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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELCUISE PEPTON COBELL, et aL,	)
		)
	Plaintiffs,	)
		)
	V.	)	Case No. l:96CV01285
	)	(Judge Larnberth)
GALE A. NORTON, Secretary of the Interior,	)
eta]	)
		)
	Defendants.	)
__________________________________________________________________________________________)
DEPARTMENT OF THE INTERIOR'S RESPONSE
TO TIlE SIXTH REPORT OF THE COURT MONITOR
The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior
Defendants' or "Interior") submit the following response to the Sixth Report of the Court
Monitor ("Court Monitor's 6th Report"), filed February 1. 2002, which addresses Interior's Status
Report to the Court Number Eight ("Interior's 8th Report" or "8th Report").
A.	THE COURT MONITOR'S 6TH REPORT'S INTRODUCTION AND
DESCRIPTION OF INTERIOR'S 8TH REPORT
1.	In General
	The Court Monitor credits Interior for filing a forthright report while finding that the
inclusion of additional areas means that prior reports violated the reporting requirement.
While this paragraph's candor is refreshing, in addition to the beneficiaries
benefitting from the inclusion of some elements of trust asset management
not included in past quarterly reports, it was the obligation of the Defendants
to report to the Court and the plaintiffs on these trust reform initiatives in
light of the 1994 Reform Act directives and this Court's December 21, 1999
Order. Court Monitor's 6th Report at 4-5, n. 4.
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	As noted in the 8th Report, page 3, trust reforiri is an evolving process. New
understandings will continue to improve prior plans and assist with better execution. The
activities of the Court Monitor, the Special Master, Interior's consultant, Electronic Data
Systems, Inc. ("EDS"), and management and staff of the Department of the Interior ("DOI" or
"the Department") have provided new information and perspcctives The expertise and insights
of Interior's new management team and leadership have opened the door to new initiatives and
improved reporting as well. Interior disagrees that omitting certain initiatives from prior reports
violates the reporting requirements of the Court's December 21, 1999 Order or the 1994 Reform
Act, which imposes no reporting requirements on Interior.
	Also, certain information might not have been reported previously because of a prolonged
reliance on the Febmary 29, 2000 1-ugh Level Implementation Plan ("HLIIP") as a reporting
structure. Interior has recognized that the HLIP structure and milestones are no longer
sufficiently informative to tl]e Court. the beneficiaries, or Interior.
	Even with the new areas included, Interior's 8th Report may not address the sum total of
Interior's trust obligations. Much work remains. But as Interior has indicated, an effort is
underway with EDS and tribal leaders to analyze organization options and business plans. Tr.'
3957-58 (Feb. 6, 2002) (testimony of Dep. Sec. Griles).
2. Secretary Norton's Observations
	According to the Court Monitor, Interior's 8th Report "substantially" confirms that its
prior reports to the Court were neither accurate nor complete. See Court Monitor's 6th Report at
	"Tr." herein refers to the Court Reporter's transcript of the proceedings in the ongoing
contempt trial.
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6.	First, the Court Monitor providcs no analysis to support this statement. Second, that
preparing prior reports may have become a rigid exercise of working through the HLI7P, or that
progress made did not in all instances equate with trust refomi, does not necessarily indicate a
lack of truthfulness but, rather, poor planning at the outset and/or an inability to look outside the
HLIP box. The HLIP tasks were in many cases isolated, lacking focus on how they would all fit
together. Interior concluded that milestones were becoming "increasingly disconnected from the
overall objectives of trust reform." 8th Report at 4.
	Interior's 8th Report was different from past reports. It reports the various views of key
departmental officials, the subproject managers, and EDS. Trust reform has been subject to
sharp differences of opinion within the Department, especially given the current situation where
management responsibilities and structures are diffuse. While the prior reports were not
untruthful, as repeated testimony in the ongoing contempt trial indicates,2 Interior's 8th Report is
more transparent in its full (lescriptioll of riiultiple viewpoints on many trust reform issues. In
order to be comprehensive, future reports will need to express and evaluate different views
within DOL Reorganization is expected to facilitate better reporting, and Interior's 8th Report is
expected to "serve as a basis to improve future reports even more." 8th Report at 6.
