For additional information on this lawsuit, please see this page

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FIRST ARTICLE

Fraud in New Mexico

By Scott Patterson
December 3, 2004

An investigation by SmartMoney.com has found that officials in the Bush administration had detailed knowledge of fraudulent practices that allowed energy companies to cheat impoverished Native American Indians out of vast sums over dozens of years. These officials were aware that employees of the federal government were helping oil and gas companies underpay to operate on Indian lands in the state of New Mexico � and did nothing to stop it. This is the first in a two-part series.

ON A FRIDAY AFTERNOON IN August, Air Force One ascended above the town of Farmington, N.M. Enthusiastic supporters of the president fanned out of Rickets Park in the center of town waving Bush-Cheney placards. The police cars and motorcycles blocking the streets from traffic during George W. Bush's brief visit switched off their lights and drove away. Normalcy returned to Farmington.

For Ervin Chavez, president of the Shii Shi Keyah Allottee Association (shii shi keyah is Navajo for "this is my land"), normalcy means another day fighting against the federal government and big industry for Native American rights. In his darker moods, he despairs that it's a fight he'll never win.

"You think it would get better someday, and it only gets worse," Chavez says from behind his gold square-framed glasses in a near-empty Farmington restaurant a few hours after the president's plane had taken off.

Just beyond this small city in the northwest corner of New Mexico, normalcy means bitter poverty for the tens of thousands of Native Americans who live in a barren desert region known as the Checkerboard. Many of these Navajos � referred to as "allottees" because they reside on individual Indian allotments separate from the large Navajo Nation to the west � live in abject poverty, can't read or speak English and have no convenient access to telephones, schools or health-care facilities.

In the face of such stark facts are recent allegations that oil and gas companies have cheated these people out of enormous sums over the years, while the federal government has stood idly by. The Department of the Interior is the subject of a $100 billion class-action suit brought by the allegedly injured parties. Cobell v. Norton1, originally filed in 1996 when Bruce Babbitt was Interior Secretary (current secretary Gail Norton is the defendant now), is the largest class-action lawsuit in U.S. history in dollar terms.

Chavez, a Navajo from the Checkerboard, doesn't seem surprised by the charges. A member of a class-action suit that led to several reforms concerning energy companies' use of Indian land in the 1990s, Chavez has battled industry and government for most of his life.

"You can prove the federal government is wrong," he says. "But the federal government will spend whatever it wants to and lie however it wants to, and it will go to whatever extent it can to prove that it's in the right."

Chavez cites the case of Kevin Gambrell, former director of the Farmington Indian Minerals Office (FIMO), an Indian-outreach office overseen by the Interior Department. Last year, Gambrell was fired from his position, ostensibly for destroying documents (the charge has never been proven). Gambrell sued the government under the Whistleblowers Protection Act and won an undisclosed settlement. Gambrell is not allowed to speak with the media under the terms of that settlement.

"They totally set him up," says Chavez. "We trusted Kevin. People went to him and asked what was wrong with their [Individual Indian] accounts, and he would find out...Kevin was victimized for being too nosy."

Patrick Etchart, spokesman for the Minerals Management Service (MMS), the branch of the Interior Department that oversaw FIMO, says he can't discuss Gambrell's case because of the settlement agreement.

The government has never explained why it settled Gambrell's case, but critics such as Chavez and the Project on Government Oversight2, a government watchdog group based in Washington, D.C., say Gambrell was fired because he discovered fraudulent government auditing of oil and gas royalty payments made by companies operating on Indian land, and systematic underpayments of other fees.

An affidavit3 filed Thursday with a federal court shows that Gambrell wasn't alone in discovering such practices in New Mexico.

"I no longer can remain silent"

SmartMoney.com has investigated charges that the federal government has helped oil and gas companies deceive and cheat impoverished Navajo Indians in New Mexico for dozens of years. When evidence of these activities came to light in 2003, the Bush administration attacked the messengers, including Gambrell, and took extraordinary measures to protect the individuals implicated in the scheme.

In August 2003, Alan Balaran, the special master4 overseeing the Cobell v. Norton suit, filed a report with the U.S. district court alleging that the Bureau of Indian Affairs (BIA) was approving lowball deals for pipeline companies using Indian property on the San Juan Basin of New Mexico. These deals were at times 90% less than what private and tribal landowners were receiving for comparable rights-of-way payments, the report charged.

