April 2007


The Board of Directors of the Intertribal Monitoring Association on Indian Trust Funds (ITMA) have announced the dates for the 17th Annual Conference. The session scheduled for October 24-26, 2007 will be held at the Golden Nugget Hotel & Casino in Las Vegas, NV. Obtain updated information regarding the conference at (www.itmatrustfunds.org)

some of them were found to have been living on the Fort Berthold Reservation, raising a question about the vigor of previous efforts to locate them. After Gillette and his staff locate individuals whose whereabouts were previously unknown, but for whom the Office of Special Trustee held money in trust, OST then has to verify their identities before their money is released to them. This verification process takes time, but to date the Fort Berthold fiduciary trust officer’s staff have been responsible for the actual distribution of more than $1million to account holders whose whereabouts were previously unknown. Mr. Gillette credited his three-person staff for his success. Paul Goodiron is the office assistant for automation and records maintenance at the Fort Berthold OST, Ira Fox and Vicki Alberts are accounting technicians who constitute “the heartbeat of the operation,” Gillette told the Minot reporter. Nationally, there are now fifty-two fiduciary trust officers located in BIA agency offices throughout the nation. In the past three years, Ogden reports, OST has distributed more than $79 million to individual Indians whose whereabouts was previously unknown, sometimes for many years. A few of these individuals had more than $100,000 in trust and even more had more than $50,000 in their accounts. Today 54,000 names remain on the Whereabouts Unknown list. With Indian trackers like Austin Gillette on their trail, perhaps OST will reach its unlikely sounding goal. Gillette advised the Minot paper, “Our goal is zero.”

Eloise Ogden, Regional Editor of the Minot Daily News has written a major feature story starring the Office of Special Trustee and the Fort Berthold Agency fiduciary trust officer, Austin Gillette. A former tribal chairman and long-time tribal councilman for the Three Affiliated Tribes of the Fort Berthold Reservation, Gillette has for the past year and a half been OST’s fiduciary trust officer at the Fort Berthold Agency. According to Ogden’s article, Mr. Gillette has united previously unlocated IIM account holders with more than one million dollars of their money. While the total number of “whereabouts unknown” account holders at Fort Berthold was not known by ITMA, Ms. Ogden’s article recites that Mr. Gillette and his staff have contacted more than 2,000 people in the course of tracking down 266 actual Indian account holders, many of whom had no idea the government had held money in trust for them, often for years. Gillette told the Minot Daily News that he and his staff had located Fort Berthold account holders in states as far away as Alaska. Some were found to be incarcerated, others had been adopted at birth and lived with adoptive names all their lives. Some of them had never had any contact with the reservation or the community, Gillette said. On the other hand,

ITMA Chairman Mervin Packineau addresses ITMA meeting participants.

INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds DOI Regulatory Initiative Trust Fund Accounting and Appeals Part 112
The Department of Interior has announced its plans to publish proposed regulations in early summer 2007 to govern trust fund accounting and appeals. A draft of these regulations was circulated in late 2005 and was the subject of consultation meetings around the country in 2006. Presumably, the Department has given serious consideration to the many comments received in those meetings and in writing. Originally proposed as Part 116 of Title 25 of the Code of Federal Regulations, the original draft was subsequently revised to omit reference to individual Indian accounts and re-circulated as proposed Part 112 of Title 25 CFR. ITMA staff have advised Department officials that the proposed regulations will cause even more tribes to file suit against the government to protect current rights that the regulations appear designed to extinguish. The Department of Interior explains the regulations as a means of the government’s achieving finality with respect to historic tribal trust account balances and reducing significantly the number of IIM accounts in the Department’s Indian trust portfolio. Under the regulatory regime set forth, the Department’s Office of Historical Trust Accounting (OHTA) will advise all tribes of the opportunity to request either an “expedited” account settlement proposal or a “negotiated tribal accounting plan.” Tribes that request an expedited settlement proposal will receive priority treatment, and for them the Department will review a requesting tribe’s accounts and make an offer for settlement of all account balances. If the offer is accepted, the tribe must agree to accept the offered balance as accurate “in all respects”; to release or waive all claims for any acts or omissions from August 13 to the date of acceptance; to execute all necessary documents to bind the acceptance; to dismiss any pending litigation; and further agree not to take any funds received in settlement into trust. A second option available to all tribes, including those who do not accept any expedited offer, is to request a “negotiated tribal accounting plan,” that will specify at a minimum the accounts to be examined, identify issues to be reviewed, methodologies to be employed, documents to be collected for examination, a work schedule, estimated costs of the accounting work,

