[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

                               __________

               Monday, November 3, 2003, in Mesa, Arizona

                               __________

                           Serial No. 108-77

                               __________

           Printed for the use of the Committee on Resources



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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 Monday, November 3, 2003.........................     1

Statement of Members:
    Flake, Hon. Jeff, a Representative in Congress from the State 
      of Arizona.................................................     5
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     4
    Hayworth, Hon. J.D., a Representative in Congress from the 
      State of Arizona...........................................     2
        Prepared statement of....................................     3
    Renzi, Hon. Rick, a Representative in Congress from the State 
      of Arizona.................................................     5

Statement of Witnesses:
    Berrey, John, Intertribal Monitoring Association of Indian 
      Trust Funds, Albuquerque, New Mexico.......................    11
        Prepared statement of....................................    14
    Chavez, Ervin, Shii Shi Keyah Association, Bloomfield, New 
      Mexico.....................................................    18
        Prepared statement of....................................    20
    Garcia, Calvert, President, Nageezi Chapter, Navajo Nation...    16
        Prepared statement of....................................    17
    Ramos, Joni, President, Salt River Pima-Maricopa Indian 
      Community, Scottsdale, Arizona.............................     6
        Prepared statement of....................................     9

Additional materials supplied:
    McDowell, Nora, Chairwoman, Fort Mojave Tribal Council of 
      Arizona, Statement submitted for the record................    40


OVERSIGHT HEARING ON ``DEVELOPING A LEGISLATIVE SOLUTION TO THE INDIAN 
                          TRUST FUND LAWSUIT''

                              ----------                              


                        Monday, November 3, 2003

                     U.S. House of Representatives

                         Committee on Resources

                             Mesa, Arizona

                              ----------                              

    The Committee met, pursuant to call, at 1:00 p.m., at the 
Salt River Pima-Maricopa Indian Community Lehi Community 
Center, Mesa, Arizona, Hon. J.D. Hayworth [Acting Chairman of 
the Committee] presiding.
    Present: Representatives Hayworth, Flake, Renzi, 
Faleomavaega, and Grijalva.
    Mr. Hayworth. This special field hearing of the Committee 
on Resources will come to order.
    The Committee is meeting today to hear testimony on 
developing a legislative solution to the Indian Trust Fund 
lawsuit.
    A couple of notes important to make here at the outset. 
First of all, we want to thank our Friends of the St. River 
Maricopa Indian community for taking the time to put together 
on rather short notice, and to allow us to utilize these 
beautiful facilities.
    Madam President, we appreciate the new Lehi Community 
Center. We are also appreciative of the number of young people 
who have joined us here today as we bring Congress to the 
people. On so many occasions many of you have traveled to 
Washington, D.C. We joke about that being hardship duty, and it 
is somewhat of a difficulty to come from the southwestern 
United States back to Washington. But we appreciate that very 
much.
    And, indeed, in keeping with the unique nature of today's 
hearing and in gratitude to our hosts here, the Salt River 
Pima-Maricopa Indian community, I am going to recognize Ricardo 
Leonard, who is a Council member here at Salt River, to offer 
the invocation.
    If you would all stand and then follow the invocation and 
join me in the Pledge of Allegiance to the Flag.
    Now, Ricardo, if you would offer the prayer.
    Mr. Leonard. I want to welcome everybody, first of all, to 
Salt River. And thank you very much for coming. Our community 
appreciates this and I think it is a very good beginning of 
good relationship.
    [Piman invocation]
    Mr. Leonard. Creator, come to be here today. I ask for 
strength to go through all these papers and we will speak 
amongst each other. Have us speak in a good way, speak with our 
hearts so that we may be coming to conclusions and work 
together.
    I ask you to bless all the people's families that they are 
away from at this time.
    I ask that you bless the ones that are traveling at this 
time. Bring them here safely. And as they leave this building, 
watch over them.
    Thank you, Creator, for this beautiful day. For the 
beautiful rain that you gave us, the cooling weather.
    I ask that you watch over this community. Help us to 
continue on as two people, two tribes, one strength, one voice.
    Before the little ones, all the elders, give them strength, 
one as they start their lives, others as they are in their 
twilight years. Help them continue on.
    Thank you for all that you have given us: the plants, the 
animals, all the land. Thank you for all this.
    Thank you for everything that has been handed down to us 
from our elders.
    Creator, I thank you again for opening up this alley of 
communication here and having these Congressmen come down here, 
and all these tribal leaders so that we may speak with good 
hearts, with good minds to talk about the things that concern 
us.
    Mr. Hayworth. Thank you very much.
    Now, if you could stand again and please join in the Pledge 
of Allegiance to Our Flag.
    [Pledge of Allegiance.]

   STATEMENT OF THE HON. J.D. HAYWORTH, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Hayworth. Thank you. You may be seated.
    Ladies and gentlemen, again we welcome all of you to this 
field hearing as we bring Congress to the people. And, again, 
especially a word of gratitude to our hosts the Salt River 
Pima-Maricopa Indian community in this beautiful new community 
center.
    The purpose of today's hearing is to receive the views of 
tribal leaders and individual money account holders regarding 
the development of legislation by the U.S. Congress to settle 
matters relating to the Indian Trust Fund lawsuit.
    As we said, we are so honored to be here, the Salt River 
Pima-Maricopa Indian community.
    And as we have noted also, so often in past years Congress 
has held hearings in Washington, D.C., and while the hearings 
are of great value to get on the congressional record the 
perspective of so many different people, they sometimes fail to 
capture the thoughts and views of Americans living outside our 
nation's capital or, certainly, a broad array of you because of 
the difficulty of timing and travel and schedules.
    I know that regardless of political party or affiliation, 
those who join me in this field hearing have come to understand 
during their time in Washington that not all knowledge and 
wisdom emanates from Washington, D.C. And to serve the people, 
it is important to come be among the people.
    Chairman Richard Pombo, of our Resources Committee, has as 
his desire the goal of holding hearings over the days ahead in 
Indian Country to make sure the perspectives of the first 
Americans are not forgotten, but absolutely included. And he, 
and the rest of our Committee, though they are unable to be 
here today certainly appreciate this opportunity to get 
together.
    This hearing is about trying to write legislation to bring 
about fair, just and equitable closure to the hundreds of 
thousands of individual Indians who are victims of more than 
100 years of mismanagement of their trust account records by 
the Federal Government.
    No one can argue that if it were not for the class action 
suit that Eloise Cobell filed almost 8 years ago, the 
Government would never have been forced to confront this 
problem. However, the costs of the litigation continue. No one 
knows exactly what individual Indians will receive satisfaction 
for the injustices they have suffered.
    Few can even agree with a complete historical accounting 
will be achieved in our lifetime, if ever. Meanwhile, hundreds 
of thousands of individual Indians do not know if or when they 
will receive any money they might be owed. Many of these are 
elders, as we heard in the invocation from Ricardo, those in 
the twilight of life should not have to wait any longer.
    We on the Resources Committee are working on a bipartisan 
basis and are determined to identify a way to write a bill that 
brings closure to this terrible episode in American history. We 
want to hear from today's witnesses what such legislation 
should contain.
    Now, I am pleased to be joined right now by an all Arizona 
panel. We look forward to our friend from American Samoa Eni 
Faleomavaega joining us shortly. But we are so pleased to have 
our good friend from southern Arizona who served so capably on 
the Resources Committee, who serves as the Ranking Member of 
the Minority in lieu of Mr. Faleomavaega being here, our good 
friend Raul Grijalva.

Statement of The Honorable J.D. Hayworth, a Representative in Congress 
                       from the State of Arizona

    The purpose of today's hearing is to receive the views of tribal 
leaders and individual Indian money account holders regarding the 
development of legislation by the U.S. Congress to settle matters 
relating to the Indian Trust Fund lawsuit.
    I want to thank the Salt River Pima-Maricopa Indian Community for 
providing the facilities and hosting us today. So often in past years, 
Congress has held its hearings in Washington, D.C. While these hearings 
are valuable to Members of Congress, they sometimes fail to capture the 
thoughts and views of Americans living outside the nation's capital.
    Chairman Pombo wants to hold hearings over the coming years in 
Indian Country. I know he and the rest of the Committee appreciate the 
opportunity to hold one here.
    This hearing is about trying to write legislation to bring about 
fair, just, and equitable closure to the hundreds of thousands of 
individual Indians who are victims of more than 100 years of 
mismanagement of their trust account records by the federal government.
    No one can argue that if it weren't for the class action suit that 
Elouise Cobell filed almost 8 years ago, the government would never 
have been forced to confront this problem.
    However, the costs of the litigation continue. No one knows exactly 
when individual Indians will receive satisfaction for the injustices 
they have suffered. Few can even agree whether a complete historical 
accounting will be achieved in our lifetime, if ever.
    Meanwhile, hundreds of thousands of individual Indians don't know 
if, or when, they will receive any money they might be owed. Many of 
them are elders and should not have to wait any longer.
    We on the Resources Committee working on a bipartisan basis are 
determined to identify a way to write a bill that brings closure to 
this terrible episode in American history. We want to hear from today's 
witnesses what such legislation should contain.
                                 ______
                                 
    Mr. Hayworth. Mr. Grijalva?

   STATEMENT OF THE HON. RAUL GRIJALVA, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Grijalva. Thank you very much.
    And I want to associate myself with the comments that my 
good friend Mr. Hayworth just made.
    Being new to Congress, as a freshman, this issue merits a 
bipartisan solution and a legislative solution that involves a 
process toward settlement and a process that creates a fair 
level playing field for tribes and tribal members.
    We need a bipartisan solution, because quite frankly if we 
look at the history of this issue, it has been bipartisan lack 
of action, bipartisan lack of attention at the administrative 
level, regardless of who the President has been or has not 
been, that brings us to this point.
    The trust funds for Indian tribes and for individual 
members is an ongoing conflict that begs for resolution, 
settlement and today to discuss a process by which we begin to 
craft the bipartisan legislation to lead toward that 
settlement.
    A cornerstone of that process needs to be fairness. A 
cornerstone of that process needs to be disclosure. A 
cornerstone of that process needs to be that we hear from the 
people most directly affected, and that we do not promote 
resolutions that have not been confirmed, have not been 
consented to or at least received advice on from affected 
members and tribal leaders in this country.
    The recent rider in Appropriations is a good example. I 
opposed that rider and it forced many of us to vote against the 
whole appropriations because instead of seeking solution toward 
settlement, it undercuts the effort that we are trying to make 
here today to reach a bipartisan solution.
    And so I am glad to be here. I want to thank my colleagues 
from Arizona, and in particular my good friend Congressman 
Hayworth, Renzi and Flake for their leadership on this issue in 
promoting a bipartisan solution, and more importantly, in 
involving those persons and those members, those individuals 
and those tribes most directly affected by the lack of action 
in Congress and by the lack of action in the administrative 
level.
    So I am glad to be here. And I appreciate very much the 
opportunity to be part of this hearing. Thank you, sir.
    Mr. Hayworth. Thank you very much.
    And now it is my honor to turn to my right, both literally 
and figuratively, the gentleman who represents what used to be 
part of the old Sixth Congressional District, now the new First 
Congressional District where at one point in this political 
subdivision, one out of four in constituents was Native 
American. The gentleman from First District, Congressman Renzi.

   STATEMENT OF THE HON. RICHARD RENZI, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Renzi. Thank you, Chairman.
    I am grateful. Members of the Committee. I am thankful to 
be here today and to learn, especially from our panel of 
experts as well as to hear from those in the audience, 
hopefully, when we have time after this hearing.
    I also want to thank Raul for his comments. We think we are 
right on point.
    We just went through a tough, tough vote last week and 
Congressman Hayworth led the charge on it. But just to show you 
how tough it was, those of us who voted against it were voting 
against $59 million for Navajo healthcare. $2.5 billion for 
wild land fire fighting. And the conference report also 
included $400 million in emergency fire fighting to repay 2003 
borrowed funds.
    Congressman Hayworth and Congressman Flake know that it put 
us in a position where we were having to vote between the needs 
and desires to serve our first Americans, as Congressman 
Hayworth talked about, our Native American population and 
firemen, as well as healthcare money. Almost $60 million for 
healthcare upon Navajo. We had to vote against that to get the 
point where we could have this hearing today that Congressman 
Hayworth was so adamant about, of having in the field and 
chairing in order to get this process back on track.
    And so I want to thank Congressman Hayworth, Chairman Pombo 
for allowing this to take place, allowing this hearing to be 
the first step in letting both parties, Republicans and 
Democrat, who were involved in making that rider on the 
Appropriations such a tough vote last week, sending a signal to 
them that we need to get back on track toward this settlement 
process.
    Thank you, Mr. Chairman.
    Mr. Hayworth. Thank you, Mr. Renzi.
    And now we turn to the gentleman who represents the newly 
constituted Sixth District. In the realignment, we changed a 
few things around in the East Valley. But a gentleman who has 
been steadfast in his stewardship of the Resources Committee, 
the gentleman from the Sixth District of Arizona, Jeff Flake.
    Mr. Flake?

STATEMENT OF THE HON. JEFF FLAKE, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF ARIZONA

    Mr. Flake. Thank you, Congressman Hayworth, Congressman 
Grijalva and Congressman Renzi. I am glad to be here.
    I want to have this chance to listen to the witnesses.
    Those who saw what unfolded last week in Congress saw the 
uglier side of politics. How a rider can be slipped in without 
due process, without hearings being held and without due 
deliberation. Hopefully what you witness today is the better 
side of politics and the better side of Congress.
    We are coming to hear concerns and to get input into the 
drafting of legislation.
    I am glad to be here and look forward to the testimony.
    Thanks.
    Mr. Hayworth. Thank you, Congressman Flake.
    As using the prerogative of the Chair, I would endorse and 
second the comments of my colleagues on both sides of aisle.
    Let this hearing bring out the best in Congress by 
listening directly to the people and coming to the people in 
stark contrast to the behavior we saw last week as some 
staffers on the Appropriations Committee working with some in 
the Administration sought essentially to short circuit our 
legislative process. And that is something that we all decry, 
and something that we will fight against, and it was evidenced 
by the no votes on the Interior Conference Report.
    Our witnesses who join us today include our hostess, the 
President of the Salt River Pima-Maricopa Indian community, I 
want to make sure I get that right because on some designation, 
sometimes some of the words are left out. But I am going to get 
it absolutely right. The Salt River Pima-Maricopa Indian 
community, our friend President Joni Ramos is here.
    Her testimony will be followed by John Berrey, from the 
Intertribal Monitoring Association of Indian Trust Funds out of 
Albuquerque, New Mexico.
    Calvert Garcia, who is the President of the Nageezi Chapter 
of the Navajo Nation. Calvert, we are glad you are here.
    And Ervin Chavez, the Shii Shi Keyah Association of 
Bloomfield, New Mexico.
    We welcome all our witnesses.
    Witnesses, if you would stand with me. It has been our 
custom to administer the oath prior to testimony. And I would 
ask you to stand and raise your right hand.
    [Witnesses sworn.]
    Mr. Hayworth. Let the record show that all witnesses 
answered in the affirmative.
    And, again, we welcome you here for your comments.
    A couple of notes on this. While this will be, perhaps, a 
little less structured than what transpires in Washington, your 
entire statements will be submitted for the record.
    And to facilitate dialog, we like to try to limit comments, 
these opening comments to about 5 minutes. And correspondingly, 
as we go through questions, each member will have 5 minutes to 
respond to questions.
    Now, do not worry. There is no some sort of little charged 
electric button to give you a jolt if the statement exceeds 5 
minutes. But our purpose here is to get your statements on the 
record, and then to really get into some questions that we 
believe will help move us toward a legislative solution.
    So with that, we turn our hostess, President Ramos. Thank 
you very much for coming. Your entire statement is included in 
the record without objection, and we welcome you for your 
testimony this afternoon.

