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?"

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

President Obama's Contract Reform Memo, a fix to the Grand Contracting Mess

Recently President Obama issued a memorandum directing his Departmental and Agency Heads to re-think the whole government contracting process.
Specifically he called for a move away from non-competitive and cost reimbursement contracts except in exigent circumstances. He called for a move toward competitive and fixed-price (performance-based I assume) contracts. President Obama said that the contracting process should not interfere with inherently governmental activities either.
I would like to propose that the treaty obligations are part of the governmental activities. The oversight of the government's accountability to oversee the land held in trust for Indians must not be held by a contracting vendor. They are afterall "vendors," these contractors. They are not the U.S. Government. When an appraisal firm in a city near a reservation assumes an appraisal contract from the Northwest Office of Special Trustee, Office of Appraisal Services and then allows two levels of sub-contracted vendors onto the project, where has accountability gone? I would think that since it resulted in grave errors in more than one appraisal, and that project had to be re-appraised, that the accountability was gone along with a good dose of pride. When discrepancies are discovered by the Tribe for whom the appraisal was being done, how do they address the issue with the Office of Special Trustee? There is no "real" grievance processs that is working. When the vendors make serious (grade schoolers could probably do better) mistakes where is the record for their performance? Why aren't tribes being listed as clients on the appraisals for reservation-wide appraisals? Why aren't tribal land owners being listed as clients on the appraisals for their land? If they aren't listed as clients, they cannot access the documentation that is used to appraise their land, their crops, their timber, their minerals. Only the client can access that information. Who is the client? The client is the Office of Special Trustee, and asking them questions will result in tirades where they question your own qualifications for appraising according the Uniform Standards of Professional Appraisal Practices. What remains to be answered is how Appraisers reach their conclusions in "States of Non-Disclosure." But since the tribes aren't "clients" on the appraisal contract, somebody else will have to ask OST how the appraisers reach their conclusions. OST officers have not-too-kindly pointed out that the Tribe is not a client so they should just take the OST officer at his word.
When the vendors for surveying projects include contracted surveyors who are state, county, and city-hired surveyors who may also have a great deal of interest in boundary disputes and land taxes for the local tax payers, I would assume that there is a conflict of interest. When the Certified Federal Surveyors are state, county, city, and local government-elected officials, I would assume that they have a conflict of interest when they perform cadastral surveys for land being put into trust, for land that is in boundary dispute with either the local government or one of its constituents.
I would assume that if the CFEDS surveyors are members of an anti-sovereignty, or anti-indian organization, that there is a possiblity for a conflict of interest. If they display behavior that is less-than-objective what punishment exists to right the injustice? What happens? We jerk their contract and they go home to their home agency with their full-time job intact? If they bend the rules for themselves and they get caught, who will really press the issue for them to lose their licenses? The point is, appraisals, surveys, and wills are all of such a grave nature to the balance of accountability to the U.S. government that they should all be completed under the colors of the U.S. Government, not by a "vendor," over whom Indians hold no influence and no hope of justice in the event of any unjust actions.
For all these vendor-driven tasks, the Bureau of Indian Affairs, and Office of Special Trustee will tell you that the Tribes can make their own decisions about whether to accept the contracts or to reject them. That may be true in a perfect world but when the list comes to the Bureau of Indian Affairs employee, is it plausible to believe that they will tell superiors that the situation requires more work, more background checks? Will the BIA employees really reject a surveyor who is already on a list titled "CERTIFIED Federal Surveyors?"
I doubt it. Most Indians are oblivious to the entire process and therefore are not the ones to question about the problem. There are a few tribal land owners who are very conscious of the situation and can tell you that this is not the way things should be. Land owners, even though the vocal ones may be in the minority, are the fairest assessors of the impact from sending government responsibilities out to sloppy vendors, who will come back next year to sell us their services once again.
I am hopeful that President Obama and Secretary Salazar will steer the Bureau of Indian Affairs and the Office of Special Trustee into spending the budget dollars in such a way as to have more GOVERNMENT surveyors, more government APPRAISERS, more government EMPLOYEES perform the trust duties. Since the great and holy probate judges require that trust land be probated with a will separate from non-trust interests, since they require such a level of sophistication that not every attorney will be familiar with the requirements--the Federal government should create more positions for probate specialists, more attorneys to work the probate process from creation of an "appropriate" will to probate hearing to probate appeal.
The budget process should be re-vamped; the services for which the U.S. Government is responsible should be maintained by the Government employee, not a vendor who despite his knowledge is not required to know all that is contained within the phrase "trust responsibility" as it applies to the honored tasks for which they have clearly not "just volunteered."

