<< COB0000001 >>
iN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL, ~ aL,	)
		)
	Plaintiffs,	)
		)
	v.	)	CaseNo. 1:96CV01285
	)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior,	)
et al	)
	)
Defendants.	)
DEPARTMENT OF THE INTERIOR'S RESPONSE TO THE
EMERGENCY REPORT OF THE SPECIAL MASTER REGARDING
DEFENDANT'S PROPOSED RELOCATION OF RECORDS TO THE
LEE'S SUMMIT FEDERAL RECORDS CENTER
The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior
Defcndants") submit the following response to the Emergency Report of the Special Master
("Report"), filed April 17, 2002, which addresses the proposal by the Office of Trust Records,
Office of the Special Trustee for American Indians ("OTR!OST") to transfer approximately
32,000 boxes of documents containing, inter alia, individual Indian trust information from
warehouses in Albuquerque, New Mexico to the Federal Records Center in Lees Summit,
Missouri.
	Interior Defendants object to the Report insofar as it suggests that the Court must "take
action" to provide "oversight" of the trust records program. Report at 24. While the Special
Master perceived what once might have been termed an "emergency" situation, any "emergency"
ceased when, prior to the Report's issuance, Interior's senior management recognized some of the
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problems subsequently outlined in the Report and took appropriate steps to begin addressing
these—including ordering a halt to records relocation and destruction and committing to ongoing
consultation with the Special Master. Likewise, for these same reasons, no need exists for
further oversight beyond that which Interior Defendants themselves have voluntarily sought
through ongoing consultation with the Special Master.
	Interior Defendants also observe that, while the Special Master's findings are generally
beyond dispute, the scope of many of the problems he identified in the trust records program
remains yet to be determined. Thus, for example, while he has demonstrated serious problems in
inventorying—including inconsistent practices, the use of vague and misspelled words, and the
mistaken identification of trust records as temporary—it is not clear at this point how extensive
these problems are) By halting records relocation and destruction and by undertaking with the
Special Master a review of the trust records program, Interior Defendants seek to identif~i clearly
and with specificity the extent of the problems that must be resolved and to decide on a
comprehensive, ~vorkabIe plan for the program's successful overhaul.
	Interior Defendants do not dispute the Special Master's finding that the proposed
retirement of documents to Lee's Summit must be given further consideration and be better
planned to ensure that individual Indian trust beneficiaries can access TIM data. As a general
	'That the extent of the problems identified by the Special Master has yet to be determined
is suggested by the documentation attached to the Emergency Report itself. The Report observes
that Exhibit 11 consists of Records Transmittal and Receipt forms, or SF-135s, for boxes already
transferred by OTR to Lee's Summit, in which trust records are listed as "Temp[orary]." It then
notes that "similar documents are included for reference" at Exhibit 12. The SF-I35s contained
in Exhibit 12, however, identib' the "Disposal Date" of the listed records as "Perm[anent]" or
"Freeze."
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rule, the Department of Interior, like all federal agencies, is subject to the federal law governing
records management, and by the terms of this law, must "dispos[eJ of temporary records no
longer necessary for the conduct of business" by means of, inter alia, "destruction" and the
"transfer of records to Federal agency storage facilities or records centers" and "the National
Archives." 44 U.S.C. § 2901 (5)(A)-(C); see also Order Regarding Interior Department's IIM
Records Retention at 3 (Aug. 11, 1999) ("It is FURTHER ORDERED, that nothing in the
foregoing is intended to prevent the disposal of non-TIM Records authorized by a final records
schedule approved by the Archivist of the United States or materials which are not 'records' ~
defined in 44 U.S.C. § 3301. In addition, this Order shall not be interpreted to prevent the
movement of TIM Records to different storage facilities, including Federal Records Centers and
the National Archives."). Interior Defendants recognize, however, that their compliance with
federal records-management law cannot come at the expense of, or as a substitute for, fulfilling
their fiduciary obligations to individual Indian money account-holders.
	It is precisely because Interior Defendants recognized some of the problems with the
OTR!OST trust records program identified in the Report that, prior to its issuance, they ordered a
halt to the relocation of records and to the implementation of document destruction schedules.
On April 16, 2002, a day before the issuance of the Report, J. Steven Griles, the Deputy
Secretary of Interior, sent a memorandum to Toni Slonaker, the Special Trustee for American
Indians, and Neal MeCaleb, Assistant Secretary, Indian Affairs, stating that he "ha[dj been
informed that the Special Master has expressed grave concerns about our Indian trust records
management program." Memorandum of April 16, 2002 from J. Steven Griles to Tom Slonaker
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and Neal McCaleb at I ("Griles Memo'1) (Ex. I). In addition, the memo noted that "[s]eparately
the Associate Deputy Secretary has identified issues (e.g., insufficient planning for future records
requirements, chain of custody accountability, inventory sufficiency, etc.) that warrant further
senior management attention." Id.