              STATEMENT OF JONI RAMOS, PRESIDENT, 
           SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY

    Ms. Ramos. Thank you.
    Please excuse me. I am a little bit sick here.
    Congressman J.D. Hayworth, Congressman Rick Renzi, members 
of the Committee and distinguished guests, welcome to the Salt 
River Pima-Maricopa Indian Community. We at the Salt River 
Pima-Maricopa Indian Community are pleased to host your House 
Resources field hearing here at the Lehi Community Building. 
The community of Lehi is within the boundary of the Salt River 
Indian Community and its members play an active and vibrant 
role in setting the course of the future of our government.
    First, I want to take a moment to acknowledge Congressman 
Hayworth for your personal effort in attempting to pull a 
legislative rider from the Interior Appropriation's bill that 
extends the time that the Department of Interior must begin the 
process of a historical accounting of trust fund records. Thank 
you very much for that.
    While the efforts of both yourself and the Native American 
Caucus fell short, tribal communities, including Salt River, 
are grateful to have a strong vice in Congress. As a tribal 
leader, I know that your willingness to support this country's 
Native American nations is, sometimes, at personal political 
risk.
    Last week's vote brings to light significance of Indian 
trust reform and the potential for adverse impact on the 
overall trust relationship regardless of each tribes' personal 
perspective on the Cobell v. Norton court proceedings. Apart 
from the number of IIM accounts that a tribe or an individual 
tribal members may have, all tribes are significantly affected 
by the Cobell litigation because it is driving trust reform and 
the Bureau of Indian Affairs reorganization and re-engineering 
efforts.
    Our perspective on developing a legislative solution to the 
Indian trust fund lawsuit is that any proposed settlement must 
include the participation of both parties in a structured 
mediated negotiated process. Also, keep in mind that any 
negotiated settlement must be conducted in good faith and not 
have an adverse impact on tribal governments.
    Our point of view on a legislative solution to the trust 
fund lawsuit is in line with the October 17th letter that was 
sent from Honorable J.D. Hayworth and Honorable Dale Kildee, 
Co-Chairs of the Native American Caucus, to Chairman Taylor and 
Ranking Member Norm Dicks of the House Appropriations 
Committee.
    The letter specifically states: ``We believe both sides are 
willing to sit down to negotiate a fair and expedited 
settlement. With the conclusion of the recent trial, many 
unresolved issues have now been cleared by the court order. For 
instance, it is now clear what the nature and scope of the IIM 
Trust accounting is. This makes a negotiated settlement between 
the parties more timely and easier.''
    In achieving an equitable settlement, the parties must 
adhere to certain basic principles that will protect the 
overall integrity of such negotiations and ensure proper 
resolve for both the plaintiffs and true trust reform. These 
following principles are consistent with those voiced by other 
tribal leaders in Indian Country regarding any proposed 
settlement.
    And the basic principles for the settlement are:
    (1): Do you reopen issues that have already been settled. 
Rather, use the previously settled issues to narrow the scope 
of negotiations. This will be both equitable and efficient and 
it would not override any preceding court decisions;
    (2): Issues already settled by the court should determine 
the legal parameters and act as a foundation for any settlement 
negotiations. For example, the court has ordered full 
accountability by the Department of Interior with relation to 
its trust obligations;
    (3): Any negotiated settlement process should be consistent 
with the Cobell litigation and should distinguish accounting 
issues from trust reform issues.
    For example, the accounting issues involved in the lawsuit 
pertain to demonstrating what happened in the past, while trust 
reform issues deal not only with accounting for trust assets in 
the future but, more importantly, with properly carrying out 
the Federal Government's fiduciary duties;
    (4): There should be full disclosure of material documents 
and facts in any negotiated settlement process.
     For example, the Government must have the burden of 
producing all records from all government agencies and 
contractors pertaining to trust fund claims;
    (5): There should be no preset cap for settlement prior to 
negotiations. A preset cap would be diametrically opposed to 
good faith negotiations. More importantly, a preset cap would 
be tantamount to a violation of the ``takings clause'' of the 
Fifth Amendment of the United States Constitution. The Supreme 
Court made it clear in Babbitt v. Youpee that trust assets, no 
matter how small, cannot be without just compensation;
    (6): Finally, any settlement claims must be recovered from 
the Judgment Fund codified at 31 USC Sec. 1304. Currently, 
Interior appropriations intended for Indian programs is being 
diverted to bear the burden of litigation costs. This is not 
consistent with congressional intent in the appropriation of 
these funds. Use of the Judgment Funds for settlement would 
ensure that Interior appropriations would be used for their 
intended purposes, which is to provide much needed resources to 
underfunded Indian programs.
    The Department of Interior's trust reform and 
reorganization effort has gone far beyond the scope and intent 
of the Cobell litigation and the court's decisions in that 
case. Creating additional layers of government and the shifting 
of organizational boxes and trust duties is not the answer to 
true trust reform. Nor does a forces or a capped settlement 
provide equitable relief to Native peoples who have suffered 
form injustices far too long. The efforts of this Committee and 
its members to seek a fair and just solution to this long-
standing issue are commendable.
    By interacting and communicating at these field hearings 
held in Indian Country, we are reaffirming and ensuring our 
government-to-government relationship in a mutually respectful 
manner. Thank you for the opportunity to speak.
     In closing, we thank you for coming to our home and 
affording us this opportunity to share with you our 
recommendations for any mediated settlement to the Cobell 
litigation. Please extend our appreciation to Chairman Pombo 
for his work as Chairman of the House Resources Committee.
    And also I would like to recognize Councilman Ricardo 
Leonard and Councilman Tony Collins, Mr. Vice President Leonard 
Rivers and several of our students from our Desert Eagle High 
School.
    Thank you very much.
    [The prepared statement of Ms. Ramos follows:]

                Statement of Joni M. Ramos, President, 
               Salt River Pima-Maricopa Indian Community

    Congressman J.D. Hayworth, Congressman Rick Renzi, members of the 
Committee, and distinguished guests, welcome to the Salt River Pima-
Maricopa Indian Community. We at the Salt River Pima-Maricopa Indian 
Community are pleased to host your House Resources field hearing here 
at the Lehi Community Building. The community of Lehi is within the 
boundary of the Salt River Indian Community and its members play an 
active and vibrant role in setting the course of the future for our 
government.
    First, I want to take a moment to acknowledge Congressman Hayworth 
for your personal effort in attempting to pull a legislative rider from 
the Interior Appropriation's bill that extends the time that the 
Department of Interior must begin the process of historical accounting 
of trust fund records.
    While the efforts of both yourself and the Native American Caucus 
fell short, tribal communities, including Salt River, are grateful to 
have a strong voice in Congress. As a tribal leader, I know that your 
willingness to support this country's Native American nations is, 
sometimes, at personal political risk.
    Last week's vote brings to light the significance of Indian trust 
reform and the potential for adverse impact on the overall trust 
relationship regardless of each tribes' personal perspective on the 
Cobell v. Norton court proceedings. Apart from the number of IIM 
accounts that a tribe or individual tribal members may have, all tribes 
are significantly affected by the Cobell litigation because it is 
driving trust reform and the Bureau of Indian Affairs (BIA) 
reorganization and reengineering efforts.
    Our perspective on developing a legislative solution to the Indian 
trust fund lawsuit is that any proposed settlement must include the 
participation of both parties in a structured, mediated, negotiated 
process. Also, keep in mind that any negotiated settlement must be 
conducted in good faith and not have an adverse impact on tribal 
governments.
    Our point of view on a legislative solution to the trust fund 
lawsuit is in line with the October 17th letter that was sent from 
Honorable J.D. Hayworth and Honorable Dale Kildee, Co-Chairs of the 
Native American Caucus to Chairman Taylor and Ranking Member Norm Dicks 
of the House Appropriations Committee. The letter specifically states:
    Quote, ``We believe both sides are willing to sit down to negotiate 
a fair and expedited settlement. With the conclusion of the recent 
trial, many unresolved issues have now been cleared up by the court 
order. For instance, it is now clear what the nature and scope of the 
IIM Trust accounting is. This makes a negotiated settlement between the 
parties more timely and easier.'' End quote.
    In achieving an equitable settlement, the parties must adhere to 
certain basic principles that will protect the overall integrity of 
such negotiations and ensure proper resolve for both the plaintiffs and 
true trust reform. These following principles are consistent with those 
voiced by other tribal leaders in Indian Country regarding any proposed 
settlement solution.

BASIC PRINCIPLES FOR SETTLEMENT
    1.  Do not reopen issues that have already been settled. Rather, 
use the previously settled issues to narrow the scope of negotiations. 
This would be both equitable and efficient, and it would not override 
any preceding court decisions.
    2.  Issues already settled by the court should determine the legal 
parameters and act as a foundation for any settlement negotiations. For 
example, the court has ordered full accountability by the Department of 
Interior with relation to its trust obligations.
    3.  Any negotiated settlement process should be consistent with the 
Cobell litigation and should distinguish accounting issues from trust 
reform issues. For example, the accounting issues involved in the 
lawsuit pertain to demonstrating what happened in the past, while trust 
reform issues deal not only with accounting for trust assets in the 
future but, more importantly, with properly carrying out the federal 
government's fiduciary duties.
    4.  There should be full disclosure of material documents and facts 
in any negotiated settlement process. For example, the government must 
have the burden of producing all records from all government agencies 
and contractors pertaining to the trust fund claims.
    5.  There should be no preset cap for settlement prior to 
negotiations. A preset cap would be diametrically opposed to good faith 
negotiations. More importantly, a preset cap would be tantamount to a 
violation of the ``takings clause'' of the Fifth Amendment of the 
United States Constitution. The Supreme Court made it clear in Babbitt 
v. Youpee that trust assets--no matter how small--cannot be taken 
without just compensation.
    6.  Finally, any settlement claims must be recovered from the 
Judgment Fund codified at 31 U.S.C. Sec. 1304. Currently, Interior 
appropriations intended for Indian programs is being diverted to bear 
the burden of litigation costs. This is not consistent with 
congressional intent in the appropriation of these funds. Use of the 
Judgment Funds for settlement would ensure that Interior appropriations 
would be used for their intended purposes which is to provide much- 
needed resources to underfunded Indian programs.
    The Department of Interior's trust reform and reorganization effort 
has gone far beyond the scope and intent of the Cobell litigation and 
the court's decisions in that case. Creating additional layers of 
government and the shifting of organizational boxes and trust duties is 
not the answer to true trust reform. Nor does a forced or a capped 
settlement provide equitable relief to Native peoples who have suffered 
from injustices for far too long. The efforts of this Committee and its 
members to seek a fair and just solution to this long-standing issue 
are commendable.
    By interacting and communicating at these field hearings held in 
Indian Country, we are reaffirming and ensuring our government-to-
government relationship in a mutually respectful manner. Thank you for 
the opportunity to speak.
    In closing, we thank you for coming to our home and affording us 
this opportunity to share with you our recommendations for any mediated 
settlement to the Cobell litigation. Please extend our appreciation to 
Chairman Pombo for his work as Chairman of the House Resources 
Committee.
                                 ______
                                 
    Mr. Hayworth. Madam President, we thank you.
    To the Council members and, again, to the young people, the 
high school, who are here along with interested observers, we 
welcome you. And thank you for the chance to be here among 
friends at your home.
    And I would be remiss as the Chair if I did not note the 
addition, rather dramatic entrance, of our Ranking Democratic 
Member. Now, we talk about the southwest, and geographically 
you are so far southwest, Eni, you are almost east of where the 
globe is. The Delegate from Samoa, our good friend, Eni 
Faleomavaega.
    Mr. Faleomavaega, thank you for being here today.
    Mr. Faleomavaega. Well, Mr. Chairman, I apologize for being 
a little late. My canoe had a hole in it and there was such a 
tremendous storm on my way up north.
    But I do want to if I may just to offer my commendation, 
and thank you, Mr. Chairman, for your initiative, your 
leadership not only as a Co-Chairman of our Native American 
Indian Congressional Caucus, but for the years that I have had 
the privilege of working with you in dealing with Native 
American issues.
    I think the people of the good State of Arizona are to be 
proud of the fact that through your leadership and interest, 
and sensitivity to the needs of our Native American communities 
throughout the United States, is to be commended.
    I also note my good friend Mr. Flake and Mr. Renzi are also 
here with us, and my hermano here, Mr. Grijalva.
    I am just happy to be here, and thank you for doing this. 
We need this. This is such an important issue for our Native 
American people. I think there has been 100 years of neglect, 
pure negligence if you will, Mr. Chairman. The fact that 2 
point some billion dollars are in question in terms of the 
trust responsibility that was supposed to be vested in the 
Federal Government, specifically the Department of Interior. 
Some 500,000 individual Native American accounts and some 1,300 
tribal accounts are not accounted for; the list goes on and on, 
Mr. Chairman. I sincerely hope that through these series of 
hearings that our Committee will be holding, and I also commend 
Senator Campbell for the initiative that he has taken that, 
hopefully, we will find some kind of a solution to the 
situation that we find ourselves in.
    I certainly want to offer my personal welcome to the 
leaders of our Indian community here in the region.
    I just want to say please take care of my people. There are 
a couple of Samoans that live here in the State of Arizona. 
They tend to play football, Mr. Chairman. I do not know. Our 
first love is rugby, but now we seem to enjoy football because 
they pay more money.
    But I do want to offer my warm welcome to the members of 
our Native American community who are here in attendance.
    I sincerely hope that the substance that we will be putting 
into at this hearing, Mr. Chairman, will be such that our 
Chairman, Mr. Pombo, and Mr. Rahall and all of us, as members 
of the Committee, will truly find a solution to this very 
serious problem.
    And with that, Mr. Chairman, again I thank you for having 
this hearing here in Arizona.
    Mr. Hayworth. And we thank the gentleman from Samoa for his 
statement.
    We will continue the testimony now. We are pleased to call 
on John Berrey, who is representing the Intertribal Monitoring 
Association of Indian Trust Funds.
    Mr. Berrey?