3.	TAAMS
	The Court Monitor remains concerned that Interior designated TAAMS the system of
record for four regions in the Fiflh Quarterly Report to the Court.
While it is not the purpose of this Report to address the truthfulness of the
managers responsible for making this claim in the Fifth Quarterly Report, it
2 See. e.g., Tr. 2059 (Jan. 8,2002) (testimony of Mr. Thompson); Tr. 3348-49 (Feb. 1,
2002) (testimony of Mr. Nessi); Tr. 225 1-52 (Feb. 11,2002) (testimony of Mr. White).
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was clearly false and known to be so under any definition applied to "systems
of record" known to the Court Monitor. It was not corrected in any
subsequent quarterly report nor in either the initial or subsequent TAAMS'
subproject submissions in the Seventh Quarterly Report that were provided
this Court following receipt by this Court of the Second Report of the Court
Monitor on August 9, 2001. Court Monitors 6th Report at 11.
	As an initial matter, the question of whether the Department's denomination of TAAMS
as the "system of record" was in some fashion fraudulent is one to be resolved at the ongoing
contempt trial. Other than commentary upon the 8th Report, there is no additional evidence
presented in the Court Monitor's 6ih Report on this issue.
	It does bear noting, however, that the Court Monitor's recent commentary appears to
attribute to the term "system of record" a broad meaning different from that offered by Interior in
its Quarterly Status Report to the Court Number Five (5th Quarterly Report"). The Special
Trustee Observations section of the 5th Quarterly Report defines the tem~ as "meaning that it was
officially designated the system for the recordation and maintenance of Indian title documents
reflecting current ownership" in those regions. ~ 5th Quarterly Report at 5. The Special
Trustee Observations also note that TAAMS is the system of record only "for current title
processing in four BIA Regions," and that "title history data is not yet complete." Id.3 Similarly,
	It also bears noting that the Special Trustee himself conveyed this same definition
in testimony to Congress. He stated:
Effective December 29, 2000, the land title portion of the Trust Asset and
Accounting Management System (TAAMS) was made the system of record. With
this designation, TAAMS is officially designated the system for the recordation
and maintenance of Indian title documents reflecting current ownership for current
title processing in four BIA Regions: Alaska, Eastern Oklahoma, Rocky
Mountain, and Southern Plains. The conversion of title history data is not yet
complete.
(continued...)
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the TAAMS section of the report notes that TAAMS is the system of record only "for current
title" in the four Group A regions. See 5th Quarterly Report at 27. It explains that "title history
data is not complete," and that "[a]s necessary, field staff will continue to supplement historical
title information in TAAMS with data and information from legacy systems and hard copy data"
Id. Interior thereby identified the distinction between having a TAAMS "current" system and a
TAAMS "history" system, the latter of which was dependent on entering data or transferring it
from legacy systems.
	Nor does the 8th Report "confirm[] ... that the TAAMS current title module had not been
properly designated as a system of record." See Court Monitor's 6th Report at 10. The 8th
Report notes, for instance, that "Rocky Mountain and Southern Plains regions use the ATS
product [TAAMS] for virtually all current title activities." See 8th Report at 123-24. Tn Alaska,
the process of encoding title information directly into TAAMS is ongoing, a fact that has been
disclosed in quarterly reports. Id.; see. e o Revised and Updated Iligh Level Implementation
Plan (Feb. 29, 2000) ("A very different condition exists in the Alaska Region, where no legacy
systems exist. In this region, Data cleanup has entailed the copying of all pertinent trust records,
shipping of the copies to a central facility in Albuquerque, NM, and direct entry into a new
TAAMS database."). As a result, Department personnel receiving a request for Title Status
Report for a property not yet in TAAMS make the processing of that property a priority, then
continued)
Opening Statement of Thomas N. Slonaker, Special Trustee for American Indians, before the
Subcommittee on Interior and Related Agencies, Committee on Appropriations, U.S. House of
Representatives, March 21, 2001 (emphasis in original). Virtually the same statement was
provided to the Subcommittee on Interior and Related Agencies, Committee on Appropriations,
U.S. Senate, on March 28, 2001.
