An interview with Sen. Ben Nighthorse Campbell
ICT: Senator Campbell, you have introduced a remarkable slate of Indian legislative proposals already in the 108th Congress, encompassing energy, economic development, land leasing, health care, probate reform, environmental issues, and other matters of the first importance to Indian country. Your track record suggests that many of these measures will become law, perhaps all of them with any luck. But in the U.S. Congress, it seems that no one of them is ever a sure thing. With that in mind, is there any particular proposal of yours in this session that would benefit from the special backing of tribes? Which is it, how so, and what can ordinary tribal members and their allies do to help its chances?
Campbell: Several of the bills you mention had to be re-introduced because they were not enacted in the last Congress. We know that most Indian economies are weak, most Indian people suffer from poor health, and many tribes want to develop their energy resources. The bills I introduced will provide relief to some of the many problems in Native communities and for that reason it is my hope that all of the bills would receive tribal support. Indian tribes and their members need to get engaged in the political process and track the developments that occur here in Congress. Sometimes things are very fast-paced and Indian country needs to mobilize very quickly to respond to developments in Washington.
ICT: One of your proposals, S. 551, would help the Southern Utes improve their air quality. Some of us may remember that during the telecommunications boom, consultants regularly counseled tribes to assert control over their airspace for economic reasons. Now the Southern Utes seem to be making that assertion, but for environmental reasons that must be very well received in Colorado and elsewhere. Would your measure, if enacted, set a precedent for other tribes?
Campbell: The Southern Ute Indian Tribe does so many things well - energy development, job creation, and so on - they serve as a model for Indian tribes across the nation. The bill I introduced is a ratification of a jurisdictional agreement that the Tribe and the State of Colorado negotiated in good faith. The agreement recognizes the Tribe's authority to be treated as a state and to regulate air quality over the entire reservation - even over non-Indian-owned fee lands. In return, the Tribe agreed to have a federal court resolve any dispute that comes up under the agreement. The bill also creates a joint commission made up of Indians and non-Indians to resolve some of the issues related to air quality regulation. I hope this bill does serve as a model because the alternative is massive, expensive litigation that rarely if ever produces anything other than unneeded friction and fees for lawyers.
ICT: Another of your proposals, S. 550, involves probate reforms that would help to slow the so-called "fractionation" of Indian lands. Why is this issue so high on your legislative agenda?
Campbell: Even before I became Chairman of the Committee on Indian Affairs in 1997, it was evident that the Indian trust was broken and badly in need of repair. Let's look at what has happened in the last 10 years alone: dozens of hearings, the 1994 Act [the Indian Trust Management Reform Act] was enacted, the Cobell case was filed; two Special Trustees resigned; two Interior Secretaries have been held in contempt; the United States has spent hundreds of millions on trust reform and the trust litigation; not one Indian has received any relief; and we just seem to go on and on.
Fractionation is rendering large swaths of Indian lands economically useless and is causing the tribes and the Interior Department administrative burdens that are surreal. The root causes of trust management problems are increasing land fractionation; small parcels of land holdings and accounts; and outdated Indian probate rules. We are making some progress but it is slow. The Indian Land Consolidation Act Amendments I introduced in the 106th Congress were enacted into law and the Indian Land Consolidation Pilot has been successful in purchasing small parcels from their owners and returning them to the tribal landmass. I think the Pilot ought to be expanded to the whole nation and expedited. The next step is to reform how Indian estates get probated and that's why I introduced S. 550.
ICT: The reform of trust funds accounting is once again in the news. The latest is that the House Interior Appropriations Committee may support the Interior budget request for a historical accounting of the trust funds, but not without misgivings over the price tag - misgivings continually expressed, an observer might add, for at least 10 years, over a price tag that has gone up and up despite warning upon warning to that effect from many quarters.
As a longtime member of the Senate Indian Affairs Committee and the current chair, you have wrestled with this issue as much as anyone in recent years. Clarity is needed and few are so well-positioned to provide it as you are. Indian Country Today hopes to sound you out on all of the following points.
Can a historical accounting of the trust funds actually be accomplished, even if the Interior request of $130 million for this year is honored in Congress? Should it be honored in view of past expenditures and their results?
Campbell: I am not sure that a "full historical accounting" as that term is used can be accomplished. What the accountants in the General Accounting Office and other experts have told us is that unless all documents are available, a "full" accounting is not possible. There can be an "historical analysis" and there can be a partial "accounting" but I'm not sure the U.S. can go back in time and perform a full accounting simply because all the documents are just not there. I think that is why there is much talk of "sampling" and "modeling" and what have you because most people think that 100 percent of the documents needed to do an accounting are not available.