STATEMENT OF JOHN BERREY, INTERTRIBAL MONITORING ASSOCIATION OF 
                       INDIAN TRUST FUNDS

    Mr. Berrey. Well, thank you very much.
    I am also the Chairman of the Quapaw Tribe in Oklahoma.
    And I just want to say thanks to all of you for having 
these field hearings. On behalf of ITMA, we are very pleased 
that we are able to be part of it.
    ITMA is very concerned about the attempts, the three or 
four attempts over time that the Committee that we do not 
believe has jurisdiction over Indian affairs has tried to bring 
some end to this lawsuit. And we just appreciate you all taking 
control over it, and we want to work with you in anyway we can 
as this goes forward.
    We also want to thank some of the people who have long time 
been supporters of American Indians and who stood up for our 
rights last week. In particular, I would like to thank 
Congressman Pombo, Congressman Tom Cole from Oklahoma, my 
Representative Brad Carson from Oklahoma's Second District, 
Congressman Rahall, Congressman Kildee, Congressman Hayworth 
and Congressman Renzi. We appreciate you all standing up. We 
know it meant a lot for you and what you said meant a lot, 
especially in light of what you were voting against.
    We also want to thank the Salt River Pima-Maricopa Indian 
Community. I do not know if people understand this, but the 
Salt River Tribe is recognized throughout Indian County as a 
real leader in self-governance and progressive tribal 
management. And my tribe, for instance, the Quapaw Tribe, looks 
to them for guidance in how to get from where we are at to 
where they are at today. And we are constantly watching them 
and trying to learn from what they do. And we appreciate them 
hosting this meeting.
    ITMA was established for the specific purposing of 
monitoring DOI's reform efforts in the management of the Indian 
trust. The member tribes of ITMA have significant trust lands 
and many of the tribes that are part of ITMA, including the 
ones from Rocky Mountain and Great Plains, those two regions 
alone, hold 68 percent of the tribal trust lands and over 
100,000 IIM accounts. ITMA member tribes, therefore, have a 
great interest in reform efforts and will protect the Indian 
trust; both for tribal governments and IIM accountholders.
    The recent focus on ITMA efforts in the arena of trust 
reform has been to protect tribal sovereign governmental 
rights. Specifically, ITMA has been concerned that the trust 
reforms do not limit tribal government authority over tribal 
trust assets which comprise 89 percent of the total trust.
    We have been actively involved in the last 5 years working 
with a Solicitor's Office in Interior trying to develop some 
methods to solve some of the tribal litigation that is out 
there. There is some 30 pieces of litigation, the tribes that 
are similar to the Cobell lawsuit, and we have been actively 
working with the Solicitor's Office to try to come up with a 
plan for that.
    At ITMA we credit the Cobell lawsuit for focusing the 
national attention on the Department of Interior's serious 
historical mismanagement, however ITMA believes that the time 
has arrived to consider options to resolve this watershed 
litigation. We believe that this contentious and costly 
litigation no longer serves the best interests of individual 
Indian money accountholders and the continuation of this suit 
will result in greater negative impact on DOI's ability to 
deliver trust services to tribes and individual beneficiaries.
    We believe that the current organization efforts of the DOI 
is a response to Cobell litigation and we believe it is 
premature until the completion of the ``To Be'' Trust 
reengineering effort is done and they follow what that model 
guides them to as opposed to reorganization before 
reengineering.
    With that, there is a few things that we think are critical 
in part of the settlement process for ITMA:
    (1): Is the authorizing committees of Congress must remain 
engaged in the development of settlement processes to ensure 
that the parties maintain a commitment to the settlement 
process;
    (2): We believe that a resolution of the Cobell litigation 
must not impact the Interior budget in a manner that will 
deprive tribes of critical governmental operations funding and 
diminishing the services for individual beneficiaries.
    I had a talk with Mr. Carson last week before the vote. And 
they were mentioning things like cannibalization of the Indian 
programs. And that kind of discussion really scares us. It 
makes us very nervous because, as you know, there are a lot of 
tribes out there that are not big gaming tribes that rely on 
the help that they get from the Department of Interior. And 
those threats of the cannibalization creates a lot of fear 
within us for our people;
    (3): We also believe that it must be a voluntary process 
that allows individuals that decide to stay in litigation to 
have that opportunity;
    (4): And we also, the Salt River spoke, we believe that the 
Judgment Fund should be opened up for settlement.
    We believe that the process of settlement for IIM trust 
fund related to claims must be developed with tribal input; 
both from tribal governments and from accountholders. As a 
long-standing watchdog of DOI trust management, ITMA should 
also be involved in the development of settlement processes. As 
with any negotiated settlement of legal claims, the scope and 
specific details of a settlement process need to be developed 
by all parties who will be affected. Tribes participating in 
the development of a settlement mechanism must do so in a 
decisionmaking and meaningful manner.
    You know, as the Chairman of the Quapaw Tribe, I am voted, 
I was elected to represent the individual money accountholders 
within the Quapaw Tribe. And we believe the tribal leadership, 
because of their positions as elected representatives, should 
be part of the discussion.
    And before I close, I would like to take my hat off as ITMA 
representative and just talk to you a minute about as the 
Chairman of the Quapaw Tribe.
    The Quapaw Tribe is one of the 30 tribes that have these 
very complex litigations in court. And we have gone through a 
process of settlement. We have come to a verbal agreement with 
the Department of Justice and the Department of Interior in the 
form of settlement for our own accounting. And the way we got 
there was through a conflict assessment.
    The National Congress of American Indians are supporting 
the idea of a conflict assessment. I have spoken to the 
Administration of the Department of Interior about it. And we 
recommend that you would talk to the U.S. Institute on 
Environmental Conflict Resolution here in Tucson. They are 
funded through the House Resources Committee. They are an 
offshoot of the Udall Foundation.
    A conflict assessment is not the settlement process; it is 
a way to bring reality to the rhetoric. You know, this lawsuit 
is like a big bowl of spaghetti, and it is a way to straighten 
out those noodles and for people to understand more clearly who 
should be at the table, what the issues are and how they should 
be addressed.
    And if you look at a settlement process over a time line, 
if you start first with a conflict assessment, the length of 
the settlement process is shortened quite a bit because it sets 
the table at the beginning and gives everyone a more clear 
opportunity to understand what the issues are.
    And what typically happens after the conflict assessment, a 
neutral party comes in, interviews all of the stakeholders and 
makes a report. And that report gives you options of how the 
settlement process should continue. And if you have multiple 
claims, they might decide this claim should stay in court, this 
claim should be a part of a three judge panel or binding 
arbitration, or this could be mediated. But it gives you the 
opportunity to breakdown all of these myriad of issues and look 
at them with a clear head and a clear vision on how you go 
forward.
    And with NCAI and with a lot of tribal leaders, I think, we 
would really like you to consider working through a conflict 
assessment before you delve into a settlement process.
    I appreciate your time. Thank you.
    [The prepared statement of Mr. Berrey follows:]

      Statement of John Berrey, Chairman, Quapaw Tribe. Oklahoma, 
  representing the Intertribal Monitoring Association on Indian Trust 
                                 Funds

    Honorable members of the House Committee on Resources, I am John 
Berrey, Chairman of the Quapaw Tribe of Oklahoma and I am honored to be 
here today to present testimony on behalf of the Inter-Tribal 
Monitoring Association on Indian Trust Funds (ITMA). The members of 
ITMA commend this Committee for conducting these field hearings on such 
a critical issue to Indian Tribes and their members. ITMA has been 
concerned that several attempts that have been made to address 
settlement of the Cobell lawsuit in the wrong Congressional Committees 
and we completely support the process being managed in this Committee, 
the authorizing Committee, with jurisdiction and authority regarding 
the affairs of Native Americans.
    Further, I would like to express on behalf of ITMA and myself our 
sincere appreciation to those members of the Committee who have long 
supported Native Americans and who most recently stood up and fought 
for the rights of the individual Indians. We thank, in particular, our 
most recent champions, Congressman Pombo, Congressman Tom Cole, my 
representative Congressman Brad Carson from Oklahoma's 2nd 
Congressional District, Congressman Rahall, Congressman Kildee and 
Congressman J.D. Hayworth from this great State of Arizona. I would 
also like to thank our host tribe, the Salt River Pima-Maricopa Indian 
Community, a tribe recognized throughout Indian Country as a leader in 
terms of self-governance and progressive tribal management.
    ITMA was established for the specific purpose of monitoring DOI's 
reform efforts in the management of the Indian trust. The member tribes 
of ITMA are holders of significant trust assets and govern tribes that 
include many IIM account holders. For example, most tribes from the 
Rocky Mountain and Great Plains Regions are members of ITMA and these 
two regions together hold 68% of tribal trust lands and have over 
100,000 IIM account holders. ITMA member Tribes, therefore, have a 
great interest in reform efforts that will protect the Indian trust; 
both for Tribal governments and IIM account holders.
    The recent focus of ITMA efforts in the arena of trust reform has 
been to protect tribal sovereign governmental rights. Specifically, 
ITMA has been concerned that trust reform efforts do not limit Tribal 
government authority over tribal trust assets which comprise 89% of the 
total trust currently overseen by the DOI. Additionally, ITMA has been 
actively involved for the last five years in the discussion and 
development of a settlement process for Tribal claims against the 
United States for trust mismanagement.
    ITMA credits the Cobell lawsuit for focusing national attention on 
the Department of Interior's serious historical mismanagement of the 
American Indian trust. However, ITMA believes that the time has arrived 
to consider options to resolve this watershed litigation. Contentious 
and costly litigation no longer serves the best interests of all IIM 
account holders and the continuation of this suit will likely result in 
a greater negative impact on DOI's ability to deliver needed trust 
services to Tribes and individuals beneficiaries.
    The current reorganization efforts of DOI appear to be directly 
responsive to the Cobell litigation and are premature until the 
completion of the ``To Be'' Trust reengineering effort that is creating 
the model for the future improved delivery of Trust services to Tribes 
and their members. Further, ITMA is concerned that the litigation may 
outlive many IIM account holders who are waiting for financial relief 
from the mismanagement of their accounts.
    Therefore, ITMA supports the development of settlement options 
consistent with the following:
    1.  The authorizing committees of Congress must remain engaged in 
the development of a settlement process to ensure that the parties 
maintain a commitment to settlement options. ITMA member Tribes are 
concerned that the recent action to stay the requirements of Judge 
Lambreth's September 25, 2003, Order in the Cobell litigation, provided 
it passes the Senate, will deter active efforts to work toward 
settlement.
    2.  A resolution of the Cobell litigation must not impact the 
Interior budget in a manner that will deprive Tribes of critical 
governmental operations funding and diminish the services for 
individual beneficiaries. ITMA believes that Tribes should not have to 
suffer for the Department of Interior's historical mismanagement of the 
Indian trust.
    3.  Utilization of a settlement process must be completely 
voluntary for the individual Indian. IIM account holders must have the 
right to choose to utilize a settlement process or to remain part of 
the ongoing litigation. The current legal remedies available to IIM 
account holders must not be affected by settlement legislation.
    4.  Funds to settle with IIM account holders should come from the 
Judgment Fund as provided by 13 U.S.C. 1304 and should not impact 
funding for critical services to Tribes.
    ITMA believes that a process for the settlement of IIM trust fund-
related claims must be developed with tribal input; both from tribal 
governments and from account holders. As a long-standing watchdog of 
DOI trust management, ITMA should also be involved in the development 
of a settlement process. As with any negotiated settlement of legal 
claims, the scope and specific details of a settlement process need to 
be developed by all the parties who will be affected. Tribes 
participating in the development of a settlement mechanism must do so 
in a decisionmaking and meaningful manner. ITMA stands ready to assist 
in a meaningful capacity in the critical efforts.
    Before closing I would like to remove my hat as the representative 
of ITMA and speak as the Chairman of the Quapaw Tribe and ask you to 
embrace the time created by the very inappropriate legislative rider 
and begin a settlement process. There is tremendous support in Indian 
Country to begin a settlement process with a ``conflict assessment.'' A 
``conflict assessment'' can be done in a very short time and provide 
all stakeholders and affected parties a more clear description of the 
underlying issues as well as options to address the plethora of claims 
and replacing rhetoric with reality. I ask that you and your staff 
begin with a discussion with the U.S. Institute for Environmental 
Conflict Resolution in Tucson; The Institute has the experts and the 
ability to provide consultation regarding the process and the Institute 
gets its funding through your Committee. I have asked the Institute to 
provide Chairman Pombo and Vice Chairman Rahall with a letter 
describing how they can help creating a settlement process that can 
work.
    Thank you.

    The Intertribal Monitoring Association on Indian Trust Funds (ITMA) 
is a representative organization of the following 59 federally 
recognized tribes: Central Council of Tlingit & Haida Indian Tribes, 
Kenaitze Indian Tribe, Metlakatla Indian Tribe, Hopi Nation, Tohono 
O'odham Nation, Salt River Pima-Maricopa Indian Community, Fort Bidwell 
Indian Community, Ewiiaapaayp Band of Kumeyaay Indians, Hoopa Valley 
Tribe, Yurok Tribe, Soboba Band of Luiseno Indians, Southern Ute Tribe, 
Coeur D'Alene Tribe, Nez Perce Tribe, Passamaquoddy-Pleasant Point 
Tribe, Penobscot Nation, Lac Vieux Desert Band of Lake Superior 
Chippewa, Sault Ste. Marie Tribe of Chippewa Indians, Grand Portage 
Tribe, Leech Lake Band of Ojibwe, Red Lake Band of Chippewa Indians, 
Blackfeet Tribe, Chippewa Cree Tribe of Rocky Boy, Confederated Salish 
& Kootenai Tribe, Crow Tribe, Fort Belknap Tribes, Fort Peck Tribes, 
Northern Cheyenne Tribe, Winnebago Tribe, Fallon Paiute-Shoshone 
Tribes, Walker River Paiute Tribal Council, Jicarilla Apache Nation, 
Mescalero Apache Tribe, Pueblo of Cochiti, Pueblo of Laguna, Pueblo of 
Sandia, Three Affiliated Tribes of Fort Berthold, Turtle Mountain Band 
of Chippewa, Absentee Shawnee Tribe, Alabama Quassarte Tribe, Cherokee 
Nation, Kaw Nation, Kiowa Tribe of Oklahoma, Iowa Tribe, Muscogee Creek 
Nation, Osage Tribe, Quapaw Tribe, Thlopthlocco Tribal Town, 
Confederated Tribes of Umatilla, Confederate Tribes of Warm Springs, 
Cheyenne River Sioux Tribe, Sisseton-Wahpeton Sioux Tribe, Chehalis 
Tribe, Confederated Tribes of Colville, Quinault Indian Nation, Forest 
County Potawatomi Tribe, Oneida Tribe of Wisconsin, Eastern Shoshone 
Tribe, and the Northern Arapaho Tribe.
                                 ______
                                 
    Mr. Hayworth. And, John, we thank you for your testimony.
    Now we turn to Calvert Garcia, who is President of the 
Navajo and Nageezi Chapter of the Sovereign Navajo Nation.
    President Garcia, welcome and we appreciate your testimony, 
sir.