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the nature and format of any reports to be delivered, and procedures for modifying the plan as it proceeds. The Department will then undertake to perform the accounting required by the plan and submit its findings to the tribe which will have 30 days to comment on it. The Department may then revise the report. The Department and the tribe will have 90 days after delivery of the final report to exchange settlement proposals, and 180 days after that 90-day period to conclude negotiations or agree to extend the period. All tribes that fail to achieve settlement under one of those two approaches will receive from the Department a “historical statement of account,” which will include a statement of opening and closing balances, gains and losses, receipts and disbursements, but apparently not investment transactions. The Department will schedule meetings to discuss these historical statements of account within 90 days of their delivery, and tribes will have 60 days after that meeting to submit written comments on their statements. The Department will revise the statements if it deems necessary, and a tribe will have an additional 30 days after receiving a revised statement to make written comments. Following receipt of a final historical statement from OHTA, a tribe will have 90 days to make written objection to OHTA’s Tribal Branch Chief setting forth all the errors or omissions claimed along with supporting documents or arguments. Following a final decision from the OHTA Branch Chief, a tribe may take further appeal to the Indian Board of Indian Appeals within 45 days.

TTFS Project meeting participants.

INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds Trust Fund Accounting and Appeals
(Continued from page 2)

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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 be whether the Department acted in a manner that was “arbitrary, capricious, and otherwise not in accordance with law.” Any tribe that fails to advise the Department in written detail of its concerns or objections within the time limits set by these regulations will be “deemed” to have accepted the account statement as accurate and complete for all purposes; will have “abandoned” all rights for further review within the Department; and will have “failed” to exhaust all its administrative remedies, thereby precluding any review at all by the federal courts. Individual account holders will not be presented with the “expedited” or “negotiated” settlement options, but will be presented with a historical statement of their landbased accounts that were open after June 23, 1938 and remained open on October 25, 1994, as well as for accounts opened after October 25, 1994 and before January 1, 2001. This entire regulatory scheme was obviously designed to put a regulatory barrier between tribes and the federal courts, and almost certainly was a factor in many tribes’ decision to institute litigation in December 2006. In addition, the regulations seem to be intended to replace the current six-year statute of limitations with a regulatory strait jacket that will virtually preclude future tribal litigation over trust fund balances. Many tribes have questioned whether the Secretary has the authority to promulgate such regulations and have indicated that court challenges are a virtual certainty if the regulations are adopted as presented. ITMA has advised the Department that publication, even as proposed regulations, in the summer of 2007 will very likely be counterproductive of constructive efforts now underway.

In December 2006, the GAO issued a report to members of the Senate Committee on Indian Affairs in response to repeated concerns expressed by tribal organizations about the Office of Special Trustee. These groups had questioned the duration and cost of trust reform efforts in OST, and had expressed concern as well that OST increasingly appeared to be managing the trust, and not merely overseeing reform efforts. The GAO reported that “several key trust fund management reforms” had been implemented, but concurred that no timetable for completion had been prepared. Specifically the GAO report acknowledged that a new trust funds accounting system had been implemented as early as 2000, and that a centralized trust asset and accounting system has been developed for managing land title records for ownership and encumbrances, and data verification was expected to be completed by October 2007. A non-exhaustive list of OST accomplishments included:
• • • • • • • • • • • • • • Automated daily sweeping of cash for investment; Conversion of all accounts to automated trust accounting system; Automated system for generating disbursements and statements; Annual independent audit of trust fund portfolio; Daily, weekly, and monthly reconciliations; Elimination of commercial CD’s 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)

The GAO report also indicated that the Special Trustee advised that the Office of Special Trustee will likely be retained, even when all the reform measures are completed unless Congressional directives and current Secretarial Orders are rescinded. The report also raised some eyebrows in Indian country with its report of performance awards to OST employees in years from 1999 to 2005. Perhaps because of this attention, ITMA is un aware that any OST senior official received any merit bonus awards for the year 2006.

