780 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et . al. . . Plaintiffs, . Civil Action 96-1285 . v. . . Washington, D.C. DIRK KEMPTHORNE, Secretary . Monday, June 16, 2008 of the Interior, et al. . 1:37 p.m. . Defendants. . . . . . . . . . . . . . . . TRANSCRIPT OF TRIAL - AFTERNOON SESSION BEFORE THE HONORABLE JAMES ROBERTSON UNITED STATES DISTRICT JUDGE APPEARANCES: For the Plaintiffs: DENNIS GINGOLD, ESQ. Law Offices of Dennis Gingold 607 14th Street, NW Ninth Floor Washington, D.C. 20005 202-824-1448 ELLIOTT H. LEVITAS, ESQ. WILLIAM E. DORRIS, ESQ. Kilpatrick Stockton, LLP 1100 Peachtree Street Suite 2800 Atlanta, Georgia 30309-4530 404-815-6450 KEITH HARPER, ESQ. JUSTIN GUILDER, ESQ. Kilpatrick Stockton, LLP 607 14th Street, NW Suite 900 Washington, D.C. 20005 202-585-0053 APPEARANCES con't. on next page. Jacqueline M. Sullivan, RPR Official Court Reporter 781 APPEARANCES, con't. DAVID C. SMITH, ESQ. DANIEL R. TAYLOR, JR., ESQ. Kilpatrick Stockton, LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101 336-607-7392 For the Defendants: ROBERT E. KIRSCHMAN, JR., ESQ. JOHN WARSHAWSKY, ESQ. J. CHRISTOPHER KOHN, ESQ. U.S. Department of Justice 1100 L Street, NW Washington, D.C. 20005 202-307-0010 JOHN T. STEMPLEWICZ, ESQ. Senior Trial Attorney JOHN J. SIEMIETKOWSKI, ESQ. Trial Attorney U.S. Department of Justice Commercial Litigation Branch Civil Division Ben Franklin Station P.O. Box 975 Washington, D.C. 20044 202-307-1104 202-514-3368 Court Reporter: JACQUELINE M. SULLIVAN, RPR Official Court Reporter U.S. Courthouse, Room 6720 333 Constitution Avenue, NW Washington, D.C. 20001 202-354-3187 Proceedings reported by machine shorthand, transcript produced by computer-aided transcription. Jacqueline M. Sullivan, RPR Official Court Reporter 782 1 P R O C E E D I N G S 2 COURTROOM DEPUTY: Please come to order and remain 3 seated. 4 THE COURT: Mr. Siemietkowski? 5 MR. SIEMIETKOWSKI: Good afternoon, your Honor. 6 THE COURT: Good afternoon. 7 MR. SIEMIETKOWSKI: The defense calls Ed Angel. 8 THE COURT: All right. 9 COURTROOM DEPUTY: Do you solemnly swear that the 10 testimony you should give to the Court in this case now on trial 11 will be the truth, the whole truth, and nothing but the truth so 12 help you God? 13 DR. ANGEL: I do. 14 COURTROOM DEPUTY: Thank you. Please be seated. 15 MR. SIEMIETKOWSKI: A couple of preliminary matters, 16 your Honor. Number one, we'd like to alert the Court that Dr. 17 Angel will be testifying in three different areas. The three 18 areas of his testimony are, number one, the availability of 19 receipts and disbursement records; number two, government 20 practices and system controls reflected in those records; and 21 number three, a critique of Plaintiffs' calculation of alleged 22 benefit to the government. 23 THE COURT: Fine. All right. 24 MR. SIEMIETKOWSKI: Next, your Honor, we'd like to 25 remind the Court that the Court qualified Dr. Angel as an expert Jacqueline M. Sullivan, RPR Official Court Reporter 783 1 in October in the history of federal Indian relations and 2 federal Indian records, and we would like the Court to again 3 consider him as an expert in those same fields for his testimony 4 today. 5 THE COURT: Without objection I will of course do 6 that. 7 EDWARD ANGEL, Ph.D, WITNESS FOR THE DEFENDANTS, SWORN 8 DIRECT EXAMINATION 9 BY MR. SIEMIETKOWSKI: 10 Q. Dr. Angel, would you please state your full name for the 11 record? 12 A. Yes. My name is Edward Angel. 13 Q. And what is your profession? 14 A. I'm a historian. 15 Q. Where do you work? 16 A. I work at Morgan, Angel & Associates. 17 Q. Is that here in Washington? 18 A. It's at 1601 Connecticut Avenue, Northwest in Washington, 19 D.C. 20 Q. Dr. Angel, let's turn first to the topic of availability of 21 receipts and disbursement records. Do you recall testifying 22 about that in October? 23 A. Yes, I do. 24 Q. And what was your conclusion in October concerning the 25 aggregate receipt and disbursement records for funds in the IIM Jacqueline M. Sullivan, RPR Official Court Reporter 784 1 system? 2 A. We noted that while there are some aggregate receipt and 3 disbursement records going back as far as 1909, for the most 4 part aggregate receipt and disbursement records on IIM weren't 5 kept. For the most part these records are more at an individual 6 level then they are kept maintained at an aggregate level. 7 Q. When were they first kept at the aggregate level? 8 A. Consistently beginning in about 1998 with the Treasury 9 Department publication, the consolidated financial statements of 10 the United States. 11 Q. Now, was the IIM system designed to track data more at the 12 aggregate level or more at the individual level? 13 A. As we've done our research over the course of the years in 14 this case, what we found is that for the most part IIM records 15 were not kept at the aggregate level. When we were doing our 16 research if we were looking for issues related to appropriated 17 funds, for example, we might find voluminous records concerning 18 how the money came from Congress to Interior and then worked its 19 way down to the agency level. This truly is history from the 20 bottom up. These records literally begin at ground level and 21 work their way up to the individual, and there aren't a lot of 22 aggregate receipt and disbursement records. 23 Q. And Dr. Angel, what have you learned since October about 24 the availability of aggregate receipt and disbursement 25 information? Jacqueline M. Sullivan, RPR Official Court Reporter 785 1 A. Generally speaking since October my opinion, as I 2 indicated, remains the same. There aren't many receipt and 3 disbursement aggregate records, so saying we did locate some 4 aggregate receipt and disbursement records, which have limits, 5 we have located certain documents that give us year-end account 6 balances and we've located forms, three forms in particular, 7 that show promise for giving us receipt and disbursement 8 records, though we couldn't get far in that research. 9 Q. And where have you located this additional information? 10 A. For the most part the additional information has been 11 located at the National Archives and they've been located in 12 different record groups: Interior, Treasury, congressional 13 record groups. 14 Q. And would you please remind the Court of your testimony in 15 October regarding in which repositories you've located the data 16 on receipts and disbursements and year-end account balances? 17 A. Over the course of the years we've located them in a number 18 of places, but for the most part we've located these at National 19 Archives, both locally and at regional branches, we've located 20 them at Department of Interior library, Treasury department 21 library, different repositories. 22 Q. What have you done with the additional information you've 23 located since October, Dr. Angel? 24 A. With the additional information that we've located we've 25 updated our IIM chart that we introduced back in October and Jacqueline M. Sullivan, RPR Official Court Reporter 786 1 we've given information to both FTI, Ms. Herman, and to NORC, 2 Dr. Scheuren. 3 Q. Now, Dr. Angel, you mentioned your total IIM chart. Do you 4 recall DX 94, your total IIM chart which was admitted into 5 evidence in October? 6 A. I do. 7 Q. And have you updated that since? 8 A. Yes, we have subsequently updated it with the additional 9 information that we've located. 10 Q. Dr. Angel, at this time I'd like to show you on your screen 11 what's been marked as DX 483. Do you recognize that, Dr. Angel? 12 A. Yes. That's our updated version of our total value of IIM 13 system funds chart. 14 Q. And what does this chart represent, Dr. Angel? 15 A. This chart represents known data points between 1908 and 16 1985, and it contains information about receipts, disbursements, 17 IIM system funds in banks, whatever component parts we can get, 18 and year-end account balance information. 19 Q. I'll ask Matthew to slowly cursor through the different 20 pages of the chart and ask you, Dr. Angel, do any particular 21 portions of the chart reflect any historical trends? 22 A. Matthew, would you slide back one, please? 23 Certainly one of the trends that we can see is the end 24 of the Depression on year-end account balances and on the 25 receipt and disbursement element of the IIM chart. We can Jacqueline M. Sullivan, RPR Official Court Reporter 787 1 see -- please, forward one, please. Thank you. We can 2 certainly see increases following World War II and better 3 economic times. And please, one more. We can see increases, 4 particularly during the energy crisis years when Indian oil and 5 gas revenues grew so greatly, and I'm talking about the period 6 particularly, and you can see it on the chart, 1977 forward, so 7 historical trends are reflected in the chart. 8 Q. Now, Dr. Angel, the additional documents you've located to 9 use to update this chart, have you received any of those 10 documents from government attorneys? 11 A. None. 12 Q. All the other documents that went into the original genesis 13 of the chart, did you receive any of those documents from 14 government attorneys? 15 A. None. 16 Q. And Dr. Angel, again to refresh the Court's recollection 17 regarding what you said in October, why does the chart stop in 18 1985? 19 A. We were asked to stop the chart in 1985 because FTI would 20 pick up with the so-called electronic era beginning in 1985. 21 Q. At this point, Dr. Angel, I'd like you to explain to the 22 Court, please, wha is new on the chart since October. 23 A. What's new on the chart since October are two particular 24 elements. One is we located some very limited receipt and 25 disbursement data for the period 1922 to 1949. Jacqueline M. Sullivan, RPR Official Court Reporter 788 1 Q. I'll ask Matthew to cursor back to that page, please. 2 I'm sorry to interrupt you, Dr. Angel. 3 A. We located receipt and disbursement information for the 4 period 1922 to 1949. There was no report for 1945. And we 5 located year-end account balance information for the period 1930 6 to 1944. 7 Q. Now, Dr. Angel, looking at the far right column, DX source 8 document number, what does that represent? 9 A. Those of course represent the exhibits that we've used. 10 Any exhibit in the 300 series to 400 represents a more complete 11 version of exhibits that we introduced back in October. That 12 would be such information as annual reports, the commissioner of 13 Indian Affairs congressional hearings and investment reports. 14 Any DX number beginning 402 or higher is a new document, and 15 those would be such documents as the receipt and disbursement 16 data and the Indian service, special disbursing agent year-end 17 account balance data. 18 Q. Now, at first glance, Dr. Angel, it doesn't seem like there 19 is a great deal of new information on the chart. Can you please 20 explain to the Court what you've been doing since October? 21 A. Well, of course like everyone, we didn't learn of the trial 22 schedule until March 5th. At that point we engaged heavily in 23 trying to locate archival records that might give us aggregate 24 receipt and disbursement records. At that time we located these 25 1922 to 1949 receipt and disbursement records and the ISSDA Jacqueline M. Sullivan, RPR Official Court Reporter 789 1 reports, the Indian service special disbursing agent annual 2 reports. 3 Q. And in your opinion, Dr. Angel, were you not able to locate 4 more between October and the current trial? 5 A. Well, once again, as I said at the beginning, is we've gone 6 through records at Archives, as we've gone through published 7 historical source what we're seeing is that typically if they're 8 going to be aggregate reports, full reports, they come from 9 appropriated funds and work their way down. Really there's very 10 little that starts at the lease level at the ground level and 11 works its way back up. 12 Q. Dr. Angel, can you describe by category the new source 13 documents you have discovered since October? 14 A. Sure. We located Indian service special disbursing agent 15 reports for the period 1930 to 1944 and receipt and disbursement 16 reports for the period 1922 to 1949, as I said, minus 1945. 17 Q. The Indian special, the ISSDA reports for 1930 and 1944, 18 what were they, Dr. Angel? 19 A. These were reports that were sent to the Treasury 20 department at the request of the Treasury department. They show 21 year-end account balances and these year-end account balances 22 are broken down into four distinct segments. 23 Q. And who do the special disbursing agents submit those year- 24 end account balances to? 25 A. They were submitted to the Interior department, which Jacqueline M. Sullivan, RPR Official Court Reporter 790 1 compiled these ISSDA reports for the Treasury department. 2 Q. And you also mentioned a separate category, the receipts 3 and disbursements records, Dr. Angel? 4 A. That's correct. 5 Q. What were those? 6 A. In July of 1906 -- excuse me. On June 30th, 1906, Congress 7 passed a Sundry Civil Appropriations Act. Section five of this 8 act called on all branches of the federal government, all 9 executive departments, to send to the Treasury department any 10 receipt and disbursement information concerning money that did 11 not enter the general Treasury of the United States. 12 Q. How long do these reports last? 13 A. They began -- as near as we can tell they begin in 1922. 14 In 1921 the president issued an executive order that listed many 15 reports that should be submitted annually and these section five 16 of the act of June 30 of 1906 report were among the reports 17 listed and they end in 1950 as a result of the Budget and 18 Accounting Act of 1950. 19 Q. At this time, Dr. Angel, on your screen I'm going to show 20 you DX 27, which was admitted in October, specifically pages 21 seven through nine. Do you recognize this, Dr. Angel? 22 A. Yes. This is one of the receipt and disbursement reports 23 that we were able to locate prior to the October trial. 24 Q. All right. If you could, I'd ask Matthew to go to the 25 first page. And then if you would just talk your way and Jacqueline M. Sullivan, RPR Official Court Reporter 791 1 explain to the Court what's represented on these pages, Dr. 2 Angel. 3 A. Okay. The first page is from the secretary of the Treasury 4 to the speaker of the United States house of representatives. 5 It states, of course, that it's in compliance with the act of 6 June 30th, 1906, and he's transmitting -- and he's transmitting 7 reports relating to monies not paid into the general fund of the 8 United States Treasury. And also disbursements that were 9 made -- that were not disbursed from the general fund of the 10 United States Treasury. 11 Q. And looking on the subsequent pages, Dr. Angel, what do 12 they represent? 13 A. The subsequent page is a letter from the assistant 14 secretary of the Interior to the secretary of the Treasury 15 noting that in compliance with this act, Interior is 16 transmitting statements in accordance with the act of June 30th, 17 1906. 18 Q. And then the third page in that series, Dr. Angel? 19 A. The third page highlighted, you can see individual Indian 20 monies received and disbursed for fiscal year 1933 without being 21 paid into the general Treasury of the United States. 22 Q. Thank you. And I'll ask that that be removed from your 23 screen at this time. 24 And Dr. Angel, knowing the relatively limited amount 25 of new information you've added since October, what then in your Jacqueline M. Sullivan, RPR Official Court Reporter 792 1 opinion is the relevance of your total IIM chart for this 2 particular remedies trial? 3 A. Well, it's multiple. First of all, we were able to gather 4 some receipt and disbursement information, but the receipt and 5 disbursement information we were able to gather clearly is 6 limited. It's limited in the number of years that it's 7 presented and certainly it's limited in the scope of what's 8 presented. This is not all receipts and all disbursements. It 9 gave us an additional number to work with. I certainly hoped, 10 as I added it to the IIM table, that it would be beneficial to 11 statisticians and modlers as long as they understood the 12 limitations of the data. 13 Q. Now, what if you had unlimited additional time and 14 unlimited additional resources, Dr. Angel? 15 A. If we had unlimited additional time and unlimited 16 additional resources, I think there is a chance, a good chance, 17 that we could find additional receipt and disbursement data, but 18 if we had additional time the one thing I would like very, very 19 much to have done was to present the report with a more -- the 20 Court, I should say, with a more full understanding of what 21 exactly these receipt and disbursement reports from '22 to '49 22 encompassed. 23 Q. Now, you just mentioned some of the limitations of the new 24 data. Did you convey any of these limitations to anyone? 25 A. Oh, definitely. I conveyed them to both FTI and to NORC. Jacqueline M. Sullivan, RPR Official Court Reporter 793 1 We had lengthy discussions about this and they certainly were 2 clear in my mind about the limitations of the data that I 3 presented, that this was not neither complete receipts nor did 4 it represent complete disbursements. 5 Q. So just to be clear for the Court, then, Dr. Angel, all the 6 research you've done, which are the only years that you have 7 found complete aggregate receipt and disbursement data? 8 A. We found them in commissioner's report, commissioner of 9 Indian Affairs reports for 1909, 1910, 1911, and we find a diggg 10 for 1955 in the GAO report of that year. 11 Q. Now I'll ask you be shown DX 32 at this point, page seven, 12 on your screen. Do you recognize that cover page, Dr. Angel? 13 A. I do. It's the annual report for the commissioner of 14 Indian Affairs, is contained within the reports of the 15 Department of the Interior for a fiscal year-ended June 30th, 16 1909. 17 Q. And I'll ask Matthew to go to page seven, please, and to 18 enlarge the highlighted section. Would you please explain to 19 the Court, Dr. Angel, what this represents and how you used it 20 for your chart? 