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Swimmer can't recall Navajo involvement
THURSDAY, FEBRUARY 13, 2003

It was one of the most closely watched Supreme Court cases in recent history. Tribal leaders from New York to Arizona launched a special campaign to counteract it. A group of tribal members ran 3,000 miles to draw attention to it. Secretary of Interior Gale Norton showed up for oral arguments.

Everyone remembers how they have been impacted, affected or have otherwise been touched by the Navajo Nation's $600 million breach of trust claim. Everyone, that is, except Ross Swimmer.

At a Senate hearing yesterday to discuss his nomination as the Department of Interior's top trust reform official, Swimmer drew a blank when asked about his involvement in the tribe's historic, and long-running, litigation.

"I honestly do not recall that I was deposed in that Navajo case," he told the Senate Indian Affairs Committee.

Swimmer was deposed in his current home of Tulsa, Oklahoma, on September 20, 1995.

It wasn't the first time Swimmer exhibited a memory lapse about Navajo. Keith Harper, a Native American Rights Fund attorney representing 500,000 Indian account holders in the Cobell trust fund case, brought it up just two months ago. "So you've not ever been deposed in any trust cases?" he asked. "Nor deposed for the Navajo Nation case?"

"No," was Swimmer's answer. "Well, I don't recall."

It wasn't the second time either. Jodi Rave Lee, a Native reporter for The Lincoln Journal Star of Nebraska, asked Swimmer about the dispute last year, and even quoted from the transcript deposition in one of her stories. Swimmer couldn't remember the specifics at that time either.

Paul Frye is the Albuquerque, New Mexico, attorney who has handled the Navajo case for the tribe for more than a decade. He watched yesterday's hearing on the Internet and was aghast at Swimmer's responses.

"This is maybe the biggest Indian mineral transaction in history," Frye said.

Swimmer was head of the Bureau of Indian Affairs in the late 1980s when the Navajo Nation's mining lease with Peabody Coal, the largest coal company in the world, was up for federal review. Without determining whether a less than favorable royalty rate would hurt the tribe, Swimmer recommended the 20-year agreement be adopted.

The suboptimal rate, which was not supported by the government's own experts, cost the tribe at least $600 million. Indian law experts have described this set of events as "egregious conduct."

Deputy Secretary J. Steven Griles was involved in the matter, albeit more distantly than Swimmer and former Interior Secretary Don Hodel. He oversaw the Department of Interior's mining division during the Reagan administration and like Swimmer, he was deposed by Frye in the 1990s.

Unlike his colleague, Griles had no trouble recalling that proceeding in a recent deposition in the Cobell case. He testified that he was closely following the Navajo case and he also attended the Supreme Court's oral arguments, which were held last December.

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