Free Notice (Other) - District Court of Federal Claims - federal

Case 1:06-cv-00934-FMA

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IN TH UNTED STATES COURT OF FEDERAL CLAIS

KA W NATION. OKLOMA

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Case No. 06-c'V'I00934
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Plaitiff
v.

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DECLATIo~i OF HUGH LESLiB :Í"R
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UND STATES OF AMRICA,
Defendat.

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I. Hugh Leslie Frazer, based upon. my persona knowledge ai in:on provided
to me in my

offcial capacity. do hereby declare and state:

i. I am the Actig Director for the Ofñ~e of

Extemal Afais (OBA) in the Offce of the Specia Truee for Amercan Indian (OST) in th Deparent oftne Intenor. Ihave held tls position since July 8, 2008. and have worked at OST sice Febru 2005.

My us duties include, but are not lited to: conductig Cøngrssional affais on
beha of OST, negotiatig with trbes who have contrted or compacte OST
fuctions puruat to The Indian Self-Detemnation and Eduction Assistace Act, Pub. Law 93-638, 88 Stat. 2203 and handling other specia projects. Curtly. I
manage approximately five staf

New Mexico (Mastad), an in Washin, D.C. (Mai Inteo:i).
2. I am awae of

members at OEA~ with offces bot in Albuquerue~

"Litigation Hold: Preservation of Inormation in Tribal Trust Cases," and was
addrssed to all Interor offces and bureau, which includes crST_ Th Jenen Memo
dircted all offces and bureaus. among other thgs) to preere informtion

the Deparent~wide policy to preserve all hidian tr records. The policy extends to the records for the Kaw Nation of Oklahoma. On or about Marh 12, 2007 ~ I received a memorandum signed by Lawrence L. Jenen, Deputy Solicitor (the Jensen Memo), attched as Exhibit HFl. The subject aftht memorandum read

potentily relevant to any trbal trt litigation. The Jensen Memo also identied
common issues in nibal tr eases and direced the offce an bureaus to continue to

presere electronic and paper records potentially relevant to these cas~s.

3. On or about Oetobe, 29, 2007~ I received a separate email memoraun(the Moore Memo), atted as Exbit HF~ frm the Offce of the Solicitor (80iL) though my
.supersor) Care Moore, who wa servg as the Director orOEA at

tie. the Moore distbut th memo to OEA st member; the memo informed us that Ms.
tht

Court ofFeder Clais ha entered a Docuent Prseration Order (PPO) in the
Kaw Naton of Old

ahoma v. United States case. Upon reviewing the Order, I noted

that th DPO requied Interor to provide notice to Plaiti:fs cowil before shipping

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enteed in trbal trt caes. . " .

records related to the Kaw Nation of Oklahoma to the Amerca Indi Reords Repository (the Al). On a reguar bass, I wa reIIded by OST senor management about the record reention and docwnt preseation order cowt have

4. Interior curently mainta records related to the Kaw Nation of Oklahoma in both

the Maead and Mai Inteor offces. Ver inquetly. OEA moves inve
records to the AI to make room for more recent, actve docuents. OEA reords
indicate it ha shippe documents to the AI for archiving o~y in April

2006, and May 2008. Inteor policy requis employe to prt out their emas;

2006, May

OEA sta member then send those emais to the AI. In preparg the records
(inactve) to be moved, stmembes inventoiy their own inactive records and place
them into boxes in their offces. Because OEA records consists may of

member' 5 enils, the' sta member inventones the records by separUlg and

the sta

gruping the reords in foldes by date (month and yea) in ofby a Tribe's nae.

Another sta member gathers the boxes for shipping to the AI. TI stmember
who gather the boxes contats the Offce of Tru Records withn the Offce of

cuody protocol. : : .

Special Trutee (OTR). which ships the records accordg to the proper C~n of

th

5. OTR must approve two forms before OEA ca move any daÇuments~ Firt, OEA
sends OTR a proposed schedule offili categorization, which.OTR ipust approve. Afer receivig tht approval, OEA inventories the boxes and otherse prepares

th for shpment to the A1 Second, OEA seds the Move ReauestFoIm. Chai
of

Cusody an Inventoxy to OTR for approva. In thi ease, oil November 29,2007,

OTR appoved the schedule for a fit shpment tht conta~ oniy one box. On

April 2, 2008, it approved the schedme for a second shipinent tht contaned 32

boxes) unti May 8, 2008. .l

boxes. om did not approve the Move Request form for botl shpments (tota of33

6. Ofelia Prado, a former OEA sta member and trned recrd n;anflgeent spalis

held responsibilty for gather and invenory the boxes fdr hòth slupments frm
the OEA employees' offces. In December 2007, ever ORA eåployee certed that

he or she was awae of and undertood Interor's obligations Under t: 'Cour's DPO. Apparntly, Ms. Prao did not review the boxes to detee wheter any document among th related to th Kaw Nation of Oklahoma. Somete 1xeen April 1, 2008 and May 2, 2008, while watig for OTR to approve th move. requtS forms for
both shpments, Ms. Prado fialized th preparations for shipment She resigned

frm OEA on May 2, 2008. before OTR ha approved the Move Request fo:r for
both shipments. Therfore, afer Ms. Prado prepared th 3.3 'boxes to shp to the

AIR the boxes reed in the Masthead fail. The Move Request form tht
Ms. Prado preard for both shpments, attched as Exhbit HF3. include the inventory of the documents with the boxes among the items she completed.
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7. On May 7, 2008, Richad P. Fielitz, OST Chief of Sta sent an email to all OST
employees statig the followig:

Both Tribal and Individual Indian records, (both actve and inaçtive) are to be presered and reed. Ths ha been interpreted to include
any

:a prohibition on moving records from one physical location to other.

