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INTHE UNITED STATES DISTRICT CO A 
ELOUISE PEPTON COBELL, al., 
Plaintiffs, 
) 
V. 1 Case No. 1:96CV01285 
1 (Judge Lamberth) 
GALE A. NORTON, Secretary of the Interior, 1 
-et Aa1 7 )
1 
Defendants. ) 
DEPARTMENT OF THE INTERIOR'S RESPONSE 
TO THE SECOND INVESTIGATIVE REPORT OF THE 
SPECIAL MASTER REGARDING THE OFFICE OF TRUST RECORDS 
The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior 
Defendants") submit the following response to the Second Investigative Report of the Special 
Master ("Report"), filed April 11,2002, which addresses the trust records training program 
within the Office of Tnist Records, Office of the Special Trustee for American Indians 
("OST/OTR"). 
Interior Defendants object to the Report to the extent it concludes: (1) that OST/OTR has 
failed "to initiate a trust records training program that complies with the teachings of the [Indian] 
Trust [Fund Management] Reform Act [of 19941.'' Report at 13; (2) that "none of the OST/OTR 
programs offer any practical guidance that could remotely be construed as 'training' appropriate 
to the definition, identification, categorization, disposition, preservation and maintenance of trust 
records." Id.at 24; and (3) that OTRs training curricuIa do not address the most rudimentary 
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aspects of trust recordkeeping, fail to distinguish between trust and non-trust records, and 
obscure the legal and ethical obligations underlying the maintenance of trust records. Id.at 27. 
Trust records are a subset of Federal records and, as such, must be managed in 
accordance with Federal law. Federal law provides that "[tlhe head of each Federal agency shall 
establish and maintain an active, continuing program for the economical and efficient 
management of the records of the agency," and states that "[tlhe program, among other things, 
shall provide for. . . compliance with" Chapter 21 (law concerning the National Archives and 
Records Administration) and Chapter 29 (law concerning records management by the archivist of 
the United States and by the Administrator of General Services). See 44 U.S.C. Q 3102; see also 
Report at 12 ("[All1 federal records, including trust documents, are subject to the guidelines 
prescribed by the Federal Records Act . . . .");H.R. Rep. No. 105-163,' at 64 (1997) (stating that 
"[tJhe Committee [on Appropriations] recognizes that there are all types of records (trust and 
non-trust) dispersed throughout BL4 in inadequate environments" and that "[tlhe Committee 
expects that the examination and disposal of these records will proceed in a manner that will be 
cost effective for all records, not just trust records"). 
Over the past two years, OST/OTR has initiated a records-management training program 
that, as the Special Master suggests, has focused largely on those generally-applicable principles 
of Federal records management to which all Federal records are subject. OST/OTRs first cycle 
of training, designated as records awareness training and directed at all employees, reached over 
2,200 departmental employees. Interior Defendants' Status Report to the Court Number Eight, 
'Accompanying H.R. 2107, Department of the Interior and Related Agencies 
Appropriations Bill, 1998. 
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t o 
dated Jan. 16,2002, at 143. The second cycle, aimed at employees with records maintenance and 
disposition as part of their duties, has reached approximately 560 managers, supervisors, and 
records personnel. Id. 
Because trust records are subject to the law governing the management of all Federal 
records, Federal records-managementtraining is a necessary component of the training required 
for trust records-keeping. Interior has therefore made a significant first step in developing a trust 
records-keepingtraining program. In other words, by providing federal records-management 
training, the OST/OTR training programs do offer some practical guidance regarding the 
disposition, preservation and maintenance of trust records. Likewise, they do address basic 
aspects of trust records-keeping and the obligations underlying the maintenance of trust records. 
Interior acknowledges,however, that much work remains to be done. Declaration of 
Ross Swimmer, Director of the Office of Indian Trust Transition 1'112,5 (Ex. 1) (recommending 
that "[a]s part of the reorganization of trust activities being considered in the Department . . . that 
all trust operations training be centrally coordinated and managed" and stating that "DO1 
University has been requested to provide a description of how it could coordinate and deliver a 
comprehensivetrust operations training program'').2 
'We also attach for the Court's information the views expressed by the Office of the 
Special Trustee in two unsworn memoranda. See Memorandum of April 22,2002, from Tom 
Slonaker, Special Trustee for American Indians, to J. Steven Griles, Deputy Secretary (Ex. 2); 
Memorandum of April 25,2002, from Tom Thompson, Principal Deputy Special Trustee for 
American Indians, to Tom Slonaker, Special Trustee for American Indians (Ex. 3). 
