1974
 1                      UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
 2   
      ELOUISE PEPION COBELL,       :  Civil Action 96-1285
 3    et al.                       :
                    Plaintiffs     :
 4                                 :  Washington, D.C.
              V.                   :  Thursday, October 25, 2007
 5                                 :
      DIRK KEMPTHORNE, Secretary   :
 6    of the Interior, et al.      :
                                   :
 7                  Defendants     :  MORNING SESSION
 8                  TRANSCRIPT OF EVIDENTIARY HEARING
                                  DAY 10
 9                 BEFORE THE HONORABLE JAMES ROBERTSON
                        UNITED STATES DISTRICT JUDGE
10   
     APPEARANCES:
11   
     For the Plaintiffs:      DENNIS GINGOLD, ESQUIRE
12                            LAW OFFICES OF DENNIS GINGOLD
                              607 14th Street, NW
13                            Ninth Floor
                              Washington, DC 20005
14                            (202) 824-1448
15                            ELLIOTT H. LEVITAS, ESQUIRE
                              WILLIAM E. DORRIS, ESQUIRE
16                            KILPATRICK STOCKTON, L.L.P.
                              1100 Peachtree Street
17                            Suite 2800
                              Atlanta, Georgia  30309-4530
18                            (404) 815-6450
19                            KEITH HARPER, ESQUIRE
                              JUSTIN GUILDER, ESQUIRE
20                            KILPATRICK STOCKTON, L.L.P.
                              607 14th Street, N.W.
21                            Suite 900
                              Washington, D.C.  20005
22                            (202) 585-0053
23                            DAVID C. SMITH, ESQUIRE
                              DANIEL R. TAYLOR, JR., ESQUIRE
24                            KILPATRICK STOCKTON, L.L.P.
                              1001 West Fourth Street
25                            Winston-Salem, North Carolina  27101
                              (336)  607-7392
1975
 1   For the Defendants:      ROBERT E. KIRSCHMAN, JR., ESQUIRE
                              JOHN WARSHAWSKY, ESQUIRE
 2                            MICHAEL QUINN, ESQUIRE
                              J. CHRISTOPHER KOHN, ESQUIRE
 3                            U.S. Department of Justice
                              1100 L Street, N.W.
 4                            Washington, D.C.  20005
                              (202) 307-0010
 5   
                              JOHN STEMPLEWICZ, ESQUIRE
 6                            Senior Trial Attorney
 7                            U.S. Department of Justice
 8                            Commercial Litigation Branch
 9                            Civil Division
10                            Ben Franklin Station
11                            P.O. Box 975
12                            Washington, D.C.  20044
13                            (202) 307-1104
14   
15   
16   Court Reporter:          REBECCA STONESTREET
17                            Official Court Reporter
18                            Room 6511, U.S. Courthouse
19                            333 Constitution Avenue, N.W.
20                            Washington, D.C.  20001
21                            (202) 354-3249
22   
23   
24   Proceedings reported by machine shorthand, transcript produced
25   by computer-aided transcription.
1976
 1                           C O N T E N T S
 2   WITNESS                  DIRECT    CROSS     REDIRECT  RECROSS
 3   SALLY WILLETT
     By Mr. Smith               1986      --        --          --
 4   By Mr. Kirschman           --        2024      --          --
 5   JOE CHRISTIE
     By Mr. Gingold             2034      --        2096        --
 6   By Mr. Quinn               --        2086      --          --
 7   
                              E X H I B I T S
 8   
         NUMBER                                   ADMITTED
 9   
10   
11        PLAINTIFF:
12   
13         350                                      2086
14         2152                                     2086
15         4208                                     1984
16         4455                                     1985
17         4487 - 4490                              1985
18         4493 - 4494                              1985
19         4497 - 4500                              1985
20         4501                                     1984
21   
22        DEFENDANT:
23   
24         152-A                                    1984
25         158-A                                    1985
1977
 1                        P R O C E E D I N G S
 2            THE COURT:  Good morning, everybody.  Who's next?
 3            MR. KIRSCHMAN:  Your Honor, you had stated you wanted
 4   to address a couple of housekeeping matters?
 5            THE COURT:  Oh, yes, I did.  Thank you.  I was so
 6   traumatized by the baseball score last night.
 7            First of all, let's talk about Kansas.  Anybody want to
 8   go to Kansas?
 9            MR. KIRSCHMAN:  Your Honor, we put on evidence related
10   to Kansas that included the testimony of Kathy Ramirez and the
11   exhibits, including photographs, related to that.  We did that
12   so there would be a clear evidentiary record and you would have
13   testimony.
14            Having said that, though, a trip to Lenexa would show
15   the Court more than a couple of mere pictures would, and would
16   convey to the Court visually the process in place and the extent
17   of the documents that are being collected.  So we believe it
18   would assist the Court, but we do have the evidentiary record
19   established through testimony.  So, we leave it to the
20   discretion of the Court, of course.
21            We believe, because there is already a record and
22   there's been Q&A, question and answers through testimony, that
23   it should be a limited site visit, a procedure where you and
24   your clerk would go.  And we don't see a need, for example, to
25   have a transcription, because we wouldn't envision testimony
1978
 1   being taken.  That's what we've attempted to do here in the
 2   formal setting of the courtroom.
 3            But that you could go and see the facilities, and you
 4   would certainly, and your clerk, could ask questions.  But it
 5   wouldn't be a formal affair where we had a court reporter,
 6   transcription, or videotaping.
 7            That would be our recommendation to the Court.  Thank
 8   you, Your Honor.
 9            THE COURT:  What do the plaintiffs say, Mr. Dorris?
10            MR. DORRIS:  Your Honor, of course we believe what you
11   think would be helpful to you, but we have some suggestions and
12   reservations about the trip to Lenexa.
13            First of all, to the extent that the purpose and nature
14   of the trip is as Mr. Kirschman just described, we think it's
15   entirely cumulative with the testimony that has gone in.  We
16   have thought some time for how this could possibly be done in an
17   even-handed way, with us never having been to Lenexa.  It would
18   be, from our perspective, a very one-sided tour of the people
19   that are there going through and showing you just what they want
20   you to see.
21            Now, if we go to Lenexa, and what really the issue
22   there to be addressed if you were to go is, can they find things
23   out there that they've got out in the cave?  And if we were
24   going to go there and pick some names, and then watch and see
25   the process by which they try to locate those documents, and
1979
 1   whether they can or can't, that might be something that is not
 2   cumulative to what we have done.
 3            So first, we think the trip as just described is
 4   cumulative with what you have seen and is in evidence already;
 5   but two, if we go, we would suggest that perhaps we do something
 6   more than what Mr. Kirschman has just described to you.
 7            MR. KIRSCHMAN:  Your Honor, may I respond to that?
 8            THE COURT:  Sure.
 9            MR. KIRSCHMAN:  Just briefly.  What we envision, and
10   what I attempted to just describe, was a visual inspection of
11   the physical site.  You have heard testimony on the record
12   regarding the process of how documents are found.  You've also
13   heard testimony regarding how long that process can be.
14            So there's no reason, and we do not anticipate
15   testimony from employees at Lenexa as they continue to perform
16   their daily work.  That's not what we envision.
17            So there's no reason to pick a name and try to find a
18   document in front of you.  This isn't an experiment.  It's a
19   visual inspection of the physical site.
20            Second of all, regarding the argument that it's
21   cumulative, Your Honor, just because you go to your travel agent
22   and see pictures of a vacation spot doesn't mean it's the same
23   as going to the spot and actually witnessing it.  There's more
24   than just the couple of pictures, although those are certainly
25   representative, and we tried to be all-inclusive, as you'll
1980
 1   recall, through the pictorial walk-through.  I don't think you
 2   can equate the two.  Thank you.
 3            THE COURT:  All right.  I think we will not go to
 4   Lenexa.  Notwithstanding our earlier -- my earlier enthusiasm
 5   for the trip, I really think that both of you are right, that
 6   going out there just to see what I've already seen would not be
 7   all that illuminating.
 8            And on the other hand, going out to hand some random
 9   names to somebody at the front door and say, "Find me
10   documents," would be -- they might find them, they might not
11   find them.  Everybody would scramble around.  I don't think it
12   would be a very productive use of counsel's time or of mine, and
13   so we're going to abandon that idea.
14            Now, we talked yesterday about the case for hearing
15   testimony of a former congressman who was present at the
16   creation of the Reform Act of 1994.  I have a proffer of what
17   his testimony would be.  I told Mr. Kirschman that I would hear
18   his response to it this morning, and I will hear it now.
19            MR. KIRSCHMAN:  Thank you, Your Honor.  We believe that
20   the affidavit of former Congressman Clinger demonstrates that
21   there is no basis to hear his testimony on this.  The report
22   basically -- I'm sorry, the affidavit itself appears to indicate
23   that Congressman Clinger would just be attempting to recreate a
24   legislative history that he has in his own mind.
25            Also, looking specifically at paragraph eight as the
1981
 1   best example, you can see that what Mr. Clinger would be
 2   presenting would be hearsay.  Looking at paragraph eight, he
 3   states, "Those of us who had been working on or following the
 4   creation of both the misplaced Trust report and the subsequent
 5   '94 Trust reform legislation," and he goes on.
 6            There's no need in this hearing, given the scope of the
 7   hearing, to hear such hearsay related to those individuals who
 8   were working on or following the creation of the '94 Act.
 9            It also appears that the former congressman may want to
10   offer legal conclusions regarding what is and is not the
11   interpretation of the 1994 Act.
12            With that in mind, there is no basis to hear his
13   testimony.  It does not relate to the issues in this hearing,
14   and will not assist the Court.
15            THE COURT:  Counsel want to be heard in reply?
16            MR. LEVITAS:  Yes, Your Honor.  Very briefly, on the
17   points that Mr. Kirschman made, the so-called hearsay is not
18   hearsay because it's not being offered for the truth of what is
19   said, but it relates to the state of mind of the people, the
20   witness; what was his state of mind, what did he understand?
21            But key to this is the fact that Mr. Clinger, who was
22   intimately involved, is giving the Court context, the context in
23   which this legislation was created.  He is not testifying, as
24   the Court had I think very accurately pointed out, what is the
25   intent of Congress.  But he explains how legislation is written,
1982
 1   and that the people who write the legislation follow the
 2   directions and guidance of the members of Congress.  The members
 3   of Congress don't actually sit down and write most of this
 4   legislation.
 5            And he points out that, as a person who was actively
 6   involved in this process, he heard and was not aware of and did
 7   not himself give any instructions or guidance to temporally
 8   limit the scope of the accounting.  And that is not a question
 9   of intent.  That's a matter of fact.
10            The fact is that no such instructions were given that
11   he knew of, that he gave.  And he, being intimately involved, is
12   able to state that the people who write legislation under the
13   guidance of directions from members of Congress were given no
14   directions to limit the scope of the accounting.
15            That was the purpose of this legislation -- of his
16   testimony and the proffer.
17            THE COURT:  I understand you yourself are a former
18   member of Congress.
19            MR. LEVITAS:  Guilty.  Yes, sir, I was.
20            THE COURT:  Well, then, you have more intimate
21   understanding of the sausage-making process than anybody around
22   here.
23            I think I will sustain the government's objection to
24   Mr. Springer's (sic) testimony, let your proffer be of record.
25   And maybe, when we get around to closing arguments, you yourself
1983
 1   can tell me something about the sausage-making enterprise.
 2            MR. LEVITAS:  Thank you, Your Honor.
 3            THE COURT:  Thank you.
 4            MR. KIRSCHMAN:  Your Honor, could I raise another
 5   matter?
 6            THE COURT:  Yes, sir.
 7            MR. KIRSCHMAN:  Unfortunately, I have to correct a
 8   mistake I made on Monday.  You may recall, after I presented
 9   Mr. Cymbor as our last witness, I also presented the Court with
10   two CDs of the DX-152-A --
11            THE COURT:  Yeah.
12            MR. KIRSCHMAN:  -- and 158-A.  At the time I did that,
13   it was my understanding that when Mr. Quinn had originally moved
14   to have those admitted, you had accepted them conditional on us
15   explaining whether any of the pages had been used on direct or
16   cross or redirect.
17            Our review of the transcripts revealed that wasn't the
18   case, and in fact that what I should have done was, after
19   explaining that they weren't used, I should have then moved on
20   Monday for their admission into evidence, instead of simply
21   handing them to you.
22            Because while Mr. Quinn had moved for their admission,
23   you hadn't actually addressed it.
24            THE COURT:  All right.
25            MR. KIRSCHMAN:  So I would like to re-open the record
1984
 1   so we could formally move into admission DX-152-A through 158-A
 2   as I presented to the Court and plaintiffs' counsel on Monday.
 3            THE COURT:  152-A through 158-A will be received.
 4            (Defense Exhibits DX-152-A - DX-158-A were moved into
 5   evidence.)
 6            MR. KIRSCHMAN:  Thank you, Your Honor, I appreciate it.
 7            THE COURT:  Mr. Harper?
 8            MR. HARPER:  Yes, Your Honor.  Good morning.  Just one
 9   final preliminary matter.  We would like to move into evidence a
10   number of exhibits that we had used:  Plaintiffs' Exhibit 4208,
11   which is Mr. Fasold's expert report; and Plaintiffs'
12   Exhibit 4501, which is a color chart that was basically the
13   AR-171 chart provided by the defendants.  But you will recall we
14   added a line that I think dealt with total receipts.
15            And so we would like to move both of those into
16   evidence.
17            THE COURT:  Received.
18            (Plaintiffs' Exhibits 4208, 4501 were moved into
19   evidence.)
20            MR. HARPER:  And with respect to Mr. McCarthy, we would
21   like to move the following exhibits into evidence:  4455, 4487,
22   4488, 4489, 4490, 4493, 4494, 4497, 4498, 4499, and 4500.
23            THE COURT:  Without objection, they will all be
24   received.
25            (Plaintiffs' Exhibits 4455, 4487 - 4490, 4493 - 4494,
1985
 1   4497 - 4500 were moved into evidence.)
 2            MR. HARPER:  Thank you, Your Honor.
 3            MR. KIRSCHMAN:  Your Honor, one moment.
 4            (OFF THE RECORD.)
 5            THE COURT:  Yes.
 6            MR. KIRSCHMAN:  Your Honor, I would like to note that
 7   not all of these exhibits were presented to Mr. McCarthy.  And
 8   specifically related to 4489, only the last document of a
 9   compilation was addressed with him.  But I understand you have
10   admitted those, but I would like to make that clear for the
11   record.
12            THE COURT:  Okay.
13            Got another witness for me?  Mr. Smith?
14            MR. SMITH:  Good morning, Your Honor.
15            THE COURT:  Good morning.
16            MR. SMITH:  Your Honor, if it please the Court, there
17   were two additional exhibits, as well.  With Ms. Infield's
18   testimony, Plaintiffs' Exhibit 607, which was the Tiger Team
19   report; and Plaintiffs' Exhibit 4154, which was the HLIP, the
20   High-Level Implementation Plan.  I understand there's no
21   objection to those exhibits.
22            THE COURT:  607 and 4154 are received.
23            (Plaintiffs' Exhibits 607, 4154 were moved into
24   evidence.)
25            MR. SMITH:  Your Honor, our next witness is Judge Sandy
1986
 1   (sic) Willett.
 2               (Oath administered by Courtroom Deputy.)
 3            THE COURT:  Judge?  Don't get many judges in the
 4   witness chair.  We're happy to have you here.
 5            THE WITNESS:  Thank you very much, sir.  It is unusual
 6   to be on the receiving end from this much lawyerdom.
 7            THE COURT:  Now we'll see if judges can answer
 8   questions.
 9            THE WITNESS:  That will be the trick, won't it?
10            MR. SMITH:  Your Honor, Judge Willett was an Interior
11   Administrative Law Judge for 18 years, and after that she was
12   involved in the High-Level Implementation Plan.
13            And she will testify regarding three areas:  Number
14   one, the probate process, and what is considered during the
15   probate process; and number two, the issue of fractionization
16   (sic) and backlog, and how that is affected in the probate
17   process; and finally, how the probate process deals with the
18   Youpee interests.
19            THE COURT:  All right.
20      (SALLY WILLETT, PLAINTIFF witness, having been duly sworn,
21                        testified as follows:)
22                          DIRECT EXAMINATION
23   BY MR. SMITH:
24   Q.    Judge Willett, can you state your full name, please?
25   A.  Sally Mann Willett.
1987
 1   Q.  And where are you from, Judge Willett?
 2   A.  I'm from Coffeyville, Kansas.
 3   Q.  And you are a Tribal member?
 4   A.  Yes, of the Cherokee Nation of Oklahoma.
 5   Q.  Are you also an allottee?
 6   A.  I'm not an allottee, but I'm from a land-owning family.  My
 7   grandmother and my great-grandmother were both allottees.
 8   Q.  You have a law degree?
 9   A.  Yes, I do.
10   Q.  And from where and when?
11   A.  UCLA School of Law.  I attended under the University of
12   New Mexico Indian Law Program.
13   Q.  And after you graduated from law school, what kind of work
14   did you do?
15   A.  I worked for Native American Rights Fund, and then went to
16   the Department of Interior for the Office of Rights Protection.
17   And from that point I transferred -- I was appointed as an
18   Administrative Law Judge for Indian probate.
19   Q.  And when were you appointed as an Administrative Law Judge?
20   A.  I was appointed in November of 1977, but reported for duty
21   on January 29th, 1998.  And at Phoenix, Arizona.
22   Q.  If we could slow down just a little bit.
23   A.  I will slow down.
24            THE COURT:  So far the record says you were appointed
25   in '77 and reported in '98.  There's something wrong with that.
1988
 1            THE WITNESS:  No, it isn't.  Reported for duty.  The
 2   appointment occurred two months before I reported for duty.
 3            THE COURT:  But the record has it 20 years.  You were
 4   appointed in '77 or '97?
 5            THE WITNESS:  Oh, '77.  And I reported in '78.
 6            THE COURT:  Got it, thank you.
 7            THE WITNESS:  I'm sorry.  I probably did say 9.  Excuse
 8   me.
 9   BY MR. SMITH:
10   Q.  And over what period of time were you an Administrative Law
11   Judge with Interior?
12   A.  From January 29th, 1978 until October 6th, 1996.
13   Q.  And what was your employment after that?
14   A.  I am continuing to be an Administrative Law Judge with the
15   Social Security Administration.
16   Q.  After you left your position with Interior, did you continue
17   to be involved in Indian probate matters?
18   A.  Yes, in a variety of ways.  I was on the High-Level
19   Implementation Plan, Phase II of the probate reinvention lab.  I
20   have worked on the Indian Land Consolidation Act Amendments of
21   2000; I have worked on each set of the regulations that have
22   been promulgated.  And this is from the landowner standpoint.