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In addition, the legislation contemplated by the Administration would “close loopholes tightly” to prevent any future mismanagement liability for the government’s “residual responsibilities.” Reaction to release of the Administration’s letter was swift and varied. The API reported Senator Dorgan said immediately, “This is a significant admission,” indicating that he takes the proposal as a concession of governmental liability. Associate Deputy Interior Secretary Jim Cason, however, promptly stated that the proposal did not reflect any admission of anything, but merely looked to putting the past behind in an effort to focus on a new federal-Indian trust relationship. According to the API, Cason indicated that roughly one-half of the $7 billion would be used to settle all individual and tribal claims, and the remainder to other measures included in the Administration’s proposal. Keith Harper, one of the Cobell attorneys, called the Administration “an insult,” the API reported. Many tribes throughout the country strongly opposed the proposal to include settlement of all tribal claims in a $7 billion package that is characterized as an investment in the future. Some of them pointed out that Attorney General Gonzales had previously testified to an appropriations subcommittee that the possible exposure of the government to liability in tribal claims alone could be as much as $200 billion. A Justice Department representative advised that the Attorney General’s testimony referred not to the Department’s own assessment, but to an estimate of the cumulative amount of claims estimated by tribes themselves. (Continued on page 5)

Almost two years after Senators McCain and Dorgan introduced S. 1439, the proposed Indian Trust Management Reform Act of 2005, the Bush Administration has unveiled its counteroffer. In a letter signed by both Attorney General Alberto Gonzales and Department of the Interior Secretary Dirk Kempthorne, the two Cabinet officers advised Chairman Byron Dorgan of the Senate Committee on Indian Affairs, “the Administration is willing to invest up to $7 billion, over a ten year period,” to settle all Indian trust claims and pending litigation and to make significant changes in the federal-Indian trust relationship. The Gonzales-Kempthorne letter couches the Administration’s position in terms of a glowing future for Indian trust administration, a future of “economic prosperity, empowerment, and self-reliance for tribes and individual Indians.” The letter contains no details, but did include a one-page summary of legislation that the Office of Administration and Budget has agreed not to oppose. The legislative summary provides that the government need not conduct any historical accountings and, instead, suggests legislation that “deems” all account balances accurate as of the date of enactment. The legislation would settle all cash and land-based mismanagement claims for both tribes and individuals.

NARF Executive Director John Echohawk addressing Tribal leadership.

(Continued from page 4)

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ITMA was requested by the Senate Committee on Indian Affairs to present its views in a March 29, 2007 hearing on the letter proposal delivered earlier in the month by Attorney General Alberto Gonzales and Interior Secretary Dirk Kempthorne to settle all Indian trust-related history in a single piece of legislation. Then councilman, and now Tribal President Bill Martin of the Central Council of Tlingit and Haida Tribes of Alaska presented ITMA’s testimony. Mr. Martin is also the present vice-chairman of the Intertribal Monitoring Association on Indian Trust Funds. Mr. Martin advised the Committee that the proposal to “invest up to $7 billion” as a black box number to settle all individual and tribal claims was not consistent with Chairman Dorgan’s assurance that any settlement process would be “transparent.” The Congress should not start with a number and work back to allocate it among the diverse purposes suggested by the Administration. Rather, any number should be a result of deliberations, not a starting point. Further, Mr. Martin advised the Committee that Congress should take these elements of the Administration’s proposal in manageable pieces, and not as an all-or-nothing proposition. Specifically, he advised the Committee to deal with the Cobell litigation separately if a Congressional resolution is attempted at all. And, finally, he urged the Committee not to attempt to resolve all tribal claims in the same legislation that attempts resolution of Cobell and elimination of the fractionated land titles in Indian country. All the Indian witnesses echoed the advice not to include tribal settlements in an effort to legislate “global peace,” as the government refers to its plans for settlement legislation. (Continued on page 6)

