Opinion | Trust

Jay Daniels: New law takes us backward in serving Indian Country






Jay Daniels

Erosion of Indian Trust Responsibility
By Jay Daniels
Roundhouse Talk

Recently Congress passed H.R.812, the Indian Trust Asset Reform Act. President Barack Obama signed the bill into law on June 22.

This new law literally pushes the government away from the table of trust responsibility in some key components of trust land management for the first time since the Allotment Act of 1887, more commonly referred to as the Dawes Act.

Under the Dawes Act, Indian allottees were declared “incompetent” to handle their land affairs and the United States would retain legal title to the land as trustee for the allottee; Indian allottees only had beneficial title. In other words, as long as the allotment was held in trust by the federal government, the Indian landholder could use the land but not sell it or lease it without the federal government’s approval.

The United States retained a trust responsibility. The government was entrusted to protect Indians and manage their trust assets.

It was a unique, although difficult relationship, but it has retained Indian land as it is today. We Native Americans were too trusting because of our culture. In the beginning our culture left us vulnerable to scrupulous non-Indians who wanted our land and would do anything to trick us into practically giving it to them.

The Bureau of Indian Affairs was created to carry out the federal government’s trust responsibility, although it was more paternalistic than assisting Indians in managing their trust assets.

Decades later, Congress passed the American Indian Trust Fund Management Reform Act in 1994 to establish the Office of the Special Trustee for American Indians. The agency was to be responsible to account for daily and annual balances of Indian trust funds for the benefit of an Indian tribe or an individual Indian to be deposited or invested. The law also gave Indian tribal governments greater control over the management of of their trust funds.

OST was to exist only until until all reforms identified in the strategic plan had been implemented to the satisfaction of the Special Trustee for American Indians.

When I worked at the BIA, I was hesitant to embrace OST in the beginning. They assumed supervision of our agency accounting staff and absorbed our funding. They made immediate changes in conducting daily business. We used to print checks to Indian beneficiaries on a daily basis, but true accounting was slow and difficult. OST hired professional accountants and has created a true accounting system.

Now, under the new law, the Department of the Interior will be returning those responsibilities to the BIA. What about full funding and staffing? It will fail and the effort, process and money spent for the past 22 years will be wasted.

Whenever the BIA absorbs new responsibilities, funding is always inadequate, which means less employees to serve local Indian land and mineral owners. The BIA is top heavy already while local agencies are short staffed and underfunded.

For example, Congress funded the Fort Berthold Agency with $7 million three years ago to establish a one-stop shop to serve Indian mineral owners. Where is the one-stop shop? Where is the $7 million?

That’s government at work. Yes I am a former BIA employee. Not fired, not disgruntled or vindictive. But I assisted Indian land and mineral owners who struggle to live on a daily basis. I heard all of complaints, needs and dissatisfaction of those who couldn’t maneuver through government policy and red tape.

I worked for the BIA when the Cobell lawsuit was filed and through to the settlement. I read the final settlement and my opinion was that it was not good.

In one instance, I resolved a 100-year-old trespass case but the Cobell settlement states that by accepting the payment, the Indian landowner forever agrees not to hold the government accountable for any past claims regarding their lands. There was a court case in North Dakota,
Two Shields v. Wilkinson, that basically absolved the United States of past claims pursuant to the Cobell settlement.

Going back to the Indian Trust Asset Reform Act, the new law changes the requirements for approval of appraisals by the Office of Appraisal Services. This essentially could result in Indian landowners receiving less than fair market value for land sales and, leases, and rights of ways.

In Indian Country sometimes folks are in dire straits and need quick cash to pay bills. Payments are critical to taking care of family. And I mean no disrespect, but folks who have social issues may be susceptible to selling or leasing lands for less than fair market value. The reality is we aren’t qualified appraisers and some may be taken advantage of.

It is going to be a terrible thing for Indian Country if OST is dissolved. The new law is terrible for Indian Country and we will suffer.

Consultation meetings will take place beginning in August 2016. Tribes, land and mineral owners need to participate and ask questions. Otherwise, we going backwards in serving tribes and Indian folks.

Jay Daniels has 30 years of experience working in Indian Country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at Roundhouse Talk.