[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
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://resourcescommittee.house.gov
______
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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.]