[Congressional Record Volume 150, Number 103 (Thursday, July 22, 2004)]
[Senate]
[Pages S8758-S8760]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DASCHLE:
  S. 2770. A bill to establish a National Commission on American Indian 
Trust Holdings; to the Committee on Indian Affairs.
  Mr. DASCHLE. Mr. President, as we all painfully know, the United 
States has broken its word to Indian people, disregarded its treaty 
obligations, and breached its fiduciary trust responsibility. 
Litigation has been filed, and administrations of both political 
parties say the right thing, but then do not follow through to redress 
legitimate grievances. The concepts of sovereignty and government-to-
government dialog are acknowledged, only later all too frequently to be 
ignored.
  This sad history was elevated to a new level of concern this spring 
by the resignation of Mr. Alan Balaran as Special Master in the Cobell 
class action against the Department of the Interior. On April 5, 2004, 
Mr. Balaran made some very serious charges against the Department of 
the Interior in his official letter of resignation. He alleged that 
energy companies, abetted by the Department of the Interior, routinely 
pay Indian people less than they pay others for oil and gas easements. 
He further alleged that Interior officials regularly put the interests 
of private companies ahead of the Department's fiduciary responsibility 
to Indian people.
  These are disturbing charges leveled by an individual knowledgeable 
about the long history of trust mismanagement. Congress must get to the 
bottom of this situation to fully satisfy our own fiduciary 
responsibility to Indian people.
  It is clear that neither the executive branch nor the Congress's 
hands are clean on the trust management issue. And this not a partisan 
failure. It is a governmentwide failure that requires independent 
review.
  I am, therefore, today introducing legislation to create a National 
Commission on American Indian Trust Holdings. This Commission will be 
unique in several respects. First, it will be composed of 10 prominent 
U.S. citizens. Two individuals will each be appointed by the President, 
Senate majority leader, Senate minority leader, Speaker of the House, 
and House minority leader to place the Commission beyond politics. 
Second, it will have the resources to hire the technical expertise 
needed. Professionals with expertise in land and resources management, 
accounting, Federal Indian policy, and trust law, among other 
disciplines will be included.
  The Commission will build upon past efforts without duplicating past 
efforts.
  Finally, the Commission will be charged with the responsibility of 
reporting to the President and the Congress within 1 year on: One, how 
to recoup, if possible, any damages that have resulted from the breach 
of fiduciary responsibility; and, two, how to prevent any such breaches 
in the future. We are looking for specific recommendations on how to 
fairly account for past mistakes, how to find closure on the trust 
issue, and how to prevent those mistakes from again happening in the 
future.
  The overall goal of the Commission is to fully and completely examine 
the very serious charges made by Mr. Balaran, as outlined in his letter 
to Judge Lamberth. The Commission would also be authorized to examine 
other breaches of trust and to report back to the Congress and such 
executive departments as may seem appropriate.
  Many words have been spoken over many years about trust 
responsibility and the breach of trust and fiduciary obligations, but 
very little concrete action has resulted from these words. Mr. 
Balaran's charges should be a wake-up call to all civic-minded 
Americans to demand that fairness be restored to the administration of 
Indian trust accounts. I sincerely hope that, given the track record of 
the past 10 years, an independent panel of distinguished Americans will 
be given an opportunity to succeed where the executive and legislative 
branches have fallen short. Their review will at least get to the 
bottom of Mr. Balaran's charges. And perhaps we can use the results of 
this examination to generate momentum for exploring the larger trust 
issues.
  I ask unanimous consent that Mr. Balaran's letter of resignation and 
the text of the bill be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                    April 5, 2004.
     Re: Cobell v. Norton, No. 96-1285.

     Hon. Royce C. Lamberth
     U.S. District Court for the District of Columbia, Washington, 
         DC.