21 A. This represents total receipts, total disbursements, and 22 year-end account balances for the year, or the year-end account 23 balance for the year. You'll notice that on receipts we have 24 such information as interest, we have monies received from 25 leasing in bonded banks; things like that. In disbursements we Jacqueline M. Sullivan, RPR Official Court Reporter 794 1 have paid direct to Indians by disbursing officers and returned 2 to unsuccessful bidders, checks drawn by Indians on bank 3 accounts, and then, as I said, we've got a total balance figure. 4 Q. Are the 1910 and 1911 reports similar to this one, Dr. 5 Angel? 6 A. That's correct, that's correct, they are. 7 Q. I'd like to now show you, Dr. Angel, DX 63. What is this, 8 if you recognize it, please? 9 A. This is the report by the General Accounting Office to 10 Congress. It's an audit report regarding the administration of 11 the individual Indian monies by the BIA. The report date is 12 November of '55 but it was submitted to Congress in 1956. 13 Q. I'll ask that you now be shown page six of it. And if 14 Matthew could enlarge the highlighted portion, please. 15 What is this, Dr. Angel? How did you use this for 16 your chart? 17 A. The highlighted portion shows receipts and disbursements 18 for IIM accounts for fiscal year 1955, and we added that to the 19 report, and there are the receipt and disbursement categories, 20 along with taking the year-end balance from this report. 21 Q. Now I ask that that be removed from your screen at this 22 time. And let me ask you, Dr. Angel, of the sources we've 23 discussed, how many came from publicly available repositories or 24 publicly accessible repositories? 25 A. The information that comprises the total, the IIM chart, Jacqueline M. Sullivan, RPR Official Court Reporter 795 1 all but seven documents came from either National Archives, a 2 library, a publicly-accessible report. Seven of the reports are 3 Bureau of Indian Affairs annual investment reports, and we 4 gathered those at the American Indian records repository. 5 Q. Is the ERR publicly accessible? 6 A. Yes. 7 Q. Do you know whether any attorneys ever visited the ERR? 8 A. Yes. We have worked with tribal attorneys. In fact, on 9 one case, in a tribal trust case where we engaged in a 10 collective document-gathering project. Now, so saying, I should 11 add that you need permission to go to ERR. You have to request 12 permission from the Office of Trust Records. But typically it's 13 given and it's given without too much problem. 14 Q. Now, moving away a bit from the documents sourced for your 15 total IIM chart, what other documents have you located that 16 might bear on receipts, disbursements, and year-end account 17 balances for the IIM system? 18 A. In the course of our research we located three forums that 19 looked to us like potentially they could be of great value to 20 determining receipts, disbursements, and year-end account 21 balances. One of the documents is called the Statement of 22 Funded Checking Accounts, and it's standard form 1189. 23 Q. Let me show you DX 488 at this time, Dr. Angel. And ask 24 that that be enlarged a bit so it can be better seen by the 25 Court and by the witness. What is this, Dr. Angel? Jacqueline M. Sullivan, RPR Official Court Reporter 796 1 A. This is an example of one of the statement of funded 2 checking accounts that we located. This particular form is 3 dated in 1960, although we think the forms go back to the early 4 '50s. These forms were filled out by the Indian service special 5 disbursing agent and it contains information regarding beginning 6 balance of IIM, receipts into the system, disbursements from the 7 system, and then the ending balance for the month. At this 8 point in history there are about twelve Indian service special 9 disbursing agents. They were represented by the area offices, 10 so in other words, it's no longer agency-by-agency basis, no 11 longer talking about a hundred reports a month, but 12 approximately twelve. The number of area offices shifts over 13 the years. 14 Q. And so how often did the ISSDA submit these reports? 15 A. These reports were submitted monthly. 16 Q. And who were they submitted to? 17 A. They were submitted to the Treasury department. 18 Q. Dr. Angel, let me next show you DX 489 on your screen and 19 ask once again that it be enlarged, if you recognize this and 20 how so. 21 A. This is the standard form 1219, a so-called statement of 22 accountability. At some point during the 19 -- early 1960s 23 these forms appear to have replaced the statement of funded 24 checking accounts that I just discussed a moment ago. Like the 25 statement of funded checking accounts, these show receipts Jacqueline M. Sullivan, RPR Official Court Reporter 797 1 beginning balance for IIM, receipts and disbursements into and 2 out of the system, and then month-end balance for IIM. 3 Q. And was it the twelve ISSDAs that were submitting these, 4 Dr. Angel? 5 A. For a while it was the twelve ISSDAs who submitted these, 6 and then by 1966 or 1967 it was a single ISSDA located in 7 Albuquerque, and so these reports would go from twelve a month 8 to one a month. 9 Q. And again, how often, once a month? 10 A. Once a month. 11 Q. And submitted to whom? 12 A. Submitted to the Treasury department. 13 Q. Finally in this series, Dr. Angel, let me show you what's 14 been marked Defense Exhibit 490 and ask you to look specifically 15 at page nine, which is the last page in this particular series. 16 Once enlarged could you please identify that for the Court if 17 you recognize it? 18 A. Certainly. This is a standard form 1220, a statement of 19 transactions. And these forms contain supporting detail on 20 individual Indian monies, so it would have been submitted 21 traditionally with the statements of account balance and would 22 contain supporting detail. 23 Q. And who would have submitted them? 24 A. Oh, I'm sorry. The Indian service special disbursing agent 25 would have submitted them. At this point I believe I know -- Jacqueline M. Sullivan, RPR Official Court Reporter 798 1 this is going back to the very first page -- that it was John 2 Veil who was the ISSDA during this period. 3 Q. And how often were they submitted? 4 A. Once a month. 5 Q. And again, to whom? 6 A. To the Treasury Department. 7 Q. Thank you. I'll ask that that be removed from your screen 8 now. 9 Though we've mentioned it briefly, Dr. Angel, let's 10 talk a little bit more about what assistance you provided to FTI 11 and to NORC. Could you please describe for the Court in general 12 terms what you've done with those two organizations? 13 A. We've worked with those two organizations to supply them 14 with two things. First of all, any documentation that they 15 wanted from our IIM table which might include annual investment 16 reports, General Accounting Office audit reports, the various 17 sources that go into making up the IIM table. We also tried to 18 work with them to make sure that they understood the limitations 19 of the data itself. For example, the limitation of the 20 limitations of those receipt and disbursement reports that we've 21 discussed. 22 Q. And for what years were those again, Dr. Angel? 23 A. 1922 to 1949. 24 Q. Now aside from providing historical documents and 25 historical context to FTI and NORC, did you provide those Jacqueline M. Sullivan, RPR Official Court Reporter 799 1 organizations anything in addition? Did you do any work with 2 FTI at all on any estimates? 3 A. Okay. With FTI we supplied estimates concerning tribal, 4 individual Indian monies, and we assisted them in locating Osage 5 records for their Osage chart. 6 Q. And for what years did you provide estimates of tribal IIM 7 to FTI? 8 A. Period 1934 to 1985. 9 Q. Now, Dr. Angel, are you familiar with FTI's concept of 10 buckets? 11 A. Yes, I am. 12 Q. And what does that refer to? 13 A. FTI's concept of buckets include money that entered the IIM 14 system but were not disbursed to or but did not go to IIM 15 accountholders. 16 Q. Now, let me show you now DX 32, Dr. Angel, something that 17 was admitted in October. Do you recognize the cover of that 18 document? 19 A. Yes. It's the Annual Report For the Commissioner of Indian 20 Affairs for the year ended June 30th, 1909. 21 Q. And I'll ask that you be shown page seven specifically, and 22 if we can highlight or I should say enlarge the highlighted 23 portion, and please explain for the Court if you can, Dr. Angel, 24 what buckets, if any, are evident in this particular 25 highlighting. Jacqueline M. Sullivan, RPR Official Court Reporter 800 1 A. In this particular highlighting we notice on the 2 disbursement side monies paid direct to Indians by disbursing 3 officers and returned to unsuccessful bidders. 4 Q. Now, under Receipts, Dr. Angel, do you see the line that 5 says "On hand July 1st, 1908"? 6 A. I do. 7 Q. Would you please read the second sentence out loud 8 underneath that? 9 A. This concerns money in bonded banks to the credit of 10 individual Indians, and it's $3,108,625.94. 11 Q. Let me next show you, Dr. Angel, DX 33, another exhibit 12 admitted in October. Do you recognize this? 13 A. Yes. This is the Annual Report of the Commissioner of 14 Indian Affairs for the fiscal year ended June 30, 1910. 15 Q. I'll ask that we go to page two on this exhibit, please. 16 Can you see that or do you need that enlarged, Dr. Angel? 17 A. It would be great to have it enlarged, please. 18 Q. All right. Now, are you able to explain for the Court 19 what, if any, buckets are evident on this page of this 20 particular CIA report? 21 A. On the receipt side we see bids on allotments, bid on 22 timber allotments, and those are two things that I think would 23 fit into Ms. Herman's buckets. Subsequently the winning bid -- 24 some of the bids would be returned, some would remain in the 25 system. Jacqueline M. Sullivan, RPR Official Court Reporter 801 1 Q. Now, I'll ask that Matthew now show the right side of that 2 screen at the top portion which was highlighted in yellow. What 3 does this show as opposed to what you just explained for the 4 Court? 5 A. On the disbursement side you'll see return to unsuccessful 6 bidders, two million seven hundred twenty thousand plus. 7 Q. Thank you, Dr. Angel. I now ask that you be shown DX 485. 8 What is this, if you recognize it, Dr. Angel? 9 A. This is an audit report conducted by the Bureau of Indian 10 Affairs division of audits, or I should say the Department of 11 Interior division of investigations. We gathered this report 12 from the National Archives downtown from records of the Bureau 13 of Indian Affairs. The report is dated February 10, 1940, and 14 it's an audit of individual Indian monies at the Winnebago 15 agency. 16 Q. Dr. Angel, as Matthew enlarges this and cursors through the 17 pages slowly, I'd like you to identify, if possible, any of 18 those buckets for the Court. 19 A. Okay. Please go down. At the bottom of page two you'll 20 note the tribal funds with deposit with the superintendent 21 consisted of the following balances, and it gives the three 22 reservations under the Winnebago agency, the tribal funds for 23 each, and you'll notice that the last sentence at the bottom 24 begins all tribal funds are taken up on official receipts and 25 deposited to the credit of the tribes and individual Indian Jacqueline M. Sullivan, RPR Official Court Reporter 802 1 money. 2 Please continue down. 3 Next there is description of money in the revolving 4 credit funds that were on deposit as of December 30th, 1939. 5 You'll see that that totals $12,644.40. 6 Q. What's the sentence immediately following that $12,000 7 figure? 8 A. The revolving fund accounts were also handled through 9 individual Indian monies. 10 Q. What about the bottom paragraph on that screen, Dr. Angel, 11 what does that refer to? 12 A. Once again we see a third category. The rehabilitation 13 trust funds are handled through individual Indian money, and 14 this accounts for the balances in those particular funds for the 15 various agencies -- for the various reservations. Excuse me. 16 Pardon me. 17 Q. While you're getting yourself a drink of water, Dr. Angel, 18 let me ask that you be now shown DX 487. 19 I'm sorry, your Honor. I meant to ask for DX 486. 20 Can you identify this for the Court, please, Dr. 21 Angel? 22 A. Yes. This is another audit of individual Indian monies, 23 again for the Winnebago agency. It's dated August 16th, 1941, 24 and it's submitted to the commissioner of Indian Affairs. 25 Q. And again I ask you, once enlarged, to cursor through this Jacqueline M. Sullivan, RPR Official Court Reporter 803 1 and please identify for the Court any of the buckets that may 2 not be pure IIM. 3 A. This is, as we indicated, an audit of the individual Indian 4 money accounts, the Winnebago agency. You'll notice that at the 5 beginning of the third paragraph it states, The balance of 6 individual Indian money on hand as of May 30th, 1941 was 7 $71,358.37. It's then further broken down to credit funds, 8 travel funds, cemetary funds, and you'll notice that the amount 9 to individual Indians, the amount to individual Indian account- 10 holders is $40,069.43 of the total of $71,358.37. 11 Q. I'll ask that Matthew cursor down through that document, 12 please. Now, at the top of that page is something called 13 cemetary funds. Any idea what that refers to, Dr. Angel? 14 A. Yes. I had read about these in the different documents, 15 but it was a tribal cemetary. This is a fund that's created to 16 care for an agency cemetary. 17 Q. And again, where were those funds maintained? 18 A. This were maintained in the individual Indian monies. 19 Q. What about the last sentence on your screen beginning with 20 "the student activity"? What does that refer to, if you know? 21 A. Could you cursor down, please? 22 This is a student activity fund, which was part of the 23 individual Indian monies. 24 Q. And what does that sentence just after the 660 figure 25 state? Jacqueline M. Sullivan, RPR Official Court Reporter 804 1 A. The revenue is from picture shows, dances, school parties, 2 etcetera. Payments from the fund are initiated by student 3 officers of various groups, approved by group sponsors, and 4 further approved by the school principal. 5 Q. And again, where would these funds have been kept? 6 A. Individual Indian monies. 7 Q. Thank you. 8 A. This is an audit of individual Indian monies at the agency. 9 Q. I now ask that you be shown DX 487. What is this, if you 10 recognize it? 11 A. This is another audit of individual Indian monies. It's 12 conducted by the Department of Interior director of 13 investigations and it's submitted to the commissioner of Indian 14 Affairs, dated May 16, 1940. 15 Q. Again I will ask Matthew to cursor through this document 16 and ask you, Dr. Angel, to please identify the buckets for the 17 Court. 18 A. This is a fairly interesting one. It shows IIM on hand 19 March 31st, 1940, aggregated $188,794.02, and it's spelled out, 20 it's broken out into the various component parts. 21 Please cursor down. Please go down just a bit more, 22 Matthew. There we go. 23 The semi-annual reports -- I'm reading now from the 24 last paragraph, semi-annual reports for the calendar year 1939 25 show receipts aggregating $157,944 and disbursements amounting Jacqueline M. Sullivan, RPR Official Court Reporter 805 1 to $152,872.69. The principal sources of income were indicated 2 as follows: Rehabilitation and revolving funds, and these are 3 typically tribal enterprise funds. 4 Q. Thank you, Dr. Angel. I'll ask that that be removed from 5 your screen now. Now, Dr. Angel, having discussed these 6 examples, as a historian what is your opinion regarding what 7 these buckets show regarding the IIM system? 8 A. In my opinion as a historian, I think it shows that monies 9 went into the IIM system that did not go to the individual 10 Indian accountholder. 11 THE COURT: Actually, would you put that last exhibit 12 on the screen again? 13 MR. SIEMIETKOWSKI: DX 487, Matthew. It was either 14 the last page or next-to-last page. 15 THE COURT: Dr. Angel, CCC wages deposit, is that what 16 I think it means? 17 THE WITNESS: There was a civilian conservation core 18 Indian division that was separate from the regular CCC. 19 THE COURT: And those were wages identified for 20 individual Indians that were paid to the Indians and paid 21 through the IIM accounts? 22 THE WITNESS: Your Honor, I can't say that exactly. 23 Whether they were -- it would appear to be that the CCC wages 24 were deposited into the IIM accounts. 25 THE COURT: Not even a new deal trusted the Indians, Jacqueline M. Sullivan, RPR Official Court Reporter 806 1 huh? They were trustee for their wages. That's quite 2 interesting, actually. I don't know what bearing it has on 3 here. 4 THE WITNESS: Quite often of course the CCC workers 5 were younger folks. 6 THE COURT: Yes. 7 THE WITNESS: So, you know, I cannot speak to this 8 obviously directly, but it could be. It's possible that they 9 were young -- they hadn't reached -- some of them hadn't reached 10 their majority. I don't know that to be a fact, though. 11 THE COURT: Okay. 12 BY MR. SIEMIETKOWSKI: 13 Q. Dr. Angel, having discussed the availability of receipts 14 and disbursement data, let's now move to the second general area 15 of your testimony, and that is, government practices and system 16 controls reflected in the historical records. Do you recall 17 testifying a bit in October about settlement packages? 18 A. I do. 19 Q. Briefly would you please refresh the Court in terms of what 20 these were? 21 A. These were packages that were submitted by Indian service 22 special disbursing agents to the General Accounting Office for 23 examination and review. 24 Q. And was GAO the first organization to conduct this process? 25 A. The process started for all disbursement agents, not simply Jacqueline M. Sullivan, RPR Official Court Reporter 807 1 ISSDA, but all disbursing agents relatively early in the 19th 2 century. It was conducted by the Treasury department. The 3 Treasury handled this function until the creation of the General 4 Accounting Office. 