide, and Congress needs to allow that. We
don't need the separation of powers there. It is moving
forward, and I believe it is on a winning track.
The people I am speaking for, the people back home, the
elders, the people that really don't understand what is going
on and how big this is to Indian country. And as Tribal
leaders, here, I believe we need to come to the table, such as
this hearing, more often with Baucus sitting across from us as
well as Mr. Burns.
And I just thank you for this time and appreciate you for
being here, and thank all of the Tribal leaders for attending.
Thank you.
Mr. Rehberg. Thank you very much.
Mr. Rehberg. Geri Small, representing the Cheyenne Tribe.
Geri, thank you.
I might point out, you will all remember that I traveled
out to the seven reservations. It was fascinating for me
because anticipating or expecting like-minded answers, it is
almost like representing Montana. I got seven different answers
when I was traveling around the State of Montana.
And I don't know if we are receiving seven different
answers today, but it has been fascinating to me. And when I
get to the questioning, I am looking forward to getting a
little more into the meat of things.
But, Geri, thanks for taking the time and coming up to be
with us today. I appreciate your hospitality when I was down in
your neck of the woods, and welcome to Billings.
STATEMENT OF GERI SMALL, PRESIDENT,
NORTHERN CHEYENNE TRIBE
Ms. Small. Thank you. Good morning, Congressman Rehberg,
and tribal leaders that are present here today. I want to thank
you for inviting me to testify today.
I am Geri Small, President of the Northern Cheyenne Tribe
and also Chairman of the Montana/Wyoming Tribal Leaders
Council.
On behalf of the Northern Cheyenne Tribe and the Montana/
Wyoming Tribal Leaders Council, I would like to express our
appreciation to this Committee, and express my appreciation to
Congressman Pombo for his commitment to the Indian people and
to upholding the trust and treaty responsibilities of the
Federal Government.
Also, I want to take some time and just give a brief
background of the Northern Cheyenne Tribe. We are located in
the southeastern part of Montana. We own 98 percent of our
reservation. We have about 8,200 tribal members and growing.
I firmly believe that the time has come for Congress to
establish a fair and equitable process for settling the Cobell
v. Norton litigation. The Department of Interior has not
maintained a recordkeeping system that will allow a complete
historical accounting, and the two parties to the Cobell
litigation are very far apart in their views as they --or what
they want to--as to what redress the beneficiaries should
receive.
I am very appreciative that the Committee on Resources is
exploring a legislative solution to settling the Indian trust
fund lawsuit, as I believe settlement is in everyone's best
interest. However, I believe developing a settlement process
may prove to be very time-consuming.
If a settlement process is going to be developed, I believe
that Congress should continue to attack the root causes of
trust mismanagement, including the problem of land title
fractionation, the absence of standards for trust management,
the lack of functioning and integrated systems for title,
leasing and accounting.
I also ask that Congress immediately halt the proposed
reorganization of the Bureau of Indian Affairs and the Office
of Special Trustee, as it is strongly opposed by Indian
country.
I note that my fellow tribal member, Senator Ben Nighthorse
Campbell, just recently introduced Senate bill 1770 in an
effort to establish a voluntary alternative claims resolution
process to reach a settlement of the Cobell lawsuit.
I will not address the merits of this bill directly because
I have not had adequate time to study it. My initial
observations are that the bill needs a lot of work as it does
not include many concepts that I believe should be implemented
in any settlement legislation, our legislation enacted by
Congress, these settlement concepts are set out fully in my
written testimony.
You should also know that I am a little uncomfortable
testifying on a settlement process for a case involving
individual Indian account holders throughout the United States.
I am also an IIM account holder, but I am just one. I believe
there is somewhere in the neighborhood of thousands of IIM
account holders. The IIM account holders are represented by the
Native American Rights Fund and its attorneys. I believe that
these are the individuals with whom Congress should discuss
settlement of the Cobell claims.
I recognize that I only have 5 minutes to provide you with
my oral testimony, so I am going to cut to the chase.
If you were dealing with me directly as a plaintiff in the
case, I would ask you to make a settlement offer. The Cobell
case has been going on for over 8 years now. Judge Lamberth
recently ordered the Department to conduct a historical
accounting of the IIM trust accounts.
It is my understanding that the Department of Interior
estimates that it will cost the Federal Government $10 billion
to conduct an historical accounting. I suggest that this $10
billion would be better spent as an initial payment in settling
the Cobell lawsuit. At the very least, it is a good starting
point for settlement negotiations.
$10 billion may seem like a lot of money, but it pales in
comparison to the billions of dollars that the United States is
spending on the Iraq war and the efforts to rebuild Iraq.
I also note that there are costs associated with developing
a settlement process. Senate Bill 1770 appropriates $40 million
through Fiscal Year 2007 for costs associated with settling
individual claims. These costs could be avoided if the
government would simply settled the Cobell lawsuit.
Last, Senators Campbell and Inouye sent letters to tribal
leaders earlier this year that invited tribes and the Cobell
plaintiffs to mediate the dispute. Tribal leaders and the
Cobell plaintiffs were overwhelmingly in favor of developing a
settlement process that involved mediation.
Senate bill 1770 does not involve a mediation process. If
the government insists on pursuing legislation that develops a
legislative process as opposed to settling the case, I strongly
urge Congress to include mediation in the process.
The other thing that I wanted to mention here earlier, I
also have my written testimony that I have submitted. Like
other tribal leaders here, I--it was very fast, you calling a
hearing here today, so I need to get back with my Council. And
we will probably be making some amendments to my written
testimony and sending it back in to you.
I also want to thank you, Congressman Rehberg, for having
this hearing here today and looking out for the best interest
of not only the Montana tribes but the Wyoming tribes. I am
thankful that they are here today as tribal leader because it
not only concerns Montana; it concerns all tribes in all
States.
This concludes my oral testimony, and again, I thank you
for inviting me to be able to speak here and testify on this
issue, as it is a big issue in Indian country all over. I thank
you for that.
Mr. Rehberg. Thank you, Geri.
[The prepared statement of Ms. Small follows:]
Statement of Geri Small, President, Northern Cheyenne Tribe
Introduction
Congressman Rehberg, thank you for inviting me to testify today. On
behalf of the Northern Cheyenne Tribe, I would like to express our
appreciation to this committee for its commitment to Indian people and
to upholding the trust and treaty responsibilities of the federal
government.
I firmly believe that the time has come for Congress to establish a
fair and equitable process for settling the Cobell v. Norton
litigation. The DOI has not maintained a recordkeeping system that will
allow a complete historical accounting, and the two parties to the
Cobell litigation are very far apart in their views as to what redress
the beneficiaries should receive. I am very appreciative that the
Committee on Resources is exploring a legislative solution to settling
the ``Indian Trust Fund Lawsuit'' as I believe settlement is in
everyone's best interest. However, I believe developing a settlement
process may prove to be very time consuming. As the settlement process
develops, I believe that Congress should continue to attack the root
causes of trust mismanagement, including the problem of land title
fractionation, the absence of standards for trust management, and the
lack of functioning and integrated systems for title, leasing and
accounting. I also ask that Congress immediately halt the proposed
reorganization of the Bureau of Indian Affairs and the Office of
Special Trustee, as it is strongly opposed by Indian country.
I note that my fellow Tribal member, Senator Ben Nighthorse
Campbell, just recently introduced S. 1770 in an effort to establish a
voluntary alternative claims resolution process to reach a settlement
of the Cobell lawsuit. I will not address the merits of this bill
directly because I have not had adequate time to study it. My initial
observations are that this bill needs a lot of work. My testimony today
provides the Committee with concepts that I believe should be
implemented in any settlement legislation enacted by Congress.
Objectives of a Settlement Process
Tribal leaders have consistently supported the goals of the Cobell
plaintiffs in seeking to correct the trust funds accounting fiasco that
has lingered for too long at the Department. At the same time, tribes
are concerned about the impacts the litigation may have on Tribal
Government. Any solution, legislative or judicial, should not interfere
with Tribes' right to govern trust resources.
From the beginning, the DOI has operated with the primary interest
of protecting itself from liability rather than complying with its
statutory duties. See, e.g., Cobell v. Norton, 226 F. Supp. 2d at 11.
This has had a direct impact on the BIA's ability and willingness to
provide the services that are so vital to tribes and individuals.
Significant financial and human resources have been diverted by DOI in
response to the litigation. The BIA has become extraordinarily risk
averse and slow to implement the policies, procedures and systems to
improve its performance of its trust responsibility to Indian tribes
and individual Indians. Perhaps most significantly, the contentiousness
of the litigation is creating an atmosphere that impedes the ability of
tribes and the DOI to work together in a government-to-government
relationship to promote tribal self-determination and address other
pressing needs confronting Indian country.
Continued litigation will cost many more millions of dollars and
take many more years to reach completion. It is my understanding that
the Department of Interior has estimated that it will cost the Unites
States $10 billion to comply with Judge Lambreth's Order for an
accounting of IIM trust accounts. I believe that this money would be
better spent if it were given directly to the Plaintiffs. Furthermore,
I believe that the litigation has caused Interior to become very
contentious with Tribes and that the litigation has impeding the
ability of the BIA and the DOI to carry out their trust
responsibilities to Tribes. For these reasons, I believe that it is in
the best interests of tribes and individual account holders that tribal
leaders participate in the resolution of trust-related claims and the
development of a workable and effective system for management of trust
assets in the future.
Guiding Principles--for a Settlement Process
I would like to suggest a number of principles that I believe
should be taken into account in developing any settlement process:
1) Involve all necessary parties in a convening this fall to scope
and frame the settlement process. I believe a professional mediator
should be employed to facilitate discussions involving the parties to
Cobell v. Norton, Tribal leadership, and senior members of Congress.
Timely and good faith consultation with the elected tribal leadership
is essential in the settlement process. Tribes have a number of very
important interests in the outcome:
a. Tribal lands are often co-owned or co-managed with
individuals' lands.
b. Future delivery of all trust services is a key issue in the
case.
c. Tribal regulatory authority, self-determination programs,
and natural resource management could be affected.
d. The federal budget for tribal programs could be affected.
e. The settlement for individual account holders could set
precedent for tribal claims.
I believe that the House Resources Committee and the Senate
Committee on Indian Affairs should forge an alliance to work on this
issue and participate in meetings to keep Congress informed of progress
and keep the pressure on for settlement.
Formal consultations should be held to enable those not directly
involved in the discussions to have an opportunity to comment before
the settlement process is finalized.
2) Take the time to do it right. Defining a settlement process is
complicated. One ``trust reform'' quick fix after another has been
proposed, implemented, and eventually fallen to the wayside. We have
wasted over 20 years looking for a quick fix. Congress should not
impose a process that may not be well received and will spell failure
for the development of a settlement process.
3) Provide for judicial review and fairness--Settlements should be
judicially approved pursuant to the Federal Rules of Civil Procedure.
The settlement process must ensure that Indian people are situated in
an equitable position to evaluate the fairness of any settlement offer.
The settlement process should require full disclosure of all material
facts--the government has the burden of providing beneficiaries with
all records from government agencies and contractors pertaining to
their trust claims. Many individuals do not have access to legal
counsel to review settlement documents; therefore review by the courts
is necessary to avoid any unfair settlements. The settlement of claims
should be final absent fraud or failure to disclose material facts.
4) Establish a process that will keep the pressure on for
settlement. The parties to the litigation have tried several times to
resolve the case but have been unsuccessful in reaching agreement. I
believe that this has been due in large part to a failure to establish
a structured process to support settlement discussions. Firm time
schedules should be established with periodic reporting and incentives
for reaching a settlement. While settlement deliberations are in
process, I believe the litigation should continue until the historical
accounting has been settled, and the Department has successfully
implemented the necessary reforms to ensure sound trust management in
the future.
