This is the third letter in a series of open letters I’m sending to Indian Country to answer questions that you have asked me about settlement of the Cobell class action lawsuit. Prior Ask Elouise letters can be found on the settlement website: CobellSettlement.com and here at Wampum Ask Eloise, Week of February 21 and Ask Eloise, Week of February 14. We also have a “frequently asked questions” section to answer the most common questions we’ve received: Frequently Asked Questions. I can’t answer every question, but I will try to answer as many as I can every week.

Why are resource mismanagement claims included in the proposed settlement and how were they valued as part of the $1.4 billion amount of the settlement? The settlement agreement covers claims that have been part of the Cobell case since it was filed on June 10, 1996, as well as other resource management claims that will be included in an amended complaint. Cobell has always demanded the correction and restatement of accounts and the restitution of profits unlawfully taken from individual Indian trust beneficiaries as a result of the government’s breaches of trust. Importantly, resource mismanagement claims necessarily are included in the accounting claim to ensure a full and complete accounting of the IIM Trust and the effective enforcement of plaintiffs’ vested and constitutionally protected property rights.

Individual class members may opt out of the settlement to pursue individual damages claims arising out of the government’s mismanagement of his or her natural resources. So while resource mismanagement claims are included in the proposed settlement, each class member has the right to decide whether his or her resource mismanagement claims should be resolved through the settlement.

Resource mismanagement claims are included for two principal reasons. First, the government insisted that resource mismanagement claims be included in the settlement. Otherwise, the government would not settle the case. The government stated that it is essential to “turn the page” so that it could build a better relationship with Indian Country, which it felt could only be achieved through what it says is a “global peace.”

Second, I and class counsel concluded that it is fair to include such claims so long as class members may elect to opt out of that portion of the settlement. Thus, if a class member wants to litigate his or her own resource mismanagement claims, that may be done readily and without compromise. But, because it is very expensive and highly unlikely that many beneficiaries have the financial resources to bring their own damages claims, the settlement allows class members who do not opt out of the settlement to be compensated fairly. For an overwhelming number of beneficiaries, settlement of historical damages claims for additional compensation not only is a good option, it is the only way many could be compensated for the harm done to them by the government. The opt-out provision provides each class member fair and meaningful options.

The settlement value of historical resource mismanagement accounting claims was negotiated by the parties. The total amount represents a fair resolution for plaintiffs’ accounting, restitution, and damages claims, considering the risks associated with indefinite litigation, including the absence of any time limit to reach final judgment in the case, the mortality rate of class members, and our understanding of the current litigation environment.

Who represented these claim-holders' interests during the settlement negotiations? I and class counsel represented all class members during the settlement negotiations. In the fairness hearing, the district court, in accordance with due process principles, would determine whether the amount negotiated is fair and whether the class representatives and counsel have adequately represented the class as a whole. After almost fifteen years of intense litigation over the government’s mismanagement of individual Indian trust assets, I and class counsel have the most significant, relevant and practical experience with stated claims of the class. But, you need not rely solely on our judgment in that regard because such matters are determined independently and in accordance with governing law by the presiding U.S. District Judge.

How will the new class be identified? There are two classes resolved by the settlement agreement: the historical accounting class and the trust administration class. Government records, to the extent available, will be used to identify members of the trust administration class. But we know that the government’s records do not identify or locate all members of the trust administration class. Accordingly, after ratifying legislation is passed, the parties, under the U.S. District Judge’s supervision, will conduct an extensive notice process to notify individual Indians of their rights and obligations under the settlement agreement. The notice process will also provide detailed information to Indian Country about the terms of settlement.

The settlement agreement also provides that class members may “self-identify” and apply for inclusion in the trust administration class. A contractor that is working with the parties will analyze all documentation provided by each such potential class member and, under the supervision of the United States District Court, will determine whether that person is a class member.

Is it fair and reasonable to disallow opt-outs from the historical accounting settlement when an historical accounting may be necessary for an individual who opts out of the trust administration class to pursue a resource mismanagement claim? Yes. Any class member who opts out of the settlement will retain the right to what is called an “accounting in aid of judgment,” which is a procedural tool used in the U.S. Court of Federal Claims to help beneficiaries value their damage claims. The settlement agreement explicitly preserves the right of any class member who opts out of the trust administration class to “an accounting in aid of judgment.”

