alberto gonzales files - intertribal monitoring association on indian trust funds annual conference

8/14/2019 Alberto Gonzales Files - Intertribal Monitoring Association on Indian Trust Funds Annual Conference

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Eloise Ogden, Regional Editor of the Minot DailyNews has written a major feature story starring the Of-fice of Special Trustee and the Fort Berthold Agencyfiduciary trust officer, Austin Gillette. A former tribalchairman and long-time tribal councilman for the ThreeAffiliated Tribes of the Fort Berthold Reservation, Gillettehas for the past year and a half been OSTs fiduciarytrust officer at the Fort Berthold Agency.

According to Ogdens article, Mr. Gillette has unitedpreviously unlocated IIM account holders with more thanone million dollars of their money. While the total num-ber of whereabouts unknown account holders at FortBerthold was not known by ITMA, Ms. Ogdens articlerecites that Mr. Gillette and his staff have contacted

more than 2,000 people in the course of tracking down266 actual Indian account holders, many of whom hadno idea the government had held money in trust forthem, often for years. Gillette told the Minot Daily Newsthat he and his staff had located Fort Berthold accountholders in states as far away as Alaska. Some werefound to be incarcerated, others had been adopted atbirth and lived with adoptive names all their lives. Someof them had never had any contact with the reservationor the community, Gillette said. On the other hand,

WHEREABOUTS UNKNOWNFORT BERTHOLD FIDUCIARY TRUSTOFFICER AUSTIN GILLETTE UNITESACCOUNT HOLDERS WITH THEIR MONEY

The Board of Directors of the Intertribal MonitoringAssociation on Indian Trust Funds (ITMA) have an-nounced the dates for the 17th Annual Conference. Thesession scheduled for October 24-26, 2007 will be heldat the Golden Nugget Hotel & Casino in Las Vegas, NV.

Obtain updated information regarding the confer-

ence at (www.itmatrustfunds.org)

some of them were found to have been living on theFort Berthold Reservation, raising a question aboutthe vigor of previous efforts to locate them.

After Gillette and his staff locate individuals whosewhereabouts were previously unknown, but for whomthe Office of Special Trustee held money in trust, OSTthen has to verify their identities before their money isreleased to them. This verification process takes

time, but to date the Fort Berthold fiduciary trust offi-cers staff have been responsible for the actual distri-bution of more than $1million to account holderswhose whereabouts were previously unknown.

Mr. Gillette credited his three-person staff for hissuccess. Paul Goodiron is the office assistant for auto-mation and records maintenance at the Fort BertholdOST, Ira Fox and Vicki Alberts are accounting techni-cians who constitute the heartbeat of the operation,Gillette told the Minot reporter. Nationally, there arenow fifty-two fiduciary trust officers located in BIA

agency offices throughout the nation. In the past threeyears, Ogden reports, OST has distributed more than$79 million to individual Indians whose whereaboutswas previously unknown, sometimes for many years.A few of these individuals had more than $100,000 intrust and even more had more than $50,000 in theiraccounts. Today 54,000 names remain on the Where-abouts Unknown list. With Indian trackers like AustinGillette on their trail, perhaps OST will reach itsunlikely sounding goal. Gillette advised the Minot pa-per, Our goal is zero.

ITMA 17TH ANNUAL CONFERENCE

April 2007

INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds

ITMA Chairman Mervin Packineau addresses ITMA meeting participants.


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The Department of Interior has announced its plans

to publish proposed regulations in early summer 2007to govern trust fund accounting and appeals. A draft ofthese regulations was circulated in late 2005 and wasthe subject of consultation meetings around the countryin 2006. Presumably, the Department has given seri-ous consideration to the many comments received inthose meetings and in writing. Originally proposed asPart 116 of Title 25 of the Code of Federal Regulations,the original draft was subsequently revised to omit ref-erence to individual Indian accounts and re-circulatedas proposed Part 112 of Title 25 CFR. ITMA staff have

advised Department officials that the proposed regula-tions will cause even more tribes to file suit against thegovernment to protect current rights that the regulationsappear designed to extinguish.

The Department of Interior explains the regulationsas a means of the governments achieving finality withrespect to historic tribal trust account balances andreducing significantly the number of IIM accounts in theDepartments Indian trust portfolio. Under the regula-tory regime set forth, the Departments Office of Histori-cal Trust Accounting (OHTA) will advise all tribes of the

opportunity to request either an expedited accountsettlement proposal or a negotiated tribal accountingplan. Tribes that request an expedited settlement pro-posal will receive priority treatment, and for them theDepartment will review a requesting tribes accountsand make an offer for settlement of all account bal-ances. If the offer is accepted, the tribe must agree toaccept the offered balance as accurate in all respects;to release or waive all claims for any acts or omissionsfrom August 13 to the date of acceptance; to execute allnecessary documents to bind the acceptance; to dis-

miss any pending litigation; and further agree not totake any funds received in settlement into trust.