5) Ensure that the settlement also fixes trust systems for the
future. The historical record has shown that DOI will only move forward
in improving Indian trust systems if there is exterior pressure from
the courts or from Congress. There are two critical issues here that
need to be addressed: (a) the establishment of account balances
(historical accounting); and (b) the functionality of accounting
systems. It would be disastrous to create a settlement that would
resolve the past liability and then allow the DOI to relapse into
ignoring its responsibilities for Indian trust management and
accounting.
6) An independent body should play a significant role in the
settlement process. The parties to the litigation have a significant
financial stake in the outcome. The tribes and the IIM account holders
will distrust any process where the Secretary of Interior is in control
of all aspects of the settlement. To ensure fairness and transparency
and ensure that the process moves forward, an independent body should
play a significant role in scoping, fact finding, framing, and
management of deliberative processes. Consideration should also be
given to: (a) having the Independent Body perform structured
evaluations of proposed settlement processes using a consistent set of
components and criteria--these evaluations could be used to provide the
informational basis for tribal consultation; (b) authorizing the
Independent Body to provide recommendations to Congress for a
settlement process in the event that parties are unable to reach
agreement within a pre-determined time frame.
7) One size will not fit all. There is a great deal of diversity
among account holders. Some have large stakes in very valuable natural
resources, such as oil, gas, or timber. Others have only a small
fractionated interest that is worth less than a dollar. Any settlement
process must be able to deal with different classes of accounts and
interests.
8) Account holders should have the opportunity to negotiate and
make a choice. You cannot force a ``settlement.'' In today's world, the
hallmark of fairness is the ability to negotiate an arms length
agreement based on a reasonable knowledge and understanding of the
underlying facts and circumstances. Indian account holders must also
have this ability. The settlement process should, however, contain
incentives that would encourage participation.
9) Move quickly to bring relief to elder account holders. Many of
our elders have suffered extreme economic deprivation throughout most
of their lifetimes. They should have an opportunity to improve their
financial conditions without delay.
While the Settlement Process Develops,
Congress Should Attack the Causes of Trust Mismanagement
I believe that it is imperative that we continue our efforts to
legislate solution concerning land consolidation and fractionation.
This is the root cause of the problem. But there are also several other
issues that we believe Congress should take up at the same time.
Land Consolidation--Maintaining accurate ownership information is
made exceedingly difficult by the ever-expanding fractionated ownership
of lands divided and redivided among heirs. Today, there are
approximately four million owner interests in the 10 million acres of
individually owned trust lands, and these four million interests could
expand to 11 million interests by 2030. Moreover, there are an
estimated 1.4 million fractional interests of 2 percent or less
involving 58,000 tracks of individually owned trust and restricted
lands. There are now single pieces of property with ownership interests
that are less than 0.000002 percent of the whole interest.
Addressing fractionation is critical to improving the management of
trust assets and reducing the administrative costs of maintaining IIM
accounts. Fractionation promises to greatly exacerbate problems that
currently plague the DOI's efforts to fulfill its trust
responsibilities, diminish the ability to productively use and manage
trust resources, and threaten the capacity of tribes to provide secure
political and economic homelands for their members. If allowed to
continue unabated, fractionation will eventually overwhelm systems for
trust administration and exact enormous costs for both the
Administration and tribal communities.
Reduction of fractional interests will increase the likelihood of
more productive economic use of the land, reduce recordkeeping and
large numbers of small dollar financial transactions, and decrease the
number of interests subject to probate. Management of this huge number
of small ownership interests has created an enormous workload problem
at the BIA. In addition to the development of amendments to the Indian
Land Consolidation Act (S. 550), Congress needs to put funding directly
on the problem. We believe that an investment in land consolidation
will pay much bigger dividends than most any other ``fix'' to the trust
system.
Accountability and Standards--It is well known that DOI has
mismanaged the Indian trust for decades. The real question for Congress
is why decades of reform efforts have produced so little change in
DOI's willingness to take corrective actions, to reconcile accounts,
and to put adequate accounting and auditing procedures and policies in
place.
The real answer to this is that the DOI and the Department of
Justice have always viewed their primary role as ensuring that the U.S.
is not held liable for its failure to properly administer trust assets.
For this reason, they have never been willing to put standards into
regulations that would govern the management of Indian trust assets,
and the lack of standards has consistently undermined any effort to
take corrective action on trust reform. What is needed is a clear
signal from Congress to create a new culture of transparency and
accountability for Indian trust management. Once the DOI understands
that mismanagement will no longer be tolerated, the system will change
and true reform will begin. In effect, the DOI is acting as a bank for
Indian trust funds--and just like every other bank in the U.S., the DOI
must be subject to standards and accountability.
I believe that it is critical for Congress to substantively address
the underlying issues of transparency and accountability in fixing the
trust system. I would greatly encourage the Committee to take up trust
reform legislation that would hold the DOI to the ordinary standards of
a trustee, and we would be pleased to work with you in developing that
legislation.
Core Business Systems--Indian trust resource and trust fund
administration requires accountability in three core systems that
comprise the trust business cycle: 1) Title; 2) Leases/Sales; and 3)
Accounting. I believe that Congress should focus its oversight efforts
on these core systems to ensure that reform efforts meet requirements
for fiduciary trust fund administration. Once these processes have been
developed, an organizational structure can be developed to ensure their
proper implementation. Correcting the DOI's performance in these core
functions will also require the DOI to employ sufficient personnel,
provide staff with proper training, and support their activities with
adequate funds.
Title--Currently, the BIA is using ten different title
systems in the various Land Title Record Offices around the
country, both manual and electronic. These systems contain
overlapping and inconsistent information. The inaccuracies
result in incorrect distribution of proceeds from trust
resources, questions regarding the validity of trust resource
transactions, and the necessity to repeatedly perform
administrative procedures such as probate. Consequently, a
large backlog of corrections has developed in many of the title
offices, and this has compounded the delays in probate,
leasing, mortgages, and other trust transactions that rely on
title and ownership information. In turn, each of these delays
compounds the errors in the distribution of trust funds.
Cleaning up the ownership information and implementing an
effective title system that is integrated with the leasing and
accounting systems is a primary need for the Indian trust
system.
Leasing--Most Indian trust transactions take the form of a
lease of the surface or subsurface of an allotment, permits to
allow the lessee to conduct certain activities in return for a
fee, or a contract for the sale of natural resources such as
timber or oil. Although leasing records are vital to ensure
accurate collection of rents or royalties, there are no
consistent procedures or fully integrated systems for capturing
this information or for accurately identifying an inventory of
trust assets. Currently, BIA has no standard accounts
receivable system and many offices have no systems to monitor
or enforce compliance, or to verify and reconcile the quantity
and value of natural resources extracted with payments
received. The accounting system most often begins with the
receipt of a check that is assumed to be accurate and timely.
Implementing an effective lease recording system that is
integrated with the title and accounting systems is a primary
need for the Indian trust system.
Accounting--The DOI needs to develop accounting systems that
will integrate and verify information from one function into
another (from title to leasing to accounting). The DOI should
also set out what oversight capabilities are planned into the
system (verification and audit) as well as a plan for document
retention and ease of access to facilitate audit and internal
verification procedures. Furthermore, the DOI system needs a
built-in crosscheck between BIA entries to its control account
and Treasury's entries to its control account. This system
should automatically produce a daily exception list that would
be examined and remedied in a timely manner.
Opposition to Current BIA Reorganization Efforts
The Northern Cheyenne Tribe and the Rocky Mountain Region Tribes
are strongly opposed to the current trust reform reorganization effort
that the DOI is engaged in, and to the dramatic shifts in BIA funding
that are proposed in the FY'04 budget. We would like the assistance of
the Committee in stopping this process.
Tribal leaders understand better than anyone that the Bureau of
Indian Affairs needs to change, that it has significant difficulty in
fulfilling its responsibilities in management of trust funds, and that
some of the problems relate to the way that the Bureau is organized. We
want to see successful change and improvement in the way the BIA does
business. We are not opposed to reorganization per se; we simply want
to do it right. We cannot afford to squander the opportunity we have
before us.
In our view, effective organizational change to effectuate trust
reform must contain three essential elements:
(1) Systems, Standards and Accountability--a clear definition of
core business processes accompanied by meaningful standards for
performance and mechanisms to ensure accountability;
(2) Locally Responsive Systems--implementation details that fit
specific contexts of service delivery at the regional and local levels
where tribal governments interact with the Department; and
(3) Continuing Consultation--an effective and efficient means for
on-going tribal involvement in establishing the direction, substance,
and form of organizational structures and processes involving trust
administration.
These elements are lacking in the current proposal of the
Department of Interior (DOI) for reorganizing the BIA.
It is critical Congress appropriate additional funding from
Congress to correct the internal problems created through
administrative mistakes rather than depleting existing, insufficient
BIA program dollars for these purposes. Increased funding for trust
reform has the potential to be money well spent--but it is an empty
promise if it comes at the costs of diminished capacity to deliver
services to tribal communities, and is implemented without clear
standards for federal accountability, a plan to put the money at the
local level where it is most needed, and consultation with the tribes
and individuals whose accounts are at stake.
I am extremely concerned that the lack of definition of the
responsibilities and authorities of new OST offices will cause serious
conflicts with the functions performed by the BIA Agency
Superintendents and/or Indian tribes. The authority and role of the
proposed Trust Officers need much more explanation. Moreover, I believe
that the funding and staff needs to flow directly to the agency and
regional levels--not just to new Trust Officers--to address long-
standing personnel shortages needed to fully carry out the trust
responsibility of the United States. Before DOI begins the process of
establishing an entire new mini-bureaucracy, the financial and
management impact of such an action must be thoroughly examined by the
Congress and by affected tribal governments.
I believe that any attempt by DOI to implement its proposed
reorganization without addressing the three essential elements we have
identified above for trust administration will prove to be ill-advised,
premature, and ultimately disastrous. We fear that the DOI is on the
verge of repeating the classic mistake that has ruined the majority of
its efforts to reform trust administration in the past--a small group
of executives get together and simply draw up a new organizational
chart. The preoccupation with moving or creating boxes on a chart is
the antithesis of how effective organizational change can and should be
brought about.
I also firmly believe that this reorganization is putting the cart
before the horse. Organizational--structures must be aligned with
specific business processes and they must be designed to function
within a system where services are provided by the DOI and tribal
governments. DOI has not yet figured out its new business processes.
Millions of dollars have been invested in an ``As-Is'' study of trust
services, and the Department has not completed the critical ``To-Be''
phase of reengineering the business processes of trust management. By
implementing a new organizational plan prematurely, DOI is running a
great risk of ignoring the findings of its own study and wasting the
valuable resources that the agency and tribes have already dedicated to
understanding systemic problems.
DOI will most likely refer to the so-called ``consultation''
sessions that are occurring. I would note the tribal leaders strongly
object to these so-called ``consultations,'' as the DOI representatives
inform tribes about how the re-organization is going to proceed and
they fail to tribal concerns regarding meaningful trust reform.
Reorganization should only come after the new business processes
have been identified and remedies devised through a collaborative
process involving both BIA employees and tribal leadership. We must
include the input of tribes and BIA employees so that the great numbers
of people who must implement changes in trust administration understand
and support necessary reforms. Only then, as a final step, can we
design an organizational chart to carry out the functions of trust
management without creating conflicting lines of authority throughout
Indian country. The history of trust reform is filled with failed
efforts that did not go to the heart of the problem and do the
detailed, hard work necessary to fix a large and often dysfunctional
system.