23            I work with an all-volunteer organization called the
24   Indian Land Working Group, and we are the only national
25   landowner organization in the country that works exclusively on
1989
 1   individual allotted land issues.  And then I worked with the
 2   work group that preceded the American Indian Probate Reform Act.
 3            And I also teach Indian probate, estate planning,
 4   Indian Land Consolidation Act, and the American Indian Probate
 5   Reform Act.
 6   Q.  Thank you.  I want to focus on your work as an
 7   administrative judge for Interior.
 8            What areas of Indian country did you work?
 9   A.  Well, my home territory was Arizona and Nevada --
10   correction, Arizona and Southern California, with the exception
11   of Navajo.  Because of the dispute between the Hopis and Navajo,
12   I had Hopi and another judge had Navajo.  Then later, Nevada was
13   added.
14            However, because of the relocation in the '50s and
15   '60s, we had out-of-area Indian residents within my territory.
16   So the cases would follow the individual; they would be sent to
17   us from their home agency or their home OHA office.
18            So I would hear cases from all over the United States,
19   and then would also hear dockets out of my own region, let's say
20   if a judge were sick or there were a vacancy and that type of
21   thing.
22   Q.  And generally, did you deal with most every tribe?
23   A.  Pretty much.
24   Q.  Any limitation on the type of estate matters you handled at
25   all?
1990
 1   A.  I'm not sure I understand your question.
 2   Q.  Okay.  What kind of probate resources did you deal with?
 3   Natural resources, funds?
 4   A.  All of them.  Oil, gas, land, agricultural leasing, grazing,
 5   anything.  Anything that the resource produced.
 6   Q.  And do you have an approximate number of the number of
 7   probate estates you have dealt with over those years?
 8   A.  Thousands.  I really would not be able to do that, because
 9   our caseload increased, actually quintupled, over the period of
10   time I was there.  And so our numbers at the end were much
11   greater, because they would -- as the property was
12   fractionating, they were reducing the system.  So our caseloads
13   increased dramatically.
14   Q.  Now, the Indian probate process is a bit different than that
15   which might fall under state law.  Is that fair?
16   A.  The function is the same, but how it's handled is I believe
17   entirely different.  Because the government initiated,
18   government prosecuted, and people are largely unrepresented.
19   Q.  What is the purpose of Indian probate?
20   A.  Well, the purpose of Indian probate is to wind up the
21   affairs of the decedent, and to transfer the assets into new
22   ownership.  And you do it one of two ways:  Either by testate
23   succession, which is will; or intestate succession, which is
24   without a will and it's a default method.
25   Q.  Generally in Indian country, do Indians have wills?
1991
 1   A.  Rarely.
 2   Q.  So generally, you're dealing with an intestate?
 3   A.  Intestate unrepresented.
 4   Q.  Is there a personal administrator in the Indian probate
 5   process?
 6   A.  The superintendent.
 7   Q.  So the superintendent for BIA serves as the administrator?
 8   A.  Right.  There are no private representatives permitted,
 9   because they would interfere with the authority of the
10   Secretary, which is delegated to the superintendent.  The
11   superintendent is in fact the legal custodian of the assets,
12   under the regulations.
13   Q.  I would like you to briefly explain the Indian probate
14   process.  Did you prepare a chart that sets out that process?
15   A.  Yes.
16   Q.  And would that assist you in explaining the process?
17   A.  Yes, it would.
18            MR. SMITH:  If we could see Exhibit 4512, please.
19            MR. KIRSCHMAN:  Your Honor, defendants would object to
20   the use of this chart, to the extent that we received this after
21   11:30 last night and have not had a chance to review it and
22   analyze it with our client.  So I note that objection.
23            THE COURT:  All right.  Well, I think you'll be able to
24   handle it.  Overruled.
25   BY MR. SMITH:
1992
 1   Q.  Judge Willett, is this a chart that you prepared?
 2   A.  Yes, it is.
 3   Q.  And does it describe the Indian probate process?
 4   A.  Yes, it does.
 5   Q.  And there are three sections at the top:  One, two, and
 6   three.  Could you describe what those are?
 7   A.  Basically, when I'm teaching a class, I like to
 8   conceptualize things.  And so what I'll do is -- "initiate" is
 9   basically the preparation of the probate done by the Bureau of
10   Indian Affairs, and starting -- because that is the legal
11   custodian of the assets.
12            And then they prepare a probate package governed by the
13   sections that are on the screen, 15.104 and 15.203, and they
14   submit it to the Office of Hearings and Appeals, who then begins
15   the adjudication process of one of two types.  Because there are
16   only two statutes that govern Indian probate proceedings, and
17   that is 373, which is the will; and 372, which are the
18   intestate.
19   Q.  Let me stop you there.  There's references to regulations
20   and statutes, and are those the current regulations?
21   A.  Yes, these are.
22   Q.  And if you notice, some of the areas are in red.  For
23   example, in the center of the page we have IPJ, which is in red,
24   and then next to that ADM.
25            What does it mean if it's in red?
1993
 1   A.  All right.  That was an effort to denote the new changes
 2   that have come since the High-Level Implementation Plan, with
 3   the addition of non-ALJ adjudicators.
 4            So when you see red, that is a new category of
 5   adjudicator that has come since the High-Level Implementation
 6   Plan processes.
 7   Q.  Apart from those differences, does this chart reflect the
 8   probate process since maybe the '70s or so?
 9   A.  Yes, it does, with the exception of the ADMs.  If you strike
10   off that, we had some redistribution, but that was done by the
11   superintendent.  And what would in reality happen is, the
12   superintendent would ship it over to us because they were
13   uncomfortable with doing adjudicative or quasi-adjudicative
14   duties.
15   Q.  Going to step one, can you describe generally BIA's process
16   in initiating the probate?
17   A.  Well, a death is reported.  And then at some point, it's
18   supposed to be within 90 days, they're supposed to prepare a
19   probate file and submit it to OHA.  And what the probate file
20   contains is a -- data for heirship finding, a family history
21   form --
22   Q.  Go ahead.
23   A.  It will contain an inventory of assets based on the records
24   at the time; it will contain a death certificate; it will
25   contain any documents that pertain to relationships, that would
1994
 1   be marriages, divorces, adoptions.
 2            It would then have -- on the data sheet, it would
 3   contain a statement of what was in the account, an IIM account
 4   on the date of death, and, at my request, on the date of
 5   submission.
 6            It would contain any documents.  It would contain the
 7   original or a Court-certified copy of the decedent's last will
 8   and testament, and creditor claims.  That would be a typical
 9   file.
10   Q.  And then that file is submitted to the adjudicator?
11   A.  Yes, it is.
12   Q.  And that would be you?
13   A.  Me.  That would have been me.
14   Q.  And once you get that file, what is the process?
15   A.  Well, we would assign it, because we covered territories --
16   we had multiple agencies, and they would go in to their judge
17   who would then set dockets.  Because we were circuit riders, we
18   would set dockets of hearings, and build up enough cases then to
19   go out to that area and hold the hearings.
20            And once we concluded the hearing -- well, if we had
21   additional development to do, which was frequent, we would then
22   request -- if you look at the chart in the first column, go down
23   to the box that says 4.210, we would ask the Bureau of Indian
24   Affairs to supplement the record on whatever the issue was.
25            And they would then get back to us, and we would make
1995
 1   that officially of record; I would serve a notice to all
 2   interested parties, or in a proper case I would hold a
 3   supplemental hearing.
 4   Q.  So if, after reviewing the file, there was some area you
 5   felt needed additional information, you would refer it back to
 6   the superintendent?
 7   A.  Yes.
 8   Q.  And the superintendent in turn would provide --
 9   A.  He's the custodian.  We --
10   Q.  It's helpful to the court reporter if you don't answer until
11   I finish the question.  She's having --
12   A.  Excuse me.
13   Q.  -- some trouble.
14   A.  Excuse me.
15   Q.  So it's referred back to the superintendent, and then she
16   provides you that information?
17   A.  Yes.
18   Q.  And once you get that information back, what is the next
19   step?
20   A.  Well, it's officially made of record by one of two
21   processes:  Either the service of a notice to all interested
22   parties by -- that I direct my staff to do; or in certain cases,
23   for example in will contests, we might have an additional
24   supplemental hearing, at which time the evidence would be
25   admitted.
1996
 1   Q.  Okay, good.  And once there's a decision made by you as the
 2   adjudicator, what's the next step?
 3   A.  You assemble the file that has the documents that I
 4   indicated, the data sheet, the inventory, the will, the creditor
 5   claims, any of the documents that I previously enumerated.  The
 6   original copies are then filed with the Land Title and Records
 7   Office that served your area.
 8            Now if you had, for example, mixed assets from two
 9   areas, that you had an individual who had assets in say Aberdeen
10   and in Phoenix, you would send a duplicate copy - but obviously
11   not original and not certified - to that title plant and to the
12   agency that covered that particular asset, so that they could be
13   aware that probate had occurred.
14   Q.  And the purpose of sending it to the Land Title Records
15   Office is what?
16   A.  They're the county recorder office equivalent for Indian
17   lands in the federal system.
18   Q.  So there would be a notice of the change in ownership?
19   A.  Yes.  That's their purpose, is to record the ownership.
20   It's under 43 CFR, Section 4.236.
21   Q.  To your knowledge, what is the time period from when you
22   would make a decision to the actual recordation of that
23   decision?
24   A.  Varied.  There was no -- I couldn't answer that question.
25   Q.  Do you know if there's any backlog in the recordation
1997
 1   process?
 2   A.  Huge backlog.
 3   Q.  Excuse me?
 4   A.  Huge backlog.
 5   Q.  Okay.  What is the nature of the backlog today, do you know?
 6   A.  Well, there are several backlogs.  There's a 53,802 pending
 7   probate.  They call it pending probate, but if you haven't
 8   adjudicated, it's a backlog.  They did 7,445 cases last year,
 9   and still have 53,802 pending.  Which to me, if you take in more
10   than you put out, that's a backlog.
11            I have -- I would like to clarify something.  I have
12   always done high-volume adjudication in the Department of
13   Interior and now, and I'm pretty good with systemic things.  And
14   if you take in more than you put out, there is only one
15   classification, and that's backlog.
16   Q.  Okay.  In a few minutes I'm going to talk about that
17   particular backlog, the probate backlog.  How about the
18   recordation backlog?
19   A.  Well, this is one of the sources of extreme consternation by
20   Indians.  And that is the fact that we are unable to get answers
21   from the department.
22            On October 19th -- correction, on April 19th of 2007, I
23   asked Jim Cason for three numbers:  The probate backlog, the
24   posting backlog, and the number of unrestored two percent
25   interests.  I was told to send a fax.  My group, the Indian Land
1998
 1   Working Group, did.  We received no response.
 2            This has been the historical pattern of our efforts to
 3   get hard information out of the department.
 4   Q.  Prior to talking to Mr. Cason, what was your understanding
 5   of the recordation backlog?
 6   A.  Huge.
 7   Q.  How many filings?
 8   A.  No numbers.  Huge.
 9   Q.  That's just the delay from the time you make a decision to
10   the time it's actually posted?
11   A.  From the time decisions -- the posting backlog -- this is
12   the sequence:  When a decision -- let me see if I can find it
13   here.
14            If you go to the center column, bottom row, there's a
15   citation omitted, and it's 4.240.  There's a 60-day waiting
16   period, and that's considered the rehearing period.  But what
17   that is, is supposed to be the recordation period in which the
18   title plant would have recorded it.
19            But beginning in 1980, which was two years after I
20   came, the resources for the Bureau of Indian Affairs, of which
21   the title plant is a component of the Bureau of Indian Affairs,
22   were eviscerated.  And as was the OHA probate function.
23            So recordation lagged everywhere.  Because you see, the
24   agency posts, too, but that's not the official recordation.
25   Only the Land Title and Records Agency is the official record.
1999
 1   And they're like the mother ship, basically, against which all
 2   is matched by the agency.
 3   Q.  Let's go back to the probate process.  As part of the
 4   probate process, what if anything do you do as a matter of
 5   practice, as an adjudicator, to determine the accuracy and
 6   completeness of Trust funds represented by BIA to be in the
 7   estate?
 8   A.  Nothing.
 9   Q.  If we could look --
10   A.  We don't go behind what's reported by the superintendent
11   unless there's an issue raised by a party.  And in which case we
12   might, depending on what they were alleging, general or
13   specific, we would look at it.  But it would be fact-specific.
14            MR. SMITH:  If we could see Exhibit 4507, please.
15   BY MR. SMITH:
16   Q.  And can you describe for the Court what Exhibit 4507 is?
17   A.  That's a data for heirship finding and family history form.
18   They currently refer to it as an OHA-7 because that is -- I
19   guess it's government printing number.
20   Q.  And is this the form that is provided to you as an
21   adjudicator by BIA?
22   A.  Yes, it is.
23   Q.  And if you look on the first page, primarily it lists
24   information about the decedent, and then potential heirs.  Is
25   that --
2000
 1   A.  It is.  The form in its entirety is basically a summary of
 2   probate.  Because fundamentally, probate is who takes how much
 3   and in what order.  So what you have, you have to have a dead
 4   person, so therefore you have the fact of death established;
 5   where, because that determines the descent of personal property;
 6   how determines whether or not you have to find out if an heir
 7   killed the decedent.
 8            So basically, what this form is, is a summary of
 9   everything that is in that estate.
10   Q.  And if you could look to page four of that form.
11   A.  Am I supposed to be doing something to get to that?  All
12   right.  Thank you.
13   Q.  And focus in on the top half.
14   A.  All right.  Yes.
15   Q.  Is this where BIA would provide you information regarding
16   personal and real property in the estate?
17   A.  Yes, it is.
18   Q.  And generally, would that include allotted interests?
19   A.  I'm sorry?
20   Q.  Would that include allotted interests?
21   A.  Are you talking about personal property, or are you talking
22   about the...
23   Q.  Both.  Either interest in allotted income or --
24   A.  Well, the personal property would be -- they would
25   automatically report all funds on hand at death in IIM, because
2001
 1   that is the point of transfer.  That's the effective date of the
 2   transfer of the asset.
 3            But what the family would be interested in would be the
 4   amount of money on hand now.  But because there would be a lag
 5   between when we would hold the hearing and when we would receive
 6   this, they would report it as the information on hand on the
 7   date of submission.
 8   Q.  So as an adjudicator, what if any reliance do you place on
 9   what BIA tells you to be the --
10   A.  This is the report.  This is what I probate.
11   Q.  Now, you indicated your mother is an allottee?
12   A.  No, she is an enrolled Indian who is the sole heir in her
13   line.
14   Q.  Okay.  Have you had personal experiences trying to get an
15   accounting of your mother's interest?
16   A.  Oh, yes.  Yes.
17   Q.  Have you had difficulty doing that?
18   A.  Well, yes.  They condemned -- "they" being a utility company
19   in Oklahoma, condemned in state court, which has no jurisdiction
20   over condemnation of allotted lands, they condemned one-eighth,
21   the flat portion, of the equalization allotment that my
22   grandmother had.  And then they asked BIA if they wanted to
23   remove it to federal court, and BIA declined.
24            So somebody assigned a value to it, which I call chump
25   change, and they posted -- they did not make any effort to
2002
 1   contact anyone, and simply did it by publication.  And then, to
 2   the best of our knowledge, we cannot find out whether or not
 3   they ever opened an IIM account.  But no money was ever given to
 4   anyone in the family for the taking from that land.
 5   Q.  And you've been trying to get an accounting of that?
 6   A.  Well, I wrote the letter for my mother, who is now in her
 7   80s, in 1999.  And I'm still waiting for the response.
 8   Q.  So is it fair to say that you're somewhat sympathetic to
 9   individual Indians seeking an accounting of their funds?
10   A.  Well, you have to realize, I've worked for both the
11   plaintiff and the defendant, so I have interests -- you know,
12   I'm not a lopsided unit.  I am not unsympathetic to that.  I
13   understand it, and I also understand the impediments.
14            So I probably see it in a more dimensional way than a
15   lot of people do.
16   Q.  And that was my next question.  What if any provision is
17   there in the probate code for the heirs to request an accounting
18   of Trust assets as part of the probate process?
19   A.  In the code?  You would have to be more clear.
20   Q.  As part of the probate process, what provision is there for
21   an heir actually to seek an accounting of --
22   A.  None.
23   Q.  And that includes IIM assets?
24   A.  Right.  Not in the probate process.  There has been a
25   provision added to the American Indian Probate Reform Act, but
2003
 1   it doesn't include an accounting.  It just simply gives red
 2   people the same rights that white people have to ordinary
 3   records about their assets.
 4   Q.  For example, as an adjudicator, would you be able to
 5   investigate whether the appropriate income was received from a
 6   particular lease?
 7   A.  No.  I would make the referral back to the program agency,
 8   which would be the custodian, the Bureau of Indian Affairs.
 9   Q.  During the probate process, is an heir -- does an heir get
10   access to all of the source documentation relating to an IIM
11   account?
12   A.  The judge doesn't get access to all those documents.
13   Q.  You talked about the fractionization (sic) issue.
14            MR. SMITH:  And if we could look at Exhibit 4510,
15   please.
16            THE WITNESS:  My screen is blank.  There we go.
17            MR. SMITH:  It's getting there.
18            THE COURT:  While we're waiting for that to come up, I
19   would like to ask Judge Willett a couple of questions about
20   the -- her grandmother's story.  It went by real quickly.  And I
21   understand, counsel, that her grandmother 's story is not
22   exactly the issue that's before us, but I want to understand it.
23            You said that -- I think you said a one-eighth interest
24   or something in her land was condemned by the state government?
25            THE WITNESS:  Right.  No, the state -- a utility
2004
 1   company in the state court.
 2            THE COURT:  Utility company, all right.  And they
 3   wanted the land for what, power lines or something like that?
 4            THE WITNESS:  Power line.
 5            THE COURT:  And they condemned the land?
 6            THE WITNESS:  Right.
 7            THE COURT:  And you say they asked the BIA whether BIA
 8   wanted to remove it to federal court?
 9            THE WITNESS:  Yes.
10            THE COURT:  How would BIA be able to do that?  What's
11   the mechanism for BIA to get involved in that?
12            THE WITNESS:  Well, in the real world of Indian
13   Affairs, it's very fluid.  Local activities often exceed --
14   their grasp exceeds their reach.
15            So BIA would be the point of contact for everything.
16   If they were to do that, they would probably be moving through
17   the Solicitor's Office, who is their lawyer.  But the point of
18   contact for that request would be to the Bureau of Indian
19   Affairs, who is the property manager, basically, the custodian
20   and the property manager.
