S ECRETARIAL C OMMISSION ON I NDIAN T RUST A DMINISTRATION AND R EFORM Final al Rep epor ort t – December ecember 10, 0, 2013 1
FINAL REPORT – DECEMBER 2013 Series of overarching recommendations Legislative Regulatory Procedural 2
REC ECOMMEND OMMENDATIO TION N NO NO. . 1 REVIEW VIEW AND AMENDMENT NDMENT OF FEDERAL ERAL LAW Because the Supreme Court has narrowly construed the trust responsibility in the damages cases, Congress should amend federal law to provide a damages remedy for harm caused when the following standard is breached: “The trustee is a fiduciary in which the law demands an unusually high standard of ethical or moral conduct with reference to the beneficiary. The trustee owes a duty to act solely in the interest of the beneficiary, and must not consider their own personal advantage.” The United States should not import the narrow definition of the trust obligation that has been employed by the Supreme Court in some damages cases into cases involving Indian claims for prospective relief. 3
REC ECOMMEND OMMENDATIO TION N NO NO. . 2: : EVALUATE TE TR TRIBA BAL L CONS NSUL ULTATI TION ON POLI LICY CY The independent counsel deserves further consideration by the federal government. The Commission recommends that the Secretary evaluate the options in this area in consultation with tribal leaders. Renewed emphasis on the United States’ fiduciary obligations could correct some of the issues with respect to ensuring that all federal agencies understand their obligations to abide by and enforce federal trust duties. 4
REC ECOMMEND OMMENDATIO TION N NO NO. . 3: : DEV EVEL ELOP OP UNI NIFOR ORM M CON ONSUL SULTATION TION PO POLICY ICY The Commission recommends that the Administration work with Indian Nations and individuals to develop a judicially enforceable, uniform consultation policy that would be codified in a federal statute. 5
REC ECOMMEND OMMENDATIO TION N NO NO. . 4: : TRUST AD ADMI MINIS NISTRA TRATI TION ON RE RE-STRUCT CTURIN URING Modeled on the Federal Energy Regulation Commission (FERC) and its relationship with the Department of Energy (DOE), Congress should establish a fully independent Indian Trust Administration Commission (ITAC) located within the Department of the Interior (DOI). The independent commission would benefit from functional and budget autonomy from DOI, thus mitigating tribal/beneficiary concerns about conflicts of priorities. The proposed commission would maintain cabinet-level advocacy through the Secretary of the Interior by virtue of its continued relationship with DOI . 6
INDIAN TRUST ADMINISTRATION COMMISSION (ITAC) PROPOSED ORGANIZATIONAL STRUCTURE Commissioner Support Offices Trust Administration Commission Office of Trust Office of Trust Policy and Process Internal Review Trust Policy and Trust Internal Coordination Controls Chair Members Trust Programmatic Tribal Consultation, Review Culture, and Outreach National Coordinating Offices CFO CHCO COO Funds Customer Leasing/ Management Service Contract Budget and Records Sustainability Administration Management Planning Human Land Ownership Resources and Protection Appraisal Services Information Technology Regional Implementation Offices Region X Director for Trust Administration Regional Fiduciary Trust Regional Deputy for Officer Trust Services Accounting & Accounts Land Ownership Management Real Estate Management Indian Land Consolidation Natural Resources Minerals 7 Forestry
DEPICTION OF POST-ITAC - DOI DOI Secretary Information Flow Deputy Secretary Legend: Trust-Related Indian Trust Administration Commission Non-Trust Related Trust Responsibilities Removed Commissioner from DOI bureaus/offices and Support Offices consolidated in ITAC. AS – Policy, Office of Trust Chair Members Management, Policy and Process and Budget Office of Trust Internal Review AS – Land and OHA ONRR AS – Indian AS – Water Minerals National Coordinating Offices Affairs and Science Management CFO CHCO COO BIA BLM BOR Funds Customer Leasing/ Management Service Contract OSMRE USGS Budget and Records Sustainability Although all direct Administration Management Planning trust-related BOEM activities will be Human Land Ownership removed from DOI Resources and Protection bureaus/offices, BSEE Appraisal these entities must Services still collaborate with Information ITAC on all issues AS – Fish, Technology which impact trust AS – Insular Wildlife, and While not within administration (e.g., Affairs Parks this scope of study, U.S. Forestry Regional Implementation Offices Justice Services, interacting with Indian Services, Office of Insular ITAC when NPS and BIE could be Affairs Region X Director for Trust Administration proposed incorporated in regulations would ITAC or remain USFWS impact Indian within BIA. Regional Fiduciary Trust Regional Deputy for forestry assets). 8 Officer Trust Services
REC ECOMMEND OMMENDATIO TION N NO NO. . 5: : IMPR MPROVE VE THE E MA MANA NAGEMENT GEMENT, , OVE VERSIGH SIGHT, , AND ND ACC CCOUNT OUNTABILIT ABILITY OF OF TAS S SER ERVI VICE CES S AND ND TRUS UST T ASSET ETS Crea eate e an Ade dequat uate e Audi ditin ing g System em that Fulfil ills ls Trust t Res espon ponsibi ibili lity ty to Ben enef efic icia iari ries es 9
REC ECOMMEND OMMENDATIO TION N NO NO. . 6: : PR PROCEDU OCEDURAL RAL CHANGES ANGES TAS-WIDE RECOMMENDATIONS FUNDS MANAGEMENT RECOMMENDATIONS INFORMATION TECHNOLOGY RECOMMENDATIONS CUSTOMER SERVICE RECOMMENDATIONS 10
OTHER RECOMMENDATIONS - PROBATE Promote the use of alternative strategies to probates Legal mechanism, streamlined OHA requirements for probate files, revitalize Attorney Decision Maker programs, consider legislative authorization of local forums including tribal courts 11
OTHER RECOMMENDATIONS - APPRAISALS Expand the use of per-approved third-party vender solutions to effectuate a common, standard services on commercial timelines A review w of f US USDA A appraisal praisal meth ethodolo odology gy and d poli lici cies es Improvement ements s to the Proce ocess ss of f Procuring curing and Ut Utilizing ing Mass ss Appraisals praisals Exp xpand and Previously iously Appr proved ed Waiver r Authorit ority y to All Tribe bes s and All BIA Regions ions. Increase rease Auth thority ority to Waive e Appraisal raisal or Valua uati tion on Requireme quirements nts for Transacti nsactions ons Involving olving Compe petit itiv ive e Bids 12
OTHER RECOMMENDATIONS – ALASKA Congress should overturn the U.S. Supreme Court’s decision in Alaska v. Native Village of Venetie Tribal Government, by amending ANCSA to provide that former reservation lands acquired in fee by Alaska Native villages and other lands transferred in fee to Native villages pursuant to ANCSA are Indian country. Congress should amend the ANSCA to allow a transfer of lands from Regional and Village Corporations to Tribal governments; to allow transferred lands to be put into trust and included within the definition of Indian country in the Federal criminal code; to allow Alaska Native Tribes to put tribally owned fee simple land similarly into trust; and to channel more resources directly to Alaska Native Tribal governments for the provision of governmental services in those communities. Congress should pass legislation that will restore and protect Native hunting and fishing rights in Alaska, and provide a co-equal role for Alaska Natives in the management of fish, wildlife and other renewable resources. 13
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