At this time, Congress should prevent the DOI from proceeding with
its proposed reorganization plan and focus instead on funding land
consolidation that will in time reduce the cost of trust
administration, and on developing good systems for the core trust
business processes: land title, leasing and accounting.
Without adequate land title, leasing and accounting systems,
reorganization, especially as proposed by DOI, does little to
effectuate true trust reform and the cost of reform of trust
administration will continue to escalate.
Conclusion
On behalf of the Northern Cheyenne Tribe, I would like to thank the
members of the Committee for all of the hard work that they and their
staffs have put into the trust reform effort. If we maintain a serious
level of effort and commitment by Congress, the Administration, and
Tribal Governments to work collaboratively together to make informed,
strategic decisions on key policies and priorities, we can provide the
guidance necessary to bring about true reform in trust administration.
______
Mr. Rehberg. A gentleman I met today for the first time, we
welcome you to Billings, Montana. Vernon Hill, Chairman of the
Shoshone Business Council in Wyoming.
Vernon.
STATEMENT OF VERNON HILL, CHAIRMAN OF THE EASTERN SHOSHONE
BUSINESS COUNCIL OF THE WIND RIVER INDIAN RESERVATION
Mr. Hill. Good morning, Congressman Rehberg. My name is
Vernon Hill. I am the Chairman of the Eastern Shoshone Business
Council of the Wind River Reservation in Wyoming. Thank you for
inviting me to testify today on this important subject.
The Wind River Reservation was established by the Treaty of
July 3, 1868, and is the only Indian Reservation in Wyoming.
The Wind River Reservation encompasses over 2.2 million acres
and is occupied and shared by two tribes, the Eastern Shoshone
and the Northern Arapaho.
There are nearly 3,500 enrolled Eastern Shoshone members
and over 7,300 Northern Arapahoe members. The total Reservation
population consists of 23,250 people residing on both trust
lands and nontrust lands.
There is a long history to the current trust fund situation
stemming back to the expansion of America to the West. The
Allotment Act and Policy was implemented on the Wind River
Reservation in the 1890s. As a result, the Wind River
Reservation started out as a 40-million-plus acre reservation
and was reduced to 2.2 million acres. The rest was sold as
surplus.
Under the same policy, the reservation lands were allotted
to individual Indians, and the United States undertook a solemn
trust duty to protect the land and resources of the allottees
and the tribe. One aspect of that trust duty is the requirement
that the United States account for the revenues that are
generated by those lands and resources.
For American Indians, the system of allotments failed as
non-Indian farmers and ranchers were successful in purchasing
much of the individually allotted lands, thereby diminishing
the reservation trust land base. As a result, many of our
people were left landless. On the Wind River Reservation, there
is approximately 2.2 million acres of tribally owned lands and
over 100,000 acres of allotted lands affecting our members.
Many of our tribal members are individual Indian Monies
(IIM) account holders which are a part of the Cobell v. Norton
Case.
I am submitting this testimony on behalf of the tribe to
urge a fair and equitable resolution of this lawsuit, both for
the benefit of our tribal members who are IIM account holders
and for the tribes that have been affected by this case.
First, I would like to acknowledge Elouise Cobell, the lead
named plaintiff in the lawsuit. The Cobell lawsuit has brought
the Federal Government's historic mismanagement of the Indian
trust to the forefront and has caused all three branches of the
U.S. Government to focus on fixing these problems.
Yet, after 7 years since the filing of the lawsuit, three
Cabinet-level Secretaries and two Assistant Secretaries have
been held in contempt of court for litigation misconduct, and
Congress has appropriated hundreds of millions of dollars to
correct trust fund mismanagement. Unfortunately, this funding
has not resolved this case, nor has it improved the delivery of
services to tribal members. None of this money has reached the
hands of IIM or tribal account holders.
Officials in the Interior Department currently estimated
that it will cost $6 to $12 billion to conduct a historic
accounting of the IIM trust as required by the court in the
Cobell lawsuit.
Even if Congress appropriated the full amount of funding
for this accounting, at the end of the day, none of this money
will have reached the IIM account holders. All of this funding
will only benefit the large accounting firms, like the former
Arthur Andersen firm, which already collected close to $50
million for a mere sampling of the accounting problem.
In the meantime, the Federal budget and policy for Indian
Affairs is suffering in the name of trust reform. In the recent
years, the Interior Department's annual budget has focused on
its ability to conform to the Cobell court's directive. As a
result, funding for the tribal services infrastructure and
economic development have fallen to the bottom of the priority
list. In Fiscal Year 2004, funding for Tribal Priority
Allocation is slated for an increase of a mere two-thirds of
less than 1 percent. Thus, basic funding for tribal governments
is actually being reduced when inflation is being considered
because trust reform dollars are taken from current
appropriations.
Moreover, the Interior Department has developed trust
reform policy that will have direct adverse impact on tribes.
This year the Interior Department decided to reorganize the BIA
by stripping administrative, human resources, information
technology, self-determination, contracting and other functions
and responsibilities out of the BIA. The funding and resources
supporting these functions will also leave the BIA. In
addition, the reorganization calls for the creation of
additional layers of bureaucracy on higher departmental levels
which will hamper local decisionmaking and efficient program
operations. What is left will be a totally ineffective agency
that will have very little ability to deliver services to
tribes. And, there will be very little left for tribal self-
determination and compacting.
The Interior Department's current reorganization is an
effort to consolidate functions and responsibilities in order
to free up additional funding for trust reform. Moreover, the
current status of the litigation shows that the United States
is not even close to resolving the issues associated with
mismanagement of the Indian trust.
The Cobell plaintiffs report that the Interior Department
is unwilling to engage in good-faith mediation. The Interior
Department claims that the plaintiffs are pursuing a settlement
for an unreasonable and outrageous sum of money-making
mediation or settlement impossible.
Given these circumstances, Congress must step up and
establish a settlement process that is fair and equitable.
Therefore, we support the following base line components for a
legislative solution to the current Indian trust lawsuit:
No. 1. The process should be voluntary in nature.
No. 2. Congress must authorize access to and use of the
Judgment Fund for settlement of claims, such as Section 6 in S.
1770. The United States must pay for a past and ongoing
mismanagement of the IIM Trust. As such, this means that the
United States must no longer dip into current appropriations
dedicated to Indian affairs in the Interior Department's annual
budget. Our people and our program should no longer suffer in
the name of trust reform.
No. 3. Congress should further authorize use of the
Judgment Fund to pay for Trust Accounting reforms necessary to
remedy historical wrongs. This is necessary, otherwise current
Indian programs will continue to be jeopardized and again, that
just compounds the wrong to American Indian Tribes.
No. 4. Because Indian Tribes have claims for breach of
trust for failure to account for funds in tribal trust
accounts, Congress should develop an IIM trust accounting
settlement process that takes into consideration tribal input.
For example the Inter-Tribal Monitoring Association, which the
Wind River Tribes belong to, has been having discussions with
the Interior Department for over a year on developing a
settlement process for settlement of tribal claims. Congress
should keep in mind the specific tribal claims and ongoing
settlement discussions and work with the tribes in resolving
these issues.
No. 5. There should be appropriate avenues for appeal to
the Federal courts. The checks and balances inherent in the
U.S. Government underscores the need to provide a strong basis
for both the Congress and courts to check and balance the
Interior Department's implementation of a congressional approve
settlement process.
No. 6. Congress must reject appropriations riders developed
without consultation and dialog with Tribes and IIM account
holders as a way to resolve issues related to the lawsuit.
In closing, Congress should enact a specific framework for
a legislative solution, which includes access to the Judgment
Fund for both accounting reform and damages for IIM and tribal
account holders.
We commend Chairman Pombo, Congressman Rehberg and the
Resources Committee for holding these hearing. Thank you for
the opportunity to testify on these critically important
matters.
[The prepared statement of Mr. Hill follows:]
Statement of Vernon Hill, Chairman, Eastern Shoshone Business Council
of the Wind River Indian Reservation
Good morning Mr. Chairman and Congressman Rehberg. My name is
Vernon Hill. I am Chairman of the Eastern Shoshone Business Council of
the Wind River Reservation in Wyoming. Thank you for inviting me to
testify today on this important subject.
The Wind River Reservation was established by the Treaty of July 3,
1868, and is the only Indian Reservation in Wyoming. The Wind River
Reservation encompasses over 2.2 million acres and is occupied and
shared by two Tribes, the Eastern Shoshone and the Northern Arapaho.
There are nearly 3,500 enrolled Eastern Shoshone members and over
7,300 Northern Arapaho members. The total Reservation population
consists of 23,250 people residing on both trust lands and non-trust
lands.
There is a long history to the current trust fund situation
stemming back to the expansion of America to the West. The Allotment
Act and Policy was implemented on the Wind River Reservation in the
1890's. As a result, the Wind River Reservation, which started out as a
40+ million acre reservation, was reduced to 2.2 million acres. The
rest was sold as surplus. Under the same policy, Reservation lands were
allotted to individual Indians, and the United States undertook a
solemn trust duty to protect the land and resources of the allottees
and the tribe. One aspect of that trust duty is the requirement that
the United States account for the revenues that are generated by those
lands and resources.
For American Indians, the system of allotments failed as non-Indian
farmers and ranchers were successful in purchasing much of the
individually allotted lands thereby diminishing the Reservation trust
land base. As a result, many of our people were left landless. On the
Wind River Reservation, there is approximately 2.2 million acres of
tribally owned lands and over 100,000 acres of allotted lands affecting
our members.
Many of our tribal members are individual Indian monies (IIM)
account holders which are a part of the Cobell v. Norton class action
lawsuit. I am submitting this testimony on behalf of the Tribe to urge
a fair and equitable resolution of this lawsuit both for the benefit of
our tribal members who are IIM account holders and for the Tribes that
have been affected by this case.
First, I would like to acknowledge Elouise Cobell, the lead named
plaintiff in the lawsuit. The Cobell lawsuit has brought the Federal
Government's historic mismanagement of the Indian trust to the
forefront and has caused all three branches of the United States
government to focus on fixing these problems.
Yet, after seven years since the filing of the lawsuit, three
cabinet level Secretaries and two Assistant Secretaries have been held
in contempt of court for litigation misconduct and Congress has
appropriated hundreds of millions of dollars to correct trust fund
mismanagement. Unfortunately, this funding has not resolved this case
nor has it improved the delivery of services to tribal members. None of
this money has reached the hands of IIM or tribal account holders.
Officials in the Interior Department currently estimated that it
will cost six to twelve billion dollars to conduct an historical
accounting of the IIM trust as required by the court in the Cobell
lawsuit. Even if Congress appropriated the full amount of funding for
this accounting, at the end of the day, none of this money will have
reached the IIM account holders. All of this funding will only benefit
the large accounting firms, like the former Arthur Andersen firm--which
already collected close to $50 million for a mere sampling of the
accounting problem.
In the meantime, the federal budget and policy for Indian Affairs
are suffering in the name of trust reform. In the recent years, the
Interior Department's annual budget has focused on its ability to
conform to the Cobell court's directive. As a result, funding for
tribal services, infrastructure, and economic development have fallen
to the bottom of the priority list. In FY 2004, funding for Tribal
Priority Allocation funding is slated for an increase of a mere two-
thirds or less than one percent. Thus, basic funding for Tribal
Governments is actually being reduced when inflation is being
considered because trust reform dollars are taken from current
appropriations.
