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An Interview with Keith Harper

Part two

Keith Harper, an attorney with Native American Rights Fund, has been part of the attorney team working on Cobell v. Norton since the inception of the lawsuit, which seeks an accurate accounting from the Interior Department of the Individual Indian Money trust accounts, as well as reform of IIM accounting systems and a restatement of the accounts. Congress is currently considering legislation that would restate the accounts and settle other outstanding points of contention between the litigants.</i>

Keith Harper: Now let me just run through some numbers. If you’re talking a 20 percent error rate, based on all their [Interior Department’s] numbers. Because there’s certain things that people think of as variables that aren’t variables. The government concedes that between 1909 and about 2000, $13 billion without interest came through, was deposited into the Individual Indian [Money] trust. That’s their number. Among other places, that was stated in their proposed findings and conclusions for trial one point five. …. I’m not making this up. This is their number. ... They’ve testified to that routinely ... $13 billion between 1909 and 2000. ...

Interestingly, if you take the normal interest rates utilized by the BIA with respect to how they actually invested these funds, those are the interest rates that ought to be utilized. But I see some talk sometimes of, Oh, we should use a 3 percent interest rate. We should use a 4 percent – no, we shouldn’t use any interest rate except for the actual interest rate. And those are identifiable. ...

You take that and you go back to 1887, and you get a flow of what the interest rate was, actually – that was actually utilized. And that’s the way to do it, right ... so we’re using actual data from them. And if you take that $13 billion, and you give the actual interest rate, then all you have to do is figure out what the error rate is. That’s all you have to figure out. Because everything else is nonvariable. And if you do it that way, based on their own $13 billion, a 10 percent error rate is $14.8 billion. A 20 percent error rate is $29.7 billion dollars. ….

What are we talking about when we talk about 20 percent error rate? We’re talking about – despite the fact that the government has conceded in report after report – that they have no internal controls, none. They have no accounts receivable system. They have fraud. They have corruption. …

With respect to the historical accounting, no internal controls, fraud, corruption, pervasive in the institution, use of Indian trust fund as slush money, slush funds. This is all from their own reports. To say that there is a 20 percent error rate means that they properly collected, invested and disbursed to the correct beneficiary 80 percent of the monies. Now given what we know of the record of malfeasance from the very beginning, that is very high, to say 80 percent reached the right person. ... Four out of five times they actually collected, invested and disbursed properly? I mean, you know, I’ve got a lot of bridges I can sell you if you believe that, you know, I mean given what we know about this system and given what they’ve already documented. Now nothing they’re doing, with respect to their accounting, is actually getting close to testing these issues. Collections, investments, disbursements – they don’t test them.

For example, they say a disbursement transaction is supported if it is on their ledger. So they have it on their ledger, and it’s considered supported because it’s on the ledger. You see, there’s no check on it. They need some supporting documentation. ... The notion that they could have no supporting documentation and still consider it accounted for is exactly what you don’t do in an accounting.

ICT: ... Are you really not confident in what Ross Swimmer [the Department of Interior’s special trustee for the Indian trust] and the folks [at the Office of the Special Trustee within the Interior Department] are doing, in terms of just reform?

Harper: I am absolutely not confident. ... There is no reason to have any confidence, first of all. …

ICT: And this is – the court tested this? Is this what the court tested?

Harper: Precisely. Yeah, oh yeah. It’s all in the findings of the District Court. So, so Ross Swimmer …

ICT: Well, let’s say Swimmer says Anadarko [agency] has tested OK, we’re pretty happy with where we’re at with the Anadarko system, because they’ve brought some system online and [it] seems to work?

Harper: … I anxiously await their ability to demonstrate in a court of law that the Anadarko agency [trust accounting system] works. ... The fact of the matter is that we have our sources as well. And they’re not through the filter of the administration. ...

<i>Continued in part three