SECRETARIAL COMMISSION ON INDIAN

TRUST ADMINISTRATION AND REFORM

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Final Report – December 10, 2013

FINAL REPORT – DECEMBER 2013

Series of overarching recommendations

Legislative

Regulatory

Procedural

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RECOMMENDATION NO. 1

REVIEW AND AMENDMENT OF FEDERAL 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.

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RECOMMENDATION NO. 2:

EVALUATE TRIBAL CONSULTATION POLICY

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.

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RECOMMENDATION NO. 3:

DEVELOP UNIFORM CONSULTATION POLICY

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.

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RECOMMENDATION NO. 4:

TRUST ADMINISTRATION RE-STRUCTURING

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.

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INDIAN TRUST ADMINISTRATION COMMISSION

(ITAC) PROPOSED ORGANIZATIONAL STRUCTURE

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Trust Administration

Commission

Land Ownership

and Protection

Office of Trust

Policy and Process

Sustainability

Planning

Leasing/

Contract

Appraisal

Services

Customer

ServiceFunds

Management

Region X Director for Trust Administration

Regional Fiduciary Trust

Officer

Regional Deputy for

Trust Services

Information

Technology

Records

Management

Office of Trust

Internal Review

CFO CHCO COO

Human

Resources

Land Ownership

Real Estate

Management

Indian Land

Consolidation

Natural Resources

Minerals

Forestry

Accounting & Accounts

Management

Chair Members

National Coordinating Offices

Budget and

Administration

Commissioner Support Offices

Trust Policy and

Coordination

Tribal Consultation,

Culture, and

Outreach

Trust Internal

Controls

Trust Programmatic

Review

Regional Implementation Offices

DEPICTION OF POST-ITAC - DOI

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DOI Secretary

Indian Trust Administration Commission

AS – Policy,

Management,

and Budget

Deputy Secretary

OHA ONRR AS – Indian

Affairs

AS – Land and

Minerals

Management

AS – Water

and Science

AS – Fish,

Wildlife, and

Parks

BIA BLM BOR

AS – Insular

Affairs

Office of Insular

Affairs

OSMRE

BOEM

BSEE

USGS

NPS

USFWS

Legend:

Trust-Related

Non-Trust Related

Office of Trust

Policy and Process

Region X Director for Trust Administration

Regional Fiduciary Trust

Officer

Regional Deputy for

Trust Services

Office of Trust

Internal Review

CFO CHCO COO

Chair Members

National Coordinating Offices

Commissioner

Support Offices

Regional Implementation Offices

Information Flow

Trust Responsibilities Removed

from DOI bureaus/offices and

consolidated in ITAC.

While not within

this scope of study,

Justice Services,

Indian Services,

and BIE could be

incorporated in

ITAC or remain

within BIA.

Land Ownership

and Protection

Sustainability

Planning

Leasing/

Contract

Appraisal

Services

Customer

ServiceFunds

Management

Information

Technology

Records

Management

Human

Resources

Budget and

AdministrationAlthough all direct

trust-related

activities will be

removed from DOI

bureaus/offices,

these entities must

still collaborate with

ITAC on all issues

which impact trust

administration (e.g.,

U.S. Forestry

interacting with

ITAC when

proposed

regulations would

impact Indian

forestry assets).

RECOMMENDATION NO. 5:

IMPROVE THE MANAGEMENT, OVERSIGHT, AND

ACCOUNTABILITY OF TAS SERVICES AND TRUST

ASSETS

Create an Adequate Auditing System that Fulfills

Trust Responsibility to Beneficiaries

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RECOMMENDATION NO. 6:

PROCEDURAL CHANGES

TAS-WIDE RECOMMENDATIONS

FUNDS MANAGEMENT RECOMMENDATIONS

INFORMATION TECHNOLOGY RECOMMENDATIONS

CUSTOMER SERVICE RECOMMENDATIONS

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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

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OTHER RECOMMENDATIONS - APPRAISALS

Expand the use of per-approved third-party vender solutions to effectuate a common, standard services on commercial timelines

A review of USDA appraisal methodology and policies

Improvements to the Process of Procuring and Utilizing Mass Appraisals

Expand Previously Approved Waiver Authority to All Tribes and All BIA Regions.

Increase Authority to Waive Appraisal or Valuation Requirements for Transactions Involving Competitive Bids

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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.

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