An additional important point must be noted. An individual may remain in the trust administration class, get paid in full, and still pursue the following claims against the government and third parties: breaches of trust arising after September 30, 2009; certain environmental damages; claims against contractors or other third parties; claims for correction of boundary or appraisal errors (and, for damages after September 30, 2009); water rights; health and mortality claims; and claims arising from leases active on September 30, 2009.

I heard that the Settlement Agreement expired on February 28, 2010. Does this mean that the settlement agreement has terminated? No, the settlement agreement has not been terminated. The parties have agreed to extend the settlement through April 16, 2010. In my conversations with government officials, I have been assured that legislation will be passed within that period of time. I remain hopeful that legislation will be passed, but share your concerns that we continue to extend the time period with nothing to show for it. At this point, we must provide our allies time to advance the legislation.

If you are not currently receiving an IIM statement from the government, please remember to register for correspondence over the Internet or by calling the number below.

Internet: https://cert.tgcginc.com/iim/register.php
Telephone: 1-800-961-6109

Ask Elouise
Cobell Settlement
PO Box 9577
Dublin, OH 43017-4877

Thank you and keep your questions coming!

Best wishes

Elouise Cobell
Browning, Montana

This is the second in a series of open letters I’m sending to Indian Country to answer your very important questions about the settlement of the Cobell class action lawsuit. Prior Ask Elouise letters can be found on the settlement website: CobellSettlement.com, and here at Wampum. We also have a “frequently asked questions” section to answer many of the most common questions we’ve received. http://cobellsettlement.com/press/faq.php. I can’t answer every question, but I will try to answer as many as I can every week.

Why must the settlement approval process occur so quickly? Time is of the essence.
If settlement is not approved in the short term, there is a very real possibility the settlement will fail and the parties will return to active litigation. First, Congress must ratify the settlement agreement before the Court can act to preliminarily approve it. In this election year, further delay will create a more challenging political environment for enactment of the necessary implementing legislation. Congress is a body made up of diverse and varied views and not all have an interest in a successful resolution of this case. Further delay will increase the likelihood that our allies on Capitol Hill focus their attention on other matters. Secondly, the Supreme Court has granted an extension of the time for the parties to submit briefing in connection with its review of the Court of Appeals decision that limits the accounting duty to “low hanging fruit.” It is unlikely that further extensions will be granted by the Supreme Court and further court activity is likely to kill the settlement.

Shouldn’t you and the attorneys be traveling more to Indian Country to explain the settlement? We have spent some time traveling around Indian Country to discuss the settlement, answer your questions and listen to your concerns, but not enough. The problem with traveling around Indian Country to explain the settlement is that it has not received preliminary approval by the Court. What this means is that there is a chance that the Court or Congress could decide to alter or modify the settlement and any information we might share with Indian Country could change, requiring that we make the same trips twice – we can’t afford to be wasteful with our limited resources. In addition, any changes to the settlement agreement by the Court or Congress may result in the settlement being abandoned by either party. Once the settlement has received preliminary approval from the Court, we will undertake an extensive notice process, including travel to Indian Country, to notify class members of the settlement and educate you about your rights and obligations under the agreement.

How will I know if I’m included in the settlement? You will be included in the settlement if you had an IIM account open at anytime between approximately 1985 and September 30, 2009, or you had an individual interest in land held in trust or restricted status by the U.S. government as of September 30, 2009. Certain heirs to deceased class members may be included, as well. I recognize that many individuals have particular circumstances that might make it unclear whether they are included. A process for individuals to self-identify and apply for inclusion in the class will be developed if the settlement is approved. At this stage, the most important thing you can do is to register to ensure that we have a valid address to send you important information. If you are not receiving a quarterly IIM statement, then there is a chance that the government does not have a current address for you and you should register.

How do I register to receive settlement communications? You can register over the phone or Internet.

Internet: https://cert.tgcginc.com/iim/register.php
Telephone: 1-800-961-6109

As I indicated in my last Ask Elouise letter, in future letters I’ll answer questions about how much you can expect to receive if the settlement is finally approved as well as questions related to the damages class included in the settlement agreement.

If you have a question, send an e-mail to: askelouise@cobellsettlement.com. Otherwise you can send me a letter to the address below. To expedite the processing of your letters our contractor has set up a post office box in Ohio, but I assure you this letter is coming from me and I will see your letters.