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issue a TSR from TAAMS. 8th Report at 123-24. And although the Court Monitor correctly
notes that there are limitations upon TAAMS' inclusion of formal Title records in the Eastern
Oklahoma region, those limitations do not, in context with the totality of representations on the
status of TAAMS, establish fraud on the Court.
4.	BIA Data CleanuD
	Interior agrees with the Court Monitor's concerns regarding 131A Data Cleanup in that this
subproject has lacked a cleary concise strategic plan, which would help guide the contractor. See
Court Monitor's 6th Report at 4. Like other HLIP subprojects, Data Cleanup needs integration
with the overall needs of trust reform and of the beneficiaries. Integration has been lacking, and
Interior hopes to improve upon that in the next few months as it works with EDS and the tribal
task force to assess reorganization options.
	The Court Monitor opines that Interior's 8th Report and EDS confirm that BLA Data
Cleanup is in a "dismal" state. See Court Monitors 6th Report at 13. llowcvcr, the Court
Monitor provides no analysis to support this opinion. Indeed, EDS assessed the BIA Data
Cleanup project in more positive terms. For example, EDS said that the "existing BIA Data
Cleanup activities follow a rigorous process that enforces consistent business rules and
incorporates extensive error reporting and resolution procedures." EDS, ~QLTrnstReforn~
Interim Report and Roadmap for TAAMS and BIA Data Cleanup 56 (Nov. 12, 2001). EDS
recommends improvements, but these are suggested for "an otherwise sound Data Cleanup and
Conversion process." Id.
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5.	Appraisals
	Interior is taking the administrative action required to move the appraisal function from
the BIA to the Office of the Special Trustee ("OST"). Moving the appraisal function from BTA to
OST requires the consideration of related requirements. The need to be careful when executing
the transfer of the appraisal function is apparent in this instancc bccause some tribes contract
with the BIA to perform appraisal functions pursuant to the Indian Self-Determination and
Education Assistance Act of 1975. Absent an agreement with the tribe, a contract can only be
negotiated once per year. 25 U.S.C. § 405 et seq. In addition, Congress must approve such
actions by agreeing to reprogram the funds associated with the appraisal activity. Therefore,
Interior is working to address the contracting and compacting issues in conjunction with the
transfer. Interior xviii report on the progress it makes on further implementing the decision to
transfer in the upcoming quarterly report to the Court.
6.	Probate l3acklo~
	The comments of the Court Monitor on the Probate Backlog subproject do not recognize
that probate backlogs have been reduced and that meaningful progress has been made. See
Interior's 8th Report at 110. What Interior has found lacking in the probate effort was described
by the Deputy Special Trustee as a lack of planning and coordination with other key trust
functions, such as encoding the probate order in both the realty and the financial systems so that
payments and distributions are actually made to the heirs. Id. at 110-111. Tn addition,
prioritization and initiation standards for the various probate activities need to be established. Id.
Obviously, probate involves complex issues, such as fractionalization and the redistribution of
Youpee interests, that cause enormous problems affecting staffing and workload; these are oflen
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beyond the day-to-day work capabilities of the probate managers. Integrating trust functions will
achieve an end-to-end approach.
7.	Accounting
	Reorganizing DOI's trust functions should help integrate the Trust Funds Accounting
System ("TFAS") with the activities that supply it with information. Interior is also proceeding
with historical accounting and will respond separately in that regard in its upcoming response to
the Fifth Report of the Court Monitor, dated Febniary 1, 2002, which addresses the Office of
Historical Trust Accounting ("OHTA").
8.	Departmental Rooruanization
	The Court Monitor recognizes the benefits of the reorganization effort and that many
parties are involved in the process.
Clearly, the issue of the planned Indian Trust reorganization and other
issues presently before this Court could well be affected by outside interests
and forces beyond the control of the Secretary. The Court's review of the
proposed reorganization, as envisioned by the Secretary and presently being
addressed by her and her senior staff including the Director, OITT, may
need to take into account these interests and forces when evaluating the
ability of the Secretary to bring about the requisite trust reform envisioned
by this Court in its December 21, 1999 decision. Court Monitor's 6th Report at
	22.
