[Federal Register: August 29, 2005 (Volume 70, Number 166)]
[Notices]
[Page 51081-51083]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29au05-73]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
Final Decisions Regarding Self-Determination and Self-Governance
Funding Agreement Language on Fiduciary Trust Records Management
AGENCY: Office of the Secretary, Interior.
ACTION: Notice of final decision.
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SUMMARY: This notice announces the final decision regarding Self-
Determination and Self-Governance language to be negotiated into
funding agreements for 2006 regarding fiduciary trust records
management. The Federal Register notice published on February 2, 2005
(70 FR 5457) presented a proposed policy on fiduciary trust records
management for Self-Determination (Title I) and Self-Governance (Title
IV) Tribes/Consortia and language to be negotiated into 2006 Title I
and Title IV funding agreements. The February 2, 2005, notice also
announced three consultation meetings and an invitation to submit
written comments on the proposed policy and funding agreement language.
Final Decision: After reviewing numerous comments and suggestions,
both written and oral, the Department decided not to institute the
proposed policy on fiduciary trust records management for Title I and
Title IV Tribes/Consortia; rather, the Department will negotiate with
each Tribe/Consortium a specific section in the funding agreement that
addresses Tribe's/Consortium's and the Secretary's respective
responsibilities regarding the management of fiduciary trust records.
This specific section will include the definition of ``fiduciary trust
records,'' ``Indian trust assets,'' and ``management.'' The language to
be negotiated into the 2006 Title I and Title IV funding agreements
regarding fiduciary trust records management is the following and will
replace the three options used in the past.
The Tribe/Consortium and Secretary agree to the following:
The Tribe/Consortium agrees to:
(a) Preserve, protect and manage all fiduciary trust records,
created and/or maintained by the Tribes/Consortia during their
management of trust programs in their Title IV agreements. (A fiduciary
trust record is any document that reflects the existence of an Indian
trust asset and was used in the management of an Indian trust asset. An
Indian trust asset refers to lands, natural resources, monies or other
assets held in trust at a particular time by the Federal Government for
a Tribe, Alaska natives
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or that are or were at a particular time restricted against alienation,
for individual Indians. Management includes actions that influence,
affect, govern, or control an Indian trust asset. The following are
examples not considered to be fiduciary trust records: General
administrative, personnel or travel records; education records; law
enforcement records; health records; law making unrelated to Indian
trust assets; tribal council resolutions and laws unrelated to Indian
trust assets; and tribal elections.)
(b) Make available to the Secretary all fiduciary trust records
maintained by the Tribe/Consortium, provided that the Secretary gives
reasonable oral or written advance request to the Tribe/Consortium.
Access shall include visual inspection and, at the expense of the
Secretary, the production of copies (as agreed upon between the
parties), and shall not include the removal of the records without
tribal approval; and
(c) Store and permanently retain all inactive fiduciary trust
records at the Tribe/Consortium or allow such records to be removed and
stored at the American Indian Records Repository (AIRR) in Lenexa,
Kansas, at no cost to the Tribe/Consortium.
The Secretary agrees to:
(a) Allow the Tribe/Consortium to determine what records it creates
to implement the trust programs assumed under its Title IV agreement,
except that the Tribe/Consortium must create and maintain the
information required by statute and regulation. No additional record
keeping requirements are required by this agreement.
(b) Store all inactive fiduciary trust records at the American
Indian Records Repository (AIRR) at no cost to the Tribe/Consortium
when the Tribe/Consortium no longer wishes to keep the records.
Further, the Tribe/Consortium will retain legal custody and determine
access to these records. Such records shall not be treated as Federal
records for purposes of chapter 5 of Title 5 of the United States Code
unless expressly agreed to by the Tribe;
(c) Create and manage a single tribal storage and retrieval system
for all fiduciary trust records stored at AIRR (No records will be
accepted at AIRR until such a retrieval system exists); and
(d) Provide filing equipment and technical assistance for Tribes/
Consortia in preserving, protecting and managing their fiduciary trust
records from available funds appropriated for this purpose.