       Dear Judge Lamberth: I hereby tender my resignation as 
     Special Master in the Cobell case, effective the close of 
     business on April 5, 2004.
       This is an extraordinarily important case. I have been 
     privileged to work on it. For the past several months, 
     however, my efforts have been undermined by a series of 
     motions lodged by the Department of the Interior--one of 
     Cobell's two co-defendants--seeking my disqualification.
       It is evident Interior will continue filing such motions, 
     preventing the case from moving forward. The agency's 
     motivation is clear. In recent months, I have reported 
     evidence of a practice--abetted by Interior--of energy 
     companies routinely paying individual Indians much less than 
     they pay non-Indians for oil and gas pipeline easements 
     across the Southwest. I also have uncovered evidence that 
     Interior fails to diligently monitor oil and gas leasing 
     activities on individual Indian lands. To prevent further 
     investigation into these matters, Interior seeks my removal 
     from the Cobell case.
       The timing of Interior's efforts to disqualify me is not 
     coincidental. Interior filed its May 2003 disqualification 
     motion shortly after I found the agency withheld salient data 
     from its quarterly reports to the Court. The agency accused 
     me, of improperly retaining the services of a former Interior 
     contractor to obtain information germane to that 
     investigation. You found this accusation frivolous, 
     suggesting it was Interior that acted improperly by impeding 
     my investigation and that Interior had an ulterior motive for 
     seeking my removal. You were correct.
       Interior's disqualification attempts stemmed from events 
     that took place several months earlier, beginning with my 
     March 6, 2003 visit to the Office of Appraisal Services of 
     the Navajo Regional Office in Gallup, New Mexico. There, in 
     the presence of the Department of Justice and Interior 
     counsel, the Chief Appraiser admitted that he appraised oil 
     and gas easements running across individual Indian lands for 
     amounts considerably less than the appraised value of 
     identical interests held by non-Indians. The Chief Appraiser 
     also admitted destroying evidence of his 20-year practice of 
     doing so. Interior has never denied that the Chief Appraiser 
     destroyed valuable trust information or that energy companies 
     pay individual Indians a fraction of what they pay similarly 
     situated non-Indians as a result of these inadequate 
     appraisals. (Nor has the agency taken any

[[Page S8759]]

     disciplinary action against the Chief Appraiser. To the 
     contrary, it has gone to great lengths to protect him by 
     retaining the services of two attorneys to defend his conduct 
     during a recent deposition.)
       On August 20, 2003, I issued a report chronicling my 
     findings. This report was just the beginning. I soon began to 
     uncover evidence that Interior was putting the interests of 
     private energy companies ahead of the interests of individual 
     Indian beneficiaries.
       On September 19, 2003, for example, I visited Minerals 
     Management Service's (MMS) Office of Minerals Revenue 
     Management (MRM) in Dallas--the repository of Interior's oil 
     and gas audit files. My visit was prompted by two events: (1) 
     the March 2003 report of Interior's Office of the Inspector 
     General, revealing that MMS officials not only fabricated oil 
     and gas audit files but were rewarded for their efforts; and 
     (2) Justice's denial of my repeated requests for access to 
     these files. As you noted in your March 15, 2004 decision 
     denying Interior's disqualification motion, since August 
     1999, I have visited dozens of sites to ensure that Interior 
     was safeguarding trust documentation in accordance with your 
     directives. Interior not only approved of these visits, but 
     encouraged its employees to cooperate with me fully during my 
     inspections. My visit to Dallas was different. After only two 
     hours, during which I uncovered chaotic recordkeeping 
     practices and missing audit files, NMS officials informed me 
     that Justice ordered that I leave.
       The reason for this dramatic shift in policy is obvious. 
     Whereas my previous investigations exposed random incidents 
     of unprotected trust documents in remote Interior locations, 
     my recent findings implicated the agency's systemic failure 
     to properly monitor the activities of energy companies 
     leasing minerals on individual Indian lands. The consequences 
     of these findings could cost the very companies with which 
     senior Interior officials maintain close ties, millions of 
     dollars. (In that regard, I direct you to the recent 
     Inspector General Report of Investigation (PI-SI-02-0053-I), 
     discussing the relationship between Interior's most senior 
     officials and energy company executives.) Interior did not 
     want this information to come to light and for the first and 
     only time during my five-year tenure as Special Master, 
     ordered me to leave a site.
       Just one week after my Dallas site visit, in a motion filed 
     on September 26, 2003, Interior issued the following 
     ultimatum: either you rule on its disqualification motion by 
     October 15, or the government would file a mandamus petition 
     in the Court of Appeals, seeking to have that Court 
     disqualify me. At that time, the government knew you were 
     beginning a six-defendant criminal trial on October 1, 2003, 
     that involved multiple counts of murder, drug offenses, and 
     racketeering, making it impossible for you to rule on the 
     disqualification issue by the October 15 ``deadline.'' 
     Interior was just going through the motions and, in mid-
     October, filed its mandamus petition in the Court of Appeals.
       It is evident that Interior, supported by the Department of 
     Justice, is committed to removing me from this case. It is 
     also plain that the agency's efforts to unseat me bear no 
     relationship to the reasons it offers in its disqualification 
     motion, but rather to my discovery of significant problems 
     with its appraisal and record-keeping practices. A full 
     investigation into these matters might well result in energy 
     companies being forced to repay significant sums to 
     individual Indians. Interior could not let this happen,
       Justice has been much too long in coming for the hundreds 
     of thousands of Native Americans whose land the government 
     has supposedly held in trust, in some cases for over a 
     century. Billions of dollars are at stake. It is past time to 
     get systems in place that will enable the Departments of the 
     Interior and Treasury to track trust data accurately in the 
     future, as well as render an honest and reliable accounting 
     in the present. In this respect, my presence in the case has 
     become a distraction. And while I am confident that 
     Interior's disqualification motions would ultimately be 
     denied, I have no doubt that were I to continue as Special 
     Master, the agency's efforts to disqualify me would persist 
     and accelerate. Given this, I will be of no practical service 
     to the Court. I hope that, with my resignation, the parties 
     will be able to move rapidly toward fundamental reforms. I 
     also hope that, understanding this background, my successors 
     will be more efficacious.
       Finally, on a personal note, you are a courageous, 
     decisive, and diligent judge who strives to do justice in 
     each and every case. It has been my honor to have served with 
     you. Thank you for giving me this opportunity.
           Sincerely,
                                                  Alan L. Balaran,
     Special Master.
                                  ____