21            THE COURT:  And I think you said that for a state
22   utility company to use state court mechanisms to condemn this
23   portion of Indian land is unlawful, but they did it anyway?
24            THE WITNESS:  Well, what happens is that you apply
25   state law in the condemnation of allotted interests, but you do
2005
 1   it in federal court.
 2            So the state court didn't have jurisdiction --
 3            THE COURT:  Oh, I see.
 4            THE WITNESS:  -- to hear the condemnation proceeding of
 5   the allotted interest.
 6            THE COURT:  Okay.
 7            THE WITNESS:  But that's the type of loose practice
 8   that is rampart (sic) in Indian country.  Oklahoma is a little
 9   different than most other areas.  It's considered the laboratory
10   rat for everything strange thing in the country.
11            THE COURT:  So the chump change valuation was a result
12   of state court condemnation proceedings?
13            THE WITNESS:  Right.
14            THE COURT:  And what I hear you saying is that if BIA
15   had taken an interest in that and had taken it to federal court,
16   they might have gotten a better value for it?
17            THE WITNESS:  Well, I think maybe they might have done
18   something like be involved in it, other than giving them the
19   high sign to go ahead and take it in an illegal forum.  But
20   their only activity in that regard was to say, "Oh, yeah, go
21   ahead, boys."
22            So essentially, I would hope that the government
23   apparatus, had they gone through the proper court system, would
24   have bothered to do a few things, like make sure that there was
25   an appropriate appraisal, and make sure that the money was --
2006
 1   obviously paid, but that's the point at which it ended.  Because
 2   we have the court records that show how much was allocated to
 3   that interest.
 4            THE COURT:  And I don't want to pry, but was it a
 5   substantial amount of money?
 6            THE WITNESS:  $51.
 7            THE COURT:  $51?
 8            THE WITNESS:  Right.  For one-eighth of the allotment,
 9   the only flat portion that would have been tillable.
10            THE COURT:  Well, I don't know that I'll buy into chump
11   change, but $51 isn't much.  And nobody ever got the $51?
12            THE WITNESS:  No.
13            THE COURT:  Okay.  Thank you, ma'am.
14   BY MR. SMITH:
15   Q.  If I could just address one further question.  We're talking
16   about your grandmother?
17   A.  Yes.
18   Q.  And what if any knowledge did she have regarding even the
19   location of that allotment?
20   A.  The allotting process was not -- it was not a scalpel, it
21   was more a blunderbuss.  People were often allotted in a
22   fragmented way.  She had a homestead allotment that was located
23   north of Bartlesville, Oklahoma, and she had an equalization
24   allotment, what we thought was located near the Ozark Forest,
25   which would be on the west side -- I'm sorry, the east side.
2007
 1   But in fact, it was located just north of Jay, Oklahoma.
 2            And so there was a great deal of confusion about where
 3   the equalization allotment was.  Because it wasn't -- you know,
 4   it wasn't the big ticket.
 5   Q.  And what if any notice did your grandmother receive
 6   regarding that condemnation --
 7   A.  Well, she was deceased by this point.  But my mother, who
 8   was constantly in contact with what we call down there the
 9   Indian agent, they knew where everybody was.
10   Q.  What notice did she get of that -- what notice did she get
11   of that condemnation proceeding?
12   A.  None.  They published it locally.
13   Q.  Where she didn't live?
14   A.  Where she did not live, right.
15   Q.  Okay.  If we could look at Exhibit 4510.  Is this a chart
16   that you prepared in the past discussing the fractionization --
17   A.  Yes, it is.
18   Q.  Could you describe generally the fractionization problem?
19   A.  All right.  Basically, when the government divided Indian,
20   or usually Tribal lands, in severalty, and assigned it to
21   eligible Tribal members at the time, that tribe would be
22   allotted.  That person is called the allottee.  And then the
23   property then would pass, overwhelmingly by intestacy, as
24   tenancy in common interest.
25            So, for example, when I teach the class, I explain
2008
 1   fractionation as follows:  You have the allottee; the allottee
 2   dies and has two heirs --
 3            THE WITNESS:  And we will put in the heirs, please.
 4   All right.
 5   A.  And then when those two die, they have two each; and when
 6   they die, they have two each.  All right.
 7            So these people do not have divided interests, any
 8   particular right to any particular piece that a common undivided
 9   right in the entirety to the extent of their share.  All right.
10   BY MR. SMITH:
11   Q.  And going over to the left side of the chart, can you
12   explain --
13   A.  Oh, that basically, when I'm teaching this -- because I
14   teach tribes, I teach Indian community members, I teach BIA, I
15   teach everybody, usually, this is the most commonly perceived
16   pattern.  This would be a Northern Plains "open to settlement
17   and entry" model; that is, a large reservation that was then
18   divided up.  The A represents the dividing.  If there wasn't
19   sufficient land or sufficient land that they would allow to be
20   allotted, they would then create off-reservation allotments as
21   well.
22            There were other ways you could get an off-reservation
23   allotment, such as the Indian Homestead Act.  But basically
24   then, any that wasn't allotted on-reservation for 38 tribes
25   would be open to settlement and entry by non-Indians.
2009
 1            So that's -- when I'm teaching this, I'm showing the
 2   creation of the reservation, its reduction or fragmentation
 3   through the allotment process.  And the triangle represents the
 4   pyramiding ownership that occurs as a result of
 5   multigenerational inheritance from the allottee.
 6   Q.  Now, what impact has this fractionization had on the probate
 7   process?
 8   A.  Oh, it causes it to proliferate.  Because fractionation,
 9   every fractional interest is probated.
10   Q.  I want to talk a little bit about what you've referred to as
11   the probate backlog.  But first, how long has there been an
12   Indian probate system?
13   A.  There are two answers to that question.
14   Q.  Okay.
15   A.  A formal system since 1910; the unofficial, informal, since
16   1887, under Section V of the General Allotment Act.  The right
17   to probate or determine heirs was inferred from Section V of
18   that Act.
19   Q.  How long has there been a probate backlog?
20   A.  The first backlog appeared in 1913.  It was 40,000 estates,
21   worth a then-value of $60 million.
22   Q.  When you retired as an Administrative Law Judge for
23   Interior, what was the probate backlog?
24   A.  I'll give you a range, because I just remember carrying this
25   in my mind.  Between 33 and 36 hundred.
2010
 1   Q.  Now, after you retired, you were -- you were asked back to
 2   assist with the HLIP?
 3   A.  Right.  Department of Justice called me, Lawrence Bacca
 4   called and said, "Would you be on this task force?"
 5   Q.  And what were the concerns of probate to be addressed in the
 6   High-Level Implementation Plan?
 7   A.  Its implosion.  It was one of the sub-tasks in the
 8   High-Level Implementation Plan.  Because if you'll go back to
 9   that chart that you just had up -- it's gone off the screen now.
10            The fractionation basically causes everything to
11   increase.  And what our system was doing was invert that
12   pyramid.  It was decreasing the system, and has been since 1980
13   been decreasing the system to address an exploding subject
14   matter.
15            So the department was doing an inverted pyramid while
16   the subject matter was doing a pyramid.  And that was lethal.
17   Q.  What do you mean, the department was doing an inverted
18   pyramid?
19   A.  It was decreasing the probate offices.  We were located in
20   the Office of the Secretary of the Interior, and we somewhat
21   operated as a slush fund for high-level interests.  When
22   everybody wanted some money, they would just dip into the OHA
23   account.
24            And then, of course, we had an additional problem.
25   Just before I left, we had an office administrator who used to
2011
 1   shut down mission travel in August and horde the money, and then
 2   turned herself in for a cash award when she returned it back to
 3   the department.
 4            MR. KIRSCHMAN:  Objection.  Lack of foundation,
 5   hearsay.
 6            THE COURT:  I think I'll sustain that objection.
 7   BY MR. SMITH:
 8   Q.  Did the HLIP successfully address the backlog problem?
 9   A.  Obviously not.
10   Q.  And today, as you understand it, how much has the backlog
11   increased from when you retired?
12   A.  It's now 53,802, and it was 33 to 36 hundred when I left.
13   Q.  The typical Indian estate, are we dealing with a small
14   number of potential heirs or a large one?
15   A.  Varies by reservation and the culture of the population.
16   The largest number of heirs were 200 that I did.
17            And each reservation is different.  So you have some
18   reservations where people had few children; Hopi would be an
19   example.  And then you have Donatham on the main reservation,
20   where they have almost no children.  Quite a few estates have no
21   children, but huge collateral inheritance.  So you would see 20
22   to 60 heirs.
23            MR. SMITH:  If we could see Exhibit 4509, please.
24   BY MR. SMITH:
25   Q.  Can you describe for the Court what Exhibit 4509 is?
2012
 1   A.  That's a case I handled involving -- it was a transfer case
 2   from Quinault, which is in the Northwest, down to me because the
 3   probable heir, or the will beneficiary in this case lived in
 4   Mesa, Arizona.
 5   Q.  And if you could look at the second page of that document,
 6   does this reflect the heirs in that particular case?
 7   A.  Yes.
 8   Q.  Was this unusual in your work?
 9   A.  No.
10   Q.  So is it fair to say that a single estate may affect a large
11   number of heirs and potential allottees?
12   A.  Oh, yes.
13   Q.  To what extent if any would that problem be -- the problem
14   of a backlog, the 53, 54 thousand-case backlog, be exacerbated
15   by subsequently deceased heirs?
16   A.  Oh, when you have a backlog, you have buried within that
17   backlog the hidden problem; and that is, you have heirs who have
18   died which create their own estates.  Because the vesting point
19   for probate is the date of death, so if a person is alive on the
20   date of death, they're a life in being.  If they later die, it
21   creates a second estate.
22            And the older your backlog, the greater the probability
23   of having these estates that are going to be triggered within
24   that backlog.
25   Q.  The backlogs you've described, the probate backlog and then
2013
 1   the subsequent posting backlog, what effect if any does this
 2   have on the Indian land title records?
 3   A.  It makes them infirm.
 4   Q.  What if any impact does that backlog have on the ability to
 5   render an accounting for beneficiaries?
 6            MR. KIRSCHMAN:  Objection.  Lack of foundation.
 7            THE COURT:  Overruled.  Overruled.
 8   A.  Please ask that again.
 9   BY MR. SMITH:
10   Q.  Sure.  What if any impact would the probate backlog and the
11   posting backlog have on the ability to render an accounting for
12   beneficiaries?
13   A.  I don't think of it in exactly those terms.  The money
14   follows the land.  If you have the land un-probated or
15   un-posted, then it is not accurately reported.  If it is not
16   accurately reported, then that would necessarily affect any
17   activity that would flow from that.
18   Q.  Okay.
19            MR. SMITH:  If we could look at Exhibit 779, please.
20   BY MR. SMITH:
21   Q.  And do you recognize this as the January 6th, 2003
22   historical accounting plan?
23   A.  Yes.
24   Q.  And I want to address the specific section dealing with
25   probate.
2014
 1   A.  All right.
 2   Q.  If we could move to appendix page 2-3, I think.
 3   A.  Oh, I can't see it.
 4   Q.  If we could focus on the --
 5            THE COURT:  You're not alone, judge.  We'll blow it up
 6   for you.
 7   BY MR. SMITH:
 8   Q.  If we could focus on the bottom paragraph.
 9   A.  Can you make that bigger?
10   Q.  Yeah, it's getting there.
11   A.  Oh, okay.  Thank you.
12   Q.  And have you reviewed this language of the plan?
13   A.  Yes, I have.
14   Q.  And it indicates that, "The plan does not contemplate
15   performing historical accounting work for the closed accounts of
16   deceased predecessors of current IIM account holders."  And then
17   it goes on.
18            In your review of this language, did you find this
19   language to be accurate or inaccurate in describing the probate
20   process?
21            MR. KIRSCHMAN:  Objection.  I'm not clear as to if he's
22   asking her to comment on the entire paragraph.  Did I
23   misunderstand?
24            MR. SMITH:  I can take it sentence by sentence, if that
25   would help.
2015
 1            MR. KIRSCHMAN:  It's vague, otherwise.
 2            MR. SMITH:  Okay.
 3   A.  Well, the first sentence says what it says.  It doesn't
 4   contemplate doing it.  So I don't have any opinion as to that.
 5   BY MR. SMITH:
 6   Q.  How about the second sentence?
 7   A.  "General Trust law principles support the assumption of
 8   correctness of any property distribution made to a current
 9   account holder through the distribution of a probated estate."
10            That is very ambiguous, from the standpoint of a person
11   who adjudicates probate, because there are several things in
12   there.  "The assumption of correctness of any property," well --
13            THE COURT:  I'm going to ask you to get a little closer
14   to that microphone please, judge.
15            THE WITNESS:  I'm sorry.  I'm looking, then talking
16   sideways.
17   A.  Well, let's start with general trust law principles.  This
18   isn't a general trust.  This is a very unique bird.  The Indian
19   Trust is very unique.  Almost nothing standard could be applied
20   to this unique setting.  You have a probate that's initiated by
21   the government, and prosecuted and pushed through by the
22   government, with virtually no one representing the Indians.  So
23   as a consequence, you already have a non-general situation.
24            Let's go to the next, "Support the assumption of
25   correctness of any property distribution."  Well, our order
2016
 1   applies to the assets that are attached to it that were made
 2   part of the record during the probate, and to no others.
 3   Because what occurs then is, if there are other assets, or
 4   assets that were not included, or assets that were improperly
 5   included, the Bureau of Indian Affairs prepares modifications of
 6   that and submits them.  So the program agency does the -- the
 7   manager, the custodian, performs those functions and feeds them
 8   to the judge.
 9            So it says, "Support the assumption of correctness of
10   any property distribution," then "to a current account holder."
11   Our order would only pertain to that which was before the judge
12   at that time.
13   Q.  You've described modifications to the probate orders.  Is
14   that a common process, or uncommon?
15   A.  Unbelievably common.
16   Q.  And why is that?
17   A.  Because the records are out of date, not posted.  You know,
18   you have too many duties, too many people trying to perform too
19   many duties, not enough arms and legs.
20   Q.  So as additional information comes in, your probate orders
21   are modified to reflect --
22   A.  Right.  There is no -- it's not a finite activity.  It can
23   expand.
24   Q.  I want to change the subject and turn to what are commonly
25   referred to as Youpee interests.  Were there two Youpee
2017
 1   decisions?
 2   A.  Yes.
 3   Q.  When was the first one?
 4   A.  1987.  Oh no, there was Hodel, which was the '83 two percent
 5   rule; then there was the '97 Youpee two percent.  It was the
 6   1984 amendment decision.
 7   Q.  The earlier decision, how did that affect the probate
 8   process?
 9   A.  Oh, my.  The decision, we immediately desisted -- you know,
10   ceased and desisted from doing probate and dedicated ourselves
11   to restoring those interests.  Would you like to hear how?
12   Q.  Certainly.
13   A.  We called in help from the Bureau of Indian Affairs agency
14   offices, we got typewriters, and we all sat down and started
15   modifying -- issuing orders of modification.
16   Q.  And that was to bring escheated interests back into the
17   estate?
18   A.  Right.
19   Q.  What if any concern did you have, as a probate judge, as to
20   whether that escheated statute would be held unconstitutional?
21   A.  I told the department prior to its enactment that it was
22   unconstitutional because it was an uncompensated taking.  And
23   from that point on, I ceased to be included in the loop.
24   Q.  What if any provision did you make for that in your probate
25   orders?
2018
 1   A.  Well, we learned a lot from that.  We learned an awful lot,
 2   because we knew we didn't want to have to sit down and do this
 3   army of modification again.  So I began writing alternative
 4   contingent dispositions that said to the effect of, if an
 5   interest is held, if the interest was held unconstitutional,
 6   then the property will go, if it's an intestate order, to the
 7   heirs at law as named in the order.  Or, if it was a will case,
 8   would go specifically to X.  And this would be determined by the
 9   content of the will at issue.
10   Q.  So you actually anticipated the possibility of --
11   A.  Oh, absolutely.  Because it only changed -- it was a
12   cosmetic change in the Act.  It didn't change the fundamental
13   underlying problem, which was the uncompensated taking.  So we
14   knew it was coming, so this time, we just geared up for it
15   better.
16   Q.  So when the decision came down in the '80s, was it addressed
17   by BIA?
18   A.  Well, Kevin Gover issued a -- well, in the '80s,
19   immediately, we immediately set about restoration.
20   Q.  What about the decision in Youpee in the late '90s?  How was
21   that handled?
22   A.  That turned into a battle.  And I'm not really sure who all
23   was involved, but I know who theoretically won, and that was the
24   landowners.  Because Kevin Gover issued a letter in 1998
25   directing BIA to restore the two percent interest that had been
2019
 1   improperly held in limbo, or improperly given to the tribes
 2   under the 1984 version of the Indian Land Consolidation Act,
 3   two percent rule.
 4   Q.  So the decision in Youpee was in 1997?
 5   A.  Yes.
 6   Q.  And then in 1998, Kevin Gover ordered the return of the --
 7   A.  Right.
 8   Q.  -- interests?
 9   A.  Right.
10   Q.  And has that happened?
11   A.  Well, now, that would be interesting, because we can't get
12   data.  That was one of the three things that I asked Jim Cason:
13   Which probate backlog, which posting backlog, and how many of
14   the two percent interests remain unrestored?  And it's almost
15   like a state secret.
16   Q.  And what is the last information you had on the number of
17   unrestored Youpee interests?
18   A.  The report that Kevin Gover issued said 81,000 interests in
19   over 15,000 estates.  But what that didn't say was if that was
20   the total or the number that was unrestored.  So his letter did
21   not differentiate.  He didn't provide that degree of
22   specificity.
23   Q.  What effect do the escheated interests have on the title
24   records of BIA --
25   A.  -- title.  Because you have -- go back to the vesting of
2020
 1   interest vest.  The effective transfer date for property as
 2   determined in probate -- probate is a ministerial action.  Date
 3   of death is the legal effective date for the transfer.  So you
 4   have the ministerial transfer through an administrative
 5   proceeding, quasi-judicial, that relates back to the moment of
 6   death.  And it relates back so that you don't have a hole in the
 7   title.
 8            So if you have title directed to a party that's been
 9   determined not entitled to receive it, but it's recorded in
10   them, and you have by operation a law because we've named the
11   takers in the order, if you have them automatically legally
12   entitled to it, you basically have wrong recordation.
13            So you have this person named to be the owner and this
14   person who is legally entitled to it.  So therefore it's
15   clouded.  And there would be certain transactions that would be
16   affected by that.
17   Q.  Do you have any understanding as to BIA's position as to why
18   the Youpee interests have not been returned to the estates or to
19   the proper owners?