5 Q. And when did the General Accounting Office take it over? 6 A. The General Accounting Office took this function over 7 subsequent to the Budget and Accounting Act of 1921, and in 8 fact, that branch of Treasury that conducted the audits simply 9 moved over to the General Accounting Office. 10 Q. And how long did GAO perform this function? 11 A. GAO performed this function from 1921 to 1951. 12 Q. Dr. Angel, what kind of review had you conducted of the 13 settlement packages? 14 A. Well, my review of the settlement packages is more of a 15 historian obviously. Obviously I'm not an auditor or an 16 accountant. My primary interest was to see what kind of 17 documentation was in those packages and maybe to make a 18 historian's determination of what level of review was conducted 19 by the GAO of the ISSDA packages. 20 Q. Now, how thick are these packages? 21 A. Well, they can vary. Some of them are fairly summary, but 22 I've seen them well in excess of three thousand pages. 23 THE COURT: Fourteen hundred feet, he told us the last 24 time. 25 THE WITNESS: That's correct. I'm sorry, your Honor. Jacqueline M. Sullivan, RPR Official Court Reporter 808 1 I was speaking to -- 2 THE COURT: No, I understand. 3 BY MR. SIEMIETKOWSKI: 4 Q. Dr. Angel, before focusing on any government system 5 controls that may be evident in the settlement packages, do you 6 have an opinion about the packages' utility in terms of an 7 aggregation of receipts and disbursement data? 8 A. In my opinion, after looking at many of these settled 9 account packages, they would provide the basis for total 10 receipts and total disbursements on an agency-by-agency basis 11 and quarterly to semi-annual basis. 12 Q. By region? 13 A. By agency. 14 Q. By agency. 15 A. It's an agency by agency, yes. 16 Q. Dr. Angel, at this time I'm going to show you on your 17 screen DX 256, specifically page one. What is this, if you 18 recognize it, please? 19 A. This is the annual report from comptroller general for the 20 United States, fiscal year ended June 30th, 1939. 21 Q. I'll ask Matthew to show you now page two on the screen and 22 to enlarge the highlighted portion, please. 23 A. This is forwarded. It's written by the comptroller 24 general, and he explains one of the purposes of this report. He 25 knows that the preceeding year, 1939, the annual report was not Jacqueline M. Sullivan, RPR Official Court Reporter 809 1 published, but one of the things it showed was the work of audit 2 and settlement of accounts and claims, including showing in some 3 detail of the many questions and probably which arise from in 4 connection with these because -- 5 MR. SMITH: If I may raise an objection at this point. 6 We have a summary judgment decision saying GAO did not audit 7 these settlement of accounts. I would object to the testimony 8 that contradicts the existing opinion from Judge Lamberth on 9 that point. 10 THE COURT: We're not going to contradict Judge 11 Lamberth, but I'll hear the testimony. The objection is 12 overruled. 13 BY MR. SIEMIETKOWSKI: 14 Q. Before we move on to the next page, let me ask you next, 15 Dr. Angel, whether this limited process was limited to Indian 16 funds. 17 A. No, it was not limited simply to Indian funds. It was all 18 disbursing agents of the United States government. 19 Q. Looking next to page 14 of DX 256, once enlarged, what does 20 this highlighted portion show? 21 A. A portion of the comptroller general's report. It goes 22 through the audit process generally, and a portion of it then 23 goes to the issue of individual Indian monies. And regarding 24 individual Indian monies, it says these accounts embrace an 25 accounting by agents of the Indian service for providing funds Jacqueline M. Sullivan, RPR Official Court Reporter 810 1 of individual Indians received and disbursed. The audit 2 consists after determination as to compliance with the laws, 3 regulations, and decisions governing the expenditure of Indian 4 monies. The complete accounting embraces both collections and 5 disbursements for the account of the individual Indian, the 6 decisions for application. Those are the former comptroller of 7 the Treasury, the comptroller general, the Secretary of the 8 Interior, and the courts. 9 Q. Let's move next, Dr. Angel, to DX 246. Well, before we 10 move, specifically do you recognize this document from your 11 collection? 12 A. Yes. This is one of the settled account packages that I 13 introduced during my testimony in the October trial. 14 Q. And how thick was this one? 15 A. This one actually was over three thousand pages. It's 16 divided into two PDFs, 246 and 247. 17 Q. Let's look then at pages 57 through 63 initially, and once 18 enlarged, as Matthew enlarges these and cursors through them 19 slowly, I'd like you to please explain what significance, if 20 any, from a historical viewpoint these pages show. 21 A. Sure. May I go to the last page that you mentioned? I 22 believe it's 63. 23 Q. 63. 24 A. This is a letter from J.E. Fisner, chief clerk accounting 25 section. Jacqueline M. Sullivan, RPR Official Court Reporter 811 1 Please, Matthew, back to the first now. 2 And it's to W.O. Roberts, superintendent and special 3 disbursing agent of the Pineridge Agency. 4 Q. What does this indicate, what's the letter about, if you 5 can tell? 6 A. In this letter the GAO official says audit of individual 7 Indian monies, vouchers, number 21 and 22, discovered some 8 problems and the GAO official. Goes on to note what the 9 problems were. 10 For example, in the first part he talks about checks 11 to individual Indians, listing check number, date of the check, 12 the account of the individual Indian, and the amount, that 13 lacked specific authorities for disbursing. 14 Could you scroll down, please? Thanks. 15 And these are the checks that he's questioning 16 specifically. 17 Q. Let me turn your attention next then to page four of the 18 document, Dr. Angel. What does this page represent? 19 A. This is Superintendent Roberts' response to the General 20 Accounting Office. He states, This is in reply to your letter 21 of May 17, 1945 relative to the audit of my individual Indian 22 monies, voucher 21 and voucher 22. Here you see he's added the 23 citations of authority that the GAO official requested, and he 24 goes on later in this letter to address other issues that the 25 GAO raised by his individual Indian monies accounts. Jacqueline M. Sullivan, RPR Official Court Reporter 812 1 Q. I'll ask Matthew next to show you pages 51 through 56, 2 please. Please explain for Court as Matthew cursors slowly 3 there what these pages represent. 4 A. These are specific issues that were related to the GAO's 5 question about -- excuse me. Could we go to the first page of 6 that document, please? I'm sorry. 7 Q. Page 351? 8 A. Please. 9 Q. Can you enlarge it please, Matthew? 10 A. No, I'm sorry. I'm talking about the very first page of 11 the letter. 12 Q. Okay. Page 57, would that be? 13 A. I believe so. 14 Okay. This is part of the GAO's letter to 15 Superintendent Roberts. I'm sorry. I got confused for a moment 16 about whether this was the response from Roberts to the GAO. 17 But this is the letter from GAO to Roberts. Now please go 18 ahead. I'm sorry. 19 Q. Now, if we go back, Matthew, to 51 through 56, and again, 20 what does this represent, Dr. Angel? 21 A. These are issues that the GAO had with the settled account 22 package involving individual Indian monies. 23 Q. What does the first paragraph describe? 24 A. In regard to the cancelled official receipts, or official 25 receipt number? These effectively address the complaints of the Jacqueline M. Sullivan, RPR Official Court Reporter 813 1 GAO on a point-by-point basis and explain what's been done. For 2 example, with the first one there was a question about a dollar. 3 This amount was redeposited by currency, one dollar, March 9, 4 1942. It gives a receipt number, and there's a tick mark by it. 5 Q. Thank you, Dr. Angel. I'll ask that that be removed from 6 your screen, and ask you generally how many agencies produce 7 these settlement packages? 8 A. Roughly speaking, at this time there were a hundred 9 agencies in the Bureau of Indian Affairs. 10 Q. And how often did these agencies produce these packages? 11 A. It varied by time period. Quarterly to semi-annual, at 12 least for the settled account packages. They submitted other 13 financial records more routinely, but by the GAO period, I 14 believe after 1927 for the most part the GAO addresses IIM semi- 15 annually. 16 Q. Can you evaluate this information as an accountant? 17 A. No certainly. 18 Q. Can you evaluate as a statician? 19 A. No. 20 Q. What about as an attorney? 21 A. Definitely not. 22 Q. So what do these packages tell you, if anything, Dr. Angel, 23 as a historian? 24 A. These packages tell me as a historian that a second agency, 25 the General Accounting Office, was conducting a fairly extensive Jacqueline M. Sullivan, RPR Official Court Reporter 814 1 examination of individual Indian monies on a very check-oriented 2 basis. In other words, down at the check level they're 3 examining receipts and disbursements, and there's a lengthy 4 exchange between the Indian agent, the ISSDA, and the case of 5 what we just saw Superintendent Roberts and the GAO official 6 actually doing the audit. 7 Q. So what does that tell you about government practices at 8 that time regarding collections into and disbursements from the 9 IIM system? 10 A. As a historian looking at these packages it tells me that 11 there was government oversight. 12 Q. Now, as a historian, what do these records tell you 13 regarding the reliability of the data in them? 14 A. As a historian I feel a lot more comfortable knowing that 15 one agency has produced records and another agency has reviewed 16 those records at a very high level. 17 Q. As a historian, what do the system controls lead to 18 conclude, if anything, regarding the possibility of funds 19 leaking out of the IIM system undetected? 20 A. Again, all I can say is that there's a good level of 21 oversight involved in this process, and I think it's shown as 22 you look at the various settled account packages. 23 Q. And likewise, Dr. Angel, as a historian what do the system 24 controls tell you, if anything, regarding the positive funds 25 accumulating unnoticed in the IIM system? Jacqueline M. Sullivan, RPR Official Court Reporter 815 1 MR. SMITH: Objection. I'm not sure a historian is 2 qualified to make that determination. He's not an accountant. 3 THE COURT: That one I'm going to sustain. 4 BY MR. SIEMIETKOWSKI: 5 Q. Dr. Angel, aside from the settlement packages, are there 6 other examples of oversight in Interior administration of IIM? 7 A. Yes, there are. The ISSDA reports, those year-end account 8 balance reports that we discussed earlier, were submitted to the 9 Treasury department for review, and of course the receipt and 10 disbursement reports that we discussed under the act of June 11 30th, 1906 were submitted first to Treasury for review and then 12 to the United States Congress. 13 Q. Now, having discussed, Dr. Angel, the availability of 14 receipts and disbursement data, and having discussed any 15 government system controls reflected in that data, let's move 16 now to discussion of Plaintiffs' calculation of alleged benefit 17 to the government. First of all, have you reviewed and analyzed 18 Plaintiffs' March 19 remedies brief, including its attachments? 19 A. I have. 20 Q. Have you reviewed and analyzed Plaintiffs' April 22 reply 21 brief? 22 A. I have. 23 Q. Generally speaking, what can you tell us about historical 24 factors that would impact any calculation of alleged benefit to 25 the government? Jacqueline M. Sullivan, RPR Official Court Reporter 816 1 A. There are several things that struck me as I went through 2 those reports, as I went through Plaintiffs' calculations. One 3 thing concerned the very slow process of allotment. For 4 example, allotment began actually about at the time of the Dos 5 Act. There were over five hundred thousand acres already 6 allotted, but by 1910 there were only about 14,600,000 acres 7 allotted under the Dos Act, so a total of a little more than 15 8 million acres had been allotted by that time. 9 Q. Out of how many that were ultimately allotted? 10 A. Ultimately 42 million acres were allotted. 11 Q. How can that calculation prior to 1910 -- 12 A. What that means, there is a gradual process of allotment 13 involved in this, and I don't know how a linear interpolation 14 going backward would account for the gradual process of 15 allotment. 16 Q. Dr. Angel, did you review Plaintiffs' handling of the Osage 17 payments? 18 A. I did. 19 Q. What is your opinion regarding their analysis? 20 A. One of the problems I saw with their analysis of the Osage 21 payment is that as they looked at annuity payments to the Osage 22 Indian prior to 1908 they used the multiplier of 2,229 Osage 23 Indians. That figure was established in April of 1908. Prior 24 to that, annuity payments were actually made on the number of 25 Indians registered at the agency, and quite often that number Jacqueline M. Sullivan, RPR Official Court Reporter 817 1 was significantly less than 2,229. Also prior to 1908 we know 2 from criticisms in the commissioner of Indian Affairs reports 3 that at times much of the money was paid directly to individual 4 Osage Indians rather than going through the individual Indian 5 money account system. 6 Q. Let me show you, Dr. Angel, DX 484. Do you recognize that? 7 A. Yes, I do. It's the annual report of the commissioner of 8 Indian affairs for 1889. 9 Q. And I'll ask that you be shown page two on that document, 10 please, and if Matthew could enlarge the highlighted portion, 11 please. This section is cash payments to Indians, and it talks 12 about payments made during the fiscal year to fulfill treaty 13 stipulations and the like. And page three, please. Enlarge the 14 highlighted portion, please. 15 A. This shows on page three there were at this time almost 16 1,500 Osage Indians, 1,496 Indians at the Osage agency. Under 17 the Osage agency, I should say. 18 Q. Thank you. Let move from Osage and talk about tribal IIM. 19 A. I'm sorry. I think there was a page that may have been 20 overlooked. The page shows the amount of the payment. 21 Q. We don't have that handy right now, so perhaps we'll take 22 that up later if appropriate. What I'd like to do now, next, 23 Dr. Angel, is show you if I could or ask you more generally 24 about tribal IIM. 25 A. Uh-huh. Jacqueline M. Sullivan, RPR Official Court Reporter 818 1 Q. Did you review Plaintiffs' analysis of tribal IIM as part 2 of total IIM? 3 A. I did. 4 Q. And as a historian do you have a view as to how plaintiffs 5 handled tribal IIM? 6 A. My impression was that prior to 1972 they did not include 7 tribal IIM as a part of IIM system monies. 8 Q. Now let me show you, Dr. Angel, DX 26 at this time. What 9 is that, if you can recognize it, please? 10 A. This is a report to Congress concerning an investigation of 11 the Bureau of Indian Affairs. 12 Q. And if you would, take a look at -- 13 A. I'm sorry. It's dated 1952. 14 Q. I'm sorry, 19? 15 A. 52. 16 Q. Thank you. If Matthew could show you page one, please, and 17 if you can enlarge the highlighted portion. What does this 18 reflect? 19 A. Table entitled Data on Reservation, Individual Money 20 Accounts, and you can see reading across the top it encompasses 21 reservations by state, and then at the very top you see grand 22 total all states and Alaska. The top row across is total dollar 23 amount and it includes individual funds, $39,040,000. It 24 involves tribal funds, $13,126,000, and special deposit funds. 25 Q. Now look at this chart, Dr. Angel. How can you tell those Jacqueline M. Sullivan, RPR Official Court Reporter 819 1 references to tribal funds fit within the IIM system? 2 A. Well, this is the table itself is entitled Data on 3 Reservation, Individual Indian Money Accounts. 4 Q. Next Dr. Angel let me show you DX 76, please. Do you 5 recognize this? 6 A. Yes, I do. It's an audit report by the United States 7 Department of the Interior, Office of Survey and Review. It's 8 dated August 1972. 9 Q. And I'll ask that you be shown page two of this document, 10 and enlarge the highlighted portions, please. 11 A. Okay. 12 Q. Now, vis-a-vis tribal IIM, how was this relevant, Dr. 13 Angel? 14 A. This report examines, among other things, tribal accounts 15 that these particular agencies, and as you see, the very first 16 point is that it's not specifically authorized using the system 17 as a permanent depository for tribal funds. It's not 18 specifically authorized. 19 Q. Let's take a look next at page three of this document. Now 20 we've got highlighting within the highlighting. Please explain 21 to the Court what this means, Dr. Angel. 22 A. This audit involved funds belonging to tribes, or I should 23 say included funds belonging to tribes or tribal groups, and 24 they say it's seven of the locations say visited. They 25 identified 110 accounts maintained for the benefit of tribes or Jacqueline M. Sullivan, RPR Official Court Reporter 820 1 tribal organizations. You'll see that to continue on within the 2 category of liabilities applicable to individual tribes and 3 other groups these accounts represented only about one percent 4 of the total number of accounts but their balances totaled 5 approximately 4.6 billion -- 4.6 million as of December 31st, 6 1971. This 4.6 million constituted about 40 percent of the 11.4 7 million total balance under this individual account category. 8 Q. In light of this document and the one we just showed you, 9 as a historian what is your opinion then of Plaintiffs' 10 treatment of tribal IIM? 11 A. Tribal IIM is part of monies that entered the IIM system. 12 Q. Is it distinguishable from IIM identified for individual 13 Indians? 