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Harper: Swimmer needs to face trust reform failures

In 1994, Congress was so frustrated by the U.S. Interior Department’s inability to fix the long-troubled Indian rust programs that it created an Office of Special Trustee to untangle the mess.

The idea was simple enough: Place an executive with proven business experience in charge of the programs. Congress made that person a presidential appointee accountable for the cleanup.

The first two trustees were good fits, but they proved so candid about the huge problems that Interior secretaries in both the Clinton and Bush administrations finally pushed them out of office. That’s not likely to happen again any time soon. Why?

Ross Swimmer, the current trustee, has refused to be an independent voice of reform like his predecessors. He is content to be a shill for the administration.

The way Swimmer, a former head of the BIA in the Reagan administration, sees his job, he is not a neutral overseer nor an advocate for Indian landowners, as the 1994 American Indian Trust Fund Management Reform Act requires. He is instead a cheerleader, a loyal Bush partisan who will not tolerate criticism of Bush’s programs and will defend in knee-jerk fashion the most indefensible government misconduct.

Never mind that Interior, both under Swimmer as BIA head and more recently in the federal courts, has acknowledged massive malfeasance in its handling of Indian trust funds. Forget that the courts have called Interior’s trust activities an “egregious breach of trust,” unconscionable” and “odious.”

If any Indian dares question what the government says is in his trust account, Swimmer is there to challenge him. The special trustee did that recently, telling Indian Country Today that Tex Hall, chairman of the Three Affiliated Tribes – the Mandan, Hidatsa and Arikara Nation – was all wrong in his account of an elderly woman who desperately sought money for a motorized wheelchair from her trust account [See “Interior calls Hall on accuracy of trust account” by Jerry Reynolds, Vol. 25, Iss. 47].

Swimmer said flatly that the unnamed woman, who has since died, had only $13 in her account. No wheelchair for you, said Swimmer. That was it. No qualification about the sketchy and incomplete records that his predecessors as Special Trustee said makes any such claim of account accuracy impossible.

No, Swimmer simply ignores the facts that have been demonstrated time and again by report after report – from the Government Accounting Office, the Interior’s own Inspector General, the Office of Management and Budget, Comptroller General committees from both the House and Senate, and the government’s own auditors – not to mention the admissions by the most senior Interior officials in administration after administration – showing fraud, corruption, trust record destruction and mismanagement pervading the Indian trust.

Swimmer nevertheless presumes that all of the hopelessly unreliable information he has is completely and wholly reliable, even though he is charged by law to hold the government accountable.

More recently, he has attacked an unnamed Navajo woman who says she has pumping oil wells on her land and little to show for the BIA-negotiated leases. It’s simply that there are others now holding title to the land, says Swimmer. If that woman is Mary Johnson who testified in the Cobell v. Norton lawsuit last summer, Swimmer should state the whole story – that U.S. lawyers did not challenge a word of her testimony.

Moreover, Swimmer fails to explain why his office has allowed an oil and gas company to use a pipeline across Johnson’s land for the last five years without a lease and without paying her a dime. This is despite repeated attempts by Johnson and her family to have the issue addressed by the Office of Special Trustee.

Of course, Swimmer’s loyalties are not with the Indians he is charged with serving, but the very oil companies on which he is supposed to enforce the law. The result – what one would expect and what has been the experience of Indians for too long – abuse.

Now Swimmer adds insult to injury by suggesting that Johnson doesn’t own much. Not true. He is either lying or ignorant.

What Swimmer has done with these two smears, one on a dead woman and the other on an elderly Navajo, is to say that no Indian should dare challenge the government’s handling of their money. If you do, we’re going to smack you down, just as we have done since this trust was established in 1887.

This is not simply the ranting of a public official who is wrong, but one who has no understanding whatsoever of the role of a trustee. Nor does he seem to comprehend how his own people have been (and continue to be) wronged by the government that pays his salary.

In this way, he has utterly failed in the position that he is charged with serving.

Swimmer now has the opportunity to do the right thing. He can still stand up and tell the truth. He can tell you that his own experts placed government liability in 2002 at between $10 billion to $40 billion.

He can admit that trust information is by and large inaccurate, as his “data cleanup” project has demonstrated with unmistakable clarity. He can concede that Interior is failing in its most fundamental and essential trust reform efforts and that still today they don’t have basic things like an accounts receivable system.

Or he can continue to obfuscate and unconscionably delay the resolution of this case and continue to spread untruths in the press. This latter course, however, is a precarious one, because no longer will Indian people sit idly by as we are abused by this broken trust system and this cabal of bureaucrats. We will make sure the truth comes out and ensure that those who have hidden it and obstructed the litigation process will be held accountable for their misdeeds.

Keith Harper is a lawyer for the Native American Rights Fund in Washington and a member of the Cobell litigation team.