Moreover, the Interior Department has developed trust reform policy
that will have direct adverse impacts on Tribes. This year the Interior
Department decided to ``reorganize'' the BIA by stripping
administrative, human resources, information technology, self-
determination contracting, and other functions and responsibilities out
of the BIA. The funding and resources supporting these functions will
also leave the BIA. In addition, the reorganization calls for the
creation of additional layers of bureaucracy at higher departmental
levels which will hamper local decision-making and efficient program
operations. What is left will be a totally ineffective agency that will
have very little ability to deliver services to Tribes. And, there will
be very little left for Tribal self-determination contracting and
compacting.
The Interior Department's current reorganization is an effort to
``consolidate'' functions and responsibilities in order to free up
additional funding for ``trust reform.'' Moreover, the current status
of the litigation shows that the United States government is not even
close to resolving the issues associated with mismanagement of the
Indian trust.
The Cobell plaintiffs report that the Interior Department is
unwilling to engage in good-faith mediation. The Interior Department
claims that that the plaintiffs are pursuing a settlement for an
unreasonable and outrageous sum of money-making mediation or settlement
impossible.
Given these circumstances, Congress must step up and establish a
settlement process that is fair and equitable. Therefore we support the
following baseline components for a legislative solution to the current
Indian trust lawsuit:
1. The process should be voluntary in nature.
2. Congress must authorize access to and use of the Judgment Fund
for settlement of claims (such as Section 6 in S. 1770). The United
States must pay for past and ongoing mismanagement of the IIM Trust As
such, this means that the United States must no longer dip into current
appropriations dedicated to Indian affairs in the Interior Department's
annual budget. Our people and our programs should no longer suffer in
the name of ``trust reform.''
3. Congress should further authorize use of the Judgment Fund to
pay for trust accounting reforms necessary to remedy historical wrongs.
This is necessary, otherwise, current Indian programs will continue to
be jeopardized and again, that just compounds the wrong to American
Indians and Indian Tribes.
4. Because Indian Tribes have claims for breach of trust for
failure to account for funds in tribal trust accounts, Congress should
develop an IIM trust accounting settlement process that takes into
consideration Tribal input. For example, the InterTribal Monitoring
Association, which the Wind River Tribes belong to, has been in
discussions with the Interior Department for over a year on developing
a settlement process for settlement of tribal claims. Congress should
keep in mind the specific Tribal claims and ongoing settlement
discussions, and work with the Tribes on resolving these issues.
5. There should be appropriate avenues for appeal to the Federal
courts. The checks and balances inherent in the United States
Government underscores the need to provide a strong basis for both the
Congress and Courts to check and balance the Interior Department's
implementation of a Congressional approved settlement process.
6. Congress must reject appropriations riders developed without
consultation and dialogue with Tribes and IIM account holders as a way
to resolve issues related to the lawsuit.
In closing, Congress should enact a specific framework for a
legislative solution, which includes access to the Judgment Fund for
both accounting reform and damages for IIM and tribal account holders.
We commend Chairman Pombo, Congressman Rehberg and the Resources
Committee for holding these hearings.
Thank you again for the opportunity to testify on these critically
important matters.
______
Mr. Rehberg. Thank you. And I really do appreciate you all
being here.
I know this is one of these issues that you all have
inherited. None of us were around at the beginning, but we
would like to be around at the end of this process.
So let me begin by just asking you, if you can answer the
question, How many--and I know, Fred, your situation perhaps is
different because you have a management arrangement contract,
and so do you, Mr. Howe, but--I am sorry, Alvin --but how many
individual account tribal members do you have in each of your
tribes? Do you know that?
Mr. Matt. I don't have those numbers who is underneath. We
manage our own IIM accounts on our reservation. As--like Alvin
had mentioned, most of the functions at the BIA used to provide
us on the reservation. We do it ourselves.
Mr. Rehberg. But you don't know how many individuals.
Because one of the numbers we hear continually is, you
know, the tribes mentioned nationwide, there could be as many
as 500,000. The Department of Interior says no, it is more like
250, 280, 290, less than 300.
I am trying to put it into some kind of numerical
perspective in Montana. What kind of problem are we talking
about? I know asking you first gives these guys a whole lot
more time to try and figure out what it is, but you don't
have--
Mr. Matt. I don't know a specific number.
Mr. Rehberg. OK.
Mr. Windy Boy. I can say with Rocky Boy, as an example, I
am an IIM account holder. So is my brothers, and there is nine,
ten of us. And the list goes on.
In addition to that, I have also got enrolled members of my
tribe that are IIM account holders on the Blackfeet, Salish-
Kootenai and Crow, and other tribes, and whether or not Cobell
is representing them, they are constituents and representatives
of my tribe and feel that --
Mr. Rehberg. So do you know how many that would be, just
perhaps living on your reservation?
Mr. Windy Boy. Specifically?
Mr. Rehberg. Or, enrolled in your tribe that would be IIM?
Mr. Windy Boy. Specifically, not a number offhand.
Mr. Rehberg. OK.
Kayle?
Mr. Howe. Yeah, we have 7,303 account holders on our Crow
Reservation, and I am one of them. And I have established that
since 1962 the account, and so have other members prior to
that, I believe. But we do have in excess of 11,000 in our
enrollment in the Crow Tribe.
Mr. Rehberg. OK.
Mr. Howe. And so we would feel that it would be important
if we could have certain types of hearing of this nature
brought to the Crow Reservation, where the account holders
themselves can hear the intentions of Congress and how they are
trying to resolve the problems.
Mr. Rehberg. You bet.
Jay, do you--
Mr. Matt. Chairman Rehberg, I was just trying to think, out
of 6,000 members of our tribe, half of them live off the
reservation. But, I was trying to think of what I --I heard the
number on our reservation the other day, and there is somewhere
in the neighborhood of 1500 to 2000 account holders.
Mr. Rehberg. OK.
Jay?
Mr. St. Goddard. Up there on Blackfeet, there is probably
9,800, and as Mr. Windy Boy stated, on the reservation, on
Rocky Boy and other reservations that this occurs to families
owning other shares on different reservations, being married
into different tribes or whatever. I don't know an exact number
there, but at home, there it is 9,800, close to that.
Mr. Rehberg. OK.
Geri?
Ms. Small. Well, you know, I just wanted to mention, you
know, you said 500,000, and that is the last I heard too,
nationwide.
But on Northern Cheyenne, we got about 8,200 tribal
members, and we have probably about three-quarters of those
that are IIM account holders.
Mr. Rehberg. OK.
Vernon?
Mr. Hill. I don't have an exact figure on how many account
holders there are, but I would say the majority of them are. I
would say enrolled members some way or another are account
holders because of the income they receive off of oil/gas
royalties.
It kind of depends on the situation, though, involving
accounts. I would say a majority of the adults, the children or
all tribal members receive income of some type.
And you have the others there that have leased land out,
and, you know, you have fractionated interest, and so that is a
large number, and I couldn't give it, an exact figure.
Mr. Rehberg. OK. All right.
I just want all of you to know that there is really no
right or wrong answer to anything. There is nothing that we are
going to hold you all to. We recognize the fact that the
hearing came up at a rather late date. Not a lot of preparation
could be put into it.
Sometimes that is better because then you just throw out
ideas. And this is the period of time that we are throwing out
ideas.
I don't know which direction we are going to take, so some
of the things I say may not be either correct or end up in the
legislation. We have to work within the committee structure
itself.
Mr. Windy Boy. Just one statement. As far as being
progressive, I would like to remind you of a demonstration
project that is currently being proposed in collaboration with
four tribes--the Chippewa and Cree Tribe, the Salish-Kootenai,
Hupa Tribe in California, and the Salt River Pima-Maricopa in
Arizona in creating a demonstration project, a 1-year
demonstration project that looks at the service that we provide
and having the reform not negatively involve--interfere with
the way that we are doing business.
And I would also want to commend Secretary Griles and his
subordinate Dave Burnhardt in working with us. They certainly
have been taking a lead in collaborating with us on government-
to-government relationship.
Mr. Rehberg. OK.
Kayle?
Mr. Howe. Yeah, I would like to make note to the fact that
the 7,303 is the number that we had, but there is pending
probates that would probably increase the numbers.
Mr. Rehberg. OK, let me ask you all then a ``what if''
question.
What if we have a legislative solution that allows an
opportunity for the individual tribes to opt in or opt out.
There is nothing binding on you. If you want to continue on
with the class action lawsuit, we will call it the Cobell case
if that is the easiest way to refer to it, you have that
ability. Would you be willing to endorse or support legislation
that says, Look, it is not good for our tribe to accept this,
so we are out, but frankly if the Crows, or if the Blackfeet
want to settle, that is their business? Is that something that
you would be amenable to?
I know your current situation is that you are currently
contracted, so you are kind of opting out already.
Mr. Howe. Right.
Mr. Rehberg. But is that something that you could support?
Mr. Matt. Yeah, I think our Council would support that
idea.
Mr. Windy Boy. Yeah, ditto.
Guys like me that have like 3 cents and get a statement
every so often, that is kind of ludicrous to know that there is
administration spending that much money.
The litigation as far as the Congress involvement certainly
is important, and litigation appeals would go on forever.
Mr. Rehberg. Kayle?
Mr. Howe. Yeah, Congressman, I would like to have my
attorney address that.
Mr. Rehberg. Would you please state your name and position.
Mr. Yellowtail. Yes. Good morning, Congressman. For the
record, my name is James Yellowtail, and I am legal counsel for
the Crow Tribe. I am part of a legal team for the Crow Tribe.
Sir, as I understand your question, the question would be,
would the Crow Tribe support some kind of voluntary settlement
option for individual tribal members who are affected by the
Cobell Lawsuit?
The answer is, certainly we do.
I also understood a component of your question that would
refer to tribal claims for historical accountings that affect
purely tribally owned, or communally held interests. Insofar as
those claims go, the Crow Tribe does have a suit of that
nature. It is ongoing and pending. And I can inform you that we
are involved in settlement negotiations with respect to that.
We do see a major distinction between the two.
Mr. Rehberg. Yes.
Mr. Yellowtail. But in summary, the Crow Tribe does support
a broad range of options for individual account holders, and to
the extent that there would be legislation for that purpose, we
would be in support of that.
Mr. Rehberg. Thank you.
I will point out to the panel that I was aware of the
settlement that is occurring, or the discussions with the Crow.
I chose not to mention that. Just like you we are talking today
specifically about individual accounts. This is not--this
hearing does not deal in any way, shape, or form with tribal
accounts.
Jay.
Mr. St. Goddard. There is a wide variety--a lot of money we
are talking about. Right now, I don't know if litigation would
be the answer. It is still in court. We would have to push for
the courts to continue before we stepped in. I don't know,
learn more about the process.
Mr. Rehberg. Well, let me further explain, perhaps to you,
just because you are in a little different situation as well.
Mr. St. Goddard. Yes.
Mr. Rehberg. There is no doubt in the minds of members of
Congress, in the courts, that a problem exists, and the problem
needs to be fixed. But there is differing opinion as to how far
they want to go with the court cases.
Sometimes we get locked into the court system. I just
happened to marry my attorney, and so she is continually saying
no, you don't have to sue for everything. Sometimes mediation
is better because of the heartache, the lost time in your life
and the money.
But, we never want to discourage or lessen anybody's
ability, if they do want to go through the court system, to do
that.
I guess the question is, if you, as a reservation, or as a
tribe, make the determination that you want to continue on with
the suit and have that ability, can you support legislation for
the rest of these guys if they want to opt out?
Mr. St. Goddard. I believe not. I mean, I you know, we
can't --if we were involved in the --from the start --I can't
--I don't want to speak for any of the other tribes, the other
leaders. We would have to go back and talk to the Council what
we would do. But I am sure some of them are for it; some of
them are against it. But at this time, we probably would be
willing to settle for something, mediation.
