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Bush administration plans major BIA restructuring

WASHINGTON ? In a move that sent shockwaves through Indian country, the Interior Department announced plans to create a new agency to take over responsibility for federal management of tribal trust assets, stripping the authority from the BIA.

The administration's announcement comes as part of the Cobell vs. Norton litigation, with the plan first mentioned in papers filed with the court. Interior offers the new agency as an alternative to an independent, court-appointed "receiver," an individual or group of individuals appointed by the court to take over control of trust management decisions currently made by administration.

Instead of supporting the idea of a receiver, Secretary of Interior Gale Norton said she plans to strip the BIA of its trust management responsibility through a secretarial order. The new agency will be called the Bureau of Indian Trust Assets Management, or BITAM, and will be headed by a new assistant secretary of Indian Trust Assets Management.

Associate Deputy Secretary of Interior James Carson told tribal leaders the person Norton has in mind "is Indian" and "has had experience with trust management."

Tribal leaders and American Indian plaintiffs in the Cobell case have been pushing for reform of the current trust management process, but are concerned about this new proposal, which they say was a hastily development under legal pressure, without tribal consultation.

"Though the secretary has espoused the C's of communication, coordination and consultation, her department and its leadership have repudiated the tenets it has claimed to embrace in the proposal of this reorganization," said Susan Masten, president of the National Congress of American Indians.

"Without consultation with the tribes, the process is not well thought out, and does not represent tribal priorities."

Ron Allen, chairman Jamestown S'Klallam, Washington state, likewise noted he is

"very concerned about the proposal and if it's the right solution. I mean we have to ask ourselves, if it is going to create more problems than it solves and whether it is going to ultimately infringe on our rights to self-governance.

"The problem is that the tribes have not been consulted and if they (the federal government) are going to move this forward without consulting the tribes this becomes a major concern for the tribes."

Allen Lawson, chairman of San Pasqual tribe in Southern California agreed with the spirit of change, saying the BIA and the Department of Interior need "to be streamlined. As I remember it, we are the Natives here and we should be given the right to purchase the land around our own reservations without having to wait 10 or 15 years.

"Here at San Pasqual we don't have enough land for our own people and we have to deny them some basic rights, like housing and other services that we give other members. I just think that the bureaucracy needs to be streamlined."

In a briefing with Interior staff, Secretary Norton said details about the new agency are intentionally sketchy since Interior plans to consult with field staff, tribes, and others to shape the final plan. Norton also indicated the department is in the process of identifying BIA funds currently used for trust functions to establish the new agency. Some believe that as much as $100 million will be set aside for the agency's creation.

Ross Swimmer, former head of the BIA and former chief of the Cherokee Nation, will head the administration's efforts to develop the new agency, along with Assistant Secretary Neal McCaleb.

While heading the BIA under Ronald Reagan, Swimmer proposed turning over management of tribal trust assets to private contractors or developing a new "trust" agency. Both Swimmer and McCaleb served on a presidential commission under Reagan which came under fire for some controversial recommendations, including trust management.

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It was this commission's report, backed by McCaleb and Swimmer, which raised serious concerns throughout Indian country at the time the federal government was looking to limit its responsibilities to tribes and some of the rights of tribal governments. Issued in November 1984, the report was the culmination of work completed by the "Presidential Commission on Indian Reservation Economies," a nine-member panel established to advise the president on "what actions should be taken to develop a stronger private sector on federally recognized Indian reservations" and to "reduce the federal presence in Indian affairs."

The panel was comprised of Indian and non-Indian individuals from the private sector, tribal governments and the federal government. Robert Robertson, a vice president of Occidental Petroleum Corp., and Swimmer were co-chairmen.

McCaleb, then the owner of an architectural and engineering firm and a board member of the Memorial Bank of Oklahoma City, was one of six tribal members, including Swimmer, who served on the commission.

In its report, the commission recommends subjecting tribal courts to authority of the federal court system, limiting a tribe's use of sovereign immunity, replacing the BIA with a new streamlined agency and including non-tribal members in tribal government votes on taxation.

While the report also contains a number of pro-tribal recommendations and suggestions for improving economic conditions on Indian lands, it was these areas which raised an immediate outcry from tribes across the country once the report was released.

It recommended that a new agency called the "Indian Trust Services Administration" be created in place of the BIA and charged with overseeing trust assets and some obligations, but block granting funds to tribes with the ultimate intent of allowing them to contract for their own services.

The report become so controversial, one commissioner, Coeur d'Alene Chairman David Matheson, condemned the report's recommendations, labeling the group as inexperienced and "uninformed." Matheson says that he complained about the reports findings before it was to be issued and told other members that tribes would never support its recommendations. He even questioned why some, like Ross Swimmer, would even think of supporting such proposals.

After the report's release, tribes throughout the country characterized it as a threat to tribal sovereignty and the federal trust relationship. Organizations like the National Congress of American Indians and the National Tribal Chairman's Association were the most outspoken.

At the time, Elmer Savilla, executive director of the National Tribal Chairman's Association, called it "the most dangerous paper on proposed Indian policy to be written in many years."

On the other side, Neal McCaleb became one of the most outspoken supporters of the report. "The recommendations are controversial and they are sweeping in nature, so we had expected some not-so-unanimous reaction," McCaleb told the Washington Post in 1985.

The administration's new proposal is similar to what the commission recommended, but is by no means the same proposal. However, the idea is bringing about some of the same reactions from tribes and some in Congress.

"We are basically talking about someone else overseeing the federal government's trust responsibilities for Indian people," said Gregg Borland, chairman of the Cheyenne River Sioux Tribe in South Dakota. "This is a dramatic shift from past practice."

Some members of Congress also are baffled by Interior's decision.

House Resources Committee Vice Chairman Nick Rahall, D-W.Va., is requesting a comprehensive oversight hearing as soon as possible to hear from Interior officials about their plan.

"Despite the decades of long involvement in reforming the Indian trust fund management problems, to my knowledge, this committee has yet to be officially notified or consulted with on this drastic change," Rahall said. "It is also my understanding that the affected Indian tribes and Indian account holders have been kept in the dark about the formation of this new agency. While there may be merit to this latest proposal, we simply don't know any details."

Deputy Secretary J. Steven Giles and Assistant Secretary McCaleb are expected to meet with tribal leaders at NCAI's annual meeting in Spokane, Wash., at the end of the month. The judge in the Cobell case has scheduled a status hearing Nov. 30, where he may address the new proposal, as well as contempt charges against administration officials.