Ask Elouise
Cobell Settlement
PO Box 9577
Dublin, OH 43017-4877

Thank you for your commitment and patience during this long and difficult process.

Best wishes

Elouise Cobell
Browning, Montana

Ask Elouise
Cobell Settlement
PO Box 9577
Dublin, OH 43017-4877

When will I receive my funds? It depends on when Congress passes legislation implementing the settlement and it is finally approved by the courts. The settlement agreement provides that the first payments should begin shortly after final approval and will continue for at least six months pursuant to Court order. I know many of you are concerned that it may take years to receive your share. That isn’t true. We have designed a formula to ensure that won’t occur.

When will the settlement be finally approved? After legislation is passed, the district court will schedule a hearing to consider the settlement and decide whether to grant Preliminary Approval of the settlement. At that point, there will be a 2 - 3 month period where notice will be provided to class members after which a “Fairness Hearing” will be held so that the Court can hear any objections to the settlement. If the judge deems the settlement fair, then he will issue an order of “Final Approval.” The court of appeals may then consider any appeal from class members. If there is no appeal, payments should begin sixty days following Final Approval. If the court of appeals accepts an appeal, payments could be substantially delayed.

When will Congress pass legislation approving the settlement? I don’t know when Congress will pass legislation. The parties agreed to extend the settlement agreement to February 28, 2010. I’m hopeful that legislation will be passed by then, but it might not happen. If it does not happen, I’ll consult with our attorneys about our options.

How much will the attorneys be paid? The Court will determine attorneys’ fees, but the attorneys have signed a separate agreement with the government agreeing to not ask for more than $99.9 million. This is less than 3% of the settlement funds – a very low percentage for attorneys in class action lawsuits. Consider that attorneys representing tribes under Indian Claims Commission Act generally received 10% as mandated by statute and attorneys involved in suits related to Enron received 9.5% (almost $700 million). Many medical malpractice attorneys receive over 30%; and, the tobacco attorneys received billions of dollars and very few did more than file a complaint in order to immediately negotiate a settlement. Most cases don’t even involve discovery, let alone go to trial, but our attorneys have prosecuted seven major trials in this case, litigated countless appeals, filed thousands of papers and reviewed tens of millions of pages of discovery without receiving due compensation for their services. I fully support the fee application. It is in fact unusually low for attorneys involved in complex, heavily litigated class action lawsuits. Frankly, I am concerned that if the legal fees for our attorneys are unreasonably low that will discourage competent lawyers from future representation of Native Americans in class action litigation against the government. It is also important to recognize that members of the class will have an opportunity to inform the Judge if they oppose the fee award.

How much will the named plaintiffs receive? The Court will also determine amounts to be paid to the named plaintiffs for their time and costs, also called “incentive payments.” This case was funded in large measure by the Blackfeet Reservation Development Fund (“BRDF”), a grass roots community development organization which assists Indian communities understand their trust assets. I have also given a significant amount of money to the case out of my personal funds. Funds were used to pay for experts, class communications and costs related to the prosecution of this case. During settlement negotiations, we estimated that these costs were in the range of $15 million. To date, very few of BRDF’s costs have been reimbursed and I have never been reimbursed for funds that I’ve contributed to the prosecution of this case. No tribe has ever given money for this case.

In future Ask Elouise letters, I’ll answer questions about how much you can expect to receive if the settlement is finally approved as well as questions related to the damages class included in the settlement agreement. Thank you for your commitment and patience during this long and difficult process.

Best wishes,
Elouise

Blackann admitted receiving gifts from three lobbyists in 2003, including a free trip to attend the first game of the 2003 World Series. That trip included airline travel to and from New York City, transportation around the city in a chauffeured sport utility vehicle, a ticket to the game, a souvenir baseball jersey, admission to and entertainment at a gentlemen's club following the game and free meals and drinks.

Here's the plea.

For a start, the Nixon, Haldeman, Erlichman model, which is the gold standard, the high-water mark for the Federal-Tribal relationship. Translated into Transition-Speak, coordinating Federal Indian policy stays "close" to the TT, not farmed out to some discrete hire/fires tagged for staffers for the eventual assistant secretary.

In the longer term, the transition could position FI policy as transitioning from Interior, where trees and bears and rocks live, to State, where Other Peoples live.