Other tribes reacted more cautiously to the settlement figure, pointing out that tribes have been criticizing the Administration for two years for its failure to “put a number on the table,” and suggesting that $7 billion was just the Administration’s opening gambit. Still other tribes have expressed a skepticism that the $7 billion figure is really an offer at all, since it is proposed to be spread over a ten-year period and might be scored against other Indian programs in the budget process. Tribal representatives at the ITMA Annual Conference had previously adopted a resolution unanimously rejecting a proposal to include all tribal claims in any legislation addressed to settle the Cobell litigation. Individual Indians’ reactions have been mixed as well. Some individuals have expressed interest in expanding their holdings through federal legislation that would require consolidation by cashing out their co-owners. Other individual landowners have suggested that forced sales of privately held real property will create social unrest within tribes throughout the nation, pitting family members against each other. In short, the proposal commits the Administration to supporting legislation that would somehow quash all current legal proceedings; extinguish any claims against the United States that might have been brought prior to enactment by tribes or individual Indians; eliminate future liability of the government for mismanaging Indian money or other trust assets; convert all individually and tribally owned Indian trust lands into “owner-managed trust status” within ten years; and impose a clear statute of limitations with an explicit bar on prejudgment interest. ITMA has committed to both the Administration and to the Senate Committee on Indian Affairs to remain closely involved with future deliberations, especially when tribal interests are implicated in any proposed legislation.

ITMA Executive Director Mary Zuni--Chalan.


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ITMA TESTIFIES ON ADMINISTRATION PROPOSAL, OFFERS RECOMMENDATIONS TO SENATE PANEL Mr. Martin reminded the Committee that “experts” invited by the previous Congress to address the Cobell litigation had, in fact, recommended that Congress adopt a “black box” number since it was highly unlikely that the parties would ever agree on a number they could recommend jointly. That starting point for Cobell might be appropriate, but no tribe and no expert had ever suggested including all the diverse tribal claims in such an initiative. With respect to land fractionation, Mr. Martin indicated that it is a problem for tribes as much as it is for the federal government, and tribes are willing to work with the government in addressing it. A proposal to separate individual Indians from their property involuntarily, however, will face the same challenges as previous efforts that have twice been declared unconstitutional. Successes in voluntary purchases and family consolidation should be expanded to fit the size of the problem, not jettisoned because inadequate funding has led to inadequate results. Regarding the explosion of tribal litigation in the last month of December 2006, Mr. Martin reminded the Committee that Congress had declined to reset the statutory date for tribal receipt of the infamous Arthur Andersen “reconciliation reports” of the 1990’s, and urged the Committee to consider doing so even now. Many, if not most, of the litigating tribes filed actions in December as a defensive measure because the government continues to assert that on December 31, 2006 the statute of limitations ran on claims arising prior to receipt of those reports. While no court has yet agreed with the government’s position in that matter, prudence required tribes who could afford to file to do so before that date. Many of them might well voluntarily withdraw their suits if the threat that prompted them were removed. In addition, Mr. Martin advised the Committee that the present unilateral authority of the Secretary to impose fees on trust transactions should be lifted until such time as trust reforms are accomplished and the Congress has had an opportunity to consider whether to restore such authority and under what conditions. ITMA continues to monitor legislative initiatives, and expresses great appreciation to Chairman Dorgan for his word that any legislative process for trust fund settlement in this Congress will be a transparent one.

Seven ITMA tribes have worked over the last three years in a cooperative effort with the Department of Interior to develop a methodology by which they can reach a settlement of trust fund-related claims without resorting to litigation. These tribes are the Yakama Nation, the Gros Ventre and Assiniboine Tribes of the Fort Belknap Reservation, Coeur d’Alene, Colville, Nez Perce, Picuris Pueblo, and the Sac and Fox Tribe of Oklahoma. The focus of the effort has been the time period of 19721992, the period of time covered by the Arthur Andersen reports which were delivered to tribes in 1996. These tribes all executed non-disclosure agreements in order that collective discussions would be possible with the Department’s Office of Historical Accounting regarding the way their accounts were treated in the Arthur Andersen work. ITMA has scheduled a national meeting for May 31, 2007 to provide any interested tribes with an update on this project. See the meeting announcement in this newsletter.
(Continued on page 7)

ITMA and DOI’s Tribal Trust Fund Settlement meeting.

ITMA has engaged an expert accountant and, from time to time regional accounting firms who have extensive experience in dealing with tribal accounts and financial statements to assist in the deliberations among the tribes themselves and in negotiations with the government. These negotiations have been arduous from the beginning, including even the language of the Cooperative Agreement itself which sets the framework for the Tribal Trust Fund Settlement Project (TTFSP). The government continues to favor a wholesale approach wherever possible through the use of statistical sampling and the application of national “error rates” on various aspects of the methodology. The participating tribes, on the other hand, while indicating they might be willing to forego a detailed historical accounting of every transaction in each of their accounts, continue to insist that any methodology will provide each tribe with an opportunity for analytic review of its own accounts and more detailed examination wherever indicated by such investigations. All this, of course, is in pursuit simply of a methodology that will be sufficiently acceptable to both tribes and the government that it can be applied by tribes in their own individual negotiations with the government. Besides the inherent difficulties of the negotiations, several external events have also significantly influenced progress of the TTFSP over the last year. These events include the dissemination of draft regulations by the Department that appeared to accord finality by regulation to the account balances posited more than ten years ago by Arthur Andersen and other government contractors. In addition, concern over the possible running of the statute of limitations on certain claims prompted six of the seve participating tribes to file lawsuits in December. The litigation itself “changed the landscape,” as a Department official put it, and briefly brought the entire TTFSP project into question, since three of the participating tribes had agreed to serve as named plaintiffs in a proposed class action, and three others had filed their own individual actions. While the government appeared to be questioning the participating tribes’ commitment to the settlement process, Congressional committee staff

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(Continued from page 6)

and many other tribes were expressing increasing interest in the nature of the project and its possible applicability to their own situations. And even as the government was questioning the commitment of the seven participating tribes to the project, both Interior and Justice Department officials increasingly referred to TTFSP as an important alternative to litigation. ITMA and Interior Department representatives conducted a briefing session for Congressional staff in March. While some judges in the U.S. Court of Federal Claims denied joint motions of tribes and the government to stay their recently filed lawsuits while they pursued settlement options, at least one judge granted such a stay by referring to the tribes’ and the government’s joint participation in the ITMA Tribal Trust Fund Settlement Project. ITMA expects both Interior and Justice Department personnel to attend the May 31 Denver meeting at which the participating tribes and ITMA representatives will explain the project at whatever length attendees request. While the TTFSP is regarded as a possible alternative to litigation, the methodology contemplated could just as well be effective as a means to settle some matters in litigation also. The methodology under consideration does not contemplate the full accounting that ITMA insists all tribes have a right as trust beneficiaries to demand of the government. Nor does it contemplate an unquestioning acceptance of any financial statements received from the government or its contractors. Rather, the methodology contemplates a disciplined examination of reported account statements and account balances with an eye to determining on a tribe by tribe basis (Continued on page 8)

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

whether tribes have meritorious claims for failures to administer their accounts in accordance with the appropriate laws and standards for fiduciary conduct. For instance, the methodology contemplates an examination whether Arthur Andersen and other contractors did what they said they did in their reviews of tribal accounts; whether those reviews were sufficiently complete to provide reliable indicators of revenues and disbursements; whether amounts received were appropriately and timely invested and reinvested; and whether recorded disbursements can reliably be accepted. A good many details remain to be ironed out, and those negotiations promise to be as arduous as the earlier ones have been. To date, however, both the participating tribes and the government express determination to complete the methodology under development. All tribes with an interest in trust fund settlement are invited to the May 31 meeting in Denver, subject to the requirement that litigating tribes be accompanied by their litigation counsel or provide a non-objection letter from litigation counsel.

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On January 24-25, 2007, the Tohono O’odham Nation Legislative Council Chairman Verlon Jose welcomed the participants to the Tribally sponsored forum arranged for Tribal Council and Indian individuals to address concerns regarding their tribal and individual trust funds accounts and resource issues. ITMA Executive Director Mary Zuni-Chalan opened the session thanking the Tohono O’odham Nation for hosting the 16th Listening Conference conducted by ITMA across Indian Country. Councilman Gerald Fayuant was instrumental in organizing the event on behalf of the Nation. As ITMA continues to monitor the trust related activities of the Federal Government and Congress, these sessions are conducted to provide, in most cases, a first-time opportunity for tribal governments and individual Indians to speak directly to top level Government representatives regarding tribal-specific trust management and resource issues. Information from these sessions is utilized by ITMA in the development of policy and positions. Ms. Zuni-Chalan clarified that the on-going IIM account litigation is outside the scope of the Listening Conferences. Chairwoman Vivian Juan-Saunders, addressing the Legislative Council and audience, welcomed the meeting participants and provided comments on the history of communally owned land. The Nation, occupying its aboriginal territory, has over 1200 individual landowners, many of whom own land in the allotted San Xavier District near Tucson. Original lands are significantly reduced with lands in Mexico being part of the original land base. Chairwoman Juan-Saunders spoke to a 1979 Department of Interior Solicitor’s opinion that trust responsibility imposes the most exacting fiduciary standards that federal representatives and tribal councils have been attempting to comply with. The Chair called for the equitable and fair settlement for the IIM accountholders with sufficient dollars to remain in BIA to address law enforcement, public safety, road, social services and other needs of the Nation. (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 a shortfall due as the result of a FY 2004 BIA directive stating that if 10% or less of the TPA was to be utilized by BIA that there was no need to consult with the Tribe. The Nation strongly objected to DOI’s attempt to tap into federal appropriations for Tribes to pay for DOI’s legal fees. Chairwoman Saunders suggested that rather than an increase in funds to support work to insure equitable accounting and fairness for IIM accountholders, there appears a shifting of funds from one place to another impacting funds required for road improvements and for the Nation’s Realty Office to adequately manage lands or deal with flooding of the Santa Cruz River that for years has critically affected the Chui Chu and Sif Oidak Districts. Special Trustee Swimmer responded to the issues agreeing with the fiduciary duties owed Tribes and individual Indians by the Federal Government as supported by case law and statutory law. He stated the work of OST is in furtherance of the fiduciary duty, particularly in the financial arena of the trust. He referenced the ‘appearance’ that monies are being shifted to OST, stating that OST’s appropriation is given back to BIA in the form of services, including the support of work to address the probate backlog. He reported that Congress did not appropriate funds for 2007 and current spending is at the FY 2006 levels. Allen Anspach, BIA Western Regional Director, who was accompanied by Papago Agency Acting Superintendent Nina Siquieros, and Stan Webb, Western Regional Realty Officer, stated funds are now back on the BIA books from Federal Highways and an agreement between BIA and the Nation will be developed to apply funds appropriately. He stated the amount of funds on the initial contract for Realty was not sufficient but agreement was reached for the Nation to contract Reality for tribal lands with an understanding the Nation would supplement the budget. He cited this as the harsh reality of the current budget both for BIA and the current PL. 93-638 contract with the Nation. ITMA Board member Councilwoman Betty Cooper of the Blackfeet Tribe of Montana reminded BIA and OST that Tribes are not only looking for dollars to address trust mismanagement, but also to acquire lands. Ms. Cooper advised the audience of a Homeland Security matter ongoing at the Blackfeet Tribe. Majel Russell, ITMA’s legal counsel and liaison to OST discussed the trust reform arena: Visits to OST headquarters and the Beneficiary Call Center created to address beneficiary questions regarding trust payments or other trust management questions. In May 2006 the Center received 114,000 calls and reportedly approximately 89% were addressed in the initial call.

Lock Box System located in Prescott, AZ serves as a commercial Lock Box for all trust land payments to allow for payments. The system now allows for same day deposits for trust payments.

National Training Center, developed as a training center for OST and BIA personnel on the new Trust Asset Accounting Management System (TAAMS).

Ms. Russell concluded stating that effective reforms have been accomplished in the arena of managing trust funds, however, reforms in trust resources management, including effective lease negotiation, lease compliance, conservation efforts for trust lands and prosecutions for trespass still remain to be implemented. Donna Erwin, Principal Deputy Special Trustee, conducted a power point presentation on the difference between BIA and OST responsibilities. Basically, OST handles money, BIA takes care of resources and the Office of Hearings and Appeals determines heirs through a probate process. BIA and OST have separate duties to address audit issues. BIA handles planning for resource usages, manages acquisition and disposals, establishes leasing relationships, in addition to working with BLM who does compliance and MMS who collects royalties for oil and gas. Philbert Bailey provided background on the San Xavier District and a class action lawsuit filed in 1975 by the Allottees Association. Mr. Bailey stated the Association would like to see leases no longer being onetime payment leases and suggested 25-year leases with five-year adjustments. He asked that the El Paso