A second option available to all tribes, includingthose who do not accept any expedited offer, is to re-quest a negotiated tribal accounting plan, that willspecify at a minimum the accounts to be examined,identify issues to be reviewed, methodologies to be em-ployed, documents to be collected for examination, awork schedule, estimated costs of the accounting work,

the nature and format of any reports to be delivered, and

procedures for modifying the plan as it proceeds. The De-partment will then undertake to perform the accounting re-quired by the plan and submit its findings to the tribe whichwill have 30 days to comment on it. The Department maythen revise the report. The Department and the tribe willhave 90 days after delivery of the final report to exchangesettlement proposals, and 180 days after that 90-day periodto conclude negotiations or agree to extend the period.

All tribes that fail to achieve settlement under one ofthose two approaches will receive from the Department ahistorical statement of account, which will include a state-

ment of opening and closing balances, gains and losses,receipts and disbursements, but apparently not investmenttransactions. The Department will schedule meetings todiscuss these historical statements of account within 90days of their delivery, and tribes will have 60 days after thatmeeting to submit written comments on their statements.The Department will revise the statements if it deems nec-essary, and a tribe will have an additional 30 days after re-ceiving a revised statement to make written comments.

Following receipt of a final historical statement fromOHTA, a tribe will have 90 days to make written objection toOHTAs Tribal Branch Chief setting forth all the errors oromissions claimed along with supporting documents or ar-guments. Following a final decision from the OHTA BranchChief, a tribe may take further appeal to the Indian Board ofIndian Appeals within 45 days.

DOI Regulatory Initiative Trust Fund Accounting and Appeals Part 112

Page 2INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds

TTFS Project meeting participants.


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No review by federal courts will be available until

these administrative remedies have been exhausted,and the only basis for review by the courts will bewhether the Department acted in a manner that wasarbitrary, capricious, and otherwise not in accordancewith law. Any tribe that fails to advise the Department inwritten detail of its concerns or objections within the timelimits set by these regulations will be deemed to haveaccepted the account statement as accurate and com-plete for all purposes; will have abandoned all rights forfurther review within the Department; and will havefailed to exhaust all its administrative remedies,

thereby precluding any review at all by the federalcourts.

Individual account holders will not be presented withthe expedited or negotiated settlement options, butwill be presented with a historical statement of their land-based accounts that were open after June 23, 1938 andremained open on October 25, 1994, as well as for ac-counts opened after October 25, 1994 and before Janu-ary 1, 2001.

This entire regulatory scheme was obviously de-

signed to put a regulatory barrier between tribes and thefederal courts, and almost certainly was a factor in manytribes decision to institute litigation in December 2006.In addition, the regulations seem to be intended to re-place the current six-year statute of limitations with aregulatory strait jacket that will virtually preclude futuretribal litigation over trust fund balances. Many tribeshave questioned whether the Secretary has the authorityto promulgate such regulations and have indicated thatcourt challenges are a virtual certainty if the regulationsare adopted as presented. ITMA has advised the De-

partment that publication, even as proposed regulations,in the summer of 2007 will very likely be counter-productive of constructive efforts now underway.

In December 2006, the GAO issued a report to membersof the Senate Committee on Indian Affairs in response torepeated concerns expressed by tribal organizationsabout the Office of Special Trustee. These groups hadquestioned the duration and cost of trust reform efforts inOST, and had expressed concern as well that OST in-creasingly appeared to be managing the trust, and notmerely overseeing reform efforts.

The GAO reported that several key trust fund man-agement reforms had been implemented, but concurredthat no timetable for completion had been prepared. Spe-cifically the GAO report acknowledged that a new trustfunds accounting system had been implemented as earlyas 2000, and that a centralized trust asset and accountingsystem has been developed for managing land title re-cords for ownership and encumbrances, and data verifi-cation was expected to be completed by October 2007. Anon-exhaustive list of OST accomplishments included:

Automated daily sweeping of cash for investment;

Conversion of all accounts to automated trust accounting sys-tem;

Automated system for generating disbursements and state-ments;

Annual independent audit of trust fund portfolio;

Daily, weekly, and monthly reconciliations;

Elimination of commercial CDs as investment instruments; Completed clean-up of all IIM administrative files;

Implemented automated system for electronic check retrieval;

Established internal controls; Automated special deposit tracking and reporting;

Hired nationwide cadre of trust and fiduciary officers;

Established wire transfer to beneficiaries capabilities;

Established nationwide professional trust training for employees;

Established national lockbox for daily deposit of receipts.

(Continued on page 4)

Trust Fund Accounting and Appeals

(Continued from page 2)


GOVERNMENT ACCOUNTABILITY OFFICE (GAO)

ACKNOWLEDGES KEY REFORMS BY OST, BUT

QUESTIONS REMAIN ABOUT THE FUTURE


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The GAO report also indicated that the Special Trusteeadvised that the Office of Special Trustee will likely beretained, even when all the reform measures are com-pleted unless Congressional directives and current Sec-retarial Orders are rescinded. The report also raisedsome eyebrows in Indian country with its report of per-formance awards to OST employees in years from 1999to 2005. Perhaps because of this attention, ITMA is

un aware that any OST senior official received any meritbonus awards for the year 2006.

