ALBUQUERQUE -? Consultation after the fact is disrespectful and meaningless, Indian leaders are telling Interior Secretary Gale Norton at the first of seven public hearings regarding plans to restructure the Bureau of Indian Affairs.
The message came across so clearly at the first meeting in Albuquerque on Dec. 13 that Norton was visibly strained. She passed up the second consultation, in Minneapolis, Minnesota on Dec. 20, leaving the ordeal to Neal McCaleb, Assistant Secretary for Indian Affairs, and his top aide Wayne Smith.
In Albuquerque, leaders of more than 70 Indian Nations unanimously rejected Norton's plan radically to reorganize BIA. She is proposing to form a new agency to take responsibility for Indian trust funds that have been mismanaged for decades.
"We agree that trust reform is necessary, but simply dismantling the BIA and creating another agency is not the answer," said Tex Hall, chairman of the Mandan, Hidatsa and Arikara nations and president of the National Congress of American Indians.
Angered by Norton's failure to include them in her plans to revamp trust responsibilities, tribal leaders spent the day expressing their dissatisfaction with what they perceived to be a plan hatched behind their backs.
"This isn't consultation," said Apesanahkwat, chairman of the Menominee Nation of Wisconsin. "We've only been allocated five minutes each to address this complex, important issue that affects every tribe in the country. Dozens of tribal leaders who traveled from all over the country will not be allowed to speak today."
Of more than 120 people who signed up to speak, less than 50 had addressed Norton and Assistant Interior Secretary Neal McCaleb by the close of the one-day consultation that drew more than 500 people to the Hyatt Regency ballroom here.
Tribal opposition to the creation of the new Bureau of Indian Trust Assets Management (BITAM) largely stems from the fact that they were completely left out of Norton's decision to invent a new agency within the Department of Interior.
Norton proposes to strip BIA of its responsibility to manage more than $500 million annually in Indian trust funds and limit its role to overseeing education, roads, social programs and law enforcement.
The new BITAM would handle natural resources, minerals and Indian trust assets that, by all accounts, have been grossly mismanaged by Interior and the Treasury Department for decades.
Interior's failure properly to manage an estimated $10 billion in Individual Indian Money (IIM) trust accounts led to a class-action lawsuit, Cobell v. Babbit, against Norton's predecessor, Bruce Babbit, as well as 37 other high-ranking DOI and Treasury officials.
Lead plaintiff Elouise Cobell filed the 1996 lawsuit suit to seek an accurate accounting of millions of dollars owed to more than 500,000 Individual Indian Money account holders whose land and assets are held in trust by the Department of Interior.
IIM account holders are supposed to be paid royalties for land they own that was leased out for mining, oil, gas, timber, farming, grazing and mineral rights. But a 100-year history of financial disarray that included thousands of lost documents and damaged records made the task impossible.
As the case unfolded, it produced massive evidence that Interior had failed in its trust responsibility to thousands of Indian people -- many of them impoverished -- when the legal discovery process revealed that government officials could not account for millions of dollars in revenues generated by allotted Indian lands.
To make matters worse, when a federal judge ordered Interior and Treasury to produce financial records for the plaintiffs, testimony revealed that government employees had shredded 162 boxes of financial documents and uncashed Indian checks.
More than five years after the case was filed, Interior and Treasury have not complied with the judge's orders to provide an accounting of what is owed.
"The government does not actually know how much money has come into the Indian trust accounts over the past century or how much has been paid out to individual Indians," Cobell said. "They lied to the court, destroyed evidence and refused to comply with court orders to cover up their mismanagement of more than $10 billion."
Norton and McCaleb inherited the trust fund mess but have done little to take corrective actions for reform as ordered by federal Judge Royce Lamberth. The two are facing contempt of court charges in a trial that began two weeks ago in Washington, D.C. and is expected to be lengthy.
In her remarks to tribal leaders, Norton said she realized the problems at Interior go much deeper that she had perceived and "require something beyond just improving the structure." But she acknowledged that making change is very difficult and said she believed her plan had the potential for strengthening, rather than weakening the BIA.