This isn't new.....
President Obama Contracting Memo
http://www.whitehouse.gov/the_press_office/Memorandum-for-the-Heads-of-Executive-Departments-and-Agencies-Subject-Government-Contracting/

The Only Good Indian..... (11-5-08)
http://nativelandguardian.blogspot.com/2008/11/good-indians.html


Dirk Kempthorne had it right (9-11-08)
http://nativelandguardian.blogspot.com/2008/09/two-cheers-for-dirk-kempthorne.html

Lacking a Contracting Accountability (3-21-08)
http://nativelandguardian.blogspot.com/2008/03/grand-contracted-mess.html

Appraisals: Keeping the poor poor (3-18-08)
http://nativelandguardian.blogspot.com/2008/03/poorest-of-poor.html

Here's how you manage leasing (2-20-08)
http://nativelandguardian.blogspot.com/2009/02/heres-how-you-manage-leasing.html

Where Surveying Money should be spent (1-09-08)
http://nativelandguardian.blogspot.com/2008/01/run-numbers.html

Contracting for Customers (1-8-08)
http://nativelandguardian.blogspot.com/2008/01/yet-more-motivations.html

Fraudulent leadership plagues the Office of Special Trustee (12-18-07)
http://nativelandguardian.blogspot.com/2007/12/return-to-scene-of-crime.html

A Penney for your thoughts on Reservation Appraisals (12-4-07)
http://nativelandguardian.blogspot.com/2007/12/penney-for-your-appraisal.html

Indian Reservation Surveys (11-30-07)
http://nativelandguardian.blogspot.com/2007/11/surveys-on-reservation.html

Here's how you manage leasing!

If you ever wanted to know why land owners complain about the BIA leasing process, about Gross Revenue Crop Share versus Cash Rent Leases, read about how the Fort Hall Landowner's Alliance led by Ernestine Werelus has been effecting major change in how the leasing process is conducted on their land.

Read about how nefarious deals between a willing or un-educated employee and a farmer who bids low is now being stopped. Farmers will mail bids to the owners. No more Agency Letterhead sent to land owners who mistakenly have believed the bids to be under the approval of the agency employees.

A cautionary note to all landowners: make sure that the appraisals are kept under lock and key (literally) so farmers do not have access to the information of which they are not clients. (REMEMBER OFFICE OF SPECIAL TRUSTEE DOES NOT EVEN LIST THE TRIBE AS A CLIENT ON APPRAISALS THAT PASS THROUGH THEIR OFFICE SO IN ALL EQUALITY, KEEP THE INFORMATION FROM BEING SHARED OPENLY WITH THE FARMERS)

There are a lot of subtle changes that make a vast world of difference: BIA and OST officials should not allow single-low-bids to substitute for competitive bidding. Ask Donna and Ross if they have audited any agencies who are allowing single bids to be a competitive bid. They have been made aware of this practice, and so have BIA officials but we still don't seem to have any changes, a year later.

One more note of caution: Somebody should really explain to the rest of the world after they explain to Indians, how appraisers reach appraisal Fair Annual Rental Rates in states of Non-Disclosure. Idaho is one such state so, if nobody is required to disclose information, how do appraisers reach conclusions?