In addition, the legislation contemplated by the Ad-ministration would close loopholes tightly to prevent anyfuture mismanagement liability for the governments

residual responsibilities.Reaction to release of the Administrations letter was

swift and varied. The API reported Senator Dorgan saidimmediately, This is a significant admission, indicatingthat he takes the proposal as a concession of governmen-tal liability. Associate Deputy Interior Secretary Jim Cason,however, promptly stated that the proposal did not reflectany admission of anything, but merely looked to putting thepast behind in an effort to focus on a new federal-Indiantrust relationship. According to the API, Cason indicatedthat roughly one-half of the $7 billion would be used to set-

tle all individual and tribal claims, and the remainder toother measures included in the Administrations proposal.Keith Harper, one of the Cobell attorneys, called the Ad-ministration an insult, the API reported.

Many tribes throughout the country strongly opposedthe proposal to include settlement of all tribal claims in a$7 billion package that is characterized as an investmentin the future. Some of them pointed out that Attorney Gen-eral Gonzales had previously testified to an appropriationssubcommittee that the possible exposure of the govern-

ment to liability in tribal claims alone could be as much as$200 billion. A Justice Department representative advisedthat the Attorney Generals testimony referred not to theDepartments own assessment, but to an estimate of thecumulative amount of claims estimated by tribes them-selves. (Continued on page 5)

GOVERNMENT ACCOUNTABILITY OFFICE

(GAO) ACKNOWLEDGES KEY REFORMS BY

OST, BUT QUESTIONS REMAIN ABOUT THEFUTURE (Continued from page 3)


NARF Executive Director Jo hn Echohawk addressing Tribal leadership.

BUSH ADMINISTRATION GOES ON RECORDFOR COBELL SETTLEMENT

Almost two years after Senators McCain and Dorganintroduced S. 1439, the proposed Indian Trust Manage-ment Reform Act of 2005, the Bush Administration hasunveiled its counteroffer. In a letter signed by both Attor-ney General Alberto Gonzales and Department of the

Interior Secretary Dirk Kempthorne, the two Cabinet offi-cers advised Chairman Byron Dorgan of the SenateCommittee on Indian Affairs, the Administration is will-ing to invest up to $7 billion, over a ten year period, tosettle all Indian trust claims and pending litigation and tomake significant changes in the federal-Indian trust rela-tionship. The Gonzales-Kempthorne letter couches theAdministrations position in terms of a glowing future forIndian trust administration, a future of economic pros-perity, empowerment, and self-reliance for tribes andindividual Indians. The letter contains no details, but didinclude a one-page summary of legislation that the Of-fice of Administration and Budget has agreed not to op-pose.

The legislative summary provides that the governmentneed not conduct any historical accountings and, in-stead, suggests legislation that deems all account bal-ances accurate as of the date of enactment. The legisla-tion would settle all cash and land-based mismanage-ment claims for both tribes and individuals.


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Other tribes reacted more cautiously to the settlementfigure, pointing out that tribes have been criticizing theAdministration for two years for its failure to put a num-ber on the table, and suggesting that $7 billion was justthe Administrations opening gambit. Still other tribeshave expressed a skepticism that the $7 billion figure isreally an offer at all, since it is proposed to be spread overa ten-year period and might be scored against other In-dian programs in the budget process. Tribal representa-tives at the ITMA Annual Conference had previously

adopted a resolution unanimously rejecting a proposal toinclude all tribal claims in any legislation addressed tosettle theCobell litigation.

Individual Indians reactions have been mixed as well.Some individuals have expressed interest in expandingtheir holdings through federal legislation that would re-quire consolidation by cashing out their co-owners.Other individual landowners have suggested that forcedsales of privately held real property will create social un-rest within tribes throughout the nation, pitting familymembers against each other.

In short, the proposal commits the Administration tosupporting legislation that would somehow quash all cur-rent legal proceedings; extinguish any claims against theUnited States that might have been brought prior to en-actment by tribes or individual Indians; eliminate futureliability of the government for mismanaging Indian moneyor other trust assets; convert all individually and triballyowned Indian trust lands into owner-managed truststatus within ten years; and impose a clear statute oflimitations with an explicit bar on prejudgment interest.

ITMA has committed to both the Administration and tothe Senate Committee on Indian Affairs to remain closelyinvolved with future deliberations, especially when tribalinterests are implicated in any proposed legislation.

BUSH ADMINISTRATION GOES ON RECORDFOR COBELL SETTLEMENT(Continued from page 4)


ITMA was requested by the Senate Committee on In-dian Affairs to present its views in a March 29, 2007 hear-ing on the letter proposal delivered earlier in the month byAttorney General Alberto Gonzales and Interior SecretaryDirk Kempthorne to settle all Indian trust-related history ina single piece of legislation. Then councilman, and nowTribal President Bill Martin of the Central Council of Tlingitand Haida Tribes of Alaska presented ITMAs testimony.Mr. Martin is also the present vice-chairman of the Inter-tribal Monitoring Association on Indian Trust Funds.