20            MR. KIRSCHMAN:  Objection.  Lack of foundation,
21   hearsay.
22            THE COURT:  I would like to hear her answer.
23   A.  I don't think you do want to hear my answer.  If I have your
24   permission, I'll say it.
25            THE COURT:  Say it.
2021
 1   A.  Pig-headed.  Actually, the plan -- they made them a priority
 2   in the Indian Land Consolidation Act of 2000.  Instead of acting
 3   upon the Supreme Court decisions that said it's void, you know,
 4   that it's unconstitutional, they went after them, targeted them
 5   for acquisition.  But they haven't -- to my knowledge, have not
 6   acquired them all.
 7            But it's almost like flypaper.  These interests -- and
 8   my group, the Indian land working group, is that we're very
 9   concerned about this.  Because we have practical reasons for
10   everything, every position we take, and the practical reason in
11   this case is that you are depriving someone of an asset that is
12   theirs.  They're legally entitled to it by Supreme Court case
13   law, and they want it.
14   Q.  Based on your understanding, what is the BIA's position
15   regarding the Youpee case?  Is it retroactive or not?
16            MR. KIRSCHMAN:  Same objections.
17            THE COURT:  Overruled.
18   A.  They've changed their position.  It is my understanding that
19   somebody concocted a theory that holding a statute
20   unconstitutional wasn't retroactive, which was not the position
21   that they took -- that we took in the invalidation of the '83
22   version, in 1987.
23            So you have just -- what it is, is two different
24   administrations basically taking two different positions on
25   something; one acting upon their view, and the other acting upon
2022
 1   their view, apparently.
 2            MR. SMITH:  Your Honor, I have no further questions.
 3            THE COURT:  All right.  Judge Willett, I'm not sure I
 4   understand that chart of yours that shows the three columns of
 5   activity.  What happens to income from allotment property or
 6   property owned by a deceased Indian?
 7            THE WITNESS:  The assets are frozen.  Once the death is
 8   reported --
 9            THE COURT:  Does it go into a Special Deposit Account,
10   do you know?
11            THE WITNESS:  Let me clarify something.  I didn't do
12   inter vivos work, which means I didn't do the active management
13   or anything about that.  Assets are frozen as of the date of
14   death, and so essentially they would stay in that decedent's IIM
15   account.  Special Deposits are for other types of activities.
16   And so the IIM account of that person is effectively frozen as
17   of the date of death.
18            THE COURT:  The assets build up -- or the income, to
19   the extent there is income, builds up in the account --
20            THE WITNESS:  Right.
21            THE COURT:  -- until it's distributed --
22            THE WITNESS:  Right.
23            THE COURT:  -- by a probate --
24            THE WITNESS:  Yes.  Because our order is the release
25   and transfer.  That is what I was -- talking back to the
2023
 1   relation back, we declare who takes what, how much, and in what
 2   order.  And that may be years down the road, but it relates back
 3   to the moment of death, and so the money would be distributed
 4   according to the order.
 5            And the cash on hand at death would be like a separate
 6   asset pot.  And then the money that came in after death would go
 7   to whoever is designated to receive it, if it were under a will,
 8   or in the proportion you were entitled to it, if you were taking
 9   an interest at law.
10            THE COURT:  And you didn't have an answer to the
11   question how long this process takes.  And you said it varies,
12   of course, from time to time.  But I assume there's some sort of
13   statistical --
14            THE WITNESS:  I didn't have that information.  I can
15   give you an idea based upon my experience.
16            THE COURT:  How about a range?  I mean, it could be
17   wrapped up in six months, it might take five years, something
18   like that?
19            THE WITNESS:  I had people, I had agencies come in and
20   say, "We'll waive notice, we'll waive the 20-day posting, we'll
21   bring the old people down from Wallapi, we'll hold the hearing
22   today, I'll issue the order today," and they would do the
23   distribution when they got back.  So you can do it that fast.
24            Or you can have one -- we had $4,000 in an account for
25   two kids that had been kidnapped by some missionaries, and we
2024
 1   couldn't find these kids.  We knew they existed, and we knew
 2   they were not adopted, but we couldn't find the kids.  So this
 3   thing went on for 15 years.
 4            THE COURT:  Okay.  Thank you, ma'am.
 5            THE WITNESS:  All right.  Thank you.
 6                          CROSS EXAMINATION
 7   BY MR. KIRSCHMAN:
 8   Q.  Good morning, Judge Willett.
 9   A.  How are you?
10   Q.  I'm all right.  I have just a few questions for you.  At one
11   point regarding the probate process, you I believe testified
12   that there was no one representing the Indian.  Is that correct?
13   A.  Yes, it is true.
14   Q.  In fact, in probate proceedings, one of the roles of the
15   Administrative Law Judge is to consider the well-being of the
16   Indian in the probate process.  Correct?
17   A.  Yes.  The estate of Charles Webster Hill, that was my case.
18   Q.  I reviewed it recently.  So in fact, in this proceeding, the
19   Administrative Law Judge is looking over the interests of the
20   individual Indian?
21   A.  Well, let's qualify that.  The judge is acting pursuant to
22   the Administrative Procedure Act, and we are required to develop
23   the record pro and con on all material issues.  And what would
24   be material would be dependent upon the facts of each case.
25   Q.  That's right.  But you make sure, to the extent possible,
2025
 1   that relevant material that favors or assists the Indian in
 2   developing the record is there?
 3   A.  Depending upon the issues involved in that particular
 4   proceeding.
 5   Q.  Right.  And you also testified -- well, let me back up.
 6            You were asked whether an Administrative Law Judge
 7   reviews assets in the trust.  Do you recall that?
 8   A.  Yes.
 9   Q.  And I believe you said nothing is reviewed, and then you
10   qualified that by saying something to the effect of:  Unless an
11   issue is raised by a party, and then the judge looks at the
12   assets in the trust.  Did I correctly summarize what you said?
13   A.  It doesn't sound like what I said.  It sounds like a version
14   of what I said.  But I'm not sure I said it exactly that way.
15   There's something not ringing right about your representation of
16   my comment.
17   Q.  And I'm sorry.  I don't have immediate transcript in front
18   of me, so I'm paraphrasing, basically.
19   A.  I don't mind clarifying it.  But I believe the question I
20   was asked had to do with source documents.
21   Q.  Okay.  Could you -- and your response to that question,
22   then?  I don't want to miss --
23   A.  No, we don't.  For example, lease documents, we would not --
24   no, we don't see those.
25   Q.  You would not --
2026
 1   A.  No.
 2   Q.  I'm sorry, I didn't hear your answer.
 3   A.  NO.
 4   Q.  You would not --
 5   A.  We would not see a lease document.
 6   Q.  You would not see a lease document?
 7   A.  The only lease documents I ever saw during the conduct of
 8   probate did not have anything to do with money.  They were home
 9   site leases, they were handled under a Tribal administrative
10   program.  They did not have anything to do with money per se.
11   They were strictly a realty related to units of land that were
12   superimposed upon the allotments.
13   Q.  Now, it is true, is it not, that the inventory that is
14   listed on the form OH-7 can be challenged by heirs.  Correct?
15   A.  Anything in that record can be challenged by an heir.
16   Q.  And such background documents can be presented and then
17   considered by you, by the heirs?
18   A.  If they wish to present something to be considered, I would
19   consider it.
20   Q.  And it is correct to state, isn't it, that under the case
21   law, a notice of disputed estate inventory can be presented to
22   the Court, and then the Court will review the dispute related to
23   the estate inventory.  Correct?
24   A.  Well, in the near two decades that I did it, I never had
25   that submitted to me.  So I will take your word for it.
2027
 1   Q.  Are you aware of the standing order from the board related
 2   to the case of Douglas Leonard --
 3   A.  Ducheneaux?
 4   Q.  -- Ducheneaux?
 5   A.  Yes.  I never did a Ducheneaux proceeding.  I did another
 6   version of that process, but I didn't do Ducheneaux proceedings.
 7   Q.  That Ducheneaux proceeding has been standard since at least
 8   1985.  Correct?
 9   A.  It has been out there since 1985, but I don't know -- it was
10   more of a Northern Plains process that didn't get wide sway in
11   all areas of OHA.
12   Q.  It is the law in all areas, is it not?
13   A.  I found the directive to be a universal mandate outside the
14   context of the specific case before it to be a little bit
15   overreaching by the board.  But --
16   Q.  You view it as possibly overreaching by the board, but that
17   is the mandate of the board, as you state.  Correct?
18   A.  It is the mandate in that case, yes, it is.
19   Q.  And now, I believe you've just testified you used some
20   alternative procedures other than the procedures set out in
21   Ducheneaux?
22   A.  Yes.
23   Q.  Is that what you just said?
24   A.  And I'm going to tell you, they were tedious.  They were
25   tedious and really not helpful.  What I would do --
2028
 1   Q.  I'm sorry, did you say tedious?
 2   A.  They were tedious and not helpful, when you can get to the
 3   bottom line much faster.  And the structure that they came up
 4   with really was at odds with on-the-ground reality.
 5            My process would be -- could we go back to my
 6   three-pronged chart?
 7   Q.  Certainly.
 8            MR. KIRSCHMAN:  Whoever has controls.  Technology.
 9   A.  Because one thing that I would like for you to know --
10            MR. KIRSCHMAN:  I'm sorry.
11            One moment, Your Honor.  Just so the record is clear,
12   this is Plaintiffs' Exhibit 4512 we're looking at.  And it's the
13   chart that begins "Probate process."
14   BY MR. KIRSCHMAN:
15   Q.  Is that correct?
16   A.  Yes, it is.
17   Q.  Okay, thank you.  Go ahead.
18   A.  Well, so that you'll understand the -- you know, the
19   universal mandate in a single case, about which there was great
20   disagreement amongst the corps of judges, what you're trying to
21   do is determine the accuracy of a record.
22   Q.  Right.
23   A.  There are two components to probate:  There's the data
24   developer, the custodian, the program, Bureau of Indian Affairs;
25   and there's the adjudicator.  And the adjudicator follows the
2029
 1   APA.
 2            If you go to my chart, you will see that -- let's go to
 3   the box of ALJ and IPJ, and you will see the hearing.  So we
 4   would be on record at a hearing, and let's say somebody said, "I
 5   think there ought to be more land in there."  So what I would
 6   do -- the probate clerk would be sitting there or the realty
 7   person would be sitting there.  And I would say, "Why don't you
 8   go pull their records, and let's see what they've got?"  Or, in
 9   a particular case that I had, I halted proceedings, I determined
10   a procedure by which we could determine what part of the estate
11   was disputed or not, I sent the disputed portion back to the
12   Bureau of Indian Affairs for development.  They made a report,
13   an actual decision concerning the accuracy of particular title
14   records, and I incorporated that into mine.
15            But no, I did not do that, because we do not have the
16   records.  The Bureau of Indian Affairs is the custodian and the
17   manager, so that activity -- it is their responsibility under
18   our structure to provide the data that is needed to make
19   determinations.
20   Q.  Okay.  So you refer it back to the BIA to develop that
21   information, and then in your particular case, the BIA then
22   presents that additional information back to you?
23   A.  In the form of a decision.
24   Q.  In the form of a decision.  Okay.
25            And do you take evidence from anyone disputing the
2030
 1   inventory, and then offer that back to BIA to use?
 2   A.  Give me an example, please.
 3   Q.  Well, someone contests the inventory and comes to you with
 4   letters from heirs or relatives saying, "I believe I have an
 5   interest in this 26-acre allotment based on this letter from the
 6   deceased."
 7   A.  I would do one of two things.  I would refer them to realty,
 8   because we would usually be holding the probate hearing in
 9   realty.  I would refer them to the realty officer, and have them
10   go over the records with them there.
11            Or, in an appropriate case - it would depend entirely
12   on the circumstances at hand - I would have them maybe come in
13   and bring me the records, to see if something had been omitted.
14            But if someone questions something and it's not, for
15   example, the notorious fishing expeditions, let's say we have a
16   genuine inquiry, concern that's concrete and identifiable, then
17   I will do what I can to have the Bureau of Indian Affairs inform
18   me and/or the individuals.
19            But it was the function of the program side to handle
20   those processes.  And if there was a hole in it, then I would
21   naturally want them to update my record.
22   Q.  Thank you for that clarification.
23   A.  Uh-huh.
24   Q.  I believe you may have addressed this on direct, or with the
25   Court, but I would like to ask you.  As you served as an
2031
 1   Administrative Law Judge, you saw cases where property was
 2   initially omitted from the estate, and then it comes to the
 3   estate later after the probate had been closed?
 4   A.  Yes, very much.
 5   Q.  And that's what you were discussing when you noticed that
 6   there were often modifications to the probate orders?
 7   A.  Right.
 8   Q.  As a result, then, once the omitted property is brought
 9   before you, that omitted property is then distributed among the
10   heirs eventually.  Right?
11   A.  Generally.  There could be some qualifications on that.
12   Q.  Okay.
13   A.  All right.
14   Q.  Is it also true that, when it comes to this omitted
15   property, creditors can no longer claim it because the case
16   before the OHA was closed?
17   A.  They have -- they had to file, under our system --
18   Q.  "They" being?
19   A.  The creditor.
20   Q.  Okay, go ahead.
21   A.  I thought that was the antecedent we were referring --
22   Q.  I just want to make it clear.
23   A.  Okay.  The creditor had to file by the conclusion of the
24   first hearing.  And there were time frames for leaving the
25   record -- now, you remember, I'm talking pre-2000 with
2032
 1   High-Level Implementation Plan.  The creditor had to file by the
 2   conclusion of the first hearing, or thereafter be barred, and
 3   then there was a payout period for that person.
 4            If you were a general creditor, you had a three-year
 5   payout life, and if you were a preferred creditor you had a
 6   seven-year payout life.  If you were the United States, you
 7   obligated the estate in perpetuity.
 8            So there were different kinds of creditors for
 9   different periods, with different sets of rules.
10   Q.  I see.  You also testified about probate matters in
11   Oklahoma.  Correct?
12   A.  Yes.
13   Q.  And is this a correct statement:  That, as a result of a
14   1947 federal statute and U.S. statute, the Five Civilized Tribes
15   probate have occurred in Oklahoma state courts?
16   A.  Yes.
17   Q.  And they are decided under Oklahoma state law?
18   A.  Yes.
19   Q.  And that's a matter of federal statute.  Right?
20   A.  Now, only the Five Civilized Tribes, yes.
21   Q.  I'm sorry?
22   A.  Did you say the Five Civilized Tribes?
23   Q.  Yes.
24   A.  Yes, that is true.
25   Q.  So probate matters are handled differently than in Oklahoma.
2033
 1   Correct?
 2   A.  For Osage, and also for Five Civilized Tribes, yes.
 3   Q.  And you did not deal with probate cases related to those
 4   five tribes, the Five Civilized Tribes.  Correct?
 5   A.  Not officially, no.
 6   Q.  Okay.
 7            MR. KIRSCHMAN:  One moment, Your Honor.
 8            THE COURT:  All right.
 9            MR. KIRSCHMAN:  Thank you, Judge Willett.
10            No further questions from the government, Your Honor.
11            MR. SMITH:  No further questions.
12            THE COURT:  Judge Willett, it's been a pleasure to have
13   you in my courtroom.
14            THE WITNESS:  Thank you very much, sir.
15            THE COURT:  Thank you, ma'am, you are excused.
16            MR. GINGOLD:  Good morning, Your Honor.
17            THE COURT:  Good morning.
18            MR. GINGOLD:  Our next witness is Joe Christie.
19               (Oath administered by Courtroom Deputy.)
20            MR. GINGOLD:  Your Honor, may I ask this Court's
21   indulgence?  Mr.  Christie has a terrible back problem.  He
22   traveled to Washington from Albuquerque in great pain, and it
23   may be we may have to have briefer sessions during the
24   examination, Your Honor.
25            THE COURT:  That's fine.  If there's anything we can do
2034
 1   to make you more comfortable, let us know, Mr. Christie.  That
 2   chair is not the most comfortable chair in the world, is it?
 3            THE WITNESS:  No, it's not.  But we'll make do.
 4            MR. GINGOLD:  I think it's more comfortable than the
 5   benches in the rear.
 6      (JOE CHRISTIE, PLAINTIFF witness, having been duly sworn,
 7                        testified as follows:)
 8                         DIRECT EXAMINATION
 9   BY MR. GINGOLD:
10   Q.  Mr. Christie, please state where you live.
11   A.  I live in Albuquerque, New Mexico at 11704 San Victorio
12   Northeast, Albuquerque, New Mexico.
13   Q.  And what is your current position?
14   A.  I currently am the president of Chata Consulting.
15   Q.  How long have you been president of Chata Consulting?
16   A.  Since 2001.
17   Q.  What did you do prior to 2001?
18   A.  I worked for the Bureau of Indian Affairs, and for the
19   Office of Special Trustee.
20   Q.  Could you -- how long were you employed -- Bureau of Indian
21   Affairs is part of the Department of the Interior.  Correct?
22   A.  That's correct.
23   Q.  How long were you employed at the Department of the
24   Interior?
25   A.  I started in 1972, and retired at the end of December of
2035
 1   '99.  So about 27 years.
 2   Q.  Could you please briefly go through the positions you held
 3   at the Department of Interior?
 4   A.  I started, as I said, in 1972.  I started as a teacher at
 5   John F. Kennedy Day School.  Then I moved to Seneca Indian
 6   School as student activities director, and then principal.
 7            Following that, I became -- I came to Washington, D.C.
 8   as part of the departmental management training program.  That
 9   was in '76-'77.  After that, I began work for the planning
10   support group in Billings, Montana, and social analyst for
11   reservation-based studies for the five regions of the northwest.
12   Then I moved to Albuquerque, New Mexico, where I was the program
13   implementation specialist for the Integrated Records Management
14   System, IRMS.
15            Following that, I went to Fort Totten, North Dakota as
16   superintendent of the reservation.  And then down to Winnebago,
17   Nebraska, where I was superintendent of four different
18   reservations.
19            Then out to -- the next job was Northern California,
20   where we had 23 reservations.  And then from there to
21   Washington, D.C. to implement the anti-drug legislation that was
22   passed in '86.  From there I stayed in D.C. and became deputy
23   director for Trust and Economic Development, and then took the
24   position as deputy director for education.  That's when I moved
25   into the SES program, became an SESer.
2036
 1            Then in 1992 I was asked to head up the Tribal
 2   Reconciliation Project in Albuquerque, and so I moved to
 3   Albuquerque officially in January of 1993.  And stayed -- as
 4   part of that, I was the deputy special assistant to the deputy
 5   commissioner, Hilda Manuel, until the passage of the legislation
 6   for creating the Office of Special Trustee.
