McCaleb learned about trust 'on the job'

MONDAY, DECEMBER 23, 2002

Assistant Secretary Neal McCaleb recently testified under oath that he was never informed of his trust responsibilities to Indian beneficiaries, according to a transcript of the proceeding.

On December 3, the outgoing Bush administration official was questioned by special master Alan Balaran, a court investigator for the Indian trust fund lawsuit. The subject was McCaleb's destruction of e-mail against government policy but other subjects were broached during the deposition.

In particular, Balaran asked McCaleb about his legal obligations as a trustee-delegate to more than 300,000 American Indians and hundreds of tribes. Although numerous fiduciary duties are spelled out in federal law, McCaleb was unable to testify about any.

"When you came on board, were you given the benefit of any classes, any courses, any training whatsoever in trust?" Balaran asked.

McCaleb's response was "No."

When asked if Department of Interior attorneys informed him of his responsibilities, McCaleb said: "I don't remember that they did inform me of any specific responsibilities."

McCaleb gave a similar answer when asked whether Department of Justice attorneys ever told him that he had any obligations. "Not that I can recall," he testified.

"Would it be a fair characterization to say that your understanding of what your responsibilities were as Assistant Secretary for Indian Affairs sort of came about as on-the-job training?" asked Balaran.

"That would be the term that I would use, yes," responded McCaleb.

McCaleb did testify that he read the American Indian Trust Reform Act of 1994 and that he understood it. But other than what he called "discussions" with former deputy commissioner Sharon Blackwell and Jim McDivitt, a career bureaucrat, he said there was no "formal" review.

"There may have been some briefings, but I can't recall them," he told Balaran.

McCaleb's deposition provides insight into some parts of his 17-month tenure at the Bureau of Indian Affairs. He acknowledges unresolved tensions between the BIA and the Office of Special Trustee (OST), which was set up by the 1994 law to ensure the trust fund was fixed.

"Bureaucracies have a way of developing, being very territorial about those kinds of things and I thought, my opinion is that there was some residual resentment at many levels within the organization," he testified.

He also recalls Blackwell's attempt to seek additional funds to beef up the BIA's computer systems, which Balaran documented as woefully inadequate. He said he was "supportive" of her efforts, which he characterized as somewhat successful, but couldn't recall if he actively helped her.

But it is his testimony about his legal obligations that seems most damning. If McCaleb is to be believed, he was actively kept in the dark about his role as a trustee-delegate.

However, he did confirm that almost all of his duties were stripped away by Secretary Gale Norton and assigned to Ross Swimmer or points higher. He cited probate, data cleanup, trust information systems and appraisals to name a few.

Passed in the wake of a highly critical Congressional investigation, the American Indian Trust Reform Act of 1994 spells out numerous trust-related duties. Key among those is a requirement to account for all trust funds, which the government has never been able to do so for billions of dollars of money owed to individual Indian and tribal beneficiaries.

In his landmark December 1999 ruling, U.S. District Judge Royce Lamberth relied on the law to find the government in breach of trust to the individual account holders. He was upheld unanimously on appeal by the D.C. Circuit, which further stated that the law recognized a fiduciary relationship but didn't create it, contrary to assertions by government attorneys.

Relevant Documents:
American Indian Trust Reform Act

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