Mr. Rehberg. OK.
Geri?
Ms. Small. I guess I have kind of would echo what Crow
tribal attorney stated and also Mr. St. Goddard over here.
I think I need to go back and actually get some official
word back from the tribe and actually sit down with the IIM
account holders that are present on our reservation. There is
probably about half of them that are not on the reservation. So
that is something that we are kind of looking into.
When we got notification of this hearing, I was trying to
gather people and trying to get situated and trying to get the
Council together. It did not happen. But, you know, I was clear
in my oral testimony on my behalf because I am an IIM account
holder, so I would be looking at settlement.
Mr. Rehberg. Well, I can't imagine the new legislation
would be crafted to say that you, as an individual, even if
your tribe made the determination that it is OK to settle, that
you as an individual couldn't still say, no, I would rather
continue getting my 3 cents a month until such time as this
thing is answered because I think there is a huge pot on the
other side of the 3 cents that you are not fessing up to. Then
you perhaps, and I hate to use the word ``take the gamble,''
but sometimes it is a crap shoot in the legal system to decide
whether holding out is going to do more for you as an
individual.
I just can't imagine that Congress would pass something
that would say, Sorry, but your tribe opted in so you are in.
Vernon?
Mr. Hill. I guess I couldn't really answer that question
today. I guess one reason that I couldn't answer is we are
currently in litigation with the U.S. Government for breach of
trust.
Mr. Rehberg. On the individual accounts?
Mr. Hill. No, on the tribal.
Mr. Rehberg. On tribal.
Well, again, this doesn't in any way, shape or form --
Mr. Hill. On the individual accounts, I couldn't really
make that decision for them unless we go back, like Geri
mentioned, go back and meet with them.
Mr. Rehberg. OK.
Again, I don't even know if I support something like this,
but one thing I want to throw out is that a mediator has been
presented as an idea in the past and was mentioned several
times today.
But I didn't hear anything about binding arbitration or
binding mediation. Is that something that ought to be
considered?
I am not sure the government could do that or would do
that, and I am not sure that you all would want to do that. But
is binding mediation or binding arbitration something that has
been discussed within your various council or at all in your
various reservations?
I will start with you, Fred.
Mr. Matt. Let me decline to my twin brother.
Mr. Rehberg. OK.
Mr. Windy Boy. What was the question again?
Mr. Rehberg. Binding mediation or binding arbitration. Is
that something that ought to be considered on this if we do
legislate some kind of a settlement procedure?
Mr. Windy Boy. I think with each tribal government, I think
that would be--that would certainly in my case, nine minds are
better than one. And if that so be desired, I certainly could
get a response to you in reference to that.
Mr. Rehberg. OK.
Mr. Matt. And that was one of the reasons what I declined
to Alvin, so that I would have time to --I think really as we
all operate, and I know you have a sense for this, what we
would do is go back and discuss it amongst our tribal councils
and give you a response.
Mr. Howe. Again, I would ask my legal counsel to address
that, James Yellowtail.
Mr. Yellowtail. Once again, for the record, Jim Yellowtail.
The Crow Tribe's position, sir, is that we support any kind
of option that is voluntary and represents a choice for
individual account holders.
I would point out that some form of mediation or
arbitration is a component of Senate bill 1770, which is the
bill recently introduced by Senator Campbell.
But, the Crow Tribe's position is that we do support the
option of remaining within the Cobell class and seeing that
accounting process through to the end. We support that as an
option for tribal members.
But again, we support any broadening of the range of
options that could be made available legislatively to account
holders who may wish on their own individual claims to opt out
of the process and settle.
Mr. Rehberg. OK.
Jay.
Mr. St. Goddard. Yes, getting back to that, being agreeable
to mediation, but I don't know about binding, I couldn't answer
for that.
The other, like Alvin has stated that there are nine other
members that need to address that issue.
And the other comment I had is that if the Cobell case won
and the account holders, you know, we have individual rights as
tribal members.
Account holders, we don't want to overlook those, and we
need to see where they're coming from.
But on the binding part, that would be a stickler, because
I have yet to see the government binding any agreement that we
have had in the past or so forthcoming. That would be my
comment.
Mr. Rehberg. All right.
Geri.
Ms. Small. You got everybody stumped here when you said
``binding mediation and binding arbitration.''
I guess if it was voluntary, I could see that, but not if
it is binding mediation or binding--
Mr. Rehberg. OK.
Vernon?
Mr. Hill. I guess on that point, I couldn't give you an
answer today, but what we will do is we will go back and work
with our attorneys on that and give you an answer.
Mr. Rehberg. I am not saying that it is anything that is
ever going to be included. It is just one of those things that
pops into your mind when we are trying to find some finality so
we can put our hands around it.
Well, again, I thank you.
And there may be other questions from other Committee
members. We will keep the hearing record open for a period of
time for them to do that so you can respond with any other
information you might have that you would like to share with
us.
Again, I thank you for taking the time to be with us. It
means a lot to us that you can be here. And at this time, then,
I will excuse this panel and invite Panel No. 2 up.
[Off the record.]
Mr. Rehberg. Again, welcome. Nice to have you here. It is a
little easier with a smaller panel now, a little more intimate,
and thanks.
And why don't we begin with you, sir.
Mr. Main. Start out?
Mr. Rehberg. Yes.
STATEMENT OF JEROME MAIN, MEMBER OF THE GROS VENTRE TRIBE AND
REPRESENTATIVE OF THE FORT BELKNAP RESERVATION
Mr. Main. My name is Jerome Main. I am a member of the Gros
Ventre Tribe and a representative for the Fort Belknap
Reservation, and want to thank you on behalf of the tribe for
bringing this meeting together and giving tribes an opportunity
to provide input on this important issue.
I come from the Fort Belknap Reservation, which is
comprised of about 675,000 acres and about 5,300 members. Gros
Ventre and Assiniboine Tribes, and we are an IRA Tribe, which
means that we accepted the Indian Reorganization Act of 1934.
Our reservation is about 95 percent trust land. We have
only 5percent that is in fee status. We are not affected like
other tribes that were unfortunately affected by the Homestead
Act, so we only have 5 percent of fee land on the reservation.
I feel very fortunate in that respect.
I would like to say starting out that the settlement offer
is kind of a touchy issue. I just came from a meeting about 2
weeks ago of the Land Tenure Foundation. Its a foundation that
is an organization that is made up of Indian tribes that has to
do with keeping Indian land in trust, Indian land in trust and
finding methodologies and ways to manage land better, keeping
land in trust.
The settlement of some of the greatest minds, I think, in
managing Indian tribes and managing Indian trust lands at that
meeting, and one of the settlement offers that was thrown out
was a $143 billion that Indian tribes --that the settlement
offer that should be excepted by Indian tribes for the Cobell
case.
And in the Cobell case, as we know, is not about money. It
is about mismanagement of lands and resources in Indian
country. And this $143 billion is a--you know, I don't know
where this figure came from, but there has been individuals
that have testified before involving a settlement--some
settlement issues of individuals involved since 1996 and 1994,
the Reform Act, and they have thrown out similar figures of
money that should be a settlement.
And I think it is kind of important that individuals and
individuals and tribes as well be involved in discussions
about--and the previous panel about how we should settle. And I
think the Tribes themselves should have very serious
discussions about that process.
In our particular tribe, we have our initial allotment,
1921, of our lands. We have 1,296 people that were originally
allotted on our reservation. Of that figure, now we have 4,000
land holders of undivided heirship lands.
Of that figure, every one of those individuals who own land
have an IIM account. And when you talk about IIM accounts in
Indian country probably every Indian at one time or another has
an IIM account because if you have settlements of judgments,
Treaty Funds, or whatever, then you have an IIM account. You
have to have someplace to reconcile that money. So probably
everybody has an IIM account when you talk about settlements,
payment of judgments and settlements.
And settling the accounts, I was a previous employee of the
Department of Interior, Bureau of Indian Affairs for about
thirty years, and I was familiar with the record systems. The
record system consists of probably the guidelines of the
Internal Revenue Service as well the--I can't think of the
other organization, Federal organization--but, General Services
Administration. We have to follow those guidelines in
establishing records, a system of records, and they provide you
with the authority to destroy records under that system.
So, when you talk about a historical accounting, how can
you have a historical accounting without records? There are no
records.
In the proposed legislation here today, you talk about
setting up an organization of IMACS, a task force. Our position
from the tribe has always been that Indian tribes or Indian
individuals should be party to any task force that has to do
with litigation or any discussions about Indian country, and it
says nine members and made up of the minority leader of the
House, the Senate Speaker. I think that Indian tribes or Indian
leaders should be a part of this process, you know, the body
made up for that.
As we are meeting here today, the BIA is setting up a
meeting in Las Vegas to talk about trust reform and their plans
for reorganization. And it is basically their plan; it is not
the Indian tribes' plan. We didn't have too much voice.
We did at one time in a task force but, that task force was
abolished. And a lot of the plans that they have in place were
not part of--the Indian tribes didn't have any input in that
process.
So that is--our Tribes basically boycotting that because we
don't agree with the reorganization of trust reform concept
that they have in what they call a Departmental Manual, which
provides an individual by the name of Ross Swimmer, who is head
of the OST, provides that individual with an enormous amount of
authority along with the Assistant Secretary of the Interior.
And we object to that because it fragments services to Indian
tribes and is not in the best interest of Indian land holders.
Our position for the tribe, for the two tribes at Fort
Belknap, is to basically run our programs rather than have some
individual run our own programs.
Why would you have someone, you know, hand someone your
checkbook? You wouldn't do that. We have to run our own
programs and learn how to run our own programs.
And our tribe has been running programs for over 20 years
under the 638 contract. And under that concept, under the Anglo
concept, we have been managing our own lands for about 25 years
through CFR 638.
But, you know, our legends say that we have been managing
our lands for a long time. I mean, 40,000 years we have been
managing our lands and resources. So we know how to manage our
lands and resources.
And the last thing I would like to point out is in talking
about a settlement, why can't we in some way set up an initial
account and pay those individuals who are elders who have been
waiting for these kinds of things for years. Why can't we set
up an initial account and compensate those elders before they
pass on, and then establish some kind of a formula that they
would be reimbursed, or the account for the tribe would be
reimbursed or go into some type of probate? I think that would
be a fair and equitable thing to do right now for Indian
elders. They have been waiting a long time.
That kind of concludes my testimony today Senator--
Congressman Rehberg.
Mr. Rehberg. Thank you.
Mr. Main. I think that I want to thank you for--we will
take a formal position--when I go to the reservation, we will
take a formal position by resolution and provide you with a
formal paper.
Mr. Rehberg. Great. Thank you.
STATEMENT OF MAJEL M. RUSSELL, ATTORNEY AT LAW, INDIVIDUAL CROW
TRUST LANDOWNER
Ms. Russell. Good morning, Honorable Congressman Rehberg. I
am honored to be here at the invitation of Congressman Pombo,
Chairman of the House Resources Committee.
My name is Majel Russell, and I am here presenting this
testimony at this field hearing as an individual Indian account
holder. I am an enrolled member of the Crow Tribe of Indians,
and I own trust land on Crow Indian Reservation.
Although I am here in my capacity as an individual Indian,
I have gained considerable experience regarding the complex
issues surrounding the Department of Interior's management of
the Indian Trust in my legal practice.
Further, as an attorney for the Crow Tribe in its
litigation against the United States for trust mismanagement I
am fully aware of the rulings issued by Judge Lamberth in the
Cobell v. Norton litigation.
As a member of the class of plaintiffs in the Cobell v.
