Who is in charge of the Office of Special Trustee?

Sometimes it becomes comical, the happenings in the Great Puzzle Palace. Is it really okay to give the keys to the Ofice of Special Trustee to Donna Erwin? It seems like just yesterday that she was reprimanded for some less-than-favorable actions with some no-contest contractors at OST. And now she's in charge. I want to know if it should really be ok with Tribal Land Owners that the trustee's office is in the hands of the Fearsome-Foursome (see Office of Inspector General Memorandum, Fraud in New Mexico, and An Ugly History, and a related story on POGO Blog: Discipline Awaits for Indian Trust Officials Snagged in Corruptino Scandal)

The optimum Easter Bunny Present is that the Office of Special Trustee be swallowed up by some other agency who can run it through an industrial-strength shredder and we can forget the good idea ever was. "Sure it was a good idea at the time."

History, however, shows OST hasn't ever lived up to it's potential unless you're a contractor with friends in the Office of Special Trustee whom you can ply with golf outings. For the rest of us, well, we will have to once again hold our breath and see what happens when yet another group of Executive Level employees "Screw Up to Move Up."

In case you forgot, here are some reminders (below) of why the current situation is an important one and why the President of the United States needs to crack the whip over at the Interior so we can get some ethical, respectable, leadership in the Office of Special Trustee.

Here's How You Manage Leasing!
Two Cheers for Dirk Kempthorne!
Good Indians
An Administration's Task
The Poorest of the Poor
A Grand Contracted Mess
Return to the Scene of the Crime
A Penny For Your Appraisal

Where is the Trustee, or rather where WAS the Trustee?

The Senate Committee on Indian Affairs held a video conference yesterday asking where is the Trustee? It seemed appropriate when you got done watching the live telecast. Oh, but then wait a minute, we don't exactly have a Special Trustee right now. We have Donna Erwin who has been "acting" for quite a while now at the Trustee thingy.

Let's see, we had George Skibine, acting everything, and doing a fine job of it; Vicki Forrest, newbie to the big picture, and Carl the-former-secretary Artman.

Ross Swimmer is busy running a bank, Donna Erwin is, is...where was Donna? Did anybody check the clubhouse? See if the missing foursome, might still be playing together.

We heard "enhancements" a great many times during the BIA presentation. What does the Office of Special Trustee have to say about that? We heard encumbrances hinder the Fee to Trust process. We heard the BIA does not control the Appraisal process. We heard the the NEPA processing takes time. (especially since they require "professionals" now complete even a basic Environmental ASSESSMENT) (different than a full blown EIS)

We didn't hear from the Office of Special Trustee (OST). We didn't get an explanation for why tribes and tribal land owners are not considered "clients" of their own appraisals on their own land. It's in 25 CFR for those intrepid enough to acutally see the truth. The problem with that is that if you want to see the appraisers notes, especially in States of non-disclosure, you won't. You are not the client, the OST is, as stipulated in the CFR. You have to somehow compell the OST staffer that they should go ask the contractor for those notes. And since the Cobell lawsuit, they won't even give you directions to the nearest water fountain let alone "notes" on your own appraisal.

You have to somehow also convince the OST that their contracted appraiser should not sub-contract two levels below him either. It has happened, a contractor for appraisals sub contracted to someone who sub-contracted to another pair of mostly appraisal-illiterate individuals. It's not a transparent process as outlined in the US Professional Appraisal Practices handbook.

We didn't hear about how "acting on behalf of tribal land owners," leasing specialists are taking a single bid for a lease and calling that a comptetitive bid. Ross himself said one single bid is not a competitive bid. Donna agreed with him. We didn't hear how that has been changed today. We also didn't hear how "acting in our best interest," leasing specialists will take the low road and just accept the appraised value for bids, no negotiating going on, just accept what they give us, after they share the appraisal with the farmers' advocates. It was unanimous when Gerald Ben from the Northwest Regional Office said all the BIA has to do is make sure leases meet the appraisal value. It has become the maximum instead of the minimum. You should always settle for the appraised value, not bargain up to it.

