The Smithsonian Institution must specialize in irony. The interim secretary of the Smithsonian Cristian Samper who replaced the disgraced and disgraceful Larry Small, had a press conference at the National Press Club on September 21st titled, “Facts, Fiction and the Future of the Smithsonian.”
Fiction is the operative word. Having made a big pretense of cleaning up its act, behaving responsibly, committed to openness and transparency, charges are flying that once again, the Smithsonian’s leadership has been boorish, arrogant, and impenetrable.
By all appearances, the Smithsonian’s best efforts in hiring a new CEO of the National Museum of the American Indian (NMAI) demonstrate a limited learning curve when it comes to good governance. Despite the Smithsonian’s press assault to defend itself from critics, the process for hiring a new NMAI leader and its dealing with the NMAI board of trustees looks like a continuation of secrecy and clubbiness from the Smithsonian hierarchy.
The NMAI Backstory
On September 11th, the Smithsonian distributed a press release announcing the appointment of a new president and CEO of the National Museum of the American Indian, Arizona attorney and Arizona State University law professor Kevin Gover.
Many of the blindsided members of the “board of trustees” of the NMAI learned about Gover from press accounts. Particularly shocked was NMAI trustee Eloise Cobell. She is the “Cobell” in Cobell v. Kempthorne, the 11-year old class action litigation to force the federal government to account for billions, yes billions of dollars belonging to a half-million Indian families and their heirs held in trust for them, supposedly, by the Department of the Interior.
In the 1870s and 1880s, as land-hungry non-Indians began invading reservations, the federal government gave many Indians beneficial ownership of 80-to-160 acre parcels, with the federal government retaining legal ownership in its role as trustee. Charged with managing trust lands, the federal government was supposed to disburse revenues generated from outsiders’ use of the lands, including mining, oil and gas, timber, and ranching.
Is anyone surprised that the federal government didn’t do its job, never gave the Indians the funds their lands generated, and failed to keep or produce records for the billions of dollars owed the Indians?
This case, the largest class action case in the history of the U.S., started as Cobell v. Babbitt in 1996, Bruce Babbitt then serving as President Clinton’s Secretary of Interior. Kevin Gover’s connection? Gover was Babbitt’s deputy secretary, in charge of the Bureau of Indian Affairs.
In 1996, federal judge Royce Lamberth ordered the Interior and Treasury departments to deliver to the court some records and documents in its possession about the Indian land accounts. The Department of Interior told the judge that they were searching for the records. But the records were in boxes in a suburban Maryland warehouse. In 1998 and 1999, rather than producing the documents, the federal government destroyed 162 boxes of records.
In high dudgeon, Judge Lamberth fined the federal government $600,000 for contempt. Held in contempt were Interior Secretary Babbitt, Treasury Secretary Robert Rubin, and none other than Assistant Secretary Kevin Gover.
A decade later, Gover’s performance in what the Senate Government Affairs Committee called, in 2001, one of the ten worst examples of government mismanagement, seems to have had no effect on his employment within the Smithsonian community. Given the Smithsonian’s stalwart defense of Larry Small’s practices at its helm, Gover’s performance in Cobell v. Babbitt might have been his most attractive qualification.
The decision to hire Gover is evidence of the Smithsonian’s continuing tone-deafness and hubris. With the lead plaintiff in the Indian land trust case sitting on the NMAI board of trustees, the Smithsonian chose to ignore her, hire her adversary, hire the person directly responsible for the federal government’s failure to comply with a federal court directive, and hire him without vetting him with the board’s Indian members.
According to Cobell’s reporting of a quickly arranged phone meeting of the Smithsonian’s deputy secretary, Sheila Burke, held on September 17th in response to Cobell’s complaints, the Smithsonian representatives said that they had been unaware of Gover’s role in battling the court order. Gover is a former law partner of the Museum’s departing CEO, Rick West, who surely had to have known of Gover’s candidacy, had to have been asked about his fitness for the job, and certainly had to have known about Gover’s tenure at Interior during this case well reported in the national and Indian media, but perhaps the Smithsonian forgot to ask West and perhaps Gover forgot to reveal his role to the Smithsonian’s recruitment firms. All the Smithsonian needed to do was to run Gover’s name by the NMAI board, and Eloise Cobell probably would have noticed.
Who is Eloise Cobell? A trained accountant, she was the treasurer for over a decade of the Blackfeet nation in Montana, where female members of the tribe now run financial literacy workshops due to Cobell’s tutelage. She is a founder and current board co-chairperson of the Native American Bank, capitalized by 21 tribes pooling assets to create an institution capable of providing financial products and services to Indian communities—she cofounded its predecessor, the Blackfeet National Bank, the first national bank on an Indian reservation owned by a tribe. She is also a founder and current executive director of the Native American Community Development Corporation.
