Fredericks Peebles & Morgan LLP
Advertise:   ads@blueearthmarketing.com   712.224.5420

Trust
Tribes seek better approach to trust reform initiative


The National Congress of American Indians is asking the Bush administration to change its approach to a proposed set of trust reform regulations, citing a lack of focus and a failure to publicize the initiative.

At the NCAI winter session in Washington, D.C., this week, President Joe Garcia laid out a series of challenges to the administration. He said the Interior Department is stumbling in its attempt to consult with tribes about a comprehensive set of regulations covering everything from leases, title to land-into-trust.

"The structure has to change," said Garcia, the governor of Ohkay Owingeh, former known as San Juan Pueblo, in New Mexico. The first meeting, held in Albuquerque in February, was "unfocused," he said, with no real agenda or plan.

Garcia said timing was a key consideration. The proposal, released in late December in the middle of the holiday season, consists of about 600 pages of materials that so far have only been available on one inter-tribal website in addition to being mailed to tribes.

"There are a lot of tribes," he said, "that are just coming up to speed."

To address the timing issue, Garcia asked associate deputy secretary Jim Cason to extend the comment period on the draft until April 15. Currently, the department plans to shut down comments by the end of today.

Garcia also identified several substantive concerns. He said the proposals that deal with fractionation and probate should be made the top priority because they are considered, by tribes and Interior, to be the most pressing issues facing trust reform efforts.

"Let's concentrate on that part of it," Garcia told Cason, who addressed the session on Monday. The Bush administration is already planning on implementing the probate regulations first in order to carry out the American Indian Probate Reform Act of 2004.

Garcia urged the administration to hold regional meetings in order to address the concerns of tribes and individual Indians who will be most impacted by the proposal. He said the Great Plains and the Rocky Mountains deserve special attention to the large land base and large number of Individual Indian Money (IIM) account holders.

He also called for the elimination of a proposal to charge fees for trust services, one of the more controversial aspects of the initiative. He said it was wrong for Indian Country to pay for the obligations owed to them in treaty and statute.

"It's part of their job, their responsibility," Garcia said of federal fiduciary obligations.

At the meeting, Cason said he was willing to consider NCAI's requests. He acknowledged the initiative posed a "challenge" due to its massive scope.

"At first glance, it's a scary process," he said. "We understand there is concern about being able to wade through the volume."

And when he asked tribal leaders whether they were aware of the initiative, not many indicated they knew about the process.

Cason defended the proposal to charge fees for trust services. He said the high cost of managing IIM accounts, some with less than a balance of $1, prompted the need to consider a fee structure.

"We're the only game in town that's willing to take a $1 in trust and manage it," he argued.

According to Cason, it costs $35 a year to manage an account with a balance of $1. "In my opinion, that's wasting your money," he said.

But Keith Harper, a Native American Rights Fund attorney handling the Cobell Indian trust fund case, said Cason's concerns were misplaced. Instead of worrying how much it costs to maintain an account, the department should try to ensure that tribes and individual Indians are receiving the highest possible value for their trust assets.

"They want to charge you fees to mismanage your money," Harper told NCAI on Tuesday.

Harper cited a federal court official's investigation into leases on Navajo land in northwestern New Mexico as proof of the ongoing mismanagement. The former special master in the Cobell case found that non-Indians received up to 20 times more for the use of their land than Navajo tribal members for the same kinds of leases.

"It's the same all across Indian Country," Harper said. "Non-Indians get all kinds more money than Indians. We know it, we see it in every community. It's happened for a century and it's got to stop." His remarks were met with loud applause.

Interior is still finalizing the schedule for the upcoming meetings but the next one is slated for March 28-30 in Portland, Oregon. Officials hope to redraft the initial proposal and publish it for comment in the Federal Register, with the goal of implementing the probate regulations by June. The rest of the regulations would be implemented by the end of the year.

Relevant Documents:
Proposed Regulation Changes (Posted by the Inter-Tribal Monitoring Association)

Jim Cason Letter:
Dear Tribal Leader (January 26, 2006)

Relevant Links:
National Congress of American Indians - http://www.ncai.org
Intertribal Trust Fund Monitoring Association - http://www.itmatrustfunds.org
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm