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?"

Peabody Coal and the Office of Surface Mining's activities are again called to question

The controversey around Peabody Coal still not only simmers, it has once again boiled over, or at least it looks to if things don't change in the immediate future.

More leaders need to know, as it has been pretty rampant as of late, that not every Indian speaks for EVERY Indian. If indeed the Life of Mine provision, addressed in this latest Indian Country Today Opinon Piece by the Hon. Ben Nuvamsa, was passed in the dark hours of a passing administration, then the powers that be, need to request clarification from the Hopi Tribe that this is what the Hopi Tribe is in agreement with.

Perhaps a referendum should be initiated from the new Hopi tribal administration to reveal what the true voice of the people is concerning the provisions of the Black Mesa Area Mining permit. This is the truest path to discovering if the Hopi people really want to grant such broad sweeping permission to the Peabody Coal Company.

Alternatively, if the Hopi Tribe's process permits it, the Hopi people should present an immediate Direct Initiative to determine their own opinion on how to supply the needs of the Mohave Generating Station, while still addressing the natural resource needs of the people in a way that is transparent, respectful of all that will be impacted, and in the end run is in the best opinion of an informed Hopi tribal population. (A Direct Initiative will go directly to a vote and circumvent the legal maze that many will not be familiar with or have the patience to endure)

A tribal law will hold status that should weigh heavily in any pending lawsuit

Both sides of the issue should be most supportive of a Direct Initiative because the majority will come out on top, and if either side believes it really is correct then this is the ultimate mechanism for putting money where mouth may be. Then there will be no questions left to answer.

No questions will be left except-what will the Hopi people do either with or without their resources in either scanario?

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?

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

Another American Indian Tribal Chairman Arrested by Police?

Another arrest warrant for a sitting American Indian Tribal Chairman?

First Eugene Little Coyote was arrested (December 28, 2007) when he resumed duties as Tribal President of the Northern Cheyenne Tribe after his Tribe's Constitutional Court ruled that he was indeed still President after a failed attempt to oust him from office. It was a contentious issue and the Council appears to have been divided for what some have called jealousy and others may believe that it is over the Natural Resource over which the Tribe's land sits: Coal Bed Methane. The largest untapped CBM reserve in the United States.

Now, in October 2008, we have Ben Nuvamsa of the Hopi Tribe who is under threat of arrest for apparently resuming his daily legal duty as Chairman of the Hopi Tribe. What Tribal Court would arrest the Chairman? I'm of the opinion that they might impeach him, they might rule against his decisions, but arrest him? Eugene Little Coyote and Ben Nuvamsa despite being from opposite north and south ends of the United States of America might share crib notes and come up with the same conclusion. It isn't easy being on top, so whatever your reason, stick to it.

It is unfortunate though--unfortunate that the environment is what is most likely to take the hit for all the misgivings of our activities.

It's unfortunate that the Dirty Percaps have raised their head again as well. You know my concept of dirty percaps is where you keep the Native American populations poor enough so that they'll jump at the opportunity to make relatively little money off of what you want to mine, to exploit, to become rich over.

Mining jobs. Yes they make money. The economic multiplier from every dollar spent from those paychecks is a boost for the entire regional economy.

You will do well to note the previous statements and consider their implications. I said that Natives could make "relatively little money" and "every dollar spent from those paychecks is a boost for the entire regional economy." The money made is relatively little COMPARED to the money that Peabody Coal is making by feeding a really minor fraction of what is made toward the paychecks. "Every Dollar spent from those paychecks" means that the rest of the money, the big money, the money paid by foreign companies ends up in the corporate accounts and is spent wherever the corporate leaders happen to live. How much money? Well on their own site they quote a figure of $4.6 billion in revenues, and that their coal products fuel approximately 10 percent of all U.S. electricity generation and 2 percent of worldwide electricity. Wow! Say, uh, where did they get that much coal?

They don't get rich by making others rich, who does? But they'll get by on the Hopi Reservation by providing a decent paying job to a few people. Is that really all they should give? Understandably, they provide the means to the market, but I tend to agree with Carl Venne of the Crow Tribe and Ben Nuvamsa, that the days of leasing are over. Carl Venne is making headway toward owning the mining process up north. "Equity Ownership is what we want," said Ben Nuvamsa in the October 29 issue of Indian Country today article 'Black Mesa Project Controversey Rises.' I hope that the eyes of all Indian Country see what that means.

I am not a big fan of destroying the water table anywhere, with polluting the entire railway (it does happen and then later has to be capped to be used and to prevent further pollution from whatever was on the trains), with coal and what it does to the environment. I guess it has to happen, but at what cost? If the case is to be made that it should be utilized then don't take what amounts to pennies on the dollar. It isn't that I encourage people to get rich off coal, but in the absence of any alternative efforts at providing subsistence to your people, own the process. Do not lease it because the longer you lease the resource right, the more the leasee makes, and like a well-fed stray dog, they do get more comfortable with coming back for more helpings year after year after year.

Do companies need to mine resources? Of course. Do they need to do it on a reservation? Of course they do--if you ask them. Do Natives need to LEASE the resource right off the rez? No.

If this is going to cost the health of the land, make all the money you can so you can repair it. Now this Peabody coal is making enough to apparently "restore" mining sites in Indiana, so they obviously have a lot of money. Where are they getting it? I'll bet from all the mines they extract from. How much is really going back into the reservations where they operate? When the mine is gone, what is left? What is really sustainable that the mine is leaving behind? And how much are they making off the resource extracted from Indian Land?

I would hope that in the interest of the environment, the greatest thinkers in Indian Country would come up with alternatives to these people who tear up the earth and leave it like an open scab and then walk away.

Then again, Eugene Little Coyote and Ben Nuvamsa and Carl Venne may be those great thinkers each with a different solution. Ultimately, the solution should come from their tribes. So for now we'll hope that Ben Nuvamsa doesn't fall victim to the same hand cuffs that bound Eugene Little Coyote. None of us can say what the best solution for them is. Only their respective tribes can.

Just keep your eyes open on your reservation when the corporate interests come knocking on your door. Don't let the $20 dollar-an-hour paycheck (dirty percaps) sway your opinion from what you and your heritage originally stood for before somebody put a dollar sign on your environment.

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.

Background Check for Ross Swimmer

This article on Indianz.com titled, Swimmer can't recall Navajo involvement
THURSDAY, FEBRUARY 13, 2003 is what should have come up to the Public and Administration's minds before Ross Swimmer came to acquire his position as Special Trustee, Office of Special Trustee (OST). Well, it should have come up and then he should have been rejected for any position of advocacy for Indians. It probably did come up. Everyone from the President on down probably knew about it, but still welcomed him into the Bureau of Indian Affairs (BIA) and eventually the OST. They probably gave him a pat on the back as he was welcomed and said, "you're doing a heckuva job there Swimmer!"

It should be of note that at a recent Intertribal Trust Monitoring Association (ITMA) (of Trust Funds) meeting in April, 2008 in Albuquerque, NM, Ross Swimmer actually said that appraisal values should not be what people negotiate for on their agricultural leases. He said appraisal values should be the low end you receive for leases. This despite the fact that he may as well have worn the shoes of the LOBBYIST for PEABODY COAL when he screwed the Navajo Tribe, out of the royalty rate for coal. The LOBBYIST convinced an Indian Advocate, who went down swinging for our cause (feigning a twisted arm--anybody recognize Ross Swimmer?) may rest well only for a lack of conscience:

"In this case, the Court of Federal Claims found that the government met “secretly with parties having interests adverse to those of the [Nation], adopt[ed] the third parties’ desired course of action in lieu of action favorable to the [Nation], and then misle[d] the [Nation] concerning these events.

the [Navajo] Nation asked that the royalty rate be adjusted to a reasonable level, and Peabody had consented to such a reasonable adjustment explicitly in Lease 8580

Prior to the ex parte interference, (and the in-office interference) the Bureau of Indian Affairs had deemed proper and approved an increase in the royalty rate to 20%. Despite the mandate of § 1300(e) and the Nation’s request for an adjustment to a reasonable royalty rate, however, it is undisputed that Secretary Hodel refused to make this royalty adjustment permanent after meeting with Peabody’s representative, (There were probalby two Peabody Representatives when you think even for a second about it) whom the government conceded was “a former aide and friend of Secretary Hodel.

...the Secretary approved lease amendments with royalty rates well below the rate that had previously been determined appropriate by those agencies responsible for monitoring the federal government’s relations with Native Americans"

No Way? Really? He did that? All by himself? And then through a sudden change of heart over the course of time, he comes out telling Indians at the ITMA conference that they should negotiate leases advantageously, above the appraised value? In the words of Borat, wowie wow wow wow! Did he learn his lesson or is he merely attempting to put lipstick on a pig? Because no matter how well you dress up a pig, it's still a pig.

Your'e doing a heckuva job there Ross, heckuva job.......

details at 11 on indianz.com.

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!!!!!!!

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.