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?"

Yakama's dairy leasing mess

[Script in Green is Jan Whitefoot, reprinted in entirety with her permission]

"Please forward this. Thank you, Jan Whitefoot (509)-848-2539

Subject: Landowners beware

Letter to the editor

Landowners Beware

Have you taken the time to examine your leases before signing them? After talking to several people about leases, here is some information you might find interesting.

Trust land is being leased to dairies and or LLCs (Limited Liability Corporations) in dairy’s names. These leases includes some land owned by the tribe. Why should you be concerned? The dairies are still being encouraged to do business on the Yakama Reservation.

The Dairy Industry has made it legal to compost their dead cows on site. What’s wrong with this? Many feedlot cows die from disease, not old age. These animals are not being tested for prions (Mad Cow). All the law requires is 2 feet of manure under the dead animal and 3 feet of manure on top. No barrier under the animal is required. In some places our water table is 4 foot deep. Do you see the potential for disaster? According to John H. Kirk’s, University of California Davis, “Pathogens in Manure,” study, there are over 400 pathogens in manure. Over 200 of these pathogens are harmful to humans. Some paid dairy experts will try and tell you that composting destroys all harmful pathogens. Not true. If you get on WSU’s, mortality composting website and dig a little deeper, you will find neither composting and or digesters can destroy all the heavy metals, prions and diseases in feedlot manure. To make matters worse, a local manure composter says he gets ponch from the local slaughterhouse and has seen dead cows in the manure he uses. He calls his manure “organic compost.” I see these piles of manure stacked near tribal members backyards. These piles of manure have the potential to pollute individual tribal wells and make people sick.

Another issue with some leases I have examined is that the bonding which is on a lease to protect the land, is being waived. What’s wrong with that? In Chino, CA, where many of the Yakima Valley Dairies have migrated from, dairies have created a “Brown Zone,” where nothing will grow. Who pays for these ecological disasters costing millions of dollars to clean up? Take a look at the Sunnyside feedlot that was supposedly cleaned up. It created a 700 foot pile of manure. After several years nothing will grow on this property. What is the value of this land now? Who is cleaning the groundwater?

According to government guidelines on leases, when the lease is up, your property is supposed to be returned to you in good condition. Who is monitoring this situation? No one. There is no enforcement, no protection on these leases.

What happens if the ground water is contaminated on your property? Who pays? Who is liable?

The huge mega dairy trying to go in near the Tri Cities is proposed to use 1 million gallons of drinking water a day. We have a 14,000 cow dairy near Harrah. Do the Math. How much of our drinking water are these factory farms depleting? Did you know some of these dairies are getting this drinking water for free? What is happening to the aquifer underneath your property?

Last summer, a Sunnyside dairy brought manure in from Sunnyside and applied it on land on Pumphouse Road. What’s wrong with that? Dairies are supposed to apply manure in agronomic rates. Some local dairies/feedlots are using poop sprinklers to get rid of their manure. This may super saturate the soil where some crops may become poisonous for consumption by animals and or humans.

The WA State Dept. of Ecology's Granger Drain Study said 150 tons of nutrient loading (manure) a day was going into the Yakima River. The report by Greg Bohmn said the source of this manure was 5 dairies. What about the fish? Who's watching out for them? No fines. No one cares.

No one monitors this either. Do we want the Yakama Reservation to become the dumping grounds for the whole state? Our we willing to let these mega, corporate polluters lease our land, and leave when they have used up and destroyed our health, land, air and aquifer? What can you do as an individual? Question the officials preparing your leases. Demand that your land and resources be protected from outside exploiters. Jan Whitefoot , Harrah, WA 509-848-2539"

Smart land owners, lessors, and activists, and advocates will educate every tribal member and every other concerned land owner to aggressively negotiate leases in favor of the land owners or to have the Tribal Councils nation-wide pass resolutions specifically addressing the ownership of the waste materials generated on these CAFOs (concentrated animal feeding operations). The problem may lie in that your lease may say:

..."Joe Farmer will only farm Ben Dover yearlings delivered by Ben Dover, and sell any of the yearlings owned by Ben Dover Corporation to an authorized Ben Dover Buyer, while feeding Purino grain and feed products in accordance with an agreement between Ben Dover Corporation and Purino"....

