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Interior to negotiate with tribes on trust records policy
Tuesday, August 30, 2005

The Bush administration on Monday announced that it has dropped a proposed trust records policy amid concerns from self-determination and self-governance tribes.

After nearly two years of work, the Interior Department said it would not move forward with a single fiduciary trust records management policy. Instead, officials plan to negotiate with each tribe in order to protect and preserve all documents related to the management of Indian trust assets.

Starting in 2006, the annual funding agreements with contracting and compacting tribes will contain a new section to address trust records management, the Federal Register notice signed by Abe Haspel, the department's assistant deputy secretary, stated. Currently, the agreements contain three options for the preservation of records.

The section gives give tribes greater control and latitude for the trust records they develop, manage and maintain. The old proposal, which was outlined in a February 2, 2005, Federal Register notice, placed more of a burden on tribes to comply with the department's trust duties.

The section also includes a more specific definition of a trust record, something that tribes said was not clarified in the old proposal. "A fiduciary trust record is any document that reflects the existence of an Indian trust asset and was used in the management of an Indian trust asset," the notice states.

As part of an agreement with the self-determination and self-governance tribes, the department will still be able to inspect trust records held by tribes. But the department must pay for all costs associated with document production. The original proposal did not address costs.

The agreement further states that tribes have the option of sending "inactive" trust records to the American Indian Records Repository in Lenexa, Kansas. But no documents will be accepted until the department develops a "single tribal storage and retrieval system" at the facility. The old proposal wasn't specific on the department's requirements to create the system.

Despite making the concessions, the Bush administration said it wouldn't be providing additional funding to tribes for trust records management. "The language does not require a tribe to have any other kind of record keeping system other than the ones they currently operate," the notice states.

The department, however, said it will provide "filing equipment and technical assistance" to tribes "from available funds appropriated for this purpose."

The administration also rejected opposition from tribes that language dealing with trust records wasn't needed at all. "The department believed that the three options available to Tribes/Consortia in the past are too vague and do not specifically address the Secretary's primary concerns that fiduciary trust records not be destroyed and that the Secretary have the right to access those records if needed in her capacity as trustee delegate," the notice states.

Records management has been a long-running issue for the federal government. Despite being charged, as a trustee, to maintain all trust documents, the Interior nor Treasury departments have never been able to produce a complete historical record of the billions of dollars of revenues and royalties collected on Indian lands.

A mid-1990s effort by the former Arthur Anderson accounting firm found major gaps in the tribal trust record that totaled at least $2.4 billion. The accountants also speculated that the Individual Indian Money (IIM) trust was in worse shape.

"We've been able to disclose, through the facts, horrible, horrible situations that Indian people have had to suffer" said Elouise Cobell, the lead plaintiff in the lawsuit over the management of the IIM trust, said on the Native America Calling radio program yesterday.

As part of the Cobell case, the Interior and Treasury secretaries and the head of the Bureau of Indian Affairs were held in contempt for failing to produce trust records for the five named plaintiffs and their ancestors. The judge had given the government more than two years to find the documents.

At the same time, the Treasury Department destroyed 162 boxes of records related to the IIM trust. The judge, however, wasn't told for several months.

Due to the government's history, some tribes have been extremely reluctant to cede control of any records to the department. At least three tribes have held onto their trust-related documents amid threats from the government's lawyers.

Officials, however, say they have made significant progress in recent years. "Changes underway are greatly improving services for trust account holders throughout Indian Country," Special Trustee Ross Swimmer said in a recent statement. "Interior employees, with substantial help from tribal leaders and Congress, have worked hard to create and now implement a comprehensive blueprint for Indian Trust reform."

Relevant Documents:
Federal Register: August 29, 2005 [Contains New Agreement] | Federal Register: February 2, 2005 [Contains Proposed Policy]

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm

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