            STATEMENT OF CALVERT GARCIA, PRESIDENT, 
                 NAGEEZI CHAPTER, NAVAJO NATION

    Mr. Garcia. Thank you, Congressman Hayworth, Congressman 
Flake, Congressman Renzi who represents the majority of the 
Navajo Nation in the northeast Arizona. So welcome. And the 
other two gentlemen with the Resource Committee.
    Representing as the elected official up in the northeast 
quarter of Navajo Nation, and I am an elected official. I also 
represent Navajo. President Shirley has given a task to 
represent Navajo Nation down here. So I appreciate being here.
    Like I said, my name is Calvert Garcia. And I represent the 
Navajo people on the northeast edge of Navajo Nation. I am also 
an Indian allottee and am very concerned about the legislation 
being proposed.
    Thank you for the invitation and opportunity to provide my 
views to the Committee.
    Most of the Navajo Indian allottees are in the northeast 
section of the Navajo Nation. Currently there are 5,200 Navajo 
allottees who have individual Indian Monies Account and receive 
monthly royalty payment off their Indian Allotment Land. Most 
of the IIM accountholders receive monthly royalty payments from 
oil and gas production off their Indian allotment land from the 
Bureau of Indian Affairs.
    When Judge Royce Lamberth disconnected the Internet service 
in December of 2001, it had a devastating impact on our 
accountholders, leaving with no financial resource. The 
majority of the IIM accountholders are elderly and rely totally 
on their monthly royalty payment to meet their basic needs. 
Immediately upon the disruption of IIM payments, my neighboring 
community leaders coordinated an effort with myself to request 
financial assistance from the Navajo Nation Council and Navajo 
Nation President for temporary relief. The Navajo Nation 
President and Council appropriated $535,000 to assist IIM 
accountholders for the northeast section of accountholders.
    Many of the individual Indian accountholders are aware that 
the Bureau of Indian Affairs and the U.S. Government have 
mismanaged their trust funds for many years. The allottees in 
the Huerfano and Nageezi communities agree that it is important 
for Congress to explore options in resolving the Cobell Trust 
Fund litigation. Although resolution is needed, we cannot adapt 
a quick fix solution without understanding why it has taken the 
government over 100 years to address their gross mismanagement. 
The Navajo allottees are demanding that government account for 
the millions of acres of land and account to proper 
beneficiaries, which will also identify the funds it received 
and invested from these leases. Since the inception of the 
Cobell lawsuit, the courts have found the government breached 
its trust responsibilities to the allottees, since the creation 
of Indian Trust Fund in 1887. As accountholders, we know the 
Federal Government has abused our trust funds and provided 
injustices to many of our tribal and individual Indian Monies 
accountholders and beneficiaries.
    Most recently, your colleagues in the Senate have 
introduced Senate Bill 1770, which is called ``Indian Money 
Account Claim Satisfaction Act of 2003.'' The establishment of 
the foundation is foremost important in settling this case. 
This will establish that Indian Money Account Claim 
Satisfaction, which would study the records, develop an 
accounting method and determine the payment of accountholders. 
The following method will be a way to address the history 
determination of payments and nonpayments, and enable 
accountholders to accept the method and dismiss themselves from 
the Cobell lawsuit.
    If the accountholders do not agree with the IMACS, then the 
allottees and accountholders would continue to participate with 
the Cobell lawsuit. It is important to many accountholders that 
settling the Cobell lawsuit should include damages for past 
mismanagement and implementing reforms to protect our trust 
assets for the future.
    The Navajo allottees also have serious concerns over the 
current Department of Interior's Reorganization efforts. They 
have created many wrongdoings and mishandling billions of 
Indian Trust dollars. Another option is to allow Navajo 
allottees to utilize the Indian Self Determination by 
contracting and administering funds directly to accountholders. 
The contracting of self-determination would ensure the 
allottees' ability to effectively manage without being 
obstructed by the Interior Department.
    Proper historical accounting over the last 115 years and 
past damages would be a crucial part of any proposed 
settlement. The Cobell v. Interior Department lawsuit can be 
settled, but the United States first must participate in 
settlement talks with honesty and integrity, although the 
legislation being proposed will not please everyone.
    Also of importance is to establish a trust account within 
the Treasury that would be available to the trust 
beneficiaries. We recommend that the funds allocated to the 
trust account not come from the program account of the 
Department of the Interior. Remember, the government's misdeeds 
should not impede on appropriated Indian program funds.
    And I thank you.
    [The prepared statement of Mr. Garcia follows:]

          Statement of Calvert Garcia, President & Allottee, 
                     Nageezi (N.M.) Navajo Indians

    Greetings Chairman Pombo, Ranking Minority Member Rahall, and 
Members of the Resources Committee. Welcome to Mesa, Arizona. My name 
is Calvert Garcia and I serve as a Chapter President in Nageezi, New 
Mexico, which is located on the Eastern Edge of the Great Navajo 
Nation. I am also an Indian Allottee and am very concerned about the 
legislation being proposed. Thank you for the invitation and 
opportunity to provide my views to your Committee.
    Most of the Navajo Indian Allottees are in the North East section 
of the Navajo Nation. Currently there are 5,200 Navajo Allottees who 
have Individual Indian Monies (IIM) Accounts and receive royalty 
payments off their Indian Allotment Land. Most of the IIM Account 
holders receive monthly royalty payments from oil and gas production 
off their Indian Allotment land from the Bureau of Indian Affairs.
    When Judge Royce Lamberth disconnected the Internet service in 
December of 2001, it had a devastating impact on our account holders, 
leaving them with no financial resources. The majority of the IIM 
account holders is elderly and relies totally on their royalty 
payments. Immediately upon the disruption of IIM payments, my 
neighboring community leaders coordinated an emergency financial 
assistance from the Navajo Nation Council and Navajo Nation President 
for temporary relief. The Navajo Nation President and Council 
appropriated $535,000.00 to assist IIM Account holders.
    Many of the Individual Indian Account (IIM) holders are aware that 
the Bureau of Indian Affairs (BIA) and the United States Government 
have mismanaged their trust funds. The- Allottees in the Huerfano and 
Nageezi communities agree that it is important for Congress to explore 
options in resolving the Cobell Trust Fund litigation. Although 
resolution is needed, we cannot adapt a ``quick fix'' solution without 
understanding why it has taken the government over 100 years to address 
their gross mismanagement. The Navajo Allottees are demanding the 
government to account for the millions of acres of land and account to 
proper beneficiaries, which will also identify the funds it received 
and invested from leases. Since the inception of the Cobell Lawsuit, 
the courts have found the government breached its trust 
responsibilities to the Allottees, since the creation of ``Individual 
Indian Trust in 1887.'' As account holders, we know the federal 
government has abused our trust funds and provided injustices to many 
of our tribal and Individual Indian Monies (IIM) account holders and 
beneficiaries.
    Most recently, your colleagues in the Senate have introduced Senate 
Bill 1770, which is called, ``Indian Money Account Claim Satisfaction 
Act of 2003.'' The establishment of the foundation is foremost 
important. This will establish the Indian Money Account Claim 
Satisfaction (IMACS), which would study the records, develop an 
accounting method, and determine the payment of account holders. The 
following method would be a way to address the history determination of 
payments and nonpayments, and enable account holders to accept the 
method and dismiss themselves from the Cobell Lawsuit.
    If the account holders do not agree with the IMACS, then the 
allottee account holders would continue to participate with the Cobell 
Lawsuit. It is also important to many account holders that settling the 
Cobell Lawsuit should include damages for past mismanagement and 
implementing reforms to protect our trust assets for the future. The 
Navajo Allottees also have serious concerns on the current Department 
of Interior's Reorganization effort, which has created many wrongdoings 
and the mishandling billions of Indian Trust dollars. Another option is 
to allow Navajo Allottees to utilize the Indian Self Determination by 
contracting and administering funds directly to account holders. The 
contracting of Self Determination would ensure the Allottees' ability 
to effectively manage without being obstructed by the Interior 
Department.
    Proper Historical Accounting over the last one hundred fifteen 
(115) years and past damages would be a crucial part of any proposed 
settlement. The Cobell v. Department lawsuit can be settled, but the 
United States Government first must participate in settlement talks 
with honesty and integrity, although the legislation being proposed 
will not please everyone. Also of importance is to establish a Trust 
Account within the Treasury that would be available to the trust 
beneficiaries. We recommend that the Funds allocated to the Trust 
Account not come from the program account of the Department of the 
Interior. Remember the government's misdeeds should not impede on 
appropriated Indian program funds.
    Again, I thank the Committee for its work on this issue and would 
welcome the opportunity to any questions that you might have.
                                 ______
                                 
    Mr. Hayworth. We thank you, President Garcia.
    Now we turn to Ervin Chavez from the Shii Shi Keyah 
Association in Bloomfield, New Mexico.
    Mr. Chavez?

     STATEMENT OF ERVIN CHAVEZ, SHII SHI KEYAH ASSOCIATION

    Mr. Chavez. Thank you, Congressman Hayworth.
    Mr. Chairman, members of the Committee and invited guests. 
My name is Ervin Chavez from Bloomfield, New Mexico. My 
telephone number is 505-320-0153.
    I appear before you not only as an individual Navajo 
allottee, part of the class in the case of Cobell v. Norton, 
but also the President of the Shii Shi Keyah Association of 
Navajo allottees.
    This Navajo word translates into English meaning ``This 
land, my land.''
    Our association has been working with an amount, some 
35,000 Navajo allottees in the four corner regions of New 
Mexico, Arizona and Utah, for the past 19 years.
    I will be summarizing my 8 page written comments as 
instructed by the Committee.
    Let me start by saying in the strongest words possible I 
urge you soundly to reject S. 1770. It is unconscionable fraud 
on Indian allottees as well as those well-intentioned Senators 
who were duped into sponsoring it.
    My written report goes into detail why I make this comment.
    I also want to say that Shii Shi Keyah Association fully 
supports the difficult and important work that is being done by 
Eloise Cobell and her attorneys representing her, and us, and 
Honorable Joyce Lamberth. Again, we strongly oppose S. 1770. We 
feel that this will exacerbate rather than expedite resolution 
to the underlying claims and issues.
    Mr. Chairman, I want to make highlights of two issues out 
of my written statement.
    First, equal treatment by Congress. The wholesale failure 
of the United States as a trustee for Indian property and money 
is a national disgrace. The continued failure of the United 
States to live up to it commitments and account for Indian 
monies and property, even after Congress has mandated it. The 
current handling of the IIM mess and the manner in which the 
government is handling the Cobell case is nothing less than a 
national disgrace.
    Due process and equal access to the courts of this nation 
is not something that was historically provided to Indians and 
Indian tribes. S. 1770 goes squarely back to that unsavory 
past. On that basis alone it should be abandoned.
    Second, general accepted accounting principles and auditing 
standards. Why should there be a reduced standard of 
performance to account. If the standard being proposed is not 
adequate for rich white people in this country, then why should 
it be adequate for Indians who happen to be poor but for what 
little money they have, all the more, is important for their 
substance.
    Members of this Committee, you must answer this question: 
Why the different treatment of Indian monies and trust 
property? If the proposed different standard is not acceptable 
for your children, your grandmother, then why should it be 
acceptable for us.
    Nothing less than general accepted principles of accounting 
and standards of audit are acceptable. All trust assets the use 
of or disposition of which should result in trust fund must be 
accurately and completely accounted for. S. 1770 does not do 
that. Therefore, it is unacceptable.
    In conclusion, we recommend the following:
    The irrefutable point here is that the amount in an IIM 
account has nothing in common with how much should have been 
deposited, and therefore it follows that the trustee must 
include in his accurate and complete accounting all sums which 
have been properly paid under the lease. S. 1770 does not do 
this;
    (2): S. 1770 predicates the information flow to come from 
the Secretary. Members of this Committee cannot countenance 
that. For the reasons just mentioned, Interior has been engaged 
in fraudulent deception of Congress for decades. The same 
people at the upper managerial level of the Interior are going 
to provide this fraudulent data again. You cannot allow this;
    (3): The time periods in S. 1770 are woefully inadequate to 
do anything meaningful to develop and present a proper 
information to support the claims;
    (4): All experts on the so-called task force must receive 
instruction in the meaning of trust responsibility from the 
Indian perspective of enforcement and not from the government's 
perspective of evasion;
    And last, Senate bill 1770 provides no representative 
participation as a matter of rights for Indian accountholders 
whose rights are to be affected. Does anyone doubt the outcome? 
The amounts provided are grossly inadequate given what needs to 
be done for an honest accounting. The participants are the 
perpetrators. Committee members, on behalf of all allottees, I 
ask that this bill be soundly rejected. No amount of tweaking 
can alter the conclusion.
    Thank you.
    I have the written comments for submittal.
    And I want to say this after saying that, I do not want 
Congressmen sitting before me to take any of my comments 
personally. Because we have for the past 20 years been dealing 
with the Department of Interior and the BIA. And again, they 
are coming out and they are coming at us, as the way a Navajo 
would put it, with different sheep skin. The same sheep coming 
at us again with a different sheep skin. And it is very 
frustrating.
    For the record, I am sure that you probably already have 
the position from the Navajo Nation Intercouncil Committee, but 
on October 22nd, just a few weeks ago, this Committee passed 
resolutions supporting the Shii Shi Keyah Association's 
opposing 1770. And it is right here.
    [The prepared statement of Mr. Chavez follows:]

    Statement of Ervin Chavez, President, Shii Shi Keyah Association

INTRODUCTION
    Mr. Chairman, members of the Committee, staff, and invited guests, 
my name is Ervin Chavez, P.O. Box 2404, Bloomfield, New Mexico, 87413, 
telephone number 505.320.0153. I appear before you not only as an 
individual Navajo Allottee, part of the class represented in the case 
of Cobell v. Norton., now pending in the United States District Court 
for the District of Columbia and in the United States Court of Appeals 
for the D.C. Circuit, but also as the President of the Shii Shi Keyah 
Association of Navajo Allottees (``SSKA''). In the strongest words 
possible I urge you to soundly reject S. 1770. It is an unconscionable 
fraud on Indian Allottees and on those well-intentioned Senators who 
were duped into sponsoring it.
    I will explain further our unique interest and perspective on these 
matters in some detail, but first permit me to make one thing very 
clear: We support fully the difficult and important work that is being 
done on our behalf by Eloise Cobell and the attorneys representing her, 
and us, before the Honorable Royce Lamberth..
    Further, I have read the substance of their views expressed on S. 
1770 and I am also in support of the positions articulated. 
Notwithstanding the best of intentions that may have motivated this 
bill, S. 1770, it is ill-conceived and will exacerbate rather than 
expedite resolution of the underlying claims and issues.

