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90-265 PS 2004

DEVELOPING A LEGISLATIVE 

SOLUTION TO THE INDIAN 

TRUST FUND LAWSUIT

OVERSIGHT FIELD HEARING

BEFORE THE

COMMITTEE ON RESOURCES 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

Monday, November 3, 2003, in Mesa, Arizona

Serial No. 108-77

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

or 

Committee address: http://resourcescommittee.house.gov 

(II)

COMMITTEE ON RESOURCES 

RICHARD W. POMBO, California, Chairman 

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska 

W.J. ‘‘Billy’’ Tauzin, Louisiana 

Jim Saxton, New Jersey 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Wayne T. Gilchrest, Maryland 

Ken Calvert, California 

Scott McInnis, Colorado 

Barbara Cubin, Wyoming 

George Radanovich, California 

Walter B. Jones, Jr., North Carolina 

Chris Cannon, Utah 

John E. Peterson, Pennsylvania 

Jim Gibbons, Nevada, 

Vice Chairman 

Mark E. Souder, Indiana 

Greg Walden, Oregon 

Thomas G. Tancredo, Colorado 

J.D. Hayworth, Arizona 

Tom Osborne, Nebraska 

Jeff Flake, Arizona 

Dennis R. Rehberg, Montana 

Rick Renzi, Arizona 

Tom Cole, Oklahoma 

Stevan Pearce, New Mexico 

Rob Bishop, Utah 

Devin Nunes, California 

Randy Neugebauer, Texas 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Solomon P. Ortiz, Texas 

Frank Pallone, Jr., New Jersey 

Calvin M. Dooley, California 

Donna M. Christensen, Virgin Islands 

Ron Kind, Wisconsin 

Jay Inslee, Washington 

Grace F. Napolitano, California 

Tom Udall, New Mexico 

Mark Udall, Colorado 

Anı ́bal Acevedo-Vila ́, Puerto Rico 

Brad Carson, Oklahoma 

Rau ́l M. Grijalva, Arizona 

Dennis A. Cardoza, California 

Madeleine Z. Bordallo, Guam 

George Miller, California 

Edward J. Markey, Massachusetts 

Rube ́n Hinojosa, Texas 

Ciro D. Rodriguez, Texas 

Joe Baca, California 

Betty McCollum, Minnesota

Steven J. Ding, Chief of Staff 

Lisa Pittman, Chief Counsel 

James H. Zoia, Democrat Staff Director 

Jeffrey P. Petrich, Democrat Chief Counsel 

(III)

C O N T E N T S 

Page

Hearing held on Monday, November 3, 2003 ........................................................ 1

Statement of Members: 

Flake, Hon. Jeff, a Representative in Congress from the State of Arizona . 5

Grijalva, Hon. Raul M., a Representative in Congress from the State 

of Arizona ...................................................................................................... 4

Hayworth, Hon. J.D., a Representative in Congress from the State of 

Arizona ........................................................................................................... 2

Prepared statement of ............................................................................... 3

Renzi, Hon. Rick, a Representative in Congress from the State of Arizona 5

Statement of Witnesses: 

Berrey, John, Intertribal Monitoring Association of Indian Trust Funds, 

Albuquerque, New Mexico ............................................................................ 11

Prepared statement of ............................................................................... 14

Chavez, Ervin, Shii Shi Keyah Association, Bloomfield, New Mexico ......... 18

Prepared statement of ............................................................................... 20

Garcia, Calvert, President, Nageezi Chapter, Navajo Nation ...................... 16

Prepared statement of ............................................................................... 17

Ramos, Joni, President, Salt River Pima-Maricopa Indian Community, 

Scottsdale, Arizona ....................................................................................... 6

Prepared statement of ............................................................................... 9

Additional materials supplied: 

McDowell, Nora, Chairwoman, Fort Mojave Tribal Council of Arizona, 

Statement submitted for the record ............................................................ 40

(1)

OVERSIGHT HEARING ON ‘‘DEVELOPING A 

LEGISLATIVE SOLUTION TO THE INDIAN 

TRUST FUND LAWSUIT’’

Monday, November 3, 2003

U.S. House of Representatives 

Committee on Resources 

Mesa, Arizona 

The Committee met, pursuant to call, at 1:00 p.m., at the Salt 

River Pima-Maricopa Indian Community Lehi Community Center, 

Mesa, Arizona, Hon. J.D. Hayworth [Acting Chairman of the 

Committee] presiding. 

Present: Representatives Hayworth, Flake, Renzi, Faleomavaega, 

and Grijalva. 

Mr. HAYWORTH. This special field hearing of the Committee on 

Resources will come to order. 

The Committee is meeting today to hear testimony on developing 

a legislative solution to the Indian Trust Fund lawsuit. 

A couple of notes important to make here at the outset. First of 

all, we want to thank our Friends of the St. River Maricopa Indian 

community for taking the time to put together on rather short notice, and to allow us to utilize these beautiful facilities. 

Madam President, we appreciate the new Lehi Community Center. We are also appreciative of the number of young people who 

have joined us here today as we bring Congress to the people. On 

so many occasions many of you have traveled to Washington, D.C. 

We joke about that being hardship duty, and it is somewhat of a 

difficulty to come from the southwestern United States back to 

Washington. But we appreciate that very much. 

And, indeed, in keeping with the unique nature of today’s hearing and in gratitude to our hosts here, the Salt River Pima-Maricopa Indian community, I am going to recognize Ricardo Leonard, 

who is a Council member here at Salt River, to offer the invocation. 

If you would all stand and then follow the invocation and join me 

in the Pledge of Allegiance to the Flag. 

Now, Ricardo, if you would offer the prayer. 

Mr. LEONARD. I want to welcome everybody, first of all, to Salt 

River. And thank you very much for coming. Our community appreciates this and I think it is a very good beginning of good relationship. 

[Piman invocation] 

2

Mr. LEONARD. Creator, come to be here today. I ask for strength 

to go through all these papers and we will speak amongst each 

other. Have us speak in a good way, speak with our hearts so that 

we may be coming to conclusions and work together. 

I ask you to bless all the people’s families that they are away 

from at this time. 

I ask that you bless the ones that are traveling at this time. 

Bring them here safely. And as they leave this building, watch over 

them. 

Thank you, Creator, for this beautiful day. For the beautiful rain 

that you gave us, the cooling weather. 

I ask that you watch over this community. Help us to continue 

on as two people, two tribes, one strength, one voice. 

Before the little ones, all the elders, give them strength, one as 

they start their lives, others as they are in their twilight years. 

Help them continue on. 

Thank you for all that you have given us: the plants, the animals, all the land. Thank you for all this. 

Thank you for everything that has been handed down to us from 

our elders. 

Creator, I thank you again for opening up this alley of communication here and having these Congressmen come down here, and 

all these tribal leaders so that we may speak with good hearts, 

with good minds to talk about the things that concern us. 

Mr. HAYWORTH. Thank you very much. 

Now, if you could stand again and please join in the Pledge of 

Allegiance to Our Flag. 

[Pledge of Allegiance.] 

STATEMENT OF THE HON. J.D. HAYWORTH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA 

Mr. HAYWORTH. Thank you. You may be seated. 

Ladies and gentlemen, again we welcome all of you to this field 

hearing as we bring Congress to the people. And, again, especially 

a word of gratitude to our hosts the Salt River Pima-Maricopa 

Indian community in this beautiful new community center. 

The purpose of today’s hearing is to receive the views of tribal 

leaders and individual money account holders regarding the development of legislation by the U.S. Congress to settle matters relating to the Indian Trust Fund lawsuit. 

As we said, we are so honored to be here, the Salt River PimaMaricopa Indian community. 

And as we have noted also, so often in past years Congress has 

held hearings in Washington, D.C., and while the hearings are of 

great value to get on the congressional record the perspective of so 

many different people, they sometimes fail to capture the thoughts 

and views of Americans living outside our nation’s capital or, certainly, a broad array of you because of the difficulty of timing and 

travel and schedules. 

I know that regardless of political party or affiliation, those who 

join me in this field hearing have come to understand during their 

time in Washington that not all knowledge and wisdom emanates 

from Washington, D.C. And to serve the people, it is important to 

come be among the people. 

3

Chairman Richard Pombo, of our Resources Committee, has as 

his desire the goal of holding hearings over the days ahead in 

Indian Country to make sure the perspectives of the first Americans are not forgotten, but absolutely included. And he, and the 

rest of our Committee, though they are unable to be here today certainly appreciate this opportunity to get together. 

This hearing is about trying to write legislation to bring about 

fair, just and equitable closure to the hundreds of thousands of individual Indians who are victims of more than 100 years of mismanagement of their trust account records by the Federal Government. 

No one can argue that if it were not for the class action suit that 

Eloise Cobell filed almost 8 years ago, the Government would never 

have been forced to confront this problem. However, the costs of 

the litigation continue. No one knows exactly what individual 

Indians will receive satisfaction for the injustices they have suffered. 

Few can even agree with a complete historical accounting will be 

achieved in our lifetime, if ever. Meanwhile, hundreds of thousands 

of individual Indians do not know if or when they will receive any 

money they might be owed. Many of these are elders, as we heard 

in the invocation from Ricardo, those in the twilight of life should 

not have to wait any longer. 

We on the Resources Committee are working on a bipartisan 

basis and are determined to identify a way to write a bill that 

brings closure to this terrible episode in American history. We 

want to hear from today’s witnesses what such legislation should 

contain. 

Now, I am pleased to be joined right now by an all Arizona 

panel. We look forward to our friend from American Samoa Eni 

Faleomavaega joining us shortly. But we are so pleased to have our 

good friend from southern Arizona who served so capably on the 

Resources Committee, who serves as the Ranking Member of the 

Minority in lieu of Mr. Faleomavaega being here, our good friend 

Raul Grijalva.

Statement of The Honorable J.D. Hayworth, a Representative in Congress 

from the State of Arizona 

The purpose of today’s hearing is to receive the views of tribal leaders and individual Indian money account holders regarding the development of legislation by the 

U.S. Congress to settle matters relating to the Indian Trust Fund lawsuit. 

I want to thank the Salt River Pima-Maricopa Indian Community for providing 

the facilities and hosting us today. So often in past years, Congress has held its 

hearings in Washington, D.C. While these hearings are valuable to Members of Congress, they sometimes fail to capture the thoughts and views of Americans living 

outside the nation’s capital. 

Chairman Pombo wants to hold hearings over the coming years in Indian Country. I know he and the rest of the Committee appreciate the opportunity to hold one 

here. 

This hearing is about trying to write legislation to bring about fair, just, and equitable closure to the hundreds of thousands of individual Indians who are victims of 

more than 100 years of mismanagement of their trust account records by the federal 

government. 

No one can argue that if it weren’t for the class action suit that Elouise Cobell 

filed almost 8 years ago, the government would never have been forced to confront 

this problem. 

However, the costs of the litigation continue. No one knows exactly when individual Indians will receive satisfaction for the injustices they have suffered. Few can 

4

even agree whether a complete historical accounting will be achieved in our lifetime, 

if ever. 

Meanwhile, hundreds of thousands of individual Indians don’t know if, or when, 

they will receive any money they might be owed. Many of them are elders and 

should not have to wait any longer. 

We on the Resources Committee working on a bipartisan basis are determined to 

identify a way to write a bill that brings closure to this terrible episode in American 

history. We want to hear from today’s witnesses what such legislation should 

contain. 

Mr. HAYWORTH. Mr. Grijalva? 

STATEMENT OF THE HON. RAUL GRIJALVA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA 

Mr. GRIJALVA. Thank you very much. 

And I want to associate myself with the comments that my good 

friend Mr. Hayworth just made. 

Being new to Congress, as a freshman, this issue merits a bipartisan solution and a legislative solution that involves a process toward settlement and a process that creates a fair level playing field 

for tribes and tribal members. 

We need a bipartisan solution, because quite frankly if we look 

at the history of this issue, it has been bipartisan lack of action, 

bipartisan lack of attention at the administrative level, regardless 

of who the President has been or has not been, that brings us to 

this point. 

The trust funds for Indian tribes and for individual members is 

an ongoing conflict that begs for resolution, settlement and today 

to discuss a process by which we begin to craft the bipartisan legislation to lead toward that settlement. 

A cornerstone of that process needs to be fairness. A cornerstone 

of that process needs to be disclosure. A cornerstone of that process 

needs to be that we hear from the people most directly affected, 

and that we do not promote resolutions that have not been confirmed, have not been consented to or at least received advice on 

from affected members and tribal leaders in this country. 

The recent rider in Appropriations is a good example. I opposed 

that rider and it forced many of us to vote against the whole appropriations because instead of seeking solution toward settlement, it 

undercuts the effort that we are trying to make here today to reach 

a bipartisan solution. 

And so I am glad to be here. I want to thank my colleagues from 

Arizona, and in particular my good friend Congressman Hayworth, 

Renzi and Flake for their leadership on this issue in promoting a 

bipartisan solution, and more importantly, in involving those persons and those members, those individuals and those tribes most 

directly affected by the lack of action in Congress and by the lack 

of action in the administrative level. 

So I am glad to be here. And I appreciate very much the opportunity to be part of this hearing. Thank you, sir. 

Mr. HAYWORTH. Thank you very much. 

And now it is my honor to turn to my right, both literally and 

figuratively, the gentleman who represents what used to be part of 

the old Sixth Congressional District, now the new First Congressional District where at one point in this political subdivision, one 

5

out of four in constituents was Native American. The gentleman 

from First District, Congressman Renzi. 

STATEMENT OF THE HON. RICHARD RENZI, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA 

Mr. RENZI. Thank you, Chairman. 

I am grateful. Members of the Committee. I am thankful to be 

here today and to learn, especially from our panel of experts as 

well as to hear from those in the audience, hopefully, when we 

have time after this hearing. 

I also want to thank Raul for his comments. We think we are 

right on point. 

We just went through a tough, tough vote last week and Congressman Hayworth led the charge on it. But just to show you how 

tough it was, those of us who voted against it were voting against 

$59 million for Navajo healthcare. $2.5 billion for wild land fire 

fighting. And the conference report also included $400 million in 

emergency fire fighting to repay 2003 borrowed funds. 

Congressman Hayworth and Congressman Flake know that it 

put us in a position where we were having to vote between the 

needs and desires to serve our first Americans, as Congressman 

Hayworth talked about, our Native American population and firemen, as well as healthcare money. Almost $60 million for 

healthcare upon Navajo. We had to vote against that to get the 

point where we could have this hearing today that Congressman 

Hayworth was so adamant about, of having in the field and 

chairing in order to get this process back on track. 

And so I want to thank Congressman Hayworth, Chairman 

Pombo for allowing this to take place, allowing this hearing to be 

the first step in letting both parties, Republicans and Democrat, 

who were involved in making that rider on the Appropriations such 

a tough vote last week, sending a signal to them that we need to 

get back on track toward this settlement process. 

Thank you, Mr. Chairman. 

Mr. HAYWORTH. Thank you, Mr. Renzi. 