Mr. Martin advised the Committee that the proposal toinvest up to $7 billion as a black box number to settle allindividual and tribal claims was not consistent with Chair-man Dorgans assurance that any settlement processwould be transparent. The Congress should not startwith a number and work back to allocate it among thediverse purposes suggested by the Administration.Rather, any number should be a result of deliberations,not a starting point. Further, Mr. Martin advised the Com-mittee that Congress should take these elements of the

Administrations proposal in manageable pieces, and notas an all-or-nothing proposition. Specifically, he advisedthe Committee to deal with the Cobell litigation separatelyif a Congressional resolution is attempted at all. And,finally, he urged the Committee not to attempt to resolveall tribal claims in the same legislation that attempts reso-lution of Cobell and elimination of the fractionated landtitles in Indian country. All the Indian witnesses echoedthe advice not to include tribal settlements in an effort tolegislate global peace, as the government refers to itsplans for settlement legislation. (Continued on page 6)

ITMA TESTIFIES ON ADMINISTRATIONPROPOSAL, OFFERS RECOMMENDATIONSTO SENATE PANEL

ITMA Executive Director Mary Zuni--Chalan.


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Mr. Martin reminded the Committee that experts in-vited by the previous Congress to address the Cobelllitigation had, in fact, recommended that Congressadopt a black box number since it was highly unlikelythat the parties would ever agree on a number theycould recommend jointly. That starting point for Cobellmight be appropriate, but no tribe and no expert hadever suggested including all the diverse tribal claims insuch an initiative.

With respect to land fractionation, Mr. Martin indi-cated that it is a problem for tribes as much as it is for

the federal government, and tribes are willing to workwith the government in addressing it. A proposal toseparate individual Indians from their property involun-tarily, however, will face the same challenges as previ-ous efforts that have twice been declared unconstitu-tional. Successes in voluntary purchases and familyconsolidation should be expanded to fit the size of theproblem, not jettisoned because inadequate fundinghas led to inadequate results.

Regarding the explosion of tribal litigation in the lastmonth of December 2006, Mr. Martin reminded the

Committee that Congress had declined to reset thestatutory date for tribal receipt of the infamous ArthurAndersen reconciliation reports of the 1990s, andurged the Committee to consider doing so even now.Many, if not most, of the litigating tribes filed actions inDecember as a defensive measure because the gov-ernment continues to assert that on December 31,2006 the statute of limitations ran on claims arisingprior to receipt of those reports. While no court hasyet agreed with the governments position in that mat-ter, prudence required tribes who could afford to file to

do so before that date. Many of them might well vol-untarily withdraw their suits if the threat that promptedthem were removed.

In addition, Mr. Martin advised the Committee thatthe present unilateral authority of the Secretary to im-pose fees on trust transactions should be lifted untilsuch time as trust reforms are accomplished and theCongress has had an opportunity to consider whetherto restore such authority and under what conditions.

ITMA continues to monitor legislative initiatives,and expresses great appreciation to Chairman Dorgan forhis word that any legislative process for trust fund settle-ment in this Congress will be a transparent one.

ITMA TESTIFIES ON ADMINISTRATION PROPOSAL, OFFERS RECOMMENDATIONS TO SENATE PANEL


ITMA AND DOIS TRIBAL TRUST FUND

SETTLEMENT PROJECT

Seven ITMA tribes have worked over the last three yearsin a cooperative effort with the Department of Interior todevelop a methodology by which they can reach a settle-

ment of trust fund-related claims without resorting to litiga-tion. These tribes are the Yakama Nation, the Gros Ventreand Assiniboine Tribes of the Fort Belknap Reservation,Coeur dAlene, Colville, Nez Perce, Picuris Pueblo, and theSac and Fox Tribe of Oklahoma.

The focus of the effort has been the time period of 1972-1992, the period of time covered by the Arthur Andersenreports which were delivered to tribes in 1996. These tribesall executed non-disclosure agreements in order that collec-tive discussions would be possible with the DepartmentsOffice of Historical Accounting regarding the way their ac-

counts were treated in the Arthur Andersen work. ITMA hasscheduled a national meeting for May 31, 2007 to provideany interested tribes with an update on this project. Seethe meeting announcement in this newsletter.

(Continued on page 7)

ITMA and DOIs Tribal Trust Fund Settlement meeting.


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ITMA has engaged an expert accountant and, fromtime to time regional accounting firms who have exten-sive experience in dealing with tribal accounts and finan-cial statements to assist in the deliberations among thetribes themselves and in negotiations with the govern-ment. These negotiations have been arduous from thebeginning, including even the language of the Coopera-tive Agreement itself which sets the framework for theTribal Trust Fund Settlement Project (TTFSP).

The government continues to favor a wholesale ap-proach wherever possible through the use of statistical

sampling and the application of national error rates onvarious aspects of the methodology. The participatingtribes, on the other hand, while indicating they might bewilling to forego a detailed historical accounting of everytransaction in each of their accounts, continue toinsist that any methodology will provide each tribe withan opportunity for analytic review of its own accountsand more detailed examination wherever indicated bysuch investigations. All this, of course, is in pursuit sim-ply of a methodology that will be sufficiently acceptableto both tribes and the government that it can be applied

by tribes in their own individual negotiations with thegovernment.

Besides the inherent difficulties of the negotiations,several external events have also significantly influencedprogress of the TTFSP over the last year. These eventsinclude the dissemination of draft regulations by the De-partment that appeared to accord finality by regulation tothe account balances posited more than ten years agoby Arthur Andersen and other government contractors.In addition, concern over the possible running of the stat-ute of limitations on certain claims prompted six of the

seve participating tribes to file lawsuits in December.