The problem is that

• the Corporate (farm) Interests will own the delivered young animals
• The Yakama Owner/Operator/Land Owner will raise the animals to a marketable size
• The Yakama Owner/Operator/Land Owner will only use approved feed products (the corporation's friends)
• The Yakama owner will then sell the Corporate "cash cow" to the Corporate's friends or to the corporation itself.
• When it's all a done deal, the corporation walks away with a profit, and the Yakama land owner walks away with a profit.
• Then the waste is left behind, owned by........the Yakama Land Owner....

How come the corporation doesn't own the waste? The corporation will claim the millions of pounds of nitrogen and phosphorous, and hormon- injected manure left behind is a "resource" off of which the tribal farmer can make money. Well, if it didn't come in such large amounts maybe it would be a profitable business. But there is no way to safely and regularly get rid of that much waste. The Yakama land owner who was a farmer a few minutes ago raising the livestock for the corporation, minutes after the sale is now a waste-source-technician trying to figure out what to do with the mountain of manure that now outweighs the weight of the grown animals which just left the farm by several times .

The antidote to the entire fiasco? It's your lease. Aggressively negotiate the leases ahead of time to include language that when the animals leave the lot, the waste must be removed by the corporate owner of the animals. Or have tribal councils pass land lease resolutions that specifically stipulate that any waste generated by corporate operations on tribal land must be removed with the animals. The Land owner didn't own the animals, they didn't own the feed, they didn't own the medicine given to all the animals, so why should they be left holding the bag full of you-know-what, and now be responsible for finding some safe way to get rid of the waste generated by the Corporation's animals? I would think that tribal councils would be the safest way to ensure that BIA doesn't sign off on leases that can't be negotiated with these corporations. Somewhere in recent, memory I believe that BIA officials thought that "best use of the land" was spelled out in the Reservation-Wide-appraisals with the damning statement, "agricultural use" or whatever term the appraiser uses. That means that if you disagree with the corporations offer and refuse to sign, (let your land go idle) that the BIA has a right to come in and say they are acting in your best interest and will get you money from a lease that they will sign--since you won't.

Either it goes in the lease before-hand, or Tribal Councils outlaw leases which leave land owners (including Tribal Councils themselves) holding onto 20 million pounds of Bullshit that is now toxic waste and endangers the water table of not only the tribe but the surrounding community members as well. That is a whole different liability issue I would think, when a community would come in and request relief (damages) from a tribe because their water table was polluted by the "tribal" dairy, chicken, or hog farm operation.

Like Jan Whitefoot asked all of us land owners to do, "examine your leases". Examine them early and often. If you don't understand it, ask someone to help you understand what is in in your lease, and what isn't in your lease that needs to be in the lease language. Fulfill the notion that we truly are the guardians of the land.

Here's how you manage leasing

http://nativelandguardian.blogspot.com/2009_02_01_archive.html

The only good Indians

http://nativelandguardian.blogspot.com/2008/11/good-indians.html

Tribal Chairmen arrested defending the use of their land

http://nativelandguardian.blogspot.com/2008/11/another-american-indian-tribal-chairman.html

Hog Farm Protest leads to arrests in South Dakota

http://nativelandguardian.blogspot.com/2008/04/protest-over-battle-for-of-all-things.html

Hog Farm Protest

http://www.youtube.com/watch?v=Tr8SM8-WQg8

This is only Chicken manure! Think of Dairy manure on a grander scale

http://www.rezkast.com/viewVideo.php?video_id=1065&title=FRONTLINE__quot_Poisoned_Waters_quot____Sneak_Peek_4___PBS

Gross Revenue Crop Share Vs. Cash Rent Leases

A Little Bit of Knowledge Can Hurt You

A lot of knowledge can help you. It’s when you don’t know the whole story that you can get shorted by someone, something, or a policy. The same goes for the land leases on the Nez Perce Indian Reservation. There are a lot of things that you need to consider before signing on the dotted line.

Gross Revenue Crop Share Leases:
In a typical Gross Revenue Crop Share Lease, you take a cut of the profits, and because it’s a Gross revenue crop Share; the total cost of farming expenses is covered by the operator-farmer. The original way this lease was set up back in the 30s-1950s was for 1/3 to go the Tribal land owner, 1/3 to go to the farmer-operator, and 1/3 to the maintenance and upkeep involved with farming; basically the expenses related to farming such as fuel, chemicals (fertilizer, pesticide), seeds and maintenance of farming equipment. The fight for 1/3-2/3 Crop Share Leases has been an issue since the 1950s when advocates argued that it was a fair deal for everyone involved in reservation farming.