And now we turn to the gentleman who represents the newly 

constituted Sixth District. In the realignment, we changed a few 

things around in the East Valley. But a gentleman who has been 

steadfast in his stewardship of the Resources Committee, the gentleman from the Sixth District of Arizona, Jeff Flake. 

Mr. Flake? 

STATEMENT OF THE HON. JEFF FLAKE, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF ARIZONA 

Mr. FLAKE. Thank you, Congressman Hayworth, Congressman 

Grijalva and Congressman Renzi. I am glad to be here. 

I want to have this chance to listen to the witnesses. 

Those who saw what unfolded last week in Congress saw the 

uglier side of politics. How a rider can be slipped in without due 

process, without hearings being held and without due deliberation. 

Hopefully what you witness today is the better side of politics and 

the better side of Congress. 

We are coming to hear concerns and to get input into the drafting of legislation. 

6

I am glad to be here and look forward to the testimony. 

Thanks. 

Mr. HAYWORTH. Thank you, Congressman Flake. 

As using the prerogative of the Chair, I would endorse and second the comments of my colleagues on both sides of aisle. 

Let this hearing bring out the best in Congress by listening directly to the people and coming to the people in stark contrast to 

the behavior we saw last week as some staffers on the Appropriations Committee working with some in the Administration sought 

essentially to short circuit our legislative process. And that is something that we all decry, and something that we will fight against, 

and it was evidenced by the no votes on the Interior Conference Report. 

Our witnesses who join us today include our hostess, the President of the Salt River Pima-Maricopa Indian community, I want to 

make sure I get that right because on some designation, sometimes 

some of the words are left out. But I am going to get it absolutely 

right. The Salt River Pima-Maricopa Indian community, our friend 

President Joni Ramos is here. 

Her testimony will be followed by John Berrey, from the Intertribal Monitoring Association of Indian Trust Funds out of Albuquerque, New Mexico. 

Calvert Garcia, who is the President of the Nageezi Chapter of 

the Navajo Nation. Calvert, we are glad you are here. 

And Ervin Chavez, the Shii Shi Keyah Association of Bloomfield, 

New Mexico. 

We welcome all our witnesses. 

Witnesses, if you would stand with me. It has been our custom 

to administer the oath prior to testimony. And I would ask you to 

stand and raise your right hand. 

[Witnesses sworn.] 

Mr. HAYWORTH. Let the record show that all witnesses answered 

in the affirmative. 

And, again, we welcome you here for your comments. 

A couple of notes on this. While this will be, perhaps, a little less 

structured than what transpires in Washington, your entire statements will be submitted for the record. 

And to facilitate dialog, we like to try to limit comments, these 

opening comments to about 5 minutes. And correspondingly, as we 

go through questions, each member will have 5 minutes to respond 

to questions. 

Now, do not worry. There is no some sort of little charged electric 

button to give you a jolt if the statement exceeds 5 minutes. But 

our purpose here is to get your statements on the record, and then 

to really get into some questions that we believe will help move us 

toward a legislative solution. 

So with that, we turn our hostess, President Ramos. Thank you 

very much for coming. Your entire statement is included in the 

record without objection, and we welcome you for your testimony 

this afternoon. 

STATEMENT OF JONI RAMOS, PRESIDENT,

SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY 

Ms. RAMOS. Thank you. 

7

Please excuse me. I am a little bit sick here. 

Congressman J.D. Hayworth, Congressman Rick Renzi, members 

of the Committee and distinguished guests, welcome to the Salt 

River Pima-Maricopa Indian Community. We at the Salt River 

Pima-Maricopa Indian Community are pleased to host your House 

Resources field hearing here at the Lehi Community Building. The 

community of Lehi is within the boundary of the Salt River Indian 

Community and its members play an active and vibrant role in setting the course of the future of our government. 

First, I want to take a moment to acknowledge Congressman 

Hayworth for your personal effort in attempting to pull a legislative rider from the Interior Appropriation’s bill that extends the 

time that the Department of Interior must begin the process of a 

historical accounting of trust fund records. Thank you very much 

for that. 

While the efforts of both yourself and the Native American Caucus fell short, tribal communities, including Salt River, are grateful 

to have a strong vice in Congress. As a tribal leader, I know that 

your willingness to support this country’s Native American nations 

is, sometimes, at personal political risk. 

Last week’s vote brings to light significance of Indian trust reform and the potential for adverse impact on the overall trust relationship regardless of each tribes’ personal perspective on the 

Cobell v. Norton court proceedings. Apart from the number of IIM 

accounts that a tribe or an individual tribal members may have, all 

tribes are significantly affected by the Cobell litigation because it 

is driving trust reform and the Bureau of Indian Affairs reorganization and re-engineering efforts. 

Our perspective on developing a legislative solution to the Indian 

trust fund lawsuit is that any proposed settlement must include 

the participation of both parties in a structured mediated negotiated process. Also, keep in mind that any negotiated settlement 

must be conducted in good faith and not have an adverse impact 

on tribal governments. 

Our point of view on a legislative solution to the trust fund lawsuit is in line with the October 17th letter that was sent from Honorable J.D. Hayworth and Honorable Dale Kildee, Co-Chairs of the 

Native American Caucus, to Chairman Taylor and Ranking Member Norm Dicks of the House Appropriations Committee. 

The letter specifically states: ‘‘We believe both sides are willing 

to sit down to negotiate a fair and expedited settlement. With the 

conclusion of the recent trial, many unresolved issues have now 

been cleared by the court order. For instance, it is now clear what 

the nature and scope of the IIM Trust accounting is. This makes 

a negotiated settlement between the parties more timely and easier.’’ 

In achieving an equitable settlement, the parties must adhere to 

certain basic principles that will protect the overall integrity of 

such negotiations and ensure proper resolve for both the plaintiffs 

and true trust reform. These following principles are consistent 

with those voiced by other tribal leaders in Indian Country regarding any proposed settlement. 

And the basic principles for the settlement are: 

8

(1): Do you reopen issues that have already been settled. Rather, 

use the previously settled issues to narrow the scope of negotiations. This will be both equitable and efficient and it would not 

override any preceding court decisions; 

(2): Issues already settled by the court should determine the 

legal parameters and act as a foundation for any settlement negotiations. For example, the court has ordered full accountability by 

the Department of Interior with relation to its trust obligations; 

(3): Any negotiated settlement process should be consistent with 

the Cobell litigation and should distinguish accounting issues from 

trust reform issues. 

For example, the accounting issues involved in the lawsuit pertain to demonstrating what happened in the past, while trust reform issues deal not only with accounting for trust assets in the future but, more importantly, with properly carrying out the Federal 

Government’s fiduciary duties; 

(4): There should be full disclosure of material documents and 

facts in any negotiated settlement process. 

For example, the Government must have the burden of producing 

all records from all government agencies and contractors pertaining 

to trust fund claims; 

(5): There should be no preset cap for settlement prior to negotiations. A preset cap would be diametrically opposed to good faith negotiations. More importantly, a preset cap would be tantamount to 

a violation of the ‘‘takings clause’’ of the Fifth Amendment of the 

United States Constitution. The Supreme Court made it clear in 

Babbitt v. Youpee that trust assets, no matter how small, cannot 

be without just compensation; 

(6): Finally, any settlement claims must be recovered from the 

Judgment Fund codified at 31 USC §1304. Currently, Interior appropriations intended for Indian programs is being diverted to bear 

the burden of litigation costs. This is not consistent with congressional intent in the appropriation of these funds. Use of the Judgment Funds for settlement would ensure that Interior appropriations would be used for their intended purposes, which is to provide 

much needed resources to underfunded Indian programs. 

The Department of Interior’s trust reform and reorganization effort has gone far beyond the scope and intent of the Cobell litigation and the court’s decisions in that case. Creating additional layers of government and the shifting of organizational boxes and 

trust duties is not the answer to true trust reform. Nor does a 

forces or a capped settlement provide equitable relief to Native peoples who have suffered form injustices far too long. The efforts of 

this Committee and its members to seek a fair and just solution 

to this long-standing issue are commendable. 

By interacting and communicating at these field hearings held in 

Indian Country, we are reaffirming and ensuring our governmentto-government relationship in a mutually respectful manner. 

Thank you for the opportunity to speak. 

In closing, we thank you for coming to our home and affording 

us this opportunity to share with you our recommendations for any 

mediated settlement to the Cobell litigation. Please extend our appreciation to Chairman Pombo for his work as Chairman of the 

House Resources Committee. 

9

And also I would like to recognize Councilman Ricardo Leonard 

and Councilman Tony Collins, Mr. Vice President Leonard Rivers 

and several of our students from our Desert Eagle High School. 

Thank you very much. 

[The prepared statement of Ms. Ramos follows:]

Statement of Joni M. Ramos, President,

Salt River Pima-Maricopa Indian Community 

Congressman J.D. Hayworth, Congressman Rick Renzi, members of the Committee, and distinguished guests, welcome to the Salt River Pima-Maricopa Indian 

Community. We at the Salt River Pima-Maricopa Indian Community are pleased to 

host your House Resources field hearing here at the Lehi Community Building. The 

community of Lehi is within the boundary of the Salt River Indian Community and 

its members play an active and vibrant role in setting the course of the future for 

our government. 

First, I want to take a moment to acknowledge Congressman Hayworth for your 

personal effort in attempting to pull a legislative rider from the Interior Appropriation’s bill that extends the time that the Department of Interior must begin the 

process of historical accounting of trust fund records. 

While the efforts of both yourself and the Native American Caucus fell short, tribal communities, including Salt River, are grateful to have a strong voice in Congress. As a tribal leader, I know that your willingness to support this country’s Native American nations is, sometimes, at personal political risk. 

Last week’s vote brings to light the significance of Indian trust reform and the 

potential for adverse impact on the overall trust relationship regardless of each 

tribes’ personal perspective on the Cobell v. Norton court proceedings. Apart from 

the number of IIM accounts that a tribe or individual tribal members may have, 

all tribes are significantly affected by the Cobell litigation because it is driving trust 

reform and the Bureau of Indian Affairs (BIA) reorganization and reengineering efforts. 

Our perspective on developing a legislative solution to the Indian trust fund lawsuit is that any proposed settlement must include the participation of both parties 

in a structured, mediated, negotiated process. Also, keep in mind that any negotiated settlement must be conducted in good faith and not have an adverse impact 

on tribal governments. 

Our point of view on a legislative solution to the trust fund lawsuit is in line with 

the October 17th letter that was sent from Honorable J.D. Hayworth and Honorable 

Dale Kildee, Co-Chairs of the Native American Caucus to Chairman Taylor and 

Ranking Member Norm Dicks of the House Appropriations Committee. The letter 

specifically states: 

Quote, ‘‘We believe both sides are willing to sit down to negotiate a fair and expedited settlement. With the conclusion of the recent trial, many unresolved issues 

have now been cleared up by the court order. For instance, it is now clear what the 

nature and scope of the IIM Trust accounting is. This makes a negotiated settlement between the parties more timely and easier.’’ End quote. 

In achieving an equitable settlement, the parties must adhere to certain basic 

principles that will protect the overall integrity of such negotiations and ensure 

proper resolve for both the plaintiffs and true trust reform. These following principles are consistent with those voiced by other tribal leaders in Indian Country regarding any proposed settlement solution. 

BASIC PRINCIPLES FOR SETTLEMENT 

1. Do not reopen issues that have already been settled. Rather, use the previously 

settled issues to narrow the scope of negotiations. This would be both equitable 

and efficient, and it would not override any preceding court decisions. 

2. Issues already settled by the court should determine the legal parameters and 

act as a foundation for any settlement negotiations. For example, the court has 

ordered full accountability by the Department of Interior with relation to its 

trust obligations. 

3. Any negotiated settlement process should be consistent with the Cobell litigation and should distinguish accounting issues from trust reform issues. For example, the accounting issues involved in the lawsuit pertain to demonstrating 

what happened in the past, while trust reform issues deal not only with accounting for trust assets in the future but, more importantly, with properly 

carrying out the federal government’s fiduciary duties. 

10

4. There should be full disclosure of material documents and facts in any negotiated settlement process. For example, the government must have the burden 

of producing all records from all government agencies and contractors pertaining to the trust fund claims. 

5. There should be no preset cap for settlement prior to negotiations. A preset cap 

would be diametrically opposed to good faith negotiations. More importantly, 

a preset cap would be tantamount to a violation of the ‘‘takings clause’’ of the 

Fifth Amendment of the United States Constitution. The Supreme Court made 

it clear in Babbitt v. Youpee that trust assets—no matter how small—cannot 

be taken without just compensation. 

6. Finally, any settlement claims must be recovered from the Judgment Fund 

codified at 31 U.S.C. § 1304. Currently, Interior appropriations intended for 

Indian programs is being diverted to bear the burden of litigation costs. This 

is not consistent with congressional intent in the appropriation of these funds. 

Use of the Judgment Funds for settlement would ensure that Interior appropriations would be used for their intended purposes which is to provide muchneeded resources to underfunded Indian programs. 

The Department of Interior’s trust reform and reorganization effort has gone far 

beyond the scope and intent of the Cobell litigation and the court’s decisions in that 

case. Creating additional layers of government and the shifting of organizational 

boxes and trust duties is not the answer to true trust reform. Nor does a forced or 

a capped settlement provide equitable relief to Native peoples who have suffered 

from injustices for far too long. The efforts of this Committee and its members to 

seek a fair and just solution to this long-standing issue are commendable. 

By interacting and communicating at these field hearings held in Indian Country, 

we are reaffirming and ensuring our government-to-government relationship in a 

mutually respectful manner. Thank you for the opportunity to speak. 

In closing, we thank you for coming to our home and affording us this opportunity 

to share with you our recommendations for any mediated settlement to the Cobell 

litigation. Please extend our appreciation to Chairman Pombo for his work as 

Chairman of the House Resources Committee. 

Mr. HAYWORTH. Madam President, we thank you. 

To the Council members and, again, to the young people, the 

high school, who are here along with interested observers, we welcome you. And thank you for the chance to be here among friends 

at your home. 

And I would be remiss as the Chair if I did not note the addition, 

rather dramatic entrance, of our Ranking Democratic Member. 

Now, we talk about the southwest, and geographically you are so 

far southwest, Eni, you are almost east of where the globe is. The 

Delegate from Samoa, our good friend, Eni Faleomavaega. 

Mr. Faleomavaega, thank you for being here today. 

Mr. FALEOMAVAEGA. Well, Mr. Chairman, I apologize for being a 

little late. My canoe had a hole in it and there was such a tremendous storm on my way up north. 

But I do want to if I may just to offer my commendation, and 

thank you, Mr. Chairman, for your initiative, your leadership not 

only as a Co-Chairman of our Native American Indian Congressional Caucus, but for the years that I have had the privilege of 

working with you in dealing with Native American issues. 

I think the people of the good State of Arizona are to be proud 

of the fact that through your leadership and interest, and sensitivity to the needs of our Native American communities throughout 

the United States, is to be commended. 

I also note my good friend Mr. Flake and Mr. Renzi are also here 

with us, and my hermano here, Mr. Grijalva. 

