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114 THE UNITED STATES DISTRICT COUIkT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. l:96CV01285
	)	(Judge Lambertli)
GALE A. NORTON, Secretary of the Interior,	)
et al	)
	)
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 Trust Records, Office of the Special Trustee for American Indians
("OST/OTR").
	lntcrior Defendants object to the Report to the extent it concludes: (I) 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 1994]." 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 OTR's training curricula 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 "[tihe 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 "[tihe 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). ~ 44 U.S.C. § 3102; see also
Report at 12 ("[AIll 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
"[t]he Committee [on Appropriations] recognizes that there are all types of records (trust and
non-trust) dispersed throughout BIA in inadequate environments" and that "[tihe 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/OTR's 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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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-management training 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-keeping training 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. See Declaration of
Ross Swimmer, Director of the Office of Indian Trust Transition ¶¶ 2, 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 "DOI
University has been requested to provide a description of how it could coordinate and deliver a
comprehensive trust operations training program").2
2We 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	Respectfully submitted,
ROBERT D. McCALLUM, JR.
	Assistant Attorney General
	STUART E. SCHiFFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOHN
	Director
	D.C. Bar No
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
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CERTIFICATE OF SERVICE
	I declare under penalty of perjury that, on April 25, 2002, 1 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.	Dennis M Gingold, Esq.
Loma Babby, Esq.	Mark Brown, Esq.
Native American Rights Fund	1275 Pennsylvania Avenue, N.W.
1712 N Street, NW	Ninth Floor
Washington, D.C. 20036-2976	Washington, D.C. 20004
202-822-0068	202-318-2372
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
Melanie VanBiarcom