The litigation itself changed the landscape, as aDepartment official put it, and briefly brought the entireTTFSP project into question, since three of the partici-pating tribes had agreed to serve as named plaintiffs in aproposed class action, and three others had filed theirown individual actions. While the government appearedto be questioning the participating tribes commitment tothe settlement process, Congressional committee staff

and many other tribes were expressing increasing interestin the nature of the project and its possible applicability totheir own situations. And even as the government wasquestioning the commitment of the seven participatingtribes to the project, both Interior and Justice Departmentofficials increasingly referred to TTFSP as an importantalternative to litigation.

ITMA and Interior Department representatives con-ducted a briefing session for Congressional staff inMarch. While some judges in the U.S. Court of FederalClaims denied joint motions of tribes and the government

to stay their recently filed lawsuits while they pursued set-tlement options, at least one judge granted such a stay byreferring to the tribes and the governments joint partici-pation in the ITMA Tribal Trust Fund Settlement Project.

ITMA expects both Interior and Justice Departmentpersonnel to attend the May 31 Denver meeting at whichthe participating tribes and ITMA representatives will ex-plain the project at whatever length attendees request.

While the TTFSP is regarded as a possible alternativeto litigation, the methodology contemplated could just as

well be effective as a means to settle some matters inlitigation also. The methodology under considerationdoes not contemplate the full accounting that ITMA insistsall tribes have a right as trust beneficiaries to demand ofthe government.

Nor does it contemplate an unquestioning acceptanceof any financial statements received from the governmentor its contractors. Rather, the methodology contemplatesa disciplined examination of reported account statementsand account balances with an eye to determining on atribe by tribe basis (Continued on page 8)

ITMA AND DOIS TRIBAL TRUST FUND SETTLEMENT PROJECT (Continued from page 6)


(from left to right) Heidi Gudgell, David Harrison, and


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whether tribes have meritorious claims for failures toadminister their accounts in accordance with the appro-priate laws and standards for fiduciary conduct.

For instance, the methodology contemplates an ex-amination whether Arthur Andersen and other contrac-tors did what they said they did in their reviews of tribalaccounts; whether those reviews were sufficiently com-plete to provide reliable indicators of revenues and dis-bursements; whether amounts received were appropri-ately and timely invested and reinvested; and whether

recorded disbursements can reliably be accepted.

A good many details remain to be ironed out, andthose negotiations promise to be as arduous as the ear-lier ones have been. To date, however, both the partici-pating tribes and the government express determinationto complete the methodology under development.

All tribes with an interest in trust fund settlement areinvited to the May 31 meeting in Denver, subject to therequirement that litigating tribes be accompanied by theirlitigation counsel or provide a non-objection letter from

litigation counsel.

On January 24-25, 2007, the Tohono Oodham NationLegislative Council Chairman Verlon Jose welcomed theparticipants to the Tribally sponsored forum arranged forTribal Council and Indian individuals to address concernsregarding their tribal and individual trust funds accountsand resource issues.

ITMA Executive Director Mary Zuni-Chalan opened thesession thanking the Tohono Oodham Nation for hostingthe 16th Listening Conference conducted by ITMA acrossIndian Country. Councilman Gerald Fayuant was instru-

mental in organizing the event on behalf of the Nation.

As ITMA continues to monitor the trust related activitiesof the Federal Government and Congress, these sessionsare conducted to provide, in most cases, a first-time oppor-tunity for tribal governments and individual Indians tospeak directly to top level Government representativesregarding tribal-specific trust management and resourceissues. Information from these sessions is utilized byITMA in the development of policy and positions. Ms.Zuni-Chalan clarified that the on-going IIM account litiga-tion is outside the scope of the Listening Conferences.

Chairwoman Vivian Juan-Saunders, addressing theLegislative Council and audience, welcomed the meetingparticipants and provided comments on the history of com-munally owned land. The Nation, occupying its aboriginalterritory, has over 1200 individual landowners, many ofwhom own land in the allotted San Xavier District nearTucson. Original lands are significantly reduced with landsin Mexico being part of the original land base.

Chairwoman Juan-Saunders spoke to a 1979 Depart-ment of Interior Solicitors opinion that trust responsibility

imposes the most exacting fiduciary standards that federalrepresentatives and tribal councils have been attemptingto comply with.

The Chair called for the equitable and fair settlement forthe IIM accountholders with sufficient dollars to remain inBIA to address law enforcement, public safety, road, socialservices and other needs of the Nation. (Continued on page 9)

ITMA AND DOIS TRIBAL TRUST FUND

SETTLEMENT PROJECT (Continued from page 7)

Page 8


TOHONO OODHAM NATION HOSTED ITMA

LISTENING CONFERENCE (Continued on page 9)

ITMA-TTFSP Lead Consultant Sandra Johnigan with Jim Vogel of

Fort Belknap and Richard George from the Yakama Nation.


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Further, no Tribal Priority Allocation (TPA) funding should

be redirected to fund OST. The Nation experienced ashortfall due as the result of a FY 2004 BIA directive statingthat if 10% or less of the TPA was to be utilized by BIA thatthere was no need to consult with the Tribe. The Nationstrongly objected to DOIs attempt to tap into federal appro-priations for Tribes to pay for DOIs legal fees. ChairwomanSaunders suggested that rather than an increase in funds tosupport work to insure equitable accounting and fairness forIIM accountholders, there appears a shifting of funds fromone place to another impacting funds required for road im-provements and for the Nations Realty Office to adequately

manage lands or deal with flooding of the Santa Cruz Riverthat for years has critically affected the Chui Chu and SifOidak Districts.

