Editors’ note: 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.
Harper: ... I think anybody, again, has to assess people based on their credibility. What have they [Interior Department] said before, and has it been true? And I think if you use that barometer, that measuring stick, what you will see is that what we [plaintiffs] have said is accurate. We’ve talked about IT [information technology] security problems, we had the trial, yes there’s IT security problems. … We said they weren’t turning over documents. They said they were turning over documents. Court finds they were not turning over documents. You go to 1999, summer of 1999. We said their [trust accounting] system was broken, they said it wasn’t broken. They admit on the eve of trial that it is, in fact, broken.
During trial, they say the TAAMS system is going to work, it’s going to be the cure-all, it’s going to be the panacea. We say it’s not. GAO [the Government Accounting Office] says it’s not. Three years later, they pull the plug because it’s not. I mean, you know? They say that they’re reporting accurately. Their lead government council, as I read into the record during oral argument, said ... in February of 2002 that in fact they weren’t accurately reporting, and that the shortcomings on the accuracy of reporting were extraordinary. ... We look at, again, IT security a second time. They say it’s – they fixed everything, nobody could ever break into these systems, they’re invincible and bulletproof … Near-zero vulnerability ... A thousand is near zero. A thousand high-level vulnerabilities, potentially catastrophic to the system, is near zero.
Indian Country Today: Well, let me ask this. All these systems have been disastrous, I don’t think anyone could argue that, from BITAM to TAAMS [through 2002] ... They were all there and they’ve all gone into the dustbin. ... Is there any ongoing improvement there since Swimmer started with the as-is and to-be approach, which you’re familiar with?
Harper: I still don’t see an accounts receivable system. There’s certain basic things, OK. I mean, we can talk about trust reform and we can talk about all these different things ... It all comes down to some very basic things. ... Systems, data and procedures. Those are the three critical elements. ... I don’t care what you’re doing, right. You need systems, you need good data and you need good procedures. …
Data. Let’s talk by their own admission. By their own admission, they’re still in a pilot first phase in Anadarko for data cleanup. You know how many other regions there are that they haven’t basically started with? So all those systems right – all those other places right now are working with what they concede is incorrect data. So they haven’t been cleaned up. …
And whether or not they’ve actually done anything in Anadarko is highly questionable, and has never been tested. All we have is Ross Swimmer’s rosy projections. Now we know about Ross Swimmer’s rosy projections. We’ve tested those before, and they’ve never turned out to be as rosy as he likes to believe them to be.
ICT: Give a specific example there. Of his rosy projections, of what you call his rosy projections.
Harper: Ross has talked about their historical accounting, he’s talked about the Ernst & Young report for example. How everything but $60 of a transaction was accounted for. The report on its face says that it presumes all information is accurate – on its face! And secondly, that there were 14 percent of the transactions that had not a single supporting document. Now what is even more outrageous than that is what they considered supporting documents. ... Fourteen percent of the transactions are not accounted for. That means 86 [percent] in their view are supported. Okay. What do they count for support? A disbursement transaction ... That lease entered 10 years earlier that required you to get
a payment. That is used as the supporting documentation for you receiving a payment? Now how does that work?
How does that in any way demonstrate that you received that payment? ...
ICT: ... I’m sure the response would be something like, “Since you didn’t complain about not getting a payment, or there’s no record of your complaint, we can assume you got a payment.” That would not hold up in court, but in the court of common sense would it be acceptable?
Harper: Not in a trust. One, one, how does the trust beneficiary know he didn’t get a payment? How does the trust beneficiary even know he has a lease? Oftentimes they don’t, because there’s no information. ... You get a check in the mail. That’s all you get. You don’t get – you don’t get anything else. ... And the check’s for different amounts at different times. How do you – how can you possibly know if the trustee has carried out his duties? How do you know if you’ve received all the money you’re supposed to receive? So how do you know to complain? And you ever tried to complain at a BIA agency office? And do they save those complaints? So even if you bought everything else that they’re saying, you can’t buy that.
But the more important thing is that this is a trust. And in a trust, it is not the beneficiary who has to prove anything. It is the trustee. And the trustee has not demonstrated and cannot demonstrate that you received your payment. And he has to be able to do that. He has the obligation. ... Trust law is what are the rules and the expectations that we ought to have when one person is managing someone else’s money, and has full control and authority to do whatever they want to with that property. ...
If that’s what trust law is about, then of course the trustee should keep documents, the trustee should account, the trustee should have loyalty so he doesn’t cut his own side deals ... These are very common-sense ideas when we’re talking about trust law. What do you expect somebody who has full and complete authority over your property to do to ensure that your interests are paramount? And obviously, in that circumstance, when they have complete control and authority, they should be the ones keeping the documents, not you, because you don’t even have control of the documents. …
The fact of the matter is, is every time they’ve made a representation with respect to how they have reformed, the record has turned out to be otherwise. And so now when they make untested, unverified assertions ... without any verification, those should not be taken on face value. It cannot be taken on face value.
Continued in part four