[Federal Register Volume 70, Number 166 (Monday, August 29, 2005)]
[Notices]
[Pages 51081-51083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17137]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary


Final Decisions Regarding Self-Determination and Self-Governance 
Funding Agreement Language on Fiduciary Trust Records Management

AGENCY: Office of the Secretary, Interior.

ACTION: Notice of final decision.

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SUMMARY: This notice announces the final decision regarding Self-
Determination and Self-Governance language to be negotiated into 
funding agreements for 2006 regarding fiduciary trust records 
management. The Federal Register notice published on February 2, 2005 
(70 FR 5457) presented a proposed policy on fiduciary trust records 
management for Self-Determination (Title I) and Self-Governance (Title 
IV) Tribes/Consortia and language to be negotiated into 2006 Title I 
and Title IV funding agreements. The February 2, 2005, notice also 
announced three consultation meetings and an invitation to submit 
written comments on the proposed policy and funding agreement language.
    Final Decision: After reviewing numerous comments and suggestions, 
both written and oral, the Department decided not to institute the 
proposed policy on fiduciary trust records management for Title I and 
Title IV Tribes/Consortia; rather, the Department will negotiate with 
each Tribe/Consortium a specific section in the funding agreement that 
addresses Tribe's/Consortium's and the Secretary's respective 
responsibilities regarding the management of fiduciary trust records. 
This specific section will include the definition of ``fiduciary trust 
records,'' ``Indian trust assets,'' and ``management.'' The language to 
be negotiated into the 2006 Title I and Title IV funding agreements 
regarding fiduciary trust records management is the following and will 
replace the three options used in the past.
    The Tribe/Consortium and Secretary agree to the following:
    The Tribe/Consortium agrees to:
    (a) Preserve, protect and manage all fiduciary trust records, 
created and/or maintained by the Tribes/Consortia during their 
management of trust programs in their Title IV agreements. (A fiduciary 
trust record is any document that reflects the existence of an Indian 
trust asset and was used in the management of an Indian trust asset. An 
Indian trust asset refers to lands, natural resources, monies or other 
assets held in trust at a particular time by the Federal Government for 
a Tribe, Alaska natives