Special Trustee Swimmer responded to the issuesagreeing with the fiduciary duties owed Tribes and individ-ual Indians by the Federal Government as supported bycase law and statutory law. He stated the work of OST is infurtherance of the fiduciary duty, particularly in the financialarena of the trust. He referenced the appearance thatmonies are being shifted to OST, stating that OSTs appro-priation is given back to BIA in the form of services, includ-

ing the support of work to address the probate backlog. Hereported that Congress did not appropriate funds for 2007and current spending is at the FY 2006 levels.

Allen Anspach, BIA Western Regional Director, who wasaccompanied by Papago Agency Acting SuperintendentNina Siquieros, and Stan Webb, Western Regional RealtyOfficer, stated funds are now back on the BIA books fromFederal Highways and an agreement between BIA and theNation will be developed to apply funds appropriately. Hestated the amount of funds on the initial contract for Realtywas not sufficient but agreement was reached for the Na-tion to contract Reality for tribal lands with an understandingthe Nation would supplement the budget. He cited this asthe harsh reality of the current budget both for BIA and thecurrent PL. 93-638 contract with the Nation.

ITMA Board member Councilwoman Betty Cooper of theBlackfeet Tribe of Montana reminded BIA and OST thatTribes are not only looking for dollars to address trust mis-management, but also to acquire lands. Ms. Cooper ad-

vised the audience of a Homeland Security matter on-

going at the Blackfeet Tribe.Majel Russell, ITMAs legal counsel and liaison to

OST discussed the trust reform arena:

Visits to OST headquarters and the Beneficiary CallCenter created to address beneficiary questions regard-ing trust payments or other trust management ques-tions. In May 2006 the Center received 114,000 callsand reportedly approximately 89% were addressed inthe initial call.

Lock Box System located in Prescott, AZ serves as

a commercial Lock Box for all trust land payments toallow for payments. The system now allows for sameday deposits for trust payments.

National Training Center, developed as a trainingcenter for OST and BIA personnel on the new TrustAsset Accounting Management System (TAAMS).

Ms. Russell concluded stating that effective reformshave been accomplished in the arena of managing trustfunds, however, reforms in trust resources manage-ment, including effective lease negotiation, lease com-

pliance, conservation efforts for trust lands and prose-cutions for trespass still remain to be implemented.

Donna Erwin, Principal Deputy Special Trustee, con-ducted a power point presentation on the differencebetween BIA and OST responsibilities. Basically, OSThandles money, BIA takes care of resources and theOffice of Hearings and Appeals determines heirsthrough a probate process. BIA and OST have sepa-rate duties to address audit issues. BIA handles plan-ning for resource usages, manages acquisition and dis-posals, establishes leasing relationships, in addition to

working with BLM who does compliance and MMS whocollects royalties for oil and gas.

Philbert Bailey provided background on the San Xa-vier District and a class action lawsuit filed in 1975 bythe Allottees Association. Mr. Bailey stated the Asso-ciation would like to see leases no longer being one-time payment leases and suggested 25-year leaseswith five-year adjustments. He asked that the El Paso

TOHONO OODHAM NATION SPONSORS ITMA LISTENING CONFERENCE (Continued from page 8)



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gas line lease, the Pima County and other leases be re-viewed. Regarding the Asarco mining royalities, individu-als receive statements quarterly and they would like tosee a breakdown of fees. Mr. Bailey asked for clarifica-tion between individual mining leases that are paidmonthly and business leases that are paid annually.He stated MMS was to provide an audit from the mine tothe allottees and they have yet to receive it.

Phyliss Pachora, Board member of the Allottees Asso-ciation reiterated that MMS is not responsive to the indi-viduals. Ms. Pachora stated there are allottees living inMexico that should be considered. She cited issues witha Palm Springs developer who signed a lease with indi-viduals that must be looked into. Ms. Pachora stated es-cheatments have occurred with lack of proper notification.The 1995 Asarco lease calls for royalties on a slidingscale so payments can increase with cost of living, thishas not occurred.

Elenore Hunter asked for clarification on the ability toname beneficiaries.

Mr. Swimmer stated Indian Affairs is attempting to get

escheatments reverted or revested back to the owners.The Youpee case was brought to address this issue andit is an ongoing issue in the BIA, OST and with OHAsprobate process. Leases and rights-of-way can be nego-tiated up to a point without changing the law. If you reachan impasse on a lease you can stop there, however, witha rights-of-way, the law does permit the company to comein and condemn but in most instances, there have beenexceptions.

Mr. Swimmer stated he will work with BIA to see what

the status of MMS is on the audit. Doug Lords, DeputySpecial Trustee, regarding the Mexico issue, offered out-reach if requested.

There was a great deal of discussion on recentchanges in the law regarding deeding of property to bene-ficiaries and the new law and the definition of Indian forthese purposes.

Edward Encinas, a landowner at San Xavier dis-cussed inherited land that was leased and his opposi-tion to the lease because of what it is doing to the land

and vegetation.San Xavier Board Member Tony Encinas stated his

concerns lie with the probate portion of the AllotmentAct. He asked where the information obtained from thissession goes.