	Indeed, the reorganization effort, like other Federal actions affecting the Indian
community, is subject to consultation in accordance with Executive Order 13175 of November 6,
2000, DOI policy, and other laws. The Court Monitor's 6th Report states that these outside
forces and interests may affect the ability of the Secretary to bring about what is needed for the
organizational structure. Interior expects that the involvement of Indian tribes will improve the
chances for successful reorganization. Consultation is essential and is hoped to be more
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constructive than indicated in the Court Monitor's 6th Report. Though the tribes have spoken for
themselves, tribal leaders may become more receptive to the idea that trust management needs
clear leadership and organization. Tr. 3955-58 (Feb. 6, 2002) (testimony of Dep Sec. Griles)
	Progress has been made with the tribal task force that was established by tribal Icaders.
The task force is now more involved in many aspects of the reorganization effort and is forming
three subcommittees. Id. at 3956. Although consultation may not have started as well as Interior
and tribal leaders would have preferred, much debate has been generated, and the critical
decisions to be made with regard to tnist organization will have considered a much broader
perspective, including that of tribal leaders. Interior is not inflexibly committed to the Bureau of
Indian Trust Assets Management ("BITAM") as a specific structure. Tr. 4137-38 (Feb. 7, 2002)
(testimony of Dep. Sec. Griles). Interior has and will remain open to organization options,
improvements, and alternatives presented by tribal leaders that achieve the needed
improvements. Interior has asked EDS to analyze the strengths and weaknesses of a wide range
of alternative organizational structures, both inside and outside Interior. The goal, to which
Interior is committed, is a stronger management structure with clear lines of authority and
employees dedicated to trust activities. Interior's involvement of the tribes in this process will
increase the likelihood that reorganization will be successThlly effected.
B. COURT MONITOR'S ANALYSIS OF INTERIOR'S 8TH REPORT
1.	The Process
	Interior's request to utilize the EDS reports and the declarations of top DOI officials was
intended to match its reporting with its "shift in direction" and "recently announced plans for
significant changes in management activities and structure." See Motion to Permit Modified
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Form of Trust Rcform Status Report for the Period Ending October 31, 2001 at 2 (Nov. 26,
2001). The goal, whether using the EDS reports or another format, was transparency: to provide
the Court with Interior's most current and complete state of affairs and not another HLTP-based
progress report. When the Court ruled out the EDS/declarations option, Interior went forward
with a different kind of report using the EDS information as a basis for examining the reports
submitted by the project managers and to include additional items not previously reported.
Interior expected the additional items to assist the Court in understanding the current state of
trust reform - Interior's recognition that the HLIP was a constricting institution and that Interior
was taking new steps to help it come into compliance.
	Interior believes that outlining the steps taken toward trust reform, as the Court's Order of
December 21, 1999 requires, is the key element of reporting. A critical change was to ensure
that the Court also received assessments of obstacles - real or perceived - that hinder success,
candid evaluations of progress, and additional information on itemS allectirig trust refonri that are
believed by the managers to be important.
	Out of concern for an objective assessment of trust reform, the Secretary requested that
the Special Trustee secure assistance by contracting for "an independent assessment of the
progress that has been made and of the challenges yet to come." Memorandum from Secretary
Gale A. Norton to Special Trustee for American Indians, et al., July 10, 2001. Accordingly, the
Special Trustee contracted with EDS to assess trust reform independently. The EDS evaluation
targeted the primary HLTP projects and breaches declared by the Court by assessing what the
Department said it was going to do and what it actually achieved. In some instances, reform is
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occurring at a slower pace than earlier believed by the leadership in the Department or than stated
in prior reports given that an overall integration of the work performed was lacking.
	In preparing Interior's 8th Report, managers were intensively questioned and challenged
to support their assertions of progress, obstacles, and needs. As a result, Interior believes the
leadership of the Department has a much better picture of the status of the various trust reform
projects. This result was achieved due to the Secretary's commitment to give a full, accurate,
and complete accounting to the Court of not only steps taken but also the obstacles to and needs
of trust reform. If the Court Monitor believes that DOI leadership was taking a "bunker"
approach to reporting to the Court previously, it is hoped that the candor of interior's 8th Report
will dispel this belief.