Balaran found that Indian allottees on the Checkerboard generally received $25 to $40 per rod for rights-of-way easements crossing their land. (A rod, a metric for measuring pipeline length, is 16.6 feet.) Tribal and private landowners, however, often received compensation at rates ranging from $140 to $575 per rod, according to the report. A rancher with land in Bloomfield, N.M., told SmartMoney.com that he received more than $1,000 a rod for three major pipelines crossing his property (see the pipeline agreement here5

SmartMoney.com has learned that senior officials in the Interior Department knew at least a year before special master Balaran submitted his report that oil and gas pipeline companies were getting sweetheart deals on Indian land � and turned a blind eye.

According to Thursday's affidavit filed with the court hearing the Cobell lawsuit, the federal employee who unearthed these practices was allegedly ignored by her superiors after she notified them about what she found. Deborah Lewis, an appraiser with the Office of the Special Trustee for Native Americans (OST), discovered these allegedly fraudulent activities during a four-month assignment as acting regional appraiser at the Navajo Regional Office in Gallup, N.M., in 2002. Lewis also found evidence of document destruction by the chief appraiser of that office, Anson Baker. (The OST, organized by Congress in 1994 under the Indian Trust Reform Act to manage Indian trust assets, took over the Office of Appraisal Services from the Bureau of Indian Affairs in June 2002.)

Lewis notified several of her superiors about her findings, and was ignored, according to her statement, a court document filed under penalty of perjury. Now, after two years of silence, Lewis � a Navajo Indian from Torreon, N.M., a small town in the Checkerboard � has decided to tell the court what she found. "I no longer can remain silent as others do at the Interior Department and the Justice Department about the misconduct of Baker," Lewis states in her affidavit.

A spokesman for the Interior Department wasn't immediately available for comment.

"Preposterous Charges of Government Conspiracy"

The Cobell v. Norton lawsuit, in which non-reservation Native American plaintiffs are suing the federal government for more than $100 billion in lost, stolen and uncollected trust funds, is the largest class-action case in U.S. history in dollar terms. Elouise Pepion Cobell, a member of the Blackfeet tribe in Montana, is the lead plaintiff in the suit.

Much of the trust funds' shortfall is related to royalties and fees paid by energy companies operating on Native American land such as the Checkerboard in New Mexico. The Checkerboard, so-called because it was divided into separate blocks of individual Indian property by the General Allotment Act of 1887, sits atop the San Juan Basin, the largest supplier of natural gas to the state of California. Native Americans received $71.5 million in mineral royalties in New Mexico in 2003, according to the MMS, which tracks mineral-extraction companies operating offshore and on state, federal and Indian land. That amount doesn't include fees paid for rights-of-way, the overall figure for which isn't disclosed by the government.

Oil and gas companies such as Apache (APA6), Burlington Resources (BR7), BP (BP8), El Paso Natural Gas, a unit of El Paso (EP9), ChevronTexaco (CVX10) and Transwestern Pipeline Co., a former subsidiary of Enron, have major industrial operations in the San Juan Basin. El Paso is the biggest transmission pipeline company in the U.S.; its El Paso Natural Gas and Mojave Pipeline, which extends from the San Juan, Permian and Anadarko Basins to several markets in the West, is 10,600 miles long. Burlington is the region's top supplier of natural gas, with 7,300 operating wells and 4,300 nonoperating wells, according to its 2003 annual report. Burlington ships most of its natural gas through contracts with pipeline companies such as Transwestern. (SmartMoney.com spoke with a number of energy companies that do business on the San Juan Basin. None of them admitted to improper actions on Indian land.)

The Farmington, N.M., field office of the Bureau of Land Management, which controls permit applications for the San Juan Basin, has approved more rights-of-way historically than any other field office in the U.S., according to a spokesman for the agency.

Considering these facts, allegations that energy companies are underpaying to use Indian land is no trivial matter. Millions of dollars in future fees, as well as back interest on unpaid fees, are at stake.

Perhaps that's why, say critics of the administration, its response to the special master's August 2003 report was so strong.

After the report was filed, Interior Department spokesman Dan Dubray told the trade journal Gas Daily that "we believe the report is faulty and biased. The special master has no authority or expertise on appraisal issues."

