Senate panel eager to confirm Swimmer as trustee

FROM THE ARCHIVE

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THURSDAY, FEBRUARY 13, 2003

A Senate panel on Wednesday moved to advance the nomination of former assistant secretary Ross Swimmer as the Department of Interior's top trust reform official.

Sen. Ben Nighthorse Campbell (R-Colo.), chairman of the Senate Indian Affairs Committee, was eager to hold a vote but was held off by other members who wanted more time to review Swimmer's credentials. "From my perspective, you shouldn't have any trouble whatsoever," he told the former chief of the Cherokee Nation of Oklahoma.

Few tribal leaders were present at the hearing, which drew an overflow crowd nonetheless. Swimmer was praised by Republicans and Democrat Congressman Brad Carson, also a member of the Cherokee tribe. They said Swimmer's legal, business and political background qualified him to oversee billions of dollars in Indian funds and efforts to reform a system that has defied solution for more than a century.

"The President could not have picked a better person," said Sen. Don Nickles (R-Okla.).

Sen. Daniel Inouye (D-Hawaii), the vice-chairman of the Indian committee, chose his words carefully throughout the hearing. Inouye, who helped tribes defeat some of the changes Swimmer proposed as head of the Bureau of Indian Affairs during the last three years of the Reagan administration, questioned whether Swimmer would be able to exercise independent judgment as Special Trustee, the position for which he has been nominated.

Sen. Tim Johnson (D-S.D.) was more blunt. He cited Swimmer's past involvement on trust issues, including a failed attempt to transfer Indian money to a private financial institution without first providing an accounting and his failure to scrutinize a mining lease that cost the Navajo Nation at least $600 million.

"Many tribes, frankly, are expressing a lack of faith in Swimmer's ability to turn the current situation around," he said.

For his part, Swimmer was able to gloss over his controversial history. He took credit for initiatives that he failed to shepherd through the BIA but which he said were later implemented.

"I suggested an accounting system and an investment system," he said when asked to describe his late 1980s initiatives. He discounted tribal opposition he encountered at the time, saying it had only been raised "as of late." "I don't remember a lot of discussion in Indian Country," he told the committee.

Swimmer, like other Bush administration officials, also sidestepped questions about the extent and nature of the federal government's obligations to tribal and individual Indian beneficiaries. Inouye pressed for his views on two recent Supreme Court cases, including the Navajo Nation's.

"The government suggests that it has no fiduciary standard and that the U.S. has no legal obligations to the beneficiaries beyond that set forth explicitly in the law," Inouye said. "Would you go along with that?"

According to Swimmer, the jury is still out. "I believe that we do have a fiduciary duty and that we have to overlay that duty with every statute and every regulation that we administer," he said.

There were no opponents allowed to testify yesterday. The Inter-Tribal Monitoring Association (ITMA), a group of more than 50 tribes which in the past has been a critic of the government's trust reform plans, refused to take a position on Swimmer's nomination. Instead, chairman Richard Sangrey asked the committee for more federal funds.

Several tribes, including the Navajo Nation, the Oglala Sioux Tribe of South Dakota, the Warm Springs Tribes of Oregon, the Iowa Tribe of Oklahoma and the Absentee Shawnee Tribe of Oklahoma, have submitted letters of opposition. Campbell asked that Swimmer respond to some of the questions raised.

An equal amount of support came from the Five Civilized Tribes of Oklahoma, the Quapaw Tribe of Oklahoma and the Confederated Salish and Kootenai Tribes of Montana.

Keith Harper, a Native American Rights Fund attorney representing 500,000 individual Indian beneficiaries in the Cobell trust fund case, likened the nomination of Swimmer to putting the fox in charge of the henhouse. "Appointing Ross Swimmer as Special Trustee is like appointing Trent Lott head of the NAACP," he said.

A vote by the Senate Indian Affairs Committee could come as early as the 26th, Campbell said. Unanimous Senate confirmation is likely and Swimmer would be able to replace acting special trustee Donna Erwin, who works full-time in Albuquerque, New Mexico, by mid-March.

Relevant Documents:
Written Witness Testimony (2/12)

Relevant Links:
Office of Special Trustee - http://www.ost.doi.gov
Indian Trust: Cobell v. Norton - http://www.indiantrust.com