	The Special Trustee stated that Interior's 8th Report is inadequate because some
subprojects may not include reporting on steps that should have been planned but were not. This
observation, which is endorsed by the Court Monitors 6th Report, should not reflect on Interior's
8th Report, given its transitional nature. Future reports on the planning process should improve
as that process develops and projects are integrated along a common strategy.
2. The Introduction to Interior's 8th Report
	Interior is committed to improving the format of its reports to the Court. The Court
Monitor commented on the transition from the HLIP format as follows:
It could be better said that the chosen format — to follow the HLIP — gave
those intent on covering their tracks a perfect mechanism for avoiding
reporting failure. If a milestone had not been reached and failed efforts to
reach it did not need to be reported, why report a failure that would only
later delay the milestone? Why report bad news not even required to be
addressed by any milestone? Court Monitor's 6th Report at 27.
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	To the extent that the above comment suggests that Interior intentionally misrepresented
facts or misled the Court, Interior disagrees. Interior is beginning a planning process to integrate
the various functions, which will be reported in the future.
	The Court Monitor's 6th Report continues with the idea that Interior's 8th Report
impeaches prior reports.
But what about the Introduction's statement that the past quarterly reports'
milestones did not "reflect the true status of trust reform." There is not a
statement by the Secretary or the Director, OITT of which milestones were
untrue? Which were listed as completed that were not completed or whose
status was incorrectly reported? It might be helpful if the Ninth Quarterly
Report included a section listing those described in this Introduction as not
reflective of the true status of trust reform. Where was the Court misled?
Court Monitor's 6th Report at 28.
	The reference to "true status of trust reform" simply means that reporting of progress on
various subprojects in the BLIP does not give a complete picture because there is not context in
which to place the progress reports. Some milestones werc simply the initiation of a plan that
would still need additional effort. See. eu., 5th Quarterly Report at 9-10 (OST Data Cleanup
milestone P6). Moreover, a 50% reduction in Probate backlog is a meaningful statistic in
describing reduction of probate backlogs. However, to constitute "true" trust reform, Interior
must go further and ask if the heirs were properly recorded on title documents and entered into
the payment and accounting systems so that the estate is distributed and the new beneficiaries
receive any future trust income. The Probate Backlog subproject manager was not being
deceptive to state the progress being made. The overall status can be further appreciated only if
the progress is put into proper context, such as an operating trust business model.
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	Interior anticipates including in future reports the lack of success, obstacles, and resources
required as is suggested by the Court Monitor in this section. The Court Monitor also raises the
issue of a lack of milestones or metrics of progress as a result of moving away from the HLIIP.
Interior does not believe that the 8th Report is incomplete as a result of changing from the HLIP
and not providing a series of "timelines' as 'benchmarks on which to judge performance." Court
Monitor's 6th Report at 28.~ New indicators will have to be developed and, as reported by the
Deputy Special Trustee and Director, OITT, efforts are underway now to do that. Hoxvever,
Interior believes that "event driven" or "result-driven" milestones will be more effective
benchmarks than "time-line-driven" milestones. Tr. 4384 (Feb. 13, 2002) (testimony of Sec.
Norton).
3.	Secretary's Observations
	Interior does not concur with the Court Monitor's characterization of the Secretary's
comments. TI]e HL1~ focused on reporting progress in accordance with the "steps taken"
language of the Court's December 21, 1999 Order. As stated, the previous reports were not
satisfactory to Interior for various reasons, but there was no intent to mislead the Court.
	The Court Monitor also raises the important issue of accountability.
The only problem is that nowhere can be found any indication that those
who have committed or permitted these actions constituting contempt on the
Court have been or will be held accountable. No indication whatsoever that
they will be forbidden to continue in supervisory or project manager roles in
the proposed BITAM and their conduct reviewed for disciplinary action and
	~	The EDS reports contain "roadmaps" that describe estimated time frames for
recommended activities. See EDS, DOI Trust Reform: Interim Report and Roadmap for
TAAMS and BIA Data Cleanup 21 (Nov. 12, 2001); EDS, DOI Trust Reform: Final Report and
Roadmap 63 (Jan. 24, 2002).