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Dated: April 25,2002 
OF COUNSEL: 
Sabrina A. McCarthy 
Department of the Interior 
Office of the Solicitor 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
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APR-25-2002 19:17 w I --o/s 
.. ' 
DECLMTION OF ROSS SWIMMER 
I. I mthe Director ofthe O5ce ofIndian Trust Transition. In that capacity, I amfm&u With 
the trust operations ofthe Department and the efforts underway t o reform and improve the 
delivery of trust services. 
2. Atter reviewingthe i n f 5 m ~ o ngathered for the preparation of the 9th Quarterly Report, I 
have cancluded that there is a need for better coordination of the training provided by the 
Department With respect to trust operations. As part of the reorganidon of trustactivities being 
considered in the Department, I am recommending that all t r u s t operations training be centrally 
coordinated and managed. 
3. Many managers reported that they were providing trust operations txbing, developing 
handbooks, and working with outside contractors, but there was little coordination of the training. 
Thus, the trainees are having to travel to various sites and on inconvenient schedules to obtain all 
ofthe training needed with respect to their t r u s t responsibilities. 
4. I have recently explored with the DO1University the possibility of it a s d g the coordinating 
role for all trust opmtions Uaining. It appears that DO1 University can provide or arrange for 
trai~gofall types necessq to support trust operations, inchding records managemexxt,land 
management, computer systems operations, and delivery of beneficiary services. DO1 University 
can deliver that txxJinhgin its multiple locations as well as other sites within Indian Country. For 
example, the training could be provided at mbally-controlled community colleges. 
5. DO1 UniverSi~yhas been requesred to provide a descriptionof how it coufd coordinate and 
deliver a comprehensive trust operations training program. 
I swear under p d q of pejury that the 
Date: April 25,2002 L 
Exhibit 1 
Interior's Response to SMs Second 
InvestigativeReport of OTR 
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OFFICK OF THE SPECIAL TRUSTEE FOR AMERICAN INDIAHS 
Washington. D.C.20240 
Memorandum 
To: J. Steven Griles 
Deputy Secretary 
- From: Tom SIonaker-T& 
Subject: 
Special Trustee for merican In ian 
Second InvestigativeReport of the Special Master Regarding the 
Office of Trust Records 
This responds to your request that Iprepare and submit to you my suggested response 
to the Special Master's Second Report. Iwould appreciate a complete copy of his 
Report, including attachments, In the inform'ation available, the Special Master makes 
many valid points and offers helpful suggestions to improve records training. In my 
view, training can always be improved, and, in practice, should be improved on a 
continuing basis in response to constructive criticism and feedback. 
In fact, over the course of the past two years, including the duration of the Special 
Master's oversight, the Office of the Special Trustee's (OST) Office of Trust Records 
(OTR) has received many helpful suggestions from BIA participants, observers and 
managers for improvement to the records training program. OTR has worked with the 
National Archives and Records Administration (NARA) to evolve and improve the 
training curriculum and training delivery based on these suggestions. Now, with receipt 
of these recommendations on training from the Special Master, OST will take 
appropriate action to incorporate his suggestions for improvement as well. 
Given the short response time and the absence of guidance or assistance from the 
Solicitor's Ofice, 1 have not prepared a point-by-point response to the Special Master's 
Report. 
Simply put, many of the facts and statements presented in the Special Master's report 
are irrefutable. He is correct in pointing out that training materials do not use the word 
"trust" in conjunction with the term "records management" in many instances. Nor does 
the material attempt to exhaustively list all types of trust records, even if possible. But 
we can improve on these two issues in training delivery and provide additional 
examples and illustrations. Likewise, his re-counting of the content of training materials 
-andtraining modules appears accurate, as does his inventorying of the sites where 
records management training was conducted. There are other examples where the 
Special Master makes valid points as well. However, the inferences and conclusions 
drawn from these facts is where we may vary to some extent. 
Exhibit 2 
Interior's Response to SM'S Second 
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The Special Master examines training materials and declares the training effort an utter 
failure. We review that effort-what was intended and what has been 
accomplished-and see clear progress. 
One could infer from the Special Master's Report that records management training is 
all but completed. We regularly state that records managementtraining has merely 
begun and will be ongoing. 