Norton litigation, I understand that the lawsuit against the
United States was initiated to provide me, as a land holder,
with a full and valid accounting of the activity in my
Individual Indian Money account. I have understood that a
victory in the lawsuit will not result in money damages for me,
but only a statement of activity in my account from which then
I can assess whether or not I have suffered losses. If I
determine that I have suffered losses, then I would need to
proceed with further litigation to collect money damages in
another form.
The Cobell v. Norton litigation has been instrumental in
revealing the deficiencies in BIA management in trust assets.
Due to the litigation, congressional attention has finally been
focused on the daunting tasks of managing Indian trust lands.
Specifically, the efforts to resolve the fractionated land
problem, to streamline and simplify the probate of Indian lands
and to overhaul the day-to-day business processes have long
been overdue. However, the Cobell litigation has now reached a
point where one must consider whether continued litigation will
be best to serve all the varying members of the plaintiff's
class.
My landholdings on the Crow Reservation are of two types. I
own land with my mother and my two aunts as ``competent'' Crow
Indians. Crow tribal members were designated competent Indians
by Congress in 1948, and as such, we have the right to
negotiate encumbrances on our lands and receive direct payment
from the lessee.
I also own lands with multiple owners that are fully
managed by the BIA, as any tract at Crow with five or more
owners are completely under BIA management. My family and I
know where our land is, how much acreage we own and the value
of that land for leasing purposes.
For those lands we hold as competent Indians, we determine
who we chose to enter into leases with. We negotiate the rates
and the terms of the compensation.
For those lands managed directly by the BIA, I receive
statements from the Office of Trust Funds Management quarterly,
or more often if I have funds that have been deposited into my
IIM account and then forwarded to my bank account.
During the years that the land that I have inherited were
in probate, which was a total of 7 years, I was aware of the
trespass upon those lands, the use of the lands without leases
and leases of the lands under fair market value, all during the
BIA management period.
However, these mismanagement issues and their financial
impact would not be revealed by an extensive accounting.
Instead, upon finalization of the probate, my family and I took
administrative action against the BIA and also actions against
those persons who were trespassing on our lands.
I point this out because I believe that there is a serious
misunderstanding on exactly what the Cobell litigation can
accomplish in terms of misdeeds against the Indian land.
Resource mismanagement issues are not a part of the Cobell
litigation. Thus, for me as an individual landowner, I support
options to consider to provide me a financial benefit for my
trust accounting claim against the DOI short of a historic
transaction-by-transaction accounting of my IIM account and the
accounts of my predecessors from whom I inherited lands.
Presently, as an owner of Crow Reservation trust lands, I
would like to see an improvement in the delivery in services by
the BIA. I would like to see the resources of the agency BIA
office increased to allow for the efficient and timely
processing of conveyance documents, lease approvals, appraisals
and surveys.
I am concerned that a redirection of funds to long-term
litigation will not allow me to best use services available for
land consolidation and to possible even finance individual
landowners like myself to purchase other fractionated lands and
assist with that problem.
The current lack of resources to the agency office has
resulted in a poor delivery of service to Crow landowners.
Logically, the task of a full transaction-by-transaction
accounting for all IIM account holders will only impede the
improvement of those services further. Additionally, I cannot
believe that Congress will elect to fully fund the accounting
process detailed in the Cobell structural injunction.
Thus, I support the exploration of options from which I, as
an individual, can voluntarily elect to utilize to resolve my
claim against the United States as an individual trust
landowner.
I believe there are several viable options that should be
considered. One viable option that would be to calculate a
value of my claim based upon certain criteria, such as the
number of acres, the length of time that I have owned the land,
the type of land. Then I could chose to accept the value of my
claim and forgo my right to an accounting. This option would
allow me to receive a financial benefit in the near future and
save me from the lengthy document collection process that would
be necessary to conduct a full accounting.
While I speak only for myself, this option would also allow
those individuals who have waited many years for some
resolution of their claims to achieve that resolution during
their lifetimes.
Of course, this option, while it is workable for me, may
not be workable for others, and I believe such a buy-out plan
must be completely voluntary.
Another option would be to develop a process such as that
outlined in S. 1770, the legislation that we have referred to
here today that was introduced by Senator Campbell, which
allows an individual to accept an account balance after an
accounting is conducted by a task force of experts.
While that legislation needs to be developed in much
greater detail and explored, I do believe that there are some
general concepts there that are viable options for individual
landowners.
Without options for settlement, I will be forced to remain
in the Cobell lawsuit. Instead, I prefer to have options to
seek the best resolution of my claim against the United States.
Having options is only a matter of fairness and a recognition
of my right as an individual landowner.
Thank you.
[The prepared statement of Ms. Russell follows:]
Statement of Majel M. Russell, Attorney at Law, and
Member of the Crow Tribe of Indians
Good Morning, Honorable Congressman Rehberg. I am honored to be
here at the invitation of Congressman Pombo, Chairman of the House
Committee on Resources. My name is Majel Russell and I am here
presenting testimony at this field hearing as an Individual Indian
Money account holder. I am an enrolled member of the Crow Tribe of
Indians and own trust lands on the Crow Indian Reservation.
Although I am here in my capacity as an individual Indian, I have
gained considerable experience regarding the complex issues surrounding
the Department of Interior's management of the Indian trust in my legal
practice. Further, as an attorney for the Crow Tribe in its litigation
against the United States for trust mismanagement, I am fully aware of
the rulings issued by Judge Lambreth in the Cobell v. Norton
litigation.
As a member of the class of plaintiffs in the Cobell v. Norton
litigation, I understand that the lawsuit against the United States was
initiated to provide me with a full and valid accounting of the
activity in my Individual Indian Money account. I have understood that
a victory for the plaintiffs in the litigation will not result in money
damages for me, but a statement of activity from which I can assess
whether or not I have suffered losses in my IIM account due to
Department of Interior management. To collect upon determined losses
will necessitate further litigation.
The Cobell v. Norton litigation has been instrumental in revealing
the deficiencies in BIA management of trust assets. Due to the
litigation, Congressional attention has finally been focused on the
daunting tasks of managing Indian trust lands. Specifically, the
efforts to resolve the fractionated land problem, to streamline and
simplify the probate of Indian lands and overhaul day-to-day business
processes have been long overdue. However, the Cobell litigation has
now reached a point where one must consider whether continued
litigation will best serve all the members of the plaintiff's class.
My land holdings on the Crow Reservation are of two types. I own
land with my mother and two aunts as ``competent'' Crow Indians. Crow
Tribal members were designated competent Indians by Congress in 1948
and, as such, we have the right to negotiate encumbrances on our lands
and receive direct payment from the lessee. I also own lands that are
fully managed by the BIA, as any tract with five or more owners on the
Crow Reservation are managed by the BIA. My family and I know the
acreage we own, where our lands are located, and the value they have
for leasing and other purposes. For those lands we hold as competent
Indians, we determine who we choose to enter into leases with,
negotiate the rates and terms of compensation. For those lands managed
directly by the BIA, I receive statements from the Office of Trust
Funds Management quarterly, or more often if funds have been deposited
into my IIM account and forwarded to my bank account.
During the years that the lands that I inherited were in probate, a
total of seven years, I was aware of trespasses upon the lands, use of
the lands without leases and leases of the lands under fair market
value. However, these mismanagement issues and their financial impact
would not be revealed by an extensive accounting. Instead, upon
finalization of the probate, my family and I took action to rectify
these mismanagement issues. Resource mismanagement issues are not a
part of the Cobell litigation. Thus, for me as an individual landowner,
I support options to consider to provide me a financial benefit for my
trust accounting claim against the DOI short of a historic transaction
by transaction accounting of my IIM account and accounts of my
predecessors from whom I inherited lands.
Presently, as an owner of Crow Reservation trust lands, I would
like to see an improvement in the delivery of services by the BIA. I
would like to see the resources of the agency BIA office increased to
allow for the efficient and timely processing of conveyance documents,
lease approvals, appraisals and surveys. The current lack of resources
to the agency office has resulted in a poor delivery of service to Crow
landowners. Logically, the task of a full transaction by transaction
accounting for all IIM accounts will only impede the improvement of
services further. Additionally, I cannot believe that Congress will
elect to fully fund the accounting process detailed in the Cobell
structural injunction.
Thus, I support the exploration of options from which I can
voluntarily elect to utilize to resolve my claim against the United
States as an individual trust landowner. I believe a viable option
would be to calculate a value of my claim based upon certain criteria,
such as number of acres, length of ownership, and type of lands. Then I
could choose to accept the value of my claim and forego my right to a
full and valid accounting. This option would allow me to receive a
financial benefit in the near future and save me from the lengthy
document collection process necessary to conduct an accounting. Of
course, this option, while workable for me, may not be workable for
others and I believe such a ``buy-out'' plan must be completely
voluntary. Another option would be to develop a process such as that
outlined in S. 1770, the legislation recently introduced by Senator
Campbell, which allows an individual to accept an account balance after
an accounting conducted by a task force of experts. S. 1770
contemplates the development of a practicable accounting method.
Without options for settlement, I will be forced to remain in the
class of the Cobell lawsuit. Instead, I prefer to have options to seek
the best resolution of my claim against the United States. Having this
choice is only a matter of fairness and a recognition of my rights as
an individual landowner.
Thank you.
______
Mr. Rehberg. Thank you.
And last but not least, Mr. Shields, welcome. Nice to have
you here, and please give my regards to Arlyn when you get
home.
STATEMENT OF CALEB SHIELDS, CHIEF OF STAFF, ASSINIBOINE AND
SIOUX TRIBES OF THE FORT PECK RESERVATION
Mr. Shields. Thank you, Congressman Rehberg. The Chairman
also sends his regards to you.
As you are probably aware, the Fort Peck Tribes are--this
is election day for the Tribal Council, and they had their
final meeting yesterday. They designated me to put together the
testimony and to make appearances on behalf of the Tribes here
today.
I would like to thank you for bringing the issue here to
Montana to hear our views on the Cobell litigation.
I also want to thank all of the other tribal leaders here
today that came to present their views because I think this is
very important for the tribes to come forward and make their
case on their views on the Cobell litigation.
I just want to step back a little bit and talk about the
reorganization. Our tribes, and many of the tribes are aware
over the years what has happened to any reorganization of the
Bureau of Indian Affairs.
You know, every time they had a reorganization, the only
people that benefited from reorganization was the top level
people back in Washington, D.C. They got higher rates,
positions, bonuses, you know, because they had more
responsibility.
And the other recent reorganization had to do when the
established area offices. Again, more higher positions away
from the reservations and bonuses that went along with their
responsibilities.
So, in 1994, when the Cobell litigation first started,
although we were glad that the Cobell litigation has brought
this issue to the forefront, we are fearful, and rightfully so
that what would come out of the whole litigation is again
another reorganization, which we see--with more positions,
higher pay, more bonuses and responsibilities.
That happened with --when they established area offices.
Again, they took functions of agencies on the reservations away
from the reservation to--you know, like here in Billings.
So that is why we opposed the reorganization from the very
start, the BITAM proposal of Secretary Norton, because we knew
what would come out it.
And I think there is a letter attached to my testimony that
we wrote to Norton back in December of 2002. Also, it makes
reference to our testimony at all of the regional hearings that
were held on that.
So I think our position has been right all along. We also
made reference that eventually this would end up in the hands
of Congress, and we are glad to see this Committee come here to
address that.
I am here today representing the Fort Peck Tribe. We have,
I think within the next couple of months, our enrollment will
peak at around 12,000 members. Of that membership, we have, as
of yesterday, 8,671 IIM account holders.