SHII SHI KEYAH ASSOCIATION HISTORY
    The SSKA was formed by very, very poor Navajo Allottees in 1984 as 
an unincorporated association of Navajo Allottees who had oil and gas 
leases on their allotments. It has been continuously involved in the 
issues of the proper performance by the United States as trustee for 
the land, resources and money from those resources ever since. I have 
been President of the SSKA continuously since 1986.
    Shii Shi Keyah is a transliteration of a phrase in the Navajo 
language which means, ``this land, our land.'' The phrases connotes how 
dearly and reverentially the Navajo People, the Dine, view their land. 
Our lands are located in an area that is commonly referred to as the 
Four Corners Region, comprised of Northwest New Mexico, Northeast 
Arizona, and Southeastern Utah. There are approximately 35,000 Navajo 
Allottees with varying degrees of interest in the allotments in this 
area. I am a typical Navajo Allottee in the sense of how I came into 
ownership of my allotted interest but I am not typical in the sense of 
my education and work experience. However, it is that very education 
and work experience that permits me to bring to you the problems faced 
by the vast, vast number of my people who are not educated, who don't 
speak or read the English language, and who are amongst the very 
poorest people in this country ... many entire families subsisting on 
the $80 to $100 a month that they may receive through their IIM 
accounts from their oil and gas royalties.
    Unlike so many SSKA members, I was blessed with parents who, 
despite having ten children, managed to provide us with an education. I 
am very proud of their accomplishments in providing us children with 
the education they never had. We lost my mother to cancer in 1996. My 
father, thankfully, is still with us. He is 96 years old.
    I have an Associate of Arts Degree in Business Administration and 
Public Administration. And, in addition to being President of the SSKA 
for the past seventeen years, I have also served my community in other 
capacities. I have served as an elected official within the Navajo 
Nation from 1977 to 1996 as the Huerfano Chapter Secretary, Vice 
President and President. I have also served in the elected position of 
New Mexico county government as a San Juan County Commissioner for 
several terms into the present.
    My understanding of many of the important issues facing Indian 
Allottees who derive their income from oil and gas production on their 
lands comes from first-hand knowledge. From 1974-94 I worked for the El 
Paso Natural Gas Company, the largest domestic producer of natural gas 
during that period. I suffered severe burns from a natural gas 
explosion that occurred while on the job for El Paso as a result of the 
failure of some to follow proper procedures. I know first hand of the 
need for the activities of those who lease Indian lands to be under 
proper supervision ... including all of those things that go into 
proper computation and payment of royalties that are due and that when 
deposited into the IIM accounts become the so-called IIM Trust Account 
Balances.

EQUAL TREATMENT BY CONGRESS
    I would like to call the Committee's attention to some matters 
perhaps not covered by others but that are a prime example of the 
extraordinary inadequacy of S. 1770 that relate to the proper 
accounting for the ``upstream of the first deposit'' issues, that is, 
the proper and complete accounting for the trust property that is 
disposed of to produce trust funds deposited into our HM accounts. But 
before doing that I wish to first call to the Committee's attention the 
disparate Congressional treatment being afforded our trust assets and 
IIM money compared to that afforded to other citizens when their money 
is at risk or in jeopardy or lost.
    During the Savings and Loan scandal of the 1980's the United States 
was acting in the position of a guarantor through its federally created 
corporations that insured deposits in the country's Savings & Loan 
Companies. Even though some had deposits that exceeded the insured 
limit the Congress of the United States made sure that not one 
depositor lost money ... all were made whole. Please keep in mind that 
the S&L failures were not the result of action or failure to act of any 
federal institution or agency. The failures, frauds, etc., were 
perpetrated by private individuals and their corporate shields. But the 
United States stepped in as a guarantor and made all depositors whole. 
Why? Because faith in the banking system (including the S&Ls) of the 
United States was, and is, important.
    Similarly, this past Thursday, October 30, 2003, a front-page 
article in The Wall Street Journal disclosed a Fannie Mae accounting 
error to the tune of $1.1 billion. Although this is a government-
chartered company it is so big that many investors fear that there will 
be a negative impact on the entire country's housing market and 
industry. ``[T]he episode instantly reinforced fears that Fannie Mae 
and its smaller sibling Freddie Mac lack the necessary skills to 
operate their massive and complex businesses, which some investors, 
rivals and political critics worry could pose risk to the nation's 
financial system if not properly managed. Though the companies are not 
formally backed by a government guarantee, investors generally assume 
the government would step in to bail the companies out in an emergency, 
given their critical importance to the housing and broader financial 
markets.''
    And, no doubt, the speculation that the government would bail 
investors out would occur if the worst were to come to pass. Why? 
Because there is a national interest at stake. And like the S&L 
debacle, it will not matter if the amounts are in the billions of 
dollars. As many on this Committee will no doubt recall, the initial 
amount, right out of the box, that Congress saw fit to appropriate in 
the S&L mess was $88 billion. Just a few hundreds of millions more than 
the recently requested tab for Iraq. Why? Again the answer lies in the 
perception of National Interest.
    The wholesale failure of the United States as a trustee for Indian 
property and money is a National Disgrace. It is a failure of the 
United States to live up to its commitments not just to the Indians 
whose money and property are either lost, stolen, or otherwise 
unaccounted for, but it is a failure of the government to do what 
Congress after Congress has mandated it to do. National Integrity must 
account for something. The current handling of the EM mess and the 
manner in which the government is handling the Cobell case is nothing 
less than a National Disgrace.
    Do any in this room really think that those orchestrating this 
debacle at the Department of Interior should be rewarded for continued 
acts of deception and fraud? There are those bankers on Wall Street now 
that have joined their co-conspirators in the perp walks and criminal 
trials for their fraudulent practices at Enron, Tyco, etc.
    Those at Interior who have been responsible for similar criminally 
fraudulent practices regarding Indian money, EM accounts, and our trust 
resources should be similarly prosecuted. Instead we have before us S. 
1770. What do we make of this? Let us examine S. 1770 in a little 
detail.

S. 1770
    Due Process and the Equal Access to the Courts of this Nation is 
not something that was historically provided to Indians and Indian 
Tribes. This Bill goes squarely back to that unsavory past. On that 
basis alone it should be abandoned.
    In the hurried effort to put this Bill over on the Congress, those 
really responsible for it, and by that I don't mean the distinguished 
and well-intentioned sponsors of the bill, have defrauded the sponsors 
and the Senate in, among other things, Section 2 entitled Findings. It 
is there asserted that hundreds of millions of dollars federal funds 
have been expended in the eight years of the Cobell litigation. That is 
an absurdity. Whoever put forth that figure should be required to 
submit the evidence under oath and be subject to prosecution if false.

THE INDIAN CLAIMS COMMISSION ACT AND ITS IRREFUTABLE LESSONS
    The Indian Claims Commission Act of 1946 was the last special 
legislation that attempted to set the equities straight between Indian 
Tribes and the United States with respect to any and all damages and 
losses caused by the government in its dealings with Tribes even if the 
basis of the claims were simply that the United States did not act 
``fairly and honorably.'' This section in that Act came to be known as 
the ``fair and honorable dealings'' clause. And yet when Tribe after 
Tribe tried to avail itself of the opportunity to present their claims 
they met with technical defense after technical defense and some of the 
worst bad faith litigation tactics that the courts of this country have 
ever countenanced. All of this is thoroughly documented in Professor 
Nell Jessup Newton's law review article ``In the Courts of the 
Conqueror.''
    The lessons that anyone even marginally familiar with that history 
should have learned is that a special forum (there the Indian Claims 
Commission, and now the proposed Indian Money Account Claim 
Satisfaction Task Force) will result in ad hoc rules and a defense by 
the Attorney General of the United States that only seeks to defeat 
claims as he or she will perceive that to be their duty under the law 
empowering them to defend. This means, as history has shown, (Judge 
Lamberth is by no means the first or only federal judge to find that 
the attorneys representing the United States in Indian claims cases 
have engaged in unethical and unlawful practices before the courts) 
that ``by any means necessary'' will continue to be the underlying 
principle (if it can even be called that) of defending the claims 
before the new entity contemplated by S. 1770.

GENERALLY ACCEPTED ACCOUNTING PRINCIPLES AND AUDITING STANDARDS ARE 
        MANDATORY
    The continued, wildly inaccurate suggestions of how much money it 
would take to do a proper accounting owed to the Indian trust 
beneficiaries is just as misleading as the claims of what the 
government has spent so far in defending Cobell.
    Section 3 and the term ``accounting'' are absolutely unacceptable. 
In addition to the reasons well-articulated in the testimony submitted 
by Keith Harper of NARF on behalf of the Cobell plaintiffs, Indian 
money and assets are just as good and valuable as anyone else's. Why 
should there be a reduced standard of performance of the duty to 
account? If the standard being proposed is not adequate for rich white 
people in this country then why should it be adequate for Indians who 
happen to be poor but for whom what little money they may have is all 
the more important for their very subsistence?
    Members of this Committee, you must answer this question. Why the 
different treatment of Indian Money and Indian trust property? If the 
proposed different standard is not acceptable for your children, or 
your grandmother, then why should it be acceptable for ours?
    Nothing less than the generally accepted principles of accounting 
and standards of auditing are acceptable. All trust assets, the use or 
disposition which should result in trust funds must be accurately and 
completely accounted for. S. 1770 does not do that. It is, therefore, 
unacceptable.

HISTORIC FAILURE TO PROTECT INDIAN TRUST ASSETS CANNOT BE GIVEN A 
        CONGRESSIONAL SEAL OF APPROVAL AND CLOSURE THAT S. 1770 WOULD 
        EFFECT
    The United States, on its own, created the system of trust that its 
Executive Branch employees have bungled the management of. This imposed 
trust system is not something Indians asked for. When the United States 
fails to properly collect royalties due on our oil and gas leases, 
there is an improper amount deposited into our IIM accounts. Merely 
trying to account for the amounts deposited is unacceptable. The United 
States has a documented history of failing to protect our oil and gas 
property from theft.
    Members of this Committee are certainly aware of the Commission on 
Fiscal Accountability of the Nation's Energy Resources (the ``Linowes 
Commission'') which in 1982 documented for Congress and the President 
just how thoroughly irresponsible the United States had been in 
managing and accounting for the Nation's and Indian energy resources 
(oil and gas, coal, uranium, etc.). The Congress responded by enacting 
the Federal Oil and Gas Royalty Management Act of 1982 (``FOGRMA'') 
which was supposed to be therapeutic of the problems identified by the 
Linowes Commission.
    There are now over 132 studies of the Inspector General's Office, 
the General Accounting Office, Committees of the House and Senate, 
etc., that have since documented the failures of the Department of 
Interior to effect the changes identified by the Linowes Commission and 
sought to be rectified by the Congress in its legislation. The same 
people at Interior responsible for this continuous record of failure 
(and attempted fraud to hide the failure) are at it again with getting 
S. 1770 introduced and attempting to defraud this Congress, the Courts, 
and Indian people once again.
    Indian oil and gas production is the single largest trust resource 
that is used or disposed of that results in trust funds. The estimates 
in the government's own records indicate that between 1973 and 2000 
approximately $3.75 billion was received by the U.S. on behalf of 
Tribes and Allottees for their producing oil and gas leases. This is 
not an insignificant amount of money. And yet it has never been 
properly accounted for.

THE DEPARTMENT OF INTERIOR'S MINERALS MANAGEMENT SERVICE HAS A 
        CONTINUED HISTORY OF INCOMPETENCE AND DEFRAUDING CONGRESS, 
        COURTS, AND THE INDIAN TRUST BENEFICIARIES
    In 1984 the SSKA filed suit against the Secretary of Interior in 
the United States District Court for the District of New Mexico, Hon. 
E.L. Mechem presiding, to attempt to get the Secretary to perform his 
duties under FOGRMA. The government entered into a Consent Decree in 
March of 1989 whereby it promised to undertake certain reforms. 
Regrettably, the United States never revealed many of its crucial 
shortcomings in its practices and systems and thus was effectively able 
to defraud us and the court.
    For example, in 1993 we were presented with a computer run from the 
Minerals Management Service of the Department of Interior (``MMS'') 
which purported to be ``clean'' data and a compilation of all oil and 
gas sales for certain periods of time. The reason for the importance of 
this data is that it was used under the MMS Valuation Regulations 
effective March 1, 1988, to determine so-called Major Portion prices. 
(Nearly all tribal and allotted oil and gas leases for the period of 
1962-2000 used BIA Lease Form No. 5-157 which provides in paragraph 
3(c) that the Secretary is to insure that royalties are paid based on 
the value of the production and not simply the price claimed to have 
been received by the lessee. To determine this the Secretary is to 
examine prices for like or similar production, contemporaneous in time 
and location and to insure that the royalties are based on the highest 
prices paid or offered for the Major Portion of such production. The 
Secretary NEVER performed this duty until his attempts to do so began 
about 4 years ago.)
    We examined that data which consisted of approximately 26,000 lines 
of gas sales and based upon very, very broad criteria of acceptability 
for accuracy of the quality column (which for gas is the Btu column) 
and we were able to determine that over 43% of the lines were clearly 
erroneous. For example, there were lines that claimed that zero Btu 
quality gas (in other words, non combustible air) sold for over 
$660,000 per thousand cubic feet. The normal price range one might 
expect of 1000Btu gas would be in the range of $1 to $7. This data run 
is not atypical. Rather it is the established typical fact that the 
system used contains absolutely worthless data. If any on this 
Committee doubt this we would love to show you the information and 
explain how MMS had deceived Congress for decades of its incompetence 
in this area. MMS by the way is the second largest collector of federal 
revenues after the IRS and it uses the same systems with the same gross 
deficiencies on federal leases as it does on Indian leases.