Soon after learning of Balaran's investigation into the dealings of energy companies on Indian land, lawyers with the Department of Justice's civil division filed a motion to disqualify him. (The DOJ declined to comment as to whether there was a connection between the special master's report and its motion to have him removed.)

Balaran resigned a day before the district court of appeals was scheduled to hear the government's case against him. His presence had become a distraction to resolving the case, he said in his April 5, 2004, resignation letter filed with the court, since the government seemed determined to remove him at all costs. (Interior spokesman Dubray, in a recent interview with SmartMoney.com, falsely asserted that a federal court of appeals had removed Balaran as special master. When challenged, Dubray acknowledged that the court of appeals in fact had yet to decide the motion. Since then, the motion � in which the government was trying to have the special master removed from a position he'd already vacated in order to discredit his reports � has been dropped.)

In his resignation letter, Balaran said his discovery that the government was covering up activities by energy companies was the true reason the administration wanted him removed.

"Interior's disqualification attempts stemmed from events that took place several months earlier, beginning with my March 6, 2003, visit to the Office of Appraisal Services of the Navajo Regional Office in Gallup, New Mexico," Balaran wrote, citing the same office that OST appraiser Lewis had worked at during her four-month assignment in 2002.

"I began to uncover evidence that Interior was putting the interests of private energy companies ahead of the interests of individual Indian beneficiaries," he continued. The government could not afford to allow his findings to be disclosed, Balaran wrote, since they "could cost the very companies with which senior Interior officials maintain close ties, millions of dollars."

The Interior Department said in a statement that Balaran's allegations were "preposterous charges of government conspiracy...based entirely on innuendo, supposition and baseless speculation."

Balaran concluded the letter by calling for an investigation into his findings. To date, there has been no investigation, although the report still stands before the court. The plaintiffs' attorneys plan to ask the court to initiate an investigation. The Lewis affidavit, they believe, could persuade the court to act. Dennis Gingold, lead attorney for the plaintiffs, says the affidavit "confirms Balaran's report is accurate."

An Ethical Quagmire

Top officials at the Interior Department, which helps to regulate the nation's natural resources, parks and Native American population, have longstanding ties to the industries it oversees.

Gail Norton, sworn in as Secretary of the Interior in January 2001, previously worked as a lawyer for Mountain States Legal Foundation, a lobbying group funded primarily by the energy industry and land developers. As a private attorney in Colorado, she frequently represented energy and timber companies in environmental litigation. Norton was also a former lobbyist for NL Industries (NL11), a Dallas-based chemical company. The Denver law firm Norton worked for before becoming secretary, Brownstein Hyatt & Farber, represented, among others, the Shaw Group (SGR12), a Baton Rouge, La., maker of pipeline parts for oil companies and power plants.

Assistant Secretary of the Interior J. Stephen Griles is a veteran lobbyist for the energy industry, and continues to receive $284,000 a year from a lobbying firm he worked for before he joined the Bush administration. His tenure has been marred by allegations of illicit meetings with former energy and mining clients, and has been called an "ethical quagmire" by Interior's inspector general.

Rebecca Watson, Assistant Secretary of the Interior for Land and Minerals Management, served on the national litigation board of Mountain States Legal Foundation from 1999 to 2002. The foundation has a record of fighting Indian religious rights and affirmative-action laws.

Vice President Dick Cheney was formerly the chief executive of Halliburton (HAL13), which has extensive operations on the San Juan Basin through its Halliburton Energy Services Group subsidiary. Cheney has received at least $398,548 in deferred compensation from Halliburton since taking office in January 2001.

During the 2000-04 election cycle, oil and gas companies contributed $62.5 million to the Republican party and $15.8 million to the Democratic party through the third quarter of 2004, according to data compiled by the nonpartisan Center for Responsive Politics.

Jeff Ruch, executive director of Public Employees for Environmental Responsibility (PEER), a Washington, D.C., nonpartisan organization that represents whistle-blowers in the federal government, says the administration's pro-energy agenda has resulted in extraordinary pressure being placed on federal employees to toe the party line.

"More so than previous administrations, this current administration appears to be into information control in presenting a united front and speaking with one voice," says Ruch.