Next, the TT could spend some quality time with Eloise Cobell. There's a lot folks who haven't followed this for the past decade don't know, and recycled Clinton (Bill) people weren't particularly more clued in than the Bush/Cheney lot of political appointees.

Then there's the MMS. A wicked rich vein of corruption reaching many interesting places, almost all of which were protected by the DOJ in the Sansonetti and Wooldridge comedy of manors and revolving doors.

The TT could staff up the Hill policy desks with someone who owns the PL280 repeal task and get someone serious, Rob Williams comes to mind, to work on unraveling the Rehnquist nightmare that's created rape tourism in Indian Country.

And finally, there's Ross. A man in need of a vacation. Come to think of it Chad could do with one too. Club Fed or not, that's a never mind. But vacated. Gone. In TT speak that's a Special Trustee designated _now_, and the AUSA for the Eastern District of Oklahoma briefed that time on target (the CNO) is expected.

Many people are not all that familiar with the Office of Public Records Lobby Filing Disclosure Program. Essentially, anyone who wants to lobby any US government agency or office, including Congress or the Executive, has to register and then file semi-annual reports. For the recovering archaeologist like me, it is a treasure trove of information on some of the sleaziest creatures on earth: Lobbyists.

The database is a fairly powerful tool, once you get used to it. You can sort by registrant, client, lobbyist, issue code, lobbied agency, date, etc. In the past, I've generally used the one of the first three, but today, I branched out, sorting the data by issue code, IND, for Indian Affairs. It's important to note that there is in fact a separate issue code for gaming (GAM), which includes tribal gaming.

The vast majority of clients under this code for any given year are Indian tribes. But as I scanned the entries for 2002, I came across one that stood out: The "registrant" was Robertson Monagle and Eastaugh; the client, Greenberg Traurig (actually, misspelled "Trauig".) Robertson Monagle's headquarters were located in Anchorage, though the lobbyist named on the account, Steven Silver's offices were in Arlington, Virgina. A new sort brought up all the filings for Greenberg Traurig by Silver, just a handful, beginning with a registration in May, 2002. A quick check by client indicated that Greenberg had only hired their own lobbyists six times in the past eight years (when records became available online) all, with the exception of Silver, for tribal gaming issues.

The reason this registration (Page 1, Page 2) was so intriguing was information provided on the second page, under "Lobbying Issues". Silver indicated by the codes, "ENG", "IND", "NAT" and "ENV", that his lobbying issues were Energy, Indian Affairs, Natural Resources and Environment. In fact, on the next line indicating current and anticipated specific lobbying issues, Silver elaborated, "All issues relating to Indian Policy" and "Exploration for Oil and Gas".

None of Greenberg Traurig's tribal clients at the time had extensive holdings in oil and gas; they were gaming tribes, mostly from the Deep South or West Coast. Even more intriguing was that most of Silver's other clients (outside of a few municipalities in Alaska) had significant timber, oil & gas and/or mining interests, including Louisiana Pacific and BP America. Ironically, the primary lobbyist for BP America in 2002 was National Environmental Strategies, Steve Griles' former firm. In fact, BP was such a loyal client for Griles, it was one of his first he signed up when he left the Interior Department and formed Lundquist, Nethercutt and Griles in early 2004.

Silver only remained Greenberg Traurig's lobbyist for a few months. In Silver's only filing with actual lobbying activity, he claimed this lobbying on Indian Policy and oil and gas exploration was before the House and Senate solely on "ENG" (energy) issues (Page 1, Page 2.) Indian Trust Land leases would fall under "ENG"; tribal gaming would not.

Thereafter, Silver claimed no lobbying activities for Greenberg, and filed a "termination with no activity" in mid-year 2003. In May, 2004, Silver filed "registrant amendment', switching lobbying issue codes a simple GAM (gaming), and claiming work on a internet gaming bill. Greenberg terminated the contract in 2005, after the bill died in the Senate Banking Committee.

An unleashing of the Googling Monkeys brought up very little in regards to Steven Silver. A search on Opensecrets.org indicated a significant Republican donor, with $28,000 handed out since 2000. Robertson Monagle doesn't even have a website in either Anchorage or Arlington.

So why in mid-2002 did Greenberg Traurig, now firmly under the control of Jack Abramoff, hire a no-name natural resources lawyer-lobbyist to work on Indian policy and oil and gas exploration before Congress?

