Are Interior and Treasury corralled at long last?
Indian Country Today
By: Elouise Cobell
Guest Columnist
July 17, 2001
A federal appeals court in Washington, D.C., certainly spoke the truth recently when it said the individual Indian trust system was “created over one hundred years ago through an act of Congress, and (has) been mismanaged nearly as long.”
Reform has never been a big feature of the IIM trust, which has been outrageously mishandled by the Interior and Treasury departments, from the late 19th century to today.
This is a BIA program, after all, that gets pounded rhetorically into the earth at nearly every hearing of the Senate Indian Affairs Committee in Washington. Yet its managers never seem to get the message. At the June 13 confirmation hearing of Neal McCaleb to become the new head of the BIA, Sen. John McCain, R-Ariz., the former committee chairman, called the individual Indian trust a “national disgrace … mismanaged to the degree that it totally astounds me.”
Sen. Ben Nighthorse Campbell, R-Colo., lamented, and not for the first time, the “trust fund mess.”
But expressions of congressional disgust have never led, at least so far, to any discernible change of attitude on the part of senior Interior officials.
This summer, however, we’re beginning to see cracks in the myth of government immunity that has surrounded the trust since most of our grandparents were youngsters. Not that this is apparent yet in public statements coming out of the Interior or Treasury departments.
Both Mr. McCaleb and his boss, the secretary of the Interior, have stuck with the party line, assuring Congress that the regrettable IIM problem will be fixed soon, no problem, and communicating pretty much the same message to the court.
But lately there has been a series of developments, the cumulative effect of which is to slowly corner Interior and Treasury, blocking off the exits.
First, it appears the courts are tightening the noose. Besides two legal decisions that went squarely against the government and now are landmarks in Indian trust law, the court has put in place two officials – a special master and a court monitor – whose assignment is to investigate progress on trust reform, assess compliance with court orders and compare what Interior and Treasury are telling the court with what’s actually happening in the field.
As their reports to the judge become known, we expect to get a much clearer picture of the IIM trust’s true prognosis.
Second, the people in Congress who hold the purse strings are running out of patience. Members of the House Appropriations Committee have been waiting for months for Interior to produce details of a so-called “statistical sampling” plan, in answer to the court’s order to account for all of the money that has come into and gone out of the IIM trust.
But statistical sampling has some big problems. It would be extremely expensive and it wouldn’t do what the court has ordered done. In any event, the plan apparently doesn’t exist.
When it approved Interior’s 2002 budget recently, the House committee stated bluntly that it had “no interest” in paying “hundreds of millions of dollars for an historical accounting that provides funds for a protracted reconciliation process whose outcome is unlikely to be successful.”
Statistical sampling is a non-starter because most of the trust records have been lost or destroyed by Interior. A study commissioned by Interior a few years ago found that an attempt to reconcile the trust accounts could cost more than $250 million to get unreliable results for just a 20-year period.
Yet former Interior secretary Bruce Babbitt and current Secretary Gale Norton both told Congress and the court that statistical sampling was the way to go. With its new report, the House Appropriations Committee has signaled its deep skepticism that that concept is cost-effective, or that Interior really intends to carry it out.
With both the court and Congress out of patience, and with a special master and court monitor positioned to dig out the facts, Interior may finally have been corralled. It was no coincidence that government lawyers quietly let the deadline pass for appealing their case to the Supreme Court.
Somewhere in this administration it must be sinking in that, even for the federal government, two major legal defeats are enough.
Editor’s note: Elouise Cobell is a banker in Browning, Mont., and lead plaintiff in the individual Indian trust litigation (Cobell vs Norton).
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