The result has been a spike of filings under the Whistleblowers Protection Act, says Ruch, since employees such as FIMO's Gambrell are often marginalized or retaliated against when they disagree with the administration's pro-energy policies. A recent report by PEER found that the number of whistle-blower cases in the federal government has nearly doubled since 2001. Many of those cases have come out of the Interior Department.

The chain of events described in Lewis's affidavit fits in squarely with the theme of an oppressive environment inside the Interior Department. Despite the fact that she repeatedly told her superiors about widespread document destruction, as well as the undervaluation of Indian land, she was systematically ignored, according to her statement. Even after the special master report of August 2003 went public, sending ripples through the Interior Department and garnering attention in the national press, not one of her superiors questioned her about her findings at the Navajo Regional Office.

"To this date � after repeated requests that I made for assistance...I have never been asked a single question or received a single response to my repeated expressions of concern" about Baker's conduct and evidence of widespread abuse of Indian land, Lewis states.

Lewis's experience also squares with the results of a recent survey of Interior Department employees by the Office of the Inspector General (OIG), which investigates and evaluates the operations of the federal government. The OIG described the results of the survey, which was released in July, as "unsettling and profound." One employee reported that "if you tell management what they don't want to hear, you're punished." Another described the Interior Department as having a "culture of fear."

Given these facts, Balaran's report, the government's response to it and the organized efforts to defend Baker, critics allege that the administration is actively protecting the financial interests of a key constituency � the energy industry.

"I don't think it's any surprise that some of the policy players that have high influence in this administration are the energy companies, and [Balaran's report] implicated them," says Keith Harper, an attorney with the Native American Rights Fund (NARF), which represents Cobell. Balaran's report is a threat to the government and to the energy industry, says Harper, because it contains "specific evidence that these companies are ripping off Indians."

"The administration knows that if they got [Chief Appraiser] Baker up in front of a court and started questioning him, they would find that this isn't just Anson Baker, this is systematic," says one source who wishes to remain anonymous. (The plaintiffs' attorneys deposed Baker on March 21, 2004. A second deposition is scheduled, according to sources familiar with the matter. Lewis clearly states in her affidavit that she believes Baker committed perjury in his deposition.)

"You start peeling this back, this is like an onion," says the plaintiffs' attorney Gingold. "You peel each level back, you expose the fraud and corruption."

Critics of the government acknowledge that the mishandling of Indian trust funds has run rampant under Democratic and Republican administrations alike. The first defendant in the Cobell litigation was Bill Clinton's Interior Secretary, Bruce Babbitt, who was held in civil contempt by the court for failing to produce court-ordered records. These critics also say efforts to remedy the situation have been actively stymied by the Bush administration.

Accusations of a unified effort by the Bush administration to obstruct, delay and refute the outcome of the trial come not only from opponents of the government in the Cobell case, but also from the very judge hearing that case, Royce Lamberth.

"Has Secretary Norton decided to declare war on the Indians in this litigation?" Judge Lamberth asked Sandra Spooner, the Department of Justice attorney representing the administration, in a September emergency hearing concerning the government's move to withhold checks from trust beneficiaries. "It comes across as absolute, direct retaliation."

Norton, who has called the Indian Trust case the most vexing of her tenure, has denied charges that she is obstructing the case. Last year, however, Congress, under pressure from the Bush administration, voted to delay for a least one year an order by Judge Lamberth that the government conduct a full accounting of the trust records. Critics say Norton lobbied for that delay, an accusation her department has denied.

That year is almost up, however, and still no resolution has occurred. The plaintiffs' attorneys say they hope revelations of a cover up of illegal activities by officials in the Interior Department contained in Lewis's affidavit might help speed the process along.

* * * *

SECOND ARTICLE

An Ugly History

By Scott Patterson
December 7, 2004

INTERSTATE ROUTE 550 CUTS through the heart of northwest New Mexico, a sparse, rugged region dominated by huge mesas and a wide sky. There are no Wal-Marts (WMT1), Home Depots (HD2) or Rite-Aids (RAD3) here. There are no major hospitals, either.

Pipelines, oil drills and gas flares abound, however. The region, known as the Checkerboard, is located square atop the San Juan Basin, which supplies all of the natural gas used by Southern California.