                                S. 2770

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. NATIONAL COMMISSION ON AMERICAN INDIAN TRUST 
                   HOLDINGS.

       (a) Findings.--Congress finds that--
       (1) the United States has entered into treaties with Indian 
     tribes under which the United States made various commitments 
     to Indian tribes and Indian people;
       (2) the United States functions, by treaty and statute, as 
     a trustee for Indian tribes and individual Indians;
       (3) the United States has a fiduciary obligation to Indian 
     tribes and Indian people and, in accordance with that 
     obligation, must use the highest standard of care to protect 
     the assets of Indian tribes and individual Indians;
       (4) the United States has failed Indian tribes and 
     individual Indians and abridged its treaty and other 
     obligations relating to the handling of trust fund management 
     and historical accounting;
       (5) mismanagement of Indian trust assets by the United 
     States is a longstanding problem that spans many 
     administrations;
       (6) the complexity and longevity of that mismanagement 
     neither mitigates the injustice visited on Indian tribes and 
     the 300,000 individual Native Americans whose accounts have 
     been shortchanged nor absolves the United States of its 
     responsibility to correct the situation in a timely manner;
       (7) in 1996 a civil action, Cobell v. Norton, Civ. No. 96-
     1285 (RCL), was brought in the United States District Court 
     for the District of Columbia to attempt to obtain an order 
     compelling the United States to account for the trust funds 
     managed by the United States on behalf of individual Indians 
     and take all necessary action to bring the United States into 
     compliance with its fiduciary duties;
       (8) those funds are generated from Indian trust land 
     royalties resulting from leases of that land to oil, 
     agricultural, timber, mining, and other interests;
       (9) on April 5, 2004, Mr. Alan L. Balaran, the Special 
     Master in the Cobell case, tendered his resignation to the 
     Honorable Royce C. Lamberth;
       (10) in his letter of resignation, Mr. Balaran stated 
     that--
       (A) there is evidence that energy companies, assisted by 
     the Department of the Interior, routinely pay individual 
     Indians much less than they pay non-Indians for oil and gas 
     pipeline easements;
       (B) the Special Master had uncovered evidence that the 
     Department fails to diligently monitor oil and gas leasing 
     activities on Indian land; and
       (C) there is evidence that the Department has been putting 
     the interests of private energy companies ahead of the 
     interests of individual Indian beneficiaries, notwithstanding 
     their fiduciary obligation to Indian tribes and Indian 
     beneficiaries; and
       (11) the Great Plains, Rocky Mountain, and other regions of 
     the United States are rich in other trust assets such as 
     timber, agriculture, mining, and other resources.
       (b) Definitions.--In this section:
       (1) Balaran letter.--The term ``Balaran letter'' means the 
     letter dated April 5, 2004, from Special Master Alan L. 
     Balaran to the Honorable Royce C. Lamberth.
       (2) Commission.--The term ``Commission'' means the National 
     Commission on American Indian Trust Holdings established by 
     subsection (c).
       (3) Department.--The term ``Department'' means the 
     Department of the Interior.
       (c) Establishment of Commission.--There is established the 
     National Commission on American Indian Trust Holdings.
       (d) Membership.--
       (1) In general.--The Commission shall be composed of 10 
     members, of whom--
       (A) 2 shall be appointed by the President, 1 of whom the 
     President shall designate as Chairperson of the Commission;
       (B) 2 shall be appointed by the majority leader of the 
     Senate;
       (C) 2 shall be appointed by the minority leader of the 
     Senate;
       (D) 2 shall be appointed by the Speaker of the House of 
     Representatives; and
       (E) 2 shall be appointed by the minority leader of the 
     House of Representatives.
       (2) Qualifications; initial meeting.--
       (A) Nongovernmental appointees.--An individual appointed to 
     the Commission may not be an officer or employee of the 
     Federal Government or any State or local government.
       (B) Other qualifications.--It is the sense of Congress that 
     individuals appointed to the Commission should be prominent 
     United States citizens, with national recognition and 
     significant depth of experience in such professions as land 
     and resource management.
       (3) Deadline for appointment.--All members of the 
     Commission shall be appointed not later than 60 days after 
     the date of enactment of this Act.
       (4) Quorum.--Six members of the Commission shall constitute 
     a quorum.
       (5) Vacancies.--Any vacancy in the Commission shall not 
     affect the powers of the Commission, but shall be filled in 
     the same manner in which the original appointment was made.
       (e) Duties.--
       (1) In general.--The Commission shall--
       (A) fully examine the allegations made in the Balaran 
     letter;
       (B) fully examine whether grazing, leasing, and other trust 
     asset interests have been managed equitably and in a manner 
     consistent with Federal trust law (including regulations);
       (C) fully examine such other alleged breaches of the 
     fiduciary responsibility owed by the United States to Indian 
     tribes and individual Indians that come to the Commission's 
     attention as the Commission considers appropriate;
       (D) build on the investigations of other entities, and 
     avoid unnecessary duplication, by