I am just happy to be here, and thank you for doing this. We 

need this. This is such an important issue for our Native American 

people. I think there has been 100 years of neglect, pure negligence 

11

if you will, Mr. Chairman. The fact that 2 point some billion dollars 

are in question in terms of the trust responsibility that was supposed to be vested in the Federal Government, specifically the Department of Interior. Some 500,000 individual Native American accounts and some 1,300 tribal accounts are not accounted for; the 

list goes on and on, Mr. Chairman. I sincerely hope that through 

these series of hearings that our Committee will be holding, and 

I also commend Senator Campbell for the initiative that he has 

taken that, hopefully, we will find some kind of a solution to the 

situation that we find ourselves in. 

I certainly want to offer my personal welcome to the leaders of 

our Indian community here in the region. 

I just want to say please take care of my people. There are a couple of Samoans that live here in the State of Arizona. They tend 

to play football, Mr. Chairman. I do not know. Our first love is 

rugby, but now we seem to enjoy football because they pay more 

money. 

But I do want to offer my warm welcome to the members of our 

Native American community who are here in attendance. 

I sincerely hope that the substance that we will be putting into 

at this hearing, Mr. Chairman, will be such that our Chairman, 

Mr. Pombo, and Mr. Rahall and all of us, as members of the Committee, will truly find a solution to this very serious problem. 

And with that, Mr. Chairman, again I thank you for having this 

hearing here in Arizona. 

Mr. HAYWORTH. And we thank the gentleman from Samoa for his 

statement. 

We will continue the testimony now. We are pleased to call on 

John Berrey, who is representing the Intertribal Monitoring Association of Indian Trust Funds. 

Mr. Berrey? 

STATEMENT OF JOHN BERREY, INTERTRIBAL MONITORING 

ASSOCIATION OF INDIAN TRUST FUNDS 

Mr. BERREY. Well, thank you very much. 

I am also the Chairman of the Quapaw Tribe in Oklahoma. 

And I just want to say thanks to all of you for having these field 

hearings. On behalf of ITMA, we are very pleased that we are able 

to be part of it. 

ITMA is very concerned about the attempts, the three or four attempts over time that the Committee that we do not believe has 

jurisdiction over Indian affairs has tried to bring some end to this 

lawsuit. And we just appreciate you all taking control over it, and 

we want to work with you in anyway we can as this goes forward. 

We also want to thank some of the people who have long time 

been supporters of American Indians and who stood up for our 

rights last week. In particular, I would like to thank Congressman 

Pombo, Congressman Tom Cole from Oklahoma, my Representative 

Brad Carson from Oklahoma’s Second District, Congressman 

Rahall, Congressman Kildee, Congressman Hayworth and Congressman Renzi. We appreciate you all standing up. We know it 

meant a lot for you and what you said meant a lot, especially in 

light of what you were voting against. 

12

We also want to thank the Salt River Pima-Maricopa Indian 

Community. I do not know if people understand this, but the Salt 

River Tribe is recognized throughout Indian County as a real leader in self-governance and progressive tribal management. And my 

tribe, for instance, the Quapaw Tribe, looks to them for guidance 

in how to get from where we are at to where they are at today. And 

we are constantly watching them and trying to learn from what 

they do. And we appreciate them hosting this meeting. 

ITMA was established for the specific purposing of monitoring 

DOI’s reform efforts in the management of the Indian trust. The 

member tribes of ITMA have significant trust lands and many of 

the tribes that are part of ITMA, including the ones from Rocky 

Mountain and Great Plains, those two regions alone, hold 68 percent of the tribal trust lands and over 100,000 IIM accounts. ITMA 

member tribes, therefore, have a great interest in reform efforts 

and will protect the Indian trust; both for tribal governments and 

IIM accountholders. 

The recent focus on ITMA efforts in the arena of trust reform has 

been to protect tribal sovereign governmental rights. Specifically, 

ITMA has been concerned that the trust reforms do not limit tribal 

government authority over tribal trust assets which comprise 89 

percent of the total trust. 

We have been actively involved in the last 5 years working with 

a Solicitor’s Office in Interior trying to develop some methods to 

solve some of the tribal litigation that is out there. There is some 

30 pieces of litigation, the tribes that are similar to the Cobell lawsuit, and we have been actively working with the Solicitor’s Office 

to try to come up with a plan for that. 

At ITMA we credit the Cobell lawsuit for focusing the national 

attention on the Department of Interior’s serious historical mismanagement, however ITMA believes that the time has arrived to 

consider options to resolve this watershed litigation. We believe 

that this contentious and costly litigation no longer serves the best 

interests of individual Indian money accountholders and the continuation of this suit will result in greater negative impact on 

DOI’s ability to deliver trust services to tribes and individual beneficiaries. 

We believe that the current organization efforts of the DOI is a 

response to Cobell litigation and we believe it is premature until 

the completion of the ‘‘To Be’’ Trust reengineering effort is done 

and they follow what that model guides them to as opposed to reorganization before reengineering. 

With that, there is a few things that we think are critical in part 

of the settlement process for ITMA: 

(1): Is the authorizing committees of Congress must remain engaged in the development of settlement processes to ensure that 

the parties maintain a commitment to the settlement process; 

(2): We believe that a resolution of the Cobell litigation must not 

impact the Interior budget in a manner that will deprive tribes of 

critical governmental operations funding and diminishing the services for individual beneficiaries. 

I had a talk with Mr. Carson last week before the vote. And they 

were mentioning things like cannibalization of the Indian programs. And that kind of discussion really scares us. It makes us 

13

very nervous because, as you know, there are a lot of tribes out 

there that are not big gaming tribes that rely on the help that they 

get from the Department of Interior. And those threats of the cannibalization creates a lot of fear within us for our people; 

(3): We also believe that it must be a voluntary process that 

allows individuals that decide to stay in litigation to have that 

opportunity; 

(4): And we also, the Salt River spoke, we believe that the Judgment Fund should be opened up for settlement. 

We believe that the process of settlement for IIM trust fund related to claims must be developed with tribal input; both from tribal governments and from accountholders. As a long-standing 

watchdog of DOI trust management, ITMA should also be involved 

in the development of settlement processes. As with any negotiated 

settlement of legal claims, the scope and specific details of a settlement process need to be developed by all parties who will be affected. Tribes participating in the development of a settlement 

mechanism must do so in a decisionmaking and meaningful manner. 

You know, as the Chairman of the Quapaw Tribe, I am voted, 

I was elected to represent the individual money accountholders 

within the Quapaw Tribe. And we believe the tribal leadership, because of their positions as elected representatives, should be part 

of the discussion. 

And before I close, I would like to take my hat off as ITMA representative and just talk to you a minute about as the Chairman 

of the Quapaw Tribe. 

The Quapaw Tribe is one of the 30 tribes that have these very 

complex litigations in court. And we have gone through a process 

of settlement. We have come to a verbal agreement with the Department of Justice and the Department of Interior in the form of 

settlement for our own accounting. And the way we got there was 

through a conflict assessment. 

The National Congress of American Indians are supporting the 

idea of a conflict assessment. I have spoken to the Administration 

of the Department of Interior about it. And we recommend that you 

would talk to the U.S. Institute on Environmental Conflict Resolution here in Tucson. They are funded through the House Resources 

Committee. They are an offshoot of the Udall Foundation. 

A conflict assessment is not the settlement process; it is a way 

to bring reality to the rhetoric. You know, this lawsuit is like a big 

bowl of spaghetti, and it is a way to straighten out those noodles 

and for people to understand more clearly who should be at the 

table, what the issues are and how they should be addressed. 

And if you look at a settlement process over a time line, if you 

start first with a conflict assessment, the length of the settlement 

process is shortened quite a bit because it sets the table at the beginning and gives everyone a more clear opportunity to understand 

what the issues are. 

And what typically happens after the conflict assessment, a neutral party comes in, interviews all of the stakeholders and makes 

a report. And that report gives you options of how the settlement 

process should continue. And if you have multiple claims, they 

might decide this claim should stay in court, this claim should be 

14

a part of a three judge panel or binding arbitration, or this could 

be mediated. But it gives you the opportunity to breakdown all of 

these myriad of issues and look at them with a clear head and a 

clear vision on how you go forward. 

And with NCAI and with a lot of tribal leaders, I think, we 

would really like you to consider working through a conflict assessment before you delve into a settlement process. 

I appreciate your time. Thank you. 

[The prepared statement of Mr. Berrey follows:]

Statement of John Berrey, Chairman, Quapaw Tribe. Oklahoma, 

representing the Intertribal Monitoring Association on Indian Trust Funds 

Honorable members of the House Committee on Resources, I am John Berrey, 

Chairman of the Quapaw Tribe of Oklahoma and I am honored to be here today 

to present testimony on behalf of the Inter-Tribal Monitoring Association on Indian 

Trust Funds (ITMA). The members of ITMA commend this Committee for conducting these field hearings on such a critical issue to Indian Tribes and their members. ITMA has been concerned that several attempts that have been made to address settlement of the Cobell lawsuit in the wrong Congressional Committees and 

we completely support the process being managed in this Committee, the authorizing Committee, with jurisdiction and authority regarding the affairs of Native 

Americans. 

Further, I would like to express on behalf of ITMA and myself our sincere appreciation to those members of the Committee who have long supported Native Americans and who most recently stood up and fought for the rights of the individual 

Indians. We thank, in particular, our most recent champions, Congressman Pombo, 

Congressman Tom Cole, my representative Congressman Brad Carson from Oklahoma’s 2nd Congressional District, Congressman Rahall, Congressman Kildee and 

Congressman J.D. Hayworth from this great State of Arizona. I would also like to 

thank our host tribe, the Salt River Pima-Maricopa Indian Community, a tribe recognized throughout Indian Country as a leader in terms of self-governance and progressive tribal management. 

ITMA was established for the specific purpose of monitoring DOI’s reform efforts 

in the management of the Indian trust. The member tribes of ITMA are holders of 

significant trust assets and govern tribes that include many IIM account holders. 

For example, most tribes from the Rocky Mountain and Great Plains Regions are 

members of ITMA and these two regions together hold 68% of tribal trust lands and 

have over 100,000 IIM account holders. ITMA member Tribes, therefore, have a 

great interest in reform efforts that will protect the Indian trust; both for Tribal 

governments and IIM account holders. 

The recent focus of ITMA efforts in the arena of trust reform has been to protect 

tribal sovereign governmental rights. Specifically, ITMA has been concerned that 

trust reform efforts do not limit Tribal government authority over tribal trust assets 

which comprise 89% of the total trust currently overseen by the DOI. Additionally, 

ITMA has been actively involved for the last five years in the discussion and development of a settlement process for Tribal claims against the United States for trust 

mismanagement. 

ITMA credits the Cobell lawsuit for focusing national attention on the Department of Interior’s serious historical mismanagement of the American Indian trust. 

However, ITMA believes that the time has arrived to consider options to resolve this 

watershed litigation. Contentious and costly litigation no longer serves the best interests of all IIM account holders and the continuation of this suit will likely result 

in a greater negative impact on DOI’s ability to deliver needed trust services to 

Tribes and individuals beneficiaries. 

The current reorganization efforts of DOI appear to be directly responsive to the 

Cobell litigation and are premature until the completion of the ‘‘To Be’’ Trust reengineering effort that is creating the model for the future improved delivery of 

Trust services to Tribes and their members. Further, ITMA is concerned that the 

litigation may outlive many IIM account holders who are waiting for financial relief 

from the mismanagement of their accounts. 

Therefore, ITMA supports the development of settlement options consistent with 

the following: 

1. The authorizing committees of Congress must remain engaged in the development of a settlement process to ensure that the parties maintain a commitment to settlement options. ITMA member Tribes are concerned that the reVerDate 0ct 09 2002 14:05 May 25, 2004 Jkt 088533 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 J:\DOCS\90265.TXT HRESOUR1 PsN: KATHY
15

cent action to stay the requirements of Judge Lambreth’s September 25, 2003, 

Order in the Cobell litigation, provided it passes the Senate, will deter active 

efforts to work toward settlement. 

2. A resolution of the Cobell litigation must not impact the Interior budget in a 

manner that will deprive Tribes of critical governmental operations funding 

and diminish the services for individual beneficiaries. ITMA believes that 

Tribes should not have to suffer for the Department of Interior’s historical mismanagement of the Indian trust. 

3. Utilization of a settlement process must be completely voluntary for the individual Indian. IIM account holders must have the right to choose to utilize a 

settlement process or to remain part of the ongoing litigation. The current legal 

remedies available to IIM account holders must not be affected by settlement 

legislation. 

4. Funds to settle with IIM account holders should come from the Judgment Fund 

as provided by 13 U.S.C. 1304 and should not impact funding for critical services to Tribes. 

ITMA believes that a process for the settlement of IIM trust fund-related claims 

must be developed with tribal input; both from tribal governments and from account 

holders. As a long-standing watchdog of DOI trust management, ITMA should also 

be involved in the development of a settlement process. As with any negotiated settlement of legal claims, the scope and specific details of a settlement process need 

to be developed by all the parties who will be affected. Tribes participating in the 

development of a settlement mechanism must do so in a decisionmaking and meaningful manner. ITMA stands ready to assist in a meaningful capacity in the critical 

efforts. 

Before closing I would like to remove my hat as the representative of ITMA and 

speak as the Chairman of the Quapaw Tribe and ask you to embrace the time created by the very inappropriate legislative rider and begin a settlement process. 

There is tremendous support in Indian Country to begin a settlement process with 

a ‘‘conflict assessment.’’ A ‘‘conflict assessment’’ can be done in a very short time 

and provide all stakeholders and affected parties a more clear description of the underlying issues as well as options to address the plethora of claims and replacing 

rhetoric with reality. I ask that you and your staff begin with a discussion with the 

U.S. Institute for Environmental Conflict Resolution in Tucson; The Institute has 

the experts and the ability to provide consultation regarding the process and the Institute gets its funding through your Committee. I have asked the Institute to provide Chairman Pombo and Vice Chairman Rahall with a letter describing how they 

can help creating a settlement process that can work. 

Thank you.

The Intertribal Monitoring Association on Indian Trust Funds (ITMA) is a representative organization of the following 59 federally recognized tribes: Central 

Council of Tlingit & Haida Indian Tribes, Kenaitze Indian Tribe, Metlakatla Indian 

Tribe, Hopi Nation, Tohono O’odham Nation, Salt River Pima-Maricopa Indian Community, Fort Bidwell Indian Community, Ewiiaapaayp Band of Kumeyaay Indians, 

Hoopa Valley Tribe, Yurok Tribe, Soboba Band of Luiseno Indians, Southern Ute 

Tribe, Coeur D’Alene Tribe, Nez Perce Tribe, Passamaquoddy-Pleasant Point Tribe, 

Penobscot Nation, Lac Vieux Desert Band of Lake Superior Chippewa, Sault Ste. 