CONCLUSION AND RECOMMENDATION
    The irrefutable point here is that the amount in an 1IM account may 
have nothing in common with how much should have been deposited and it 
therefore follows that the trustee must include in his accurate and 
complete accounting all sums which should have properly been paid under 
the leases. S. 1770 does not do this.
    S. 1770 predicates the information flow to come from the Secretary. 
Members of this Committee cannot countenance that. For the reasons just 
mentioned, Interior has been engaged in the fraudulent deception of 
Congress for decades. The same people at the upper managerial level of 
Interior who perpetrated that fraud are going to provide the same 
fraudulent data. It is unconscionable. You cannot allow it.
    The time periods in S. 1770 are woefully inadequate to do anything 
meaningful to develop and present the proper information in support of 
the claims.
    All experts on the so-called task force must receive instruction in 
the meaning of the trust responsibility from the Indian perspective of 
enforcement and not from the government's perspective of evasion.
    S. 1770 provides no representative participation as a matter of 
right for the Indian account holders whose rights are to be affected. 
The participants are the perpetrators. Does anyone doubt the outcome?
    The amounts provided for are grossly inadequate given what needs to 
be done for an honest accounting. Committee Members, on behalf of the 
all allottees, I ask that this Bill be soundly rejected for the fraud 
that it is. No amount of tweaking can alter the conclusion.
                                 ______
                                 