 7            And then in about '96, '97, I was transferred as
 8   deputy -- as a special assistant to Mr. Holman, the special
 9   trustee, and stayed in that position until December of 1998,
10   when I was transferred as the acting director of the Office of
11   Indian Education.  And stayed in that position until October,
12   November of '99.  And then retired in December of 1999.
13   Q.  Thank you, Mr. Christie.
14            Mr. Christie --
15            THE COURT:  You couldn't keep a job, could you,
16   Mr. Christie?
17            THE WITNESS:  Had a tough time holding down a job.
18   BY MR. GINGOLD:
19   Q.  But for the time you were transferred to the Office of the
20   Special Trustee, is it correct that your career in the
21   Department of Interior was at the Bureau of Indian Affairs?
22   A.  Yes, until about '96, '97.  And that's when I transferred
23   over to the Office of Special Trustee.
24   Q.  And when you stated you moved from Winnebago Agency as a
25   superintendent to Northern California, you were also the
2037
 1   superintendent of the Northern California Agency, were you not?
 2   A.  Yes, that's correct, I was superintendent.  We had
 3   23 different reservations.  In California, you have a
 4   reservation at Hupa, and then the rest of them were rancherias.
 5            MR. GINGOLD:  Your Honor, it is anticipated that
 6   Mr. Christie will be testifying regarding deficiencies in and
 7   problems with Interior's hard copy and electronic Trust records,
 8   and obstacles with regard to inadequate reconciliation or
 9   accounting.
10            THE COURT:  All right.
11   BY MR. GINGOLD:
12   Q.  Mr. Christie, I would like to start with an easy issue
13   first, and the issue is direct pay.  What experience if any did
14   you have, in your positions at the Department of Interior, with
15   regard to direct pay Trust beneficiaries?
16   A.  Direct pay was an issue that I had to deal with when I was
17   at Winnebago, Nebraska.  And there was -- other than the
18   regulations, what I did at Winnebago, Nebraska was, was that
19   since the government was a party to the lease, I required my
20   office to obtain copies of the check, to verify that payment was
21   made to the beneficiary so that we would be assured that payment
22   had been made to the landowner.
23            And since we were a party to the lease and they were a
24   party to the lease, the issue never came up.  But if we needed
25   to verify that the canceled check was indeed made out to and
2038
 1   cashed by the beneficiary, we had copies of their signature on
 2   the lease.
 3   Q.  Did you treat, as the superintendent in Winnebago, direct
 4   pay beneficiaries any differently than any other Individual
 5   Indian Trust beneficiary?
 6   A.  No, it was my understanding that since we were the people
 7   who were involved in the lease, that we had the responsibility
 8   to that.
 9            Now, I might also mention that that was one form of
10   direct pay.  There was another form of direct pay which was crop
11   share.  And so, since that was a part of the lease, I had my
12   lease compliance officer in that instance to go out and monitor
13   the harvesting of the crop, and the transportation of the crop
14   to the co-op, and the measuring of the crops and the ticket that
15   resulted of that, so that we knew exactly how much crop was
16   taken off of there, and what the volume of that was, so that we
17   then could be assured that the Indian beneficiary received their
18   share of that crop share.
19   Q.  Now, could you explain what crop share is?
20   A.  Well, what you do is that the Indian beneficiary, rather
21   than taking a cash payout, would get a percentage of the crop.
22   And so if they were growing short grain, it was harvested in
23   bushels and then transported to the co-op, where they would then
24   take that grain, measure it, and give a ticket as to the volume
25   of it.  And then we would -- based on the total volume of the
2039
 1   crop taken off, we would check to make sure that they in fact
 2   got their proportionate share.
 3   Q.  You made -- you stated during your testimony that you did
 4   have copies of the checks.  Correct?
 5   A.  Yes.  I required my realty office to get a copy of the
 6   canceled check and put it into the lease folder so that we would
 7   have a copy of that.
 8   Q.  Were you able to determine whether or not the signature or
 9   the endorsement was the Trust beneficiary's signature?
10   A.  Well, we didn't have -- to my memory, we never had that
11   issue come up.  But if we had have, we had their signature on
12   the lease, and it would have been on the endorsement side of the
13   check.  But that issue never came up, so we never had to make
14   that check.
15   Q.  So it was unnecessary to have a signature card because you
16   had the signature on the lease.  Correct?
17   A.  That's correct.
18   Q.  I would like to talk to you about the IRMS system and your
19   role.  Can you please describe what your role was in the --
20            THE COURT:  I'm sorry, Mr. Gingold.
21            Before we leave the subject of direct pay, you required
22   your staff to do this in Winnebago.  Do you have any sense of
23   whether you were unique among the people working, doing the same
24   work in other areas at that time?  That wasn't done pursuant to
25   any nationwide directive, was it?
2040
 1            THE WITNESS:  No, that was not.  But that was the way I
 2   handled it as the superintendent.  I can't speak to how other
 3   superintendents handled it.
 4            THE COURT:  All right.
 5   BY MR. GINGOLD:
 6   Q.  With respect to the IRMS system, could you please explain to
 7   the Court what your role was with regard to the implementation
 8   of IRMS?
 9   A.  Right.  When I left Billings, Montana, I was selected to be
10   the program implementation specialist for IRMS in Albuquerque,
11   New Mexico.  And my job was to lay out the planning on how the
12   implementation was going to take place, and to conduct training
13   on the IRMS system.
14            Since it was a voluntary system at that time, we were
15   out trying to essentially sell the product and let them know how
16   it worked and what was the usefulness of the IRMS system.
17   Q.  And what date, what period of time was this when you were
18   trying to sell IRMS?  Was it to the superintendents?
19   A.  It was to the regions and to the superintendents.  I went
20   down there, I think in 1978, and I left there in early 1981 when
21   I became superintendent at Fort Totten in North Dakota.
22   Q.  And were you aware of what the IRMS system was designed to
23   do?
24   A.  Yes, I was.
25   Q.  What was your understanding?
2041
 1   A.  The system was designed to load leases, people, and
 2   ownership, and then it had a subsystem of IIM.
 3            So as you loaded the ownership information, it was used
 4   to then take the leases, which you would have in there which
 5   would produce your 90-day notices, it would produce other things
 6   so that the agency wouldn't have to do that themselves, and then
 7   to take the collections.
 8            And then, utilizing the People system, which is also
 9   tied to the IIM system, you would then take the ownership and
10   the lease and the amount of money collected, you would run the
11   program to do the distribution of the funds.
12            At that point in time, you would create a distribution
13   worksheet which would lay out for you what owners were involved
14   in the lease, what their percentage of ownership, how much funds
15   you collected for the lease, how that was then distributed via
16   the ownership record and the percentage against the amount
17   collected, and then how much was put into the accounts.
18            Since it was a realtime system, essentially every time
19   that you ran the lease distribution system it would produce this
20   distribution worksheet.  And since it was a dynamic system and
21   we didn't keep historical ownership, at that point in time it
22   was a snapshot of who the owners were in the system and their
23   percentage of ownership.
24   Q.  Is the distribution worksheet, in your opinion, a key
25   document?
2042
 1   A.  Well, because it's a dynamic system and the ownership
 2   changes, there is no historical data in IRMS.  In other words,
 3   you can't go a year from then, and then try to work yourself
 4   back, because there was no historical data.
 5            Yes, the worksheet distribution worksheet is the
 6   critical document to verify who was considered the owners, the
 7   amount of funds that were collected, and who it was distributed
 8   to.  It's the only document, by the way, that does that.
 9   Q.  Are there any alternative documents that would be an
10   adequate substitute for that?
11   A.  Not within the IRMS system.
12   Q.  Were the proceeds from the sale of timber moved through the
13   IRMS system?
14   A.  To my knowledge, we never did use the -- timber was never
15   moved through the IRMS system, other than putting it into the
16   IIM system.
17   Q.  And could you explain that?
18   A.  Timber -- the regulations in timber, and at Hupa we had an
19   extremely large timber program.  And at Winnebago we had a
20   timber program, but it was hardwood timber --
21   Q.  Let me just stop you a minute.  Hupa was when you were at
22   Northern California?
23   A.  Northern California, right.
24            So the requirements were that the person or company
25   that got the timber contract, they were required to put their
2043
 1   money up front, a certain percentage of the money up front.  So
 2   that would go into the IIM system, into a Special Deposit
 3   Account.
 4            And then, as timber was taken off of the land and then
 5   scaled, as the logs come down, a scaling process where they
 6   develop a scaling ticket that tells you the volume and the
 7   price, and what type of standard was being used to determine
 8   that.
 9            And then, based upon that volume of where you convert
10   the logs to a specific dollar amount, then from there you would
11   go back into the Special Deposit Account and make the transfer
12   out of the Special Deposit Account to the owners in the amount
13   that was the total of the scaling tickets for that drawdown.
14            And then, if the Special Deposit Account fell below a
15   threshold level, then the company would have to come in and put
16   more money in there.  It always required that the company or the
17   person who has the contract maintain at least a minimal amount
18   in the Special Deposit Account.
19   Q.  And the scaling tickets were essential -- is it true the
20   scaling tickets were essential to determine the accuracy of the
21   payment?
22   A.  That's correct.  The scaling ticket is the lowest point of
23   conversion of the logging resource into funds.
24   Q.  To your knowledge, was the scaling ticket put on an
25   electronic system?
2044
 1   A.  To my knowledge, no.  At least, not during the period that I
 2   was associated with it.
 3   Q.  To your knowledge, was the scaling ticket, were there
 4   multiple copies of that ticket made?
 5   A.  My understanding was that there might have been one or two
 6   copies of it.  But it wasn't like a bill for collection.  There
 7   wasn't seven parts to it, no.
 8   Q.  And so this is similar in many respects to what you
 9   characterize as the distribution worksheet, where there was one
10   copy of that sheet.  Is that correct?
11            MR. QUINN:  Objection.  Leading, Your Honor.
12            THE COURT:  The objection is overruled.
13   A.  The scaling ticket was the lowest point of conversion, and
14   so it was a document that needed to be protected, just like the
15   distribution worksheet was a one-time document for that specific
16   distribution and needed to be protected.
17   BY MR. GINGOLD:
18   Q.  Now, did you have any knowledge as to whether or not these
19   documents were routinely protected?
20   A.  As part of the Tribal reconciliation, we were in the records
21   search process, and we were looking for all kinds of records
22   relate to the Trust asset.
23            One of the things that we found in this process was
24   that the scaling ticket was being routinely destroyed.  In those
25   locations where they did preserve them and then sent them to
2045
 1   Federal Records Centers, one particular Federal Records Center,
 2   in conjunction with its own policy, the Seattle Federal Records
 3   Center, were routinely destroying the scaling tickets also.
 4            Once we found that out, we passed that information
 5   along to the deputy commissioner and asked the deputy
 6   commissioner to halt all destruction of any Trust record.
 7   Q.  I would like to ask you to review a document which is
 8   Plaintiffs' Exhibit 350, PPX-350.
 9            As you see, Mr. Christie, this is a memorandum dated
10   March 7th, 1995.
11   A.  Uh-huh.
12   Q.  It is to area directors, agency superintendents, from Deputy
13   Commissioner Indian Affairs, Hilda Manual.  Subject:
14   "Preservation of records vital to Trust funds reconciliation."
15            Have you ever seen this memorandum before,
16   Mr. Christie?
17   A.  Yes, I have.  This is the recommendation -- I was working
18   for the deputy commissioner for Indian Affairs when I was doing
19   the Tribal reconciliation, so she was my boss.
20   Q.  So were you responsible for the issuance of this, to your
21   knowledge?
22   A.  This is who I reported the incident to, and had recommended
23   that she put out such a policy, yes.
24   Q.  And in the first paragraph it states, "It has come to my
25   attention that federal records relating to financial and lease
2046
 1   documents are being destroyed at the agencies."
 2            That was your understanding at the time.  Is that
 3   correct?
 4   A.  That's correct.
 5   Q.  And do you know why federal records relating to financial
 6   and lease documents were being destroyed at the agencies?
 7   A.  Well, the agencies were not -- records management in the
 8   Bureau of Indian Affairs was not a high priority, and so this
 9   whole issue really didn't come to light until we started doing
10   the Tribal reconciliation.
11            And so funding for records management, even though
12   there may have been policies in place, there was not very much
13   training or anything like that.  So like I say, it was very low
14   priority.
15            And so as a result, people had -- they were nonstandard
16   in how they dealt with records throughout the Bureau of Indian
17   Affairs, at the agencies and at the regional offices, or area
18   offices, as they were called at that time.
19            And so it was very important, once we determined this
20   as part of our records search, that we try to halt any
21   destruction of records out there.
22            THE COURT:  Mr. Christie, would you like to stretch
23   your back?
24            THE WITNESS:  No, I'm fine right now, sir.
25            THE COURT:  Well, I would like to stretch mine.  We'll
2047
 1   be in recess for 10 minutes.
 2            (Recess taken at.11:21 a.m.)
 3            THE COURT:  All right, sir.
 4            MR. GINGOLD:  Thank you, Your Honor.
 5   BY MR. GINGOLD:
 6   Q.  Mr. Christie, one question I wanted to ask you when you
 7   described your background and experience.  Are you an enrolled
 8   member of a tribe?
 9   A.  Yes, I'm an enrolled member of the Choctaw Nation of
10   Oklahoma.
11   Q.  Thank you.  With regard to Plaintiffs' 350, the second
12   sentence that was identified in the first paragraph is, "Of
13   particular concern are those records relating to leases required
14   in the reconciliation process, specifically scaling tickets for
15   timber, run tickets for oil, and distribution worksheets for
16   grazing."
17            Is that what you observed when you informed the deputy
18   commissioner that something needed to be done to stop records
19   destruction?
20   A.  Yes.  We had asked for the distribution worksheets for IRMS
21   to be -- I don't know how it got interpreted as just for
22   grazing, but there are distribution worksheets for grazing,
23   there are distribution worksheets in IRMS for leases.
24            But yes, that's correct.
25   Q.  So is it correct, then, that the distribution worksheets are
2048
 1   for grazing and for other leases whose revenues are going
 2   through the IRMS system?
 3   A.  Yes.
 4   Q.  And that would include what, to your knowledge?
 5   A.  Well, all forms of leases.  And when we refer to grazing,
 6   that is basically range.  Those are those range programs where
 7   you're figuring AUMs, average -- animal units, monthly animal
 8   units, or we call them animal units monthly, AUMs.
 9            That's one of the reasons why grazing is a little bit
10   different, because of the way it's figured, so that's probably
11   why it's highlighted out there.  And a huge range program up in
12   Aberdeen area, and some in the Billings area.
13   Q.  I would like to read the last sentence in the second
14   paragraph and ask if this is correct:  "This memorandum
15   supersedes any other established policy allowing destruction of
16   records."
17            Mr. Christie, prior to this memorandum, were the BIA
18   superintendents and others actually allowed to destroy Trust
19   records?
20   A.  Yes.  This had to lead -- BIAM-16 was the records management
21   directives for the Bureau of Indian Affairs.  And so that set up
22   what they call a retention register that allowed records to be
23   scheduled to be destroyed and/or moved to the national records
24   centers.
25            So what this did was make sure that no records were
2049
 1   being destroyed, period.
 2   Q.  Was there enforcement of this?
 3   A.  Other than through the regional area directors and the
 4   agency superintendents, there was no program to go out there and
 5   monitor to see how they were doing, other than us going out,
 6   trying to find and collect and bring in the records.
 7   Q.  But that was related to specific projects.  Correct?
 8   A.  That was related to the Tribal reconciliation.
 9   Q.  So that was March 7th, 1995.  Correct?
10   A.  Yes.  I guess, that's the date.  I'd have to look.  But I
11   think it was in 1995.
12            MR. GINGOLD:  If we can just bring it back up.
13   A.  Yes, 1995.
14   BY MR. GINGOLD:
15   Q.  Do you know whether or not the areas and agencies stopped
16   destroying records as a result of this?
17   A.  I couldn't say definitively that they did or didn't.
18   Q.  I'd like to call your attention to another plaintiffs'
19   exhibit, which is PPX-2152.  Have you seen this particular
20   exhibit before, Mr. Christie?
21   A.  Yes, I have.  And I authored it.
22   Q.  As you can see, it's dated May 27th, 1998, and it's to
23   John M. Miller, Paul Homan, Thomas M. Thompson.  Who are they?
24   A.  Right.  Well, Paul Homan, of course, was the special
25   trustee; John worked in that office and so did Mr. Thompson.
2050
 1   Q.  Were you now in the Office of Special Trustee as opposed to
 2   within the office of the deputy commissioner of Indian Affairs?
 3   A.  I think by this time I was.  We had moved my position -- I
 4   was also doing litigation support, and so they had moved my
 5   position over under the special trustee.
 6   Q.  The subject matter of the memorandum is, records MOU
 7   standard for Trust records retention.  What does MOU mean?
 8   A.  That's a memorandum of agreement.
 9   Q.  Between whom?
10   A.  Or memorandum of understanding.  That's between the Office
11   of the Special Trustee and Bureau of Indian Affairs.
12            We were trying to get an agreement with the Bureau of
13   Indian Affairs as to exactly what they were going to do in terms
14   of records and what we were going to do in terms of records so
15   we wouldn't be duplicating efforts, and that that memorandum of
16   understanding would also allow us then to work with them at the
17   agencies and the regional area offices and central offices in
18   going through and working with the records.
19   Q.  So at this time, which is approximately three years after
20   the March 1995 memorandum issued by the deputy commissioner, was
21   there still concern that records weren't being preserved?
22   A.  Well, we were -- again, the Office of Special Trustee, when
23   it was established, was not the most liked agency, and so it was
24   not unusual for the working relationship to be less than
25   cordial.
2051
 1            And so what he were trying to do with the MOU was to
 2   find a way to get more cordiality in the working relationship
 3   between the BIA and OST, and doing that by clarifying and
 4   defining what the roles would be in the records area.
 5   Q.  And how were you going to do that?
 6   A.  Well, this particular memorandum had more to do with the
 7   fact that we had -- we were asking for some standards to be
 8   established that we then could put into the MOU that would give
 9   us a set of minimum standards as to what a Trust record was and
10   how to -- and then have an influence over 16 BIAM as to how long
11   the retention would be for each of those records.
12            And so my staff had been working on a standard that put
13   forward a minimal standard of the life of the trust plus
14   10 years, so that we would then have a threshold level that we
15   would know that these records must be maintained and must be
16   protected.
17   Q.  Now, were there just no standards at all at this point in
18   time?
19   A.  Well, there were record retention levels, but it wasn't
20   necessarily related to the trust aspect.  And there was no
21   definition as to what a trust record was during this time,
22   either.