Marie Tribe of Chippewa Indians, Grand Portage Tribe, Leech Lake Band of Ojibwe, 

Red Lake Band of Chippewa Indians, Blackfeet Tribe, Chippewa Cree Tribe of 

Rocky Boy, Confederated Salish & Kootenai Tribe, Crow Tribe, Fort Belknap Tribes, 

Fort Peck Tribes, Northern Cheyenne Tribe, Winnebago Tribe, Fallon PaiuteShoshone Tribes, Walker River Paiute Tribal Council, Jicarilla Apache Nation, 

Mescalero Apache Tribe, Pueblo of Cochiti, Pueblo of Laguna, Pueblo of Sandia, 

Three Affiliated Tribes of Fort Berthold, Turtle Mountain Band of Chippewa, 

Absentee Shawnee Tribe, Alabama Quassarte Tribe, Cherokee Nation, Kaw Nation, 

Kiowa Tribe of Oklahoma, Iowa Tribe, Muscogee Creek Nation, Osage Tribe, 

Quapaw Tribe, Thlopthlocco Tribal Town, Confederated Tribes of Umatilla, Confederate Tribes of Warm Springs, Cheyenne River Sioux Tribe, Sisseton-Wahpeton 

Sioux Tribe, Chehalis Tribe, Confederated Tribes of Colville, Quinault Indian 

Nation, Forest County Potawatomi Tribe, Oneida Tribe of Wisconsin, Eastern 

Shoshone Tribe, and the Northern Arapaho Tribe. 

Mr. HAYWORTH. And, John, we thank you for your testimony. 

Now we turn to Calvert Garcia, who is President of the Navajo 

and Nageezi Chapter of the Sovereign Navajo Nation. 

President Garcia, welcome and we appreciate your testimony, sir. 

16

STATEMENT OF CALVERT GARCIA, PRESIDENT,

NAGEEZI CHAPTER, NAVAJO NATION 

Mr. GARCIA. Thank you, Congressman Hayworth, Congressman 

Flake, Congressman Renzi who represents the majority of the Navajo Nation in the northeast Arizona. So welcome. And the other 

two gentlemen with the Resource Committee. 

Representing as the elected official up in the northeast quarter 

of Navajo Nation, and I am an elected official. I also represent Navajo. President Shirley has given a task to represent Navajo Nation 

down here. So I appreciate being here. 

Like I said, my name is Calvert Garcia. And I represent the Navajo people on the northeast edge of Navajo Nation. I am also an 

Indian allottee and am very concerned about the legislation being 

proposed. 

Thank you for the invitation and opportunity to provide my 

views to the Committee. 

Most of the Navajo Indian allottees are in the northeast section 

of the Navajo Nation. Currently there are 5,200 Navajo allottees 

who have individual Indian Monies Account and receive monthly 

royalty payment off their Indian Allotment Land. Most of the IIM 

accountholders receive monthly royalty payments from oil and gas 

production off their Indian allotment land from the Bureau of 

Indian Affairs. 

When Judge Royce Lamberth disconnected the Internet service 

in December of 2001, it had a devastating impact on our 

accountholders, leaving with no financial resource. The majority of 

the IIM accountholders are elderly and rely totally on their monthly royalty payment to meet their basic needs. Immediately upon 

the disruption of IIM payments, my neighboring community leaders coordinated an effort with myself to request financial assistance 

from the Navajo Nation Council and Navajo Nation President for 

temporary relief. The Navajo Nation President and Council appropriated $535,000 to assist IIM accountholders for the northeast section of accountholders. 

Many of the individual Indian accountholders are aware that the 

Bureau of Indian Affairs and the U.S. Government have mismanaged their trust funds for many years. The allottees in the 

Huerfano and Nageezi communities agree that it is important for 

Congress to explore options in resolving the Cobell Trust Fund litigation. Although resolution is needed, we cannot adapt a quick fix 

solution without understanding why it has taken the government 

over 100 years to address their gross mismanagement. The Navajo 

allottees are demanding that government account for the millions 

of acres of land and account to proper beneficiaries, which will also 

identify the funds it received and invested from these leases. Since 

the inception of the Cobell lawsuit, the courts have found the government breached its trust responsibilities to the allottees, since 

the creation of Indian Trust Fund in 1887. As accountholders, we 

know the Federal Government has abused our trust funds and provided injustices to many of our tribal and individual Indian Monies 

accountholders and beneficiaries. 

Most recently, your colleagues in the Senate have introduced 

Senate Bill 1770, which is called ‘‘Indian Money Account Claim 

Satisfaction Act of 2003.’’ The establishment of the foundation is 

17

foremost important in settling this case. This will establish that 

Indian Money Account Claim Satisfaction, which would study the 

records, develop an accounting method and determine the payment 

of accountholders. The following method will be a way to address 

the history determination of payments and nonpayments, and enable accountholders to accept the method and dismiss themselves 

from the Cobell lawsuit. 

If the accountholders do not agree with the IMACS, then the 

allottees and accountholders would continue to participate with the 

Cobell lawsuit. It is important to many accountholders that settling 

the Cobell lawsuit should include damages for past mismanagement and implementing reforms to protect our trust assets for the 

future. 

The Navajo allottees also have serious concerns over the current 

Department of Interior’s Reorganization efforts. They have created 

many wrongdoings and mishandling billions of Indian Trust dollars. Another option is to allow Navajo allottees to utilize the 

Indian Self Determination by contracting and administering funds 

directly to accountholders. The contracting of self-determination 

would ensure the allottees’ ability to effectively manage without 

being obstructed by the Interior Department. 

Proper historical accounting over the last 115 years and past 

damages would be a crucial part of any proposed settlement. The 

Cobell v. Interior Department lawsuit can be settled, but the 

United States first must participate in settlement talks with honesty and integrity, although the legislation being proposed will not 

please everyone. 

Also of importance is to establish a trust account within the 

Treasury that would be available to the trust beneficiaries. We recommend that the funds allocated to the trust account not come 

from the program account of the Department of the Interior. Remember, the government’s misdeeds should not impede on appropriated Indian program funds. 

And I thank you. 

[The prepared statement of Mr. Garcia follows:]

Statement of Calvert Garcia, President & Allottee,

Nageezi (N.M.) Navajo Indians 

Greetings Chairman Pombo, Ranking Minority Member Rahall, and Members of 

the Resources Committee. Welcome to Mesa, Arizona. My name is Calvert Garcia 

and I serve as a Chapter President in Nageezi, New Mexico, which is located on 

the Eastern Edge of the Great Navajo Nation. I am also an Indian Allottee and am 

very concerned about the legislation being proposed. Thank you for the invitation 

and opportunity to provide my views to your Committee. 

Most of the Navajo Indian Allottees are in the North East section of the Navajo 

Nation. Currently there are 5,200 Navajo Allottees who have Individual Indian 

Monies (IIM) Accounts and receive royalty payments off their Indian Allotment 

Land. Most of the IIM Account holders receive monthly royalty payments from oil 

and gas production off their Indian Allotment land from the Bureau of Indian Affairs. 

When Judge Royce Lamberth disconnected the Internet service in December of 

2001, it had a devastating impact on our account holders, leaving them with no 

financial resources. The majority of the IIM account holders is elderly and relies totally on their royalty payments. Immediately upon the disruption of IIM payments, 

my neighboring community leaders coordinated an emergency financial assistance 

from the Navajo Nation Council and Navajo Nation President for temporary relief. 

The Navajo Nation President and Council appropriated $535,000.00 to assist IIM 

Account holders. 

18

Many of the Individual Indian Account (IIM) holders are aware that the Bureau 

of Indian Affairs (BIA) and the United States Government have mismanaged their 

trust funds. The- Allottees in the Huerfano and Nageezi communities agree that it 

is important for Congress to explore options in resolving the Cobell Trust Fund litigation. Although resolution is needed, we cannot adapt a ‘‘quick fix’’ solution without understanding why it has taken the government over 100 years to address their 

gross mismanagement. The Navajo Allottees are demanding the government to account for the millions of acres of land and account to proper beneficiaries, which will 

also identify the funds it received and invested from leases. Since the inception of 

the Cobell Lawsuit, the courts have found the government breached its trust responsibilities to the Allottees, since the creation of ‘‘Individual Indian Trust in 1887.’’ 

As account holders, we know the federal government has abused our trust funds 

and provided injustices to many of our tribal and Individual Indian Monies (IIM) 

account holders and beneficiaries. 

Most recently, your colleagues in the Senate have introduced Senate Bill 1770, 

which is called, ‘‘Indian Money Account Claim Satisfaction Act of 2003.’’ The establishment of the foundation is foremost important. This will establish the Indian 

Money Account Claim Satisfaction (IMACS), which would study the records, develop 

an accounting method, and determine the payment of account holders. The following 

method would be a way to address the history determination of payments and nonpayments, and enable account holders to accept the method and dismiss themselves 

from the Cobell Lawsuit. 

If the account holders do not agree with the IMACS, then the allottee account 

holders would continue to participate with the Cobell Lawsuit. It is also important 

to many account holders that settling the Cobell Lawsuit should include damages 

for past mismanagement and implementing reforms to protect our trust assets for 

the future. The Navajo Allottees also have serious concerns on the current Department of Interior’s Reorganization effort, which has created many wrongdoings and 

the mishandling billions of Indian Trust dollars. Another option is to allow Navajo 

Allottees to utilize the Indian Self Determination by contracting and administering 

funds directly to account holders. The contracting of Self Determination would ensure the Allottees’ ability to effectively manage without being obstructed by the Interior Department. 

Proper Historical Accounting over the last one hundred fifteen (115) years and 

past damages would be a crucial part of any proposed settlement. The Cobell v. Department lawsuit can be settled, but the United States Government first must participate in settlement talks with honesty and integrity, although the legislation 

being proposed will not please everyone. Also of importance is to establish a Trust 

Account within the Treasury that would be available to the trust beneficiaries. We 

recommend that the Funds allocated to the Trust Account not come from the program account of the Department of the Interior. Remember the government’s misdeeds should not impede on appropriated Indian program funds. 

Again, I thank the Committee for its work on this issue and would welcome the 

opportunity to any questions that you might have. 

Mr. HAYWORTH. We thank you, President Garcia. 

Now we turn to Ervin Chavez from the Shii Shi Keyah Association in Bloomfield, New Mexico. 

Mr. Chavez? 

STATEMENT OF ERVIN CHAVEZ, SHII SHI KEYAH ASSOCIATION 

Mr. CHAVEZ. Thank you, Congressman Hayworth. 

Mr. Chairman, members of the Committee and invited guests. 

My name is Ervin Chavez from Bloomfield, New Mexico. My telephone number is 505-320-0153. 

I appear before you not only as an individual Navajo allottee, 

part of the class in the case of Cobell v. Norton, but also the President of the Shii Shi Keyah Association of Navajo allottees. 

This Navajo word translates into English meaning ‘‘This land, 

my land.’’ 

Our association has been working with an amount, some 35,000 

Navajo allottees in the four corner regions of New Mexico, Arizona 

and Utah, for the past 19 years. 

19

I will be summarizing my 8 page written comments as instructed 

by the Committee. 

Let me start by saying in the strongest words possible I urge you 

soundly to reject S. 1770. It is unconscionable fraud on Indian 

allottees as well as those well-intentioned Senators who were 

duped into sponsoring it. 

My written report goes into detail why I make this comment. 

I also want to say that Shii Shi Keyah Association fully supports 

the difficult and important work that is being done by Eloise Cobell 

and her attorneys representing her, and us, and Honorable Joyce 

Lamberth. Again, we strongly oppose S. 1770. We feel that this 

will exacerbate rather than expedite resolution to the underlying 

claims and issues. 

Mr. Chairman, I want to make highlights of two issues out of my 

written statement. 

First, equal treatment by Congress. The wholesale failure of the 

United States as a trustee for Indian property and money is a national disgrace. The continued failure of the United States to live 

up to it commitments and account for Indian monies and property, 

even after Congress has mandated it. The current handling of the 

IIM mess and the manner in which the government is handling the 

Cobell case is nothing less than a national disgrace. 

Due process and equal access to the courts of this nation is not 

something that was historically provided to Indians and Indian 

tribes. S. 1770 goes squarely back to that unsavory past. On that 

basis alone it should be abandoned. 

Second, general accepted accounting principles and auditing 

standards. Why should there be a reduced standard of performance 

to account. If the standard being proposed is not adequate for rich 

white people in this country, then why should it be adequate for 

Indians who happen to be poor but for what little money they have, 

all the more, is important for their substance. 

Members of this Committee, you must answer this question: Why 

the different treatment of Indian monies and trust property? If the 

proposed different standard is not acceptable for your children, 

your grandmother, then why should it be acceptable for us. 

Nothing less than general accepted principles of accounting and 

standards of audit are acceptable. All trust assets the use of or disposition of which should result in trust fund must be accurately 

and completely accounted for. S. 1770 does not do that. Therefore, 

it is unacceptable. 

In conclusion, we recommend the following: 

The irrefutable point here is that the amount in an IIM account 

has nothing in common with how much should have been deposited, and therefore it follows that the trustee must include in his 

accurate and complete accounting all sums which have been properly paid under the lease. S. 1770 does not do this; 

(2): S. 1770 predicates the information flow to come from the 

Secretary. Members of this Committee cannot countenance that. 

For the reasons just mentioned, Interior has been engaged in 

fraudulent deception of Congress for decades. The same people at 

the upper managerial level of the Interior are going to provide this 

fraudulent data again. You cannot allow this; 

20

(3): The time periods in S. 1770 are woefully inadequate to do 

anything meaningful to develop and present a proper information 

to support the claims; 

(4): All experts on the so-called task force must receive instruction in the meaning of trust responsibility from the Indian perspective of enforcement and not from the government’s perspective of 

evasion; 

And last, Senate bill 1770 provides no representative participation as a matter of rights for Indian accountholders whose rights 

are to be affected. Does anyone doubt the outcome? The amounts 

provided are grossly inadequate given what needs to be done for an 

honest accounting. The participants are the perpetrators. Committee members, on behalf of all allottees, I ask that this bill be 

soundly rejected. No amount of tweaking can alter the conclusion. 

Thank you. 

I have the written comments for submittal. 

And I want to say this after saying that, I do not want Congressmen sitting before me to take any of my comments personally. Because we have for the past 20 years been dealing with the Department of Interior and the BIA. And again, they are coming out and 

they are coming at us, as the way a Navajo would put it, with different sheep skin. The same sheep coming at us again with a different sheep skin. And it is very frustrating. 

For the record, I am sure that you probably already have the position from the Navajo Nation Intercouncil Committee, but on October 22nd, just a few weeks ago, this Committee passed resolutions 

supporting the Shii Shi Keyah Association’s opposing 1770. And it 

is right here. 

[The prepared statement of Mr. Chavez follows:]

Statement of Ervin Chavez, President, Shii Shi Keyah Association 

INTRODUCTION 

Mr. Chairman, members of the Committee, staff, and invited guests, my name is 

Ervin Chavez, P.O. Box 2404, Bloomfield, New Mexico, 87413, telephone number 

505.320.0153. I appear before you not only as an individual Navajo Allottee, part 

of the class represented in the case of Cobell v. Norton., now pending in the United 

States District Court for the District of Columbia and in the United States Court 

of Appeals for the D.C. Circuit, but also as the President of the Shii Shi Keyah Association of Navajo Allottees (‘‘SSKA’’). In the strongest words possible I urge you to 

soundly reject S. 1770. It is an unconscionable fraud on Indian Allottees and on 

those well-intentioned Senators who were duped into sponsoring it. 