You can see the attempts over the years to undermine Cobell’s credibility, intimating that she was artificially recruited to be the lead plaintiff in the Indian land trust case, like she was a puppet of a tort lawyer. Hardly. For ten years, she had worked to get Congress to pass the Trust Reform Act, calling for an accounting of the Individual Indian Money (IIM) accounts held by individuals and tribes. The law was passed in 1994, but the Clinton Administration (followed in lockstep by the Bush Administration) demonstrated “breathtaking ineptitude” at a minimum, perhaps with an equal dollop of obstructional intent, in its failure to implement the law. Hardly a papier mache plaintiff, Cobell with the class certification of 500,000 IIM account holders, took to the courts.
A dozen years later, Cobell is still on the government’s tail, keeping the case alive as the Bush Administration now continues the longstanding federal tradition of obstructing justice for Indians. Native America Calling, a radio program, described her as the Erin Brockavich of Indian Country. The MacArthur Foundation simply gave her one of its so-called “genius awards.”
Kevin Gover is not quite Eloise Cobell. When the federal judge lambasted Babbitt’s Interior Department for its deliberate obstruction, he zeroed in on Gover and the people Gover directed in citing the Department for contempt, expressing himself with unusual eloquence:
“The federal government here did not just stub its toe. It abused the rights of the plaintiffs to obtain these trust documents, and it engaged in a shocking pattern of deception of the court. I have never seen more egregious misconduct by the federal government.”
“Defendants’ cry of “trust us” is offensive to the court and insulting to plaintiffs, who have heard that same message for over one hundred years. While plaintiffs chose to analogize defendants’ allocution to Lucy pulling away the football from Charlie Brown, the court wonders if the tale of The Little Boy Who Cried Wolf would not have been more appropriate—when the same insincere statement is made time and again, the sincere statement is nearly impossible to discern and impossible to rely upon.”
Pertinent to know about Gover’s past given the Larry Small Smithsonian regime of rather thorough and in-your-face unaccountability? Pertinent to know about Gover’s oversight role at Interior during the department’s conscious destruction of records and files requested by the courts? Given the Smithsonian staff history under Small of destroying records and files concerning Small’s compensation, housing allowance, and expenses—after having been expressly instructed in writing not to destroy but retain all records due to ongoing investigations — maybe Gover fits right in to the “public-has-no-right-to-know” culture that has predominated in the halls of the Smithsonian.
Not My Fault, Get Out of My Face
The Indian land trust issue didn’t start with Bruce Babbitt and Kevin Gover. It was the federal government moving Indians off their lands in reservations, giving them lands that they thought were pretty useless, and even then, the feds took control of the properties because of the patronizing and racist theory—subsequently encoded into federal law–that Indians were too incompetent to look after their own assets.
Teller George, an NMAI trustee and former president of the United South and Eastern Tribes (USET), justified Gover’s hiring by noting that the federal government’s misuse of the Indian land trusts “started before Kevin was in that position, (but) if it had started on his watch, I would hold him accountable for that.” 
He’s right, Gover wasn’t there to invent and craft the federal government’s Indian land policy. But he was there to actively deny the federal courts’ efforts to force justice for a half million Indians. Was he an unwilling participant? Was he shocked and surprised by willfully insubordinate Interior staff incinerating files?
Maybe, but his public comments leave a different impression entirely. Because Judge Lamberth fined but didn’t take away the Interior’s (or the Bureau of Indian Affairs’) powers to continue overseeing the trusts, Gover gloated: “ These people went to that judge and asked him to take the trust functions away from the BIA. We whipped them, the judge refused to do it. But they won ‘t give up because they want a lot of money and, two, they ‘ve never been so important in their lives as they are as long this litigation goes forward…They are dangerous and while I do give them credit for creating the pressure that was necessary for trust reform, I think that they are potentially a very dangerous and destructive force.” Whipped? A bit on the intemperate side.
Babbitt, Gover, and Rubin weren’t personally tossing trust land files into a bonfire, and the Department did not contest paying the contempt fine. Lamberth later revised his opinion of Secretary Babbitt’s Interior Department, observing that Secretary Gale Norton’s performance under the Bush Administration surpassed the Clinton Administration’s recalcitrance. Gover might not have been lighting the matches, but he was the man in charge when the Department began its decade of stiffing the federal court in the Cobell litigation.
There’s a federal government dodgeball game regarding responsibility, everyone ducks, everyone impugns the motivations and reputations of the critics as they did with Erin Brockavich, and then they find some hapless shmo to pin the responsibility on—if there’s anyone at all who ends up taking the blame. In other nations, agency heads take responsibility for their subordinates’ actions and resign. In the U.S., they stiff the courts and declare that they’ve whipped their critics.
In the wake of Larry Small, a little humility might be a nice quality for key players in the Smithsonian leadership.
Speak Only When Spoken To
The NMAI board of trustees, despite its name, has only advisory powers. What is an advisory committee for? Not much at the Smithsonian, apparently. At a meeting reportedly in January, the NMAI trustees were told about the initiation of a search process to find Rick West’s successor. Apparently some fed names into the process for the recruiting firm.