Anthony Rios stated he was unaware of the manychanges in the law regarding the single heir rule.

Tribal Councilwoman Gloria Ramirez asked thestatus of the OST required Strategic Plan. Mr. Swim-mer responded there were two plans, one in 1996 and

one in January 2003 referred to as the ComprehensiveTrust Management Plan that describes how the trustwould be operated between and with the BIA, OST,MMS, BLM, the Secretarys Office, the Solicitors Officeand the Office of Hearings and Appeals. OST is near-ing completion of the implementation and completingvalidation of information going into the software sys-tems, the development of oil and gas recording softwaresystem, and the graphical information system.

Councilwoman Darlene Andrew addressed the SantaCruz -Chui Chu flooding.

Councilman Flores asked for a description of thepurpose of ITMA.

Councilwoman Nunez addressed allotment fraction-alization and the updating of records.

Councilwoman Antone addressed the Asarco leasenegotiations, reiterated the Nations position on roadsand environmental issues.

Austin Nunez, Chairman of San Xavier District citedconcerns on behalf of the District with regards to the 2%

Youpee interest, how the local agency is handling thematter and when will the interest be transferred; theyunderstand there is a continual backlog of probates, andthey understand there are several unfilled positions inthe Southwest area which handle probates. With regardto water issues, they are implementing the SouthernArizona Waster Rights Settlement Act Amendments of2004 and have internal matters to deal with.



LISTENING CONFERENCE (Continued from page 9)

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LISTENING CONFERENCE (Continued from page 10)

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The District would like to see the portion of S1439 thatdeals with accounting of the funds for individuals and valua-tions of land become a reality.

Councilman Fayuant, as an outgoing ITMA Board mem-ber, commented on the valuable work ITMA has done inregards to trust issues and thanked the Organization forbring a Listening Conference to Tohono Oodham for thebenefit of his people.

Pictures from the ITMA s TOHONO OODHAM NATIONListening Conference, May 23 - 24, 2007


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ITMAs project consultants will explain the Projects proposedmethodological approach. Tribes who have been participating in theITMA Tribal Trust Fund Settlement (TTFS) Project are planning toattend the meeting. In addition, the United States Department of theInterior and the United States Department of Justice are planning toattend the meeting and will be available to answer questions.

The seven Tribes who are currently participating in the ITMA TribalTrust Fund Settlement Project are:

Coeur DAlene Tribe of Idaho

Confederate Tribes of Colville of Washington

Confederate Tribes of Yakama Nation of Washington

Fort Belknap Tribes of Montana

Nez Perce Tribe of Idaho

Picuris Pueblo of New Mexico

Sac and Fox Tribe of Oklahoma

Because a predominant number of the Government representa-tives planning to attend the May 31 meeting are lawyers who areinvolved, in some way, with some, if not most or all, of the pendingTribal trust accounting and trust mismanagement cases.

Those Government lawyers have to comply with certain profes-sional rules and procedures. As a result, they will likely have to de-cline attendance or participation in the meeting, unless the followingcondition is met by the litigating Tribes that are attending the meet-ing. Therefore, meeting attendance pre-requisites are being consid-ered by ITMA and the government and will be announced as themeeting date is announced.

All Tribes with an interest in tribal trust fund issues, especiallythose with an interest in settling their trust accounting and trust fundmismanagement claims outside of litigation, are invited to attend andparticipate in this meeting. The date of the meeting, which will bein May 2007, will be announced immediately upon confirmationfrom agenda participants, and will be held at the Embassy Suites atthe Denver Airport. [Check ITMAs website www.itmatrustfunds.orgfor updated meeting information.]

The purpose of the TTFS Project is to provide the Tribes and theGovernment with the opportunity and the means to evaluate andaddress the Tribes trust fund accounting and trust fund-relatedclaims, without the need for protracted and potentially expensive

litigation. It is ITMAs understanding that many Tribes, includingmany of those that have filed suit against the Government recently,have expressed an interest in and desire for an alternative honorableresolution, based on a reliable and trustworthy technical methodol-ogy, of their accounting and fund-related claims. Government offi-cials have advised ITMA that the Government shares this interestand desire. Over two years before the filing of cases in Novemberand December, 2006, ITMA and the U.S. Department of the Interiorembarked on the TTFS Project through a Cooperative Agreement toachieve an alternative method of resolving fund-related claims.

ITMA and seven Tribes from across Indian Country have been andcontinue to be working with Interior, specifically Interiors Office ofHistorical Trust Accounting (OHTA), to develop a feasible process

based on a tested methodology that will enable and assist Tribes andthe Government to reach settlement on the Tribes trust accountingand trust fund-related claims, such as the accuracy of Tribal TrustFund account balances, at least for significant time periods.

Tribes who have been participating in the ITMA Tribal Trust FundSettlement (TTFS) Project are planning to attend the meeting. Inaddition, the United States Department of the Interior and the UnitedStates Department of Justice are planning to attend the meeting.