Update: I've been following up on some hunches, and I'm fairly sure one in particular will pan out: The connection between Greenberg Traurig and Steven Silver? Former Don Young (R-AK) staffer and lead counsel on the House Resources' committee (not to mention Team Abramoff heavy hitter) Duane Gibson.

Update2: : Another Alaska connection? Steven Griles former and present partner, Alaska native (no, not Native) Andrew Lundquist. As mentioned previously, Lundquist served as Executive Director of Cheney's Energy Task Force from Feb. 1, 2001, to Sept. 30, 2001, then remained as Cheney's Director of Energy Policy from Oct. 1, 2001, until the end of March, 2002.

‘‘(e) DEFINITIONS.—For the purposes of this chapter, the term ‘crime victim’ means a person directly and proximately harmed as a result of the commission of a Federal offense."

The Democrats unwillingness to lift the veil and go beyond deference to the "Senator from Indian Country" is why the efforts of the Congressional Black Caucus should interest, not simply alarm, Indians working towards reform, whether of tribal governments long captured by corporations and long abandoned by distant agency, or of basic economic means to improve the well-being of Indians.

Obviously, no one in Waxman's staff reads wampum, or has the smarts or the stamina to go after the issues, so they're just doing a round of, as Dan Burton correctly observes, pin the tail on the elephant.

Dan Burton , R-Ind., accused the committee’s chairman, Henry A. Waxman , D‑Calif., of trying to cause collateral damage and harm perceptions of both President Bush and presumed GOP presidential nominee Sen. John McCain of Arizona.

"Henry's on a mission," said Burton, a former chairman of that committee. "If the White House is bloodied up enough, they think that it will hurt McCain. They want to smack the White House again and again until it starts reflecting on Mr. McCain."

There was a reason Jack was present in a lot of places. Money. A lot of it.

1. The foxes in the MMS henhouse..., June 27, 2007
2. Blogger Ethics Pannel needed, June 10, 2006
3. Carbon tears, May 19, 2006 (with a nice bit on the windfarms off the Belgian and Dutch coasts -- I get to look at the latter every time I fly into AMS).
4. Koch's Brand of Bozos, May 16, 2006
5. Was Jack Abramoff really an "insider"?, April 18, 2006

One of the great things about this cycle is knowing in advance how many of the Abramoff fish are not going to be fried by either Obama or McCain, and how eager Dems are to look the other way when it comes to Interior, Indians, and Energy.

Steven Maviglio at the CMR is reporting (or posting or whatever) that Doolittle will announce that he will not seek re-election.

I'm wicked amused that Ted Gaines is messaging that environmentalists are to blame for last summer's Tahoe fires. Remember, its a 10+ red district, and even though Gaines' argument is wrong, it is likely to stick unless Charlie Brown knows his way around fine fuels and load and selective cut and bug kill and all the rest of the forestry management loopholes the corporate-to-peckerwood loggers have written into the Bush-era Dept. of Ag's Forestry management plans.

CA-04 enters the Doolittle Death Watch, July 24, 2007

CA-04 heats up in another dimension, June 28, 2007

Abramoff Figure Spared Prison

By MATT APUZZO - 8 hours ago

WASHINGTON (AP) - A Republican environmental activist who arranged lobbyist Jack Abramoff's entree into the Interior Department was sentenced Friday to two months in a halfway house and four years probation.

Italia Federici, who pleaded guilty in June to tax evasion and obstructing a Senate investigation, was spared prison only because she has become a key witness in the Justice Department's ongoing corruption investigation.

Federici has admitted acting as a link between Abramoff and J. Steven Griles, the former deputy Interior Department secretary who for five years was her boyfriend. Griles provided Abramoff with advice and internal agency information, sometimes directly and sometimes through Federici.

Federici was way more involved than this sentence indicates, so she better have some serious goods on a big fish. Norton, Sansonetti, Barbour? I'll have to think about this one.

Q. When you discussed, in response to the judge's question, how the unitization works, was allocation an important issue?

A. Allocation is extremely critical in unit allocation. It is the essence of getting payment correctly to individual Indian owners, tribes, states, federal programs, and private landowners. Without it, you cannot allocate monies properly.