ICT: What are your views on the current trust reorganization plan put forward by Interior?
Campbell: Well, as I said, it's obvious the Department's machinery is broken and in need of major overhauls. In fall 2001, Secretary Norton and tribal leaders launched a precedent-setting series of consultations and other meetings with the goal of trying to figure out what reforms and internal management changes were needed to get the Department's management system up to snuff. The discussions involved computer and accounting changes, land records and title matters, how the Bureau's central, area and field offices would work together and with the tribes, and a host of other issues.
After nearly a year, the Department requested $5 million to implement organizational changes to improve the system and in fact filed the plan with the Cobell court to demonstrate what it planned to do in the months and years ahead. The proposed reorganization is not unanimously supported and the Committee has heard from several tribes who oppose it. As we have done in the past, I would expect that in the weeks ahead the Committee on Indian Affairs will hold a hearing on the Reorganization Plan and we'll see where we need to go from that point.
ICT: The Cobell lawsuit has accomplished a great deal demonstrating historical mismanagement in the trust fund accounts, but it is hard to see how or when it can hope to accommodate a productive reform process. One gets the impression of an all-too familiar pattern: the court lambastes Interior officials for deceit or malfeasance, Interior solicitors insist they're doing their best, plaintiff attorneys weigh in with their responses, an Interior official re-states the department's commitment to reform, and another request for funding of another reform plan heads for Congress. All this punctuated by the appointment and predictable dismissal, not to mention the occasional contempt of court trial, of the various Special Trustees, Cabinet Secretaries and Assistant Secretaries. This scenario, with small variations, is in its ninth calendar year. Perhaps it is time to speak of an impasse when the latest variation is the trial judge's decision not to hold Interior officials in contempt of court.
With that as a background, do you believe the Cobell case can be resolved without intervention from other courts or from Congress?
Campbell: The Cobell case is entering its 8th year. In January, 2003, the Department and the Plaintiffs each submitted documents to the court dealing with how each proposed to perform an historical accounting; and second, what standards ought to guide the U.S. handling of trust assets, resources and funds. Judge Lamberth has ordered a trial for this May on what he is calling "Phase 1.5" of the case and I hope that in the wake of that part of the trial, there will be more clarity for instance on whether the Judge will proceed to the next stage of the case or whether there will be real efforts at mediating this case to a conclusion.
For those that think the case is nearing its end, I would remind them that the Plaintiffs in this case have not sought money damages. The remedy they are asking the Judge for is an historical accounting of the individual Indian money accounts. Any damages calculation will occur sometime after the May 2003 trial and it will be in another court, before another judge. In other words, there will need to be more litigation. Frankly, the parties here are so far apart and polarized that, if left to their own devices, I don't believe they can sit down and hash this thing out.
Unless something very significant happens in the next several months that gives the Committee and the Congress some reason to think this case will not go on without real relief provided to the IIM holders relatively soon, I think there will be a number of legislative proposals introduced to help mid-wife a settlement between the Plaintiffs and the United States.
ICT: What impact is the lawsuit having on the BIA?
Campbell: From what we understand, it is causing real chaos down at the Bureau and the Department. Back in December 2001, the Internet systems for the BIA and the Department were shut down by order of Judge Lamberth and it has had a very bad impact on the day-to-day operations of the agency. We also know that the costs of the case and trust reform are starting to have real impacts - real dollar impacts - on other Indian programs and services. Another impact is on the morale of existing staff, which is very low. I cannot imagine that potential employees of the Bureau or the Department are anxious to work in the trust area because they could be deposed, obliged to retain their own attorney, and possibly be held in contempt. What kind of environment is that to work in? This is a very real problem and, in fact, the last Assistant Secretary we had down there - Neal McCaleb - resigned and he said the toxic atmosphere of the Cobell case and trust reform in general was the main reason he left.
ICT: You have put forward an alternative settlement plan on IIM accounts. Can you highlight its provisions and define the impact you hope for it to have?
Campbell: As I've said many times, the facts on the ground are that IIM holders have not gotten any relief, and many of them are dying as the case proceeds. That's just not fair or right as I look at it and one of the ideas we are working on would be to find a way to provide to the 300,000 members of the plaintiff's class an opportunity to opt out of the case and receive a cash settlement instead of having his or her account reconciled. Any proposal that is floated will have to be within the federal rules governing the litigation and will not just pull the plug on the case. I think that would do a disservice to the plaintiffs and would be neither fair nor honorable. At the same time, there are ways to go about this in a creative and innovative way that will provide relief to the IIM holders and we will be looking at some of these options.
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