I will explain further our unique interest and perspective on these matters in 

some detail, but first permit me to make one thing very clear: We support fully the 

difficult and important work that is being done on our behalf by Eloise Cobell and 

the attorneys representing her, and us, before the Honorable Royce Lamberth.. 

Further, I have read the substance of their views expressed on S. 1770 and I am 

also in support of the positions articulated. Notwithstanding the best of intentions 

that may have motivated this bill, S. 1770, it is ill-conceived and will exacerbate 

rather than expedite resolution of the underlying claims and issues. 

SHII SHI KEYAH ASSOCIATION HISTORY 

The SSKA was formed by very, very poor Navajo Allottees in 1984 as an unincorporated association of Navajo Allottees who had oil and gas leases on their allotments. It has been continuously involved in the issues of the proper performance 

by the United States as trustee for the land, resources and money from those resources ever since. I have been President of the SSKA continuously since 1986. 

Shii Shi Keyah is a transliteration of a phrase in the Navajo language which 

means, ‘‘this land, our land.’’ The phrases connotes how dearly and reverentially the 

Navajo People, the Dine, view their land. Our lands are located in an area that is 

commonly referred to as the Four Corners Region, comprised of Northwest New 

21

Mexico, Northeast Arizona, and Southeastern Utah. There are approximately 35,000 

Navajo Allottees with varying degrees of interest in the allotments in this area. I 

am a typical Navajo Allottee in the sense of how I came into ownership of my allotted interest but I am not typical in the sense of my education and work experience. 

However, it is that very education and work experience that permits me to bring 

to you the problems faced by the vast, vast number of my people who are not educated, who don’t speak or read the English language, and who are amongst the very 

poorest people in this country ... many entire families subsisting on the $80 to $100 

a month that they may receive through their IIM accounts from their oil and gas 

royalties. 

Unlike so many SSKA members, I was blessed with parents who, despite having 

ten children, managed to provide us with an education. I am very proud of their 

accomplishments in providing us children with the education they never had. We 

lost my mother to cancer in 1996. My father, thankfully, is still with us. He is 96 

years old. 

I have an Associate of Arts Degree in Business Administration and Public Administration. And, in addition to being President of the SSKA for the past seventeen 

years, I have also served my community in other capacities. I have served as an 

elected official within the Navajo Nation from 1977 to 1996 as the Huerfano Chapter Secretary, Vice President and President. I have also served in the elected position of New Mexico county government as a San Juan County Commissioner for several terms into the present. 

My understanding of many of the important issues facing Indian Allottees who 

derive their income from oil and gas production on their lands comes from first-hand 

knowledge. From 1974-94 I worked for the El Paso Natural Gas Company, the largest domestic producer of natural gas during that period. I suffered severe burns 

from a natural gas explosion that occurred while on the job for El Paso as a result 

of the failure of some to follow proper procedures. I know first hand of the need for 

the activities of those who lease Indian lands to be under proper supervision ... including all of those things that go into proper computation and payment of royalties 

that are due and that when deposited into the IIM accounts become the so-called 

IIM Trust Account Balances. 

EQUAL TREATMENT BY CONGRESS 

I would like to call the Committee’s attention to some matters perhaps not covered by others but that are a prime example of the extraordinary inadequacy of 

S. 1770 that relate to the proper accounting for the ‘‘upstream of the first deposit’’ 

issues, that is, the proper and complete accounting for the trust property that is disposed of to produce trust funds deposited into our HM accounts. But before doing 

that I wish to first call to the Committee’s attention the disparate Congressional 

treatment being afforded our trust assets and IIM money compared to that afforded 

to other citizens when their money is at risk or in jeopardy or lost. 

During the Savings and Loan scandal of the 1980’s the United States was acting 

in the position of a guarantor through its federally created corporations that insured 

deposits in the country’s Savings & Loan Companies. Even though some had deposits that exceeded the insured limit the Congress of the United States made sure 

that not one depositor lost money ... all were made whole. Please keep in mind that 

the S&L failures were not the result of action or failure to act of any federal institution or agency. The failures, frauds, etc., were perpetrated by private individuals 

and their corporate shields. But the United States stepped in as a guarantor and 

made all depositors whole. Why? Because faith in the banking system (including the 

S&Ls) of the United States was, and is, important. 

Similarly, this past Thursday, October 30, 2003, a front-page article in The Wall 

Street Journal disclosed a Fannie Mae accounting error to the tune of $1.1 billion. 

Although this is a government-chartered company it is so big that many investors 

fear that there will be a negative impact on the entire country’s housing market and 

industry. ‘‘[T]he episode instantly reinforced fears that Fannie Mae and its smaller 

sibling Freddie Mac lack the necessary skills to operate their massive and complex 

businesses, which some investors, rivals and political critics worry could pose risk 

to the nation’s financial system if not properly managed. Though the companies are 

not formally backed by a government guarantee, investors generally assume the 

government would step in to bail the companies out in an emergency, given their 

critical importance to the housing and broader financial markets.’’

And, no doubt, the speculation that the government would bail investors out 

would occur if the worst were to come to pass. Why? Because there is a national 

interest at stake. And like the S&L debacle, it will not matter if the amounts are 

in the billions of dollars. As many on this Committee will no doubt recall, the initial 

amount, right out of the box, that Congress saw fit to appropriate in the S&L mess 

22

was $88 billion. Just a few hundreds of millions more than the recently requested 

tab for Iraq. Why? Again the answer lies in the perception of National Interest. 

The wholesale failure of the United States as a trustee for Indian property and 

money is a National Disgrace. It is a failure of the United States to live up to its 

commitments not just to the Indians whose money and property are either lost, stolen, or otherwise unaccounted for, but it is a failure of the government to do what 

Congress after Congress has mandated it to do. National Integrity must account for 

something. The current handling of the EM mess and the manner in which the government is handling the Cobell case is nothing less than a National Disgrace. 

Do any in this room really think that those orchestrating this debacle at the Department of Interior should be rewarded for continued acts of deception and fraud? 

There are those bankers on Wall Street now that have joined their co-conspirators 

in the perp walks and criminal trials for their fraudulent practices at Enron, Tyco, 

etc. 

Those at Interior who have been responsible for similar criminally fraudulent 

practices regarding Indian money, EM accounts, and our trust resources should be 

similarly prosecuted. Instead we have before us S. 1770. What do we make of this? 

Let us examine S. 1770 in a little detail. 

S. 1770

Due Process and the Equal Access to the Courts of this Nation is not something 

that was historically provided to Indians and Indian Tribes. This Bill goes squarely 

back to that unsavory past. On that basis alone it should be abandoned. 

In the hurried effort to put this Bill over on the Congress, those really responsible 

for it, and by that I don’t mean the distinguished and well-intentioned sponsors of 

the bill, have defrauded the sponsors and the Senate in, among other things, Section 

2 entitled Findings. It is there asserted that hundreds of millions of dollars federal 

funds have been expended in the eight years of the Cobell litigation. That is an absurdity. Whoever put forth that figure should be required to submit the evidence 

under oath and be subject to prosecution if false. 

THE INDIAN CLAIMS COMMISSION ACT AND ITS IRREFUTABLE LESSONS 

The Indian Claims Commission Act of 1946 was the last special legislation that 

attempted to set the equities straight between Indian Tribes and the United States 

with respect to any and all damages and losses caused by the government in its 

dealings with Tribes even if the basis of the claims were simply that the United 

States did not act ‘‘fairly and honorably.’’ This section in that Act came to be known 

as the ‘‘fair and honorable dealings’’ clause. And yet when Tribe after Tribe tried 

to avail itself of the opportunity to present their claims they met with technical defense after technical defense and some of the worst bad faith litigation tactics that 

the courts of this country have ever countenanced. All of this is thoroughly documented in Professor Nell Jessup Newton’s law review article ‘‘In the Courts of the 

Conqueror.’’

The lessons that anyone even marginally familiar with that history should have 

learned is that a special forum (there the Indian Claims Commission, and now the 

proposed Indian Money Account Claim Satisfaction Task Force) will result in ad hoc 

rules and a defense by the Attorney General of the United States that only seeks 

to defeat claims as he or she will perceive that to be their duty under the law empowering them to defend. This means, as history has shown, (Judge Lamberth is 

by no means the first or only federal judge to find that the attorneys representing 

the United States in Indian claims cases have engaged in unethical and unlawful 

practices before the courts) that ‘‘by any means necessary’’ will continue to be the 

underlying principle (if it can even be called that) of defending the claims before 

the new entity contemplated by S. 1770. 

GENERALLY ACCEPTED ACCOUNTING PRINCIPLES AND AUDITING 

STANDARDS ARE MANDATORY 

The continued, wildly inaccurate suggestions of how much money it would take 

to do a proper accounting owed to the Indian trust beneficiaries is just as misleading as the claims of what the government has spent so far in defending Cobell. 

Section 3 and the term ‘‘accounting’’ are absolutely unacceptable. In addition to 

the reasons well-articulated in the testimony submitted by Keith Harper of NARF 

on behalf of the Cobell plaintiffs, Indian money and assets are just as good and valuable as anyone else’s. Why should there be a reduced standard of performance of 

the duty to account? If the standard being proposed is not adequate for rich white 

people in this country then why should it be adequate for Indians who happen to 

be poor but for whom what little money they may have is all the more important 

for their very subsistence? 

23

Members of this Committee, you must answer this question. Why the different 

treatment of Indian Money and Indian trust property? If the proposed different 

standard is not acceptable for your children, or your grandmother, then why should 

it be acceptable for ours? 

Nothing less than the generally accepted principles of accounting and standards 

of auditing are acceptable. All trust assets, the use or disposition which should result in trust funds must be accurately and completely accounted for. S. 1770 does 

not do that. It is, therefore, unacceptable. 

HISTORIC FAILURE TO PROTECT INDIAN TRUST ASSETS CANNOT BE 

GIVEN A CONGRESSIONAL SEAL OF APPROVAL AND CLOSURE THAT 

S. 1770 WOULD EFFECT 

The United States, on its own, created the system of trust that its Executive 

Branch employees have bungled the management of. This imposed trust system is 

not something Indians asked for. When the United States fails to properly collect 

royalties due on our oil and gas leases, there is an improper amount deposited into 

our IIM accounts. Merely trying to account for the amounts deposited is unacceptable. The United States has a documented history of failing to protect our oil and 

gas property from theft. 

Members of this Committee are certainly aware of the Commission on Fiscal Accountability of the Nation’s Energy Resources (the ‘‘Linowes Commission’’) which in 

1982 documented for Congress and the President just how thoroughly irresponsible 

the United States had been in managing and accounting for the Nation’s and Indian 

energy resources (oil and gas, coal, uranium, etc.). The Congress responded by enacting the Federal Oil and Gas Royalty Management Act of 1982 (‘‘FOGRMA’’) 

which was supposed to be therapeutic of the problems identified by the Linowes 

Commission. 

There are now over 132 studies of the Inspector General’s Office, the General Accounting Office, Committees of the House and Senate, etc., that have since documented the failures of the Department of Interior to effect the changes identified 

by the Linowes Commission and sought to be rectified by the Congress in its legislation. The same people at Interior responsible for this continuous record of failure 

(and attempted fraud to hide the failure) are at it again with getting S. 1770 introduced and attempting to defraud this Congress, the Courts, and Indian people once 

again. 

Indian oil and gas production is the single largest trust resource that is used or 

disposed of that results in trust funds. The estimates in the government’s own 

records indicate that between 1973 and 2000 approximately $3.75 billion was received by the U.S. on behalf of Tribes and Allottees for their producing oil and gas 

leases. This is not an insignificant amount of money. And yet it has never been 

properly accounted for. 

THE DEPARTMENT OF INTERIOR’S MINERALS MANAGEMENT SERVICE 

HAS A CONTINUED HISTORY OF INCOMPETENCE AND DEFRAUDING 

CONGRESS, COURTS, AND THE INDIAN TRUST BENEFICIARIES 

In 1984 the SSKA filed suit against the Secretary of Interior in the United States 

District Court for the District of New Mexico, Hon. E.L. Mechem presiding, to attempt to get the Secretary to perform his duties under FOGRMA. The government 

entered into a Consent Decree in March of 1989 whereby it promised to undertake 

certain reforms. Regrettably, the United States never revealed many of its crucial 

shortcomings in its practices and systems and thus was effectively able to defraud 

us and the court. 

For example, in 1993 we were presented with a computer run from the Minerals 

Management Service of the Department of Interior (‘‘MMS’’) which purported to be 

‘‘clean’’ data and a compilation of all oil and gas sales for certain periods of time. 

The reason for the importance of this data is that it was used under the MMS Valuation Regulations effective March 1, 1988, to determine so-called Major Portion 

prices. (Nearly all tribal and allotted oil and gas leases for the period of 1962-2000 

used BIA Lease Form No. 5-157 which provides in paragraph 3(c) that the Secretary 

is to insure that royalties are paid based on the value of the production and not 

simply the price claimed to have been received by the lessee. To determine this the 

Secretary is to examine prices for like or similar production, contemporaneous in 

time and location and to insure that the royalties are based on the highest prices 

paid or offered for the Major Portion of such production. The Secretary NEVER performed this duty until his attempts to do so began about 4 years ago.) 

We examined that data which consisted of approximately 26,000 lines of gas sales 

and based upon very, very broad criteria of acceptability for accuracy of the quality 

column (which for gas is the Btu column) and we were able to determine that over 

24

43% of the lines were clearly erroneous. For example, there were lines that claimed 

that zero Btu quality gas (in other words, non combustible air) sold for over 

$660,000 per thousand cubic feet. The normal price range one might expect of 

1000Btu gas would be in the range of $1 to $7. This data run is not atypical. Rather 

it is the established typical fact that the system used contains absolutely worthless 

data. If any on this Committee doubt this we would love to show you the information and explain how MMS had deceived Congress for decades of its incompetence 

in this area. MMS by the way is the second largest collector of federal revenues 

after the IRS and it uses the same systems with the same gross deficiencies on federal leases as it does on Indian leases. 

CONCLUSION AND RECOMMENDATION 

The irrefutable point here is that the amount in an 1IM account may have nothing in common with how much should have been deposited and it therefore follows 

that the trustee must include in his accurate and complete accounting all sums 

which should have properly been paid under the leases. S. 1770 does not do this. 

S. 1770 predicates the information flow to come from the Secretary. Members of 

this Committee cannot countenance that. For the reasons just mentioned, Interior 

has been engaged in the fraudulent deception of Congress for decades. The same 

people at the upper managerial level of Interior who perpetrated that fraud are 

going to provide the same fraudulent data. It is unconscionable. You cannot allow 

it. 

The time periods in S. 1770 are woefully inadequate to do anything meaningful 

to develop and present the proper information in support of the claims. 