A Grand Contracted Mess

Remember back when I discussed the contracting of CFEDS surveyors and even Appraisers? Remember when I said that accountability walked out the door, when Office of Special Trustee and Bureau of Indian Affairs, and Bureau of Land Management all CONTRACTED their work out?
Here is what happens when anyone, I mean anyone, contracts work out to civilians who are under no authority to be reprimanded. Boo Hoo! Their contract service goes away and then you wonder what happened to their stolen documents, the stolen information, the breach of security of sensitive documents, sensitive information. It happened at the State Department as seen on Yahoo, news page by the Associated Press Writers, titled 3 CANDIDATES PASSPORT FILES BREACHED.
Now for any Natives out there, ask yourself if you want a CONTRACTOR to the Federal Government who also has an elected position in their county, their state, their city, to come on the reservation and survey your land. If this contractor who works for another government does come on the reservation and surveys your land, he is now privy to information such as the title of the land, and the description, and the owner. If you are the owner who has been waiting for years to have your land changed from Fee (tax) to Trust land, congratulations, the tax man just came onto your land!
If you are a County Treasurer wondering how much you should charge that crazy Indian living in the corner of your county that is on the reservation for land that he didn't know was out of Trust, congratulations! With a quick phone call to the appraising firm that works for the BUREAU OF INDIAN AFFAIRS, or the OFFICE OF SPECIAL TRUSTEE, you are also on the list of people who will gain access to this information.
If you are with Office of Special Trustee, DO NOT TELL ME IT DIDN'T HAPPEN, DON'T TELL ME IT WON'T HAPPEN, DON'T SAY ONE WORD!
Look at the State Department. You think you're more intimidating than Condoleeza Rice? You think you can control someone who isn't an employee of yours?
If you do, then you're stupid. What am I saying "if?"
For those of you on reservations, listen up. They, meaning Office of Special Trustee, Bureau of Land Management, and the Glorious Bureau of Indian Affairs have all been contaminated with a dose of guillability.
We currently have CONTRACTORS performing
ALL OUR APPRAISALS
ALL OUR SURVEYS
on our reservations. Well maybe not all the appraisals, maybe not all the surveys, but they could................
Makes you wonder if they'll be walking your property next week don't it?

P.S. Ever wonder how power companies get easements? They have to provide appraisals, and surveys. Ever wonder who did that for them? Look at their employee records. In the words of Borat, Wowwie Wow Wow Wow! They have appraisers and surveyors on staff! How come they didn't contract out for that? And more importantly, why didn't a Federal Surveyor and a Federal Appraiser do it for us? Check your power lines, check your negotiations for payments on the land that these power companies use. There better be a Federal survey, and a Federally reviewed appraisal.

P.P.S. IT CAN GET REALLY DEEP AROUND HERE SO PUT YER WADERS ON!!!!!!!

The poorest of the poor.

I listened to a human rights activist, whose heart is in the right place speak about some work he was doing in Africa. He said when he got there he was continually surprised to see the local population was always happy, always smiling, even though they had very little in material means.

My question then is, why would you change that? If they really are happy having school under a tree, why would you give them a modern building with doors that separate classes, separate cultural mentors from younger children, separate the student from the environment?

And then I reflect on how the reservation effects affected many of our tribal nations. The Navajo lost much of their culture when they were put in houses with separate rooms separated by doors. What was once a family classroom 24 hours a day in a one room hogan, was replaced by a "modern" house which instilled that "this room is mine, and this house is my family's, and this is our food in our refrigerator.

The Nisqually Indian Tribe were already in houses. So while reservations were made to centralize most other Indians, the U.S. Government created the Nisqually Indian Reservation and then gave them houses because they were too close, so while the effect was to herd up plains Indians, it was also to spread out other coastal tribes.

And now here we sit today and place values on the crops we cultivate on our reservations. Only, "we" is an appraiser contracted by the Office of Special Trustee to come in here with no exposure to a closed tribal market and place a S.W.A.G. (scientific wild ass guess) on the value of our land, our crops, our leases, our timber, our resources lost as a result of rights of way, and easements.