So, yes, I have to agree with the title of the conference, where WAS the Trustee?

And pose today's question: "Where IS the Trustee?"

An Administration's task

I am sitting here wondering who the next Special Trustee will be for the Office of Special Trustee. I'm already wondering who will replace Ross Swimmer. I'm wondering where Donna Erwin will go. I'm wondering where Doug and Jeff Lords will go. I'm hoping that the Carl Artman replacement will stay longer than it takes to confirm him. I'm hoping Majel Russell continues to do good things for Indian Country in any place but the Bureau of Indian Affairs Offices (which by the way are inside of Wash. D.C.). Who will President Elect Barack Obama appoint to replace all of them?

I'm hoping that somebody will finally hear what we've been saying for so long. Heck way back in 1999 even Senator Larry Craig had a good idea. So some of his time was well spent wherever he thought this quote up as reported in '99 on FCW.com by L. Scott Tillett:

"...Frank Murkowski (R-Alaska), chairman of the Senate Energy and Natural Resources Committee, questioned whether the management of the funds "really belongs within the government."

"There are no excuses. There should be no excuses," said Sen. Larry Craig (R-Idaho). Many companies manage trust funds without so much as "a dime" out of place, Craig said.

"Why can't we be smart enough to hire the right people to do the job?"

At issue is nearly $2.4 billion in money that the Bureau of Indian Affairs (BIA) cannot accurately account for, although Interior Secretary Bruce Babbitt said it has not been stolen."

Amen to the words from Larry Craig back then. And then I wonder what Bruce Babbitt meant when he said the 2.4 billion wasn't stolen? That must have meant that he knew where it was. If it wasn't accounted for, then how do you know it wasn't stolen? It must have meant that Bruce Babbitt knew it was being "borrowed." It wasn't stolen so what other excuse is there? Borrowed to pay down government debts, which they now say is not a measurable benefit when Eloise Cobell asks where all the unaccounted for funds are at.

And the management of the [trust] funds: didn't belong within the government? Thanks Frank, but the loss from hundreds of years of mismanagement should have been straightened out before the government decided to get out of the trust fund mis-management.

So who does President Elect Obama appoint to Assistant Secretary of the Interior for Bureau of Indian Affairs in 2009? Who does he appoint to replace Ross Swimmer and Donna Erwin at the Office of Special Trustee in 2009? Who does he appoint who can accept the resignation of Doug and Jeff Lords? Who can say?

The only thing I would hope for is that it isn't a self serving Coal Chairman (wonder where Ross will go?) or a golf-happy trio (they need a fourth to tee off) that gets left at Office of Special Trustee. My hope is in Barack Obama to do the right thing when it comes to cleaning office at the Bureau of Indian Affairs and the Office of the Special Trustee in 2009.

I would hope like Senator Larry Craig said in 1999, that we're now "smart enough to hire the right people to do the job."

“The soul of Indian Country is at stake”
-Sally Willet from the Missoulian,
Administrative Law Judge
and Indian Land Working Group consultant

Two cheers for Dirk Kempthorne!

The United States Department of the Interior released a report today, "Secretary of the Interior Dirk Kempthorne Initiates Action Following Receipt of Inspector General Reports."

Dirk Kempthorne will get two cheers for now and the third? Well, I think he deserves a third cheer when he e x p a n d s his display of leadership ethics and exercises justice over the fiasco over unethical behavior at the Office of Special Trustee.

What makes it different? Is it that they wasted resources, time, and the reputation of an otherwise sound agency belonging to the United States instead of from Native Americans? I am not saying it is, I'm just asking, why now, why this agency and why not before when equally damaging behavior happened at the Office of Special Trustee?

Was it equally damaging? Well I would think that to the people who filed reports with the Inspector General, Earl Devaney, putting their jobs at risk, it would be equally damaging to their quality of life. To the people who were waiting for objective management of their resources, it would be equally damaging. To people who were expecting just treatment of disciplinary problems, when Ross Swimmer assigned "corrective training," for Donna Erwin and Doug and Jeff Lords instead of real disciplinary action, yes it is my opinion that it was equally damaging. And when one of the three Ringling Trustees recently got promoted, well that was too much.