14 A. It would take an accounting to segregate those funds. The 15 1952 report, for example, broke it out, but tribal IIM does 16 represent money in the IIM system that is separate from monies 17 that are paid to individual Indian accountholders. 18 Q. So how then would Plaintiffs' inclusion of tribal IIM 19 affect their calculation of alleged benefit to the government? 20 A. Well, it would make the total amount received and disbursed 21 higher. 22 Q. Thank you. I'll ask that that be removed from your screen 23 now. 24 Dr. Angel, earlier today you testified about four 25 specific years, I believe, where actual receipt and disbursement Jacqueline M. Sullivan, RPR Official Court Reporter 821 1 numbers exist. Do you recall that? 2 A. I do. 3 Q. And again what were those years, please? 4 A. 1909, 1910, 1911, and 1955. 5 Q. Dr. Angel, are you aware of how Plaintiffs used numbers for 6 those four years? 7 A. My understanding, well, my review is that they included the 8 receipts figures for those years but not the disbursement 9 figures. 10 Q. What is your view as a historian on that approach? 11 A. Essentially if you're going to use one you've got to use 12 both. Youve at least got to show what the second number was, 13 the disbursement figure in this case. 14 Q. Now, what about the years 1915 to 1920, are you familiar 15 with Plaintiffs' use of data for those particular years? 16 A. I am. I reviewed that. 17 Q. And what is your view regarding their calculations for that 18 time period? 19 A. My view -- 20 THE COURT: Counsel, I know history is a very broad 21 discipline, but you've got this man as a historian basically 22 answering what sound to me more like accounting questions. I 23 mean, what does he think as a historian of adding receipts but 24 not disbursements? Well, what do all of us think of that? 25 Let's keep him channeled to his own discipline and to the Jacqueline M. Sullivan, RPR Official Court Reporter 822 1 expertise that he quite properly claims. 2 BY MR. SIEMIETKOWSKI: 3 Q. Let me show you then, Dr. Angel, Plaintiffs' exhibits, 4 which we have, 45 through 50. I'll ask that this be enlarged 5 enough so that you can see those. Now I'd ask Matthew to cursor 6 through those, please, and if you see anything, Dr. Angel, 7 regarding tribal IIM or unallotted lands, would you please bring 8 those to the Court's attention? 9 A. Certainly. In reviewing Plaintiffs' calculations, what we 10 attempted to do, your Honor, was to look at the source materials 11 that they used and make sure that looking at the source 12 materials they used that we could replicate their figures, okay. 13 That is, by looking at such issues as what's on the screen right 14 now, land lease for mining purposes. Could we show the other 15 pages as well, please? Use of glazing lands belonging to 16 Indians. 17 Please go back. 18 Agricultural lands belonging to Indians, and the first 19 one I believe involved land sales. I'm sorry. It's toward the 20 bottom of the page. This involves totals for land sales, so 21 what we did was we took the total from each of these categories, 22 so, for example, for 1915 we took proceeds for noncompetent 23 sales, proceeds for inherited land sales. We took the totals 24 all the way throughout and we add them up and by so doing we 25 were able to get the same figure that Plaintiffs give on their Jacqueline M. Sullivan, RPR Official Court Reporter 823 1 Schedule A. We then went back through their chart and their 2 supporting exhibits and we came to some conclusions concerning 3 the way they had used these. First of all, it appears that 4 they've used revenues as synonymous with receipts, which they 5 aren't because in certain instances we know monies are paid 6 directly to individual Indians rather than hitting the system. 7 Q. What is that sometimes referred to as, Dr. Angel? 8 A. Direct payments. 9 Another area that we questioned would probably be best 10 shown in the glazing table. 11 Q. What's significant about this page, Dr. Angel? 12 A. You'll notice that on this page there are -- the table is 13 broken into revenues for allotted lands and unallotted lands and 14 then totaled, and what Plaintiffs have done is they've taken the 15 total, the 1,346,000 figure, and they've used that as opposed to 16 the allotted income. Now, many Indian reservations were never 17 allotted. In fact, by 1935 the end of the allotment period 18 which ended actually in 1934, of the 213 reservations only 118 19 had been allotted. 20 Q. Dr. Angel, what's the difference then between allotted and 21 unallotted? 22 A. Well, allotted lands are, generally speaking, what generate 23 revenues to allottees. Unallotted lands typically are travel 24 lands. 25 Q. I'll ask that that be removed from your screen at this Jacqueline M. Sullivan, RPR Official Court Reporter 824 1 time, unless the Court is still looking at it. 2 Dr. Angel, you testified earlier that you had reviewed 3 Plaintiffs' filings. Are you familiar with their 73-page 4 historical compilation of comments from various reports 5 regarding the reliability of government data? 6 A. Yes, I am. 7 Q. And from your research what is your view of the reliability 8 of government data? 9 A. First of all, let me -- 10 MR. SMITH: Objection again. I'm not sure a historian 11 can testify about the reliability of government data. 12 MR. SIEMIETKOWSKI: If he can't talk about how 13 reliable one source is, your Honor, what can a historian testify 14 to? 15 THE COURT: Well, let's see. You can talk about the 16 civilian conservation core. He can talk about -- let me go back 17 and review this question. 18 What is your view of the reliability of government 19 data? That's a huge question. 20 MR. SIEMIETKOWSKI: Limit it to what he's looked at so 21 far, your Honor, with regard to these records. Isn't that what 22 he testified? 23 THE COURT: I'll hear his huge answer to that huge 24 question and deny the objection and accord the answer such 25 weight as I think it deserves. Jacqueline M. Sullivan, RPR Official Court Reporter 825 1 Go ahead. 2 BY MR. SIEMIETKOWSKI: 3 Q. Did you need the question repeated, Dr. Angel? 4 A. Yes. 5 Q. What's your view based on your review of these Indian 6 records of the reliability of the data contained in them? 7 A. Generally speaking, we know that -- first of all, let me 8 preface my question, if I may. Many of the documents that are 9 cited to in the 73-page compendium I believe came from my 10 records collection, so I'm very well aware of the audit reports, 11 the problems that were found with IIM over the course of the 12 years. Generally speaking, despite this, I think that the 13 records are reliable, that they do present us with our best data 14 to understanding individual Indian monies. 15 Q. If we were to conclude your testimony in summary fashion 16 then, Dr. Angel, what points would you leave the Court with? 17 A. One point that I'd leave the Court with is that there isn't 18 a great deal of receipt and disbursement documentation 19 concerning monies into and out of the IIM system. We've looked 20 and I think we've given it a good shot and I think that 21 aggregated material is very, very hard to find. Secondly, there 22 are definitely problems with the IIM system. There are problems 23 that are revealed by the audit reports themselves, but generally 24 speaking, as we've looked at, as we've conducted projects 25 reviewing the IIM system we've been able to show receipt and Jacqueline M. Sullivan, RPR Official Court Reporter 826 1 disbursement information. And third, there are problems with 2 Plaintiffs' calculations. 3 Q. Thank you, Dr. Angel. 4 Your Honor, I have no further questions. 5 I would like to move the admission of several 6 exhibits. Although we have several from October previously 7 admitted, we do have some additional ones. 8 THE COURT: Go ahead. 9 MR. SIEMIETKOWSKI: They are DX 483, Dr. Angel's total 10 IIM chart, DX 484, the 1889 commissioner's report containing the 11 Osage number, DX 485, 486, and 487, the examples of the buckets 12 that Dr. Angel had testified regarding. DXs 488, 489, and 490. 13 Those are respectively the statement of funded checking account, 14 the statement of accountability, and the statement of 15 transactions. Finally, your Honor, we would like to move the 16 admission of all of the DX 300s and 400s on Dr. Angel's total 17 IIM chart. As he testified, these are the new or complete 18 source documents which form the basis of his total IIM chart. I 19 have them by number if you'd like, but they are the 300s and 20 400s contained on his chart, which is DX 483. We ask that they 21 be received in evidence at this time. 22 THE COURT: All right. Any objection? Hearing none, 23 it will be received. 24 (Defendants' Exhibit Nos. DX 483-DX 490, and 25 all DX 300s and DX 400s received into evidence at Jacqueline M. Sullivan, RPR Official Court Reporter 827 1 about 2:53 p.m.) 2 MR. SMITH: Good afternoon, your Honor. 3 CROSS-EXAMINATION 4 BY MR. SMITH: 5 Q. Dr. Angel, you have been personally involved in matters 6 relating to this case since I believe 1999; is that correct? 7 A. That's correct, Mr. Smith. 8 Q. And your company, Morgan Angel, has been involved since I 9 believe 1997? 10 A. That's correct. 11 Q. So for over ten years you or your company has been doing 12 historical work for Interior or the justice department; is that 13 true? 14 A. Yes. 15 Q. You mentioned a number of forms that you said you would 16 like to look at, and the first one was form 1189, which was in 17 the ISSDA monthly report. Do you recall that? Did I get the 18 form number right? 19 A. Could you tell me the name? Is it the statement of funded 20 checking account? 21 Q. Checking accounts, exactly. 22 A. Yes, uh-huh, yeah, that was one. You know, just to fill 23 that answer out, we would have liked to have turned those over 24 to people, you know, more qualified than we are to put them 25 together, but yes, I think they gave us an opportunity at Jacqueline M. Sullivan, RPR Official Court Reporter 828 1 receipt and disbursement information. 2 Q. And when did you first become aware that there was a form 3 1189 or a monthly checking report? 4 A. As we reviewed our document collection, looking for 5 anything that we might have already related to receipt and 6 disbursement information, subsequent to March 5. 7 Q. Okay. So after March 5 you learned of the existence of 8 this particular form? 9 A. We had already collected it but we had not looked at it in 10 that -- in relation to receipt and disbursement. We selected it 11 as an example. 12 Q. And about what time would you have collected it, how many 13 years ago? 14 A. I could not say offhand. I could perhaps tell if I looked 15 at the document, but I couldn't say offhand. 16 Q. Okay. And would that be true of the other forms you 17 mentioned, the statement of accountability and the statement of 18 transactions, that you had them in your possession but weren't 19 particularly aware of them until more recently? 20 A. That's correct. 21 Q. Okay. Are you familiar with a form, standard form 224, 22 regarding transfers from the 14X6039 account to other accounts, 23 have you ever heard of that form? 24 A. I've heard of a standard form 224, yes. 25 Q. And have you seen copies of that particular form? Jacqueline M. Sullivan, RPR Official Court Reporter 829 1 A. I don't think offhand. 2 Q. Do you know where those forms would be located? 3 A. I can't say offhand. 4 Q. Okay. GAO settlement packages, how long have you been 5 aware of those particular packages? 6 A. Probably, I knew of them before the Cobell case. 7 Q. Okay. And particularly how many have you reviewed 8 personally? 9 A. Personally, at least fifty. 10 Q. At least fifty? 11 A. At least fifty. 12 Q. Okay. Going forward you or your company has prepared a 13 large number of historical reports relating to this particular 14 case, that is fair? 15 A. Yes. 16 Q. And while you may not have personally authored all those 17 reports, were you involved in some aspect of their preparation? 18 A. Yes. 19 Q. And you have certainly reviewed all of the Morgan Angel 20 reports prepared in preparation for this litigation; is that 21 correct? 22 A. Yes. 23 Q. And you've testified about many of them in the past; is 24 that fair? 25 A. Yes. Jacqueline M. Sullivan, RPR Official Court Reporter 830 1 Q. Is it customary for you to prepare a written report in 2 advance of testimony during litigation? 3 A. Yes. 4 Q. And have you prepared a written report in advance of your 5 testimony today? 6 A. No. Just the table. 7 MR. SIEMIETKOWSKI: Relevance, your Honor. Objection. 8 THE COURT: Overruled. 9 BY MR. SMITH: 10 Q. We've heard some discussions, your testimony about meetings 11 you've had with FTI or meetings with Dr. Scheuren. Are any of 12 those set forth in any documents that you prepared, any written 13 materials other than the source documents themselves? 14 A. No. At least not on my part, is what I'm saying, of 15 course. 16 Q. Okay. And the discussions you've had, you've mentioned 17 discussions with Ms. Herman and Dr. Scheuren. Have you had 18 discussions regarding your own investigation in preparation for 19 testimony today? 20 A. Please repeat. I'm sorry. 21 Q. You've talked about discussions you've had with Ms. Herman 22 or Dr. Scheuren. Have you discussed your investigation with 23 anybody else outside counsel regarding your conclusions? 24 A. In the course of our conversations there were other people 25 present at Interior department, for example. As I discussed my Jacqueline M. Sullivan, RPR Official Court Reporter 831 1 findings? 2 Q. Exactly. 3 A. So Dr. Scheuren was present, Ms. Herman. 4 Q. Anybody else that you recall other than attorneys? 5 A. Interior department officials at OHTA, for example, at the 6 Office of Historical Trust Accounting. Certainly when I say Ms. 7 Herman and Dr. Scheuren I should say there were other members of 8 their firms there as well. 9 Q. Okay. Let's turn to your testimony about collections and 10 disbursements. I think you stated pretty clearly that receipt 11 and disbursement data on the IIM trust is not easy to find, is 12 that fair? 13 A. That's correct. 14 Q. And for the period from about 1909 to 1920, the Department 15 of Interior prepared some pretty detailed annual reports that 16 discussed IIM activities; is that correct? 17 A. Yes. 18 Q. And sometimes they would break it down between tribal and 19 IIM and sometimes they wouldn't and they'd mix it all together; 20 is that correct? They'd have tribal and IIM as one group, is 21 that fair? 22 A. I think that would depend on which particular chart you're 23 talking about, Mr. Smith. 24 Q. Okay. 25 A. May I ask which particular chart you're talking about? Jacqueline M. Sullivan, RPR Official Court Reporter 832 1 Q. Sure. Let's ask generally. Sometimes they would break it 2 down between tribal and IIM and sometimes they wouldn't; is that 3 correct, on particular charts? 4 A. On some charts, for many of the charts they had it divided 5 between tribal and individual. 6 Q. Um-hmm. 7 A. Or allotted and unallotted, and that's what I'm kind of 8 struggling with right now, and at other times they did not. 9 They would show reservations statistics or something like that. 10 Q. And that was my point. Sometimes they would, sometimes 11 they wouldn't. Now, is it fair to say that after 1920 that 12 level of statistical details started to decrease? 13 A. That's correct. 14 Q. The reports sometimes may be two or three volumes and then 15 you get to a little pamphlet? 16 A. That's correct. 17 Q. I recall one of the Morgan Angel reports saying there was 18 an inverse relationship between the size of the reports and the 19 IIM problem itself. Do you recall that statement? 20 A. I don't. 21 Q. Okay. Is it fair to say that the commissioner of Indian 22 Affairs made an expressed determination not to publicly provide 23 that level of detail in about 19 -- I believe it was about 1921. 24 Do you recall that? 25 A. As I understand the situation, Mr. Smith, this was true of Jacqueline M. Sullivan, RPR Official Court Reporter 833 1 all government agencies, that the level of detail begins to 2 diminish after 1921. That's my understanding of the situation. 3 There wasn't something unique to the Bureau of Indian Affairs. 4 Q. Okay. And that's something Congress was complaining about, 5 is that fair, that we want to find more information on the IIM 6 trust and we're not getting it from Interior. Do you recall 7 that? 8 A. Please tell me which period you're talking about, Mr. 9 Smith. I'm sorry. 10 Q. Let's look at Exhibit 74. 11 A. Okay. 12 Q. Do you recall this document, speech by William King in 13 1933? 14 A. I do. 15 Q. I believe you've referred to that document in some of your 16 reports. 17 A. I have indeed. 18 Q. And if we could turn to page 33 to 34. 19 A. Um-hmm. 20 Q. And if we could focus in on the highlighted section at the 21 bottom of the page. If you could just look at that. And does 22 that reflect your recollection there were complaints from 23 Congress about Interior ceasing to publish estimates regarding 24 Interior data at least at that point in time? 25 A. Certainly Mr. King was very upset about it. I have cited Jacqueline M. Sullivan, RPR Official Court Reporter 834 1 to his speech. 2 Q. Okay. And he indicated that about half the total estimate 3 was a mere guess unsupported by statistical facts; is that 4 correct? 5 A. That's what Mr. King is saying. 6 Q. So based on your own investigation, as you've testified, 7 there is no publicly available data that would precisely 8 identify what the collections and disbursements were from the 9 IIM trust for each year of the trust, is that fair? 10 A. Insofar as -- are we excluding the settled account packages 11 from this discussion, because I do believe the settled account 12 packages would indeed give receipt and disbursement -- would 13 indeed give receipt and disbursement information. 14 Q. But today you've only looked at fifty of those and you 15 don't know what that receipt and disbursement information would 16 show, is that fair? 17 A. Well, I've seen receipt and disbursement information in 18 those packages. 