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ITMA 17TH ANNUAL CONFERENCE
ITMA 17TH ANNUAL CONFERENCE

The Board of Directors of the Intertribal Monitoring Association on Indian Trust Funds (ITMA) have an- nounced 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 confer- ence at (www.itmatrustfunds.org)

“WHEREABOUTS UNKNOWN” FORT BERTHOLD FIDUCIARY TRUST OFFICER AUSTIN GILLETTE UNITES ACCOUNT HOLDERS WITH THEIR MONEY
“WHEREABOUTS UNKNOWN”
FORT BERTHOLD FIDUCIARY TRUST
OFFICER AUSTIN GILLETTE UNITES
ACCOUNT HOLDERS WITH THEIR MONEY

Eloise Ogden, Regional Editor of the Minot Daily News has written a major feature story starring the Of- fice 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 num- ber 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,

April 2007

INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds
INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds

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 offi- cer’s staff have been responsible for the actual distri- bution 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 auto- mation and records maintenance at the Fort Berthold OST, Ira Fox and Vicki Alberts are accounting techni- cians 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 Where- abouts Unknown list. With Indian trackers like Austin Gillette on their trail, perhaps OST will reach its unlikely sounding goal. Gillette advised the Minot pa- per, “Our goal is zero.”

Gillette advised the Minot pa- per, “Our goal is zero.” ITMA Chairman Mervin Packineau addresses ITMA

ITMA Chairman Mervin Packineau addresses ITMA meeting participants.

INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds
INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds
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DOI Regulatory Initiative Trust Fund Accounting and Appeals Part 112
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 seri- ous 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 ref- erence to individual Indian accounts and re-circulated as 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 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 regula- tory regime set forth, the Department’s Office of Histori- cal 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 pro- posal 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 bal- ances. 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 dis- miss 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 re- quest a “negotiated tribal accounting plan,” that will specify at a minimum the accounts to be examined, identify issues to be reviewed, methodologies to be em- ployed, documents to be collected for examination, a work 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 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 state- ment 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 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 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 ar- guments. 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.

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 Page 3 GOVERNMENT ACCOUNTABILITY OFFICE (GAO) ACKNOWLEDGES KEY
INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds
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GOVERNMENT ACCOUNTABILITY OFFICE (GAO)
ACKNOWLEDGES KEY REFORMS BY OST, BUT
QUESTIONS REMAIN ABOUT THE FUTURE
Trust Fund Accounting and Appeals (Continued from page 2)
Trust Fund Accounting and Appeals
(Continued from page 2)

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 com- plete 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 land- based accounts that were open after June 23, 1938 and remained 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 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 re- place 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 De- partment that publication, even as proposed regulations, in the summer of 2007 will very likely be counter- productive of constructive efforts now underway.

counter- productive of constructi ve efforts now underway. In December 2006, the GAO issued a report
counter- productive of constructi ve efforts now underway. In December 2006, the GAO issued a report

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 in- creasingly appeared to be managing the trust, and not merely overseeing reform efforts.

The GAO reported that “several key trust fund man- agement reforms” had been implemented, but concurred that no timetable for completion had been prepared. Spe- cifically 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 re- cords for ownership and encumbrances, and data verifi- cation 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 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 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)

INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds
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GOVERNMENT ACCOUNTABILITY OFFICE (GAO) ACKNOWLEDGES KEY REFORMS BY OST, BUT QUESTIONS REMAIN ABOUT THE FUTURE
GOVERNMENT
ACCOUNTABILITY
OFFICE
(GAO) ACKNOWLEDGES KEY REFORMS BY
OST, BUT QUESTIONS REMAIN ABOUT THE
FUTURE (Continued from page 3)

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 com- pleted unless Congressional directives and current Sec- retarial Orders are rescinded. The report also raised some eyebrows in Indian country with its report of per- formance 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.

BUSH ADMINISTRATION GOES ON RECORD FOR COBELL SETTLEMENT
BUSH ADMINISTRATION GOES ON RECORD
FOR COBELL SETTLEMENT

Almost two years after Senators McCain and Dorgan introduced S. 1439, the proposed Indian Trust Manage- ment Reform Act of 2005, the Bush Administration has unveiled 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 Senate Committee on Indian Affairs, “the Administration is will- ing 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 rela- tionship. The Gonzales-Kempthorne letter couches the Administration’s position in terms of a glowing future for Indian trust administration, a future of “economic pros- perity, 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 Of- fice of Administration and Budget has agreed not to op- pose.

The legislative summary provides that the government need 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.

In addition, the legislation contemplated by the Ad- ministration 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 governmen- tal 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 set- tle 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 Ad- ministration “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 Gen- eral Gonzales had previously testified to an appropriations subcommittee 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 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 them-

selves. (Continued on page 5)

by tribes them- s e l v e s . (Continued on page 5) NARF Executive

NARF Executive Director John Echohawk addressing Tribal leadership.

INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds
INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds
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BUSH ADMINISTRATION GOES ON RECORD FOR COBELL SETTLEMENT (Continued from page 4)
BUSH ADMINISTRATION GOES ON RECORD
FOR COBELL SETTLEMENT
(Continued from page 4)

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 num- ber 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 In- dian programs in the budget process. Tribal representa- tives 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 re- quire consolidation by cashing out their co-owners. Other individual landowners have suggested that forced sales of privately held real property will create social un- rest 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 cur- rent legal proceedings; extinguish any claims against the United States that might have been brought prior to en- actment 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.

interests are implicated in any proposed l egislation. ITMA TESTIFIES ON ADMINISTRATION PROPOSAL, OFFERS
ITMA TESTIFIES ON ADMINISTRATION PROPOSAL, OFFERS RECOMMENDATIONS TO SENATE PANEL
ITMA TESTIFIES ON ADMINISTRATION
PROPOSAL, OFFERS RECOMMENDATIONS
TO SENATE PANEL

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 by

Attorney General Alberto Gonzales and Interior Secretary Dirk Kempthorne to settle all Indian trust-related history in

a single piece of legislation.

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 Inter- tribal 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 Chair- man 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 Com- mittee 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 reso- lution 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)

Then councilman, and now

for settlement legislation. (Continued on page 6) Then councilman, and now ITMA Executive Director Mary Zuni--Chalan.

ITMA Executive Director Mary Zuni--Chalan.

INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds Page 6 ITMA TESTIFIES ON ADMINISTRATION PROPOSAL, OFFERS
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ITMA TESTIFIES ON ADMINISTRATION PROPOSAL, OFFERS RECOMMENDATIONS TO SENATE PANEL

Mr. Martin reminded the Committee that “experts” in- vited 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 indi- cated 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 involun- tarily, however, will face the same challenges as previ- ous efforts that have twice been declared unconstitu- tional. 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 gov- ernment 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 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 prompted them were removed.

In addition, Mr. Martin advised the Committee that the present unilateral authority of the Secretary to im- pose 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 settle- ment in this Congress will be a transparent one.

ITMA AND DOI’S TRIBAL TRUST FUND SETTLEMENT PROJECT
ITMA AND DOI’S TRIBAL TRUST FUND
SETTLEMENT PROJECT

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 settle- ment of trust fund-related claims without resorting to litiga- tion. 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 1972- 1992, 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 collec- tive discussions would be possible with the Department’s Office of Historical Accounting regarding the way their ac- counts 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)

meetin g announcement in th is newsletter. (Continued on page 7) ITMA and DOI’s Tribal Trust

ITMA and DOI’s Tribal Trust Fund Settlement meeting.

INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds Page 7 ITMA AND DOI’S TRIBAL TRUST FUND
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ITMA AND DOI’S TRIBAL TRUST FUND SETTLEMENT PROJECT (Continued from page 6)

ITMA has engaged an expert accountant and, from time 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 the tribes themselves and in negotiations with the govern- ment. These negotiations have been arduous from the beginning, including even the language of the Coopera- tive Agreement itself which sets the framework for the Tribal 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” 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 sim- ply 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 De- partment 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 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 a Department official put it, and briefly brought the entire TTFSP project into question, since three of the partici- pating 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

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 con- ducted 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 set- tlement options, at least one judge granted such a stay by referring to the tribes’ and the government’s joint partici- pation 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 ex- plain 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)

b y t r i b e b a s i s (Continued on page 8)

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

Page 8 INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds ITMA AND DOI’S TRIBAL TRUST FUND
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INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds
ITMA AND DOI’S TRIBAL TRUST FUND
SETTLEMENT PROJECT (Continued from page 7)
TOHONO O’ODHAM NATION HOSTED ITMA
LISTENING CONFERENCE (Continued on page 9)

whether tribes have meritorious claims for failures to administer 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 tribal accounts; 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, and those 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 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.

or provide a non-objection letter from litigation counsel. ITMA-TTFSP Lead Consultant Sandra Johnigan with Jim Vogel

ITMA-TTFSP Lead Consultant Sandra Johnigan with Jim Vogel of Fort Belknap and Richard George from the Yakama Nation.

of Fort Belknap and Richard George from the Yakama Nation. On January 24-25, 2007, the Tohono

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 16 th Listening Conference conducted by ITMA across Indian Country. Councilman Gerald Fayuant was instru- mental 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 oppor- tunity 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 litiga- tion 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 com- munally 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 Depart- ment 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)

INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds Page 9 TOHONO O’ODHAM NATION SPONSORS ITMA LISTENING
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TOHONO O’ODHAM NATION SPONSORS ITMA LISTENING CONFERENCE (Continued from page 8)

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 appro- priations 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 im- provements 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 individ- ual 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 appro- priation is given back to BIA in the form of services, includ- ing 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 Na- tion 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 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, 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 regard- ing trust payments or other trust management ques- tions. 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 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 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 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 who collects royalties for oil and gas.