All experts on the so-called task force must receive instruction in the meaning of 

the trust responsibility from the Indian perspective of enforcement and not from the 

government’s perspective of evasion. 

S. 1770 provides no representative participation as a matter of right for the 

Indian account holders whose rights are to be affected. The participants are the perpetrators. Does anyone doubt the outcome? 

The amounts provided for are grossly inadequate given what needs to be done for 

an honest accounting. Committee Members, on behalf of the all allottees, I ask that 

this Bill be soundly rejected for the fraud that it is. No amount of tweaking can 

alter the conclusion. 

Mr. HAYWORTH. 

Mr. Chavez, we thank you. And those documents, your written 

statement if you would like to have that resolution submitted for 

the record, without objection, it will be included as part of the public record. We thank you for that. 

Mr. CHAVEZ. Thank you. 

Mr. HAYWORTH. The Chair would note in listening to the testimony of Mr. Chavez, I was reminded of one of my visits to the Navajo Nation when a tribal elder at a townhall meeting said ‘‘Congressman, you know what BIA stands for, do you not?’’ And I said 

‘‘Well, what do you mean?’’ He says, ‘‘Well forget Bureau of Indian 

Affairs. We kind of hold the opinion it stands for Bossing Indians 

Around.’’ And perhaps it was somewhat injudicious, but it deals 

with part of the problems and part of the challenges we have faced. 

And, again, we take no personal umbrage of the frustrations, believe me. Based on Tuesday night’s, many of us share the same 

frustrations as we have been dealing with Administrations of both 

parties. It is reflected in the judgment of Judge Lamberth. And it 

is a challenge we are dealing with. 

Again, to all four, we thank you for the testimony. 

And using, again, the prerogative of the Chair and mindful of 

flight schedules, I know that my two junior colleagues from Arizona 

may have to catch flights, so I would like to turn first to the gentleman from the First District now following with our friend from 

southern Arizona, Mr. Renzi. 

25

Mr. RENZI. Thank you, Mr. Chairman. And thank you for allowing me to go first. I do have a flight and I am thankful. 

I have read all the testimony this afternoon. And, Mr. Berrey, I 

am very taken by your—not just your comments, by the fact that 

you offer resolution, a fix, in the form of your support for conflict 

assessment using the Udall processes. The people down in Tucson. 

Can you help me understand that a little bit more, please, just 

quickly in the time that I have. And particularly the opposition to 

it, which is that it could add a lot of cost. 

Mr. BERREY. Well, first of all, I think it is cost effective. It is—

our quesstimates are for about $300,000 you could do a conflict assessment. And we believe what that will do is shorten the time line 

of what the settlement discussions will do, because it will clearly 

delineate all of the issues and claims, and it will give you all a better vision of what is going on. 

Actually, in the audience is a lady by the name of Sara Palmer 

from the Institute that I asked to be here if she could have the opportunity to speak with you after the hearing. 

Mr. RENZI. One of the pressure points that was put on particularly Congressman Hayworth, Congressman Flake, myself, as well 

the other gentlemen here today during the vote on Tuesday night 

was, and Ms. Ramos you might be able to help address this because I think you alluded to it in your comments, was that the 

Government of the United States has spent millions of dollars, 

close to billions of dollars, going through the accounting to come up 

with one account that was past due $64. It was being used as leverage against us here to vote in favor of the Appropriations bill. 

And I go over here to my coach and I get the straight skinny most 

of the time, and he helps me. 

Mr. HAYWORTH. And now the skinny is accurate. 

Mr. RENZI. Yes. Absolutely. 

So could you help me, particularly push back? I need some help. 

Because we are going to be fighting this again with our own colleagues and want to be able to put out good information. The idea 

the Government has spent billions of dollars or close to a billion 

dollars and found one account with $64 past due. Anyone on the 

panel. 

Ms. RAMOS. Also I have with me Mr. Jacob Moore, and I would 

like to recognize him as our intergovernmental relations. And also 

Ms. Katherine Arragone that has been working very closely on this. 

In my testimony, I noted several issues with—that there should 

be full disclosure of material documents. And I think that goes to 

show you that when you look at the accounting, and I do have a 

background in accounting, that sometimes when you do an assessment, that you not only pick out certain accounts, you have a small 

percentage. And when you do an accounting, you look at small percentages. And sometimes those accounts do not reflect the whole 

entire accounting. And just because you only found one account 

that had an overdue $64, that there are other accounts in there 

that do not have substantial amounts that need to be looked at. 

And the other thing that I made the comment on is that there 

should be no preset cap for settlement prior to negotiations. I know 

that there has been some talk about putting a dollar amount in the 

Congress to say that we are only going to go up to this dollar 

26

amount. And I wanted to make sure that that got into testimony 

that Salt River does not recognize that and does not want that. 

Mr. RENZI. If there was an offer on an individual voluntary basis 

to individual accountees to settle post accountability—I do not 

know that we can offer those without going through some sort of 

accounting so people really know what they are settling on. I think 

that is what you are referring to in your clause. 

Do you think on a voluntary basis that might be a way to breach 

or reach across, find a compromise? 

Ms. RAMOS. I believe that if anyone, you know, voluntary wants 

to do that as far as their IIM accounts have that option available. 

But I do believe that as far as accounting background, no one can 

go in and say that we are going to take something if you do not 

know the full disclosure. So therefore, as our tribe and accountant 

I would not let anyone go forth and accept something if they do not 

know the full disclosure, if they do not know the accounts coming 

in and the accounts going out. 

And I think on a voluntary basis that would be up to the individuals to do that. 

Mr. RENZI. The Tuesday vote included also one other pressure 

point Mr. Berrey spoke about, the cannibalization pressure point 

was pushed on us to find a way to vote for it. And that, hey, if you 

do not vote for us, then this account or paying this settlement is 

going to come out of the BIA funds somewhere, so therefore you 

should go along with the appropriators on this. We held here on 

that. 

The other pressure point we saw, and I want to direct this, too, 

with Mr. Garcia, is a memo supposedly that was floated by Ms. 

Cobell but asked Native American tribes not to settle in the hope 

of the many billions of dollars that were forthcoming. 

You were very innovative in your testimony when you talked 

about this utilization of the Indian Self-Determination and Contracting. Can you expand on that, please? 

And I will sum up with that. Thank you, Mr. Hayworth. 

Mr. HAYWORTH. Thank you, Congressman Renzi. 

Mr. GARCIA. I think for the Navajo Nation, and in particular the 

Indian allottees, we are the biggest tribe in the United States and 

we are the size of West Virginia. And we try to explore ways of how 

we can provide direct services to our allottees and to the people. 

One of the ways that we are right now and is in the talking is 

the contracting this particular program out. Right now as it is, I 

think we go through four different departments before it actually 

gets to the people’s hand. One of the biggest problem that we see 

here is with the MMS, Mineral Management Service. 

I think there are a lot of problems because the payments are 

done just on land number, a number that is given to certain land 

status. And it would be, we feel, to our advantage to directly contract with direct services to the producers, which will be oil companies. In our case, the majority of our allottees receive royalty payment from oil and gas. 

Mr. RENZI. Thank you. 

Thank you, Mr. Chairman. 

Mr. HAYWORTH. And Mr. Chavez has one comment he would like 

to make, and I will let him expound. 

27

Mr. CHAVEZ. Going back to your statement about the accounting, 

that is the main concern that we have with Senate bill 1770 is that 

it really starts to move away from the full accounting of what was 

really pushed forward in the Cobell case. And to me if that could 

be tied into the gap, back in there again, I think that is something 

that could be looked at. But I think the bottom line on everything 

is the accounting needs to be there regardless. And I do not know the example that you are using about the $64. 

That is probably one out of how many hundreds and hundreds of 

examples that you are pressured with. I think that is something 

that, you know I am not sure if that is even a valid point even now. 

But I think to stay with the accounting part of it, that is really crucial because that is something that the BIA has always taken the 

easy way out. 

A good example is the 1982 Achievement Act. We objected to 

that. I do not know if any of you members of Congress even remembers that. 

The Achievement Act of 1982 was where if a land, an allotment 

gets to a certain percentage, that percentage goes back to the tribe. 

And they did not even get the input of tribal people. They just went 

directly to Congress and Congress passed the law. But it was challenged by tribes, and it was their—found out it was illegal. 

But those are just examples after examples that the Bureau and 

DOI has always taken the easy way out. And this is just another 

example of that. And 1770 just gives them another way out of a 

mess that they created. 

Mr. HAYWORTH. Mr. Berrey, you had one comment? 

Mr. BERREY. Yes, I was just wanting to comment to the $64 check. From my understanding, they spent $20 million to research 

the five main plaintiffs in the Cobell case. And the cost of searching all the record locations across the country and coming up with 

that figure was $20 million. 

And I think that says two things. It says, number one, that the 

Department of Interior’s terrible records and it is going to cost a 

huge amount of money, no matter what type of accounting is done. 

And number two, the five representative plaintiffs do not clearly 

represent all tribal people. If you would take people from like the 

Osage Tribe or maybe the Northern Arapahoe Tribe, or even the 

Quapaw Tribe that have had huge amounts of money go through 

their IIM accounts as opposed to some tribal members that have 

just had land allotments that had grazing, you would probably see 

a greater problem than $64. 

But I think the ultimate question is there is people in my tribe 

that would be willing to settle. They would probably be willing to 

do a lot of things if they just had the opportunity to clearly understand what was available and what were their opportunities. And 

it may not necessarily be a full and clear accounting because we 

are realistic. We know that if we spend $10 billion on accounting, 

it is just going to Deloitte & Touche, and other accounting firms. 

It is not going to go to Indian people. 

So, I think it goes back to this conflict assessment. If you start 

out and understand what it is and clearly communicate that to all 

the people, it’ll make the questions a lot easier to handle. 

Thank you. 

28

Mr. HAYWORTH. Well, speaking of questions, we turn to the gentleman from the Seventh District of Arizona, Mr. Grijalva for his 

questions. 

Mr. GRIJALVA. Thank you very much. 

And let me follow up on the conflict assessment, if I may, with 

you, Mr. Berrey and also as part of the questioning, I would appreciate any comments from President Ramos, President Garcia, Mr. 

Chavez. 

As you know, as I understand the process, through the conflict 

assessment, you assess the template or the table for what is going 

to be discussed in terms of negotiated settlements, conflict resolution, et cetera. 

Mr. BERREY. Yes. 

Mr. GRIJALVA. And as I heard the testimony today, you had the 

principles of settlement that President Ramos and the points that 

you made that I thought are very strong and very valid. The four 

points that you made yourself as any settlement options are discussed, those four points would be important. The points that 

President Garcia made, which had to do with proper accounting, if 

I am not mistaken. And also the issue of past damages, that that 

must be part of the discussion as we move forward and the trust 

accounting within Treasury as important point. And for lack of a 

better word, important condition as we move forward. 

And Mr. Chavez’s five points and conclusion dealing with 

S. 1770, that I concur with you on those opinions, by the way. But 

also setting conditions, for lack of a better word. 

So does this conflict assessment, because it is a conflicts issue, 

given the points that your colleagues have made here from representing their people, does that preclude the conflict assessment 

because we are laying template with some conditions on it as we 

move forward? 

Mr. BERREY. I do not think so. I think what it does this gives 

whoever does the assessment, a neutral third party some places to 

start. 

Mr. GRIJALVA. Would you agree with me, though, that as a principle to start with, that is the assessment process is that people go 

into this discussion as equals, and that is what helps move the assessment along? 

Mr. BERREY. Right. 

Mr. GRIJALVA. And there is a neutral third party. 

Would some of the conditions that we heard—and I apologize to 

you for using the conditions, but I think it is appropriate. We heard 

today that they are part of that assessment process to move forward. We are not starting with a clean slate. We are starting with 

some conditions. Is that appropriate as well? 

Mr. BERREY. Well, I think how all conflict assessments start, because you are usually in this contentious litigation format. 

Mr. GRIJALVA. OK. 

Mr. BERREY. So you always come into it with conditions. I am 

sure Interior would have conditions they would want. Justice would 

have some conditions they would want. All the parties have conditions before they go into any—when they are adversarial. 

I think that is just part of the discussion. But once the reality 

replaces the rhetoric and there is a more clear understanding of 

29

what really it is we are talking about and who the stakeholders 

are, and what is the universe of issues. 

This is not as complex as it seems. My tribal case I believe is 

more complex. We have the largest Superfund site in our states. 

We have the largest lead and zinc mining in the history of the 

United States. We have allotments. We have tribal. We have a lot 

more issues and claims in our lawsuit than the Cobell case, even 

though theirs is bigger in terms of numbers of people. 

Because of this assessment we were able to divide out our claims 

and take different paths on the recommendations of the people that 

did the assessment to come to a resolution, which we have agreed 

to a settlement with Justice and Interior to resolve our claims. 

Mr. GRIJALVA. Could you consider—I understand the point. 

Would you consider as a requirement past damage assessment and 

proper accounting if we went in through conflict assessment process? 

And I agree with you, you know, the Udall Center and the Environment Conflict Resolution Group is an excellent group. Done 

wonderful work, at least in my District in terms of very delicate 

and tough issues. But this is an issue that, you know, I want to 

have an understanding that if we are going in through that process, which I would be comfortable supporting, that there is also 

some protections that we are bringing into the process in case it 

does not work. 

Mr. BERREY. Well, I think if it does not work, they always have 

the core. 

Mr. GRIJALVA. OK. Thank you. 

Anybody else want to respond, Mr. Chairman. 

Thank you, sir. 

Mr. GARCIA. Congressman, I think a point of interest to remember here is there is a lot of interest and there is a lot of talk about 

settlement among the Indian people in my community who may be 

elderly. I think it is important to know that as a Native people we 

have various type of resources, what is there on Indian land. And 

I think it is important to know in my case where I represent, the 

majority of them are oil and gas. So I think it is all going to be 

different for all Indian tribes. 

Mr. GRIJALVA. Thank you. 

Mr. HAYWORTH. President Ramos has a comment. 

Ms. RAMOS. If I may? That is true about the settlement. However, in my statement on number three that I clearly stated that 

the litigation and the accounting issues have to be separate. We 

went to a BIA reorganization in Las Vegas last week. And because 

of the push of the Cobell case and the trust issues, they are trying 

to put everything into one large package. And we cannot do that. 

And we have to separate it out because with the BIA and reorganization, they are so time consuming and they want to pressure us 

into thinking that this is the best for the community. And we have 

to step back and take a look at it and make sure that these two 

issues are not being intertwined. And without the support from 

Congress to say, wait a minute, we need to step back and we need 

to look at it to make sure that we are handling one issue in one 

hand and the other issue in the other hand. 

30

So I just wanted to make that clear with the issues that that 

have— 

Mr. HAYWORTH. And thank you, Mr. Grijalva. 

Let me turn to my friend from the new Sixth District, as I call 

it, Mr. Flake. 

Mr. FLAKE. Thank you, Mr. Chairman. 