Now my only caution to any of you is that when you take an appraisal from the Office of Special Trustee, take the appraisal and neatly file it away in a quiet, secluded, dark corner, locked away for eternity.

An appraisal is the MINIMUM AMOUNT YOU SHOULD BE GETTING, NOT THE STANDARD! Think about it. Ever bought land? When you did, did you ask if the land had been appraised? Of course you did, because that is the maximum amount you wanted to pay. If you're a savvy buyer, then you pick the property apart to refute or even LOWER the amount you will offer to below the appraised value.

Ever looked at land to sell and wondered how to increase the appraised value if you were selling? Of course you did! You knew the appraised value held some value because it will be used against you. You will want your appraised value to be as high as possible because you know that a buyer will hedge against that value.

If you're sneaky, you don't get an appraisal, and sell to a unwitting buyer who either has a lot of money to throw away or has the credit line to swallow your enthusiastic selling attempt.

So, when your reservation gets a reservation wide appraisal, glance at the amount that land is going for, but don't stare at it. We don't want to get used to that amount. We want to actually NEGOTIATE like we mean it. If all else fails let BIA tell everyone that the lease meets the appraisal quote, like Gerald Ben said they do in this article on The Authentic Voice.

Gerald said, "The only thing the bureau has to do is make sure the rate meets the minimum approved rate."

hmmmm....would that minimum rate be the APPRAISED QUOTE? Hmmm?

That doesn't sound like much of a negotiation does it? Well let's hope that Gerald Ben isn't the one "negotiating" for your best lease on your land. As a matter of fact, lets hope that more tribal members are empowered with knowledge so that like Ernestine Werelus, we all negotiate the most advantageous leases from an obviously lucrative resource that all tribes share in common, the land.

And yet, he challenges us to question appraisals: at an ITMA Listening Conference at Wild Horse Resort in 2004, he responded to...
...a question from the audience about appraisals showing Indian land as less valuable than off-reservation land, Gerald Ben stated that if a landowner has questions about an appraisal, “ask them to come back and explain to you so you know for yourself that what you sold your property for was really what it was worth.” He said that the BIA is trying to get local appraisers how know the reservation to work on contract so that appraisals can be done more quickly.

But then he would never question the fact that BIA sends out requests for Authority for BIA to negotiate your leases for you; insted the BIA will merely sign off on leases that went to bid, with no respect to the the minimum approved rate because it is "in your best interest," according to 25 CFR.

And they smile at us at every conference, at every public engagement. They smile at fellow Indians whose leases rob them of the chance to be prosperous.

I would think that much like our fellow human beings in Africa, we'd be better smilers too if we had far less to deal with. Let me live on the land, let me be poor, just don't let someone else profit at my expense--it makes me feel abused. I guess my thanks for that feeling go to my friends, my fellow human beings, my fellow tribal members at the BIA who fail to speak up for me and for all tribal people. Don't feel guilty, just act for me, act for my aunties, my cousins, your relatives.

Restore the smiles we all had wayyy back when.

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.

A penney for your appraisal

For today's discussion I will be drawing information from the Uniform Standards of Professional Appraisal Practice, which is located on the appraisal foundation's web page. Now, there a few things you need to know when a firm is contracted to perform a reservation-wide appraisal to determine leasing stipulations.

Appraisals for Tribes/reservations are located under the Office of Special Trustee, office of appraisal services.


Now, you should also know that when an reservation-wide appraisal is performed, that office is also the "Client," not the actual tribe where the reservation-wide appraisal is done. So any requests for information must be done through the Office of Special Trustee's office of appraisal services. Ahhh, therein lies the ugliness of the process.