19 Q. But can you give us aggregate numbers? 20 A. No. I'm sorry. I didn't mean to imply that, that could I. 21 Q. Let's talk about aggregate numbers. Is it fair to say you 22 can't come up with aggregate numbers on receipts and 23 disbursements for every year of the IIM trust based on the 24 review of the historical records? 25 A. Not come up with them, but I do believe if the settlement Jacqueline M. Sullivan, RPR Official Court Reporter 835 1 packages were reviewed in totality we could have fairly good 2 receipt and disbursement numbers. I can't say complete because 3 those records are old. 4 Q. Okay. 5 A. But I think they would provide a gateway into receipt and 6 disbursement numbers. 7 Q. In subsequent years do you recall that the annual reports 8 do provide aggregate tribal and IIM documentation combined? 9 A. Subsequent to the 1933, Mr. King's speech? 10 Q. Yes. 11 A. Yes. 12 Q. So some of the annual reports do have combined tribal and 13 IIM information, it's all lumped together in aggregate numbers, 14 do you recall that? 15 A. I do not. I do not. 16 Q. Let's move on then. 17 I noticed in the designation of your testimony you 18 were specifically identified to testify regarding collections of 19 money into the IIM system, is that fair? 20 A. I did research on collections into the system, yes. 21 Q. And what are you talking about when you say the IIM system, 22 collections into the IIM system, what are you talking about? 23 A. When I'm talking about the IIM system I mean the twofold 24 individual Indian money accounts as well as such items as money 25 that does not -- that enters the system, like tribal IIM, but Jacqueline M. Sullivan, RPR Official Court Reporter 836 1 does not get necessarily down to the individual Indian. 2 Q. Okay. So would you agree with me that the individual 3 Indian monies include not only those that may go into an 4 individual account but may go elsewhere in the system? 5 A. That's correct. 6 Q. In fact, is it fair to say that the term "individual Indian 7 monies" was never really used until, I believe, 1904, is that 8 fair? 9 A. That's my memory. 10 Q. Based on a regulation by Interior? 11 A. That's my memory. 12 Q. And by 1913 the Department of Interior specifically 13 prepared a definition of individual Indian money. Do you recall 14 that? 15 A. I do. 16 Q. Do you recall what that definition was? 17 A. Monies belonging to individual Indians is basically the way 18 it was. I don't have -- I cited in one of my reports and I've 19 reviewed the regulations, but I can't remember it verbatim of 20 course. 21 Q. If we could look at Exhibit 75, you've seen these before, 22 the regulations for Indian money in 1913? 23 A. I do. 24 Q. And if we could look at page three of that document. And 25 at the top of that page the first paragraph is highlighted. Is Jacqueline M. Sullivan, RPR Official Court Reporter 837 1 that the definition that was provided at that time of what 2 individual Indian monies is? 3 A. That's correct. 4 Q. Okay. Regardless of their deviationnn, which belonged to 5 individual Indians and which come into the individual of 6 disbursing officer? 7 A. That's correct. 8 Q. And that same definition was carried down for deviationss; 9 is that correct? 10 A. That's correct. 11 Q. It didn't make a difference where the government agent put 12 that money, whether they put it into a bank, Treasury, or 13 cardboard box, it was still considered Indian money; is that 14 correct? 15 A. That's the definition here, but we do know that money is 16 coming into the system, is being collected in the system that 17 does not go to individual Indian accountholders. 18 Q. And we're going to talk about that. You're talking about 19 tribal IIM, correct? 20 A. Well, tribal IIM, the bid money that entered the system and 21 subsequently left the system, some of the administrative fees; 22 issues like that. 23 Q. Okay. So when we are talking about individual Indian 24 money, you're not limiting yourself to money that's specifically 25 put into an individual Indian account, is that fair? Jacqueline M. Sullivan, RPR Official Court Reporter 838 1 A. That's the distinction I've been trying to make, which I 2 hope I've made at least, is money, individual money system and 3 individual money accounts. 4 Q. Okay. When you were talking about collections of IIM 5 money, do you include individual Indian money that may be placed 6 into a tribal account? 7 A. Could you please give me an example of that, please? 8 Q. Sure. Is it fair to say that prior to 1908 it was fairly 9 common to put individual Indian money into tribal accounts? 10 A. My understanding of it is that prior to the establishment 11 of individual Indian money regulations prior to the 1904 12 definition that we discussed, that these monies went into 13 miscellaneous receipts of the Indian agent. 14 Q. Let me show you Exhibit 76. Are you familiar with this 15 report by Historical Research Associates? 16 A. I believe I've seen this, yes. 17 Q. And HRA is another one of the government's contractors in 18 this case, is that true? 19 A. That's correct. 20 Q. If we could turn to page sixteen of that report. And I 21 think we're looking at page fourteen. Two more pages. And we 22 could focus in on the highlighted language. Does it indicate 23 that at that time in the early 1900s monies, IIM monies were 24 collected into class three tribal accounts and then were 25 disbursed to individuals by the local Indian agent? Jacqueline M. Sullivan, RPR Official Court Reporter 839 1 (Witness reads document.) 2 A. It does. 3 Q. Okay. In doing your research did you make any attempt to 4 make any determination as to what individual Indian trust 5 collections there might have been prior to 1909 that went into 6 tribal accounts? 7 A. I do not recall seeing any in the course of our research. 8 Q. Okay. Now, talking about tribal accounts, is it true that, 9 I believe it was 1907, Theodore Roosevelt took the tribal money 10 and basically divided it up among individual Indians; is that 11 correct? 12 A. He provided the mechanism for it to be done, but my 13 understanding is that it wasn't, you know, simply turning it all 14 over. Indians has to be considered, as we've said the term of 15 the day, competent. They had to make the request; things of 16 that nature. 17 Q. Okay. But he provided in 1907 for the apportionment of 18 tribal trust funds to individual Indians; is that correct? 19 A. He provided the mechanism, yes. 20 Q. And that was money in tribal accounts that was intended for 21 individual Indians? 22 A. It was money, it was like annuity payments, for example. 23 An individual Indian could request and receive a pro rata share 24 of an annuity payment. 25 Q. And the same thing happened again I believe in 1918; is Jacqueline M. Sullivan, RPR Official Court Reporter 840 1 that correct, the President said we're going to divide up the 2 tribal money in the tribal accounts and a portion among 3 individual Indians, is that fair? 4 A. I don't recall the 1918 example that you're talking about. 5 Q. If we could look at Exhibit 102. Are you familiar with 6 this report entitled the Historical Development of Individual 7 Monies, Policies and Problems? 8 A. Yes. 9 Q. Who prepared that report? 10 A. I did. 11 Q. And if we can could look at page 53 of that report. Does 12 it say -- if we could focus in on the second paragraph. 13 A. Oh, yes. 14 Q. Okay? 15 A. Yes. 16 Q. Does it indicate in fact in May 1918 that the bureau had a 17 policy of individualizing tribal trust funds and admitted the 18 1907 act? 19 A. Yes. 20 Q. So does that refresh your recollection whether in fact in 21 1918 the money held in the tribal accounts was to be divided 22 among individual Indians; is that correct? 23 A. Yes. It could be divided into subject to withdrawal for 24 payment to individual loaners or expenditures for their benefit 25 under regulations governing the use of other individual Indian Jacqueline M. Sullivan, RPR Official Court Reporter 841 1 monies. 2 Q. Let's turn to tribal IIM because you've testified about 3 that. And that's basically income that may be tribal but for 4 whatever reason shows up in an IIM account, is that true, or in 5 the IIM system? 6 A. For the most part those are tribal enterprises that had 7 been created in accordance with the Indian reorganization of 8 October of 1934 or the Oklahoma Indian Welfare Act of 1936. 9 Tribal funds, as I understand it, normally have to be or at that 10 point in history had to be appropriated by Congress, so these 11 tribal enterprises are on a different plain. They're using IIM 12 as a way to fund these enterprises as a way to allow an Indian 13 tribal enterprise like a stock racing association to have 14 immediate access to its own money, so these really aren't tribal 15 funds, per se, as I understand tribal funds. 16 Q. Okay. So your testimony is the only tribal money in IIM 17 accounts was associated with these business organizations; 18 things of that nature? 19 A. Well, some tribal money of course would come in by special 20 deposit accounts. 21 Q. What about per capita funds, do those go in a tribal IIM 22 account? 23 A. Would they go -- I don't know. I don't know the answer to 24 that. 25 Q. Now, Ms. Herman has testified that for the period 1934 to Jacqueline M. Sullivan, RPR Official Court Reporter 842 1 1985 there was an estimate made of tribal IIM money from ten to 2 fifteen percent based on the data that you provided. 3 A. Correct. 4 Q. Now, can you tell us how you calculated that ten to fifteen 5 percent? 6 A. Certainly. What we did was we looked at documents we had 7 collected over the years. These included such documents as 8 audit reports which have been referred to in here already. 9 These included such documents as Indian trust accounting 10 division accountings of tribal individual Indian monies. These 11 included a review of my review of settled account packages, 12 along with the review of others in my office. These included 13 the 1951 report to Congress, the 1952 report to Congress, the 14 1972 OSR audit. These included a review of correspondence. Our 15 audit was also based on -- or excuse me, our estimate was also 16 based on a review of reports that showed how much money the 17 United States government lent to tribal enterprises from the 18 period 1934 to 1949. It was something like $13 billion, a 19 little over $13 billion. We took these estimates, we took this 20 data and I made an estimate and that's what it is, an estimate, 21 and my estimate was also based on historical circumstances. 22 1934 it would have just started up. I took the first part of 23 that estimate at ten percent to 1945 figuring that World War 2 24 drew many Native Americans away from the reservation, both to 25 fight in the war obviously and to participate in wartime Jacqueline M. Sullivan, RPR Official Court Reporter 843 1 activities, and the second part from 1945 to 1985 based largely 2 on the various reports that I had seen. 3 Q. Okay. Now, Dr. Angel, I'm a little bit at a disadvantage 4 because I have not seen all those documents that you just 5 mentioned. Did you provide them to Justice? 6 A. These are part of Morgan Angel's. 7 MR. SIEMIETKOWSKI: Objection, your Honor; relevance. 8 THE COURT: Overruled. 9 THE WITNESS: These are part of Morgan Angel's 10 document collection. 11 BY MR. SMITH: 12 Q. Did you compile those documents? 13 A. No, I did not. 14 Q. You didn't provide them to Interior or provide them to the 15 justice department? 16 A. I simply provided an estimate as requested to FDI. I cited 17 some of the document that I used, but I provided the estimate. 18 Q. So you have not provided the backup documentation for your 19 ten to fifteen percent estimate? 20 A. No. 21 Q. Can you tell us how many documents did you review on 1934 22 that showed the percentage of tribal IIM in the account, in the 23 IIM system? 24 A. Off the top of my head, no, I don't know that I could tell 25 you for any specific year the percentage. I could say that Jacqueline M. Sullivan, RPR Official Court Reporter 844 1 we've looked at audit reports. I could say that we've looked at 2 reports that indicate how much money was loaned to tribal 3 enterprises, to, excuse me, to help them get started. 4 Q. You can't tell me for any particular year what report you 5 looked at and what the percentage was you found? 6 A. No. I'd have to go back through the documentation to do 7 that. 8 Q. Dr. Angel, do you have a degree in statistics or 9 mathematics? 10 A. I've already testified I'm a historian. 11 Q. Did you have anybody assist in you making that calculation 12 of ten to fifteen percent? 13 A. Several people in my office. 14 Q. And you? 15 A. This had the same documentation and reviewed it together. 16 Q. And do any of them have degrees in accounting or 17 mathematics or statistics? 18 A. No. 19 Q. You would agree with me, would you not, that since at least 20 the 1950s if there was tribal money in the IIM system it was not 21 supposed to be there, is that fair? 22 A. No. There would have been tribal money that would have 23 come into special deposit accounts. 24 Q. And I'm talking specifically about tribal IIM accounts, the 25 money was not supposed to be in the IIM system; is that correct? Jacqueline M. Sullivan, RPR Official Court Reporter 845 1 A. No, that's not correct. We've got documentation that 2 states that there is no specific authorization; however, the 3 Bureau of Indian affairs recognized what was going on and 4 approved the use of. 5 Q. Let's look at Exhibit 77. Dr. Angel, this is a copy of the 6 Interior regulations from 1951, and do you see the section there 7 on Voluntary Deposits? 8 A. I do. 9 Q. And you're familiar with voluntary deposits? 10 A. I am. 11 Q. And does it indicate that those voluntary deposits will not 12 be accepted except under cases of substantial hardship? 13 A. I'm aware of that but I'm also aware that the Bureau of 14 Indian Affairs at the same time as producing this report to 15 Congress showing that tribal IIM is part of individual Indian 16 monies. 17 Q. Okay. Now, you've looked at a lot of the audits from the 18 '40s, the '50s, the '60s on? 19 A. Correct. 20 Q. Is it fair to say that many of these audits criticized 21 these agencies, were having tribal IIM money in the tribal IIM 22 system? 23 A. There is, particularly by the '70s and '80s, an effort to 24 move tribal IIM out of the IIM system. However, it's recognized 25 in the audit reports, it's recognized in the annual investment Jacqueline M. Sullivan, RPR Official Court Reporter 846 1 reports, that this is part of the system. 2 Q. But the audit reports say it's in there but it shouldn't 3 be, correct? 4 A. Many of them do. The 1972 report does, but they're looking 5 for a way to get it out of the system, but there is no 6 indication to me of illegality. 7 Q. Okay. Let's look at Exhibit 78. 8 THE COURT: How much more cross do you have, Mr. 9 Smith? 10 MR. SMITH: I have a fair amount. Do you want to take 11 a break? 12 THE COURT: Let's take a break. We'll be in recess 13 for about ten minutes. 14 COURTROOM DEPUTY: This Honorable Court stands in 15 recess until 3:35. 16 (Recess taken at about 3:35 p.m.) 17 COURTROOM DEPUTY: Please come to order and remain 18 seated. 19 MR. DORRIS: Your Honor, I was to report back to you 20 about our discussions about the exhibits that Mr. Quinn tendered 21 with respect to Michelle Herman's testimony. 22 THE COURT: Yes. 23 MR. DORRIS: In light of the way we've handled 24 exhibits here, and her Exhibits DX 372, the five-volume set, as 25 I appreciate it being offered to show what's supporting Jacqueline M. Sullivan, RPR Official Court Reporter 847 1 information she used for her calculations more so than the truth 2 of the matter stated in it, we don't have any objections to the 3 exhibits Mr. Quinn called out last Thursday that were offered 4 for Ms. Herman. 5 THE COURT: All right. Thank you. 6 MR. QUINN: Yes, your Honor. One note: Looking over 7 the transcript from last Thursday I'm not sure if I misspoke or 8 if there was a typographical error, but Defendants' Exhibit 327, 9 which is a binder set which we used the first binder with Ms. 10 Herman and there were five numbered binders supporting of Sage, 11 supporting records, we were intending to include that in our 12 set. As Mr. Dorris commented, I'm sure he understood that was 13 part of our set, but in one area of the transcript it's referred 14 to as Exhibit 342. Thank you. 15 THE COURT: What I have to report to all of you is 16 that Tiger Woods is up two strokes. 17 BY MR. SMITH: 18 Q. Dr. Angel, before we were talking about tribal IIM, and 19 Plaintiffs' Exhibit 78, which is an audit report for Anadrako, 20 indicated March 1985. Do you see that? 21 A. I do. 22 Q. And do you recall reviewing this document as part of your 23 work for Interior? 24 A. I may have, Mr. Smith. I can't say specifically. 25 Q. Okay. If we could look at page two of that document. Jacqueline M. Sullivan, RPR Official Court Reporter 848 1 A. Um-hmm. 2 Q. And focus in on the highlighted area, the top half of the 3 page. And does it indicate the number of accounts and the 4 balance of those accounts, about $34.5 million? 5 A. That's correct. 6 Q. Okay. And if we can now turn to page twelve of that 7 document. And do you see a section in the middle highlighted on 8 tribal IIM accounts? 9 A. I do. 10 Q. And if you read that, does it indicate that the tribal IIM 11 was roughly $670,000? 12 A. In February -- the very first sentence? 13 Q. Yes. 14 A. Yes. 15 Q. Which would be roughly two percent of $34.5 million. I'll 16 tell you, Dr. Angel, that's how I calculate it. Does it appear 17 to be significantly less than fifteen percent? 18 A. Yes. 19 Q. Okay. Let's look at Exhibit 79. This is an audit report 20 for the Pauny Agency, July 1985. Do you recall reviewing this 21 document? 