WASHINGTON, D.C. - Competing plans for resolving the Interior Department's Indian trust debacle are now sitting before federal Judge Royce Lamberth, as relations between Interior officials and some tribal leaders, and their political allies, are visibly deteriorating.
Interior Secretary Gale Norton also announced promotions to fill in for departing BIA head Neal McCaleb, who returned to private life Jan. 2. Aurene M. Martin, a member of the Bad River Band of Lake Superior Chippewa, is now Acting Assistant Secretary - Indian Affairs. She served as Deputy Assistant Secretary under McCaleb after the abrupt departure last year of Wayne Smith.
In a more controversial move on Jan. 6, President Bush nominated Ross O. Swimmer, currently director of the Office of Indian Trust Transition and a former Assistant Secretary for Indian Affairs, to be Special Trustee for American Indians.
Norton praised Swimmer effusively. "It is hard, in fact, to imagine a more qualified person than Ross Swimmer to be Special Trustee," she said. "He has a lifetime of service to Indian country as an advocate on behalf of tribes for tribal sovereignty through tribal self-sufficiency.
"Along with his deep knowledge of issues important to Native Americans, he has a strong background in banking and finance and in managing government programs as Assistant Secretary for Indian Affairs in the Reagan administration," she said.
But some tribal leaders reacted angrily, recalling that Swimmer had been appointed to head Norton's short-lived BITAM proposal to take trust affairs out of the BIA. Tex Hall, president of the National Congress of American Indians, told Indian Country Today, "We are opposed. She (Norton) doesn't know the background. A resolution from the NCAI was submitted that opposes Ross. He's not qualified. He has no experience as a trustee.
"When he was assistant secretary he didn't do the consultations things the tribes were looking for. Ross has a track record of not having a successful relationship with tribes."
The gap on the trust issue between Interior and its most determined critics, the plaintiffs in the Cobell class action, showed clearly in the "Action Plans" each party submitted to Judge Lamberth by his Jan. 6 deadline. The Cobell attorneys claim the government squandered $137 billion in royalties from their land over more than a century and asked Judge Lamberth to set deadlines for a government accounting and better management of the system.
Interior Department attorneys countered with a proposal to account for the money that they said would cost an estimated $335 million over five years.
In announcing the Interior plan, Deputy Interior Secretary J. Steven Griles ridiculed the loss estimate of $137 billion. "Nobody has shown me that there has been a loss," the New York Times reported him saying. "They haven't provided one shred of evidence."
He said on Jan. 6 that Interior now plans to do a transaction-by-transaction accounting of the money in the largest of the Indian accounts and do a statistical sampling of enough of the smaller accounts to pin down the amount owed within 99 percent.
The historical accounting work will take five years, Interior said, and will provide each account holder with statement of account.
"We are following through with our commitment to completely examine and document Interior's current trust business processes across Indian country so we are able to confidently reengineer those functions to ensure we will meet our goals and objectives in trust asset management," Griles said.
"The re-engineering and re-organization efforts that are now underway at the Bureau of Indian Affairs and the Office of the Special Trustee would not have been possible without the advice and counsel of tribal leaders," he added, continuing the practice at Interior of citing at every turn its 10 months of formal consultations with tribal leaders.
In the plaintiff's filing, attorney Dennis Gingold said so many documents have been destroyed or lost that the department's accounting is impossible. He urged the court to order an analysis similar to the one they commissioned that produced the $137 billion estimate.
NCAI President Hall, who is also chairman of the Three Affiliated Tribes in North Dakota, denounced the process of reorganization of the BIA and trust fund reform. He said the administration acted as if the lost money at the heart of the matter belonged to the government and not to the individual Indians who hold the leases and royalties.
"They are reprogramming through the media," he said. "They are saying the plan was made with the tribes that it was done with unanimous consent. When we met in Anchorage they said it was unanimous consent. That's not true.
"We agreed to the plan contingent upon legislation the tribes requested that there would be independent oversight and standards. There was no unanimous consent; they are not telling the truth," Hall said.
A major difference in the two action plans comes in the standards by which trust fund management will be judged. The Cobell plaintiffs urged a strict set of standards based on federal bank regulators' guidelines for the private sector. Interior's "Fiduciary Obligations Compliance Plan" limited itself to the requirements of the 1994 American Indian Trust Fund Management Reform Act.
A hearing is scheduled for May where the judge will decide what action, if any, should be taken.
In the meantime, Hall is urging Congressional action, working with elected officials who he said understood the relationship between the federal government and tribal governments. He said that tribal members of the recently dissolved Joint Tribal Leaders/Department of Interior Task Force on Trust Reform should continue to meet, and had a session in Washington scheduled for the weekend of Jan. 11.
"(Senator) Tim Johnson gets it," said Hall. "He won with the Indian vote. Some people don't get it and we know that Norton and the DOI don't get it now. You can see where Lamberth is upset with them too.
"The strategy now is, before there is any question, redo the Task Force and have them work with us now on legislation. Congress has to get a handle on this. Without it they will waste taxpayer dollars and their liability will increase without having a solution," he said.
Hall also praised former BIA head McCaleb and alleged that he resigned because of frustration with the trust reform process.
Hall said the trust reform task force became a "runaway train.
"Neal saw this runaway train. He had good intentions. When the train was moving he went through 10 months of consultation. Then they kicked the Indians off the train; they pulled the throttle back and he jumped off. I think he saw they were going to come up with their own plan no matter what. Neal saw the handwriting."
(The Associated Press contributed to this story.)