So in a gross revenue crop share lease, your farmer should justify if they need more money for drainage or other requirements. If you don’t agree with your farmer but you want to be fair, you might ask for the farmer to open his books to you; you may ask him to show you his farm’s accounting books and show you where his expenses have gone before you sign any lease papers. A Gross Revenue Crop Share Lease is reflective of the profit available in that year’s market. Whatever the farmer can potentially make off his 1/3 crop share is exactly what the tribal landowner can make off his 1/3 crop share. For a Gross Revenue Crop Share Lease, in a bad year, we all suffer diminished returns on our crops. In a good year, for a Gross Revenue Crop Share Lease, we all share in the increased profit returns on our crops.

Cash Rent Leases:
If you make a Cash-Rent Lease you agree to a certain amount of money each year. That’s it. You simply make a minor profit. It is not based on any market. It does not fluctuate.
In a bad crop year, the farmer’s returns are not drastically affected by our cash rent. In a good crop price year, however, the large returns are not shared by everyone. In a really good year, if you have a Cash Rent Lease, you get your cash rent. That’s it. The profits are not shared equally when you have a simple cash rent lease.

You do not get to share in the amazing market prices. So if the price of wheat goes above $10 dollars a bushel like it did this year, if you have a Cash Rent lease, all you get is your cash rent. On the other end of your crops, however, your farmer can get a huge return because he paid you your cash rent, and now he can potentially go and market your crops at the $10 dollar per bushel rate. And if he had to pay on loans as we’ll see later, then the bank is making money off the crop by holding shares of wheat until the market is beneficial to them. In that case the crop just left the reservation along with all the profits.

Feeling like you missed out? Well, if you had a cash rent crop in effect this year, you did miss out on a potential gain. This year the price of wheat went over $10 dollars per bushel. What does this all mean?

It means that just this year alone you lost money in the above scenario on the table. Even if you got an up front cash signing bonus, is that just for this year? If it is then you lose money on every succeeding year. If your signing bonus is for every year, it better be for more than what you would make off a 1/3-2/3 crop revenue share lease. In the scenario in this table that means that your signing bonus on a Cash Rent Lease for everyone on the lease better make up $15, 166.67 dollars every year (or the amount you would receive at 1/3 of the total crop value).

The numbers are random in this table, but the formula is correct, and reflects a true return for 50 bushels per acre harvest on 100 acres when wheat was 10 dollars per bushel in 2007. The numbers are also only for a single tribal land owner. To be fair if you had five tribal owners then you would divide the “OWNER” amounts by five, or the total number of land owners. It is just meant in this form to magnify the division of profit going to the farmer-operator.

According to a United States Department of Agriculture publication released July 12, 2007 at http://www.nass.usda.gov/Statistics_by_State/Idaho/Publications/Producers_News/pdf/Crop%20Prod%200707.pdf Idaho’s expected winter wheat production for this year was up 59.9 million bushels, up 10 percent from last year. Harvested acreage of winter wheat yields, as of July 1, is expected to be 81.0 bushels per acre, up from last year's 77.0 bushels per acre. Producers with spring wheat are expected to yield an estimated at 68.0 bushels per acre, 5.0 bushels less than 2006.

So the estimation in the above table (at 50 bushels per acre) was obviously a conservative one. If you had a Cash Rent Lease, it should have considered the higher yields per acre that you would lose according to these more accurate statistics.

Summary
The main difference between Gross Revenue Crop Share and Cash Rent Leases:

Gross Revenue Crop Share Leases
· Full crop sales prices in good years are shared by everyone. (Good for Farmer and Owner)
· Bad years are shared by everyone, but impact of Tribal members is only 1/3 of the
total payout. (Good for farmer, and also guarantees tribal member 1/3 of any small profit made.)