Summary of Comments: The final decision above is the result of a
nearly 2-year consultation process by the Department with some Title I
and IV Tribes/Consortia. This process included: Conducting pre-scoping
telephone conversations with tribal leaders, staff and consultants;
holding a scoping meeting as part of a 2-day conference on Indian trust
records management at Haskell Indian Nations University; forming a
Tribal Fiduciary Trust Records Management Workgroup; conducting four
workgroup meetings; transmitting a tribal leader letter soliciting
comments on the proposed policy language to be presented for
consultation; and engaging in discussions with Tribal leaders and staff
at the Fall 2004, Self-Governance Conference. This process culminated
with three consultation meetings held in Nashville, Tennessee;
Portland, Oregon; and Phoenix, Arizona that were attended by
approximately 60 tribal leaders, staff and consultants. In addition,
written comments were received from 14 tribes, tribal organizations or
tribal consultants some of whom attended the consultation meetings.
The comments received can be grouped into the following four major
categories:
Category 1: New funding agreement language is not needed because
existing compact and funding agreement language sufficiently provides
for the maintenance of records of trust programs managed by the Tribes/
Consortia, and Tribes/Consortia should not be required to implement a
Federal policy on fiduciary trust records management through their
funding agreements. The Department respectfully disagrees. The
Department believed that the three options available to Tribes/
Consortia in the past are too vague and do not specifically address the
Secretary's primary concerns that fiduciary trust records not be
destroyed and that the Secretary have the right to access those records
if needed in her capacity as trustee delegate. The Department does
agree with the comments that a Federal policy does not need to be
instituted through the Departmental Manual. Instead the Department has
chosen to negotiate language with each Tribe/Consortium into its
funding agreement to address fiduciary trust records management.
Category 2: The definition of ``fiduciary trust records'' is too
broad and vague and the Department should produce a specific list of
what fiduciary trust records should be maintained and preserved by the
Tribe/Consortium. The definition is purposely broad in recognition of
tribal sovereignty. It allows Tribes/Consortia the flexibility to
create those records they believe are necessary to properly manage
their trust assets through their Title I or Title IV funding
agreements. For the Department to create a list of fiduciary trust
records would have been both overly restrictive for some Tribes/
Consortia and overly expansive for others. A Department-generated list
to be used by all Tribes/Consortia would have been restrictive in that
it could deter tribes from creating certain records they feel were
appropriate and at the same time it could be expansive by ``requiring''
Tribes/Consortia to create fiduciary trust records they did not believe
were necessary for effective management of their trust assets. The
Department's concern is that whatever trust records are created be
properly protected and available to the Secretary.
Category 3: The funding agreement language creates an unfunded
mandate because no funding is being provided, and the language requires
Tribes/Consortia to maintain record facilities and administer and
monitor a records policy. The Department believes that the language
proposed for negotiation does not require Tribes/Consortia to create
and keep any additional records beyond those they now keep; namely,
those that are required by statute or regulation or those records the
Tribe/Consortium chooses to create in the management of its own trust
resources. The language does not require a tribe to have any other kind
of record keeping system other than the ones they currently operate.
Before becoming a Title I or Title IV Tribe/Consortium, a Tribe/
Consortium had to demonstrate that it had a functional record keeping
system and this language does not expand that requirement. Further,
while the language does indicate that Tribes/Consortia are to preserve,
protect and manage all fiduciary trust records and that all fiduciary
trust records are to be kept permanently, once the Tribe/Consortium
chooses that it no longer wants to house their inactive fiduciary trust
records at their facility, the Secretary has offered to store those
records, at the Secretary's expense, at the American Indian Records
Repository. Finally, the Secretary is willing to provide to the Tribes/
Consortia equipment, training and technical assistance, subject to
availability of appropriated funds for that purpose.
Category 4: A potential problem exists for Tribes/Consortia in
storing records at AIRR in that outside interests might gain access to
Tribal/Consortium trust records through the Freedom of Information Act
because the Tribal/Consortium trust records are held on the Tribe's/
Consortium's behalf by the Department in a Federal facility. To
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accommodate this concern, language was inserted stating that the Tribe/
Consortium retains legal custody and determines access to those
records. Further, language was inserted stating that such records shall
not be treated as Federal records for purposes of chapter 5 of Title 5
of the United States Code, unless expressly agreed to by the Tribe.
Dated: August 19, 2005.
Abraham E. Haspel,
Assistant Deputy Secretary--Office of the Secretary.
[FR Doc. 05-17137 Filed 8-26-05; 8:45 am]
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