Q. Could you explain how the allocation process works?

A. Allocation process goes all the way back to the lease instrument. In order to get money correctly to an individual, you have to understand every aspect of the lease instrument in terms of: Is it unitized, does it commingle, what is the size of the property, what type of production comes off that property; to, when it goes through the system, is it a correct royalty rate, is it going to the correct owners, is there probate backing up those owners? And when you do that, you have to look at source documents, and you have to do third party verification.

Q. What do you mean, first of all, by source documents?

A. Well, for example, if you look at an allocation to an individual Indian, in order to get to that allocation, I have to go all the way back to the unit agreement. And I have to look at an exhibit called Exhibit B within the unit agreement, that talks about the complete breakdown of every ownership type within that unit, because I may have 30 percent owned by federal, 20 percent by Navajo Tribal, 30 percent by Navajo allotted, and maybe 20 percent by private landowner. I have to go all the way back to that document as a primary source to get to the payment to the individual Indian. And then I have to go to the royalty rate, and then I have to go to the probates and look at probates, gift deeds, living wills, et cetera, in order to get to the complete payment out to the allottee.

1 Q. That sounds like a cumbersome process. Is it?

A. It's very complex. If you were to look at this type of system in a private landowner's case, oil and gas industry hires land people, they pay them very well, in the $200,000 range, to go back and do this title research to find out who gets paid, how much they get paid, how do you allocate, et cetera. It also requires, in the private sector, a legal
opinion from an attorney that's certified, that says that the title in the allocations are certified correct, and the division of interest will pay out correctly. It requires an extensive amount of work. It requires very high level land people and attorneys to do this type of work.

Q. Is that what you did at the FIMO office when you were running the FIMO office?

A. Repeat that.

Q. Is that what you did at the FIMO office when you were running the FIMO office?

A. Yes, that was part of what I did, and my staff did.

Q. Do you have any knowledge as to whether or not this was done by MMS or anyone else outside of the FIMO office with regard to individual Indian mineral or oil and gas lands?

A. No, I'm not. We were in a unique position. We had every agency within our office, so we looked at everything from the lease agreement itself, the BLM-approved communitization

A. We brought it to the attention of MMS many times, and asked that MMS make corrections on the reports, in which case often they did.

Q. If you didn't rely on the MMS database, what did you rely on?

A. We relied on our own internal databases that we developed with companies, and we relied on companies' reports directly going to us.

Q. So is it correct, then, that you relied on third party information?

A. We relied on third party and primary source data.

Q. Are third party documents important to determining accuracy with regard to mineral and oil and gas leases?

A. Absolutely.

THE COURT: Would you call that a leading question?

MR. GINGOLD: I apologize, Your Honor.

BY MR. GINGOLD:

Q. Why would you need to rely on third party data?

A. We rely on third party databases because we don't always trust what an operator tells us. We have companies that produce oil. They tell us one thing on their inventory and what they sold; and then we go to a transporter, and we find that the information is different, that they picked up more oil than the4 company reported. And so we do rely on run tickets from trucking transportation companies, and gas pipeline companies that transport gas, to verify production.

Q. What is a run ticket?

A. Run ticket?

Q. Yeah, what is it?

MR. KIRSCHMAN: Your Honor, objection. Outside the scope of this case. This is asset management. This is talking about what private companies do. This is not about a historical accounting.

THE COURT: Well --

MR. GINGOLD: Your Honor, may I?

THE COURT: No, we touched on this yesterday. I don't want to overdo this. I mean, you're right that this is, going forward, an asset management more than it is historical accounting, but frankly, it helps for me to kind of fill in the picture of what is known and what is not known, and what can be verified and what can't be verified. So a reasonable amount of this, I'm going to allow. Go ahead.

MR. KIRSCHMAN: Thank you, Your Honor.

BY MR. GINGOLD:
Q. What is a run ticket, Mr. Gambrell?

A. A run ticket is a statement that is often signed by a transporter and an operator when oil leaves a tank. What they do is, they measure the oil in the tank when it's full, and then it fills up the truck, and then they measure the tank when the truck is filled. And between the full measurement before the truck filled up and the truck measurement after the truck fills up is the quantity of oil that leaves the lease.

Q. And how is that related to the income produced from oil and gas or mineral leases?

A. Anything to do with income depends on the volumes that are sold off the lease. You cannot determine the monies going to individual Indians if you do not know what was sold.

An Interior Department attorney who has been locked out of his office at the Bureau of Indian Affairs accused the agency on Tuesday of failing to account for millions of dollars in trust funds.