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possible dismissal from their present positions. Court Monitor's 6th Report at
29.
	First, the above-quoted statement is troublesome in that appears, presumably
inadvertently, to pre-judge the conduct of the alleged contemnors, hence the outcome of the
contempt trial (and/or future trials), even though other areas of the Court Monitor's 6th Report do
not do so. Interior has, of course, defended vigorously against the contempt allegations. Second,
as Secretary Norton testified, Interior intends to evaluate personnel conduct on a case-by-case
basis, identify thc causes of any deficiencies noted, and deal with them appropriately. Tr. 4393-
94 (Feb. 13, 2002) (testimony of Sec. Norton).
4.	Special Trustee Observations
	The Court Monitor addresses the concerns of the Special Trustee about failing to report
on steps that should have been planned. In that sense, the Special Trustee is saying Interior's 8th
Report is deficient. The Court Monitor characterizes the situation as follows:
What be [Special Trusteej has summarized is the major uncompleted and, in
some areas, missing efforts that have not been accomplished and must now
be begun again. Court Monitor's 6th Report at 31.
	As stated earlier, we agree with some of the characterizations of the Special Trustee. The
Special Trustee is charged with some extraordinary duties by statute giving him considerable
authority, by statute and Secretarial order, over personnel, budget, and decision-making. The
Special Trustee is an integral part of trust reform and must participate in future plans and offer
oversight by noting areas that need revision as soon as he sees a possible complianceproblem.
Interior values the Special Trustee's knowledge of trust issues and his private sector experience.
Tr. 4379 (Feb. 13, 2002) (testimony of Sec. Norton).
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	However, at times, understanding the Special Trustee's concerns has been difficult, as was
the case with the 7th quarterly report. See id. at 4378-80. As Secretary Norton testified:
And after we had gone through things for a while, I came to realize that his
concerns were not so much the specific content of the 17th quarterly] report,
that something in that report, the wording of that report was inaccurate, as
much as the overall process behind it was one not designed to acquire the
kind of information that ought to be presented. Tr. 4380 (Feb. 13, 2002)
	(testimony of Sec. Norton).
	As Interior's 8th Report makes clear, to the extent the HLIIP embodied that process, it
needed further evaluation,5 and new planning tools need to be put into place. It is Interior's
responsibility to insure that this happens, and the effort certainly has included and will continue
to include the Special Trustee. See id. at 4379, 4384.
5.	Director OITT Observations
The Secretary has proposed a new trust management structure within DOT.
The Director, OITT is engaged in preparing to transition offices and people
to that organization. But where will the supervisors and managers come
from? Is he doomed to rearrange the chairs on the deck of the Titanic as the
Plaintiffs and the Indian Tribes fear? Court Monitor's 6th Report at 32.
	Interior's 8th Report reflects that a new organization with dedicated people is needed to
accomplish the goal of trust reform. The Secretary has advocated this and is now in consultation
with the tribes. In the meantime, the Director, OITT, is involved in re-engineering the reform
	~	It should be noted that the need to revise the HLIP might not have been intuitively
obvious. Only a few months before the period covered by the 7th quarterly report began, the
Special Trustee, who was and is "the longest serving political appointee and senior experienced
trust official in the present administration," Court Monitor's 6th Report at 30, testified that "there
is an HLIP plan in place right now, revised early last year, that I think is a reasonably good
blueprint. It's a good blueprint and it doesn't deserve to be substantially overhauled." Special
Trustee for American Indians Trust Reform: Oversi t Hearin Before the Subcommittee on the
Department of the Interior and Related Agencies of the House Committee on Appropriations,
107th Cong., 1st Sess. 215 (Mar. 21, 2001) (statement of Thomas N. Slonaker, Special Trustee
for American Indians, Office of the Special Trustee).
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process, advertising for managers and preparing for transition to a new organization. It is a
formidable task given the conflicting opinions and interests of the Court, Plaintiffs, Tribes and
components within the Interior. but Interior believes it can be done. Tr. 4395 (Feb. 13, 2002)
(testimony of Sec. Norton).
