FROM THE ARCHIVE

Trust management standards key to reform plan

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WEDNESDAY, JANUARY 8, 2003

A reform proposal submitted by the Indian plaintiffs in the trust fund case includes standards to guide the management of trust assets, a key demand of tribal leaders that has been resisted by the Bush administration.

Court papers outline eight basic fiduciary duties the plaintiffs say are necessary to ensure meaningful change. They include: loyalty, administration (or care), protection of trust property, records maintenance, impartiality, defense of the trust, and prudent investment.

"This is what is required of any trustee," said lead attorney Dennis Gingold. "It's ordinary stuff."

The standards are found in several sources, including commonly used trust treatises and the 1994 American Indian Trust Reform Act. But they rely heavily on the Office of Comptroller Currency (OCC), a Department of Treasury entity that regulates the nation's banks, Gingold said.

Looking to the OCC isn't a new idea in the trust reform debate. It was raised last year during talks between government officials and tribal leaders in hopes of coming to a compromise on legislation to fix the broken system.

But those discussions fell apart because the Department of Interior and the Department of Justice wouldn't agree to subject themselves to some of the OCC's very strict powers. Government officials, for example, rejected multi-million dollar fines imposed on a trustee who breaches his or her duties.

The standards in the plaintiffs' proposal aren't new to the Interior either. They are described in the department's manual but come with a disclaimer saying they don't carry the force of law.

Two legal opinions, one from 1996 and another from 1978, drafted by Interior attorneys, however, make reference to the same duties now being enumerated by the plaintiffs. "These people were warned years ago that they had this issue," Gingold asserted. "They just didn't believe it."

Should U.S. District Judge Royce Lamberth adopt the standards, the plaintiffs have asked him to impose deadlines on the government to meet them. A suggested court order, for example, calls on department officials and their attorneys to disclose any conflicts of interest and keep their litigation team away from trust information. Private trust operations follow these and other procedures contained in the proposal.

Tribal leaders are holding off on commenting on the plaintiffs' and department's plans until later this week when they will meet to discuss drafting their own response. The National Congress of American Indians (NCAI) hopes to submit an amicus brief later this month. The Inter-Tribal Monitoring Association (ITMA) is also meeting today to review the latest reform developments.

Relevant Documents:
Plaintiffs: Remedial Plan | Plaintiffs: Reform Order

Relevant Links:
Office of Comptroller Currency, Department of Treasury - http://www.occ.treas.gov
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Trust Reform, NCAI - http://www.ncai.org/main/pages/
issues/other_issues/trust_reform.asp

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