Passing through, one might think this land is deserted. But just a few miles off the highway, down a dusty, unpaved road, a scattering of ramshackle houses and motor homes appears on the horizon. The inhabitants are Navajo Indians who live outside the official Navajo Nation reservation to the west. Referred to as "allottees," they own individual parcels of land created by the General Allotment Act of 1887. Navajo allottees are among the poorest ethnic groups in the U.S. According to a 2001 report by the Navajo Nation Division of Economic Development, 56.1% of Navajo people live below the poverty level, with per-capita income of $6,217 and an unemployment rate of 43.65%.

Major energy companies such as Apache (APA4), Burlington Resources (BR5) and ChevronTexaco (CVX6) do business on the Checkerboard, extracting natural gas, coal and oil from the huge mineral reserves in the San Juan Basin. With the price of natural gas and oil soaring during the past year, these companies have been posting record profits.

That's why allegations that the federal government has helped energy companies get sweetheart deals to operate on allotted Navajo land have captured the attention not only of Congress, but also of a federal district court in Washington, D.C. Testimony submitted to the court last week by an employee of the Interior Department alleges that a number of officials in the federal government were aware of these practices, possibly for years, and failed to stop them.

A Special Kind of Trust

Last Thursday, Deborah Lewis, an appraiser with the Office of the Special Trustee for American Indians (OST), a branch of the Interior Department, filed an affidavit8 with the U.S. District Court for the District of Columbia detailing allegedly illegal activities she uncovered in 2002.

Lewis's 18-page affidavit chronicling her assignment at the Navajo Regional Office of the Bureau of Indian Affairs in Gallup, N.M., reveals that she had found evidence of document destruction and improper appraisal methodologies that allegedly violated federal law and resulted in consistently low values for rights-of-way easements used by oil and gas companies on Indian land. (A rights-of-way easement is an agreement allowing a person, government or corporate entity the right to use private land.)

Lewis, herself a Navajo Indian from the Checkerboard with a master's degree in public administration from the University of New Mexico, found that the chief appraiser of the Navajo office, Anson Baker, had been approving rights-of-way appraisals for values ranging from $25 to $40 a rod on a major trunk pipeline. (A rod, the standard measurement for rights-of-way valuations, is a 16.6-foot length of pipe; widths can vary.) When Lewis asked Chief Appraiser Baker how he'd arrived at the $25 to $40 per-rod valuation, he was unable to give an adequate explanation, according to her affidavit.

Public records of pipeline rights-of-way agreements show that a $25-to-$40 per-rod valuation for a major trunk pipeline, as opposed to a much smaller gathering line, which transports natural gas or oil directly from a wellhead, is extremely low. Pipeline companies paid $37.9 million for rights-of-way in the U.S. in 2003, according to the trade magazine Oil & Gas Journal. According to construction-permit applications for pipeline rights-of-way filed with the Federal Energy Regulatory Commission (FERC), the average rights-of-way agreement came to $130.80 a rod in 2003.

In the San Juan Basin, a 36-inch-diameter pipeline � a major transportation pipeline � fetched an average of $469.20 a rod in 2003, according to FERC filings. Some private landowners in the San Juan Basin receive far more than the average, as Alan Balaran, special master overseeing the Cobell v. Norton class-action lawsuit9, found in his 2003 investigation of the appraisal office at Navajo. A rancher with land in Bloomfield, N.M., told SmartMoney.com that he received more than $1,000 a rod for three major pipelines crossing his property (see the pipeline agreement here10).

Appraisal regulations are laid out in the Uniform Standards of Professional Appraisal Practice (USPAP). Lewis believed that Baker was violating USPAP standards, according to her affidavit, since he was unable to produce any supporting documents to validate the $25-to-$40 valuations, and since Lewis suspected that $25 to $40 was much less than fair-market value.

In her attempt to find supporting documentation for previously approved appraisals, Lewis found that Baker, who'd worked at the Navajo office since 1984, had erased the database on his computer that contained his appraisal log and had made no hard copies, a violation of federal law and court orders mandating the protection of all records relating to Indian trust funds. Absent such records, the Indian beneficiaries are unable to determine whether they are getting the maximum value for their property, which the government is obligated to ensure as a matter of law, according to federal court rulings.