	To address the serious concerns expressed by both the Special Master and the Associate
Deputy Secretary, the Griles Memo issued the following three directives. First, it ordered a halt
to the relocation of all OST and BIA records: "OST and BIA are directed to maintain records.
both Tribal and individual, in their current geo~raDhic locations... ." Id. (emphasis in
original). Second, as to the approximately 32,000 boxes of records that OTR/OST had proposed
to transfer from Albuquerque to Lee's Summit, the memo stated that "[t]hesc records are to
remain in their current location until we have adequately addressed the concerns raised by the
Associate Deputy Secretary and the Special Master." Id. Third, recognizing the possibility that
boxes already in storage and subject to routine destruction schedules may be insufficiently
inventoried to ensure that they contain no trust records, the memo ordered a freeze on document
destruction: "While we review the records management program more closely, please ensure
that document destruction schedules are suspended." Td. at 2 (emphasis in original).
	The memo provided that, while these three directives are in force, "rt]he Office of the
Secretary, in consultation with the Special Master, will independently re-examine the records
program to clarify our programmatic needs." Id. It then concluded by emphasizing the
importance of ensuring that the "Special Master is properly and timely informed [of records-
related issues] and that he has every opportunity to resolve concerns prior to the Department
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taking irreversible actions." Id. at 3. As evidenced by these three directives, by the memo's
commitment to bring the records program in line with trust "program[J needs," and by the
attached declaration of Deputy Secretary Griles ("Griles Declaration') (Ex. 2), Interior
Defendants seek to work with the Special Master to revamp the records program and thereby
resolve the serious problems in trust records management that he and the Associate Deputy
Secretary have identified. See Griles Declaration at ¶ 8 ("I have assigned the Associate Deputy
Secretary, James Cason, to conduct the independent re-examination of the records program by
the Office of the Secretary."); hi. at ¶ 10 ("The re-examination will include review of the issues
identified in the Report, including the scope and extent of the problems with the trust records
program identified by the Special Master, and the capabilities of the current trust records
management team.")
	Interior Defendants' commitment to restructuring the trust records program—and thus the
lack of any need for more direct Court oversight—is evidenced not only by the Griles Memo and
the Griles Declaration, but also by an earlier draft of the Griles memo written at some point
before March 29, 20022 (and thus weeks before the issuance of the Emergency Report). This
draft memo did not address the issue of document destruction schedules, but like the version of
	20n March 29, 2002, Interior Defendants made their first production of documents in
response to the Special Master's March 19, 2002 request for bi-weekly production of documents
concerning the proposed records move to Lee's Summit (SMREQOOOO666-SMREQooo 1302).
See Letter of March 29, 2002 from Amalia D. Kessler, Department of Justice, to Alan L. Balaran,
Special Master (transmitting Production SMREQOOOO666-SMREQoool 302) (Ex. 3). An
undated, earlier version of the memo ultimately sent by Deputy Secretary Griles on April 16,
2002 is contained within this production, at SMREQOOO1O34-SMREQoOoJ 036 ("Draft Memo").
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the memo that was ultimately signed on April 16, 2002, it stated clearly that "[u]ntil the Special
Master and I have reviewed... [the trust records program], I request that you and the Office of
the Special Trustee maintain all records, both Tribal and individual, in their current locations."
Draft Memo from I. Steven Griles to Tom Slonaker at 2 (SMREQOOOlO35) ("Draft Memo") (Ex.
4).	Similarly, it noted that "[i]t is also important that the Special Master is properly and timely
informed and that he has every opportunity to resolve concerns prior to the Department taking
irreversible actions." Id. at I (SMREQOOOI 034).
	While the scope of the problems identified in the Special Master's Emergency Report has
yet to be determined, Interior Defendants agree that the OTRIOST trust records program has
deficiencies that must be corrected. However, as expressed before the issuance of the Report and
in the attached Griles Declaration, Interior Defendants are committed to working with the Special
Master to rectify these problems. It was precisely to ensure that they had the time necessary to
undertake this critical redevclopment of the trust records program (and that no trust records
would be jeopardized in the interim) that Deputy Secretary Griles in his memo of April 16, 2002,
ordered a halt to records relocation and destruction—including the proposed relocation of
approximately 32,000 boxes of documents from Albuquerque to Lee's Summit. Thus, while the
problems facing trust records management are serious, no emergency threatens these 32,000
boxes, and no need exists for further Court oversight beyond that which Interior Defendants have
voluntarily sought through their commitment to ongoing consultation with the Special Master.3
	3We also attach for the Court's information the views expressed by the Office of the
Special Trustee in an unswom memorandum. See Memorandum of May 1, 2002, from Tom
(continued...)
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<< COB0000007 >>
Dated: May 1, 2002	Respectfully submitted,
ROBERT D. McCALLUM, JR.
	Assistant Attorney General
	STUART E. SCHIFFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOHN
Director
)
(I...
	SANDRA P. SPOONE
D.C. Bar No. 261495
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
OF COUNSEL:
Sabrina A. McCarthy
Department of the Interior
Office of the Solicitor
3(.. .continued)
Slonaker, Special Trustee for American Indians, to J. Steven Griles, Deputy Secretary (Ex. 5).
The memorandum is not verified pursuant to Local Rule 5.1(h) because Mr. Slonaker has refused
to do so. He has, however, indicated that he is willing to testify in open court about this matter.
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<< COB0000008 >>
CERTIFICATE OF SERVICE
	I declare under penalty of perjury that, on May 1, 2002, 1 served the foregoing
Department of the Interior's Response to the Emergency Report of the Special Master Regarding
Defendant's Proposed Relocation of Records to the Lee's Summit Federal Records Center, in
accordance with their written request of October 31, 2001, by facsimile 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 U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
by facsimile 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