23            So there was a lot of discussion on our part as to what
24   was and what was not a trust record, and even after -- by the
25   time I left in '99 and retired, or left OST in '98 and then
2052
 1   retired in '99, I was still not aware of any definition of what
 2   a trust record was or how far it extended into the records.
 3   Q.  And was this concern for standardization caused by the work
 4   you were doing with regard to the Arthur Andersen Tribal Trust
 5   Reconciliation Project?
 6   A.  Well, it came out of that.  But we had finished the Tribal
 7   reconciliation and issued the reports in late '95, and then
 8   issued the reports in 1996 and then met with the tribes in '96
 9   and part of '97.  And then we were asked to become a Trust
10   litigation support office.  So we were then looking at all the
11   various trust litigations that were going on and trying to find
12   records for those.
13            We had Little Shell up in Aberdeen was one of those
14   litigations.  We had several other litigations.  I can't
15   remember them all at that time.  So that when Cobell came along
16   in '96, then we just moved right in as a support to try to find
17   the records for Cobell.
18            But this was a result of not only the Trust
19   reconciliation, but all of the other support litigation efforts
20   we had under way, too, was trying to figure out what should be
21   the minimum standards for this.
22   Q.  Now, did you also need to deal with the National Archives?
23   A.  Yes.  Well, NARA is really composed of two different
24   sections.  You've got the Federal Records Centers and then
25   you've got the National Archives.  And so, as an agency, OST or
2053
 1   BIA, as we develop records and we don't need them, let's say, at
 2   our location, at an agency, following -- if we followed the
 3   16 BIAM, we would then box them up and then we would send them
 4   to a Federal Records Center.
 5            But they're still our records, they're the agency's
 6   records at the agency or area.  They're still the agency records
 7   in the Federal Records Center where you send them for storage,
 8   like Seattle.  And then after a certain period of time, they
 9   would move from the Federal Records Center into the Archive.
10            Once they move into the Archive, they're no longer the
11   agency record, they are now captured by the Archive and they are
12   the Archive's record.
13            So for us to be able to get those records back, which
14   we were trying to get back for the Tribal reconciliation, we had
15   to strike an agreement with them and go through set procedures
16   that would allow us to bring the boxes in, go through the boxes,
17   and then denote what records we had utilized.  And then leave
18   markers in there and then repackage those and send them back to
19   the Archive.
20            If we got those records from the Records Center, we
21   could hold on to those records for as long as we wanted to
22   because they were still our records.  But if they were
23   Archives', then they had to go back to the Archives.
24   Q.  And in the first paragraph, the last sentence, which are the
25   last three lines of the paragraph, it says, "NARA only
2054
 1   recognizes historical significance, not Trust responsibility.
 2   So to allow them to set a standard would result in destruction
 3   of trust records in the same manner as in the past."
 4            Did you find that Trust records were being destroyed
 5   routinely?  First paragraph.
 6   A.  Yes.  As I said, if I read...
 7            THE COURT:  The witness may be having difficulty tying
 8   your question to these three lines, like I do.
 9   BY MR. GINGOLD:
10   Q.  When you were dealing with NARA and you were dealing with
11   the issues at NARA, did you also find, based on what you were
12   seeking for the Tribal Trust Reconciliation Project, that NARA
13   was routinely destroying Trust records?
14   A.  That's correct.
15            MR. QUINN:  Objection.  Foundation.
16            THE COURT:  Overruled.
17   A.  That's correct.  And the instance, as I said before, that
18   really brought this to bear was the fact that they had routinely
19   destroyed scaling tickets out of the Seattle office.  And once
20   we found that out, we alerted people throughout our agency and
21   others.
22            Now, it turns out --
23            THE COURT:  So it was NARA that was destroying them,
24   not the Seattle office?
25            THE WITNESS:  Well, Seattle NARA office.  The Federal
2055
 1   Records Center in Seattle.
 2            And they had their own version of how long to keep
 3   records, and so they would then -- what they told us was that
 4   they had sent notification down to the agency, and the agency
 5   didn't respond to those notifications, so they went ahead and
 6   destroyed those records.
 7   BY MR. GINGOLD:
 8   Q.  Isn't it true that NARA's record destruction schedule was
 9   based on what was reported to NARA by the Interior Department?
10            MR. QUINN:  Objection.  Leading.
11            THE COURT:  Sustained.
12   BY MR. GINGOLD:
13   Q.  How does NARA determine whether or not records should be
14   destroyed?
15   A.  Well, NARA doesn't have any definition of trust.  A record
16   is a record is a record for NARA.  So they set up their own
17   retention schedules, apart and separate from the Bureau of
18   Indian Affairs.
19   Q.  Did the Bureau of Indian Affairs request that Trust records
20   not be destroyed?
21   A.  Well, since they were Bureau records, the policy that we saw
22   there would apply to NARA as well, since they are still the
23   Bureau's agency records.
24   Q.  Prior to the policy that was announced by the deputy
25   commissioner in March of 1995 regarding the secession of Trust
2056
 1   record destructions, did the agencies inform NARA not to destroy
 2   Trust records?
 3   A.  No.  They were just following the policies and procedures
 4   that were in place at the time.
 5   Q.  And when you're referring to Trust records at Interior,
 6   you're not limiting Trust records to BIA Trust records, are you?
 7            MR. QUINN:  Objection.  Leading.
 8            THE COURT:  I'll allow that.
 9   A.  Any record, financial or ownership records, that relate to
10   the Trust asset, whether that Trust asset be land or whether
11   that Trust asset be financial, or related to the Indian Trust
12   asset records.  That could include BLM records that relate to
13   Indian land, that could be MMS records that relate to Indian
14   land, that could be the Office of Hearing Appeals in the probate
15   process, that would become Trust records.
16            So any of those records that deal or impact the Indian
17   Trust asset, whether it be financial or land, would then be a
18   chain of that Trust record.
19   Q.  So did the MOU that you were involved with extend beyond BIA
20   records?
21   A.  No.  The MOU that was reflected there was our attempt to
22   first get the recognition between the BIA and OST.
23   Q.  Did you have a similar MOU with BLM?
24   A.  I don't recall.  I don't think so.
25   Q.  Did you have one with MMS?
2057
 1   A.  No, not that I remember.
 2   Q.  Did you have one with the Office of Hearings and Appeals?
 3   A.  Not that I can recall.
 4   Q.  So is the BIA MOU the only one you're aware of?
 5   A.  The only one that I'm aware of.
 6   Q.  Was it this point in time that your -- were you discussing
 7   with Mr. Homan or anyone the need for a national records
 8   depository?
 9   A.  As part of the effort that my office undertook, I worked
10   with Mr. Homan in development of his strategic plan, which was a
11   requirement of the legislation that established his office.
12            My part of that plan was to assist him in developing a
13   records management side, which would include a national Indian
14   fiduciary records center.
15            And so we developed a strategic plan that incorporated
16   the establishment and operation of a National Indian Fiduciary
17   Records Center for both hard copy records and for electronic
18   records.
19   Q.  And what period of time was that?
20   A.  I think that that would have been '96, '97, '98.
21   Q.  Do you know whether or not the special trustee was
22   authorized to move forward with that?
23   A.  My understanding was that the Department of the Interior had
24   real problems with the National Indian Fiduciary Records Center,
25   and, in fact, did not approve that portion of it.  At least as
2058
 1   long as I was there.
 2   Q.  Was the national records center solely going to hold BIA and
 3   OST records?
 4   A.  No.  We had planned to try to find records, all records
 5   within Interior that related to the Trust assets.  So we would
 6   have asked for BLM records, we would have asked for copies of
 7   the MMS records as it related to the Indian asset.
 8   Q.  Now, was the purpose of the records center designed to
 9   further preserve the Trust records that were created by the
10   department?
11   A.  Well, it had two major functions; it was to preserve, as one
12   function, but it was also to provide the ability to go in and
13   research the records.
14   Q.  Was there any function to recreate or try and restore
15   records that had been destroyed?
16   A.  No.  No.
17   Q.  Were you aware of any project that was undertaken to do that
18   at the department while you were there?
19   A.  No, I was not.
20   Q.  I would like you to talk now a little bit more about IRMS
21   and data in IRMS before we move on to another topic.
22            Based on your knowledge of IRMS, it goes back to the
23   early 70's.  Is that correct?
24   A.  It was originally developed in Billings, Montana, and the
25   start of that development was somewhere around 1972.
2059
 1   Q.  And do you know when it was implemented in Billings?
 2   A.  My understanding is that it was fully implemented in
 3   Billings somewhere around '76, '77, because that was the model
 4   that we used when we established the office in Albuquerque then
 5   to start training other people on it.
 6   Q.  And do you know why Billings was selected as the model?
 7   A.  No.  It was being pushed -- the idea of the need for
 8   integrated records to operate there was being pushed by Bill
 9   Batty, who was the deputy area director, and he undertook to
10   oversee the project.
11            So it was part of his effort.
12   Q.  And when you say Billings, do you mean the area office?
13   A.  Yes, the area office.
14   Q.  So the implementation was solely in the area office and
15   not --
16   A.  Well, again, the way the system was set up, it ran on a
17   centralized computer.  Okay?  And so, what you would do is you
18   would go out to each of the agencies and you would then start to
19   build through worksheets, filling out worksheets and things,
20   build the ownership and build the lease and build the people,
21   and then send those documents into the central office, Billings
22   office, and then they would do the encoding and start to build
23   the databases.
24            And so, the updates were actually coming from the
25   agency, but being encoded and run out of the central computer
2060
 1   operation in Billings.
 2   Q.  So is it fair to say when you say it was implemented in
 3   Billings in the mid-70's, that it also included the agencies
 4   within the Billings area?
 5   A.  Yeah, they were building their own databases in IRMS.  It
 6   was just being run centrally there out of the computer center.
 7   Q.  Do you know how many agencies there are within the Billings
 8   area?
 9   A.  Let's see.  You've got Crow, you've got Northern Cheyenne,
10   you've got Fort Peck, you got Belknap, you've got Blackfeet, you
11   had Flathead, and I'm sure I'm missing some.  But there's at
12   least six agencies there.
13   Q.  And when you mean implement, did you mean the area office
14   and the agencies were implemented in the mid-70's?
15   A.  They were using it, yes.  They developed it and then they
16   utilized it.
17   Q.  Were they using other systems as well?
18   A.  They may have been, but they were very dedicated to IRMS.
19   It was their system of choice.
20   Q.  Was the RDRS system --
21            THE COURT:  Before you leave IRMS, or before you move
22   on to RDRS, you say centralized computer.  Was that just
23   centralized for that area or was that supposed to be centralized
24   for the entire nation?
25            THE WITNESS:  No, that was for that area.
2061
 1            THE COURT:  So, of course, there was no Internet back
 2   then.  IRMS contemplated that there would be what?  They didn't
 3   even call them servers then.  There would be computers in
 4   Billings and Albuquerque and various places --
 5            THE WITNESS:  Yes.
 6            THE COURT:  -- all running IRMS data but only for those
 7   areas?
 8            THE WITNESS:  That's correct.
 9            THE COURT:  Who, if anybody, put them all together?
10            THE WITNESS:  We didn't have the technology to
11   interconnect them at that time, so they would have been
12   stand-alone servers in each of those areas.  And then later, as
13   technology changed, that would have allowed the connections.
14            And that was one of the problems, in that you could
15   have -- the way the Indian country is, you could have an Indian
16   in Oklahoma that had land in Aberdeen or that had land in the
17   Billings region or that had land in the Phoenix region.  And so,
18   in the early part of that, we had a lot of duplications.  And
19   they may have different numbers.
20            If they had land in the reservation where they were
21   enrolled, they may have a U number or an A number, if they were
22   an allottee.  But if they were in another region and had land,
23   since they would be nonenrolled, they would have an N number in
24   there.
25            And so one of the early issues was how do we resolve
2062
 1   these naming or number conflicts.
 2            THE COURT:  I think we've already heard from Ms. Herman
 3   that at some point when they tried to put all this together, or
 4   migrated or reported or whatever to TFAS, they found that it
 5   would look one way in Billings and another way in Albuquerque.
 6   It wouldn't actually be all the same -- wouldn't be configured
 7   the same way.
 8            THE WITNESS:  That's correct.  One of the issues that
 9   we had to deal with was that as we started off, it was a
10   voluntary system.  So when we moved it out of Billings and we
11   wanted to set it up over in Aberdeen, for instance, or
12   Anadarko - I think Anadarko was the first one - they had their
13   own local things that they wanted to accommodate because of the
14   way they had been doing business.
15            And so you lost that standardization, so that you'd
16   have a little bit of difference in Anadarko, you'd have a little
17   bit of difference in Aberdeen, have a little bit of difference
18   in Albuquerque.  And we understood that.  We needed to get it
19   implemented and deal with the nonstandardization later and try
20   to bring them all in.
21            THE COURT:  All right.  All right, sir.
22            MR. GINGOLD:  Thank you, Your Honor.
23   BY MR. GINGOLD:
24   Q.  Now, was the LRIS system operating as well during that same
25   period of time?
2063
 1   A.  Yes, LRIS was operating.  That was the land titles records
 2   official system that they used.
 3   Q.  And Billings continued to use LRIS.  Correct?
 4   A.  Yes.  Yes, that's correct.
 5   Q.  Now, is there a land ownership system within IRMS as well?
 6   A.  Yes, there is.
 7   Q.  Which was the official system of record?
 8   A.  LRIS is the official system of record.  The ownership in
 9   IRMS is not certified, it is not certified title, and we
10   didn't -- we weren't able to download or take the IRMS data and
11   utilize that.  Because LRIS, in some cases, were six months to a
12   year to a year and a half backlogged.
13            And so when you got the lease money in, you wanted to
14   get the lease money distributed as quickly as possible.  So you
15   would create the ownership based on the best available data, but
16   it was not certified title, it was only who the realty staff
17   thought owned the land on that day and their interest.
18   Q.  And is that why the distribution worksheet is so important?
19   A.  That's why the distribution worksheet is so important,
20   because it's the only document that tells you who was considered
21   the owners and their share of the ownership at the point in time
22   that that distribution was run.
23            And since IRMS is a dynamic system, the ownership could
24   have changed the next day, it could have changed the next week,
25   and there's no historical data, so there's no way to get back to
2064
 1   that date and recreate that document.
 2   Q.  So the LRIS system had the historical data.  Correct?
 3   A.  LRIS is the formal system for land titles and records, and
 4   it keeps all of the information and it has a historical
 5   component.
 6   Q.  Do you know whether or not the IRMS ownership data and the
 7   LRIS data was consistent?
 8   A.  Well, as I said, it normally was not consistent, because
 9   LRIS had these backlogs and we tried to utilize the most current
10   data in making the payouts at the point that we distribute the
11   funds.
12   Q.  And was this one of the issues you had to deal with when you
13   were the project manager of the Arthur Andersen Tribal
14   Reconciliation Project?
15   A.  It was an issue that we had to deal with, because IRMS also
16   contains Tribal information.  So we used to have this acronym
17   called AUNTXS.  So the A stood for allottees, the U stood for
18   unenrolled -- enrolled but unallotted Indians, the N stood for
19   nonenrolled Indians, and then the T stood for Tribal, the X
20   stood for non-Indian, and the S stood for special deposits.  So
21   you had to be able to deal with all of that.
22            And originally, when we started IRMS, we accounted for
23   non-Indian ownership, or proportionate ownership and life
24   estates, which could also be non-Indians, as a way of being able
25   to look at a plot of land and take into consideration all of the
2065
 1   owners, including life estates.
 2   Q.  Now, was the Special Deposit Account an account on this
 3   system as well?
 4   A.  It was an account in the IIM.  Remember, IIM was a subsystem
 5   of IRMS.
 6   Q.  Now, you said it was an account in the IIM.  Correct?
 7   A.  Yes.  Special deposits are a government -- for the
 8   efficiency of the government account in IRMS down in the IIM
 9   system.
10   Q.  Based on your experience, how are they used?
11   A.  Well, we would collect the lease funds, and the lease funds
12   would go into -- we'd have a Special Deposit Account.  And so as
13   all of the lease funds came in, we would put it into that
14   special deposit account.
15            And then we would take and run the IRMS system from its
16   lease and ownership, and run the lease distribution, which would
17   give us the distribution worksheet, which would then tell us who
18   the owners were and how much of those funds should be
19   distributed.
20            And then we would go in and then make the distribution
21   out of the Special Deposit Account into their accounts.
22   Q.  So were the Special Deposit Accounts used for deposits on
23   leases for multiple beneficiaries?
24   A.  Yes.  And multiple leases.
25   Q.  And the detailed information was necessary to allocate the
2066
 1   funds to a Trust beneficiary.  Is that correct?
 2            MR. QUINN:  Objection.  Leading, Your Honor.
 3   A.  Yes.
 4   BY MR. GINGOLD:
 5   Q.  How did you allocate the funds to the particular Trust
 6   beneficiary?
 7   A.  Once you got the worksheet distribution, then you would know
 8   how to allocate that portion of the Special Deposit Account into
 9   the individual accounts.
10   Q.  What if you didn't have the distribution worksheet?
11   A.  Well, at the point that we ran it, we had it.  If you wanted
12   to go back and recreate how it was done, you couldn't without
13   the worksheet distribution worksheet.
14   Q.  Is that what you found during the Tribal Trust
15   reconciliation?
16   A.  When we were trying to find those records, we found that the
17   worksheets were routinely destroyed or they were missing.
18   Q.  Now, did you search Federal Records Centers for those
19   worksheets?
20   A.  Yes.  As part of our records search, we searched agencies,
21   we searched regional offices, we searched NARA, Federal Records
22   Centers, we searched the Archives.
23            It's possible, the way the Archives system is set up,
24   that it's only supposed to -- the record is only supposed to go
25   into Archives based upon a mature matriculation.  But if an
2067
 1   agency inadvertently sent a box of records that they thought
 2   they were sending to the Federal Records Center, but they sent
 3   it into the Archive, then the Archive then would immediately
 4   take possession of that record and it would no longer become an
 5   agency record.
 6            So that's why we searched all of them, because there
 7   may have been these inadvertent records being sent to an
 8   Archive.
 9   Q.  And a distribution worksheet was for every single
10   transaction.  Is that correct?
11   A.  It was for every time you distributed money.  It laid out
12   the ownership, who owned it, the percentage of ownership, the
13   funds collected, and how that distribution took place.  That was
14   your snapshot of that distribution.
15   Q.  And it was good for that date?
16   A.  On that date.
17   Q.  Was there also a distribution worksheet printed out when
18   funds were transferred from an SDA?
19   A.  No.  No, that would have been handled inside the IIM system.
20   The worksheet was only for the distribution of funds from those
21   lease funds collected, and who were the owners and what manner
22   it was to be distributed.