In a series of e-mails and conversations, Lewis described what she'd found at the Navajo Regional Office to several of her superiors. According to her affidavit, she received little to no response from these individuals, including her immediate supervisor, Eldred Lesansee, OST regional appraiser; Kenneth Rossman, OST Trust Funds chief of staff (Rossman has since resigned from the OST); Gabriel Sneezy, OST chief appraiser; and Steven Graham, BIA realty officer.

Dan Dubray is the Interior Department's spokesman on all matters related to the Cobell litigation. "It's premature to respond to anything that's in [the Lewis] affidavit," he says. "The department takes every issue raised in Cobell seriously, and we're going to conduct an internal investigation."

The fact that Lewis's superiors had been notified of potentially illegal conduct by a chief appraiser of the BIA � the destruction of trust-fund records, the inappropriate appraisal methodology � prompts the question about what they planned to do, if anything, about it.

"They Do Things Differently at Navajo"

Ross Swimmer, head of the OST and a former tribal leader of the Cherokee Nation, says in general he's "not at all happy with the way business is being done and was done" at the Navajo Regional Office. Swimmer says that while he doesn't dispute the allegations in Balaran's report � notwithstanding Interior spokesman Dubray's earlier charge that it was biased and faulty � he can't comment on any disciplinary action being contemplated against Baker.

As of press time, there has been no significant disciplinary action against any employees of the OST relating to Balaran's August 2003 report. Anson Baker remains a certified appraiser in four states and is chief appraiser of the OST's Portland Regional Office. Asked what he would do if he learned that other officials in the OST had knowledge that Baker had destroyed trust-fund documents and was using faulty appraisal methodologies, Swimmer said he "would have to look at disciplinary action." At the time of the interview, Swimmer apparently didn't know about Deborah Lewis.

Swimmer nevertheless challenges the notion that the companies were systematically paying less to the allottees for rights-of-way than they deserved, although he admits that in some cases the appraisals were too low.

"If you talk to some of those companies, you get a little different perspective," says Swimmer. "Their concern is, 'How do I get a right of way'? The price is inconsequential."

But Swimmer has claimed that there are good reasons to devalue allotted land. In his June 23, 2003, deposition with the federal district court hearing the Cobell v. Norton lawsuit, Swimmer argued that the involvement of the federal bureaucracy in the appraisal process "could decrease the value" of allotted land, since companies might theoretically have to spend more to obtain the rights-of-way.

Central to the government's argument that allottees justifiably receive less than tribal or private landowners is the fact that energy companies have the legal authority to file condemnation proceedings against allotted land. If a court finds in favor of the company, it then decides the fair-market value for the land, and the company pays it.

In his Navajo site-visit report, Balaran wrote that when he asked Chief Appraiser Baker why allottees receive a "value lower than the amount" paid for rights-of-way running across private and tribal land, Baker said he "did so out of concern that a valuation commensurate with the valuation of private and tribal holdings would invite protracted proceedings" by the energy companies seeking to condemn the land.

Steve Snyder, director of audit and a certified general appraiser with Rocky Mountain Valuation Specialists, an independent appraisal consulting company based in Lakewood, Colo., says that to devalue property based on the argument that it can be condemned is a violation of federal law. Such a practice "violates the Constitution in that we're entitled to due process, and it violates that spirit of the law that the government can't take property without proper compensation," says Snyder.

Snyder adds that using the threat of condemnation against Indian allottees to get a lower value for their land "sounds like coercion."

According to Lewis's affidavit, Steve Graham, a realty officer with the BIA at the Navajo Regional Office, claimed that the government didn't negotiate for higher values because "the oil and gas companies might sue the BIA." The following account details a conversation between Lewis and Graham in November 2002 � nine months before Balaran wrote his report:

Graham said that he knew that the appraised value of pipeline rights-of-way across Navajo allottee trust lands is much less than the amount that they should be paid. However, he said this is generally known and allowed because BIA officials were afraid that "the oil and gas companies might sue the BIA" if the pipeline rights-of-way were appraised higher than $25 per rod, the amount that the oil and gas companies told the BIA they were willing to pay. I was surprised by Graham's comments and asked him, "[I]sn't BIA's job to watch out for the best interest of the allottees?" Graham replied, "Well, they [at the BIA] do things differently at Navajo," and he turned his back and walked away.