Of course, many of those are original allottees and owners
of fractionated heirship properties on the reservation.
So we are pleased that the Committee is here today to
address the Cobell litigation and to look for ways to resolve
the trust fund litigation.
I think settling Cobell, in our view, should include
providing damages for past mismanagement and implementing
reforms to protect our trust assets for the future.
And we have serious concerns, as I said earlier, with the
current Interior Department's reorganization. We have
repeatedly testified at the Department's regional hearings that
any trust reorganization of the Bureau should include infusing
additional resources where they're actually needed, at the
reservation level.
This is where the trust lands are located; this is where
the BIA's legal responsibility to Indians must be focused. And
creating additional levels and shuffling of personnel at the
Central Office will not enhance or improve the quality of the
judiciary performance.
And we urge this Committee to continue to monitor and seek
reports on how the Department's trust reorganization plan is
really working in communities like ours at Fort Peck.
The Fort Peck Tribes support proper efforts to settle the
Cobell litigation. And it has become very clear to us from the
Cobell litigation that the Department cannot do the historical
accounting that the court has ordered.
But what has been obvious from the Department's conduct in
Cobell is that the Department lacks the ability, they lack the
desire and, in some instances, the resources to carry out its
duty under the law.
The government cannot, or the government has simply shown
an inability or unwillingness to comply with the normal court
processes. And we strongly urge and support Congress stepping
in and working with the parties to determine how best to
approach this matter.
While we do not have a specific legislative proposal to
offer to the Committee today, we would urge the Committee to
move forward using the following three principals:
First, any proposal for settlement of trust funds by
Congress must be based on a premise that the United States is
liable for the mismanagement of trust funds. So the question of
whether the United States is liable for its actions should be
answered in the affirmative in any legislative solution.
Second, with the United States' liability established, it
is critical that Congress establish a fund within the Treasury
that would be available to the trust beneficiaries. We do not
today suggest a figure as an appropriate amount of this fund.
We recommend that Congress work with the interested parties and
outside experts to develop a range regarding the appropriate
amount for this fund, and we would recommend that the money
allocated to this fund should not come from the Programs
accounts of the Department of Interior, as it makes no sense to
pay for the government's past misdeeds by diminishing funds for
current Indian needs.
And we agree with the many statements from Congress that
the funding to resolve this has been too long directed to the
lawyers, accountants, and system development and not to
providing the benefit to Indian people.
The third principle is Congress should establish a fair
process for allocating to the IIM account holders for the
appropriate share of the fund established by Congress.
As one possibility we think a proposal similar to this, and
Senate bill 1770 would be a viable option in this regard. And
once the methodology is established, the appropriate share of
the fund would be offered to each individual account holders.
If an account holder accepts the payment, the United
States' past liability to that account holder would be
resolved, and that account holder would no longer be part of
the Cobell litigation.
If an account holder does not accept the offer of
settlement, he would remain--he or she would remain in the
Cobell litigation.
In our view, this kind of approach would have considerable
benefits. First, it would provide a significant sum for
resolution of this matter.
Second, it would provide a participatory process for
developing a fair and simple methodology for distributing that
sum.
Third, it would provide certainty to those account holders
who wish to resolve this matter relatively quickly rather than
proceed with the uncertainty of litigation.
And fourth, it would provide everyone with a choice. We
think legislation with these basic elements, refined through a
consultation with Indian country, would go a long way toward
resolving this matter.
And I would like to close by also mentioning that in our--
over the years we have circulated to members of Congress and
the Montana delegation's office, to the Secretary of the
Interior and to the Deputies, we had requested a 5-year
demonstration project to how accountability should be managed
at the reservation level. But, so far that hasn't been
accomplished by our tribes.
So, we are still requesting a 5-year demonstration project
as a direct service tribe. You know, we don't-- some tribes are
compacted, some are self-governed. But within the Bureau, we
are remaining within the--as a direct service tribe, and we
feel that whatever the 3-to-5-year demonstration project would
show Congress how these accounts could and should be managed.
So with that, Mr. Rehberg, we thank you for coming here
with your capable staff to hear the concerns of the tribes.
[The prepared statement of Mr. Shields follows:]
Statement of Caleb Shields, Chief of Staff, Assiniboine and Sioux
Tribes of the Fort Peck Reservation
Mr. Chairman and members of the Committee, my name is Caleb
Shields. I am the current Chief of Staff to the Chairman of the
Assiniboine and Sioux Tribes of the Fort Peck Reservation. I have in
the past served as Chairman and for many years as a Board member for
the Tribes. I would like to thank the Committee for this opportunity to
testify. In particular, I would like to thank my Congressman Denny
Rehberg, who has been an outstanding advocate for the Tribes of this
State and has continuously demonstrated his commitment to work on
behalf of Indian people.
The title of today's hearing is: ``Developing a Legislative
Solution to the Indian Trust Fund Law Suit.'' The Fort Peck Tribes
agree that it is important for Congress to look for ways to resolve the
Cobell trust funds litigation. At the same time, that trust funds
litigation is a symptom of the deeper problem--that the government has
failed over the years to properly manage Indian trust assets. This
remains the core of the problem--as the government is still unable to
properly fulfill its trust duties as enumerated by the District Court
in the Cobell litigation. As a result, in our view, consideration of
how to resolve Cobell must be coupled with discussion on the efforts to
reform the trust resource management system so that, in the future, the
government will not repeat the mismanagement that led to the Cobell
case. Settling Cobell, in our view, should include providing damages
for past mismanagement and implementing reforms to protect our trust
assets for the future.
The Fort Peck Tribes have serious concerns with the current
Interior Department reorganization efforts. We have repeatedly
testified at the Department's regional consultation hearings that any
trust reorganization of the BIA should include infusing additional
resources where they are actually needed to provide the greatest
benefits to tribes and individual Indians, which is at the Reservation
level. Additional funds and resources are needed to increase local
staff, facilities and equipment at the local BIA agencies, where all
documents and transactions regarding trust matters originate. This is
where the trust lands are located, and this is where the BIA's legal
responsibility to Indians must be focused. Creating additional levels
and shuffling of personnel at the Central Office will not enhance or
improve the quality of the fiduciary performance. Rather, the
Department's plan to centralize all of the trust functions away from
the reservation level will continue to result in the loss of funds
without solving the basic problem of accountability. We urge the
Committee to continue to monitor and seek reports on how the
Department's trust reorganization plan is really working in communities
like mine at Fort Peck.
The Fort Peck Tribes support proper efforts to settle the Cobell
litigation. In our view, the Cobell litigation has provided an
important service of bringing the trust mismanagement issue more
broadly to the attention of the government and the public. The Cobell
litigation has clearly established that there has been a serious
mismanagement of Indian resources and violation of the federal trust
responsibility owed to Indian account holders, for which the United
States now owes restitution. Thus, the Cobell litigation, despite its
cost and long duration, has provided a significant benefit to Indian
country.
It has become clear from the Cobell litigation that the Department
cannot do the historical accounting that the Court has ordered. This is
not to say that the Court is wrong in stating that the Department has a
duty to provide a historical accounting. Clearly, the Department does
have that responsibility. But, what has been obvious from the
Department's conduct in Cobell is that the Department lacks the
ability, the desire, and, in some instances, the resources to carry out
its duty under the law. So, while the United States has a duty to
provide restitution to the thousands of Indian account holders whose
funds and resources have not been properly managed, we do not believe
that is likely to be achieved through the normal process of litigation.
The government has simply shown an inability or unwillingness to comply
with normal court processes.
So, if the government has, in a sense, disabled the courts, where
do we go to resolve the mismanagement of the trust assets? While there
is no single answer, we strongly support Congress stepping in and
working with the parties to determine how best to approach this matter.
While we do not have a specific legislative proposal to offer the
Committee today, we would urge the Committee to move forward using the
following three principles.
First, any proposal for settlement of trust funds by Congress must
be based on the premise that the United States is liable for the
mismanagement of trust funds. It is clear from the record in Cobell--as
well as the extensive record in numerous Congressional hearings over
the course of many years--that the United States has failed in its
legal obligations to properly manage and account for trust funds. Other
legislative proposals, including S. 1770, which was recently introduced
by Senator Campbell, would leave government liability as an open
question to be decided by a third party. We believe that the record
already establishes that the United States has breached its legal
obligations regarding the management of trust assets. So, the question
of whether the United States is liable for its actions should be
answered in the affirmative in any legislative solution.
Second, with the United States' liability established, it is
critical that Congress establish a Fund within the Treasury that would
be available to the trust beneficiaries. This Fund must be sufficient
to demonstrate the United States' commitment to resolving this issue.
We do not today suggest a figure as an appropriate amount of this Fund.
We recommend that Congress work with the interested parties and outside
experts to develop a range regarding the appropriate amount for this
Fund. Then Congress could determine, from within that range, the amount
of the Fund. We recommend that the money allocated to this Fund should
not come from program accounts of the Department of the Interior--as it
makes no sense to pay for the government's past misdeeds by diminishing
funds for current Indian needs.
The establishment of such a Fund would demonstrate to the Indian
beneficiaries that the United States accepts responsibility for its
mismanagement and is willing to put forward some measure of restitution
for the benefit of the Indian beneficiaries. We agree with the many
statements from Congress that the funding to resolve this has been for
too long directed to the lawyers, accountants, and systems development
and not to providing a benefit to Indian people. A Congressionally
established Fund to pay damages for government mismanagement is a
better expenditure of funds--as it will really help the Indians who
have suffered because of the government's misdeeds.
Third, Congress should establish a fair process for allocating to
the IIM account holders an appropriate share of the Fund established by
Congress. How to do this surely will not be simple and various
approaches should be considered. As one possibility, we think a
proposal similar to that in S. 1770 may be a viable option in this
regard. Under this proposal, Congress would establish an entity with a
broad range of expertise, which would be charged within a specific time
period, with developing a methodology for allocating the Fund to the
individual account holders. While S. 1770 does not make this clear, in
our view, the development of the methodology must be an open process
with sufficient opportunities for consultation and comment by tribes
and individual beneficiaries. In addition, the methodology selected
must be relatively simple or the process will be become burdensome or
unworkable. The final methodology could be published in the Federal
Register.
Once the methodology is established, the appropriate share of the
Fund would then be offered to each individual account holders. If an
account holder accepts the payment, the United States' past liability
to the account holder would be resolved and that account holder would
no longer be part of the Cobell litigation. If an account holder did
not accept the offer of settlement, he would remain in the Cobell
litigation.
In our view, this kind of approach would have considerable
benefits. First, it would provide a significant sum for resolution of
this matter. Second, it would provide a participatory process for
developing a fair and simple methodology, for distributing that sum.
Third, it would provide certainty to those account holders who wish to
resolve this matter relatively quickly rather than proceed with the
uncertainty of litigation. And fourth it would provide everyone with a
choice. While there is no single approach that would please everyone,
we think legislation with these basic elements--refined through
consultation with Indian country--would go a long way toward resolving
this matter.
Again, I want to thank the Committee for its work on this issue and
would welcome the opportunity to answer any questions that you might
have.
______
Mr. Rehberg. Thank you, Caleb, once again--I guess I am a
chairman in training because I forgot to swear you in.
Knowing you all personally, I am going to assume that you
told the truth, and we will dispense with the oath, if that is
OK.
Well, it is OK. Congratulations in getting out from under
the rules again.
And thank you. Again, I appreciate you being here on a
Saturday, almost afternoon, and taking time out of your busy
schedules. I would ask a specific question, and while you are
not here necessarily representing yourselves as individual
account holders, Caleb, I assume that you are also an
individual account holder--
Mr. Shields. Yes.