I looked at a reservation wide appraisal, and at first I was surprised at the fact that they sampled 15 different farming operations for determining fair value for leases. Unfortunately, the appraisal firm forgot to tell everybody that they were only talking to 6 farmers in all actuality. This meant that when questioned for fair market value, each farmer would get two votes for their 1/4, 3/4 crop share lease plan. 3 farmers would get three votes to cast for leases more favorable for them. That is an important omission of fact in my book. Now maybe it is not an "error of omission" as the USPAP would see it, but it is an omission never-the-less.

Now before you assume that I am being harsh, you should also know that I called the appraisal firm up to ask where they got their information to back up their recommendation that the leases should be 1/4, 3/4. Currently leases on the reservation usually go for 1/3, 2/3. Instead of calling me back, they called the office of appraisal services, because they are the client of the appraisal firm, not the tribe. We never did get an answer on this subject. I recommend to all land owners that if they want 1/3, 2/3 crop share then that is what they should ask for and if the farmers give their usual excuse that times are hard and they can't afford to pay 1/3, 2/3, then be fair and ask the farmer to open his books up to show that. Prove that 1/3, 2/3 is too much. So far, no farmers have opened their books. And neither did the appraisal firm that performed the appraisal. They can make recommendations to the Office of Special Trustee which they will use to tell BIA how much leases should go for, but they can't tell the tribe how they got that conclusion. That is hardly in the true essence of "employing those recognized methods and techniques that are necessary to produce a credible appraisal;" That would be standard 1-1 a for those of you following in the good book of USPAP. Credible means offering reasonable grounds for being believed according to a dictionary definition. I would like to believe the appraisal firm, but just show me one time how you came to your conclusion when you never interviewed any objective source.

Another strange thing is that Idaho is a non-disclosure state. So how did the appraisal firm come to their conclusion? If they used available information to come to their conclusion, lets all take a look at it. Because if not, then it could fall under the color of a secret hand shake. Now listen to that carefully. It's not that all appraisal firms work in collusion with farmers to screw the tribes. It just looks that way for now. It is that their process cannot be independently substantiated by the tribes who will later be regulated by their decision. It is that their process, especially in my case, will be advantageous to the local farmers, and not to the tribal Land Owners.

You see they can't have it both ways. The appraisal firms use farmer-fed-suggestions to arrive at a new leasing recommendation that the tribes must comply with, but they don't give the tribes any due process to refute these alleged facts, to have the real facts disclosed by farmers (open them books up!), to negotiate fair leases. I am not a fan of non-disclosure rules and apparently neither are a fair share of other people whose states are a changin' their ways.

A good read for realtors, appraisers, people interested in knowing how hard your realtor will work for you, and tribes would be Freakanomics. It is especially enlightening to the effects that knowing the secret price has on the sale of your property.

Now, what is the fix? How do we make this objective? Can everybody be happy? I don't know about happy. But then that should concern people. Why is it many farmers are so happy and so many tribal members are very unhappy with their leases? (or in many cases oblivious to the whole process)

The fix, is to have farmers back up their claims with an opening of their accounting books. Let's see where their money is really going. If it was so un-profitable, why do they keep coming back? We won't change the non-disclosure any time soon. So make them open their books. Not much else is going to change either so let's put the tribes on the contract as a co-client. Office of Special trustee should give tribes due process.

Ah, now you're thinking that tribes should just ask for this now anyways. Interesting, so that works in all situations except where BIA offices handle the leasing provisions for the tribes.

My friend Ron in the CFEDs program needed to hear that the tribes will not necessarily know things similar to this are happening, just like they don't know about the CFEDS appraiser selection process, and even if they are handling their own leasing office, they won't know in all situations that they should have some recourse. They won't understand how the process works enough to stand up and ask for their rights to be restored. The tribes have a right to be objectively, and culturally regulated and have leases negotiated by the BIA, with OST that defer to the landowners' determination that the lease is in their best interest, to the maximum extent possible.

Go forth and do not concquer, simply cooperate, and if you don't get cooperation, stand your line until they come to the line prepared to offer everything contained in the term fiduciary responsiblity.