Certainly there is plenty of blame to go around the multi-billion dollar fiasco of lost Trust Funds. The blame goes back a long way, as far back as the history of Native American dispossession and all the laws and practice of a corrupt and inept federal bureaucracy. Certainly Interior Secretary Gale Norton followed seriously bad advice when she set out some months ago to impose a solution on the problem without consulting Indian country. The overwhelming furor that erupted from tribal leaders was delivered with great percussion. It seems to have gotten her attention. Indian country, Secretary Norton found out, is a lot more sophisticated than it appears. Increasingly, leadership enjoys first-rate analysis of national policy. Gone should be the days when double-talking bureaucratese could pull the wool over Indian eyes.
Recently in these pages Secretary Norton appeared to offer an olive branch to Indian country. It was a most interesting column, perhaps a first for an Interior Secretary communicating with American Indian leadership. Secretary Norton went a long way in her column to open up her door to a serious dialogue, indicating a level of humility not often seen from such a high ranking government official. While the Trust Fund problem is old, perhaps it is not too late to begin to do something about it. Even at this ever increasingly late stage, with consternation heavy and accusations whirling, perhaps something positive can begin to grow.
Norton pointed to the "aura of insolubility" around the Trust Fund issue. She wrote of the "complexity and urgency" of the problem and offered her respect for tribal leaders' objections to her early proposal. She welcomed alternative proposals received from Indian country ? some of which were first published in the pages of Indian Country Today. As a gesture of beginning, she stressed the need for intense discussion and the goal of reconciling "our different points of view as a prelude to defining a reorganization proposal."
This is not insignificant. It is obviously not anywhere near to a solution to the most daunting problem in American Indian affairs at this time, but it has the feel of true outreach, and we urge all vested interests involved to engage it seriously. Gone is the early, hear-no-criticism attitude, the overly ambitious approach that seemed clearly destined for conflict and failure. Norton's, and Assistant Interior Secretary Neal McCaleb's early unilateral proposal to split the BIA, creating a new bureaucracy to deal directly with Trust management, satisfied no one. The fact that it was decided upon behind closed doors and involved selective, or little to no consultation with tribal leaders brought on the avalanche of heated criticism that precipitated the present series of regional consultations. Along with the directives of a no-nonsense federal judge, who is pressing for serious effort on the part of Interior, the response likely molded the bureaucratic change of attitude.
In her message to Indian country, Norton admitted inadequacies and failures: too many bureaus mixed in the problem, long-standing BIA localized management, with no clear and unified policies and procedures. She admitted that her current planning systems related to Trust are inadequate, that the High-Level Implementation Plan is now old and a failure, that the Trust Asset and Accounting Management System software (TAAMS) has not achieved its objectives. Then there is the need to improve the integrity and security of information technology associated with Indian Trust data.
She also outlined the complexity and size of the management problem: her department distributes leasing and sales revenues of $300 million per year to more than 225,000 Individual Indian Money accounts, about $800 million a year to 1,400 tribal accounts. It manages income from more than 100,000 active leases for approximately 350,000 individual Indian owners and 315 tribal owners. Her department is responsible for about 11 million acres of land owned by individual Indians and tribal holdings of nearly 45 million acres.
In this respect, very importantly, she focused on the problem of fractionated heirship, that early land-tenure policy that divides inherited Indian lands equally among all descendents, thus reducing thousands of current holdings to tiny, unmanageable, often useless fractions. Norton wrote about the nightmare of "1.4 million fractional interests of two percent or less involving 58,000 tracts of individually owned trust and restricted lands," each of which requires administration and provides nothing but frustration in return for all involved. For many of these accounts it costs more to print and mail statements annually than the assets themselves are worth. A solution needs to be found that reconsolidates these assets under Indian ownership.
Again, it appeared a decent start. It is always appropriate when a federal cabinet member emphasizes consultation as a way to create policy, particularly Indian policy. Thus we were disappointed in the scathing reaction of some critics who saw nothing to engage in Norton's offer. In quick response, Elouise Cobell, lead plaintiff in the class action lawsuit against Interior, wrote of her disgust for politicians and bureaucrats, Norton specifically, calling the Secretary a "vacuous politician," and accusing her of "shifting the blame" from herself to her bureaucracy.
We have high respect for Elouise Cobell and admire her steadfast litigious commitment to holding Interior's feet to the fire, but we wondered if the dialogue offered might not be worth considering, openly and without acrimony. Cobell's anger is understandable. When she writes of the recent boondoggle when Interior wantonly turned off a computer system that further delayed payments to Indian account holders, she is, of course, correct. And certainly, she is right that the levels of obfuscation, inefficiency and deceit historically coming from Interior have been extremely serious. But opportunities for open dialogue with a cabinet-level official are critically important. Secretary Norton's offer comes wrapped in genuine-sounding language that could lead to pragmatic exchange with the bulk of leadership from the affected tribes. It could perhaps finally signal the beginning of a much-needed practical, solution-oriented approach to a problem that has confounded bureaucrats and tortured Indian families and tribal governments for generations.
On this point we stand by the principal of mutual affirmation. Where there exists honor, it should be met by honor. Where there is goodwill, goodwill should be returned.
Additionally, we strongly recommend that the Interior Department work with tribal leaders in accordance with the law. The Indian Reorganization Act of 1934 stipulates that the Secretary of the Interior consult tribal counsels on all Federal projects. Likewise, an April 29, 1994 executive memorandum requires all federal departments to consult with tribal governments "prior to taking actions that affect federally recognized tribal governments." Further, a May 14, 1998 executive order was established for the purpose of "regular and meaningful consultation and collaboration with Indian tribal governments in the development of regulatory practices on Federal matters that significantly or uniquely affect their communities."
Indian country must stay firm on this one, but it is also prudent to maintain diplomatic language on a pro-active tone. Cobell is right that the offence is great and deeply woven into the fabric of federal Indian policy and practice. The dialogue afoot, however, will require all the best intelligence and creativity Indian country leaders and the federal system can muster. Secretary Norton has requested the consensus of tribal perspective. Indian country needs to give it, firmly, always with verification implied, but without personal rancor. The BIA Trust Fund needs fixing, and it has to happen on someone's watch. It may be late but it is not too late to put together an honorable process, where legitimate proposals are brought forward and the utmost civility and respect dominate. Always, this is the proper approach.