22 A. Again, I may have. I can't say that I would remember every 23 audit report that I read. 24 Q. Okay. Let's look at page two of that document. Focus in 25 on the top half. Do you see there's roughly just under five Jacqueline M. Sullivan, RPR Official Court Reporter 849 1 thousand accounts with $2.3 million in them? 2 A. Yes. 3 Q. And if we could turn to page nineteen, please, and focus in 4 on the first paragraph under Tribal Accounts. Does it indicate 5 that the tribal IIM accounts had a balance of $45,000? 6 A. Could we go back to the very first page, please? 7 Q. The first one we looked at? 8 A. Yes, please. 9 Q. Which was page two. 10 A. Okay. Please now go back to the -- 11 Q. Page nineteen? 12 A. Please. 13 Q. My question was: Does it indicate there were only about 14 approximately $45,000 in the tribal IIM accounts? 15 A. Might I see the whole page? 16 Q. You sure can. 17 A. Thank you. Please, the next page, if I may. 18 Q. Sure. 19 A. Thank you. 20 Yes. Thank you. 21 Q. Okay. And again, by my calculations it's somewhat less 22 than two percent but significantly less than your fifteen 23 percent calculation, is that fair? 24 A. Yes. 25 Q. If we could look at Exhibit 80, please. Does this appear to Jacqueline M. Sullivan, RPR Official Court Reporter 850 1 be an audit report for the -- you may be able to pronounce this 2 better than me. Is that the Concho agency or Concho? 3 A. Concho agency. 4 Q. July of 1985? 5 A. Yes. 6 Q. And if we could look at page two of that document. And 7 does it indicate there is roughly 5,700 accounts with $7.7 8 million in them? 9 A. It does. 10 Q. If we could turn to page 24 of that document. And look at 11 the top of the page. It says, as of March 1984 the agency was 12 maintaining 21 tribal accounts with balances totaling about 13 $85,000, eight of those accounts with balances of about $36,000 14 related to tribal operations; is that correct? 15 A. Correct. 16 Q. So by my calculations that is roughly one percent, but 17 again significantly less than your calculation of about fifteen 18 percent, is that fair? 19 A. Please let me -- 20 Q. Sure. Take your time. Go ahead and look at it. 21 A. Would you scroll down, please? 22 Q. Sure. 23 A. Thank you. 24 Okay. Thank you. 25 Q. Okay. My question was whether it's obviously significantly Jacqueline M. Sullivan, RPR Official Court Reporter 851 1 less than your calculation of fifteen percent. 2 A. It is. 3 Q. Okay. And if you could focus in on the highlighted 4 language toward the middle of the page, it says the remaining 13 5 tribal IIM accounts with total balances of about $34,000 contain 6 per capita funds for tribal members who cannot be located or 7 whose eligibility is being questioned for various reasons. Do 8 you see that? 9 A. I do. 10 Q. So does it appear that per capita funds are in fact 11 contained in tribal IIM accounts? 12 A. In this instance it does. 13 Q. In this instance it's over half of the tribal IIM money? 14 A. Yes. 15 Q. Did you do anything in calculating your ten to fifteen 16 percent to figure out how much of the money was in the tribal 17 IIM accounts as tribal and how much was actually IIM money? 18 A. No. 19 Q. Are you aware of anybody who's attempted to make that 20 calculation? 21 A. I'm not aware. 22 Q. If we could look at Exhibit 81. Let's move ahead. If we 23 could look at Exhibit 82, please. Dr. Angel, this is a report 24 dated May 1996 from GAO regarding BIA's tribal trust account 25 reconciliation results. Do you recall reviewing this document Jacqueline M. Sullivan, RPR Official Court Reporter 852 1 at any time? 2 A. I have seen this one before. It's been a while. 3 Q. If we could focus in on page 21 of that document. I think 4 we're on page 20. Look at the highlighted language in the 5 center of that page. 6 A. I see it. 7 Q. Okay. And essentially is it fair to say that GAO was 8 talking about the problems with tribal IIM accounts and the fact 9 that they couldn't separate individual transactions from tribal 10 accounts, is that fair? 11 A. That's a fair statement, but this is after the period that 12 I, you know, was reviewing. 13 Q. Okay. Do you know what kind of review GAO was attempting 14 to do? 15 A. I don't recall at this moment. I don't recall this report, 16 this specific report. 17 Q. Are you familiar with the special procedures pilot work 18 that was done for the five tribes that is mentioned in this 19 paragraph? 20 A. No. 21 Q. How far back in history it went? 22 A. No. 23 Q. Suffice it to say that you have not attempted to separate 24 tribal IIM or tribal money from individual money that may be in 25 the tribal IIM accounts, is that fair? Jacqueline M. Sullivan, RPR Official Court Reporter 853 1 A. That's fair. 2 Q. And you are not aware of anybody who's been authorized to 3 try to do that, is that fair? 4 A. I don't know if it was done during the electronic period or 5 not. 6 Q. So today you can't tell us how much of that ten to fifteen 7 percent you've calculated is actually individual money in those 8 tribal accounts? 9 A. No. 10 Q. You talked about, I believe it was DX 32, and you probably 11 recall it's a 1909 report that mentioned money being returned to 12 unsuccessful bidders. Do you recall that? 13 A. Okay. 14 Q. I believe you showed us a 1909 report and a 1910 report 15 that has a similar figure. 16 A. That's correct, yes. I don't remember whether it was 1910, 17 1911, but yes, you're right, I did show two of those reports. 18 Q. Can you tell me another year where it's contained in an 19 annual report that where collection information includes money 20 to be returned to bidders? 21 A. I did not see. 22 Q. So you're aware of those two years and those two years 23 alone? 24 A. That's correct. 25 Q. Let's talk about DX 483. Jacqueline M. Sullivan, RPR Official Court Reporter 854 1 Your Honor, if it would be helpful I'm going to be 2 referring to this document. I have a hard copy. If I could 3 hand that up. 4 THE COURT: All right. 5 BY MR. SMITH: 6 Q. Now, Dr. Angel, did you prepare this entire document? 7 A. Yes, I did. 8 Q. Did anybody outside of your company assist you in putting 9 together this information? 10 A. No one outside of Morgan Angel. 11 Q. Did you personally compile all the information in here? 12 A. With the assistance of other Morgan Angel staff. 13 Q. And it's fair to say, as you've already testified, looking 14 on the left-hand first two columns, there's a number of years 15 you found no receipt and disbursement information, is that fair? 16 A. That's correct. 17 Q. Particularly up to 1908 and then 1913 to I believe 1921; is 18 that correct? 19 A. Please? I'm sorry. 20 Q. You don't have receipt and disbursement information up to 21 1909 and then 1912 through I believe it was 1921? 22 A. That's correct. 23 Q. Now, you do have over on the right-hand side balance 24 information or what you call total IIM system funds? 25 A. Yes. Jacqueline M. Sullivan, RPR Official Court Reporter 855 1 Q. And is it your understanding that this balance information 2 was information NORC was going to use in some way in their 3 calculations? 4 A. Yes. 5 Q. And do you know how they intended to use that work, that 6 information, did you discuss that with them? 7 A. No. I don't know exactly how they were. I am not quite 8 aware of their methodology. 9 Q. Okay. You're not a statistician? 10 A. Yes. 11 Q. And neither am I. We're on even terms. 12 But you understood that NORC was going to be relying 13 on the information that you provided in these figures? 14 A. Yes. 15 Q. For example, if we look at the balance information on 16 the -- let's go down to 1919. 17 A. Um-hmm. 18 Q. I'm sorry. I'm sorry. If we could go to the prior page. 19 A. I apologize. 20 Q. And if you look on the far right column, it says 21 specifically what exhibit your balance numbers come from, is 22 that fair? 23 A. Correct. 24 Q. So for example, 1912 through 1917, it will come from? 25 DX 4-25 for DX 74-2, is that fair? Jacqueline M. Sullivan, RPR Official Court Reporter 856 1 A. I wonder if I might ask everybody's indulgence and just get 2 a paper copy of this. May I get a paper copy of this rather 3 than -- 4 MR. SMITH: If I may approach, your Honor. 5 THE WITNESS: This one is just a little bit easier for 6 me to read. Thanks. Oh, not greatly easier. 7 (Witness reviews document.) 8 Q. Okay? 9 A. Uh-huh. 10 Q. If you look at the right-hand column, those balance numbers 11 for those earlier years beginning in 1912 come from a document 12 DX 374102, at least the complete version, is that fair? 13 A. Uh-huh, yes. 14 Q. And if we could look at DX 374. And is this a copy of that 15 particular document? 16 A. Yes. That's a copy of the report of the commissioner of 17 Indian Affairs for the fiscal year ended June 30th, 1919. 18 Q. And if we could look at page 102 of that document. And 19 does this appear to be the column where that information came 20 from for those early years? 21 A. Yes. 22 Q. And if you focus in, it says funds in banks and in hands of 23 superintendents and then has a list, 1919, 30 million 9 hundred 24 30-some thousand, 1918, 23. And that corresponds to the balance 25 information in your report? Jacqueline M. Sullivan, RPR Official Court Reporter 857 1 A. Yes. 2 Q. Now, it was mentioned earlier today that at least on some 3 of the later reports like this there is a footnote there at the 4 top, is that fair? 5 A. Yes. 6 Q. And I believe Mr. Dorris was asking Ms. Herman about some 7 subsequent to 1920 and they say data incomplete, special 8 deposits are not included? 9 A. Yes. 10 Q. And in the early years has that same footnote, is that 11 fair, or a similar footnote? 12 A. My understanding is the first one that appears is the 1916 13 report. 14 Q. Okay. 15 A. And the last one that appears is the 1921 report. 16 Q. Okay. And if we could focus in on footnote number one, 17 which is at the bottom of the page. This time it simply says 18 data incomplete. It doesn't refer to special deposit accounts, 19 is that fair? 20 A. Correct. 21 Q. And if you look at the columns, if you go back to the full 22 page, there's a lot of blanks? 23 A. Yes. 24 Q. And as you mentioned, if you go back to 1916, 17, 18, 25 you'll see similar issues; is that correct? Jacqueline M. Sullivan, RPR Official Court Reporter 858 1 A. Yes. 2 Q. When you prepared DX 483, did you note on there that for 3 those years the data was incomplete? 4 A. We did not. 5 Q. You did have a footnote on that particular column; is that 6 correct, if you could go back to DX 483? 7 A. Yes. 8 Q. I believe it's footnote three, under total IIM system 9 funds. Do you see that? 10 A. Right. 11 Q. And if you look at footnote three, which is on the last 12 page, page four, it says, total IIM may include tribal funds and 13 other funds temporarily placed in special deposit accounts. Do 14 you see that? 15 A. That's correct, yes. 16 Q. And can you tell us why you also did not mention that the 17 data was incomplete? 18 A. No. 19 Q. If you go to the first page again, who came up with the 20 title Total IIM System Funds, is that something you came up 21 with? 22 A. That's something we discussed in our office. 23 Q. Did you discuss it with anybody at Interior or Justice? 24 A. We talked about IIM system funds with Justice, certainly. 25 Q. And did you -- Jacqueline M. Sullivan, RPR Official Court Reporter 859 1 A. Or please. 2 Q. I'm sorry. Go ahead. I don't mean to interrupt you. 3 A. No, I interrupted you and I apologize. 4 Justice Department or Interior did not come up with 5 this title. Is that, or is that your question? 6 Q. My question was who came up with it, that is something you 7 came up with? 8 A. I would have come up with it or, you know, it would have 9 been discussed in my office, but I would certainly if it was 10 discussed in my office it would be me. 11 Q. Okay. Now, that's different phraseology than what's on the 12 actual reports. The reports actually say Funds in Banks and In 13 Hands of Superintendents; is that correct? 14 A. That's correct. 15 Q. Okay. So it's somewhat different than how you've labeled 16 that particular column? 17 A. Yes. 18 Q. Now, when you were looking at these charts, did you try to 19 go back and verify whether the information in the charts was 20 accurate? 21 A. To the degree that we could we did. But for the most part 22 by looking at individual agencies, for example, which are often, 23 you know, shown in these charts, but, no, we could not do a 24 specific agency-by-agency review. 25 Q. So some of the agencies actually do their own reports and Jacqueline M. Sullivan, RPR Official Court Reporter 860 1 have some receipt data in there; is that correct? 2 A. Please say that again. I'm sorry. 3 Q. Sure. Some of the, for example, in 1919 there may be some 4 agencies that did their own individual reports and you can 5 compare it to the full set of data contained on that chart; is 6 that correct? 7 A. No, I'm sorry, that's not what I'm saying. I was just 8 going through the chart itself comparing it to previous and post 9 years, taking whatever historical context I could have in 10 putting it in that, but I couldn't actually do an 11 agency-by-agency review. 12 Q. Okay. Have you ever seen annual reports by the Union 13 Agency for the five civilized tribes? 14 A. I have. Well, no. I've seen annual reports of various 15 agencies from National Archives materials. 16 Q. Okay. And one of those would be the Union Agency for the 17 five civilized tribes. Have you seen that? 18 A. It could be. I don't recall specifically seeing it. 19 Q. Let's look at Exhibit 121. Does this appear to be an 20 annual report for 1913? 21 A. It does. 22 Q. And if you can to page 259 of that particular report. I 23 apologize, your Honor. If we could look at page 259. I'm 24 sorry. 262, I apologize. And do you see the similar table to 25 the ones we've looked at before at the top of the page, Value of Jacqueline M. Sullivan, RPR Official Court Reporter 861 1 Indians Individual Property, June 30, 1913? 2 A. It's the same. In other words, if we scrolled up a couple 3 of pages we'd have the same heading. 4 Q. Yeah. And do you see the column, third one, Funds in 5 Banks, etcetera? 6 A. Uh-huh, yes. 7 Q. And do you see an entry for the five civilized tribes of 8 $1,441,918? 9 A. I do. 10 Q. If we could look at page 461 of the same document. And 11 does it appear that there's a discussion from the Union Agency 12 of how much money they had for the five civilized tribes? 13 A. $1,651,000 on June 30th, 1913. 14 Q. Approximately two hundred thousand more than was in the 15 chart that you used; is that fair? 16 A. That's correct. 17 Q. Okay. Now, it also mentioned another fact. It says they 18 deposited $328,596.18 with the Treasury. Do you see that? 19 A. Um-hmm. 20 Q. Can you tell us where your chart accounts for money 21 actually deposited in the Treasury? And Doctor, I don't mean to 22 confuse you. Is it fair to say that if individual Indian money 23 was placed into the Treasury it wouldn't be reflected in your 24 chart; is that correct? 25 A. We do have a column for that. Jacqueline M. Sullivan, RPR Official Court Reporter 862 1 Q. But do you have anything for 1913? 2 A. I don't. 3 Q. Okay. So if you went back and you saw this document you 4 would realize that there should be some money in Treasury for 5 1913; is that correct? 6 A. I'd have to look at this a little bit more closely, Mr. 7 Smith. I've got to admit that this one has kind of got me a 8 little bit confused. I don't know if we're talking strictly 9 individual Indian monies or individual Indian monies and tribal 10 funds in this particular paragraph. That's what I'm saying, 11 trying to determine right now. 12 Q. Okay. Let's go on and look at another one. Let's look at 13 Exhibit 91. Does this appear to be the annual report for 1915? 14 A. Yes. 15 Q. And if we could look at page 198. And again, you have the 16 same chart as we've seen in prior years' funds in hands of 17 superintendents, correct? And actually, once again we have the 18 footnotes at least it was there in 1915 as well, correct? 19 A. Yes. 20 Q. And if we could turn to page 201. And once again if we 21 could focus in on the five civilized tribes you see an entry 22 there for $2.8 million? 23 A. Correct. 24 Q. And if we could look at page 376 and focus in on the 25 section individual funds. If you could take a look at that. Jacqueline M. Sullivan, RPR Official Court Reporter 863 1 Does it indicate once again that individual money is being 2 deposited with Treasury, and in this case, approximately 3 $210,000? 4 A. I understand what you're saying, and I think what's 5 throwing me on this, Mr. Smith, is there something called 6 Treasury Checking Accounts that I don't know that I'm not that 7 familiar with, and that's why I don't know what this means. 8 It's going into the general fund of the United States Treasury, 9 the Treasury general account, or whether this indicates that 10 it's going into a Treasury checking account which was used for 11 disbursements. I don't know. 12 Q. Regardless of that, it says the $210,000 was deposited with 13 the treasurer of the United States; is that correct? 14 A. Correct. 15 Q. And that number is $2.8 million is roughly $210,000 more 16 than the number on your chart? 17 A. Yes. 18 Q. So to the extent money was deposited with the treasurer of 19 the United States, apparently it was not included on that column 20 that we've been looking at, is that fair? 21 A. The column on the chart, you know, reflects what was in 22 funds held in the top of the chart, the top line of the chart. 23 Q. Okay. So funds held in banks and in the hands of 24 superintendents? 25 A. Correct. Jacqueline M. Sullivan, RPR Official Court Reporter 864 1 Q. And to the extent Treasury had money, it's not on your 2 chart? 3 A. That's correct. 4 Q. How about Osage, did you include Osage money in your chart? 5 A. I did. 6 Q. Let's look at Exhibit 123. Does this appear to be a report 7 of the Department of Interior, 1917 annual report? 8 A. It does. 9 Q. And if we could look at page 194. And once again we have 10 the same chart with the same footnote at the top? 11 A. Correct. 12 Q. And individual funds in banks and in hands of 13 superintendents? 14 A. Um-hmm. 15 Q. And if we could turn to page 197. Actually let's turn to 16 page 339. And do you see the section starting the problem 17 with ...? 