After a stint in Oklahoma, field solicitor Robert McCarthy went to work for the BIA in Palm Springs, California, over three years ago. He said he quickly learned that the agency didn't have a way to track more than $30 million in annual lease payments owed to members of the Agua Caliente Band of Cahuilla Indians.

"The agency had a very poor system of record-keeping and was grossly mismanaging the leases ... and was generally not enforcing the leases," testified McCarthy, one of the witnesses for the plaintiffs in the Cobell trust fund lawsuit.

Enforcement was so lax that it was impossible to tell whether Agua Caliente landowners received the right amount of money for the use of their land and whether they received it on time, McCarthy said. The BIA essentially relied on the word of developers, private parties and outsiders.

"I saw files that were years in default," McCarthy said of leases that weren't enforced.

Even when a payment was made, the BIA didn't always pass it on to the beneficiary, McCarthy testified. In one case, the BIA kept a trust payment of $130,000 in a "special deposit account" for over 25 years because the agency didn't know whose money it was.

...

Despite the apparent mismanagement, the BIA made money off of Agua Caliente landowners. "In virtually every case for virtually every type of administrative action," the agency charged a fee for its services, McCarthy said.

For example, a fee of 1 percent was applied to every single land sale, McCarthy said. In Palm Springs -- where real estate is big business -- this amounted to payments to the BIA that were as high as $60,000, according to one document entered into evidence.

But federal regulations limit fees for land sales to $22.50, McCarthy said. The regulations also cap fees for leases at $500, though that apparently wasn't followed in Palm Springs.

"Those fees are charged in Palm Springs on every lease," McCarthy told the court.

...

The situation prompted McCarthy to warn his superiors in the Solicitor's Office, the Inspector General and eventually Jim Cason -- the associate deputy secretary at DOI who was in charge of the BIA at the time -- about the problems in Palm Springs. "I was kicked out of my office after I made my disclosures," McCarthy told Judge James Robertson, who wondered why the solicitor was working from home -- with pay -- rather than at the BIA office.

"Everyone stopped talking to me," McCarthy added. "I was shunned."

And when McCarthy informed his superiors that he was going to testify in the Cobell trial, he was told he was going to be fired for allegedly disclosing confidential trust data to the media. The Public Employees for Environmental Responsibility group is defending McCarthy, who has filed appeals over his employment status.

...

After his direct testimony, McCarthy was treated in a hostile manner by Robert Kirschman, a DOJ attorney. Kirschman attempted to show that McCarthy tried to take sole credit for identifying the proper owner of the $130,000 trust payment, mischaracterized the way in which Agua Caliente leases are tracked and gave inaccurate information in the memo to Cason.

McCarthy appeared to withstand the scrutiny and Kirschman cut off his cross-examination after seeming to stumble on a question about fees. Kirschman also tried to make an issue out of a memo that he said McCarthy failed to provide to the court.

Next up for the Cobell plaintiffs was Albuquerque Bureau of Indian Affairs employee Mona Infield, whose responsibilities cover data recovery efforts:

Infield, a member of the Citizen Potawataomi Nation of Oklahoma, gave succinct but detailed testimony about trust accounting practices dating back to the 1980s. She spoke of outdated systems, missing computer records and a lack of enforcement.

"They were relying on an honor system to pay the royalties," she said of government agencies.

Infield concluded her testimony yesterday afternoon after DOJ attorneys declined to ask questions.

Up today is Kevin Gambrell, the former director of the Federal Indian Minerals Office in Farmington, New Mexico from 1996 to 2003. Gambrell testified before Congress regarding mismanagement of trust accounts, and was fired from his job for purportedly "destroying records." Gambrell maintains the documents were merely copies of originals properly recorded and stored by MMS.

PBS' Now recorded an interview with Gambrell in 2006. For a preview of what Gambrell might have to say today, read the transcript.

Correction: Gannett has also been following the story. In fact, Solicitor McCarthy faces dismissal for disclosing the extent of the mismanagement to Gannett earlier this year.

Update: I misread the original article in Indianz, and thus was a day off in my reporting. McCarthy and Infield testified on Tuesday, and Gambrell yesterday. I'm currently reading through the transcript.

In addition, Indianz.com is reporting both parties have rested their cases and have until Dec. 30th for closing arguments.