    Mr. Hayworth.
    Mr. Chavez, we thank you. And those documents, your written 
statement if you would like to have that resolution submitted 
for the record, without objection, it will be included as part 
of the public record. We thank you for that.
    Mr. Chavez. Thank you.
    Mr. Hayworth. The Chair would note in listening to the 
testimony of Mr. Chavez, I was reminded of one of my visits to 
the Navajo Nation when a tribal elder at a townhall meeting 
said ``Congressman, you know what BIA stands for, do you not?'' 
And I said ``Well, what do you mean?'' He says, ``Well forget 
Bureau of Indian Affairs. We kind of hold the opinion it stands 
for Bossing Indians Around.'' And perhaps it was somewhat 
injudicious, but it deals with part of the problems and part of 
the challenges we have faced.
    And, again, we take no personal umbrage of the 
frustrations, believe me. Based on Tuesday night's, many of us 
share the same frustrations as we have been dealing with 
Administrations of both parties. It is reflected in the 
judgment of Judge Lamberth. And it is a challenge we are 
dealing with.
    Again, to all four, we thank you for the testimony.
    And using, again, the prerogative of the Chair and mindful 
of flight schedules, I know that my two junior colleagues from 
Arizona may have to catch flights, so I would like to turn 
first to the gentleman from the First District now following 
with our friend from southern Arizona, Mr. Renzi.
    Mr. Renzi. Thank you, Mr. Chairman. And thank you for 
allowing me to go first. I do have a flight and I am thankful.
    I have read all the testimony this afternoon. And, Mr. 
Berrey, I am very taken by your--not just your comments, by the 
fact that you offer resolution, a fix, in the form of your 
support for conflict assessment using the Udall processes. The 
people down in Tucson.
    Can you help me understand that a little bit more, please, 
just quickly in the time that I have. And particularly the 
opposition to it, which is that it could add a lot of cost.
    Mr. Berrey. Well, first of all, I think it is cost 
effective. It is--our quesstimates are for about $300,000 you 
could do a conflict assessment. And we believe what that will 
do is shorten the time line of what the settlement discussions 
will do, because it will clearly delineate all of the issues 
and claims, and it will give you all a better vision of what is 
going on.
    Actually, in the audience is a lady by the name of Sara 
Palmer from the Institute that I asked to be here if she could 
have the opportunity to speak with you after the hearing.
    Mr. Renzi. One of the pressure points that was put on 
particularly Congressman Hayworth, Congressman Flake, myself, 
as well the other gentlemen here today during the vote on 
Tuesday night was, and Ms. Ramos you might be able to help 
address this because I think you alluded to it in your 
comments, was that the Government of the United States has 
spent millions of dollars, close to billions of dollars, going 
through the accounting to come up with one account that was 
past due $64. It was being used as leverage against us here to 
vote in favor of the Appropriations bill. And I go over here to 
my coach and I get the straight skinny most of the time, and he 
helps me.
    Mr. Hayworth. And now the skinny is accurate.
    Mr. Renzi. Yes. Absolutely.
    So could you help me, particularly push back? I need some 
help. Because we are going to be fighting this again with our 
own colleagues and want to be able to put out good information. 
The idea the Government has spent billions of dollars or close 
to a billion dollars and found one account with $64 past due. 
Anyone on the panel.
    Ms. Ramos. Also I have with me Mr. Jacob Moore, and I would 
like to recognize him as our intergovernmental relations. And 
also Ms. Katherine Arragone that has been working very closely 
on this.
    In my testimony, I noted several issues with--that there 
should be full disclosure of material documents. And I think 
that goes to show you that when you look at the accounting, and 
I do have a background in accounting, that sometimes when you 
do an assessment, that you not only pick out certain accounts, 
you have a small percentage. And when you do an accounting, you 
look at small percentages. And sometimes those accounts do not 
reflect the whole entire accounting. And just because you only 
found one account that had an overdue $64, that there are other 
accounts in there that do not have substantial amounts that 
need to be looked at.
    And the other thing that I made the comment on is that 
there should be no preset cap for settlement prior to 
negotiations. I know that there has been some talk about 
putting a dollar amount in the Congress to say that we are only 
going to go up to this dollar amount. And I wanted to make sure 
that that got into testimony that Salt River does not recognize 
that and does not want that.
    Mr. Renzi. If there was an offer on an individual voluntary 
basis to individual accountees to settle post accountability--I 
do not know that we can offer those without going through some 
sort of accounting so people really know what they are settling 
on. I think that is what you are referring to in your clause.
    Do you think on a voluntary basis that might be a way to 
breach or reach across, find a compromise?
    Ms. Ramos. I believe that if anyone, you know, voluntary 
wants to do that as far as their IIM accounts have that option 
available. But I do believe that as far as accounting 
background, no one can go in and say that we are going to take 
something if you do not know the full disclosure. So therefore, 
as our tribe and accountant I would not let anyone go forth and 
accept something if they do not know the full disclosure, if 
they do not know the accounts coming in and the accounts going 
out.
     And I think on a voluntary basis that would be up to the 
individuals to do that.
    Mr. Renzi. The Tuesday vote included also one other 
pressure point Mr. Berrey spoke about, the cannibalization 
pressure point was pushed on us to find a way to vote for it. 
And that, hey, if you do not vote for us, then this account or 
paying this settlement is going to come out of the BIA funds 
somewhere, so therefore you should go along with the 
appropriators on this. We held here on that.
    The other pressure point we saw, and I want to direct this, 
too, with Mr. Garcia, is a memo supposedly that was floated by 
Ms. Cobell but asked Native American tribes not to settle in 
the hope of the many billions of dollars that were forthcoming.
    You were very innovative in your testimony when you talked 
about this utilization of the Indian Self-Determination and 
Contracting. Can you expand on that, please?
    And I will sum up with that. Thank you, Mr. Hayworth.
    Mr. Hayworth. Thank you, Congressman Renzi.
    Mr. Garcia. I think for the Navajo Nation, and in 
particular the Indian allottees, we are the biggest tribe in 
the United States and we are the size of West Virginia. And we 
try to explore ways of how we can provide direct services to 
our allottees and to the people.
    One of the ways that we are right now and is in the talking 
is the contracting this particular program out. Right now as it 
is, I think we go through four different departments before it 
actually gets to the people's hand. One of the biggest problem 
that we see here is with the MMS, Mineral Management Service.
    I think there are a lot of problems because the payments 
are done just on land number, a number that is given to certain 
land status. And it would be, we feel, to our advantage to 
directly contract with direct services to the producers, which 
will be oil companies. In our case, the majority of our 
allottees receive royalty payment from oil and gas.
    Mr. Renzi. Thank you.
    Thank you, Mr. Chairman.
    Mr. Hayworth. And Mr. Chavez has one comment he would like 
to make, and I will let him expound.
    Mr. Chavez. Going back to your statement about the 
accounting, that is the main concern that we have with Senate 
bill 1770 is that it really starts to move away from the full 
accounting of what was really pushed forward in the Cobell 
case. And to me if that could be tied into the gap, back in 
there again, I think that is something that could be looked at. 
But I think the bottom line on everything is the accounting 
needs to be there regardless.
    And I do not know the example that you are using about the 
$64. That is probably one out of how many hundreds and hundreds 
of examples that you are pressured with. I think that is 
something that, you know I am not sure if that is even a valid 
point even now. But I think to stay with the accounting part of 
it, that is really crucial because that is something that the 
BIA has always taken the easy way out.
    A good example is the 1982 Achievement Act. We objected to 
that. I do not know if any of you members of Congress even 
remembers that.
    The Achievement Act of 1982 was where if a land, an 
allotment gets to a certain percentage, that percentage goes 
back to the tribe. And they did not even get the input of 
tribal people. They just went directly to Congress and Congress 
passed the law. But it was challenged by tribes, and it was 
their--found out it was illegal.
    But those are just examples after examples that the Bureau 
and DOI has always taken the easy way out. And this is just 
another example of that. And 1770 just gives them another way 
out of a mess that they created.
    Mr. Hayworth. Mr. Berrey, you had one comment?
    Mr. Berrey. Yes, I was just wanting to comment to the $64 
check. From my understanding, they spent $20 million to 
research the five main plaintiffs in the Cobell case. And the 
cost of searching all the record locations across the country 
and coming up with that figure was $20 million.
    And I think that says two things. It says, number one, that 
the Department of Interior's terrible records and it is going 
to cost a huge amount of money, no matter what type of 
accounting is done.
    And number two, the five representative plaintiffs do not 
clearly represent all tribal people. If you would take people 
from like the Osage Tribe or maybe the Northern Arapahoe Tribe, 
or even the Quapaw Tribe that have had huge amounts of money go 
through their IIM accounts as opposed to some tribal members 
that have just had land allotments that had grazing, you would 
probably see a greater problem than $64.
    But I think the ultimate question is there is people in my 
tribe that would be willing to settle. They would probably be 
willing to do a lot of things if they just had the opportunity 
to clearly understand what was available and what were their 
opportunities. And it may not necessarily be a full and clear 
accounting because we are realistic. We know that if we spend 
$10 billion on accounting, it is just going to Deloitte & 
Touche, and other accounting firms. It is not going to go to 
Indian people.
    So, I think it goes back to this conflict assessment. If 
you start out and understand what it is and clearly communicate 
that to all the people, it'll make the questions a lot easier 
to handle.
    Thank you.
    Mr. Hayworth. Well, speaking of questions, we turn to the 
gentleman from the Seventh District of Arizona, Mr. Grijalva 
for his questions.
    Mr. Grijalva. Thank you very much.
    And let me follow up on the conflict assessment, if I may, 
with you, Mr. Berrey and also as part of the questioning, I 
would appreciate any comments from President Ramos, President 
Garcia, Mr. Chavez.
    As you know, as I understand the process, through the 
conflict assessment, you assess the template or the table for 
what is going to be discussed in terms of negotiated 
settlements, conflict resolution, et cetera.
    Mr. Berrey. Yes.
    Mr. Grijalva. And as I heard the testimony today, you had 
the principles of settlement that President Ramos and the 
points that you made that I thought are very strong and very 
valid. The four points that you made yourself as any settlement 
options are discussed, those four points would be important. 
The points that President Garcia made, which had to do with 
proper accounting, if I am not mistaken. And also the issue of 
past damages, that that must be part of the discussion as we 
move forward and the trust accounting within Treasury as 
important point. And for lack of a better word, important 
condition as we move forward.
    And Mr. Chavez's five points and conclusion dealing with S. 
1770, that I concur with you on those opinions, by the way. But 
also setting conditions, for lack of a better word.
    So does this conflict assessment, because it is a conflicts 
issue, given the points that your colleagues have made here 
from representing their people, does that preclude the conflict 
assessment because we are laying template with some conditions 
on it as we move forward?
    Mr. Berrey. I do not think so. I think what it does this 
gives whoever does the assessment, a neutral third party some 
places to start.
    Mr. Grijalva. Would you agree with me, though, that as a 
principle to start with, that is the assessment process is that 
people go into this discussion as equals, and that is what 
helps move the assessment along?
    Mr. Berrey. Right.
    Mr. Grijalva. And there is a neutral third party.
    Would some of the conditions that we heard--and I apologize 
to you for using the conditions, but I think it is appropriate. 
We heard today that they are part of that assessment process to 
move forward. We are not starting with a clean slate. We are 
starting with some conditions. Is that appropriate as well?
    Mr. Berrey. Well, I think how all conflict assessments 
start, because you are usually in this contentious litigation 
format.
    Mr. Grijalva. OK.
    Mr. Berrey. So you always come into it with conditions. I 
am sure Interior would have conditions they would want. Justice 
would have some conditions they would want. All the parties 
have conditions before they go into any--when they are 
adversarial.
    I think that is just part of the discussion. But once the 
reality replaces the rhetoric and there is a more clear 
understanding of what really it is we are talking about and who 
the stakeholders are, and what is the universe of issues.
    This is not as complex as it seems. My tribal case I 
believe is more complex. We have the largest Superfund site in 
our states. We have the largest lead and zinc mining in the 
history of the United States. We have allotments. We have 
tribal. We have a lot more issues and claims in our lawsuit 
than the Cobell case, even though theirs is bigger in terms of 
numbers of people.
    Because of this assessment we were able to divide out our 
claims and take different paths on the recommendations of the 
people that did the assessment to come to a resolution, which 
we have agreed to a settlement with Justice and Interior to 
resolve our claims.
    Mr. Grijalva. Could you consider--I understand the point. 
Would you consider as a requirement past damage assessment and 
proper accounting if we went in through conflict assessment 
process?
    And I agree with you, you know, the Udall Center and the 
Environment Conflict Resolution Group is an excellent group. 
Done wonderful work, at least in my District in terms of very 
delicate and tough issues. But this is an issue that, you know, 
I want to have an understanding that if we are going in through 
that process, which I would be comfortable supporting, that 
there is also some protections that we are bringing into the 
process in case it does not work.
    Mr. Berrey. Well, I think if it does not work, they always 
have the core.
    Mr. Grijalva. OK. Thank you.
    Anybody else want to respond, Mr. Chairman.
    Thank you, sir.
    Mr. Garcia. Congressman, I think a point of interest to 
remember here is there is a lot of interest and there is a lot 
of talk about settlement among the Indian people in my 
community who may be elderly. I think it is important to know 
that as a Native people we have various type of resources, what 
is there on Indian land. And I think it is important to know in 
my case where I represent, the majority of them are oil and 
gas. So I think it is all going to be different for all Indian 
tribes.
    Mr. Grijalva. Thank you.
    Mr. Hayworth. President Ramos has a comment.
    Ms. Ramos. If I may? That is true about the settlement. 
However, in my statement on number three that I clearly stated 
that the litigation and the accounting issues have to be 
separate. We went to a BIA reorganization in Las Vegas last 
week. And because of the push of the Cobell case and the trust 
issues, they are trying to put everything into one large 
package. And we cannot do that. And we have to separate it out 
because with the BIA and reorganization, they are so time 
consuming and they want to pressure us into thinking that this 
is the best for the community. And we have to step back and 
take a look at it and make sure that these two issues are not 
being intertwined. And without the support from Congress to 
say, wait a minute, we need to step back and we need to look at 
it to make sure that we are handling one issue in one hand and 
the other issue in the other hand.
    So I just wanted to make that clear with the issues that 
that have--
    Mr. Hayworth. And thank you, Mr. Grijalva.
    Let me turn to my friend from the new Sixth District, as I 
call it, Mr. Flake.
    Mr. Flake. Thank you, Mr. Chairman.
    Just following up on the conference resolution, conference 
assessment model, how likely is it--to anybody--that there is 
sufficient agreement now among the tribes to go that route, or 
is there sufficient agreement somebody goes that route to see 
how much agreement there is? And how much agreement do you need 
to have to take that next step? Because I think all of us agree 
that whatever money would go into the auditing and accounting 
ought to be going to services and settlement.
    So how much agreement is there right now in your 
estimation, Mr. Berrey?
    Mr. Berrey. Well, I think there is a lot of agreement that 
something has to be done besides what the track we have been 
going down. And the more you talk to people out there on the 
reservations, the individual people, they want to figure out a 
way to settle.
    So I think with that, just the fact that people want to 
settle, in order to make it a proper and equitable and fair 
settlement process, you have to start with the success so you 
clearly understand going into a settlement process, what it is 
you are trying to settle. So I think the answer is, I think 
there is a lot of support.
    I know the National Congress of American Indians sent all 
the people in Congress a letter supporting a conflict 
assessment.
    I have not heard of anybody say they were totally against a 
conflict assessment.
    And I think it needs to be understood that the U.S. 
Institute I do not think would be the conflict assessor. They 
would just be kind of the consultants to the two appropriate 
committees to help them pick the people to do the assessment, 
and they would help consult with you all so you knew what was 
going on and as it was happening.
    I think they have the list of the kinds of practitioners 
that do that kind of work.
    But to answer your question, I think there is a lot of 
support for an assessment. And I do not know how to quantify 
it.
    Mr. Flake. You share that view, Mr. Chavez?
    Mr. Chavez. Again, my dealing with this agency for 20 
years, as long as you agree with them, it works. If you 
definitely have some--your own opinion or your own plan, or if 
your plan comes ahead of theirs, then it is the wrong idea. And 
that has been a pattern. And I think that this is going to go 
right down that same road. I think it is a good idea. I think 
it is a start. But I would almost guarantee you that if the 
Indian communities, if the Indian people were to fair out there 
what they are, the government, which DOI and BIA represents, 
then it is going to be a terrible idea. And it is going to be 
told to you guys again.
    Mr. Flake. Thank you, Mr. Chairman.
    Mr. Hayworth. Thank you, Mr. Flake.
    Let me turn to my friend, the gentleman from Samoa.
    Mr. Faleomavaega. Thank you, Mr. Chairman.
    I was listening with interest to Mr. Chavez, not only his 
statement, but also his observations of the BIA. I happen to 
agree with him.
    There is a certain state of mentality in that agency, and 
with all due respect I am not being personally critical. But it 
is not only a sense of attitude, but it is just different--and 
this is not in any way to say that it is just with this 
Administration. This has been the way it is with any 
Administration.
    I think that there is not only a sense of tremendous 
frustration on this very issue. When it has been well over 13 
years now and we are still grappling with this issue. We have 
even expended $20 million just to even attempt to do an 
accounting. And we could not even get to first base when we 
spent $20 million, we could not even touch the tip of the 
iceberg about the whole issue years ago.
    And regarding what Mr. Berrey said, this is not a complex 
issue, but I do not know. We are looking at 1,400 accounts and 
some 315 tribal interests in this issue. You are talking about 
a half-million Indian accounts to go with it. Some estimates 
are between $2.5 to about $10 billion that is in question. So 
it is not an easy issue.
    One of the problems that I think we are also confronted 
with Mr. Chairman is that whenever an Indian-related issue goes 
before the courts, the Congress seems to be very reluctant to 
get into passage of legislation simply because we do not know 
what direction or what results they are going to produce on 
this court litigation.
    Look at it in another way, it is a copout for us to say we 
cannot do anything because now it is before litigation, before 
the courts. And the Cobell case just adds more fuel to the 
fire. I think it really is the most substantive resolution that 
has come up with Judge Lamberth's decisions. But you notice 
now, the Department of Interior has literally built a fence 
around itself. They do not want any outside DOI individuals or 
organizations to be part of the settlement process.
    Now, I want to ask the members of the panel that this 
suggestion by Secretary Norton that we bump another official 
within the Department of Interior, we call him the assistant 
secretary for settlement trust fund. I wanted to ask your 
comments. Do you think that might add visibility within the 
department? Because we do have a problem there. Do you think it 
would really provide a solution to the problem, or will it be 
another problem added to the problem?
    I want to ask your response.
    Mr. Berrey. I do not think that is a good idea personally. 
I think this is an issue if they could have fixed it, they 
would have already fixed it.
    I think it is an issue that is going to take the input of 
people like you all, people from Congress to have to step in 
and help to protect the rights of the individuals.
    And earlier I did not mean to say that it was not complex. 
There are more complex pieces of litigation out there that 
cannot be solved through these settlement processes.
    I think that just creating another office in the Interior 
to settle this is not the proper way to do it at all. I think I 
would rather see the appropriate committees in Congress take 
more control and have more input.
    Mr. Garcia. Congressman--
    Mr. Faleomavaega. You call me, John, if you cannot 
pronounce my name.
    Mr. Faleomavaega. It is Faleomavaega if you would like to 
try it.
    Mr. Garcia. Thank you for the opportunity.
    I would agree with my colleague here, Mr. Berrey. I think 
that is just bringing in somebody else with a whole new array 
of different ideas. And it really does not--would solve or at 
least address on how we can dispose or come to a resolution on 
this issue that is in your hands right now.
    I think the far most important is to get back with the real 
people, the affected people and work with them, the tribal 
people. And I think that would alleviate and come to address 
the issue that is there.
    Mr. Faleomavaega. Well, --I am sorry. If I recall, 
Secretary Norton did mention that there was tribal 
consultations pursuant to the reorganization plans that are 
being made right now. But we get an entirely different reaction 
from our Indian community. The kind of tribal consultation was 
one or two people--selected individuals. And they went about 
and said we have taken care of tribal consultation.
    But I am quite sure that on a bipartisan basis we want to 
find the solution and be helpful to this issue. But the tact 
that the Administration has taken is very hard line. I want to 
ask the members of the panel how do we cut through that? What 
would you suggest on how we as members of Congress could 
provide a positive solution?
    I think there are none of us here on the panel, I mean on 
the Committee, who would ever think that we want to do 
something without consulting with Indian Country. But I am 
sorry to say that our friends in the Administration are making 
claims that, hey, we have done this already and we do not need 
to consult with Indian Country anymore.
    I just wanted to ask what your response is to that? Because 
I am very concerned that this is not the way current policy as 
far as Indian issues are concerned have been taken by Secretary 
Norton and her subsidiaries. But I may be wrong, but correct me 
if I am.
    Ms. Ramos. You hit it right on the head as far as 
consultation. Exactly that. They call one or two tribes and 
they call that consultation. There are over 500 recognized 
tribes in this United States, and like was stated first, the 
first Americans. And when they have consultation, they come 
forward and let you know what they are going to do already. 
They have a plan in mind. And even though the tribes may say no 
or they have their ideas, they still push forward their own 
plan.
    And I think with the other issue that you stated, all it 
does is the same thing that BIA constantly does, and add 
another layer of bureaucracy. With bureaucracy and bureaucracy 
we know it never works. The wheels just spin, spin, spin and 
nothing ever gets done.
    And in order to have true consultation, and we have spoken 
to Mr. Hayworth, we have spoken to some of our Congress people, 
every tribe needs to be at the table. Every tribe needs to be 
represented to make sure that you have true consultation, to 
make sure that the ideas that are given are taken at full face 
and actually looked up, and the ideas are assessed to see they 
are going to work.
    We are all unique tribes. We have our own individualism. 
And we each have our own constituents and all tribal members 
that we have to take care of. But one thing that we know with 
working with the other Arizona tribes with our proposition 202 
that we had, that if we stick together and we come together 
united, that we can solve this problem. And I think that is one 
thing that Congress really needs to hear from the tribes.
    Thank you.
    Mr. Faleomavaega. I am sorry, Mr. Chairman. I did not mean 
to prolong the question, but I just have one more question and 
observation.
    There seems to be a consensus that the only real 
substantive solution that has been brought forth that would 
seriously assist Indian Country with the issue of trust funds 
has been the judgment by the Federal court by Judge Lamberth. 
Other than that there seem to be some very strong disagreements 
on the proposed bill by Senator Campbell from the Senate side, 
Senate Bill 1770. So I would like to ask the members of the 
panel with those two on the table for consideration, what are 
other possible one or two options that we could take right now? 
To go back tomorrow in the Congress and say OK, let us work on 
it. Do you think we can attach something that might be better 
to the current proposed legislation by Senator Campbell to add 
on to it if there are some strong feelings from Indian Country 
that some of the provisions in that proposed bill just are not 
acceptable to Indian Country. Or am I going far left or far 
right, or what?
    I mean, I just want to get a sense of where we need to go 
from here. Again, it seems to me that the only two substantive 
things that are now for resolution is the Federal court 
judgment decision and Senator Campbell's proposed legislation.
    Mr. Chavez?
    Mr. Chavez. I think the comment that Mr. Berrey, I guess--
what did you call that?
    Mr. Berrey. The conflict assessment.
    Mr. Chavez. Conflict assessment, the issue if it ever comes 
to that and my comment regarding if we go to the table and we 
have a third party there, and the rules really come out to 
where the Indian people are coming out ahead, then it is a bad 
rule.
    I think the only way something like that would work would 
be if--it is a farfetched idea, but if that occurred, the BIA 
would not even be involved in that process.
    I think something that--I think the banking world, the 
finance industry would even be involved in it where they would 
be the ones at the table with the Indian people, where the 
minute that these bureaucrats, lifetime bureaucrats start 
seeing that their bosses are being taxed with billions of 
dollars and they have to appropriate them, it is a new rule. 
Then they start backing away. And this is where it really comes 
to an impasse. And I have seen this over and over, and that is 
where it really stops.
    So I think it is something that, you know, that maybe if we 
ever go that route, I think it is something that I have always 
thought about we could do.
    Mr. Hayworth. Well, let me follow up, because I wanted to 
defer to my colleagues and mindful of flight schedules, I know 
that Mr. Grijalva had to run catch a plane, Congress Renzi will 
follow soon here in a second.
    Mr. Chavez, you brought up something that we have talked 
about before, and I do appreciate the suggestion, Mr. Berrey, 
in terms of trying to cut through in a very picturesque way and 
untangle the spaghetti, which I think is an appropriate way to 
talk about all the different issues we are dealing with here. 
But it seems that in some sense in forensic accounting the 
trail has gone cold. We are looking back to the 19th century, 
accounts that were either misrepresented or lost, or destroyed. 
Some accusation, and again it cuts across party lines with 
previous Administrations, not taking into account records or 
maybe even wilfully destroying some records in these tribal 
trust fund accounts. It is a small wonder that Congressman 
Kildee and I, and my friend Eni Faleomavaega remembers this 
back in the 104th Congress when we were given charge of a 
special task force to look at this, it was characterized as the 
crime of two centuries. And now here we are in the 21st century 
trying to deal with.
    But let me pick up on something Mr. Chavez says. And a note 
to our friends who have joined us here today as observers, this 
is why it is so good to come outside of Washington to talk 
people. This idea was first advanced in some hearings a while 
back.
    To take it out of the hands, for sadly with the distrust, 
despite a lot of dedicated folks who work hard in the Interior 
Department and in the Bureau of Indian Affairs, an element of 
what Mr. Berrey talks about, Secretary Babbitt tried within the 
strictures of Government to appoint a special master--a 
gentleman not too far away up the road here who was frustrated 
and walked away from it.
    We have financial institutions, some accounting firms, some 
forensic accounting procedures and some folks who specialize in 
forensic account.
    Just curious to get an informal poll of our four excellent 
witnesses today, is one possible solution to look outside, not 
so much for a special master per se, but for someone who is 
outside of government to take ownership of a resolution 
understanding the pitfalls that consensus does not always mean 
unanimity. And we have heard differing opinions on legislative 
and paths to take. But should we look to the business 
community? I guess our dream candidate for this job is someone 
who grew up on the reservation in some tribe, who has 
negotiated the concrete canyons of Wall Street, who understands 
what is at stake, who understands the intricacies of forensic 
accounting and can take us back as far as the trail goes, and 
then move forward. Because, President Ramos, one of the things 
you said was in your many suggestions, and I am just 
paraphrasing here, making a full accounting.
    Well, some of the evidence is gone. The trail has gone 
cold. So just informal poll, picking up Mr. Chavez's idea, do 
we find someone, do we give charge to someone out of government 
to be a commissioner on the resolution of this problem? Not to 
add to the layers of government, but to find the resolution?
    I would just be interested. Let me start with President 
Ramos and go down our witness panel here.
    Ms. Ramos. I agree, because Mr. Moore has been talking 
about that issue and we Salt River have said that would be the 
prime thing to do is to have someone outside the organization 
to do that, especially someone that has accounting background.
    I do know that with accounting and with some of us going 
through some auditing themselves, it is costly. However, you do 
get a better understanding of what your records are. And I 
would agree that we need to have someone outside the 
organization handle them.
    Mr. Berrey.
    I think it is a good idea for the accounting portion. But I 
think until you understand all of the other pieces of spaghetti 
that are creating this problem, the fractionalization of Indian 
lands and the issues that are not part of the account just 
focusing on the accounting and bringing someone in is not going 
to solve the problem. That is why I think, again, you have this 
assessment and you will understand more clearly how much of 
this problem is purely historical accounting and how much is 
other things. Because there is a lot of issues that are behind 
that that I think need to be more clearly defined. Especially 
for actualization of Indian land.
    Mr. Hayworth. President Garcia?
    Mr. Garcia. I somewhat agree with Mr. Berrey here. I think 
it is very important to know that those back 50 years ago, we 
only had one allottee that probably had 160 acres of land. And 
I think as time went on up until now, it maybe is some 80 or 
100 heirs to that allotment. It is going to be somewhat very 
difficult, but how do we arrive at the proper amount for 
compensation? I think someone needs to go back and look at each 
allotment and how many addition of allottee of heirship there 
has been on particular land. And I think it would be the--to 
bring in someone that is nongovernmental, someone that is very 
impartial and should be coming from--with some banking and 
accounting practice.
    Mr. Hayworth. Thank you, Mr. President.
    Mr. Chavez?
    Mr. Chavez. And, of course, that there was a suggestion 
made by me, and I think the only fact here that you probably 
missed there was that has knowledge in factional land. I mean, 
that is the--if you could find that person, you probably would 
make a million dollars with it today. You know, it is hard to 
find that individual out there. And I think it is hard to find 
that person.
    But I think the important thing here is getting it out of 
DOI and BIA. I think that is the thing that has been 
frustrating our organizations for years and years. And I think 
the criteria or the issues that I think John and Calvert and 
President Ramos are bringing up, I think those need to be 
included in that. But I think at the same time, I think the 
groups the representatives of the allottees of various tribes, 
they need to be involved.
    I remember testifying before the Senate Indian Affairs 
Committee back in 1988 on the same issues. Well, even back then 
we used to bring up what if it was your account, you went to 
Wells Fargo and you had a trust fund and you were just putting 
in money. And you were putting in money years and years and 
years. And then 1 day you went to check, and there was no 
money. And they told you, well, we do not know. We threw away 
all the records. Would you just walk away and say, well, maybe 
you could just settle out for $1,000 over the past 50 years? I 
mean, this is exactly what we are doing.
    And I think that this is something that I guess we really 
kind of have to bring to home. But yet we realize what we are 
saying also when we start saying all the way back to the 1800s. 
You know, we realize what we are saying. Because the trail does 
go cold at a certain point. But, understandably, there are 
allotments that have up to over 1,000 interest holders right 
now in our area. And we have had a lot of problems just even 
running infrastructure water lines, electricity, whatever 
because of that.
    So, fractionation is a big problem. And I think that needs 
to be inserted in that knowledge of this person.
    Mr. Hayworth. Well, let me try to paraphrase, since one of 
our challenges is to achieve a consensus. And while we welcome 
all the public comments on the record, as we are trying to deal 
toward a tangible solution.
    There needs to be then, it seems, two elements if we take 
into account everything that has been said here. A group 
understanding how to do the conflict assessment that has the 
proper orientation historically along with someone from the 
outside who could do.
    A third question in closing, and I do not mean to open a 
can of worms, and just in terms of conceptualization since the 
trail goes cold without capping a settlement but setting some--
we talked about tribal elders and we heard a very eloquent 
prayer from Ricardo earlier about those in the twilight of 
their years. Does it make sense to set a demographic historical 
accounting date, not like--you know, a couple of times the 
appropriations guys have tried to short circuit the process. 
They go, we will go back to 1980, oh, we will go back to 1977. 
And it seems to me that the fundamental flaw any fair-minded 
person has is, wait a minute, we have people who have been 
affected their entire lives. Does it make sense today to look 
at a demographic or chronological life span? Is that how we are 
able to get our arms around this problem since the trail goes 
cold on so many accounts?
    It is just a question for all the panel members again.
    Mr. Berrey. It is about the exploitation of natural 
resources whether it is grazing, farming, mining, oil and gas. 
That is what it is all about. And that is what the Department 
of Interior is like the apartment manager for these 56 million 
acres of land. And I think it is chronological.
    And if you understood the exploitation of these natural 
resources over time, and it is not--we are not talking about 
millions of years. We are talking about just 150 years or 
something. You know, there is a historical perspective that you 
could put on that exploitation that is not going to be 
difficult to get a graph on.
    And you could look at the different tribes, how their 
natural resources have been exploited. When it started. When 
the largest activity was. And you could narrow down your focus 
and do, maybe, some type of sampling or something less than a 
transaction by transaction accounting.
    Mr. Hayworth. Any other comments from the panel?
    Mr. Chavez. I agree with Mr. Berrey.
    Mr. Hayworth. OK. President Ramos?
    Ms. Ramos. I just wanted to make a comment, too, about the 
outside, and Mr. Moore gave me a good suggestion. Is that as 
far a commission with teeth, it has to be enforced with the 
changes.
    You talk about records going cold. Yes, it is true in 
accounting that you want to start from a good starting point 
and move forward. However, you have to remember that as Mr. 
Berrey stated, there has been some injustices.
    We do not know exactly how much should have come into those 
accounts. That is one issue, and that has to be raised. Is that 
we never know if the exact amount was put into those accounts 
in the first place.
    There are records that can be taken from a wide variety. 
You can take records from the tribe. You can take records from 
the companies where all the Indian lands themselves. And you 
can have a good starting point. But that starting point has to 
be agreed upon amongst everyone. It cannot just be an arbitrary 
number or figure or year that has come out from the Congress. 
It has to be something that everyone agrees to.
    Because if you do not have that starting point, you are not 
going to be able to go forward.
    And also the other question, the other issue is that if we 
do not have a good starting point, that it would leave out the 
heirs in the future because of the fractionation like the 
others have stated, it may be hard to do something but if you 
are determined and you want to get the best accounting records, 
you will start at the best starting point. And what I would say 
as far as having a starting.
    The other issue that I wanted to bring up is that we do 
have to have the input from the tribes. We have to have the 
input, because if we do not and, like--I am not even going to 
try to say your name. But like you stated, if we just consult 
and say we are meeting one or two tribes, then it is not going 
to work for the entire nation.
    Mr. Hayworth. I think the point is well taken.
    I think Interior started well when we were dealing with 
this in the previous Congress. And I know we had around the 
country many different listening sessions. A lot of people came 
in to talk. And, again, we are continuing the process now.
    I guess the challenge we confront, and what we certainly 
appreciate, are the different alternatives you offer here 
today. The key for us is to move in a reasonable, rational way 
understanding we are not going to develop unanimity. That is a 
great and noble goal. But none of us in the political process 
ever seem to get there on these contiguous pieces of 
legislation. But moving to find a way to achieve a consensus. 
And we certainly welcome those comments.
    Let me turn to my colleagues and see if they have closing.
    My friend from American Samoa.
    Mr. Faleomavaega. I just want to say that it is ironic that 
we discovered this negligence on the part of the Federal 
Government as far as the providing or taking care of the Indian 
Trust Fund for all these years. For now, the roles are reversed 
and now all of a sudden our friends in the Federal Government 
are being very, very careful to make sure that the American 
taxpayers' money is not going to be excessively given to the 
Indians. I do not think there is anybody questioning that 
somebody stole the money. It is there. You know, we do not have 
to be looking for it like we have to burden the American 
taxpayer for additional money to pay the Indians. No, the money 
is there. But it is the question of identifying where and how, 
who, when, why; not to say that somebody stole the money. It is 
there.
    I have always wondered, Mr. Chairman, if we can give $87 
billion to clean up Saddam Hussein's mess, I think maybe $2 or 
$3 billion is really not asking too much, do you think. I would 
suspect, Mr. Chairman, just as it was in the 1970s, ironically 
one of the greatest Presidents that has helped Indian Country, 
Indian issues is Richard Nixon. And the reason being is because 
the President himself said this is the way I want this issue to 
be taken care of. As long as it does not reach that level of 
what we are discussing here, of the Secretaries and the 
subordinates and others. It is not going to happen and we are 
going to continue another 10 year period, still grappling with 
the issues and still going to have those very, very dedicated 
bureaucrats, if you will, who are going to make sure that this 
money is not going to be misspent.
    You know, we know the Enrons, the global crossing and our 
good friend who is a certified public accountant, President 
Ramos. Even the account process. We do not even know what a 
proper accounting procedure is. Even the Federal agencies among 
themselves have different accounting procedures. So what does 
this come to? We are frustrated even more on how we are going 
to provide a solution.
    Mr. Chairman, I like the idea of having a settlement 
solution or a third party. But the problem is that our friends 
in the Administration do not want someone, a third party to do 
it or an organization.
    So we are back again to square one then. And I am open. I 
just want to see where or how can we go about to find a final 
solution to this.
    I am scratching my head, Mr. Chairman, and as I am sure 
Jeff is doing the same. But we really want to find a solution 
to the problem. It seems to me that the only real substantive 
solution that has come forward is that we have had to take this 
matter to the Federal courts. And thank God for Judge Lamberth 
for his decision. I hate to say this is judicial legislation, 
but the problem here has been very difficult for us even in the 
Congress.
    And with that, Mr. Chairman, I am sorry to take time so 
long. My name is Faleomavaega. It is very easy to pronounce. If 
I can say Shii Shi Keyah, I am sure that our friends here can 
do the same.
    Thank you, Mr. Chairman.
    Mr. Hayworth. Thank you. I thank the gentleman from Samoa. 
And, of course, some of us try to get intimate, and we just 
call you Eni, by your first name, and that deals with any of 
the pronunciation.
    My friend from the Sixth District, any closing comments?
    Mr. Flake. I just want to thank the panelists. This has 
been extremely informative for me. This has not traditionally 
been an issue that I have kept up on. And so this is very 
informative. Like Eni, I think we are all scratching our heads 
to try to figure out where we go from here. But this will 
certainly help as we make decisions in the Resources Committee.
    Thank you all.
    Mr. Hayworth. Thank my friend from the Sixth District.
    It has been said that by one of our congressional 
colleagues as we were dealing with corporate scandals, that if 
you really wanted to see scandalized accounting, just take a 
look at the Government of the United States. Sometimes you 
laugh amidst the frustration, and yet to end our time together 
on a hopeful note, what especially impresses about all of our 
witnesses, again, is they came to the table with genuine 
recommendations that may not be exactly from the same point of 
view. But after all, that is the essence of our constitutional 
republic and the ability to effectively govern. To take these 
different ideas, to move toward conflict resolution, to 
maintain a healthy skepticism. And here is hoping despite the 
challenges we confront from a variety of different areas, that 
we will be able to work with you and all of those in Indian 
Country to achieve a consensus that in an imperfect world can 
be a reasonable rational solution. That is our goal.
    To those who join us here, we thank you very much as we 
bring Congress to the people. And we will continue to seek your 
input.
    And if there is no further business, again, we thank the 
members of the Committee and our witnesses.
    And once more, I would be remiss if I did not thank the 
Salt River people Pima-Maricopa Indian community, this 
beautiful Lehi facility. We could hear the kids down at the 
boys and girls clubs.
    We know that others have comments, and we will be happy to 
include, in fact, with hearing no objection, I would ask 
unanimous consent that those who have prepared written 
statements or other perspectives that they would like to add to 
the record, may do so today. And we will achieve the purpose of 
getting your input, even though our time grows short here on 
our schedules.
    So we would ask if you do have other statements and 
comments, to submit them for the record in this hearing.
    And we look forward to discussing with many of our 
constituents here at home more on this topic in the days ahead.
    Again, we appreciate the interest and participation of all 
tribal leaders, members and members of the public who joined us 
today and our Committee meeting.
    Let me yield to my field.
    Mr. Faleomavaega. If the Chairman would yield again. I am 
sorry for talking so much. But I want to share with our Indian 
brothers and sisters the problem that we have in Washington. I 
have been in the Congress now for 15 years. This is my eighth 
term. Even though I do not vote on the House floor, I do vote 
in Committee. And I do want to say that, and we have a saying--
``I am not trying to comb his hair,'' but the fact that this 
gentleman has taken the initiative, being a member and a Co-
Chair of our American Indian Congressional Caucus, you just do 
not know how important this is among the members in having to 
deal with Indian issues.
    The fact that there is so much competition and many 
priorities, sometimes things just do not seem to get on the 
radar screen. Indian issues have always been very difficult for 
members of the Congress to deal with. And, again, Mr. Chairman, 
I would be remiss if I do not offer my strongest commendation 
and thank you for your personal commitment in helping our 
Native American community people from all over the country. Not 
just for your State of Arizona, but for the whole nation.
    And I thank you for this commitment. And I sincerely hope 
that you are going to continue serving as Co-Chairman of our 
Caucus--not only because he is a member of the Resources 
Committee, but he also serves on the Ways and Means Committee. 
So, he gives a good eye about your taxes, too.
    So with that, Mr. Chairman, I do really want to commend and 
thank you not only for holding this hearing, but also for the 
tremendous effort that you made over the years to give 
assistance for our Indian Country. And with that, I thank you.
    Mr. Hayworth. All right. I thank the gentleman from Samoa 
for his comments.
    Again, I thank everyone for coming. Those who are in the 
audience who are here to observe or may take a point a view, 
again, we would like to remind you we are happy to include your 
comments in the record today. And I have a feeling that this 
can be the subject of ongoing townhalls across the State of 
Arizona and across Indian Country.
    One final note that I make from time-to-time, and some of 
our friends in the press may look at the remarkable 
bipartisanship here. As I say to many who visit us in 
Washington, D.C., though we sometimes are counted along party 
lines for purposes of organizing the House, there are really 
only two types of people who serve in the Congress of the 
United States; those who represent what we still call Indian 
Country and those who represent what was once Indian Country.
    And with that note, we thank you all for being here.
    And the Committee stands adjourned.