An Ugly History

Alan Taradash, a lawyer with the Nordhaus law firm in Albuquerque, N.M., stares across his desk, fuming. Taradash, who has battled energy companies operating illegally on allotted Navajo land for decades, had recently finished a meeting with the former special master Alan Balaran in his office. He was clearly agitated.

"What the government did to the special master was perverse," Taradash says, pounding his meaty fist onto his desk. "To say that the guy who points out the problem is the problem, is perverse."

Balaran, who declined to comment, would no doubt agree. In his resignation letter, he noted that one of the most curious and revealing aspects of this entire case involves the decision by the government to hire two private attorneys to defend Baker in a deposition for the Cobell lawsuit.

The Lewis affidavit includes a foreword by the plaintiff's attorneys describing the unusual activities of Larry Jensen, an attorney with the Interior Department's Office of the Solicitor.

Immediately after Balaran's August 2003 site-visit report was filed with the court, Jensen, the No. 2 official in the Interior's Solicitor's Office, contacted Baker, according to the plaintiffs' attorneys.

"Conspicuously, Jensen called Baker not because he was alarmed that [Balaran] had documented the irreparable harm that Baker had inflicted on Navajo trust beneficiaries...Instead, Jensen called Baker to make sure that he kept his mouth shut and...volunteered to help him secure private counsel at taxpayer expense," the plaintiffs allege.

Jensen's efforts to protect Baker might have been for naught, however. (Jensen declined to comment.) The Lewis affidavit explicitly states that Baker, who was deposed by the Cobell plaintiffs on March 31, committed perjury in his deposition.

"Baker was permitted by government lawyers and senior Interior Department Officials to lie during his deposition," Lewis alleges on Page 18 of her affidavit. "I fear that he continues to act against the best interests of the trust beneficiaries."

Shii Shi Keyay spokesman Ervin Chavez thinks the government's extraordinary efforts to protect Baker show that it's trying to hide something.

"When you know the amount of money that is spent on people like Anson Baker, and you see that the federal government is paying all kinds of legal fees, you walk away from these depositions and you think, 'My gosh, you mean to tell me that the federal government is covering this up at all costs?'" says Chavez.

A spokesman for the Justice Department declined to respond to allegations that it tried to have Balaran removed because he was investigating the dealings of energy companies on Indian land.

Tiawagi Helton, a professor of Native American law at the University of Oklahoma who has followed the Cobell case, suspects the Bush administration has gone to such extreme lengths to stall prosecution of the case in order to protect the energy industry from any future litigation concerning its suspect practices on Native American lands.

"It's not money," says Helton. "The federal government spends and receives money with a sufficient number of zeroes that are difficult to fathom." The choice, he says, comes down to either virulent racism or protection of the energy industry.

"I'd like to think that 50 years after Brown v. Board of Education, we're far enough past virulent racism that we wouldn't be using the mechanisms of government in such an oppressive fashion," he says. "Which leaves us with protecting the oil and gas extraction industries."

1 http://www.indiantrust.com
2 http://www.pogo.org/p/environment/el-031101-oil.html
3 http://www.indiantrust.com/_pdfs/Notice12.pdf
4 http://dictionary.law.com/default2.asp?selected=1986&bold=special||master||
5 http://www.smartmoney.com/onthestreet/downloads/rancherrightofway.pdf
6 http://www.smartmoney.com/cfscripts/Director.cfm?searchString=APA
7 http://www.smartmoney.com/cfscripts/Director.cfm?searchString=BR
8 http://www.smartmoney.com/cfscripts/Director.cfm?searchString=BP
9 http://www.smartmoney.com/cfscripts/Director.cfm?searchString=EP
10 http://www.smartmoney.com/cfscripts/Director.cfm?searchString=CVX
11 http://www.smartmoney.com/cfscripts/Director.cfm?searchString=NL
12 http://www.smartmoney.com/cfscripts/Director.cfm?searchString=SGR
13 http://www.smartmoney.com/cfscripts/Director.cfm?searchString=HAL

~~~

Word of the Day for Monday December 13, 2004

aborning uh-BOR-ning, adverb:
While being produced or born.

adjective:
Being produced or born.

last / next



~~~~~~~~~~~peace, love and smooches~~~~~~~~~~~~~


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