Receivership Weighed For Indian Trust Funds; Norton's Plan for New Bureau Draws Criticism
The Washington Post
By: Ellen Nakashima
Washington Post Staff Writer
January 25, 2002
The government's management of Indian trust funds is in such disarray that a federal judge is considering whether to place the job in the hands of a receiver.
That would be a huge embarrassment to Interior Secretary Gale A. Norton, who is facing a contempt charge for failing to clean up the mess. But in November, Norton proposed a remedy: put all the trust fund duties, now spread among several offices but primarily entrusted to the Bureau of Indian Affairs, into a new Bureau of Indian Trust Asset Management.
Ironically, Norton's plan is outraging the very group it is intended to help. Native Americans, already wary of the federal government's commitment to dealing with them on a nation-to-nation basis, see Norton's move as a first step in the weakening of the BIA. Despite any complaints Indians may have had about BIA operations, the agency has become the symbol of the government's commitment to a sovereign Indian Country.
"Creating a new agency doesn't create reform," Tex Hall, president of the National Congress of American Indians, told Norton at a Dec. 13 meeting in Albuquerque attended by members of more than 80 tribes.
"It's just another stall tactic to divert attention off the real issue," said Elouise Cobell, a member of the Blackfeet tribe in Montana and a prominent plaintiff in the class action against the federal government over trust fund mismanagement that is at the center of Norton's troubles. "I'm totally opposed to the creation of a new bureau. All you'll do is you have the same people involved in trust reform now, and they're not doing the right thing."
If trust management is stripped from BIA, what would be left, the Indians fear, are functions easily subsumed by other agencies: Indian schools, which could move to the Education Department, and road building, which the Transportation Department could take over. If these and other programs are parceled out, there will be no one office responsible for Indian concerns. Perhaps what has angered the Native Americans the most is that Norton came up with her plan without first consulting the tribes.
"It's a permanent shifting of the government-to-government relationship," said Keith Harper, a lawyer with the Native American Rights Fund, representing the plaintiffs in the lawsuit.
The plaintiffs last October filed a motion asking U.S. District Judge Royce C. Lamberth to order that the individual trust accounts be placed in receivership, saying they do not believe that the government is capable of handling the accounts now. "Once it's fixed, give it back to the department," Harper said.
But Interior officials say what Norton is proposing is not to eliminate or dilute the BIA, but to rationalize the welter of Indian programs. The Indian trust fund program, which handles an estimated $3.1 billion in assets from oil, gas, timber, grazing and other natural resource royalties, has been hampered by more than 100 years of neglect and mismanagement. The government does not really know how much is in the trust. The Indians say billions of dollars in individual trust funds are unaccounted for.
It makes sense, federal officials say, to consolidate the trust functions in a single entity. Money and personnel would move from the BIA and the special trustee's office to BITAM. A new assistant secretary for Indian trust asset management would oversee the daily management of 1,400 tribal accounts and at least 300,000 individual trust accounts.
The new bureau is needed, Norton said, "to ensure that we move forward in the management of Indian trust reform."
The BIA is widely considered one of the worst-managed agencies in government, and has long been a target of reformers. However over the decades, it has gradually been shaped to Native Americans' needs, with more than 10,000 employees, most of them in field offices across the country. The vast majority of its workers are Native Americans.
And the bureau's very presence on the Indian reservation -- that BIA sign on the superintendent's office -- is about the only reassurance, Native Americans say, that the federal government is committed to dealing with Indian tribes as sovereign entities.
If that nation-to-nation relationship weakens, Indians are concerned that the states will encroach on their jurisdiction, said John Dossett, general counsel for the National Congress of American Indians. He said, for example, that some states have tried to assert that Indians cannot speak their own language in their schools.
Interior Department spokesman John Wright said the federal government is not weakening the BIA, created in 1824.
"All we're proposing is that all those functions that are responsible for Indian trust be under one assistant secretary," he said. BIA, he said, will still be "the primary point" for all bureau activities.
"The government-to-government relationship remains whether it's in the Bureau of Indian Affairs or in BITAM," he said.
Interior has tried to allay some immediate concerns: It will keep the Indian preference in hiring for the new bureau, and, officials said, the idea is to move BIA employees who work in trust management to the new bureau.
Paul Homan, a former special trustee in charge of trust reform, said the solution is neither the status quo, nor a receiver. Rather, he said, Congress and the White House should create a Resolution Trust Corp.-style entity to clean up the mess. Put a time limit on it, say, five years. Then, once the records are resolved and modernized -- but only then -- the agency can reassume control.
"The real issue is you cannot reform from within," Homan said. "The fact is the government has proved incapable of reforming." In fact, he said, Norton's plan is nothing more than "a dressed-up version" of what Interior staffers proposed to the Clinton administration in the early 1990s. "It didn't work then," he said. "And it won't work now."
Interior vows to soldier on. The consultation process with Native Americans continues through early February. The tribes are putting together a task force to come up with some alternatives. Norton, officials said, is willing to consider their ideas.
Litigation over the trust management also continues, as does a hearing in federal court on whether to hold Norton in contempt.
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