Just following up on the conference resolution, conference assessment model, how likely is it—to anybody—that there is sufficient 

agreement now among the tribes to go that route, or is there sufficient agreement somebody goes that route to see how much agreement there is? And how much agreement do you need to have to 

take that next step? Because I think all of us agree that whatever 

money would go into the auditing and accounting ought to be going 

to services and settlement. 

So how much agreement is there right now in your estimation, 

Mr. Berrey? 

Mr. BERREY. Well, I think there is a lot of agreement that something has to be done besides what the track we have been going 

down. And the more you talk to people out there on the reservations, the individual people, they want to figure out a way to settle. 

So I think with that, just the fact that people want to settle, in 

order to make it a proper and equitable and fair settlement process, you have to start with the success so you clearly understand 

going into a settlement process, what it is you are trying to settle. 

So I think the answer is, I think there is a lot of support. 

I know the National Congress of American Indians sent all the 

people in Congress a letter supporting a conflict assessment. 

I have not heard of anybody say they were totally against a conflict assessment. 

And I think it needs to be understood that the U.S. Institute I 

do not think would be the conflict assessor. They would just be 

kind of the consultants to the two appropriate committees to help 

them pick the people to do the assessment, and they would help 

consult with you all so you knew what was going on and as it was 

happening. 

I think they have the list of the kinds of practitioners that do 

that kind of work. 

But to answer your question, I think there is a lot of support for 

an assessment. And I do not know how to quantify it. 

Mr. FLAKE. You share that view, Mr. Chavez? 

Mr. CHAVEZ. Again, my dealing with this agency for 20 years, as 

long as you agree with them, it works. If you definitely have 

some—your own opinion or your own plan, or if your plan comes 

ahead of theirs, then it is the wrong idea. And that has been a pattern. And I think that this is going to go right down that same 

road. I think it is a good idea. I think it is a start. But I would 

almost guarantee you that if the Indian communities, if the Indian 

people were to fair out there what they are, the government, which 

DOI and BIA represents, then it is going to be a terrible idea. And 

it is going to be told to you guys again. 

Mr. FLAKE. Thank you, Mr. Chairman. 

Mr. HAYWORTH. Thank you, Mr. Flake. 

Let me turn to my friend, the gentleman from Samoa. 

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. 

31

I was listening with interest to Mr. Chavez, not only his statement, but also his observations of the BIA. I happen to agree with 

him. 

There is a certain state of mentality in that agency, and with all 

due respect I am not being personally critical. But it is not only a 

sense of attitude, but it is just different—and this is not in any way 

to say that it is just with this Administration. This has been the 

way it is with any Administration. 

I think that there is not only a sense of tremendous frustration 

on this very issue. When it has been well over 13 years now and 

we are still grappling with this issue. We have even expended $20 

million just to even attempt to do an accounting. And we could not 

even get to first base when we spent $20 million, we could not even 

touch the tip of the iceberg about the whole issue years ago. 

And regarding what Mr. Berrey said, this is not a complex issue, 

but I do not know. We are looking at 1,400 accounts and some 315 

tribal interests in this issue. You are talking about a half-million 

Indian accounts to go with it. Some estimates are between $2.5 to 

about $10 billion that is in question. So it is not an easy issue. 

One of the problems that I think we are also confronted with Mr. 

Chairman is that whenever an Indian-related issue goes before the 

courts, the Congress seems to be very reluctant to get into passage 

of legislation simply because we do not know what direction or 

what results they are going to produce on this court litigation. 

Look at it in another way, it is a copout for us to say we cannot 

do anything because now it is before litigation, before the courts. 

And the Cobell case just adds more fuel to the fire. I think it really 

is the most substantive resolution that has come up with Judge 

Lamberth’s decisions. But you notice now, the Department of Interior has literally built a fence around itself. They do not want any 

outside DOI individuals or organizations to be part of the settlement process. 

Now, I want to ask the members of the panel that this suggestion by Secretary Norton that we bump another official within the 

Department of Interior, we call him the assistant secretary for settlement trust fund. I wanted to ask your comments. Do you think 

that might add visibility within the department? Because we do 

have a problem there. Do you think it would really provide a solution to the problem, or will it be another problem added to the 

problem? 

I want to ask your response. 

Mr. BERREY. I do not think that is a good idea personally. I think 

this is an issue if they could have fixed it, they would have already 

fixed it. 

I think it is an issue that is going to take the input of people like 

you all, people from Congress to have to step in and help to protect 

the rights of the individuals. 

And earlier I did not mean to say that it was not complex. There 

are more complex pieces of litigation out there that cannot be 

solved through these settlement processes. 

I think that just creating another office in the Interior to settle 

this is not the proper way to do it at all. I think I would rather 

see the appropriate committees in Congress take more control and 

have more input. 

32

Mr. GARCIA. Congressman— 

Mr. FALEOMAVAEGA. You call me, John, if you cannot pronounce 

my name. 

Mr. FALEOMAVAEGA. It is Faleomavaega if you would like to try 

it. 

Mr. GARCIA. Thank you for the opportunity. 

I would agree with my colleague here, Mr. Berrey. I think that 

is just bringing in somebody else with a whole new array of different ideas. And it really does not—would solve or at least address 

on how we can dispose or come to a resolution on this issue that 

is in your hands right now. 

I think the far most important is to get back with the real people, the affected people and work with them, the tribal people. And 

I think that would alleviate and come to address the issue that is 

there. 

Mr. FALEOMAVAEGA. Well, —I am sorry. If I recall, Secretary 

Norton did mention that there was tribal consultations pursuant to 

the reorganization plans that are being made right now. But we get 

an entirely different reaction from our Indian community. The kind 

of tribal consultation was one or two people—selected individuals. 

And they went about and said we have taken care of tribal consultation. 

But I am quite sure that on a bipartisan basis we want to find 

the solution and be helpful to this issue. But the tact that the Administration has taken is very hard line. I want to ask the members of the panel how do we cut through that? What would you 

suggest on how we as members of Congress could provide a positive 

solution? 

I think there are none of us here on the panel, I mean on the 

Committee, who would ever think that we want to do something 

without consulting with Indian Country. But I am sorry to say that 

our friends in the Administration are making claims that, hey, we 

have done this already and we do not need to consult with Indian 

Country anymore. 

I just wanted to ask what your response is to that? Because I am 

very concerned that this is not the way current policy as far as 

Indian issues are concerned have been taken by Secretary Norton 

and her subsidiaries. But I may be wrong, but correct me if I am. 

Ms. RAMOS. You hit it right on the head as far as consultation. 

Exactly that. They call one or two tribes and they call that consultation. There are over 500 recognized tribes in this United 

States, and like was stated first, the first Americans. And when 

they have consultation, they come forward and let you know what 

they are going to do already. They have a plan in mind. And even 

though the tribes may say no or they have their ideas, they still 

push forward their own plan. 

And I think with the other issue that you stated, all it does is 

the same thing that BIA constantly does, and add another layer of 

bureaucracy. With bureaucracy and bureaucracy we know it never 

works. The wheels just spin, spin, spin and nothing ever gets done. 

And in order to have true consultation, and we have spoken to 

Mr. Hayworth, we have spoken to some of our Congress people, 

every tribe needs to be at the table. Every tribe needs to be represented to make sure that you have true consultation, to make 

33

sure that the ideas that are given are taken at full face and actually looked up, and the ideas are assessed to see they are going to 

work. 

We are all unique tribes. We have our own individualism. And 

we each have our own constituents and all tribal members that we 

have to take care of. But one thing that we know with working 

with the other Arizona tribes with our proposition 202 that we had, 

that if we stick together and we come together united, that we can 

solve this problem. And I think that is one thing that Congress 

really needs to hear from the tribes. 

Thank you. 

Mr. FALEOMAVAEGA. I am sorry, Mr. Chairman. I did not mean 

to prolong the question, but I just have one more question and observation. 

There seems to be a consensus that the only real substantive solution that has been brought forth that would seriously assist 

Indian Country with the issue of trust funds has been the judgment by the Federal court by Judge Lamberth. Other than that 

there seem to be some very strong disagreements on the proposed 

bill by Senator Campbell from the Senate side, Senate Bill 1770. 

So I would like to ask the members of the panel with those two 

on the table for consideration, what are other possible one or two 

options that we could take right now? To go back tomorrow in the 

Congress and say OK, let us work on it. Do you think we can attach something that might be better to the current proposed legislation by Senator Campbell to add on to it if there are some strong 

feelings from Indian Country that some of the provisions in that 

proposed bill just are not acceptable to Indian Country. Or am I 

going far left or far right, or what? 

I mean, I just want to get a sense of where we need to go from 

here. Again, it seems to me that the only two substantive things 

that are now for resolution is the Federal court judgment decision 

and Senator Campbell’s proposed legislation. 

Mr. Chavez? 

Mr. CHAVEZ. I think the comment that Mr. Berrey, I guess—

what did you call that? 

Mr. BERREY. The conflict assessment. 

Mr. CHAVEZ. Conflict assessment, the issue if it ever comes to 

that and my comment regarding if we go to the table and we have 

a third party there, and the rules really come out to where the 

Indian people are coming out ahead, then it is a bad rule. 

I think the only way something like that would work would be 

if—it is a farfetched idea, but if that occurred, the BIA would not 

even be involved in that process. 

I think something that—I think the banking world, the finance 

industry would even be involved in it where they would be the ones 

at the table with the Indian people, where the minute that these 

bureaucrats, lifetime bureaucrats start seeing that their bosses are 

being taxed with billions of dollars and they have to appropriate 

them, it is a new rule. Then they start backing away. And this is 

where it really comes to an impasse. And I have seen this over and 

over, and that is where it really stops. 

34

So I think it is something that, you know, that maybe if we ever 

go that route, I think it is something that I have always thought 

about we could do. 

Mr. HAYWORTH. Well, let me follow up, because I wanted to defer 

to my colleagues and mindful of flight schedules, I know that Mr. 

Grijalva had to run catch a plane, Congress Renzi will follow soon 

here in a second. 

Mr. Chavez, you brought up something that we have talked 

about before, and I do appreciate the suggestion, Mr. Berrey, in 

terms of trying to cut through in a very picturesque way and untangle the spaghetti, which I think is an appropriate way to talk 

about all the different issues we are dealing with here. But it 

seems that in some sense in forensic accounting the trail has gone 

cold. We are looking back to the 19th century, accounts that were 

either misrepresented or lost, or destroyed. Some accusation, and 

again it cuts across party lines with previous Administrations, not 

taking into account records or maybe even wilfully destroying some 

records in these tribal trust fund accounts. It is a small wonder 

that Congressman Kildee and I, and my friend Eni Faleomavaega 

remembers this back in the 104th Congress when we were given 

charge of a special task force to look at this, it was characterized 

as the crime of two centuries. And now here we are in the 21st century trying to deal with. 

But let me pick up on something Mr. Chavez says. And a note 

to our friends who have joined us here today as observers, this is 

why it is so good to come outside of Washington to talk people. This 

idea was first advanced in some hearings a while back. 

To take it out of the hands, for sadly with the distrust, despite 

a lot of dedicated folks who work hard in the Interior Department 

and in the Bureau of Indian Affairs, an element of what Mr. Berrey 

talks about, Secretary Babbitt tried within the strictures of Government to appoint a special master—a gentleman not too far away 

up the road here who was frustrated and walked away from it. 

We have financial institutions, some accounting firms, some forensic accounting procedures and some folks who specialize in forensic account. 

Just curious to get an informal poll of our four excellent witnesses today, is one possible solution to look outside, not so much 

for a special master per se, but for someone who is outside of government to take ownership of a resolution understanding the pitfalls that consensus does not always mean unanimity. And we have 

heard differing opinions on legislative and paths to take. But 

should we look to the business community? I guess our dream candidate for this job is someone who grew up on the reservation in 

some tribe, who has negotiated the concrete canyons of Wall Street, 

who understands what is at stake, who understands the intricacies 

of forensic accounting and can take us back as far as the trail goes, 

and then move forward. Because, President Ramos, one of the 

things you said was in your many suggestions, and I am just paraphrasing here, making a full accounting. 

Well, some of the evidence is gone. The trail has gone cold. So 

just informal poll, picking up Mr. Chavez’s idea, do we find someone, do we give charge to someone out of government to be a 

35

commissioner on the resolution of this problem? Not to add to the 

layers of government, but to find the resolution? 

I would just be interested. Let me start with President Ramos 

and go down our witness panel here. 

Ms. RAMOS. I agree, because Mr. Moore has been talking about 

that issue and we Salt River have said that would be the prime 

thing to do is to have someone outside the organization to do that, 

especially someone that has accounting background. 

I do know that with accounting and with some of us going 

through some auditing themselves, it is costly. However, you do get 

a better understanding of what your records are. And I would agree 

that we need to have someone outside the organization handle 

them. 

Mr. BERREY. I think it is a good idea for the accounting portion. But I think 

until you understand all of the other pieces of spaghetti that are 

creating this problem, the fractionalization of Indian lands and the 

issues that are not part of the account just focusing on the accounting and bringing someone in is not going to solve the problem. That 

is why I think, again, you have this assessment and you will understand more clearly how much of this problem is purely historical 

accounting and how much is other things. Because there is a lot 

of issues that are behind that that I think need to be more clearly 

defined. Especially for actualization of Indian land. 

Mr. HAYWORTH. President Garcia? 

Mr. GARCIA. I somewhat agree with Mr. Berrey here. I think it 

is very important to know that those back 50 years ago, we only 

had one allottee that probably had 160 acres of land. And I think 

as time went on up until now, it maybe is some 80 or 100 heirs 

to that allotment. It is going to be somewhat very difficult, but how 

do we arrive at the proper amount for compensation? I think someone needs to go back and look at each allotment and how many addition of allottee of heirship there has been on particular land. And 

I think it would be the—to bring in someone that is nongovernmental, someone that is very impartial and should be coming 

from—with some banking and accounting practice. 

Mr. HAYWORTH. Thank you, Mr. President. 

Mr. Chavez? 

Mr. CHAVEZ. And, of course, that there was a suggestion made 

by me, and I think the only fact here that you probably missed 

there was that has knowledge in factional land. I mean, that is 

the—if you could find that person, you probably would make a million dollars with it today. You know, it is hard to find that individual out there. And I think it is hard to find that person. 

But I think the important thing here is getting it out of DOI and 

BIA. I think that is the thing that has been frustrating our organizations for years and years. And I think the criteria or the issues 

that I think John and Calvert and President Ramos are bringing 

up, I think those need to be included in that. But I think at the 

same time, I think the groups the representatives of the allottees 

of various tribes, they need to be involved. 

I remember testifying before the Senate Indian Affairs Committee back in 1988 on the same issues. Well, even back then we 

used to bring up what if it was your account, you went to Wells 

36

Fargo and you had a trust fund and you were just putting in 

money. And you were putting in money years and years and years. 

And then 1 day you went to check, and there was no money. And 

they told you, well, we do not know. We threw away all the records. 

Would you just walk away and say, well, maybe you could just settle out for $1,000 over the past 50 years? I mean, this is exactly 

what we are doing. 