Cash Rent Leases
· Full crop sales prices in good years are NOT shared by everyone. (Extremely good for farmer, bad for owner)
· Bad years are not shared by everyone, but impact of Tribal members’ cash rent is minimal (Fairly Good for farmer, and the Owner still ONLY gets their tiny cash rent payment)

So if you think about it, what’s the point of having a Cash Rent Lease when the good years’ profits are not shared by the Tribal Members?

In any year, farmers, without knowledge of the tribal member owners, may apply for Environmental Quality Incentives Program funding or technical assistance. This information can be found at http://www.id.nrcs.usda.gov/programs/eqip/eqip_how_08.html. Farmers make efforts at meeting the requirements for this program and they could get money for it. The checks from the Natural Resources Conservation Service under the United States Department of Agriculture go directly to the farmer. Now his costs of farming have been offset and you didn’t even know about it. His 1/3 for the costs of farming has just been partially funded by the Federal government. Does your lease stipulate that any and all federal program offsets be reported to all the land owners and divided up at 1/3-2/3 share?

When fields are burned, you save the farmer up to three passes over a field depending on the situation. So, now the farmer is saving gas he would have spent tilling and preparing fields. His cost has just gone down again. This is even more reason to pass on the savings under other programs, and another reason to stick to a 1/3-2/3 Gross Revenue Crop Share Lease.

Did all the crop get sent to the nearest licensed elevator? If it says so in your lease, the entire crop should be sent to the nearest elevator. That ensures accountability. How? Well, then no “estimates of total yield” are used to figure out what your 1/3 share is. If it all gets sent to the nearest licensed elevator, then the total yield is there to divide up.

If farmers “estimate” how much your 1/3 of the crop in the field should be and then send the rest (an "estimated" 2/3) to their own personal storage bins, true accountability cannot be attained. In other words, we’ll never really know if the tribal owners got an actual 1/3 of the total crop. This merely keeps honest farmers honest, and identifies questionable procedures on the part of others, like “accidentally” sending a truck from one “lot” (field) to the elevator and accounting for it under the wrong “lot,” which is how elevators account for crops since they don’t physically see the fields and the crops cut on different fields. Even if the farmer is farming honestly, if the lease says the entire crop goes to the nearest licensed elevator, then, in all honesty, that’s what should happen. Any land owner can call the elevators and ask for the total amount of the crop sent to the elevator labeled under their lot. That will tell you if the entire crop was sent there.

Don’t feel like you’re the only one who missed out though. If a farmer requested a loan from the bank last year and did not allow time for the crop to be marketed, then as soon as the grain was cut, the banks were right there demanding money. As a result some farmers were forced to sell their grain at $6.00 per bushel before the full market potential was realized.

Agriculture is an extremely volatile market with a lot of pitfalls. Everyone needs to be market savvy and stay on top of the prices, leasing and loan provisions, and your rights as a land owner.

Another very important thing to remember when signing your lease is to either check yes or no to the question on the lease of whether the farmer can market your crop for you, if it’s on your lease. If you check yes, your farmer could sell your grain as soon as he cuts it (when prices are low because supply is high).

If you check no, then you could get a receipt for your crop at the elevator, watch the market for better prices, and sell your crops when you think the prices are better (when prices are higher because the supply is lower). Other countries’ crops are under drought conditions, so orders from overseas have had positive effects on the prices of grains for land owners this year. But if your farmer sold the crop for you the day after it went to the elevator, you lost your ability to market your crop. So read your lease carefully.

Remember through all of this, farming on the reservation is a privilege for non tribal members, not a right.

There is nothing written into the Code of Federal Regulations which gives farmers a right to farm Indian land.

The fact that they are farming here is a privilege, granted by the owners, and when we all profit equally, we all make best use of the land.

Don't let this kind of article fool you or your farmer at: http://ohioline.osu.edu/fr-fact/0002.html It has no basis for being used in Tribal land issues. And they seem to advocate for farmers, which isn't bad. But if you're a land owner or co-land owner, you need to advocate for yourself. I could elaborate on this article from Ohio State, but I'll leave it alone for now. Just know that there are a multitude of issues in this Ohio State article which do not apply to Indian Land, and they only seem to give one side of the story. There are other articles just like this one so be aware of them. They're out there, and some people would like to use articles like it to justify cash rent leases on Indian land.

Know the facts, know the history, fulfill the prayers of our ancestors who prayed for us to use wisdom to take care of the land.