23   Q.  Were Individual Indian Trust funds that were in an SDA
24   transferred to other SDAs?
25   A.  We found that to be true.
2068
 1            And when we were looking for the five named plaintiffs,
 2   one of the problems we ran into was that we found -- and that
 3   was only looking at the five named plaintiffs, now, that funds
 4   had come in and put into a Special Deposit Account, and then
 5   transferred from that Special Deposit Account into a second
 6   Special Deposit Account.  Once that occurred, we totally lost
 7   the ability to track those records.
 8            And I reported that back to my superiors, that that's
 9   what I called a double blind.  Once it went into that second SDA
10   account, Special Deposit Account, then we were not able to
11   determine amounts, where it came from, nothing.  I mean, it was
12   just like the record disappeared in order to be able to track
13   it.
14   Q.  Was that practice stopped once you reported it?
15   A.  I don't know.
16   Q.  Do you know how long that practice was employed prior to
17   your --
18   A.  No, I don't.  All I can tell you is that that's what we
19   found when we were looking for the records in the five named
20   plaintiffs.
21            THE COURT:  I don't think you said that it was a
22   practice.  Was it a practice?  Was this commonly done, that
23   money was transferred from one SDA to another?  And if so, how
24   or why?
25            THE WITNESS:  Well, again, sir, the only thing I can
2069
 1   tell you is what we found when we were looking -- I was amazed
 2   that it occurred, because I had not seen it before.
 3            And so that's why it was so unique and why it was so
 4   frustrating.  Was it a common practice?  I don't know.
 5            THE COURT:  All right.
 6   BY MR. GINGOLD:
 7   Q.  But was it only one transaction that you discovered?
 8   A.  No, I think there was like two or three times in the five
 9   named plaintiffs, and it was in the -- I think it was only in
10   the Billings area that that occurred.
11            THE COURT:  But your only knowledge of this -- whether
12   it was a practice or not, your only knowledge of this is that
13   you encountered it two or three times in Billings when you were
14   looking for records pertaining to the five named plaintiffs?
15            THE WITNESS:  That's correct.
16   BY MR. GINGOLD:
17   Q.  And there's a documentation issue that you discovered once
18   funds were transferred from one SDA to another.  Correct?
19   A.  Right.  And then the funds would be transferred on a JV from
20   one SD to the next SD, and then there was no backup information
21   on it.  And that's why we just lost track of it once that
22   occurred.  We couldn't find other documentation to let us know
23   where to look next.
24   Q.  Now, let's talk about your role in the Arthur Andersen
25   Tribal reconciliation project.  What was your position?
2070
 1   A.  I was the special assistant to the deputy commissioner, and
 2   I was the project director for the government side of the Tribal
 3   reconciliation effort.
 4   Q.  What was the other side of the project, if you were on the
 5   government side?
 6   A.  There was Arthur Andersen was one of the contractors, Jim
 7   LaBorde was the partner there, Greg Chiavello was, I think, the
 8   project manager.  There was also a second contract with
 9   Coopers & Lybrand.  Their contract was to do certification of
10   the work that was performed by Arthur Andersen.
11   Q.  Are you aware of any particular event or situation that
12   occurred which triggered the commencement of that project?
13   A.  From my knowledge, what triggered the overall look at Indian
14   Trust funds stemmed out of the problem that was uncovered out on
15   the Wind River Indian Reservation concerning the theft of oil
16   and gas, where some of the oil companies had bypassed the oil
17   gauges.
18            And they caught some of the trucks trying to get off of
19   the reservation with loads of oil without any trip tickets, and
20   so, that launched an investigation of what was going on.  And
21   then after that was the -- I think, the Synar investigation.
22            And so all of these issues kind of snowballed into the
23   huge effort to look at -- and then there was creation of the
24   Inter-Tribal Monitoring Association, which was also a party to
25   the reconciliation effort.
2071
 1            So you had the government, and then you had ITMA that
 2   was representing the tribes, and then you had Arthur Andersen as
 3   the primary contractor, and then you had Coopers & Lybrand as
 4   the certification contractor to oversee the actions of Arthur
 5   Andersen.
 6   Q.  Now, the Arthur Andersen project was known as the Arthur
 7   Andersen Tribal Reconciliation Project.  Correct?
 8   A.  Yes, it was the Tribal Reconciliation Project, yes.
 9   Q.  Okay.  What was it?
10   A.  That was the effort to reconcile the Tribal Trust funds
11   apart and separate from the IIM.
12            And in our meetings, what we did was meeting with
13   Arthur Andersen, they told us -- or Jim LaBorde, who was the
14   partner, said that the only thing that he felt that they could
15   do, which is they got an agreement with ITMA and others, was an
16   agreed-upon procedures report.  And so in order to do an
17   agreed-upon procedures report, we had to lay out all of the
18   procedures that would be used to test the documents that were
19   found.
20            Mr. LaBorde over and over and over and over kept
21   stressing to us that since this was an agreed-upon procedures
22   report, that any of the findings where you apply these
23   procedures to a document could only talk to that document that
24   you found, you couldn't apply it to missing documents, and that
25   you could not extrapolate the information.
2072
 1            So you couldn't say, because this document had an error
 2   rate of this, therefore the missing documents had an error rate.
 3   He said absolutely you couldn't do that.
 4            MR. QUINN:  Objection, Your Honor.  We're going into
 5   some hearsay.
 6   BY MR. GINGOLD:
 7   Q.  Were you told this by Mr. LaBorde?
 8   A.  Yes, I was told that by Mr. LaBorde, and I continually told
 9   that to my superiors.  And after --
10            THE COURT:  I think I have to sustain that objection.
11   BY MR. GINGOLD:
12   Q.  Did anyone at the Department of the Interior talk to you
13   about the limitations of the Arthur Andersen Tribal Trust
14   Reconciliation Project?
15   A.  Yes.  I talked with the deputy solicitor, Mr. Cohen.
16            THE COURT:  Who?
17            MR. GINGOLD:  Mr. Cohen, Ed Cohen.
18            THE COURT:  Ed Cohen, all right.
19   A.  And explained -- when we would go through the results of it,
20   I would explain to him the limitations of the reconciliation.
21   BY MR. GINGOLD:
22   Q.  Did you have to change the agreed-upon procedures after you
23   commenced the project?
24   A.  Would you restate that?
25   Q.  Yes.  You said this was an agreed-upon procedures project.
2073
 1   Were they changed at all after you began the project?
 2   A.  Yes.
 3   Q.  Okay.  What happened?
 4   A.  There were numerous changes in how we started the project
 5   versus how we ended up the project.
 6            THE COURT:  I have lost the time frame of this.
 7            When was the beginning and when was the end?
 8            THE WITNESS:  Well, we began the project in --
 9   actually, in December of '92 when we met with the -- myself and
10   Arthur Andersen and Karen Turkold (ph) met in Albuquerque, New
11   Mexico to start laying out the procedures that would be done.
12   And then we finished the project in 1995, or else it was brought
13   to a close by the department in 1995.
14            We then issued the reports in late 1995 and early 1996,
15   and then met with the tribes to explain the -- on an individual
16   basis to explain the reports that were issued to them, and how
17   to utilize the electronic data.
18   BY MR. GINGOLD:
19   Q.  So for a period of three years, were there changes made in
20   the agreed-upon procedures?
21   A.  Yes.  Yes.
22   Q.  Do you know why the changes were made?
23   A.  Well, as we were going through the project, we would run
24   into issues.  And so we would meet and we would discuss the
25   issues, and then we would come up with a fix or a modification,
2074
 1   and then move on with the project.  It was an enormous project
 2   with a lot of moving parts, and as we ran into issues, we would
 3   make modifications.
 4   Q.  Now, were any modifications made as a result of your search
 5   for records?
 6   A.  Well, the time frames were pretty well set in concrete.  We
 7   had no changes to that.
 8   Q.  What were the time frames?
 9   A.  July 1st, 1972 through September 29th, 1992.  That was the
10   period that we conducted the reconciliation.
11   Q.  Do you know how that period of time was selected?
12   A.  It was selected as a result that most of the electronic --
13   the general ledger was the crucial piece of information that we
14   had to have.  And so we had electronic records back to a certain
15   period, and then we took the, what we call blow backs, or the
16   microfiche of those general ledgers, and recreated them through
17   the Arthur Andersen people, and created an electronic version of
18   those back to July 1st of 1972.  We started then because that
19   was the beginning of the FY year.
20            And then in 1976, the government changed its FY year,
21   so we had to account for the transition quarter and then go
22   through the FY 1992, which ended in September 29th, I think of
23   1992.
24   Q.  Now, I think you testified earlier today that you searched
25   Federal Record Centers?
2075
 1   A.  Right.
 2   Q.  You searched BIA agencies?
 3   A.  Right.
 4   Q.  You searched the National Archives itself?
 5   A.  Yes.
 6   Q.  What else did you search?
 7   A.  We searched the agencies, the regional offices, we searched
 8   the Federal Record Centers, and we searched the National
 9   Archives.
10            The records centers presented a major problem in that,
11   just as most organizations have a dynamic organization creating
12   new offices, abandoning old locations, we had during that period
13   of time a lot of Federal Record Centers had been closed down.  I
14   can't remember exactly where.  Like one like in Chicago.
15            And then you had to figure out where they sent the
16   documents to the new record centers and kind of map that out, so
17   that we could then conduct that search throughout the nation
18   trying to determine when they closed, where did they send their
19   records and stuff.  So it was a major undertaking.
20   Q.  Were you searching for more than just BIA records?
21   A.  No.  We were basically trying to find all of the BIA
22   records.
23   Q.  What about MMS?
24   A.  No, we did not search for MMS records.
25   Q.  Did you search for BLM records?
2076
 1   A.  No, we did not.
 2   Q.  And you didn't search for OHA records, did you?  OHA, Office
 3   of Hearings and Appeals?
 4   A.  No, we did not.
 5   Q.  And is that because the tribe didn't have the OHA issues?
 6   A.  I'm not aware that there would be any land probates dealing
 7   specifically with tribes.
 8   Q.  Now, were Treasury records also included in this project?
 9   A.  We had tried to find records from Treasury, but what we got
10   was -- what we were looking for was the Treasury marks, and
11   where the RDOs had been issued from, the regional disbursing
12   offices for Treasury.
13            We were not looking for canceled checks, no.
14   Q.  So the purpose of the project was to reconcile the
15   transactions of Tribal Trust funds.  Correct?
16   A.  That's correct.
17   Q.  Did you accomplish that?
18   A.  To the extent possible, we did.  And within the time frame
19   that we were given, we did.
20   Q.  What do you mean by "to the extent possible"?
21   A.  Well, there was lots of missing documents.  And so if we
22   couldn't find documents, or -- the government side of this --
23   understand, in the contract, Arthur Andersen was not required to
24   go out and look for documents.  They were not required to put
25   documents together in packages.  The government had to go out,
2077
 1   find the tickets, find the bills of collection, find all of the
 2   documents, and then put them into reconcilable packages.
 3            So we're the ones who had to go out, find those
 4   documents, put them into reconcilable packages.  Once we
 5   believed that we had a reconcilable package - in other words, we
 6   had all the bill of collections that equalled to the summary
 7   sheet - and maybe it was sent to the area office, where they
 8   would bring them in from different agencies, package them into a
 9   total package, and then that total amount then would be
10   deposited and you'd have a deposit ticket.
11            So putting all of those documents together, trying to
12   reach the Tribal numbers that were on those documents, matching
13   to the Tribal deposit, which was then registered in the general
14   ledger, we did all of that work.
15            So once we got what we considered a reconcilable
16   package, then we would take that over and give that to Arthur
17   Andersen, and then they would go throw and apply the procedures
18   and stuff.  But they didn't go out and look for documents as
19   part of this effort.
20   Q.  Was there one standard for a reconcilable package?
21   A.  No, not really.  There was one standard established as to
22   what we would consider reconciled on receipts, and then
23   originally one standard as to what we would consider reconciled
24   on a disbursement.
25            As we got into the project, on the disbursement side
2078
 1   particularly, we found that there was very few of the total
 2   packages that would meet that standard, what we ended up calling
 3   a C standard.
 4   Q.  The C standard is what in particular now?
 5   A.  Well, that was the original procedures that were put
 6   together that said, all of these documents would be contained in
 7   it and they would have Tribal signatures, they would have the
 8   signature of the regional director, they would have a Treasury
 9   stamp on there, et cetera.  That meant it was fully reconciled.
10            As we got into that part of it, we found that there was
11   a lot of the records, I mean, a vast majority of the records, a
12   large majority of the records didn't meet that standard.
13            So, as a result of that, we got together and we talked
14   about that.  Well, what do you want to do?  And so the decision
15   was made that we would then -- that we would then lay out every
16   document that we had, and that we would have different levels.
17   Like you would have an L level, you'd have a G level, you might
18   have a combination of G and L.  And so that was then laid out
19   for the tribe to take a look at, and they could make up their
20   own mind as to whether or not they accepted that level of
21   reconciliation.
22            So when we did report that, we reported, here's the
23   amount that was reconciled to the C level, here's the amount
24   that was reconciled to the L level, here's the amount that was
25   reconciled to the G level, here's the number that had G and L
2079
 1   together, and then there was an other category.
 2   Q.  What was the other category?
 3   A.  It was a combination of things.
 4            THE COURT:  C for?
 5            THE WITNESS:  Well, you know, we really never really
 6   determined what C stood for.  But it was a comprehensive -- it
 7   was the code that showed a -- we had all of the documents that
 8   we had set up as part of the agreed-upon procedures.  Everything
 9   was there, and so that was what C stood for.
10            THE COURT:  All right.
11   BY MR. GINGOLD:
12   Q.  Is it fair to say you considered that fully reconciled?
13   A.  Yeah, that was completely and fully reconciled.  I mean,
14   there was no questions about that.  There was no issues related
15   to those disbursements.
16   Q.  Do you know what percentages, based on your recollection of
17   transactions?
18   A.  No, I would say -- I can't tell you right off the top of my
19   head.  If I'd known we were going to talk about it, I could have
20   reviewed it.
21            But I can give you -- I know one tribe, because I was
22   at a meeting last Monday with this tribe on this issue, they had
23   like $200,000 in C's, they had like a million, two or a million,
24   four, or two million, four in the L levels, and then they had
25   various others.
2080
 1            So like I say, the vast majority of this was not
 2   covered under the C level of reconciliation.
 3   Q.  And is my understanding correct in your testimony that if it
 4   wasn't a C level reconciliation package, that the agency left it
 5   up to the tribe to accept it?
 6   A.  What we did was we displayed the results so the tribe then
 7   can make up their own mind as to whether or not they wanted to
 8   accept the reconciliation issues at the L level or the G level
 9   or the other level.
10   Q.  Now, you discussed briefly the different packages for
11   receipts and disbursements.  Is that correct?
12   A.  That's correct.
13   Q.  Was it more difficult to reconcile the disbursement
14   transactions?
15   A.  No, not really.  According to how the receipt process
16   worked, that could be a lot more difficult than the disbursement
17   side.  Because it would involve a lot more documents.
18            As I said, sometimes -- you had various procedures.
19   There was no standardization out there by region or by area, or
20   even by agency.  So at one location, like in Aberdeen, they
21   would take the collection vouchers and they would do all the
22   summaries and everything, and then they would put their amounts
23   there and then they would mail that in to the region office.
24            The regional office would take that for that day that
25   they got it, and they may have several of the same type of --
2081
 1   several packages that would come in from various agencies.  And
 2   they had in excess of 12 agencies up there in the Aberdeen area.
 3   And then, so they would take that and they would come to a
 4   total, and then they'd go over and deposit it.
 5            But when they came back, they would take that package
 6   that would be perfect for reconciliation, and they would take
 7   that package apart, and they would file them by document type.
 8            So they would disaggregate the whole package, and then
 9   file them by each of the various types of documents that was
10   there, so that when it came time for us to put that -- we had to
11   put that package back together.  So we had to have all of those
12   documents and then we had to find dates.  It was very, very
13   tough.
14            Another agency may have kept their package altogether,
15   or another area would have kept all their packages together and
16   they would have just filed them as a package.  When those things
17   occurred, then it was relatively easy to do that.  All we had to
18   do was take and make sure all the numbers added up.
19   Q.  Now, were you also collecting Individual Indian Trust
20   documents while you were collecting Tribal Trust documents
21   during this project?
22   A.  Yes.  When we were bringing records in, we would bring all
23   of the records in.  And some of those records would include IIM
24   records.
25   Q.  Did you notice any difference in the completeness of IIM
2082
 1   records compared to Tribal Trust records?
 2   A.  And when you look at the packages that we put together to
 3   get to the deposit ticket, they would include both Tribal and
 4   they would include IIM.
 5            The numbers that we were trying to reconcile back to
 6   was the Tribal portion of that deposit ticket, and we didn't try
 7   to reconcile the IIM side.
 8            But as we would get records in, and they would be
 9   clearly IIM records, or related to the individual Indians, we
10   would then set those apart separate in the cage that we had so
11   that we would preserve those records.  But they were not records
12   that we utilized in terms of the reconciliation.
13   Q.  Is that where you were able to identify that the
14   disbursement settlement worksheet was --
15   A.  We would go through those to make sure that there was not
16   anything Tribal in there.  And if we were able to find a
17   distribution worksheet, then we would review that to see if
18   there was any Tribal related to that.
19            And the reason for that was early on, one of the
20   objectives of the Tribal reconciliation was to run like a small
21   pilot to determine whether or not it was possible to just
22   reconcile the Tribal part of IIM versus the individual Indian
23   side.
24            And we had three locations at that, we had Fort Peck,
25   Fort Berthel, and I want to say Flathead, but I'm not absolutely
2083
 1   sure on the third one.  And we ran tests on that, Arthur
 2   Andersen assisted us in running tests on that to try to
 3   determine whether it was feasible or not to reconcile just the
 4   Tribal portion of IIM.
 5            Arthur Andersen and us both came to the conclusion that
 6   that was not feasible, and so we dropped that portion of the
 7   project.
 8   Q.  Was there any evaluation just to do IIM alone without the
 9   Tribal?
10   A.  No, that was looked at prior to me coming on board as
11   project manager.  That was something that was looked as, it's my
12   understanding, between the department and Arthur Andersen and
13   others to determine feasibility of doing that.
14   Q.  Do you have any understanding of what the determination was?
15   A.  Well, the material that I read said that Arthur Andersen
16   believed that the IIM, if it was going to be reconciled, would
17   cost in excess of $208 million.  But they didn't think the
18   records were available to do that.