    [A statement submitted for the record by Nora McDowell 
follows:]

 Statement of Nora McDowell Chairwoman, Fort Mojave Tribe; President, 
                    Inter Tribal Council of Arizona

    Good Afternoon. I am Nora McDowell, Chairwoman of the Fort Mojave 
Tribe, and President of the Inter Tribal Council of Arizona. I will 
begin by expressing my appreciation to the members of the House 
Committee on Resources for the invitation to provide testimony at this 
field hearing on ``Can a process be developed to settle matters 
relating to the Indian Trust Fund lawsuit?''
    Initially, I will speak to a set of principles the Inter Tribal 
Council of Arizona supports in an effort to achieve meaningful trust 
reform. It is the Inter Tribal Council of Arizona's belief that these 
basic principles will assist this Committee in answering your questions 
regarding the Indian Trust Fund lawsuit.
    First, the Department of Interior must comply with the spirit of 
consultation, including legitimate, timely, and good faith consultation 
with elected tribal leadership, not just the letter of consultation.
    Second, new authorizations and appropriations are required for 
trust reform. Taking any funds from either the Trust Office or the 
Bureau of Indian Affairs is unacceptable, as these appropriations are 
already at funding levels that fall far below the need.
    Third, trust reform must include the creation of an independent 
oversight entity that would have responsibility for trust 
administration. And, Tribal leaders need to be present on this entity, 
as they have detailed knowledge of what works and what doesn't. Also 
needed are representatives with an understanding of the concept of 
``Trust Responsibility'' as it relates to the Tribal/Federal historic 
relationship.
    Fourth, the Department of Interior's trust responsibility must be 
clearly defined.
    Fifth, trust reform must continue to support the role of Tribal 
self-determination and self-governance.
    Sixth, funds must be distributed to the local level to ensure trust 
reform.
    Seventh, any additional responsibilities related to trust reform 
must be accompanied by additional funds.
    And the final principle is that an Undersecretary of Indian Affairs 
position must be included in the Department of Interior's 
organizational chart in order to ensure accountability within the 
Department of Interior.
    In addition to these principles, the core concept of ``trust'' to 
Indian tribes must be incorporated into the concept of ``trust'' as 
used for banking and accounting purposes. These two concepts must be 
woven together, rather than separated, in order to address the problems 
of the trust accounting, whether such ``trust'' is for Individual 
Indian Money Account holders or for Indian Nations. Which brings me to 
my next comment, which is more of a concern. I hope that this 
Committee, through this hearing and the previous two hearings, and the 
rest of Congress, is not attempting to place Indian Nations against 
their own members, who may or may not be members of the class in the 
Trust Fund lawsuit. The Inter Tribal Council of Arizona is asking for 
Congress' commitment to adequately fund any proposal, whether it is a 
historical accounting, or a settlement, without taking from the Bureau 
of Indian Affairs' already underfunded budget.
    In conclusion, there are certain actions the Congress can do in 
order to, at a minimum, move forward to a possible resolution to the 
Trust Fund lawsuit.
    First, Congress can adequately fund the Department of Interior with 
newly authorized and appropriated funds for the court-imposed 
historical accounting.
    Second, Congress can conduct hearings, similar to this hearing, 
with the primary parties involved in the Trust Fund lawsuit and pose to 
them the same question you have posed to the Indian Nations--``Can a 
process be developed between the Individual Indian Money Account 
holders and the Department of Interior to settle the matters related to 
the Indian Trust Fund lawsuit?
    Third, the Inter Tribal Council of Arizona supports your 
opposition, Congressman Hayworth, to the one-year delay of the court-
imposed historical accounting.
    Thank you for the opportunity to address this Committee. Good 
Afternoon.
                                 ______
                                 
    [Whereupon, at 2:45 p.m. the Subcommittee was adjourned.]

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