Norton provided very few details, however, on how splitting BIA functions between two agencies would affect services to tribes and thousands of employees who depend on BIA jobs at the local level
"You come here today with a proposal that I can't see or read," Chairman Brian Cladoosby of the Swinomish tribe of Washington told Norton. "How can I comment on something I haven't seen?"
Norton responded that she had not provided details to Indian leaders because Interior officials had yet decided on all aspects of the restructuring plan. But she was forced to acknowledge that she had already briefed Congress to justify a request to reprogram $300 million of BIA money to pay for the new BITAM.
The tone of the meeting was often tense and even slightly hostile at moments as tribal leaders accused Interior officials of trying to railroad through a sketchy plan that most had only read about in news reports.
Many complained that Norton is rushing the process by closing the public comment period on Feb. 15, though most tribes have never had the opportunity to read or evaluate the plan and assess the magnitude of its impacts.
The majority of tribal leaders said they have not been able to obtain the "Interim Report and Roadmaps for TAAMS and BIA Data Cleanup" that Norton cited as the basis for her recommendations.
Navajo Nation President Kelsey Begaye requested that the consultation be halted until tribes were given documents detailing Interior's plan. He presented Norton with a Freedom of Information Act request to obtain all documents involving the proposed reorganization.
"We are simply asking to be consulted, not insulted," Begaye said.
Norton's controversial decision to appoint Ross Swimmer, a former head of BIA, as assistant secretary of BITAM also drew criticism from the majority of leaders who said he had no support in Indian Country.
"Consultation is not some annoying and meaningless process you have to endure before you do what you intended to do in the first place," said Ernie Stensgar, chairman of the Coeur D'Alene tribe in Oregon.
Speaker of the Navajo Nation Council, Edward T. Begay, said he objected early on to Norton's decision to make sweeping changes without consulting tribes in advance.
"It shows a complete disregard for the government-to-government relationship we have tried to nurture over the years," Begay said. "It's another example of eroding the trust relationship between Indian tribes and the U.S. government."
Hall and other Indian leaders recommended the formation of a task force comprised of leaders from 12 BIA regions and several Indian organizations to help develop alternatives to the plan proposed by Interior.
"It was an announce-and-defend policy, not the meaningful consultation that is clearly required under Executive Order 13175," said Hall. "This thing is going way too fast and must be slowed down to include input from Indian Country. That's non-negotiable."
A resolution opposing the reorganization and endorsing a task force was adopted by 193 tribes at a recent NCAI meeting and presented to Norton and McCaleb.
Norton later said, "I think the idea of a task force is something that may move us forward. I'm open to alternative ideas and I want to hear them."
Despite hours of protests and raised voices, Norton held up under pressure, promising to work with tribes in setting up a task force on BIA restructuring to ensure that tribal concerns were met.
But she would not back down on her plan to proceed with the new agency, saying she had presented it in good faith to the federal court as a step toward reform.
"We can't go back to the courts and withdraw this proposal," Norton said. "We can't be in the position of having no approach to move forward."
Near the close of the meeting, Albuquerque attorney Susan M. Williams spoke on behalf of several tribes she represents and again urged Norton to step back from her plan.
"Federal law requires you to withdraw your proposal until you have fully consulted with tribes," she said. "Many tribal leaders have worked in the BIA and have valuable ideas for reform. They know what the problems are."
As the session came to a close, Chairman Hall said it is very important to forge a true partnership between tribes and the federal government.
"They manage our trust funds, but the assets are not owned by the federal government. They are owned by our Indian people and we have a right to be involved in how they are managed," Hall said. "I am cautiously optimistic that this process can evolve into something that can work."
Chairman Apesanahkwat said one solution to bridge the divide between Interior and Indian leadership is to get Native people directly involved in developing a working document that can be taken around Indian Country for input so that any new Indian policy reflects Native American priorities. Tribes do not want new policies to hamper self-governance, he said.
The next consultation is scheduled for Jan 3 in Oklahoma City, Okla., with following sessions in Rapid City, S.D. on Jan 10; San Diego, Calif. on Jan. 17; Anchorage, Alaska on Jan. 23 and Washington, D.C. on Feb. 1.