FROM THE ARCHIVE

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Take a pass on passive Indian trust
FRIDAY, OCTOBER 18, 2002

Everywhere you turn these days, the rights of individual Indians are under assault. Whether it's the Department of Justice attempting to delay the Cobell lawsuit or Gale Norton offering another proposal to undermine her obligations, the attacks never seem to stop.

It's hardly a surprise, given a century of history. Since 1887, individual Indians have been treated as third-world citizens in a nation where Indians don't get much respect to begin with.

So when an idea like a "passive" trust comes along, you can bet it's not in the best interests of Indian beneficiaries. That tribal leaders are being urged to support the proposal doesn't change this simple fact.

But unlike BITAM, the House bill that limited a trust fund accounting, the unclaimed property act and every other bad idea that has come out of Washington, D.C., since the Dawes Act, Indian beneficiaries can blame this ugly baby on their own leaders who seem all too willing to concede to government officials that want the power of a trustee but none of the responsibility.

Things could have been different. At first, tribal and Indian leaders were rightfully demanding changes to federal policy that have hastened the loss of Indian property. They asked some of Indian Country's strongest advocates in Congress to ensure Indians can continue to own Indian land.

It sounds funny but it's actually a problem -- landowners who meet the definition of "Indian" under numerous federal laws but don't meet tribal enrollment requirements lose trust status.

Standing in the way, of course, was the Department of Interior. Although now in the hands of a Republican administration, officials balked at the thought of increasing their duties to Individual Indian Money (IIM) account holders.

But instead of holding the Bush heads to the fire and demand accountability, some leaders are now willing to embrace a "solution" that creates another class of trust. Only this "passive" trust is more limited than ever imagined.

Under this compromise, the government will no longer have to approve leases on passive trust land. The only bright side we can see to this is that Ross Swimmer will never again approve an agreement unfavorable to an Indian beneficiary and then come up with an excuse for doing so years later.

And no longer will the government be required to account for funds generated from passive trust land. The only bright side is that Gale Norton won't have to account for funds she is currently not accounting for and then develop a disclaimer stating why.

Just what does Indian Country get out of this deal? Well, the Bureau of Indian Affairs will still be able to handle probate of status trust land. This is the same BIA that has a backlog of 15,000 probate cases -- double the amount the Clinton administration admitted to in early 2000.

And tribes will have jurisdiction over passive trust land. This is all good and fine until a "passive" Indian stops being passive and demands results from tribal leaders. A third-world Indian under tribal rule is still third-world.

The real kicker, though, is a provision that gives the Secretary of Interior virtual power to terminate. Should she find that some Indians are not "consistent" with whatever political interest she is satisfying that day, she can "exclude" them from her purview.

Accountability is a tough pill to swallow for those who have trouble with the concept. But instead of looking for ways to avoid it, all of our leaders -- tribal, federal and Congressional -- need to start meeting it.

Anything else is less than acceptable.

Relevant Documents:
S.1340 - To amend the Indian Land Consolidation Act | NCAI Analysis of S.1340 | How S.1340 will change ILCA | NCAI Support of S.1340

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Trust Reform, NCAI - http://www.ncai.org/main/pages/
issues/other_issues/trust_reform.asp