You are instrcted not to move any Tnbal or Individua Indian recrds (either active or inctive) or accept any such record wiout
a wrtt cha of custody form (active reords) or a reords move

request form (intive recrds) and approva frm the Solicitor's
Offce which will be provide though th Director of and/or the Chief

of Staf (emphais in ongi). .

Trut Records

In response to ths new dictve, Jen Chavez, then-Acti Director o:fOEA sougt
gudace from Ethel Abeita Director ofOTR. to determe w~éther ,OEA could ship th 33 boxes to the AI. Ms. Abeita advised Mr. ChaVe2 tlat OTR could ship the

33 boxes as long as the move request was processed thugh. OTR' (~gu move
procedmes). On May 8, 2008, Ms. Abeita revewed the Move Rëquest form; however, none of the ìtems lìsted on the inventory list attched to tht form specified that th documents related to the Kaw Nation of Old ahoma. Therefote, on May 8,
2008, Ms. Abeita approved th Move Request form for both shpments, attched as

AI.

Exhbits HF4 and HFS. That same day, Saly Herdez, an OEA stamember who works in th Masthead offce, shpp the 33 boxes in two Separte s~ipments to the

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8. On July 23, 2008, related to this litigation, OEA began compilng an inventor of all

trt documents tht OEA mataed and that related to the Kaw Nation of Oklahma. Ms. Herdez told me tht. in the process or producing 'this list she
remembered the May 8, 2008, shipments frm Masthead to the AI. Ms.

Herdez told me she wanted to mae cert tht OEA ha not impropely shipped

any docwnents. She exaed the list ofOEA shipments to tle AI and informed
me on July 25, 2008 th ile inventory listig of

tht shpment wa very generc, and she could not conclue wheer the box
COntaed any docwnents related to the Kaw Nation of Oklahoma. Ths deeply
concerned me because I did not wat to have violated the Cour's DPO.

the contets ìn one box included in

9. Once I realed tht ths box might conta docuents related to th Kaw Nation of Oklahoma, I noteci ths on our document producton list and inored OST senior
management on July 25, 2008 vi ema and I discused ths iS$ue with senior OST

management at a meetig held on July 28, 2008. Senor manent ad'Vsed me that
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we needed to asce whether the box includ any relev!Jt records because the

shipped those docmnents. ~
Kaw Nation of

Cour had ordered us to provide notice to the Kaw Nation of Oklahoma before we

10. On July 28, 2008, I contated AI sta and ased them to open the One box from
the fist shpment to detene wheter it contaed any documents related to the

Oklahoma. The next day, stmembers at the AI staffïnformed

me that they ha discoverd two docuents relate to the Kaw Nation ofOkIahoma in the box.
i 1. Also~ on July 29~ 2008, Ms. Herndez realzed that the second shpment (32 boxes)
might also conta Kaw Nation of

OEA to the AI in Leexa" Kansas. on Augut 5, 2008, to begin searching thugh the remaiing 32 boxes. Between Augus 11,2008 and Augt 19,2008, OEA st and sever OTR stmembers contiued searhig thugh the 32 boxes. A tota of

Okloma records. Soon afer, I traveled from

approxiately four to five inches of documents relatd to the Kaw Nation of
Oklahoma were dicoverd. No documents relat to the Kaw Nation of Oklahoma were daaged or lost durg the move.
12. OBA tas serously its obligatons an responsibilities under

the Cour's DPO. To enur it provides notice to Plaitis counel before it inverently.moves to the

.A any other docuents related to the Kaw Nation of Oklahoma. tle followi

steps have been taken: (a) on July 31.2008, I sent out an em tò al OEA sta
member, atthed as Exbit HF6, tht reinded all sta

documents without prior authortion; (b) Mr. Richard P. Fielitz Chief of Sta of

members' not to move any

OST, sent a notice to aU OST employees, atthed as Exbit HF7. that incted all

OST employes not to move record related to severa trbe, which ~cluded the Kaw

Nation of Oklahoma; (c) Mr. Fielitz's notice wa posted on file" cabinets in aU
locaons whe OEA fies ar held an (d) I reded all sta members to double~
i check al boxes for documents related to the Kaw Nation of Okloma imedately before shippin such boxes in the fue. Additionay, OEA is producin a checist it will follow when it plan to move documents in the fu. OEA will continue to mae every effon to preserve Relevt Record for the Kaw Nation of Oklahma litigation and to comply fuly with the Cour's DPO.

I declare under penalty of peijui that the foregoing is tre and correct.

Execute ths '2 day of August 2008.
~

-rh.

1d~ tuLi- :¡~i/n
HUGH LESLIE FRIER
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