18 A. Um-hmm. 19 Q. If you read that, does it indicate there are nearly $5.7 20 million of trust funds in the United States Treasury belonging 21 the Osage Indians? 22 A. Yes, but that doesn't say whether they're tribal funds or 23 not, and if they're tribal funds they'd be earning interest, and 24 that's what again is kind of throwing me about this. 25 Q. Does it say it is estimated that the per capita portion of Jacqueline M. Sullivan, RPR Official Court Reporter 865 1 the Juno wealth is over $10,000? When you're talking about per 2 capita, is that individual or tribal? 3 A. Individual. 4 Q. Okay. 5 A. But again, I can't say that this, because the trust funds 6 are in the Treasury and that's what's really throwing me about 7 this whole line of questioning, I can't say whether that's in 8 the Treasury general fund or whether that's in a tribal account 9 which would be interest-earning. 10 Q. So whatever you can say today you don't know? 11 A. I can say I don't know. 12 Q. And whatever it is, those amounts of money are not included 13 on your chart? 14 A. That's correct. 15 Q. Wherever they are? 16 A. Yes. 17 Q. What about liberty loan bonds, what are liberty loan bonds? 18 A. Those were bonds that were issued during World War 1 and 19 they formed a fairly significant amount of IIM purchases. 20 Q. Okay. And are liberty loan bonds included in your chart? 21 A. My understanding is that they are, just from reviewing the 22 information in the commissioner's reports. 23 Q. Let's look at Exhibit 123. This is the one we just had. 24 Do we have page seven of that document? Do you see a section 25 entitled Liberty Loan Bonds? Jacqueline M. Sullivan, RPR Official Court Reporter 866 1 A. Yes. 2 Q. And if we could focus in on the highlighted language. It 3 says, Probably the most noteworthy showing was the subscription 4 of seven Indians, including incompetents and minors aggregating 5 roughly $3.9 million. Individual amounts range from 50 to 6 $640,000? 7 A. Yes, I see it. 8 Q. And then the largest subscription it says was by someone 9 through his guardian, is that fair? 10 A. Um-hmm. 11 Q. If you look at page 194 of this document. 12 MR. SIEMIETKOWSKI: I'm going to object, your Honor, 13 as to relevance. I'm not sure how liberty loan bonds are 14 pertinent to IIM. 15 THE COURT: We may find out. Overruled. 16 BY MR. SMITH: 17 Q. Were individual monies invested in liberty loan bonds? 18 A. Yes, they were. 19 Q. And looking at this chart, if you look down at the 20 footnotes, second page, try third page here, are you aware of 21 anywhere in these charts that talks about these charts including 22 liberty loan bonds? That's my question to you. 23 MR. SIEMIETKOWSKI: Same objection, your Honor. 24 THE WITNESS: My guess is they were included in 25 individual Indian monies. Jacqueline M. Sullivan, RPR Official Court Reporter 867 1 BY MR. SMITH: 2 Q. But they didn't separate it on the particular charts? 3 A. No. My understanding on liberty loan bonds is they would 4 be included in total IIM. 5 Q. Would they be included in bonds in the hands of 6 superintendents and in banks? 7 A. Yes. 8 Q. Let's move on to the 1920s. Now, is it fair to say that 9 beginning in the 1920s you began to rely on similar charts? 10 Let's look at DX 395. And look at page 31, and I believe we 11 looked at this earlier with Ms. Herman, but beginning in 1921 12 for your balance information you looked at similar charts that 13 were in the annual reports; is that correct? 14 A. That's correct. 15 Q. And these are the ones that indicated that the data was 16 incomplete and special deposits were not included, is that fair? 17 A. That's fair. 18 Q. Okay. And once again, the column is Funds in Banks and In 19 Hands of Superintendents, so once again, it would not include 20 money in Treasury, is that fair? 21 A. That's fair. 22 Q. Okay. And if you go back and look at DX 483, for that 23 period beginning until 1928, you have no funds in Treasury, no 24 funds in government securities, no funds in banks; is that 25 correct? Jacqueline M. Sullivan, RPR Official Court Reporter 868 1 A. That's correct. I believe 1921 was the last year that had 2 that footnote. 3 Q. Okay. If you look at this chart again, 1924, 1924 to 1925, 4 does it appear that the revenue actually drops by roughly $3 5 million, 28.634 to 25.485? 6 A. Please tell me where. 7 Q. If you look at the Receipts column. 8 A. Uh-huh. 9 Q. 1924 to 1925 revenue drops by roughly $3 million, is that 10 fair? 11 A. That's correct. 12 Q. And in 1925 disbursements exceed revenues by roughly $3 13 million, a little over $3 million? 14 A. And just so we're correct about this, Mr. Smith, this is 15 these receipt and disbursement figures are from the 1906 act 16 with the limitations I tendered. 17 Q. Right, and we're going to talk about those in a second. 18 A. All right. 19 Q. But if you go over to the column for total IIM system 20 funds, 1924, 35.6 million, and in 1925, 56.8. 21 A. That's correct. 22 Q. Now, would the receipts dropping and disbursements 23 increasing, were you able to determine how the total IIM system 24 funds increased by $20 million? 25 A. I know that they increased largely because of oil and gas Jacqueline M. Sullivan, RPR Official Court Reporter 869 1 revenues, but no, that was one of the things that troubled me 2 about these receipt and disbursement figures. I could not link 3 them to year-end account balances. 4 Q. Okay. So the receipt and disbursement information appears 5 low in comparison to the $20 million increase in the balance? 6 A. That's correct. 7 Q. And in fact, in 1926 it suddenly drops to -- the total IIM 8 system funds drop by $12 million and then increase by $30 9 million? 10 A. We attempted to explain that. In fact, using the Bureau of 11 Indian Affairs report for 1926 you may notice that their figure 12 was $22 million. What we did is we went back to that report, we 13 took all the figures from the various columns, Funds Held 14 column. We retotaled it to get that $44 million figure, and 15 yes, it still seemed low to me. 16 Q. So like me when I looked at it and raised a red flag, it 17 raised a red flag with you as well? 18 A. It did indeed. 19 Q. The numbers just didn't seem to make sense? 20 A. That's correct. 21 Q. Now, did you consider when looking at that that in fact 22 perhaps there was money invested in government securities during 23 that period? 24 A. Yes, there was. 25 Q. That is not reflected on your chart? Jacqueline M. Sullivan, RPR Official Court Reporter 870 1 A. I believe my understanding is that funds held in the hands 2 of Indian agents does include liberty loan bonds and securities. 3 Q. Okay. Does it include liberty loan bonds as well as 4 securities? 5 A. Well, my understanding is that it includes securities and 6 liberty loan bonds. 7 Q. That it includes? 8 A. That the agent was -- I'm sorry. 9 Q. I'm sorry, go ahead. Your understanding is? I apologize 10 again. 11 A. Please. 12 Q. Your understanding includes Treasury securities? 13 A. Yes. 14 Q. Okay. If we could look at Exhibit 124. Do you recall this 15 report prepared by Mr. Kehoe? 16 A. I do. 17 Q. And in fact, I think he's going to testify later this week. 18 A. I believe so. 19 Q. And you've reviewed this report prior to today? 20 A. I have. 21 Q. Okay. And if we could look at this report beginning at 22 page fifteen, page fifteen of the document. Do you see in the 23 last paragraph it says -- if we could focus in on the last 24 paragraph. Despite such costs such attitudes the BIA did begin 25 to invest significant amounts of IIM in federal government Jacqueline M. Sullivan, RPR Official Court Reporter 871 1 securities during the 1920s. By 1926 Assistant Commissioner 2 Merit could report that $27 million of monies held in trust for 3 individual Indians are invested at the present time in United 4 States government bonds and notes, and it goes most of which 5 bear interest at four-and-a-quarter percent. Do you recall 6 that? 7 A. Yes. 8 Q. Now, you do not have the $27 million entry under Government 9 Bonds on your chart for that year, is that fair? 10 A. Well, as I'm reading this I believe, I think that's a 11 cumulative figure. So Merit is saying in 1926 $27 million is 12 held, but I don't think he means that 27 -- that's a cumulative 13 figure as I'm reading that. 14 Q. Cumulative for that year? 15 A. No, no, no. Cumulative. Total figure. 16 Q. For? 17 A. For years -- I'm sorry. As Merit is saying it, if I'm 18 reading this correctly, and I certainly would like to see the 19 document involved with this, but I think that what he's saying 20 is that during the 1920s they're investing money in federal 21 government securities. By 1926 he could report that this total 22 number, $27 million as opposed to the number in 1926. Have I 23 lost you, Mr. Smith? That's not my intention. 24 Q. You have, but perhaps we ought to look at the original 25 report and we can check on that. Jacqueline M. Sullivan, RPR Official Court Reporter 872 1 A. Okay. 2 Q. Is it fair to say that prior to 1928 your chart doesn't 3 reflect any funds invested in government securities, except to 4 the extent they may be included in some other column? 5 A. Oh, correct. Okay. 6 Q. Now let's talk about who is responsible for reporting 7 government securities. If you could look at Defendants' Exhibit 8 42, DX 42. And this is the government document that the 9 government produced to you. If we could see the entire 10 document. Is this one that you've looked at before? 11 A. It is. 12 Q. Okay. And it's entitled Indian Funds From the Comptroller 13 General of the United States back in, I believe it was published 14 in 1929? 15 A. Correct. 16 Q. If we could look at 42-15 and focus in on the highlighted 17 language. If you could take a second and read that. 18 (Witness reviews document.) 19 Have you had a chance to read it? 20 A. I have. 21 Q. And does it indicate that accounts for monies in the 22 depository banks are kept with a local agency? 23 A. That's correct. 24 Q. But the treasurer keeps the records for funds invested 25 represented by coupon bonds in the custody of a superintendent Jacqueline M. Sullivan, RPR Official Court Reporter 873 1 for funds invested in bonds registered in the name of the 2 superintendent as trustees or guardian for a minor or 3 incompetent Indian; is that correct? 4 A. That's correct. And in fact, Mr. Smith, I've always 5 wondered about the relationship of that to the receipt and 6 disbursement figures that I collected. 7 Q. Okay. So that raises some concern for you as well; is that 8 correct? 9 A. No. I was just hoping it would be a way to explain the 10 receipt and disbursement figures. 11 Q. Your receipt and disbursement figures for those years are 12 as reported by the ISSDA, the Act; is that correct? 13 A. Yes. 14 Q. And that's for funds not invested or not placed in 15 Treasury; is that correct? 16 A. The receipt and disbursement? 17 Q. Right. 18 A. Well, the general Treasury of the United States, correct. 19 Q. And in fact, the last sentence says, No accounts are 20 required to be kept at the agencies for securities purchased by 21 a superintendent; is that correct? 22 A. Um-hmm. 23 Q. So to get that kind of information the agent isn't going to 24 have it, or the agency -- it's going to be at the Treasury 25 level, is that fair? Jacqueline M. Sullivan, RPR Official Court Reporter 874 1 A. That's correct. 2 Q. Now, let's look at -- 3 A. May I just see, scroll up just a bit on that same page? 4 Q. Sure. 5 A. It appears to me that they're using, the comptroller 6 general's figures and ours are the same, total amount of 7 individual Indian monies since June 30th, 1928. 8 Q. 1928. And in 1928 you actually have a figure for funds 9 invested in government securities; is that correct? 10 A. Yes. 11 Q. Which you didn't have for prior years? 12 A. That's correct. 13 Q. Okay. Let's look at DX 426. If you could look at the last 14 paragraph and take a look at that and read that, please? 15 A. I see it. 16 Q. Does it in fact indicate that at some point in time they're 17 actually accounting for Treasury's as property rather than 18 funds? 19 A. It does. 20 Q. Okay. So if you're looking at at least in some years 21 looking at funds, it's not going to be reflecting what may be 22 invested in Treasuries, is that fair? 23 A. I don't know if that's the case with the rendering of IIM 24 for settlement in the semi-annual period. 25 Q. Have you been able to come up to any extent to figure out Jacqueline M. Sullivan, RPR Official Court Reporter 875 1 how much was actually invested in Treasury securities prior to 2 1928? 3 A. Prior to 1928 I don't believe so. Please let me look. 4 (Witness reviews document.) 5 No. 6 Q. There's no doubt in your mind that money was invested in 7 Treasuries prior to 1928, but you don't know how much? 8 A. That's correct. In 1917 we know that money was being 9 invested in liberty loan bonds. 10 MR. SIEMIETKOWSKI: Your Honor, may I ask the Court to 11 remind the witness to please speak into the microphone. I've 12 having a little trouble hearing him. 13 THE WITNESS: I'm sorry. Will do. 14 THE COURT: I don't think I have to. I think he just 15 did. 16 THE WITNESS: Thank you. 17 BY MR. SMITH: 18 Q. Let's look at your receipt and disbursement information for 19 the same period. You've testified that that came from something 20 called the Sundry Civil Appropriations Act; is that correct? 21 A. That's correct. Active June 30, 1906. 22 Q. Right. And essentially all of your information from 1922 23 to 1949 comes from reports made pursuant to that particular Act; 24 is that correct. 25 A. Yes. Jacqueline M. Sullivan, RPR Official Court Reporter 876 1 Q. Let's give an example of that. If we could look at DX 2 414-1. Is this one of the documents that you pulled and 3 provided to Interior? 4 A. Yes. 5 Q. And it says it's being prepared in connection with the act 6 of June 30, 1906 which you mentioned, is that fair? 7 A. Yes. 8 Q. If we could then turn to the second page. And this is the 9 actual report that's been prepared, is that fair? 10 A. That's correct. 11 Q. And the only reference to individual money is on the bottom 12 of the page, and it says, In addition to the foregoing, 13 disbursing agents collected and paid out approximately $5.5 14 million of individual Indian money? 15 A. That's correct. That was -- 16 Q. I'm sorry. Go ahead. 17 A. That was actually one of the documents that struck me like 18 the 1926 number for total IIM as being out of bounds with 19 everything else, and in fact, I had mentioned it to NORC that 20 this number did not strike me as a realistic number based on 21 everything else we saw. 22 Q. So you put it on your chart, but you told -- 23 A. I felt obligated to put it on our chart rather than ignore 24 its existence. It seemed to me that that was my only options: 25 I would either put it on or say that, well, you know, try to Jacqueline M. Sullivan, RPR Official Court Reporter 877 1 hide it. 2 Q. So any number, even if it was unrealistic to you, was 3 included on this chart? 4 A. And it was reported to NORC in particular as what they call 5 an outlier as something that does not make sense. 6 Q. Okay. Have you ever looked at that particular statute, the 7 one you've referenced as the Sundry Civil Appropriations Act? 8 A. Yes, I have. 9 Q. If we could look at Exhibit 125. Focus in on the 10 highlighted language. If you could look at that. Is that your 11 understanding of what you read? 12 A. Yes, it is. 13 Q. And basically as I understand it there's three 14 requirements: Number one, it's got to be public money, right? 15 A. Um-hmm. 16 Q. Does it reference public money in there? 17 A. I'm sorry. Were you asking something? I wasn't aware that 18 was a question. 19 Q. Proceeds are public property? 20 A. Correct. 21 THE COURT: Are you asking him about the meaning of a 22 statute, counsel? Why don't you just assert what the meaning is 23 and move on. 24 MR. SMITH: Okay, sure. I'll do that. 25 BY MR. SMITH: Jacqueline M. Sullivan, RPR Official Court Reporter 878 1 Q. Is it fair to say that it's supposed to be public money 2 that's not paid into the general Treasury, correct? 3 A. Yes. 4 Q. And it's they're required to provide a detailed accounting, 5 is that fair? 6 A. Detailed account of all the payments, yes. 7 Q. Okay. So if we take that $35.5 million number, did you 8 ever see a detailed account supporting it? 9 A. No. 10 Q. On any of the receipt and disbursement figures that you 11 have in your report for 1922 through 1949, did you ever see that 12 detailed account information? 13 A. What I was able to get, most of these are from House of 14 Representatives. I believe we located most of these documents 15 and records of the House of Representatives were just the 16 summary reports, but I can't say that a detailed accounting did 17 not serve as the basis for the report. 18 Q. Okay. 19 A. I did not locate detailed accounting, but that's not to say 20 that one did not exist. 21 Q. And that was my question, did you ever see in all your 22 research did you ever see the detailed account statement 23 supporting your figures? 24 A. I did not. 25 Q. Let's look at DX 414-1. And looking again at page two, the Jacqueline M. Sullivan, RPR Official Court Reporter 879 1 $5.5 million figure. 2 A. Yes. 3 Q. And that's the number you adopted in your report because 4 you felt you had to tell everything; is that correct? 5 A. That's correct. 6 Q. You didn't include a footnote on your report that says this 7 doesn't look right, it looks low? 8 A. No. I mentioned that to NORC and FTI. I mentioned it as 9 something that didn't strike me as right in the same manner that 10 I mentioned the 1926 total figure. 11 Q. If we could look at Exhibit 126, please. Does this appear 12 to be an annual report for 1922? 13 A. It does. 14 Q. The same year you have that $5.5 million figure? 15 A. It does. 16 Q. I'm sorry? 17 A. It is, yes. 18 Q. And if we could look at pages 21 to 22. Do you see a 19 section starting oil and gas in the five civilized tribes? 