Trial examines Swimmer's trust reform history

TUESDAY, JULY 1, 2003

On the stand for his fourth day of testimony in the Cobell trial, special trustee Ross Swimmer on Monday admitted that none of the trust reform initiatives he proposed during the Reagan administration were successful.

Swimmer's late-80s tenure at the Bureau of Indian Affairs came amid increasing scrutiny of trust mismanagement issues. Independent assessments, internal reviews and members of Congress, through the General Accounting Office and other investigations, criticized the Department of Interior's numerous failures.

But while the former assistant secretary said he was aware of some of the problems due to his involvement as head of the Cherokee Nation, he was unable to recall most of the debate that led to the creation of the Office of Special Trustee, which he now runs.

"My recollection is real fuzzy," he testified in Washington, D.C., when asked whether or not he approved a contract for Arthur Andersen, the accounting firm that was convicted of obstruction of justice for destroying documents, to study the tribal trust.

"I don't recall anything other than advancing the ball," he added, when asked to identify a single "successful" trust reform proposal.

It wasn't for lack of trying, though. During the last three years of the Reagan administration, Swimmer's efforts drew unanimous opposition from Indian Country and led to the seminal Congressional report "Misplaced Trust" issued in 1992 by then-Rep. Mike Synar, the late Democrat from Oklahoma.

Swimmer in fact took credit for the department's adoption of the Trust Fund Accounting System, an off-the-shelf software program that handles basic accounting, investment, disbursement and reporting functions for individual and tribal account holders. Although the system wasn't implemented until 2000 -- after it was identified by Paul Homan, the first special trustee who resigned in January 1999 -- he testified that he came up with the idea.

"I'd rather say it's after my plan," he said.

A $22 million contract for the system that he signed had to be pulled due to numerous contractual and technical snafus, according to the Synar report. "I was under the impression that it was moving forward," he told the court of the effort.

The proceedings broke yesterday afternoon without delving into too much detail about another initiative. Swimmer proposed transferring all trust funds to a private bank, signing a contract to do just that without consulting beneficiaries.

Swimmer recalled that his move led to the inclusion of a rider in an appropriations bills that requires Interior to perform an historical accounting before any money is moved. The 1994 Trust Fund Management Reform Act allows tribes -- but not individuals -- to withdraw their funds from TFAS while preserving the department's fiduciary obligation to account.

Swimmer resigned his assistant secretary post in 1989. He testified that while trust reform became a higher priority for the BIA, it didn't draw attention at the department level until the Bush administration.

Swimmer will return to the stand today. He is the government's final witness in the trial, which began May 1 and is expected to conclude by July 8.

The plaintiffs may call three or four rebuttal witnesses after Swimmer's testimony concludes.

Relevant Links:
Office of Special Trustee - http://www.ost.doi.gov
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