And I think that this is something that I guess we really kind 

of have to bring to home. But yet we realize what we are saying 

also when we start saying all the way back to the 1800s. You know, 

we realize what we are saying. Because the trail does go cold at 

a certain point. But, understandably, there are allotments that 

have up to over 1,000 interest holders right now in our area. And 

we have had a lot of problems just even running infrastructure 

water lines, electricity, whatever because of that. 

So, fractionation is a big problem. And I think that needs to be 

inserted in that knowledge of this person. 

Mr. HAYWORTH. Well, let me try to paraphrase, since one of our 

challenges is to achieve a consensus. And while we welcome all the 

public comments on the record, as we are trying to deal toward a 

tangible solution. 

There needs to be then, it seems, two elements if we take into 

account everything that has been said here. A group understanding 

how to do the conflict assessment that has the proper orientation 

historically along with someone from the outside who could do. 

A third question in closing, and I do not mean to open a can of 

worms, and just in terms of conceptualization since the trail goes 

cold without capping a settlement but setting some—we talked 

about tribal elders and we heard a very eloquent prayer from Ricardo earlier about those in the twilight of their years. Does it 

make sense to set a demographic historical accounting date, not 

like—you know, a couple of times the appropriations guys have 

tried to short circuit the process. They go, we will go back to 1980, 

oh, we will go back to 1977. And it seems to me that the fundamental flaw any fair-minded person has is, wait a minute, we have 

people who have been affected their entire lives. Does it make 

sense today to look at a demographic or chronological life span? Is 

that how we are able to get our arms around this problem since 

the trail goes cold on so many accounts? 

It is just a question for all the panel members again. 

Mr. BERREY. It is about the exploitation of natural resources 

whether it is grazing, farming, mining, oil and gas. That is what 

it is all about. And that is what the Department of Interior is like 

the apartment manager for these 56 million acres of land. And I 

think it is chronological. 

And if you understood the exploitation of these natural resources 

over time, and it is not—we are not talking about millions of years. 

We are talking about just 150 years or something. You know, there 

is a historical perspective that you could put on that exploitation 

that is not going to be difficult to get a graph on. 

And you could look at the different tribes, how their natural resources have been exploited. When it started. When the largest activity was. And you could narrow down your focus and do, maybe, 

37

some type of sampling or something less than a transaction by 

transaction accounting. 

Mr. HAYWORTH. Any other comments from the panel? 

Mr. CHAVEZ. I agree with Mr. Berrey. 

Mr. HAYWORTH. OK. President Ramos? 

Ms. RAMOS. I just wanted to make a comment, too, about the outside, and Mr. Moore gave me a good suggestion. Is that as far a 

commission with teeth, it has to be enforced with the changes. 

You talk about records going cold. Yes, it is true in accounting 

that you want to start from a good starting point and move forward. However, you have to remember that as Mr. Berrey stated, 

there has been some injustices. 

We do not know exactly how much should have come into those 

accounts. That is one issue, and that has to be raised. Is that we 

never know if the exact amount was put into those accounts in the 

first place. 

There are records that can be taken from a wide variety. You can 

take records from the tribe. You can take records from the companies where all the Indian lands themselves. And you can have a 

good starting point. But that starting point has to be agreed upon 

amongst everyone. It cannot just be an arbitrary number or figure 

or year that has come out from the Congress. It has to be something that everyone agrees to. 

Because if you do not have that starting point, you are not going 

to be able to go forward. 

And also the other question, the other issue is that if we do not 

have a good starting point, that it would leave out the heirs in the 

future because of the fractionation like the others have stated, it 

may be hard to do something but if you are determined and you 

want to get the best accounting records, you will start at the best 

starting point. And what I would say as far as having a starting. 

The other issue that I wanted to bring up is that we do have to 

have the input from the tribes. We have to have the input, because 

if we do not and, like—I am not even going to try to say your 

name. But like you stated, if we just consult and say we are meeting one or two tribes, then it is not going to work for the entire 

nation. 

Mr. HAYWORTH. I think the point is well taken. 

I think Interior started well when we were dealing with this in 

the previous Congress. And I know we had around the country 

many different listening sessions. A lot of people came in to talk. 

And, again, we are continuing the process now. 

I guess the challenge we confront, and what we certainly appreciate, are the different alternatives you offer here today. The key 

for us is to move in a reasonable, rational way understanding we 

are not going to develop unanimity. That is a great and noble goal. 

But none of us in the political process ever seem to get there on 

these contiguous pieces of legislation. But moving to find a way to 

achieve a consensus. And we certainly welcome those comments. 

Let me turn to my colleagues and see if they have closing. 

My friend from American Samoa. 

Mr. FALEOMAVAEGA. I just want to say that it is ironic that we 

discovered this negligence on the part of the Federal Government 

as far as the providing or taking care of the Indian Trust Fund for 

38

all these years. For now, the roles are reversed and now all of a 

sudden our friends in the Federal Government are being very, very 

careful to make sure that the American taxpayers’ money is not 

going to be excessively given to the Indians. I do not think there 

is anybody questioning that somebody stole the money. It is there. 

You know, we do not have to be looking for it like we have to burden the American taxpayer for additional money to pay the 

Indians. No, the money is there. But it is the question of identifying where and how, who, when, why; not to say that somebody 

stole the money. It is there. I have always wondered, Mr. Chairman, if we can give $87 bil- lion to clean up Saddam Hussein’s mess, I think maybe $2 or $3 

billion is really not asking too much, do you think. I would suspect, 

Mr. Chairman, just as it was in the 1970s, ironically one of the 

greatest Presidents that has helped Indian Country, Indian issues 

is Richard Nixon. And the reason being is because the President 

himself said this is the way I want this issue to be taken care of. 

As long as it does not reach that level of what we are discussing 

here, of the Secretaries and the subordinates and others. It is not 

going to happen and we are going to continue another 10 year period, still grappling with the issues and still going to have those 

very, very dedicated bureaucrats, if you will, who are going to 

make sure that this money is not going to be misspent. 

You know, we know the Enrons, the global crossing and our good 

friend who is a certified public accountant, President Ramos. Even 

the account process. We do not even know what a proper accounting procedure is. Even the Federal agencies among themselves 

have different accounting procedures. So what does this come to? 

We are frustrated even more on how we are going to provide a solution. 

Mr. Chairman, I like the idea of having a settlement solution or 

a third party. But the problem is that our friends in the Administration do not want someone, a third party to do it or an organization. 

So we are back again to square one then. And I am open. I just 

want to see where or how can we go about to find a final solution 

to this. 

I am scratching my head, Mr. Chairman, and as I am sure Jeff 

is doing the same. But we really want to find a solution to the 

problem. It seems to me that the only real substantive solution 

that has come forward is that we have had to take this matter to 

the Federal courts. And thank God for Judge Lamberth for his decision. I hate to say this is judicial legislation, but the problem here 

has been very difficult for us even in the Congress. 

And with that, Mr. Chairman, I am sorry to take time so long. 

My name is Faleomavaega. It is very easy to pronounce. If I can 

say Shii Shi Keyah, I am sure that our friends here can do the 

same. 

Thank you, Mr. Chairman. 

Mr. HAYWORTH. Thank you. I thank the gentleman from Samoa. 

And, of course, some of us try to get intimate, and we just call you 

Eni, by your first name, and that deals with any of the pronunciation. 

My friend from the Sixth District, any closing comments? 

39

Mr. FLAKE. I just want to thank the panelists. This has been extremely informative for me. This has not traditionally been an 

issue that I have kept up on. And so this is very informative. Like 

Eni, I think we are all scratching our heads to try to figure out 

where we go from here. But this will certainly help as we make decisions in the Resources Committee. 

Thank you all. 

Mr. HAYWORTH. Thank my friend from the Sixth District. 

It has been said that by one of our congressional colleagues as 

we were dealing with corporate scandals, that if you really wanted 

to see scandalized accounting, just take a look at the Government 

of the United States. Sometimes you laugh amidst the frustration, 

and yet to end our time together on a hopeful note, what especially 

impresses about all of our witnesses, again, is they came to the 

table with genuine recommendations that may not be exactly from 

the same point of view. But after all, that is the essence of our constitutional republic and the ability to effectively govern. To take 

these different ideas, to move toward conflict resolution, to maintain a healthy skepticism. And here is hoping despite the challenges we confront from a variety of different areas, that we will 

be able to work with you and all of those in Indian Country to 

achieve a consensus that in an imperfect world can be a reasonable 

rational solution. That is our goal. 

To those who join us here, we thank you very much as we bring 

Congress to the people. And we will continue to seek your input. 

And if there is no further business, again, we thank the members 

of the Committee and our witnesses. 

And once more, I would be remiss if I did not thank the Salt 

River people Pima-Maricopa Indian community, this beautiful Lehi 

facility. We could hear the kids down at the boys and girls clubs. 

We know that others have comments, and we will be happy to 

include, in fact, with hearing no objection, I would ask unanimous 

consent that those who have prepared written statements or other 

perspectives that they would like to add to the record, may do so 

today. And we will achieve the purpose of getting your input, even 

though our time grows short here on our schedules. 

So we would ask if you do have other statements and comments, 

to submit them for the record in this hearing. 

And we look forward to discussing with many of our constituents 

here at home more on this topic in the days ahead. 

Again, we appreciate the interest and participation of all tribal 

leaders, members and members of the public who joined us today 

and our Committee meeting. 

Let me yield to my field. 

Mr. FALEOMAVAEGA. If the Chairman would yield again. I am 

sorry for talking so much. But I want to share with our Indian 

brothers and sisters the problem that we have in Washington. I 

have been in the Congress now for 15 years. This is my eighth 

term. Even though I do not vote on the House floor, I do vote in 

Committee. And I do want to say that, and we have a saying—‘‘I 

am not trying to comb his hair,’’ but the fact that this gentleman 

has taken the initiative, being a member and a Co-Chair of our 

American Indian Congressional Caucus, you just do not know how 

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important this is among the members in having to deal with Indian 

issues. 

The fact that there is so much competition and many priorities, 

sometimes things just do not seem to get on the radar screen. 

Indian issues have always been very difficult for members of the 

Congress to deal with. And, again, Mr. Chairman, I would be remiss if I do not offer my strongest commendation and thank you 

for your personal commitment in helping our Native American 

community people from all over the country. Not just for your State 

of Arizona, but for the whole nation. 

And I thank you for this commitment. And I sincerely hope that 

you are going to continue serving as Co-Chairman of our Caucus—

not only because he is a member of the Resources Committee, but 

he also serves on the Ways and Means Committee. So, he gives a 

good eye about your taxes, too. 

So with that, Mr. Chairman, I do really want to commend and 

thank you not only for holding this hearing, but also for the tremendous effort that you made over the years to give assistance for 

our Indian Country. And with that, I thank you. 

Mr. HAYWORTH. All right. I thank the gentleman from Samoa for 

his comments. 

Again, I thank everyone for coming. Those who are in the audience who are here to observe or may take a point a view, again, 

we would like to remind you we are happy to include your comments in the record today. And I have a feeling that this can be 

the subject of ongoing townhalls across the State of Arizona and 

across Indian Country. 

One final note that I make from time-to-time, and some of our 

friends in the press may look at the remarkable bipartisanship 

here. As I say to many who visit us in Washington, D.C., though 

we sometimes are counted along party lines for purposes of organizing the House, there are really only two types of people who 

serve in the Congress of the United States; those who represent 

what we still call Indian Country and those who represent what 

was once Indian Country. 

And with that note, we thank you all for being here. 

And the Committee stands adjourned. 

[A statement submitted for the record by Nora McDowell 

follows:]

Statement of Nora McDowell Chairwoman, Fort Mojave Tribe; President,

Inter Tribal Council of Arizona 

Good Afternoon. I am Nora McDowell, Chairwoman of the Fort Mojave Tribe, and 

President of the Inter Tribal Council of Arizona. I will begin by expressing my appreciation to the members of the House Committee on Resources for the invitation 

to provide testimony at this field hearing on ‘‘Can a process be developed to settle 

matters relating to the Indian Trust Fund lawsuit?’’

Initially, I will speak to a set of principles the Inter Tribal Council of Arizona supports in an effort to achieve meaningful trust reform. It is the Inter Tribal Council 

of Arizona’s belief that these basic principles will assist this Committee in answering your questions regarding the Indian Trust Fund lawsuit. 

First, the Department of Interior must comply with the spirit of consultation, including legitimate, timely, and good faith consultation with elected tribal leadership, 

not just the letter of consultation. 

Second, new authorizations and appropriations are required for trust reform. 

Taking any funds from either the Trust Office or the Bureau of Indian Affairs is 

41

unacceptable, as these appropriations are already at funding levels that fall far 

below the need. 

Third, trust reform must include the creation of an independent oversight entity 

that would have responsibility for trust administration. And, Tribal leaders need to 

be present on this entity, as they have detailed knowledge of what works and what 

doesn’t. Also needed are representatives with an understanding of the concept of 

‘‘Trust Responsibility’’ as it relates to the Tribal/Federal historic relationship. 

Fourth, the Department of Interior’s trust responsibility must be clearly defined. 

Fifth, trust reform must continue to support the role of Tribal self-determination 

and self-governance. 

Sixth, funds must be distributed to the local level to ensure trust reform. 

Seventh, any additional responsibilities related to trust reform must be accompanied by additional funds. 

And the final principle is that an Undersecretary of Indian Affairs position must 

be included in the Department of Interior’s organizational chart in order to ensure 

accountability within the Department of Interior. 

In addition to these principles, the core concept of ‘‘trust’’ to Indian tribes must 

be incorporated into the concept of ‘‘trust’’ as used for banking and accounting purposes. These two concepts must be woven together, rather than separated, in order 

to address the problems of the trust accounting, whether such ‘‘trust’’ is for Individual Indian Money Account holders or for Indian Nations. Which brings me to my 

next comment, which is more of a concern. I hope that this Committee, through this 

hearing and the previous two hearings, and the rest of Congress, is not attempting 

to place Indian Nations against their own members, who may or may not be members of the class in the Trust Fund lawsuit. The Inter Tribal Council of Arizona is 

asking for Congress’ commitment to adequately fund any proposal, whether it is a 

historical accounting, or a settlement, without taking from the Bureau of Indian Affairs’ already underfunded budget. 

In conclusion, there are certain actions the Congress can do in order to, at a minimum, move forward to a possible resolution to the Trust Fund lawsuit. 

First, Congress can adequately fund the Department of Interior with newly authorized and appropriated funds for the court-imposed historical accounting. 

Second, Congress can conduct hearings, similar to this hearing, with the primary 

parties involved in the Trust Fund lawsuit and pose to them the same question you 

have posed to the Indian Nations—‘‘Can a process be developed between the Individual Indian Money Account holders and the Department of Interior to settle the 

matters related to the Indian Trust Fund lawsuit? 

Third, the Inter Tribal Council of Arizona supports your opposition, Congressman 

Hayworth, to the one-year delay of the court-imposed historical accounting. 

Thank you for the opportunity to address this Committee. Good Afternoon. 

[Whereupon, at 2:45 p.m. the Subcommittee was adjourned.]

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