Presently, there are about 103 Tribal trust accounting and trustmismanagement cases pending in the federal court system. Thirty-seven of those cases are pending in the United States District Courtfor the District of Columbia; nine are pending in various United StatesDistrict Courts in Oklahoma; and fifty-seven are pending in the UnitedStates Court of Federal Claims. In recent months there has beenincreasing awareness of the TTFS Project, and, as a result, manyTribes in litigation have requested that ITMA provide a forum to learnabout the Project. In at least one of these cases, the Tribes and theGovernment have made joint submissions to the Court, acknowledg-ing a possible influence and impact of the TTFS Project on the dispo-sition of the cases.


ITMA TO HOST TRIBAL TRUST FUND SETTLEMENT MEETING

TTFS Project meeting participants.


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PACIFIC REGION:

California:

Ewiiaapaayp Band of Kumeyaay

Indians

Fort Bidwell Indian Community

Hoopa Valley Tribe

San Pasqual Tribe

Soboba Band of Luiseno Indians

Yurok Tribe

NORTHWEST REGION:

Idaho:

Coeur dAlene Tribe

Nez Perce Tribe

Shoshone-Bannock Tribes

Oregon:

Confederated Tribes of Umatilla

Confederated Tribes of Warm Springs

Washington:

Confederated Tribes of Chehalis Tribe

Confederated Tribes of Colville

Confederated Tribes of Quinault

Confederated Tribes of Yakima Nation

WESTERN REGION:

Arizona:

Hopi Tribe

Salt River Pima Maricopa Tribe

Tohono Oodham Nation

Nevada:

Fallon Paiute-Shoshone Tribe

Walker River Paiute Tribe

ROCKY MOUNTAIN REGION:

Montana:

Blackfeet Tribe

Chippewa Cree Tribe of Rocky Boy Reservation

Confederate Tribes of Salish & Koot enai

Fort Belknap Tribes

Fort Peck Tribes

Northern Cheyenne Tribe

Wyoming:

Eastern Shoshone Tri be

Northern Arapaho Tribe

SOUTHWEST REGION:

Colorado:

Southern Ute Tribe

New Mexico:

Jicarilla Apache Tribe

Mescalero Apache Tribe

Pueblo of Cochiti

Pueblo of Laguna

Pueblo of Picuris

Pueblo of Sandia

GREAT PLAINS:

North Dakota:

Three Affiliated Tribes

Standing Rock Sioux Tribe

Turtle Mountain Band of Chippewa

South Dakota:

Cheyenne River Sioux Tribe

Sisseton-Wahapton Oyate Tribes

Nebraska:

Winnebago Tribe

SOUTHERN PLAINS:

Oklahoma:

Absentee Shawnee Tribe

Alabama Quassarte Tribe

Cherokee Nation

Iowa Tribe

Kaw Nation

Kiowa Nation

Muscogee Nation

Osage Nation

Sac and Fox Tribes

Thlopthlocco Tribe

Quapaw Tribe

MIDWEST:

Minnesota:

Grand Portage Tribe

Leech Lake Band of Ojibwe

Red Lake Band of Chippewa

Wisconsin:

Forrest County Potawatomi Tribe

Oneida Nation

Michigan

Lac Vieux Desert Tribe

Sault St. Marie Tribe of Chippewa

EASTERN REGION:

Maine:

Passamaquoddy Tribe of Pleasant Point Reservation

Penobscot Nation

ALASKA:

Central Council Tlingit & Haida Tribes

Kenaitze Tribe

Metlakatla Tribe

Page 14

ITMA TRIBAL MEMBERSHIP


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ITMA Vice-Chairman, 1st Vice President Bill Martin

Tlingit & Haida Tribes

ITMA Chairman, Councilman Mervin Packineau

Three Affiliated Tribes

ITMA Secretary Melinda Danforth

Oneida Tribe

ITMA TreasurerJody Calaca

Warm Springs Tribe

Councilman Scott Russell

Crow Tribe

Councilwoman Betty Cooper

Blackfeet Tribe

Councilman Samuel Penney

Nez Perce Tribe

Chairman James Steel

Salish & Kootenai Tribe

Chairman James Gray

Osage Nation

Councilman Floyd Kirk

Sisseton Wahpeton Oyate

Councilman Michael Marchand

Confederated Tribes of Colville

Representative Richard Sangrey

Chippewa Cree Tribe

ITMA Board of Directors2007


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ITMA was organized in 1990 by Tribesdetermined to actively monitor and have

a voice in the activities of the Federal

government to ensure fair compensa-

tion to tribes for the historical trus

funds mismanagement. Today, ITMA is

a national tribal consortium consisting

of 65 federally recognized tribes, whose

purpose and objectives have increasedas it follows the trust reform activities of

the Federal government and Congress.

ITMA's mission is to focus on trust fund and assetmanagement initiatives as developed by tribal partici-pants:

We are on the web!

www.itmatrustfunds.org

Monitor the Government's Reform Efforts Trust Policies and Regulations Legislative and Litigation Initiatives Provide a Forum for Tribal Consultation Provide Increased Education for Tribes and Individuals Enforcing the Federal Government to Adhere and Imple-

ment Trust Standards Empowering Tribes and Individuals to Control and Man-

age Their Own Trust Funds and Assets

ITMA

2800 San Mateo Blvd. NE Suite 105

Albuquerque, NM 87110

alberto gonzales files - intertribal monitoring association on indian trust funds annual conference

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