[[Page S8760]]

     reviewing the findings, conclusions, and recommendations of 
     earlier studies of the management by the Department of Indian 
     trust assets and trust funds; and
       (E) not later than 1 year after the date as of which all 
     members of the Commission have been appointed, submit to the 
     President and Congress a report that states the findings of 
     the Commission and makes recommendations for corrective 
     measures that can be taken to--
       (i) recoup any losses suffered by Indian tribes or 
     individual Indians as a result of breaches of fiduciary duty 
     by the Department; or
       (ii) prevent any breaches of fiduciary duty in the future.
       (2) Relationship to previous studies.--When investigating 
     facts and circumstances relating to the management of Indian 
     trust assets and trust funds, the Commission shall--
       (A) first review the information compiled by, and the 
     findings, conclusions, and recommendations that resulted 
     from, previous studies (including congressional 
     investigations); and
       (B) after that review, pursue any appropriate area of 
     inquiry if the Commission determines that--
       (i) earlier studies had not investigated that area;
       (ii) the earlier investigation of that area had not been 
     complete; or
       (iii) new information not reviewed in the earlier studies 
     had become available with respect to that area.
       (3) Followup review.--At least once every 2 years after the 
     date on which the Commission submits the report under 
     paragraph (1), the Commission shall--
       (A) reconvene to examine the effectiveness of any actions 
     taken in response to the report in achieving the goals 
     described in clauses (i) and (ii) of paragraph (1)(D); and
       (B) submit to the President and Congress a report that 
     describes the findings of the Commission and makes any 
     further recommendations as the Commission considers 
     appropriate.
       (f) Powers of Commission.--
       (1) In general.--
       (A) Hearings and evidence.--The Commission may--
       (i) hold such hearings and sit and act at such times and 
     places, take such testimony, receive such evidence, and 
     administer such oaths as the Commission considers advisable 
     to carry out this section; and
       (ii) subject to subparagraph (B)(i), require, by subpoena 
     or otherwise, the attendance and testimony of such witnesses 
     and the production of such books, records, correspondence, 
     memoranda, papers, and documents, as the Commission or such 
     designated subcommittee or designated member may determine 
     advisable.
       (B) Subpoenas.--
       (i) Issuance.--

       (I) In general.--A subpoena may be issued under this 
     subsection only--

       (aa) by the agreement of the Chairperson; or
       (bb) by the affirmative vote of 6 members of the 
     Commission.

       (II) Signature.--Subject to subclause (I), subpoenas issued 
     under this subsection may be issued under the signature of 
     the Chairperson or any member designated by a majority of the 
     Commission, and may be served by any person designated by the 
     Chairperson or by a member designated by a majority of the 
     Commission.