20 A. Yes. 21 Q. If you could turn to the next page. And is there a number 22 there for oil and gas for 1922 for restricted Indians? 23 A. Yes. 24 Q. That's almost 3.9 million? 25 A. Correct. Jacqueline M. Sullivan, RPR Official Court Reporter 880 1 Q. So roughly $3.9 million of the 5.5 would come from one 2 tribe, is that fair? 3 A. Yes. And I'm sure adding Osage would push it over. 4 Q. And how many allotted Indian tribes were there at that 5 time? 6 A. At that time how many allotted? There would be a total of 7 118. But by that point it would be some number less than 118. 8 Q. Okay. And if you look at page 24, in fact, is there a 9 number there for Osage of 22.1 million? 10 A. Yes, there is, but that's of course not all allotted I 11 don't believe, but I don't. 12 Q. But don't know? 13 A. No. 14 Q. So is it fair to say that the numbers that are reported by 15 the disbursing agents may or may not be accurate, is that fair? 16 A. In the case of 5.5 million, you know, I did believe it was 17 accurate but also I didn't feel that I could withhold it just 18 because I felt it was inaccurate. I didn't think that would 19 be -- I just didn't feel that would be right, to withhold a 20 number just because it was inaccurate. 21 Q. On that point -- can we look at DX 483? The figure for 22 1969, and you have a figure if we could focus in on 1969 would 23 be the next page, and do you see it says IIM system funds and 24 banks, $40.8 million? 25 A. Yes. Jacqueline M. Sullivan, RPR Official Court Reporter 881 1 Q. And go ahead to the right. IIM system funds invested in 2 government securities, $29 million roughly? 3 A. Um-hmm. 4 Q. And total IIM funds, $69.8 million. 5 A. Correct. 6 Q. And if we could look at DX 72. This is an Office of Survey 7 and Review Audit Operations dated 1969. Do you see that? 8 A. Yes, I do. 9 Q. And that's one of the documents you've used in your 10 calculations, is that fair? 11 A. That's correct. 12 Q. If we could look at 72-4. Focus in on the highlighted 13 language. It says the individual Indian money account system 14 has many attributes of a commercial banking operation. Some 15 pertinent statistics are cash receipts are running at the rate 16 of $121 million per year. Do you see that? 17 A. Yes. 18 Q. That's roughly twice your balance number; is that correct? 19 A. Yes, but money is being disbursed. I guess I don't see the 20 ... 21 Q. Did you include that under Receipts under 1969? 22 A. The $121 million? 23 Q. Yes. 24 A. No. 25 Q. Can you tell us why you didn't? Jacqueline M. Sullivan, RPR Official Court Reporter 882 1 A. I can only think that I missed it. 2 Q. So you didn't tell Dr. Scheuren that there were $121 3 million of receipts in 1969? 4 A. No. 5 Q. Certainly that would be important information you would 6 want to convey to him to get accurate information? 7 A. Yes. 8 Q. Is that correct? 9 A. Yes. 10 Q. When we're looking at these receipt and disbursement 11 information that you've taken from these reports, these 1906 12 statutory reports, do you consider the fact that Interior 13 commonly used the phrase "disbursement" to mean not only money 14 disbursed to individual Indians but also put into banks on their 15 behalf? 16 A. Please say that again. Where are you looking, at the 1906 17 act reports? 18 Q. Right. You've referred to these 1906 reports, that all 19 they have are receipts and disbursements? 20 A. Correct. 21 Q. No backup documentation, correct? 22 A. That's right. 23 Q. And did you consider that perhaps Interior commonly used 24 the word "disbursements" to be not only money given to the 25 individual Indians but also put into banks or invested on their Jacqueline M. Sullivan, RPR Official Court Reporter 883 1 behalf? 2 A. I can only go by what the report itself said. 3 Q. Okay. Have you seen instances where the phrase 4 "disbursements" doesn't mean actually disbursed to an individual 5 Indian? 6 A. Yes. 7 Q. If we can look at Exhibit 87. And this is a 1918 annual 8 report; is that fair? 9 A. Yes. 10 Q. If we could look at page 459. And do you see this is a 11 part of the report dealing with the five civilized tribes, do 12 you see that at the top of the page? 13 A. I do. 14 Q. And go ahead and scroll down. And there's a section 15 beginning "disbursements" on that page. Do you see that? 16 A. I do. 17 Q. And if we could go to page 460. And do you see toward the 18 bottom of the page highlighted it's talking about disbursements 19 for individual Indian and miscellaneous monies? 20 A. Yes. 21 Q. And it has $1.7 million paid to Indians, and then $5.5 22 million for the purchase of liberty loan bonds, and $294,000 for 23 the purchase of war savings stamps. Do you see that? 24 A. I do. 25 Q. If we could go on to the next page. And look at the top Jacqueline M. Sullivan, RPR Official Court Reporter 884 1 half of the page. And then it talks about other Indian monies 2 paid to Indians, 631,000, again the purchase of liberty loan 3 bonds, five thousand, purchase of war savings stamps, $208,000, 4 and they total it up for total disbursements. Do you see that? 5 MR. SIEMIETKOWSKI: Your Honor, same objection as 6 before. Again, we fail to see the relevance of an examination 7 regarding liberty loans and war savings stamps. 8 MR. SMITH: Your Honor, these are investments of IIM 9 money and they're characterized in the investments as 10 disbursements. 11 THE COURT: Overruled. 12 BY MR. SMITH: 13 Q. And my question is, they use the term "disbursements" but 14 sometimes when they're talking about disbursements they're 15 simply talking about money used to invest IIM funds, is that 16 fair? 17 A. But you're also relating to the 1906 act. 18 Q. Let's talk about this first. 19 A. Okay. 20 Q. In this context the disbursements include investments on 21 behalf of the Indians? 22 A. Yes. 23 Q. Do you know how they use the term "disbursements" under the 24 1906 act, whether they're talking about money actually disbursed 25 to an individual Indian or simply disbursed on their behalf? Jacqueline M. Sullivan, RPR Official Court Reporter 885 1 A. My understanding of the 1906 act is what it says, and that 2 is, the general monies that were not paid into the general 3 Treasury of the United States or disbursed from it. 4 Q. Right, and that could include money simply placed into a 5 bank; is that correct? 6 A. I don't know. I couldn't answer that. 7 Q. You don't know? 8 A. I don't know. 9 Q. Because you've never seen any documentation at all to 10 support those disbursement numbers, correct? 11 A. That's correct. 12 Q. If we could look at, moving ahead, 1968. I'm sorry. On DX 13 483, the bottom of the page 1968. Can you focus on the bottom 14 line? Maybe you can't. Okay. 1968, it begins $41 million, 15 $41.8 million? 16 A. Yes. 17 THE COURT: What's the heading on that column? 18 MR. SMITH: Yes, if we could get that. 19 BY MR. SMITH: 20 Q. $41.8 million is -- 21 THE COURT: System funds in banks, isn't it? 22 BY MR. SMITH: 23 Q. Do you see that, Dr. Angel? 24 A. I do. 25 Q. And then the next item, Invested in Government Securities, Jacqueline M. Sullivan, RPR Official Court Reporter 886 1 $29 million? 2 A. I do. 3 Q. And then total IIM system funds, $66 million. Do you see 4 that? 5 A. I do. 6 Q. Can you tell me how $41 million plus $29 million totaled 7 $66 million? 8 A. We took that figure from two different documents. One was 9 the GAO report, I believe, and the other was a congressional 10 report, and they are for two different time periods. The GAO 11 report, if I remember it correctly, was September, and I could 12 be wrong. I could have these reversed, but the report to the 13 House of Representatives was from an earlier period. I felt the 14 most accurate way to represent that was by doing it this way, 15 but the two figures come from two different documents. 16 Q. Okay. Both documents come from 1968? 17 A. Correct. 18 Q. And one document, whatever it is, shows a total IIM system 19 funds of $66 million? 20 A. That's correct. I believe that's a General Accounting 21 Office report. 22 Q. And then the other two documents show closer to $71 23 million? 24 A. Yes. I believe that's the House of Representatives report. 25 Q. So you elected to make sure you put the lower amount under Jacqueline M. Sullivan, RPR Official Court Reporter 887 1 total IIM system funds; is that correct? 2 A. Well, it comes from different time periods, and I believe 3 that the GAO report, and it was correct to the fiscal year, 4 which is what we were using, but I also felt that in fairness I 5 had to include everything. Again, that's why we have those, the 6 three different figures in there. 7 Q. And now did you tell Dr. Scheuren that actually at one 8 point in time during the year the total IIM system funds were 9 $71 million? 10 A. We did talk about that, yes. Again, I don't know if it was 11 specific may I say NORC? 12 Q. Okay. We've talked a little bit about things you excluded 13 from your data. And one was that 1969 report, the one we talked 14 about, the $120 million plus on receipts, correct? 15 A. Correct. 16 Q. Okay. Now you've talked this afternoon a little bit about 17 some of the reports that came out in 1914, '15, '16, that had 18 some statistical data on individual Indian money; is that 19 correct? 20 A. The commissioner's reports. 21 Q. That's correct? 22 A. Yes. 23 Q. If we could look at Exhibit 130. Is that the 1916 24 commissioner's report? 25 A. It is. Jacqueline M. Sullivan, RPR Official Court Reporter 888 1 Q. And look at page 169. If you focus in up at the top you 2 actually have a chart for sales of Indians allotted lands during 3 fiscal year ended June 30, 1916. Do you see that? 4 A. I see it. 5 Q. And for noncompetence and inherited land sales? 6 A. Yes. 7 Q. And as totaled by year. You can figure out what was sold 8 and what the proceeds were; is that correct? 9 A. Yes. 10 Q. Is this information that you could use in determining IIM 11 funds for that particular year? 12 A. Not if we don't know what's paid directly to an individual 13 and what is not. 14 Q. Okay. Noncompetent sales, are you dealing with 15 individuals? 16 A. We are, yes. 17 Q. How about page 112. And here we're looking at least 18 agricultural land, and you see there's a section there for 19 allotted? 20 A. I do. 21 Q. And shows what the income was? 22 A. I do. 23 Q. Does that income reflect individual beneficiary income for 24 that particular year? 25 A. I don't know. I don't know what's paid directly to an Jacqueline M. Sullivan, RPR Official Court Reporter 889 1 allottee and what -- there were direct pay provisions, so I 2 accept the $2,600,000 figure as revenue for allotted lands, but 3 I can't say how much of that was paid directly and didn't hit 4 the IIM system. 5 Q. Now, are you telling me that Interior actually kept records 6 of direct pay transactions? 7 A. What I'm saying is that this is a total figure. 8 Q. Well, that's my question: Did Interior keep records of 9 direct pay transactions? 10 A. I do not know. 11 Q. Let's go to page 117. Same thing for glazing lands, you 12 can figure out what was leased, what was allotted, and what the 13 income was, is that fair? 14 A. That's correct. 15 Q. Okay. Go to page 174. And you have the same table for 16 mining; is that correct? 17 A. Yes. 18 Q. And it shows what the revenue was, advanced royalties, 19 royalty on production, bonuses; is that correct? 20 A. That's correct. 21 Q. If you look down at footnote two at the bottom, it tells 22 you whether it's unallotted or allotted land? 23 A. Yes. 24 Q. Now, all of this information you don't include in your 25 chart, do you? Jacqueline M. Sullivan, RPR Official Court Reporter 890 1 A. No. And I don't, you know, if I cannot distinguish what's 2 paid directly and what's not paid directly, no, I can't. It's 3 not, that's my point, is that I can simply include revenue and 4 equate it to receipts into the IIM system. 5 Q. Now tell us where in this report this money is being paid 6 directly rather than into the system. 7 A. I don't know. 8 Q. Can you tell me where in this report or any other report it 9 says they're keeping records, Interior is keeping records of 10 direct pay transactions? 11 A. I know Interior has kept records earlier regarding the 12 number of allotments that receive direct pay, but I can't in 13 this report, no, but these are revenue figures, not receipt 14 figures. 15 Q. Let's talk a little bit about the history of the 16 disbursements. Isn't it fair it was quite common during the 17 early periods of this trust to withhold money from 18 beneficiaries? 19 A. Please explain that. 20 Q. Sure. If you are a minor you didn't get your money, 21 correct? 22 A. If you're a minor -- 23 Q. The government kept your money in trust? 24 A. There were provisions for making some disbursements, but, 25 yes, it was kept in trust. Jacqueline M. Sullivan, RPR Official Court Reporter 891 1 Q. If you were incompetent the money was kept in trust except 2 for certain disbursements; is that correct? 3 A. Correct. 4 Q. They didn't hand over the money to people they considered 5 incompetent; is that correct? 6 A. Correct. 7 Q. And I mean, is it -- I want to be careful about what I say, 8 but at that time in U.S. history if you were considered white 9 you were competent; if you were Indian, more than fifty percent 10 Indian blood, you were not, is that fair, is that common? 11 A. Please tell me what period we're talking about. 12 Q. 1909/1910 that was the standard, wasn't it, you were 13 presumed to be incompetent if you had more than fifty percent 14 Indian blood? 15 A. Quite often that was the case by 1909. 16 Q. And it was a different age? 17 A. Yes. 18 Q. And so if you had more than fifty percent Indian blood you 19 were treated as incompetent and the government withheld your 20 money and gave you periodic disbursements, correct? 21 A. That's correct, in 1909. 22 Q. Do you recall when that standard was eliminated? 23 A. By about 1917 when Kayto Cells was commissioner of Indian 24 Affairs he issued a declaration of policy. We very much 25 loosened disbursement regulations, did not abolish them but Jacqueline M. Sullivan, RPR Official Court Reporter 892 1 loosened them up. It wasn't until about 1951 when most 2 everything was taken off, most of it. Nonetheless, so saying 3 there were within the IIM regulations various provisions that 4 would allow a superintendent to disburse more money under 5 specific circumstances: the need to buy agricultural supplies; 6 things of that nature. 7 Q. So the disbursement of the money wasn't unrestricted until 8 the 1950s? 9 A. That's correct. 10 Q. Except for Osage? 11 A. With Osage I know that quite a bit of money was paid 12 directly. We read that through the historical record. 13 Q. Let's look at Exhibit 85. How about 86? I'm sorry. 14 Exhibit 86 appears to be the 1909 annual report for Interior? 15 A. Yes, it does. 16 Q. If we could look on page 67. If you could focus in on the 17 highlighted language. Just take a look at that. 18 MR. SIEMIETKOWSKI: Objection, your Honor, relevance 19 in terms of what the policy was for payment. 20 THE COURT: Sustained. We've seen this before anyway. 21 Tie this to receipts and disbursements, but let's not dwell on 22 this. 23 BY MR. SMITH: 24 Q. Is it fair to say, Dr. Angel, that you would not expect 25 disbursements to equal receipts in those early years when you Jacqueline M. Sullivan, RPR Official Court Reporter 893 1 had these restrictions on Indian money? 2 A. What period again, please, Mr. Smith? 3 Q. Beginning 1909 through, say, 1930. 4 A. We would not expect to see receipts, equal disbursements, 5 equal receipts. 6 Q. Right, for all the money received to be disbursed? 7 A. I don't know that that's the case at all. 8 Q. Let's look at Exhibit 91. Looking at the 1915 report, do 9 you see that? 10 A. I do. 11 Q. Pages 376 to 377. Focus in on the section marked 12 Individual Funds. This is the one we looked at before, but does 13 it reflect -- I'm sorry. If you could actually go take it away 14 off the highlighting. Go on to the -- go to the next page. 15 Okay. This is the wrong document. Let's go forward. If we 16 could look at Exhibit 131, please. Does this appear to be an 17 annual report of the commissioner of Indian Affairs for 1929? 18 A. It does. 19 Q. And if we could look at page 20. And you see there's a 20 section on the five civilized tribes. And there is $14 million 21 taken in and only $4.8 million disbursed? 22 MR. SIEMIETKOWSKI: Objection, your Honor; relevance 23 and cumulative. 24 THE COURT: Overruled. 25 THE WITNESS: It says during the fiscal year there was Jacqueline M. Sullivan, RPR Official Court Reporter 894 1 disbursed from the restricted individual Indian monies the 2 aggregate sum of $4,869,000, but this is from restricted funds, 3 right, so there could be other individual Indian monies 4 disbursed. 5 BY MR. SMITH: 6 Q. Okay. Okay. 7 MR. SMITH: Your Honor, I have another maybe thirty, 8 forty minutes. Do you want to stop for today or do you want me 9 to go forward? 10 THE COURT: I'm tempted to just let you play the whole 11 thing out today, counsel, but we have a criminal matter right 12 behind you that they've been waiting for half an hour for you to 13 finish. 14 MR. SMITH: Okay. 15 THE COURT: In vein. We'll recess until tomorrow 16 morning at 9:30. 17 (Proceedings adjourned at about 4:59 p.m.) 18 - - - 19 20 21 22 23 24 25 Jacqueline M. Sullivan, RPR Official Court Reporter 895 1 I N D E X 2 3 WITNESSES: 4 5 EDWARD ANGEL, Ph.D 6 Direct Examination by Mr. Siemietkowski Cross-Examination by Mr. Smith 7 8 9 10 E X H I B I T S 11 Defendants' 12 Exhibit No. Identification Marked Admitted 13 DX483- 826 14 DX490 15 All 826 DX 300s 16 and DX 400s 17 18 19 20 21 22 23 24 25 Jacqueline M. Sullivan, RPR Official Court Reporter 896 1 CERTIFICATE 2 I, JACQUELINE M. SULLIVAN, Official Court Reporter, 3 certify that the foregoing pages are a correct transcript from 4 the record of proceedings in the above-entitled matter. 5 __________________ JACQUELINE M. SULLIVAN 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Jacqueline M. Sullivan, RPR Official Court Reporter