by Suzan Shown Harjo
Columnist
Indian Country Today
The United States has a trust responsibility to Native American nations and
people. Federal courts describe this fiduciary obligation as a duty of care
of the highest responsibility and trust, tracing it back to the earliest
days of the republic.
“The General Government will never consent to your being defrauded, but it
will protect you in all your just rights.” That’s how President George
Washington explained the concept when he met with the Seneca Nation in 1790
to discuss the first U.S. Indian trust law.
Not all federal bureaucrats fully understand the trust, but many do their
best to live up to its high standards and basic decency.
There are others who dislike the trust, unless they can control Indians and
exploit Indian property in its name. They try to wiggle out of the trust
when it comes to exercising it to benefit the intended beneficiaries, Native
Peoples, and they try to whittle down the trust when it starts costing
money.
History instructs that all U.S. administrations have circumvented, limited
or ignored their trust obligations, or have tried their best to do so. This
one is no different.
The first thing that incoming Interior secretaries and Indian bureau heads
do is cross their hearts and pledge to Congress that they will uphold the
trust and take care of Indians, a promise open to disparate interpretations.
The second thing they do is announce plans to shake up the BIA, implying
that it is solely to blame for the failures of the Trustee United States.
This paves the way for Interior’s other agencies and constituencies to snack
around on Indian property and rights.
The reorganizations become the excuse for unfinished jobs, inadequate
protection and trust dereliction, should anyone call the question. They
usually take effect in the fourth year and the process begins anew after
that, even if the administration has a second term. The cycle is predictable
and has completed itself in most administrations since the BIA was placed in
Interior almost 150 years ago.
So, here we go again.
Interior Secretary Gale A. Norton has just announced – surprise, surprise –
that her department is reorganizing the BIA. Under this plan, Indian “trust
assets” would be taken from the BIA and placed in a new Indian trust assets
management bureau.
Like many federal officials before her, she is trying to make a trust
category of only tangible resources. If you can walk on it, drink it, mine
it, lease it, sell it or spend it, it is a trust asset.
Everything else – people, education, social services, child welfare, elder
care, suicide and substance abuse prevention, law enforcement – is
“trust-like” (or “trust-lite,” as they say around the water cooler). The
goal is to remove the people from the trust and eventually slough them off,
keeping only the things for the trust corpus.
Secretary Norton did not advise or consult with tribal governments about the
plan, even though she is required to do so by the Indian reorganization act
and a Nov. 6, 2000 executive order. Maybe Indians slipped her mind, even
though it was the middle of National American Indian Heritage Month and the
week before Thanksgiving, a time when most people tend to remember us.
Perhaps she thought everyone would be too busy — what with giving money and
workers to the 9-11 relief and security effort, serving in the war against
terrorism and handling the ongoing emergencies in Indian country.
She also failed to consult with congressional leaders who oversee Indian
affairs, notifying the Senate Indian committee chair and vice-chair of the
plan the day before it was filed and providing only an organizational chart
of the new bureau. Others in the House were taken by surprise. It is a
breech of protocol that could result in oversight hearings and directives to
reverse course.
Secretary Norton made the reorganization pronouncement in a Nov. 15 notice
to the federal district court in the ongoing trust funds case. That case
focuses on more than a century of missing and unaccounted for money,
dislocated documents and dealings ranging from the incompetent to the
dishonest. It was filed in 1996 as a class action suit by five Native
Americans on behalf of some 500,000 individual Indian money account holders.
Judge Royce Lamberth presides over the trust funds case and held the Clinton
administration’s Interior and Treasury secretaries and the Indian affairs
assistant secretary in contempt of court for not complying with orders to
produce documents. He recently signaled that he is on the brink of finding
this Interior secretary in contempt, too.
Judge Lamberth also said he might remove the trust funds from Interior’s
political leadership and place it in a management receivership until the
system is fixed. He gave Interior and the Justice lawyers until Nov. 16 to
say why he should not cite the secretary and name a receiver. The judge will
hear from both sides on Nov. 30.
What does the Norton reorganization plan have to do with the trust funds
case? Very little.
The plan does not address the concerns of the court about the lack of a
system for managing the individual trust funds. It takes all the trust
management functions from the BIA, but Interior’s land and minerals agencies
and the special trustee’s office would keep theirs, defeating the goal of a
comprehensive system and compounding the management problems.
The Norton plan goes far beyond the individual Indian monies that are the
subject of the accounting lawsuit to include all tribal and individual trust
properties. The plan is a transparent effort to co-opt the judge and gain a
court order sanctioning the political reorganization plan.
Interior and Justice also told the court that it does not have the
constitutional authority to appoint a receiver for the individual trust
funds. That one is enough to make the judge laugh off his turkey dinner.
In the meantime, federal politicos and trust bureau job seekers are fanning
out across Indian country, spreading the word that the trust funds case made
Norton do it and she is simply trying to save all trust assets from going
into receivership.
Actually, the case is the only reason that anyone is paying attention to the
trust funds problem and only individual monies, not tribal funds, may go
under a receiver. A receivership would be narrow, specific and temporary.
The Norton trust bureau would be sweeping, vague and permanent.
Tribal leaders are irate and the issue is likely to dominate the upcoming
convention of the National Congress of American Indians, Nov. 25-30 in
Spokane, Washington. Interior will trot out its Indian affairs assistant
secretary, Neal McCaleb (Chickasaw), who has fronted for failed assaults on
the trust in the past.
Former BIA head Ross O. Swimmer (Cherokee) is campaigning to run the new
trust assets bureau, but tribal leaders are not rushing to endorse him.
During the Reagan administration, he tried to remove education from the
trust and turn it over to the states. He also had his chance to fix the
trust funds problem during his tenure, but failed to improve it or even take
it seriously.
It is time for Interior to stop tinkering with the trust and to start living
up to it.
It is time “to work with tribal governments on a sovereign to sovereign
basis to provide Native Americans with new economic and educational
opportunities.” That’s what President George W. Bush said his administration
would continue to do, as he proclaimed Native heritage month on Nov. 12,
three days before Secretary Norton pulled the sneak attack on the trust.
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