We agree with the Special Master that "trust" records are federal records-a subset of 
Federal records-that have special significance and rules regarding generation and 
protection. We believe that in the end the Federal records management program 
covers "trust" records; that proper training regarding Federal records management 
addresses and provides for "trust" records. "Trust" records are distinguished, or 
different, from other federal records only to the degree program officials use 
appropriate records management policies and procedures to generate, manage, and 
preserve that subset known as "trust" records. Program management-not records 
management-offkials are responsible for and must manage "trust records. Program 
management-not records management-offkials must establish "trust" records 
management policies and procedures. Records management officials assist, oversee, 
and train the program management officials in administering the program management 
official's records duties, but they do not do it for the program official. I sense the 
Special Master sees it otherwise. 
Clearly, we have not communicated successfully the responsibilities, purpose, and 
approach of the records management program nor the point of records management 
training. The point is that context is relevant in drawing conclusions about the status of 
records training efforts to date. 
For instance, OTR is implementing the records management program within 
parameters set by Congress and the Department's senior leadership several years ago. 
Interior was directed and funded by Congress to plan and execute a records 
management program encompassing not only trust, but also BIA's non-trust records. 
The present OTR is charged with that job and the OTR programs follow that direction. 
The specific activities to fulfill that mandate were detailed in several approved and 
existing planning documents. The effort was, and is, entitled Indian Afhirs Record 
Management, reflecting the direction to OTR to cover both trust and non-trust records 
within BIA in a unified approach to records management. 
As you know, the records management training under discussion represents the 
initiation-the beginning-of a continuing program of records management instruction to 
81A and OST employees. This effort began after years and years of neglect of 
Interior's trust records, and the failure to provide any meaningful records training for any 
staff, including trust staff. Various oversight groups, including NARA, documented This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
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these deficiencies in decade-to-decade reviews of BIA's records programs. Some of 
these deficiencies applied to OST as well. 
This first cycle of training (designated, in fact, as "records awareness" training) engaged 
more than 2,200 employees across the Department over the past two years, and has 
been completed in the face of many other competing demands on (and in the-face of 
some outright opposition to) the OTR staff and program. Concurrently, records 
management program training was provided to more than 560 managers, supervisors, 
and records personnel with specific duties for records management. 
OTR's partner in planning, organizing and delivering this training is the Federal 
Government's principal records organization, NARA. NARA is, of course, responsible 
for records management government-wide, and has a major interest and voice in 
deciding the success or the failure of the Department's records management program 
activities, including trust records. 
I am pleased that the Special Master does not take issue with the thrust of training on 
trust duties and trust records as presented by Upper Mohawk. As the Special Master 
himself points out, the July 2000 joint records and trust fundamentals training presented 
by Messrs. Rossman and Fitzgerald to OTR staff is embodied in the current records 
management training being delivered by OTR staff and the Upper Mohawk trust 
fundamentals training. OST believes the two courses have a cumulative and 
complementary impact on records management and trust management in general. 
Together, individuals attending the two training courses will begin to be exposed to the 
body of knowledge the Special Master, and OST, believe is necessary to property 
manage trust records. The courses, by design, reinforce and complement each other. 
OST believes the courses should be mandatory for all personnel generating or 
managing trust records, and the BIA leadership is now supportive of that position. 
The Special Master's adverse characterizations of the efficacy of records training reflect 
his personal analysis. Regrettably, his position is no doubt predicated on his many 
frustrations and suspicions developed in previous dealings with the Department on 
other issues such as the OlRM move, IT security, trust document destruction, e-mail 
destruction, document production, etc. 
Given more time, Icould attempt to clariv the context and certain other issues around 
which his conclusions are arrayed. However, since I agree with the Special Master that 
more can be done to improve records management, the time would be better spent in 
an independent evaluation of the thrust of the Department's trust records management 
program, as both you and I have suggested recently. I believe input from the Special 
Master could be useful. Something positive, perhaps affirmation or perhaps redirection, 
for the records program could come out of an independent review. This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
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Therefore, we should move quickly to obtain a completely independent review of the 
state of the Department'strust records management program. I recommend we 
proceed quickly to jointly plan and initiate an independent peer review conducted by a 
team of acknowledged experts in the field of Federal records management and trust 
fiduciary requirementsso that all of us will view the results as objective and fair. 
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Rp.r 25 02 0 1 ~ 3 4 ~ OST-fFtOPl?iS THOMPSON . 14803 998-3476 P - 1 
/,. 