6.	Issues Raised by Interior's 8th Report
	The Court Monitor uses this section to consider the future of reform and whether the
Court, Interior, or an outside agency should "direct the necessary 'realignment." Court Monitor's
6th Report at 35. in a commercial bank trust failure, it is reasonably easy to see the choices:
close the bank, reorganize, or sell the assets to another institution. Personnel issues are easily
dealt with, the rules are clear regarding capitalization, and the flinctions are limited. This is not
the case with Indian trust. There are no easy answers or fixes. A governmental organization
outside of DOL may have advantages; however, it would take years to staff and implement any
such trust ~)rograrn for individuals or tribes. If the tribes chose not to be part of such an
organization, all they would have to do is convince a few in Congress to stop any action that
would remove their trust from the BIA. Trust reform may be incremental, but progress will be
made. New systems, new people, and renewed dedication to the problems will happen but not
overnight. Planning has to be done so we do not make the mistakes of the past.
7.	BITAM
	The present leadership of DOI is serious about moving forward on reorganization. The
Secretary asked for and received permission to request an increase of $83.6 million in the budget
for trust reform. Tr. 4392:6 (Feb. 13, 2002) (testimony of Sec. Norton).
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	In the Court Monitor's footnote 20 on page 37, he refers to the Special Trustee's
observations as follows:
The Special Trustee' observations on the proposed reorganization are not
addressed within the Eighth Quarterly Report. It might be of interest to this
Court and the Congress to determine what his opinion is about the
reorganization's potential to meet the strict Indian Trust fiduciary
obligations of the Defendants, what role he has established with the Secretary
for the Office of Special Trustee regarding BITAM, and what is the position
of the Defendants on supporting that future role with resources, staff, and
counsel. Court Monitor's 6th Report at 37 n.20.
The Special Trustee recommended the creation of BITAM, as did the Assistant Secretary
-	Indian Affairs, in a memo to the Secretary dated November 14, 2001. See Notice of Proposed
Department of the Interior Reorganization to Improve Indian Trust Assets Management, filed
Nov. 14, 2001. These officials head up the two areas most affected by a new organization. The
recommendation indicates their belief that organizational consolidation in DOT is an appropriate
xvay of moving closer to rnceting the Federal Government's trust obligations.
	Whether BITAM becomes the agency or some other governmental reform mechanism is
developed, we agree that reform within the Govern.ment is preferable to a receiver. Tr. 4395-9 6
(Feb. 13, 2002) (testimony of Sec. Norton). Legal6 and organizational issues with the
appointment of a receiver would detract from trust reform. Even without a total reorganization,
it is possible to put a senior level executive sponsor in control of trust reform. The Director of
QITI' is analyzing the activities necessary to achieve functional reform within the Department,
and the Deputy Special Trustee, who is detailed to him, will be developing the plan to move
forward. The establishment of OHTA is expected to provide efficiencies by an interchange of
	6 5~ Opposition to Plaintiffs' Motion to Amend Their Motion to Reopen Trial One in
This Action to Appoint a Receiver, filed Nov. 15, 2001.
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information between data cleanup activities and historical research, and these kinds of
efficiencies are being pursued.
	Interior engaged the services of EDS to give advice on reform matters and develop a
"roadmap" for the future. EDS will continue to advise the Department with the commencement
of its next project which is to map all existing business processes and the current business model,
compare it to corporate type trust business processes and advise on the differences in people,
processes, structure and leadership. In this sense, professionals have been brought onboard to
xvork with the Department leadership in shaping trust reform for the future.7
C.	COURT MONITOR'S CONCLUSIONS AND DISCUSSION
	Interior's response to conclusion C of the Court Monitor's 6th Report is discussed at pages
3 and 13-14 above.
D.	COURT MONITOR'S REMARKS
	The Court Monitor's 6th Report closes by noting the difficult situation which exists and
the difficult choices that must be made; choices that should bc rcsolvcd, in any event, to the favor
of the beneficiaries.