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

INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds TOHONO O’ODHAM NATION HOSTED ITMA LISTENING CONFERENCE
INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds
TOHONO O’ODHAM NATION HOSTED ITMA
LISTENING CONFERENCE (Continued from page 9)

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 to see a breakdown of fees. Mr. Bailey asked for clarifica- tion 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 Asso- ciation reiterated that MMS is not responsive to the indi- viduals. 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 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 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 nego- tiated 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 out- reach if requested.

There was a great deal of discussion on recent changes in the law regarding deeding of property to bene- ficiaries and the new law and the definition of “Indian” for these purposes.

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Page 10

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 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. Swim- mer 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 near- ing completion of the implementation and completing validation of information going into the software sys- tems, 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 fraction- alization 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.

INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds TOHONO O’ODHAM NATION HOSTED ITMA LISTENING CONFERENCE
INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds
TOHONO O’ODHAM NATION HOSTED ITMA
LISTENING CONFERENCE (Continued from page 10)

The District would like to see the portion of S1439 that deals 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 in regards to trust issues and thanked the Organization for bring a Listening Conference to Tohono O’odham for the benefit of his people.

Page 11
Page 11
to Tohono O’odham for the benefit of his people. Page 11 Pictures from the ITMA ’s
Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May 23 - 24, 2007
Pictures from the ITMA ’s TOHONO O’ODHAM NATION
Listening Conference, May 23 - 24, 2007
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
of his people. Page 11 Pictures from the ITMA ’s TOHONO O’ODHAM NATION Listening Conference, May
INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds ITMA TO HOST TRIBAL TRUST FUND SETTLEMENT MEETING
INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds
ITMA TO HOST TRIBAL TRUST FUND SETTLEMENT MEETING
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Page 12

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 methodol- ogy, of their accounting and fund-related claims. Government offi- cials 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. Thirty- seven 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, acknowledg- ing a possible influence and impact of the TTFS Project on the dispo- sition of the cases.

of the TTFS Project on the dispo- sition of the cases. ITMA’s project consultants will explain

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 representa- tives 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 profes- sional rules and procedures. As a result, they will likely have to de- cline attendance or participation in the meeting, unless the following condition 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 the meeting date is announced.

ered by ITMA and the government and will be announced as the meeting date is announced.

TTFS Project meeting participants.

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Page 13
Page 14 ITMA TRIBAL MEMBERSHIP
Page 14
ITMA TRIBAL MEMBERSHIP

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:

SOUTHWEST REGION:

Eastern Shoshone Tribe Northern Arapaho Tribe

Colorado:

Southern Ute Tribe New Mexico:

Jicarilla Apache Tribe Mescalero Apache Tribe

GREAT PLAINS:

Pueblo of Cochiti Pueblo of Laguna Pueblo of Picuris Pueblo of Sandia

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:

MIDWEST:

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

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

INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds
INTERTRIBAL MONITORING ASSOCIATION on Indian Trust Funds
Page 15
Page 15

ITMA Board of Directors—2007

on Indian Trust Funds Page 15 ITMA Board of Directors—2007 ITMA Chairman , Councilman Mervin Packineau
on Indian Trust Funds Page 15 ITMA Board of Directors—2007 ITMA Chairman , Councilman Mervin Packineau

ITMA Chairman, Councilman Mervin Packineau Three Affiliated Tribes

Councilman Scott Russell Crow Tribe
Councilman Scott Russell
Crow Tribe

ITMA Treasurer Jody Calaca Warm Springs Tribe

Crow Tribe ITMA Treasurer Jody Calaca Warm Springs Tribe Councilwoman Betty Cooper Blackfeet Tribe ITMA Vice-Chairman

Councilwoman Betty Cooper Blackfeet Tribe

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

ITMA Secretary Melinda Danforth Oneida Tribe

Haida Tribes ITMA Secretary Melinda Danforth Oneida Tribe Councilman Samuel Penney Nez Perce Tribe Chairman James
Haida Tribes ITMA Secretary Melinda Danforth Oneida Tribe Councilman Samuel Penney Nez Perce Tribe Chairman James

Councilman Samuel Penney Nez Perce Tribe

Oneida Tribe Councilman Samuel Penney Nez Perce Tribe Chairman James Steel Salish & Kootenai Tribe Chairman

Chairman James Steel Salish & Kootenai Tribe

Chairman James Gray Osage Nation
Chairman James Gray
Osage Nation
& Kootenai Tribe Chairman James Gray Osage Nation Councilman Floyd Kirk Sisseton Wahpeton Oyate Councilman

Councilman Floyd Kirk Sisseton Wahpeton Oyate

Osage Nation Councilman Floyd Kirk Sisseton Wahpeton Oyate Councilman Michael Marchand Confederated Tribes of Colville

Councilman Michael Marchand Confederated Tribes of Colville

Oyate Councilman Michael Marchand Confederated Tribes of Colville Representative Richard Sangrey Chippewa Cree Tribe

Representative Richard Sangrey

Chippewa Cree Tribe

We are on the web! www.itmatrustfunds.org
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 partici- pants:

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

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 compensa-

tion 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.

purpose and objectives have increased as it follows the trust reform activities of the Federal government