So, while Mines and Minerals Management Service gets scrutiny, Native Americans everywhere wait for a little bit of attention on our fire. We wait for justice, we wait for the Trust to be put into the Office of Special TRUSTee.

Return to the scene of the Crime

"and if you dig deep enough, you too will fall into the hole over your head"


The appraisal system is really not a sound system as we can see from the information on smart money's website in their article titled FRAUD IN NEW MEXICO. It seems that the Office of Special Trustee's responsibility to oversee objective appraisals has indeed fallen by the wayside, and you better not dare question them on it.

Deborah Lewis, an appraiser with the Office of the Special Trustee for American Indians (OST), a branch of the Interior Department, filed an affidavit⁸ with the U.S. District Court for the District of Columbia detailing allegedly illegal activities she uncovered in 2002.

Lewis's 18-page affidavit chronicling her assignment at the Navajo Regional Office of the Bureau of Indian Affairs in Gallup, N.M., reveals that she had found...improper appraisal methodologies that allegedly violated federal law and resulted in consistently low values for rights-of-way easements used by oil and gas companies on Indian land.

This article was put out by Smart Money in 2004.

And if you dig further, you find that Office of Special Trustee has had some less-than-ethical practices going on from the top down in 2005 as shown in a memorandum from the Office of Inspector General for the Department of the Interior. The memorandum details how Donna Erwin, Doug Lords and Jeff Lords created an appearance of preferential treatment to the firm of Chavarria, Dunne and Lamey, LLC while a non-competitive contract was repeatedly awarded to the firm for trust fund accounting and risk management services to the tune of $6 million dollars.

As if that hole weren't deep enough, they had the gall to challenge the employees who questioned their actions of drinking and golfing with the contractors. Donna had the nerve to ask a really junior employee why he was "bitching" that she was drinking with the firm. So, now we move to my phone call with an Office of Special Trustee employee who yelled at me asking if I was an expert appraiser and acquainted with United States Professional Appraisal Practices. Well, no, but I can read! I'm not the only one that they like to throw their weight around with. Apparently they also said the Special Master was not an expert or authorized to opine on appraisal issues. "They" now includes an Interior Department spokesman [Dan Dubray] who is reported to have told the trade journal Gas Daily that "we believe the report is faulty and biased. The special master has no authority or expertise on appraisal issues."

Accountability. Can't we just all agree to do things "ethically?" As society would accept them? When you look at an organization's ethics and the effects it has like the effect that the Office of Special Trustee has had in failing their trust responsibility, you kinda wonder how many times "them there Indians was right."

I wonder how many times we have to be right in demanding trust responsibility finally be enacted; how many times we have to scream that the rules mean less and less when following rules has the effect of violating the trust responsibility before someone (?) listens.

So, how many counties will consent to having a city perform a survey to resolve a boundary dispute between the county and a city in the county? How many states will consent to having a county resolve a boundary dispute between themselves? How many states will have a county's preferred contractor-survey firm resolve a boundary dispute between the state and a county?

But if it 's a tribe, well then just write a rule that says a firm separated by five levels from you will just to do things the way you want them to. So, Department of the Interior tells Office of Special Trustee to settle the policies, Trustee tells BLM what they're going to do, Trustee then tells BIA to tell Tribe to pay for it and when it's paid, they have to settle for an "appearance" of less-than-ethical behavior. By making the tribes pay for it, the Federal Government has just released itself of the trust responsibility that it swears to at the start of so many of their documents.

We'll leave it at that for now and pursue this in a follow up. While you're waiting for the follow up, your homework will be to read An Ugly History, which details exactly what happened in the unfair appraisals in the Navajo Regional Office of the Bureau of Indian Affairs in Gallup, NM. This was also published in Dec of 04 on Smart Money.