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An Alternative Trust Plan for Interior

Since my departure from Washington, D.C. in 1992, I have maintained a low level of visibility even though I did not entirely retire. I am compelled to speak out at this time by the unveiling of Interior Secretary Gale A. Norton's far-reaching plan, which she contends would cure the ills that have chronically inhibited Indian trust reform.

As former lobbyist and the first Interior Assistant Secretary for Indian Affairs, I view this plan against a backdrop of long institutional knowledge of Congress, Interior and the Indian field. Also, I am a trust account holder by virtue of my undivided interest in an allotment on the Blackfeet Indian Reservation in Montana.

Secretary Norton's sketchy proposal was literally dropped into the laps of senators and congressmen who serve on relevant committees that legislate and appropriate for Indian affairs. Not surprisingly, Congress is perplexed, skeptical and disturbed about a proposal of this magnitude being advanced with no warning and insufficient detail.

No meaningful consultation was accorded to tribal leaders either. They learned of the Norton plan through the rumor mill. This is a sad reflection on the Secretary's understanding of tribal self-determination and the earnest dialogue that must be a fundamental facet of enlightened Indian policies.

The response from tribal leaders has been swift and critical. They stand in near total opposition to the plan. They are summoned to Interior's hastily arranged perfunctory "consultations" around the country at the same time as the plan is being aggressively implemented in Washington, D.C.

Very generally, the Norton plan is an executive fiat premised on an unprecedented restructuring of the Bureau of Indian Affairs?absent any congressional, tribal or public input. As such, it violates protocol in Executive Branch dealings with Congress and relationships with sovereign tribes on matters of Indian policy formulation.

Interior officials are on record as saying that the plan is a direct result of the immediate need to show the federal judge in the Cobell v. Norton litigation "who is in charge." The plan is flawed in this and many respects. Perhaps the Secretary's highly placed advisors and architects of the plan should be assigned to a BIA office on an isolated reservation to gain insight on how their notions play out in the conditions brought about by decades of neglect.

Any objective analysis of the BIA's performance will reveal that it has been subjected to vacillating federal Indian policies?from paternalism to termination. A case can be made that the BIA is a victim of high-level federal officials who have failed to provide it with an adequate level of financial and human resources to fulfill its responsibilities to Indian country.

This chronic neglect of trust duties has contributed to dysfunctional management and financial systems emerging at all levels of the BIA. But it is the reservation level agency offices that have been most adversely impacted. Dedicated Indian and non-Indian personnel have been forced to work in substandard facilities, with inadequate support, and to make do with what they had.

The cumulative effects of this longstanding neglect are major deficiencies in the management of individual Indian trust assets that produce much needed revenues from mining, grazing, logging and other royalties.

The Master and Monitor appointed by Judge Royce Lamberth in the trust funds case charge that Interior and BIA have squandered millions of dollars of appropriated funds in misguided efforts to repair the damage arising from mismanagement. Unfortunately, Interior's reliance on outside private contractors to bring computer-based technology to bear on management deficiencies has failed and even resulted in further misuse of appropriations.

The Norton plan contemplates a Bureau of Trust Assets Management (BTAM). All responsibilities identified as trust-related would be transferred to BTAM from the BIA. A new Assistant Secretary for Indian Trust Assets Management would handle policy matters within BTAM and report directly to the Secretary. A Bureau Director would provide day-to-day management of the new BTAM.

The justification for this new bureau is based upon the banking industry's standard that trust activities must be segregated into a separate organization in order to create an ethical wall between the trust department and all other departments within a bank. The purpose of this is to prevent the sharing of information between the trust department and the rest of the bank. Thus, since the Norton plan would transfer Realty to BTAM, there would be no exchange of information between Realty and, say, Economic Development, which would remain with the BIA. Although the ethical wall is a sound tenet in the private sector financial community, it may not be directly adaptable to a government agency that relies heavily on the free flow of internal information. Further, two totally freestanding and artificially divided bureaus to serve Indians interests would invite arguments over limited resources and would foster duplicative and conflicting efforts.

Implementation of this plan would significantly diminish the role of the existing Assistant Secretary for Indian Affairs. The BIA would be so fractured that its remaining functions likely would be outsourced to other federal entities (such as the Departments of Education, Transportation, Justice, Commerce, Health & Human Services, etc.). While this prospect might please the adamant detractors of the BIA, it would effectively eliminate the primary source of informed advocacy and support for issues on behalf of Indian tribes and people.

