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Swimmer shifts trust responsibility to landowners
Thursday, September 8, 2005

Ed. Note: These MP3 files will remain posted only until Native America Calling archives the show on its website. • First Half - 23:06 - 3.96MB | Second Half - 28:07 - 4.82MB

Indian beneficiaries are responsible for determining whether they get a fair amount for the use of their land, Special Trustee Ross Swimmer said on Wednesday.

Appearing on the nationally broadcast radio program Native America Calling, Swimmer said that federal law puts the burden on landowners to get the most for the oil, gas, timber and other assets. Only in certain cases does the Bureau of Indian Affairs play a stronger role, he claimed.

"The way the statutes and regulations read, the leaseholders are themselves the first persons responsible for leasing the land," Swimmer said. "The BIA has to approve the lease of the land, and only in those situations where it's so highly fractionated ... does the BIA do the leasing."

"It is a responsibility of individual Indian people to do the leasing and to ensure that they get what they want," he continued. The BIA's jobs is to conduct appraisals and oversee the deal, he said.

Swimmer said the BIA historically acted as the primary leasing agent for Indians who are not deemed competent. He agreed with host Patty Talahongva that some beneficiaries may not be able to read or write English but only said interpreters are provided in those cases.

Swimmer also said individual Indians have the ability to remove themselves from government oversight by taking their land out of trust and withdrawing any funds from their Individual Indian Money (IIM) account. He appeared to suggest that the only benefit to the fiduciary relationship is protecting the land from taxation.

"If you want to take your land out of trust -- whatever you own -- or the money that you have in an account, you're welcome to do that at any point in time," he said.

Swimmer's words came a week after Elouise Cobell, the lead plaintiff in the Indian trust fund lawsuit, appeared on the program. On August 29, she said the case has uncovered historic mismanagement of billions in Indian money.

"We've been able to disclose, through the facts, horrible, horrible situations that Indian people have had to suffer," she told listeners. She said account holders have not received what is due to them for the leasing of their land.

She also said a goal of the lawsuit is to fix the trust system so that problems don't resurface. A coalition that included the plaintiffs and major tribal organizations developed a set of principles to settle the case and institute reforms at the Interior Department.

"They've been running this trust like a bank totally out of control," she said of the federal government.

But Swimmer argued the case is not about trust reform. "The lawsuit is strictly about accounting -- it's about money," he said. "It's not about, did you manage the land right, what happened one hundred years ago ... The issue is the money."

Despite Swimmer's claims, the federal government, during both the Bush and Clinton administrations, has taken great pains to argue that progress has been made. In court filings, the Bush administration went so far as to call for an end to the Cobell case, based on reforms at Interior.

And as recently as 2002, the U.S. Supreme Court spoke to the issue Swimmer raised. In two separate decisions, the court said the federal government's responsibility to Indian beneficiaries goes beyond protecting land from taxation due to the numerous "statutes and regulations" in place.

"As the statutes and regulations gave the United States 'full responsibility to manage Indian resources and land for the benefit of the Indians,' we held that they 'defined ... contours of the United States' fiduciary responsibilities," Justice David Souter wrote for the majority in U.S. v. White Mountain Apache Tribe, quoting precedent in Indian trust cases.

When the statutes and regulations are not specific as to the government's duties, the court said it will look to common trust law to determine what is owed to Indian beneficiaries.

Native America Calling Archive:
Indian Trust: Cobell V. Norton Update (August 29, 2005)

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Office of Special Trustee - http://www.ost.doi.gov
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm

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