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or that are or were at a particular time restricted against alienation, 
for individual Indians. Management includes actions that influence, 
affect, govern, or control an Indian trust asset. The following are 
examples not considered to be fiduciary trust records: General 
administrative, personnel or travel records; education records; law 
enforcement records; health records; law making unrelated to Indian 
trust assets; tribal council resolutions and laws unrelated to Indian 
trust assets; and tribal elections.)
    (b) Make available to the Secretary all fiduciary trust records 
maintained by the Tribe/Consortium, provided that the Secretary gives 
reasonable oral or written advance request to the Tribe/Consortium. 
Access shall include visual inspection and, at the expense of the 
Secretary, the production of copies (as agreed upon between the 
parties), and shall not include the removal of the records without 
tribal approval; and
    (c) Store and permanently retain all inactive fiduciary trust 
records at the Tribe/Consortium or allow such records to be removed and 
stored at the American Indian Records Repository (AIRR) in Lenexa, 
Kansas, at no cost to the Tribe/Consortium.
    The Secretary agrees to:
    (a) Allow the Tribe/Consortium to determine what records it creates 
to implement the trust programs assumed under its Title IV agreement, 
except that the Tribe/Consortium must create and maintain the 
information required by statute and regulation. No additional record 
keeping requirements are required by this agreement.
    (b) Store all inactive fiduciary trust records at the American 
Indian Records Repository (AIRR) at no cost to the Tribe/Consortium 
when the Tribe/Consortium no longer wishes to keep the records. 
Further, the Tribe/Consortium will retain legal custody and determine 
access to these records. Such records shall not be treated as Federal 
records for purposes of chapter 5 of Title 5 of the United States Code 
unless expressly agreed to by the Tribe;
    (c) Create and manage a single tribal storage and retrieval system 
for all fiduciary trust records stored at AIRR (No records will be 
accepted at AIRR until such a retrieval system exists); and
    (d) Provide filing equipment and technical assistance for Tribes/
Consortia in preserving, protecting and managing their fiduciary trust 
records from available funds appropriated for this purpose.
    Summary of Comments: The final decision above is the result of a 
nearly 2-year consultation process by the Department with some Title I 
and IV Tribes/Consortia. This process included: Conducting pre-scoping 
telephone conversations with tribal leaders, staff and consultants; 
holding a scoping meeting as part of a 2-day conference on Indian trust 
records management at Haskell Indian Nations University; forming a 
Tribal Fiduciary Trust Records Management Workgroup; conducting four 
workgroup meetings; transmitting a tribal leader letter soliciting 
comments on the proposed policy language to be presented for 
consultation; and engaging in discussions with Tribal leaders and staff 
at the Fall 2004, Self-Governance Conference. This process culminated 
with three consultation meetings held in Nashville, Tennessee; 
Portland, Oregon; and Phoenix, Arizona that were attended by 
approximately 60 tribal leaders, staff and consultants. In addition, 
written comments were received from 14 tribes, tribal organizations or 
tribal consultants some of whom attended the consultation meetings.
    The comments received can be grouped into the following four major 
categories:
    Category 1: New funding agreement language is not needed because 
existing compact and funding agreement language sufficiently provides 
for the maintenance of records of trust programs managed by the Tribes/
Consortia, and Tribes/Consortia should not be required to implement a 
Federal policy on fiduciary trust records management through their 
funding agreements. The Department respectfully disagrees. The 
Department believed that the three options available to Tribes/
Consortia in the past are too vague and do not specifically address the 
Secretary's primary concerns that fiduciary trust records not be 
destroyed and that the Secretary have the right to access those records 
if needed in her capacity as trustee delegate. The Department does 
agree with the comments that a Federal policy does not need to be 
instituted through the Departmental Manual. Instead the Department has 
chosen to negotiate language with each Tribe/Consortium into its 
funding agreement to address fiduciary trust records management.
    Category 2: The definition of ``fiduciary trust records'' is too 
broad and vague and the Department should produce a specific list of 
what fiduciary trust records should be maintained and preserved by the 
Tribe/Consortium. The definition is purposely broad in recognition of 
tribal sovereignty. It allows Tribes/Consortia the flexibility to 
create those records they believe are necessary to properly manage 
their trust assets through their Title I or Title IV funding 
agreements. For the Department to create a list of fiduciary trust 
records would have been both overly restrictive for some Tribes/
Consortia and overly expansive for others. A Department-generated list 
to be used by all Tribes/Consortia would have been restrictive in that 
it could deter tribes from creating certain records they feel were 
appropriate and at the same time it could be expansive by ``requiring'' 
Tribes/Consortia to create fiduciary trust records they did not believe 
were necessary for effective management of their trust assets. The 
Department's concern is that whatever trust records are created be 
properly protected and available to the Secretary.
    Category 3: The funding agreement language creates an unfunded 
mandate because no funding is being provided, and the language requires 
Tribes/Consortia to maintain record facilities and administer and 
monitor a records policy. The Department believes that the language 
proposed for negotiation does not require Tribes/Consortia to create 
and keep any additional records beyond those they now keep; namely, 
those that are required by statute or regulation or those records the 
Tribe/Consortium chooses to create in the management of its own trust 
resources. The language does not require a tribe to have any other kind 
of record keeping system other than the ones they currently operate. 
Before becoming a Title I or Title IV Tribe/Consortium, a Tribe/
Consortium had to demonstrate that it had a functional record keeping 
system and this language does not expand that requirement. Further, 
while the language does indicate that Tribes/Consortia are to preserve, 
protect and manage all fiduciary trust records and that all fiduciary 
trust records are to be kept permanently, once the Tribe/Consortium 
chooses that it no longer wants to house their inactive fiduciary trust 
records at their facility, the Secretary has offered to store those 
records, at the Secretary's expense, at the American Indian Records 
Repository. Finally, the Secretary is willing to provide to the Tribes/
Consortia equipment, training and technical assistance, subject to 
availability of appropriated funds for that purpose.
    Category 4: A potential problem exists for Tribes/Consortia in 
storing records at AIRR in that outside interests might gain access to 
Tribal/Consortium trust records through the Freedom of Information Act 
because the Tribal/Consortium trust records are held on the Tribe's/
Consortium's behalf by the Department in a Federal facility. To

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accommodate this concern, language was inserted stating that the Tribe/
Consortium retains legal custody and determines access to those 
records. Further, language was inserted stating that such records shall 
not be treated as Federal records for purposes of chapter 5 of Title 5 
of the United States Code, unless expressly agreed to by the Tribe.

    Dated: August 19, 2005.
Abraham E. Haspel,
Assistant Deputy Secretary--Office of the Secretary.
[FR Doc. 05-17137 Filed 8-26-05; 8:45 am]
BILLING CODE 4310-W8-P