       (ii) Enforcement.--

       (I) In general.--In the case of contumacy or failure to 
     obey a subpoena issued under subparagraph (A), the United 
     States district court for the judicial district in which the 
     subpoenaed person resides, is served, or may be found, or 
     where the subpoena is returnable, may issue an order 
     requiring such person to appear at any designated place to 
     testify or to produce documentary or other evidence. Any 
     failure to obey the order of the court may be punished by the 
     court as a contempt of that court.
       (II) Additional enforcement.--In the case of any failure of 
     any witness to comply with any subpoena or to testify when 
     summoned under authority of this section, the Commission may, 
     by majority vote, certify a statement of fact constituting 
     such failure to the appropriate United States attorney, who 
     may bring the matter before the grand jury for its action, 
     under the same statutory authority and procedures as if the 
     United States attorney had received a certification under 
     sections 102 through 104 of the Revised Statutes (2 U.S.C. 
     192 through 194).

       (2) Contracting.--The Commission may, to such extent and in 
     such amounts as are provided in Acts of appropriation, enter 
     into contracts to enable the Commission to discharge the 
     duties of the Commission.
       (3) Information from federal agencies.--
       (A) In general.--The Commission may secure directly from a 
     Federal agency such information as the Commission considers 
     necessary to carry out this section.
       (B) Provision of information.--On request of the 
     Chairperson of the Commission, the head of the agency shall 
     provide the information to the Commission.
       (4) Assistance from the secretary of the interior.--The 
     Secretary of the Interior shall provide to the Commission on 
     a reimbursable basis administrative support and other 
     services for the performance of the functions of the 
     Commission.
       (5) Postal services.--The Commission may use the United 
     States mails in the same manner and under the same conditions 
     as other agencies of the United States.
       (g) Personnel Matters.--
       (1) Compensation of members.--A member of the Commission 
     who is not an officer or employee of the Federal Government 
     shall be compensated at a rate equal to the daily equivalent 
     of the annual rate of basic pay prescribed for level IV of 
     the Executive Schedule under section 5315 of title 5, United 
     States Code, for each day (including travel time) during 
     which the member is engaged in the performance of the duties 
     of the Commission.
       (2) Travel expenses.--A member of the Commission shall be 
     allowed travel expenses, including per diem in lieu of 
     subsistence, at rates authorized for an employee of an agency 
     under subchapter I of chapter 57 of title 5, United States 
     Code, while away from the home or regular place of business 
     of the member in the performance of the duties of the 
     Commission.
       (3) Staff.--
       (A) In general.--The Chairperson of the Commission may, 
     without regard to the civil service laws (including 
     regulations), appoint and terminate an executive director and 
     such other additional personnel as are necessary to enable 
     the Commission to perform the duties of the Commission.
       (B) Confirmation of executive director.--The employment of 
     an executive director shall be subject to confirmation by the 
     Commission.
       (C) Compensation.--
       (i) In general.--Except as provided in clause (ii), the 
     Chairperson of the Commission may fix the compensation of the 
     executive director and other personnel without regard to the 
     provisions of chapter 51 and subchapter III of chapter 53 of 
     title 5, United States Code, relating to classification of 
     positions and General Schedule pay rates.
       (ii) Maximum rate of pay.--The rate of pay for the 
     executive director and other personnel shall not exceed the 
     rate payable for level V of the Executive Schedule under 
     section 5316 of title 5, United States Code.
       (4) Detail of federal government employees.--
       (A) In general.--An employee of the Federal Government may 
     be detailed to the Commission without reimbursement.
       (B) Civil service status.--The detail of the employee shall 
     be without interruption or loss of civil service status or 
     privilege.
       (5) Procurement of temporary and intermittent services.--
     The Chairperson of the Commission may procure temporary and 
     intermittent services in accordance with section 3109(b) of 
     title 5, United States Code, at rates for individuals that do 
     not exceed the daily equivalent of the annual rate of basic 
     pay prescribed for level V of the Executive Schedule under 
     section 5316 of that title.
       (h) No Effect on Cobell Case.--Nothing in this section 
     limits the findings, remedies, jurisdiction, authority, or 
     discretion of the court in the civil action Cobell v. Norton, 
     Civ. No. 96-1285 (RCL) (D.D.C.).
       (i) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as are necessary to carry out 
     this section.
       (j) Termination of Commission.--The Commission shall 
     terminate on the date that is 10 years after the date on 
     which the Commission submits the report of the Commission 
     under subsection (e)(1)(D).
                                 ______