Mr. Rehberg. --but since you are here specifically
representing individual account holders, could you explain to
me just a little bit about how that works. You are in a
partnership with your mom and your aunts. Do you own fee land?
Ms. Russell. Trust land.
Mr. Rehberg. Trust land.
But you, then, are the designee for that trust land.
How do you become an individual account member of trust
land, and then what kind of leases are there? Can you give me
an estimate of what you think somebody owes you for the use of
that property forever--for however long?
It would be nice to know in my own mind what an example is.
Ms. Russell. Well, I can speak for just for my experience,
but I think that my experience is probably fairly typical for
people at Crow.
I first had an IIM account created for me in 1961, when the
tribe first received a settlement on the Yellowtail Dam. When
we first received payment for the condemnation up there and
then created the Yellowtail Dam, then each of the tribal
members received a payment. So an IIM account was created for
me at that time, as I am sure a lot of other tribal members.
So that account was probably on record. And after that
payment was disbursed to me, there was probably no activity for
many years until I inherited land. And I inherited land from my
grandparents, along with my mother and two aunts.
Now, my inherited lands are two different categories. One
category, the lands I inherited are considered competent--I am
a competent Indian to manage those lands.
And I know that is complicated, but that means that if
there-- if there are less than five owners, then we do all of
our own land management. We have undivided interests, so we own
that land as common owners, and we basically determine what we
think the land is worth in terms of an agricultural lease; we
negotiate the terms of that lease, and we receive payment
directly.
Mr. Rehberg. But the land itself is owned by the tribe?
Ms. Russell. The land itself, the title to the land is held
by the United States, and I own it as an individual along with
the other owners. We own it as individual landowners of land in
trust, but the actual title of it is held by United States.
Mr. Rehberg. OK.
Ms. Russell. It is not fee land.
Mr. Rehberg. But you could, in fact, put a fence around it,
or is it--
Ms. Russell. Oh, yeah, we could put a fence. You run it
just like you do any other property that you would own. You
have--
Mr. Rehberg. Then over the years, who has that land been
leased to that you don't know whether you have been receiving--
I understand the trespassing aspect of it because if it is
open, then other people are running cattle on it and receiving
a grass benefit, which you probably could have stopped by
fencing, but that is not always--.
Ms. Russell. Right.
Well, let me just--those lands that I am talking about that
we manage ourselves as competent Indians are in a different
class than probably the majority of lands held by all of the
IIM account holders.
Those lands are--there is another type of land that I own
with my family, and those are lands that are fully managed by
the BIA. They do all of the advertisement of the lands for
lease. They would negotiate the leases themselves; they would
collect the money and disburse the money. That is in a
different category. And they--
Mr. Rehberg. And that would be essentially your Yellowtail
example, the lands underneath the water have been paid for--
Ms. Russell. To every tribal member, yes.
Mr. Rehberg. But did they set up an account that was
supposed to see ongoing revenue for--
Ms. Russell. No, darn it.
Mr. Rehberg. OK. Yeah.
Ms. Russell. No, they didn't do that.
Mr. Rehberg. OK.
Ms. Russell. That was a one-time payment.
Mr. Rehberg. Let me ask the other two gentlemen then.
Jerome?
Mr. Hill. I, as well, own two classes of lands. I own--in
1952, an account was set up for me when my father passed away,
and it went into probate. So I got an IIM account from that,
and I got revenue from that. I inherited land from my father,
and I also inherited land from my mother. That is an undivided
heirship land they call it.
The other, I purchased land on the reservation. So the
undivided heirship land is managed by the Bureau of Indian
Affairs in range units and under an established rate that they
go and advertise these lands and then collect the money; then
pay me my share of--
Mr. Rehberg. Are they leasing it to other tribal members?
Mr. Hill. It all depends. You bid on it. You bid on it.
And then there is what they call an allocation process
where Indian individuals can go in there for $8.50 a day,
Indian operators can go in there and operate for that price.
And then there are other parts of the range unit were you
bid on it. You bid on it, and it is a competitive process.
The lands that I own also that are purchased, I manage
those lands as well. I manage them, and I set the price, and if
somebody wants to use my land, they pay my price, yeah. They
negotiate with me, not the Superintendent.
Mr. Rehberg. OK, Caleb.
Mr. Shields. I guess my situation is probably more typical
in general of general Indian population. I have income, not
much, but income, fractionated interest in the funds from farm
land, grazing land. Also, Indians get the income from if you
have gravel, if you have oil or gas royalty payments, they go
into your account. But I don't have any of this except just
small amounts of grazing and farmland income. Fractionated, you
know--
Mr. Rehberg. I can't imagine that your answer here would
matter, but let me ask you the question.
If you were to, based upon your best estimate, guess what
you think you are owed for the term of your trust ownership,
you personally--and if that is not the--you being an attorney,
you know you don't want to say something on the record, because
as soon as it is on the record--it is binding to you in the
future.
But, can you give me an indication--
Ms. Russell. Yeah.
Mr. Rehberg. --are we talking about $100, or are we talking
about $100,000, for you individually?
Ms. Russell. For me individually, all of those lands that
my family and I own and manage as competent Crow Indians, we do
all that negotiation. The only responsibility of the United
States is to record the document.
And so for those lands, I can say that I don't believe that
our family would be owed anything, and I don't believe that a
transaction-by-transaction accounting of those lands which we
manage by ourselves would result in any sort of payment to us.
However, the fractionated heirship lands, which have
sometimes--I own an interest with 300 other people, or 200
other people that are completely managed by the BIA. They are
completely managed by the BIA, and the leases are negotiated;
they collect from the lessees, and they disburse the funds. I
can't accurately say exactly what I think.
However, I, as a landowner, do pay great attention to all
the statements that I get from OTFM, and I understand which
lands they are encumbering, and I know where those lands are
and what the general value is. So if I am thinking that I am
shorted some funds there, I guess it would be because I would
think that they are leasing those lands at under what fair
market value might be.
However, an accounting is not going to tell me that. An
accounting is only going to tell me what was collected, put
into the account, and how it was disbursed. Whether or not it
was leased at a fair market rental value or for the best
benefit of the beneficiaries, that accounting is not going to
tell me that.
Further, I have only had those lands, that management
responsibilities since 1997, so I--my comment cannot apply
across the board to a lot of other people.
Mr. Shields. Yeah, there is no way I could even project
might may be owed me, because over the years, up until
recently, when we started getting some statements from the BIA,
all I used to receive in the mail was a check for a certain
amount, and it didn't tell you where it came from, Whether it
was a--
Mr. Rehberg. What did a typical check like that--
Mr. Shields. Oh, you know you might get one for 40, 50
bucks, $100, couple hundred. It changed from year to year.
But even our little checks we got didn't say where--you
know, was it from the farm interest or the grazing interest,
whatever. We just got a check in the mail.
Mr. Main. An accounting, like Majel said, an accounting
wouldn't tell me how much money I have, you know, on the
mismanaged part of my property.
But there is another aspect that you'd look at, is how did
they manage the land in terms of, for instance, if your range
has deteriorated, your land has deteriorated to the point where
your land right now is not worth as much as it was 20 years ago
because of weeds and erosion and just mismanagements of those
lands. I think there should be some kind of a formula to
compensate me for that, for mismanaging my property.
And just like you would mismanage a house off the
reservation, you know, I think they mismanaged my land from
that standpoint. There was no type of range inventory or no
type of process in place by the government to keep that land in
a good state where it is worth money.
Mr. Rehberg. Just to be consistent, and this will be my
last question with the last panel, I would like to ask you the
question that I asked them with the opt in, opt out.
Specifically, if we were to come up with legislation to
give you an opportunity as individuals or as a tribe to opt out
of the ongoing lawsuit, and I think you have already kind of
addressed that, but just for the record, could I ask you to--
Mr. Main. My first reaction, I guess, would be to--anytime
that you are talking about a process and a decision like that,
I think the individual should have the right to make that
decision rather than me sitting here and making that decision
on behalf of everybody. I think that is what I would say.
Ms. Russell. Well, an individual landowner, I think that I
should have the right to decide whether options to settle this
claim are workable for me. And although the ongoing litigation,
the Cobell litigation, is a class action suit, and as is
typical of class action suits, there is little communication
with the plaintiffs. I am not favorable to having any option of
mine tied up in ongoing litigation for years that I would see
no benefit from. So, yes.
Mr. Rehberg. OK, good.
Mr. Shields. I think as an individual, I would encourage
endorsing legislation to that effect, but as a tribe I am sure
the Fort Peck Tribes would support that.
But, we would encourage--I am sure that the tribe would
encourage that we would have community meetings with our
membership to explain the options to them and the choice they
have.
Mr. Rehberg. Before I excuse you, I will make the same
statement, and that is that the record will remain open for a
period of time. There may be other questions from other tribal
members.
There is one other gentleman, and I am going to take the
Chairman's prerogative to open up the audience for one
additional individual, representing the Little Shell, so far
not recognized. I am one of the supporters of recognizing the
tribe, and I do want to recognize you, sir. I want to welcome
you. I want to give you a brief moment to make your comment if
you would like.
And this is a little unusual. Normally this would not
happen in Washington, I want you to know that, but I do respect
your position and your attempts to be recognized. I thank you
for taking the time to be with us today if you would like to
say a word or two.
Little Shell Member. Representative Rehberg, may I defer to
the Little Shell representative?
Mr. Rehberg. You may, and please, if she would identify
herself for the record.
Ms. Grant. Name is Dianna Grant, and I am a representative
for the Little Shell Tribe.
And if I may make a comment our Tribal Chairman, John
Sinclair, could not be here due to another commitment, so I am
representing the Little Shell Tribe.
For many years my uncle, Donald Bishop from Lame Deer, had
represented the Little Shell Tribe as the Tribal Chair, and he
had talked about the forgotten people and the landless Indians.
And for the record, I would like to say that I would like
to change that legacy to the Little Shell Tribe; that we are
strong and a continuing tribe that is getting stronger.
I have a statement to read from John Sinclair.
From John Sinclair, Tribal Chairman of Little Shell Tribe,
Chippewa Indians in Montana.
``Please excuse the brevity of this letter. Because this
meeting was called on short notice, and the Little Shell Tribe
was not informed of it all, it gave me little time to research
my response.''
"1. Senate bill 1770 proposes an alternative settlement to
litigation known as Cobell v. Norton. I believe that bypassing
the judicial system through such legislation could set a
dangerous precedent to future claims by Indians.''
"2. There is a $10 billion cost estimate to define Indian
trust funds. Senator Campbell's legislation would hopefully put
these dollars toward the betterment of Indian interests. I
agree that spending billions of dollars to a certain and
unknown benefit to the litigants makes little financial
sense.''
"Therefore, please note that the Little Shell Tribe
withholds judgment on said legislation 1770 that supports the
decision of a majority of the tribes attending this meeting.''
Thank you, Congressman.
Mr. Rehberg. Thank you very much.
Seeing no further business, I guess--
Mr. Shields. The question on the binding arbitration--
Mr. Rehberg. Yes, if you would like to answer that.
Mr. Shields. I don't think the Fort Peck Tribe would
support binding arbitration.
Mr. Main. We wouldn't--Fort Belknap wouldn't either.
Mr. Rehberg. I don't know if Congress would either, so I
was just throwing that out as a point of discussion. I really
don't want to be held to that either.
Again, thank you for coming out today. This meeting is
adjourned.
[Whereupon, at 4 p.m., the Committee was adjourned.]
[The letter submitted for the record by John Sinclair,
Tribal Chairman, Little Shell Tribe of Chippewa Indians of
Montana, follows:]
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