gas line lease, the Pima County and other leases be reviewed. Regarding the Asarco mining royalities, individuals receive statements quarterly and they would like to see a breakdown of fees. Mr. Bailey asked for clarification between individual mining leases that are paid monthly and “business” leases that are paid annually. He stated MMS was to provide an audit from the mine to the allottees and they have yet to receive it. Phyliss Pachora, Board member of the Allottees Association reiterated that MMS is not responsive to the individuals. Ms. Pachora stated there are allottees living in Mexico that should be considered. She cited issues with a Palm Springs developer who signed a lease with individuals that must be looked into. Ms. Pachora stated escheatments have occurred with lack of proper notification. The 1995 Asarco lease calls for royalties on a sliding scale so payments can increase with cost of living, this has not occurred. Elenore Hunter asked for clarification on the ability to name 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 and it is an ongoing issue in the BIA, OST and with OHA’s probate process. Leases and rights-of-way can be negotiated up to a point without changing the law. If you reach an impasse on a lease you can stop there, however, with a rights-of-way, the law does permit the company to come in and condemn but in most instances, there have been exceptions. Mr. Swimmer stated he will work with BIA to see what the status of MMS is on the audit. Doug Lords, Deputy Special Trustee, regarding the Mexico issue, offered outreach if requested. There was a great deal of discussion on recent changes in the law regarding deeding of property to beneficiaries and the new law and the definition of “Indian” for these purposes.

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Edward Encinas, a landowner at San Xavier discussed inherited land that was leased and his opposition 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 Allotment Act. He asked where the information obtained from this session goes. Anthony Rios stated he was unaware of the many changes in the law regarding the single heir rule. Tribal Councilwoman Gloria Ramirez asked the status of the OST required Strategic Plan. Mr. Swimmer responded there were two plans, one in 1996 and one in January 2003 referred to as the Comprehensive Trust Management Plan that describes how the trust would be operated between and with the BIA, OST, MMS, BLM, the Secretary’s Office, the Solicitors Office and the Office of Hearings and Appeals. OST is nearing completion of the implementation and completing validation of information going into the software systems, the development of oil and gas recording software system, and the graphical information system. Councilwoman Darlene Andrew addressed the Santa Cruz -Chui Chu flooding. Councilman Flores asked for a description of the purpose of ITMA. Councilwoman Nunez addressed allotment fractionalization and the updating of records. Councilwoman Antone addressed the Asarco lease negotiations, reiterated the Nation’s position on roads and environmental issues. Austin Nunez, Chairman of San Xavier District cited concerns on behalf of the District with regards to the 2% Youpee interest, how the local agency is handling the matter and when will the interest be transferred; they understand there is a continual backlog of probates, and they understand there are several unfilled positions in the Southwest area which handle probates. With regard to water issues, they are implementing the Southern Arizona Waster Rights Settlement Act Amendments of 2004 and have internal matters to deal with.

The District would like to see the portion of S1439 that deals with accounting of the funds for individuals and valuations of land become a reality. Councilman Fayuant, as an outgoing ITMA Board member, commented on the valuable work ITMA has done in regards to trust issues and thanked the Organization for bring a Listening Conference to Tohono O’odham for the benefit of his people.

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Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May 23 - 24, 2007