19            On the other hand, they thought that there possibly
20   could be possibly enough records to do the Tribal
21   reconciliation, and so that's when the determination was made to
22   do the Tribal side rather than doing the IIM side.
23   Q.  Do you know whether or not that consideration of the IIM
24   reconciliation was also for a 20-year period?
25   A.  No, I do not.
2084
 1   Q.  You said -- when you talked about the end of the project, I
 2   think you indicated -- you first said completed, and then
 3   changed it when you stated that the work on the project was
 4   finished.
 5            Was the Tribal Trust Reconciliation Project completed?
 6   A.  We were ordered to shut the project down in, I think,
 7   January of '95.  We were still in the process of trying to do
 8   the fill-the-gap portion.  The fill-the-gap portion was where we
 9   would go back in, try to find the lease, and then look at the
10   requirements of the lease and then try to determine whether or
11   not the correct amount for that lease was collected, and whether
12   or not it was correctly deposited into the general ledgers.
13   Which was then to close the gap between the resource usage and
14   the funds and the amounts collected.
15            We didn't get an opportunity to fully complete that.
16   We were directed by the Department of the Interior to shut the
17   project down, and so we shut the project down.
18   Q.  Do you know why you were directed to shut it down?
19   A.  They said that it was because we had done enough and that
20   they didn't want to pursue that any further.
21   Q.  Was Coopers & Lybrand involved in this at all?
22   A.  Coopers & Lybrand, as I said, was the certification
23   contractor.
24   Q.  What were they supposed to certify?
25   A.  They were supposed to certify the work done by Arthur
2085
 1   Andersen.
 2   Q.  Did they do that?
 3   A.  They were in the process of doing that.  It was like herding
 4   cats between those two contractors.  It was a constant, constant
 5   bickering back and forth, and it was really -- that was probably
 6   one of the harder things to do in that reconciliation was the
 7   work between the two contractors.
 8            Eventually, the decision was made to drop the
 9   certification part of the contract, and so that contractor was
10   terminated and that work was not completed.
11   Q.  Mr. Christie, one last question.  With regard to IRMS, since
12   you were involved in the roll-out, and when you were a BIA
13   superintendent, was IRMS in existence at that time?
14   A.  When I left the project and went up to Fort Totten, I was
15   dedicated to IRMS, so I started trying to implement the IIM
16   system into Fort Totten, and then lay the ground work for us to
17   start doing the paperwork for the people and the ownership and
18   the leases at Fort Totten.
19            And then I went down to Winnebago and I continued that
20   down at Winnebago, getting the agency ready, both physically and
21   mentally ready to start working into the IRMS system.
22            So, I was a big believer in it, and I was pushing my
23   agency to do it.
24   Q.  Were you able to verify whether or not a posting on the
25   system was valid based on going to a paper record?  Other than
2086
 1   the distribution worksheet?
 2   A.  No.  Unless you had the distribution worksheet, you couldn't
 3   validate anything.
 4            MR. GINGOLD:  Your Honor, I'm finished with the direct
 5   and I'd like to move in two exhibits.
 6            THE COURT:  All right.
 7            MR. GINGOLD:  Plaintiffs would like to move into
 8   evidence PPX-350, which is the March 7th, 1995 memorandum from
 9   the deputy commissioner regarding preservation of records; and
10   PPX-2152, which is Mr. Christie's memorandum to Messrs. Miller,
11   Homan, and Thompson regarding the records MOU standard for Trust
12   records retention.
13            THE COURT:  Exhibits received.
14            (PLAINTIFF Exhibit 350, 2152 were moved into evidence.)
15            THE COURT:  How much cross to you have?
16            MR. QUINN:  Probably no more than ten minutes, Your
17   Honor.
18            THE COURT:  Let's do it.
19            MR. QUINN:  Are you okay, Mr. Christie?
20            THE WITNESS:  Yes.
21            MR. QUINN:  For the record, Michael Quinn on behalf of
22   the defendants.  I'll try to keep this brief.
23                          CROSS-EXAMINATION
24   BY MR. QUINN:
25   Q.  Mr. Christie, when you started out your testimony this
2087
 1   morning, I think you began with an example of what you did in
 2   the Winnebago agency with respect to direct pay arrangements.
 3   Is that right?
 4   A.  Yes.
 5   Q.  I believe you testified that you went out and collected the
 6   checks.  Where did you get the checks?
 7   A.  The realty shop.  I ordered the realty shop to go to the
 8   person leasing the land and to tell them that they had an
 9   obligation to give us a copy of the canceled check.
10   Q.  So this would have been a piece of paper, the check, being
11   issued by the lessee of the property?
12   A.  It would have been the check that they paid to the owner of
13   the property, yes.
14   Q.  Okay.  So the money that's referenced -- I mean, what's
15   evidenced in that piece of paper is not money that had been
16   deposited with the federal government.  Correct?
17   A.  No, it was not run into the Special Deposit Account, and it
18   did not enter the IIM account.
19   Q.  And in effect, that's what direct pay means.  Right?
20   A.  Yes.  It was paid directly from the person renting the
21   property to the person who owned the property.
22   Q.  I believe there was also testimony with respect to IRMS,
23   that you had responsibilities for the IRMS in 1978 to 1981.  Is
24   that correct?
25   A.  That's correct.
2088
 1   Q.  And in the course of your involvement with the IRMS system,
 2   had you gained any familiarity with a printout known as a
 3   transaction register?
 4   A.  Yes.
 5   Q.  Can you describe what that is?
 6   A.  Well, the transaction register deals mainly with IIM.  And
 7   what that does is, is it shows the JVs and the amounts and stuff
 8   that went in there.  But the transaction register is not linked
 9   back to the ownership.
10   Q.  But this is a paper record.  Right?
11   A.  Yes.
12   Q.  A printout from the computer system.  Correct?
13   A.  Yes.
14   Q.  And in your experience, did the area offices make use of
15   those transaction records?
16   A.  I couldn't say.
17   Q.  With respect to the leasing activities you were referring
18   to, and the lease distribution worksheet, I think you called it.
19   Right?
20   A.  Yes, sir.
21   Q.  That's generated by another subsystem of the IRMS.  Is that
22   right?
23   A.  That's generated by the lease distribution system, yes.
24   Q.  Okay.  And that's a different part from what you were just
25   describing, the IIM subsystem?
2089
 1   A.  Yes.  The transaction register.
 2   Q.  Now, with respect to the -- when the lease revenue is
 3   generated and is deposited within the IIM system, and then has
 4   to be distributed out to the beneficiaries --
 5   A.  Uh-huh.
 6   Q.  -- what paperwork or what paperwork do you recall being
 7   generated in the course of the transactions from the receipt of
 8   the money into the system to the distribution?
 9   A.  Okay.  The receipt of the funds would have been off of the
10   billing system which would bill them and then create a document
11   that they would use to bring back in to pay the lease.
12   Q.  Would that be known as a bill for collection?
13   A.  It was like a bill of collection, yes.  I was supposed to
14   mirror the bill of collection, that's right.
15   Q.  Okay.
16   A.  And then the -- would you restate your question again,
17   please?
18   Q.  Sure.  I was just asking about -- in the course of receiving
19   the lease payment and then making the distribution to the
20   appropriate beneficiaries, what documentation would be created
21   along that path?
22   A.  Right.  And so once you got the worksheet distribution, the
23   worksheet distribution would tell you who was supposed to
24   receive the money.  And then you would go to the Special Deposit
25   Account and you would create JVs.
2090
 1            Now, in some cases --
 2   Q.  Can I just stop you there for a second.  Just so the record
 3   is clear, JV is a journal voucher?
 4   A.  A journal voucher.
 5   Q.  Okay.  Go ahead.
 6   A.  That's used to deposit the funds from the Special Deposit
 7   Account into the individual accounts.
 8   Q.  Now, would the journal voucher indicate on there to whom the
 9   money is to go and their respective share?
10   A.  It would say, yes, who was receiving the funds, and their
11   share.
12   Q.  Okay.
13   A.  Yes.  It would not --
14   Q.  Go ahead.
15   A.  It would not necessarily reference the lease, though.
16   Q.  I understand that.  But in terms of documenting the money
17   flow, the journal voucher, if I understand your testimony
18   correctly, would identify the recipients who were supposed to
19   get the money and their relative share?
20   A.  That's correct.
21   Q.  Are there any other documents beyond the journal voucher
22   point that you recall in that process of distribution?
23   A.  No, that's basically what you would use to transfer it into
24   the account.  And once it's in the account, then of course it
25   generates its own interest and everything in the account.
2091
 1   Q.  Okay.  And then if you were to -- if someone, like when you
 2   were in Winnebago, would generate a transaction register, the
 3   computer system should also show that activity.  Correct?
 4   A.  Yes.  Over on the IIM side, that's correct.
 5   Q.  I want to ask you just a couple of questions about -- you
 6   mentioned also, I think, in the course of your testimony about
 7   the five named plaintiffs' project.
 8   A.  Uh-huh.
 9   Q.  That was, as I understand it - and correct me if I'm wrong -
10   that the five named plaintiffs as well as all their ancestors in
11   an agreed-upon list.  Do you recall?
12   A.  Well, when we initially started looking for it, it was all
13   the five named plaintiffs.
14   Q.  Okay.
15   A.  And so that was the portion that we were concentrating on,
16   was trying to initially find all of the records related to them.
17   Q.  Okay.
18   A.  There had been discussion about predecessor records, but in
19   the initial stages we were just looking for the five named
20   plaintiffs.
21   Q.  Okay.  Could you describe what your role was in working to
22   collect documents with respect to that project?
23   A.  Yes.  I organized -- like I say, we had the office as part
24   of the litigation support, so one of the things that we did was
25   trying to map out where we think all of these records would be.
2092
 1   And then we would organize teams and send the teams out on site
 2   to go to those locations and to start looking through boxes of
 3   documents that was there.
 4            And then with the idea that as you go through the box,
 5   if you find a document that had one of the five named plaintiffs
 6   on there, then you would take that document and tag it, and then
 7   from there, you would try to determine what document you needed
 8   to try to find next. So just when you'd find a document, it
 9   might be in the middle or it might be at the end or it might be
10   at the beginning.
11            And so the effort was to try to go through all of those
12   records that could possibly contain a reference to that account,
13   and then, once you found a reference, to try to figure out which
14   direction you needed to go to look for the next document.
15   Q.  Okay.  And I take it that was fairly labor intensive?
16   A.  Extremely labor intensive.
17   Q.  And time consuming?
18   A.  And time consuming.
19   Q.  With respect to the search, what was your understanding that
20   the goal of doing the document search was with respect to the
21   five named plaintiffs?
22   A.  Was to come up with as many of the documents that we could
23   find related to the five named plaintiffs.
24   Q.  Now, I believe it's also your testimony that you retired in
25   December of 1999?
2093
 1   A.  December of 1999.
 2   Q.  Was that five named plaintiff project still going on at the
 3   time of your retirement?
 4   A.  When I left OST -- I left OST in December of '98.
 5   Q.  Okay.
 6   A.  So they were still looking for documents, although we had
 7   broadened -- we had other things that we were doing, also.
 8            But we were still focused on the five named plaintiffs
 9   and we were still looking for documents and we were still trying
10   to figure out how we could make the effort more efficient.
11   Q.  Do you know offhand how many documents were ultimately
12   collected as part of that project?
13   A.  No, I don't.
14   Q.  Do you know offhand how many had been found at the time you
15   left that position?
16   A.  No, I don't recall that.
17   Q.  Are you familiar at all with the name of Joseph Rosenbaum?
18   A.  Joseph Rosenbaum?  Joseph Rosenbaum?  I don't recall that
19   name.
20   Q.  This may be after you left.  I'm just trying to get a sense
21   of your experience with respect to this document search.
22            Let's see.  I think just maybe one other thing here.
23            MR. QUINN:  Bear with me one moment here, Your Honor.
24   One moment.
25                  (OFF THE RECORD.)
2094
 1   BY MR. QUINN:
 2   Q.  One other thing.  You mentioned that, I think, in the course
 3   of the Tribal Reconciliation Project that you were -- and when
 4   you were at OST, beginning to collect documents in Albuquerque.
 5   Is that --
 6   A.  Yes, as part of the Tribal reconciliation, putting the
 7   documents back together all occurred in Albuquerque.
 8            And so we would bring the records into Albuquerque, and
 9   we had to store them and then we had to run them through the
10   reconciliation process to determine whether or not they
11   contained records.
12            As I said, we just brought massive records in, and
13   sometimes they were IIM records versus the Tribal stuff, and we
14   would shuffle them off and put them in a special place in the
15   building where we had set up racks.
16            But we had thousands and thousands of boxes that were
17   coming through.  We had a very small space to work in, so we
18   would bring in a trailer full and we would work that trailer,
19   and then feed the empty ones back -- or the ones that we'd gone
20   through back into a trailer and then bring another trailer over,
21   and then we would try to find a place to store those other
22   records.
23   Q.  So if I understand your testimony correctly, in addition to
24   the Tribal material coming in, you also had IIM documents coming
25   into Albuquerque as well?
2095
 1   A.  Yes.  Because when we went out and pulled the records in, we
 2   didn't make a distinction between the two.  We were trying to
 3   pull in as many records that we could to find as many documents
 4   as we could.
 5   Q.  Do you know where those records were moved to after this
 6   work?
 7   A.  We had a building over on Hawkins, and we stored --  we put
 8   shelving and stuff in there and we had them in the, I can't
 9   remember, Singer Building, and then we had them over in Hawkins,
10   and we had people in charge of those boxes and inventorying
11   them, high level inventories, and then storing them and putting
12   them on an inventory record.
13   Q.  Are you aware of a records repository, American Indian
14   Records Repository, also known by its abbreviation as the AIRR?
15   A.  In Lenexa?
16   Q.  In Lenexa.
17   A.  Yes, that was created after I left.
18   Q.  So any records movement after you left to AIRR would be out
19   of your realm of experience --
20   A.  Yes.
21   Q.  -- in terms of collecting that material in Lenexa?
22   A.  Yes.
23            MR. QUINN:  No more questions, Your Honor.
24            MR. GINGOLD:  Just a couple of questions.  Thank you.
25                        REDIRECT EXAMINATION
2096
 1   BY MR. GINGOLD:
 2   Q.  Mr. Quinn asked you whether or not there were various
 3   documents available from a transaction in IRMS that were
 4   available perhaps for reconciliation.  But isn't it true that no
 5   matter what needs to be done, you still need that disbursement
 6   worksheet?
 7   A.  Distribution worksheet?
 8   Q.  Yes, sir.
 9   A.  It's the only document that ties it back to the land
10   ownership.  So if you don't have that to tie it to the land
11   ownership, then you don't know who was the person that they
12   determined was the owner and that they were then distributing
13   to.
14   Q.  And is that because the ownership information in IRMS was
15   sometimes inconsistent and in conflict with LRIS?
16            MR. QUINN:  Objection.  Leading, Your Honor.
17            THE COURT:  Sustained.
18   BY MR. GINGOLD:
19   Q.  Do you know why that was important to have that information?
20   A.  We had always wanted to try to get LRIS to feed into
21   ownership.  We were never able to accomplish that.  And we
22   couldn't use LRIS because it was anywhere from six months to a
23   year to a year and a half backlogged, and you couldn't wait that
24   long to pay a lease that you had collected.
25            So what you did was you created the best available
2097
 1   ownership, but it wasn't the same as LRIS and it was
 2   uncertified.
 3   Q.  And in order to verify the information, though, going back,
 4   you needed this disbursement worksheet to do so.  Correct?
 5            MR. QUINN:  Objection, Your Honor, leading.
 6            THE COURT:  Yeah, you are leading him, and it's your
 7   witness.
 8            MR. GINGOLD:  I was just trying to move the redirect.
 9            THE COURT:  Well, we'll just be hungry as long as it
10   takes.
11            MR. GINGOLD:  Okay.  Okay.  That's okay with me.  I'm
12   sorry, Your Honor.
13   A.  The ownership is the only thing that tells you who you were
14   distributing the money to and why.  And if the ownership is
15   incorrect, then you would be distribute can to incorrect people.
16   BY MR. GINGOLD:
17   Q.  And there's no other document, as far as you know, that
18   provides that information.  Correct?
19            MR. QUINN:  Same objection, Your Honor.
20            THE COURT:  That's also asked and answered.
21   BY MR. GINGOLD:
22   Q.  You mentioned interest in response to a question from
23   Mr. Quinn.  Do you recall that?
24   A.  No, I don't.
25   Q.  Okay.  Interest was asked by Mr. Quinn.
2098
 1            Did Special Deposit Account -- did income for Trust
 2   beneficiaries that were deposited in Special Deposit Accounts
 3   earn interest?
 4            MR. QUINN:  Objection, Your Honor.  That's beyond the
 5   scope of my cross.
 6            THE COURT:  Sustained.
 7            MR. GINGOLD:  I thought he mentioned interest during
 8   the course of the --
 9            THE COURT:  I don't think so.
10            MR. QUINN:  I was interested in the witness' testimony,
11   Your Honor.
12            THE COURT:  Sustained.
13   BY MR. GINGOLD:
14   Q.  Even though the direct pay funds were not deposited in the
15   Individual Indian Trust, and the share, the crop share income
16   wasn't deposited in the Trust, why did you as a superintendent
17   ensure that the Trust beneficiaries were being paid in
18   accordance with the leases?
19            MR. QUINN:  Objection, Your Honor.  I believe that was
20   covered on direct.
21            MR. GINGOLD:  He asked specifically about it's outside
22   the IIM Trust.
23            THE COURT:  I'll allow it.
24   A.  The document -- the lease document that contained those
25   provisions was a BIA document; therefore, it was a BIA
2099
 1   responsibility to assure that the person was adequately
 2   compensated and received their funding.  And that's all I was
 3   doing, was verifying that that occurred.
 4   BY MR. GINGOLD:
 5   Q.  And was the income coming off of Individual Indian Trust
 6   land?
 7   A.  Yes, it was.
 8            MR. GINGOLD:  Thank you.
 9            Your Honor, we would like to be able to move certain
10   exhibits into evidence after lunch, so we don't want to rest at
11   this point in time.
12            THE COURT:  Let's do it after lunch.
13            MR. GINGOLD:  Thank you.
14            MR. QUINN:  We have no more questions for this witness.
15            THE COURT:  The witness is excused.  We'll go to lunch,
16   we'll see you back here at 10 minutes until 2:00.  Thank you.
17            (Recess taken at 12:50 p.m.)
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 1               CERTIFICATE OF OFFICIAL COURT REPORTER
 2   
 3            I, Rebecca Stonestreet, certify that the foregoing is a
 4   correct transcript from the record of proceedings in the
 5   above-entitled matter.
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10   SIGNATURE OF COURT REPORTER                  DATE
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