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If the Norton plan is allowed to go forward, it will surely poison the climate of Indian affairs and exacerbate the atmosphere of mistrust between Interior and tribal leaders?severely inhibiting Interior's work with tribes on other significant issues.

In fairness to Secretary Norton, it must be said that she did not create the trust reform crisis?it was on her desk upon her arrival at Interior. However, she is squandering a priceless opportunity to finally resolve the quandary by relying on a management study conducted by an outside technical team that gave no deference to federal-Indian relations. Her plan bears the fingerprints of no one who is conversant with Indian law, public administration, crisis management or tribal relations. In fact, it appears that the trust reform crisis has been used as a vehicle to seriously diminish BIA's advocacy role on behalf of tribes, if not eliminate it altogether.

It would not be constructive to criticize the Norton plan without providing a credible alternative proposal. My alternative is conceptualized within a management context, but implicitly and explicitly gives deference to federal-Indian relations by leaving the BIA intact.

I submit that meaningful trust reform can be achieved by the establishment of a strong policy leadership office, with appropriate authority and staffing, working with the BIA and the Office of the Special Trustee. It is not necessary to dismantle the BIA in order to demonstrate "who is in charge." It is only necessary to create, say, an Office of Trust Reform Implementation and Oversight.

Under this alternative, a new Deputy Secretary of Interior for Trust Reform would be appointed, reporting directly to the Secretary. This is the person who will be "in charge." The current Assistant Secretary for Indian Affairs and the Special Trustee who oversees the OST would report directly to the new Deputy Secretary on all matters involving trust reform.

The new Deputy Secretary would need to be vested with broad authority and clout to marshal and oversee the financial and human resources of both the BIA and the OST to move meaningful trust reform forward. The incumbent's authority would be reinforced by close proximity to the Secretary, which should serve to motivate any recalcitrant official in either the BIA or OST.

The new Deputy Secretary would assemble a small but highly qualified staff knowledgeable in Indian law and tribal relations, public administration, congressional relations, trust concepts, trouble-shooting, economics and public information. From top to bottom in this new office, a thorough recruitment effort would need to be undertaken to identify prospective candidates with the appropriate professional expertise. The new Deputy Secretary, in particular, would need to be able to demonstrate extensive leadership experience and a thorough knowledge of the "line and staff chain of command" concept and its applicability to organizational problem-solving, decision-making, monitoring and evaluation.

There are scores of highly qualified and successful professionals who are currently in private sector corporations, the public sector, military, etc. who would be challenged by the scale and urgency of the charge assigned to the new Office of Trust Reform Implementation and Oversight. Many of these men and women would respond to a call to public service for this reason alone.

The new Deputy Secretary would be appointed for a six-year term in order to extend into the next administration. This person would serve at the pleasure of the President, and he/she would be subject to the advise and consent of the United States Senate. The incumbent, of course, could be removed for just cause.

The Office of Trust Reform Implementation and Oversight is tendered as an alternative to the Norton plan, which is fraught with myriad legal, political, budgetary and public administration problems. Significantly, this straightforward alternative proposal does not include a move to radically dismantle the BIA. Instead, it establishes a new, high-level office within Interior charged with the unmitigated responsibility of trust reform. Moreover, this methodology amasses the line authority and resources to optimize meaningful trust reform efforts.

In addition to better serving the various constituencies throughout Indian country, this approach clearly satisfies the judiciary requirement that a "boss of all bosses" be identified and held accountable to finally bring about long-awaited and much-needed trust reform to Native America.

I have developed this alternative proposal to the Norton plan in the hope that it will stimulate analytical and innovative thinking in the Indian field and result in other credible alternatives that do not include the contentious and unnecessary bifurcation of the BIA.

No one in the Indian field will deny that there is an irrefutable need to implement a strong and effective trust reform initiative. True trust reform need not and must not come at the cost of the destruction of the primary Indian advocacy voice within the Department of the Interior.

Forrest J. Gerard (Blackfeet), the first Assistant Secretary for Indian Affairs, in the Carter Administration, and the first Native American lobbyist in Washington, D.C., crafted much of federal Indian policy in the 1970s and 1980s.