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All Tribes with an interest in tribal trust fund issues, especially those with an interest in settling their trust accounting and trust fund mismanagement claims outside of litigation, are invited to attend and participate in this meeting. The date of the meeting, which will be in May 2007, will be announced immediately upon confirmation from agenda participants, and will be held at the Embassy Suites at the Denver Airport. [Check ITMA’s website www.itmatrustfunds.org for updated meeting information.] The purpose of the TTFS Project is to provide the Tribes and the Government with the opportunity and the means to evaluate and address the Tribes’ trust fund accounting and trust fund-related claims, without the need for protracted and potentially expensive litigation. It is ITMA’s understanding that many Tribes, including many of those that have filed suit against the Government recently, have expressed an interest in and desire for an alternative honorable resolution, based on a reliable and trustworthy technical methodology, of their accounting and fund-related claims. Government officials have advised ITMA that the Government shares this interest and desire. Over two years before the filing of cases in November and December, 2006, ITMA and the U.S. Department of the Interior embarked on the TTFS Project through a Cooperative Agreement to achieve an alternative method of resolving fund-related claims. ITMA and seven Tribes from across Indian Country have been and continue to be working with Interior, specifically Interior’s Office of Historical Trust Accounting (OHTA), to develop a feasible process based on a tested methodology that will enable and assist Tribes and the Government to reach settlement on the Tribes’ trust accounting and trust fund-related claims, such as the accuracy of Tribal Trust Fund account balances, at least for significant time periods. Tribes who have been participating in the ITMA Tribal Trust Fund Settlement (TTFS) Project are planning to attend the meeting. In addition, the United States Department of the Interior and the United States Department of Justice are planning to attend the meeting. Presently, there are about 103 Tribal trust accounting and trust mismanagement cases pending in the federal court system. Thirtyseven of those cases are pending in the United States District Court for the District of Columbia; nine are pending in various United States District Courts in Oklahoma; and fifty-seven are pending in the United States Court of Federal Claims. In recent months there has been increasing awareness of the TTFS Project, and, as a result, many Tribes in litigation have requested that ITMA provide a forum to learn about the Project. In at least one of these cases, the Tribes and the Government have made joint submissions to the Court, acknowledging a possible influence and impact of the TTFS Project on the disposition of the cases. ITMA’s project consultants will explain the Project’s proposed methodological approach. Tribes who have been participating in the ITMA Tribal Trust Fund Settlement (TTFS) Project are planning to attend the meeting. In addition, the United States Department of the Interior and the United States Department of Justice are planning to attend the meeting and will be available to answer questions. The seven Tribes who are currently participating in the ITMA Tribal Trust Fund Settlement Project are: • • • • • • • Coeur D’Alene 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 representatives planning to attend the May 31 meeting are lawyers who are involved, in some way, with some, if not most or all, of the pending Tribal trust accounting and trust mismanagement cases. Those Government lawyers have to comply with certain professional rules and procedures. As a result, they will likely have to decline attendance or participation in the meeting, unless the following condition is met by the litigating Tribes that are attending the meeting. Therefore, meeting attendance pre-requisites are being considered by ITMA and the government and will be announced as the meeting date is announced.

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 d’Alene 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 O’odham 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 & Kootenai Fort Belknap Tribes Fort Peck Tribes Northern Cheyenne Tribe Wyoming: Eastern Shoshone Tribe Northern Arapaho Tribe SOUTHWEST REGION: Colorado: Southern Ute Tribe New Mexico: Jicarilla Apache Tribe Mescalero Apache Tribe ALASKA: Central Council Tlingit & Haida Tribes Kenaitze Tribe Metlakatla Tribe EASTERN REGION: Maine: Passamaquoddy Tribe of Pleasant Point Reservation Penobscot Nation 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 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 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 Pueblo of Cochiti Pueblo of Laguna Pueblo of Picuris Pueblo of Sandia

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ITMA Board of Directors—2007

ITMA Chairman, Councilman Mervin Packineau Three Affiliated Tribes

Councilman Samuel Penney Nez Perce Tribe

ITMA Vice-Chairman, 1st Vice President Bill Martin Tlingit & Haida Tribes

Chairman James Steel Salish & Kootenai Tribe

ITMA Secretary Melinda Danforth Oneida Tribe

Chairman James Gray Osage Nation

ITMA Treasurer Jody Calaca Warm Springs Tribe

Councilman Floyd Kirk Sisseton Wahpeton Oyate

Councilman Scott Russell Crow Tribe

Councilman Michael Marchand Confederated Tribes of Colville

Councilwoman Betty Cooper Blackfeet Tribe

Representative Richard Sangrey Chippewa Cree Tribe

We are on the web! www.itmatrustfunds.org
ITMA's mission is to focus on trust fund and asset management initiatives as developed by tribal participants:
• • • • • • •

ITMA was organized in 1990 by Tribes determined to actively monitor and have a voice in the activities of the Federal government to ensure fair compensation to tribes for the historical trust funds mismanagement. Today, ITMA is a national tribal consortium consisting of 65 federally recognized tribes, whose purpose and objectives have increased as it follows the trust reform activities of the Federal government and Congress.

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 Implement Trust Standards Empowering Tribes and Individuals to Control and Manage Their Own Trust Funds and Assets

ITMA 2800 San Mateo Blvd. NE Suite 105 Albuquerque, NM 87110