United States Department of the Interior 
OFFICE OF THE SPECIAL TRUS?EEFOR AMERICAN INDIANS 
Washington, D.C. 20240 
Memorandum 
To: Tom Sfonaker * 
From: 
Subject: Supplementai Response Informationfor the Special Master's 2"d 
Investigative Report 
In the meeting and teleconference held yesterday, April 24, 2002, with representativesof 
Interior and the Department of Justice you asked me to coordinate with and assist t h e 
' Solicitor's Office to supplement infomation in your memorandum of April 22.2002. 
Following is the information I furnished this afternoon, in the form of a copy of this 
- memorandum, in response to specfie questions posed from €heSolicitor's Offite. 
Question: The Special Master asserts that "OST/OTR has utterly hailed to initiate a trust 
records training program that complies with.the teachings of the Trust Reform A d " 
Report, p. 13. 
Supplemental Information: Acknowledging that training can always be improved, 
Interiormay wish to point out that the Special Master's broad conclusion, based on facts 
presented in the Special Master's Report, can be viewed differently. Records 
Managementtraining was initiated by OTR and NARA, as dascribed by the Special 
Master. Trust records are in fact Federal remrds. Federal records training being 
delivered by OTR and NARA provides the framework for identifying and preserving all 
imponant records, includingtrust records. The records management training under 
discussion represents the initiation--the beginning-of a continuing program of records 
management instructionto BIA and OST employees engaged in Indian trust operations. 
Further, OST, thraugh its training contractor Upper Mohawk, has presented trust 
fundamentals training, including information on trust records, to more than 1,600 trust 
personnel in a little over a year. Interior believes these courses reinforce and 
complement each other. 
Question: The Special Master asserts that 'none of the OST/OTR programs offer any 
practical guidance that could remotely be construed as training appropriate to t h e 
definition, identification, categorization. disposition, preservation and maintenance of 
trust records." Report, p. 24. 
Supplemental Information: Contemporaneousfeedback in the form of training 
evaluations from participants seems to indicate otherwise for many of those attending. 
Federal records training being delivered by OTR and NARA provides an adequate 
framework for identifying and preserving all important records, including trust records. 
The records managementtraining under discussion represents the beginning of a 
continuing program of records management instruction. 
Exhibit 3 
Interior's Response to SM's Second 
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Question: The Speual Master asserts that ‘OST/OTR’s records training program has 
brought about little change since the system was described as broken.” Report, p. 24. 
Supplemental Information: Interior may wish to point out that this is a subjective area. 
i.e. “change”,and difficult to measure. Interior has not specifically attempted to do so. 
Interior might question whether the Special Mastets Report presents concrete facts or 
evidence to warmnt this assertion. 
Question: “OTR has produced training cunicula that do not address the most 
rudimentary aspeck of trust recordkeeping.‘ Report, p. 27. 
Supplemental Information: Interior may wish to point out that trajning on the Federal 
Records Act, as presented by OTR and NARA to more than 2,700 personnel, was 
focused on the “rudiments”, and more, of the management of federal records, including 
trust records. Other training offered outside of the OTR venue also reinforces proper 
trust records management. For instance, Interior, through the OST Training subproject 
and its Upper Mohawk training contractor, has also presented trust fundamentals 
training, including information on trust records, to more than 1,600 trust personnel over 
the past year plus. Interior has worked with Upper Mohawk to evolve and strengthen the 
training curricula here as well, and Interior believes these courses reinforce and 
complement each other. 
C C 
Counselor to the Solicitor 
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CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on April 25,2002, I served the foregoing Department of 
the Interior's Response to the Second Investigative Report of the Special Master Regarding the Office 
of Trust Records, in accordance with their written request of October 31,2001, upon: 
Keith Harper, Esq. 
Lorna Babby, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
202-822-0068 
by U.S. Mail upon: 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
by facsimile and U.S. Mail upon: 
Alan L. Balaran, Esq. 
Special Master 
1717 Pennsylvania Ave., N.W. 
12th Floor 
Washington, D.C. 20006 
and by hand delivery upon: 
Joseph S. Kieffer 
Court Monitor 
420 7th Street, NW 
Apt 705 
Washington, DC 20004 
Dennis M Gingold, Esq. 
Mark Brown, Esq. 
1275 Pennsylvania Avenue, N.W 
Ninth Floor 
Washmgton, D.C. 20004 
202-3 18-2372 
Melanie VanBlarcom