One of the three branches of the federal government must
manage the creation of a new fiduciary trust organization
whose experienced trust officials must select, organize and
train a nationwide trust staff and move forward as rapidly as
possible at building a new trust management system - not
tinkering with a resurrected crew and vessel - to properly
	~	The Court Monitor's opinions regarding Interior's 7th Report, discussed at page 40 of
the Court Monitor's 6th Report, have been adequately addressed elsewhere, see. e.g., Department
of the Interior's Response to the Fourth Report of the Court Monitor and the Supplemental
Report Amending the Second and Fourth Reports of the Court Monitor, filed Nov. 15, 2001; Tr.
3962-69 (Feb 6, 2002); 4085-4105 (Feb. 7, 2002) (testimony of Dep. Sec. Griles), and need not
be repeated here.
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<< COB0000019 >>
house, maintain, and protect the Indian Trust beneficiaries'
land, resources, and assets. Court Monitor's 6th Report at 46.
Interior agrees that the time has come to get the job done and that the beneficiaries
deserve much more. It xviii require a substantial investment of time to train some 2000 or more
people currently involved in performing Interior's trust responsibility and in some instances
people might have to be replaced with those qualified and willing to perform the trust functions
mandated by treaties, statutes, court decisions and regulations. The Secretary has given the order
to get the job done. She has asked for the money and the organization, but the job is not hers
alone. Congress must be engaged if the money is to be found and the organization funded.
	Trust reform has already taken several years and gone through much money because of
the pressure to "do it immediately." False starts have occurred which have been very expensive.
On the other hand, a well-planned financial system that took over two years to install, TFAS, is
now accounting for the money received from third parties and disbursing the money to account
holders, but even this area needs to consider end-to-end needs as well. Reform can happen with
the right leadership, resources, and dedication.
DEFENDANTS' EVIDENTIARY POSITION
	Defendants do not oppose the admission in evidence of the Court Monitor's 6th Report,
provided that this Response be admitted into evidence therewith and that the two be deemed a
single exhibit. With respect to those portions of the 6th Report consisting of quotations from
documents,8 Defendants do not contest the accuracy of the quotations but submit that the
8These quotations appear on each page of the 6th Report except pages 23-25, 37, 39, and
41-46.	Defendants also do not dispute the accuracy or admissibility of the quotations from
proceedings before this Court on pages 23 to 25.
-19-
<< COB0000020 >>
documents themselves constitute the best evidence of their contents and the context from which
the specific quotations are drawn. The balance of the 6th Report consists of statements of the
Court Monitor. Those statements in the form of rhetorical questions, in Defendants' view, are
not evidence of any fact.9 The remaining statements of the Court Monitor reflect the Monitor's
observations and opinions on ultimate issues, and as such should be given no greater weight than
other evidence adduced by the parties on those issues.
Dated: February 15, 2002	Respectfully submitted,
ROBERT D. McCALLUM, JR.
Assistant Attomey General
STUART E. SCHIFFER
Deputy Assistant Attorney General
J.	CHRISTOPHER KOUN
Director
~§. ~.-
RAP. P00 ER
D.C. Bar No.2~L4~5
Deputy Director
JOWN ~f. STEMPLEWTCZ
Senior Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
OF COUNSEL:
Sabrina A. McCarthy
Department of the Interior
Office of the Solicitor
9These rhetorical questions appear on pages 16, 17, 26-30, 32, 34-37, and 38.
- 20 -
<< COB0000021 >>
CERTIFICATE OF SERVICE
	I declare under penalty of peijury that, on Febniary 15,20021 served the foregoing
Department of the Interior's Response to the Sixth Report oft/ic Court Monitor by facsimile only
in accordance with their written request of October 31, 2001. upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Brown, Esq.
1712 N Street, NW	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
202-822-0068	Washington, D.C. 20004
	202-318-2372
By Facsimile and by US Mail to:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Ave., N.W.
12th Floor
Washington, D.C. 20006
(202) 986-8477
By hand to:
Joseph S. Kieffer, III
Court Ivionitor
420 - 7th Street, NW.
Apartment 705
Washington, D.C. 20004
And by U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street. Suite 2800
Atlanta, GA 30309-4530