Until the press release issued by the Smithsonian, the NMAI trustees were never consulted about the finalists, never asked their opinions, never offered the opportunity to “advise”. The names of the finalists for the position, they were told after the fact, were “confidential” and not to be shared with the trustees. The failure to consult the trustees on the most important decision any board has to make underlies Cobell’s charge that the trustees were treated by the Smithsonian like “wooden Indians,” convened for show but not substantive governance at the Museum. Cobell added, “I look at it as if nothing has changed since 1887, the government said we ‘re incompetent to manage our own money, and now the Smithsonian is viewing us the same way .”
For the Smithsonian, the consultation was embedded in the composition of the search committee, which included the chair of the NMAI board of trustees (Dwight Gourneau, a Turtle Mountain Chippewa from North Dakota), a second NMAI trustee, and a former trustee, plus some consultants to the museum. Ostensibly, they represented the NMAI board in the process and might have at some time or another consulted with the trustees to vet potential candidates. Gover’s stealth background in the Cobell case suggests that the vetting might not have happened.
The bigger question is why bother to have an advisory board in the first place, an advisory board established by statute, comprised almost entirely of Indian leaders, if they aren’t really going to be consulted as a body. Is there anything more important than the hiring of the man—or woman—to lead the Museum’s direction, fundraising, and day-to-day operations?
Former Congressman Elliott Levitas, a legal advisor to the Cobell plaintiffs, noted that there is a federal statute  calling for the serious treatment of federally mandated advisory committees, but even more than the law, simple “ common decency and courtesy would have dictated that the Smithsonian reach out to and listen to the advice of (the NMAI trustees)”.
The law established the board to advise on the administration of the Museum, and Levitas said that “there is nothing more fundamental to administration” than the hiring of the CEO . The law is clear that the ultimate hiring decision is up to the Smithsonian, not the NMAI board. Effective use of this board would by logic and necessity call for their advice and consultation, even if in the end the Smithsonian rejected that advice and went with Gover. At least they couldn’t have claimed ignorance about his role in the Indian land trust case.
In a way, the Smithsonian is no guiltier than much of the nonprofit sector in its use and abuse of advisory committees. They’re frequently window-dressing, meant to be convened, survived, and used on stationery for fundraising purposes or buying legitimacy with constituencies, but often their advice is not wanted, bypassed, and ignored.
In this case, the Smithsonian’s rejection was not simply to ignore the advisory committee, but to shut them up as well. In the two-day notice meeting of the board called in response to Cobell’s concerns about Gover, reportedly the trustees were admonished about not talking to the press, although Gourneau had by then written a defense of Gover in response to Eloise Cobell’s criticisms . And they were informed once again of the confidentiality of the search process and the review of the finalists, so that while Gourneau and his board colleague on the search committee knew about Gover and his unnamed competition, the NMAI board was kept in the dark.
The modus operandi of the Larry Small regime at the Smithsonian was secrecy. The Washington Post’s account of an independent review of the Smithsonian pulled no punches: “Leaders of the Smithsonian in the past seven years took extraordinary steps to keep secret the amount of top executives ‘ compensation, lavish expense-account spending, ethical missteps and management failures.” 
In the NMAI case, the Smithsonian continued that tradition, ironically telling the NMAI trustees to roll over on the Gover hiring on the very day that the Regents met, including Smithsonian Regent Pat Leahy, senator from Vermont, to adopt a new governance policy pledging openness. As Levitas noted, “one of the major criticisms of the Smithsonian was a complete lack of transparency in what they were doing, and in this instance they gave us more opaqueness rather than transparency.”
In response to an NPQ inquiry, Senator Charles Grassley, the minority leader of the Senate Finance Committee whose investigations had helped reveal the abuses of the Larry Small regime, summarized the problem for the Smithsonian in its handling of the Gover hiring: “I’m troubled by the Smithsonian ‘s actions here. After recent scandals, the institution needs to operate with complete transparency, especially when vetting the new leaders of its museums. The management needs to go the extra mile to ensure public trust. In this case, I worry that they have trouble even going the first mile.”
In his press conference on fact and fiction, the Acting Secretary of the Smithsonian, Christian Samper, never addressed the NMAI controversy. But he did mention the role of advisory committees in fixing the Smithsonian’s governance problems: “we ‘re also looking at ways that we can not only use the board of regents, but the advisory boards that we have in all of our museums. We ‘re fortunate to have about 27 different advisory boards for all of our museums with extremely talented people committed to the mission of the Smithsonian, and we want to make sure that there ‘s a constructive dialogue between the regents and others.”  The treatment of the NMAI board under Samper’s watch seems to have fallen short of constructive.
Fact, Fiction, and Frustration with the Smithsonian
The deed is done, Gover is moving into the NMAI slot at high velocity. Maybe he’ll turn out to be a great NMAI director. Maybe chastened by his role in Cobell v. Babbitt, Gover will insert transparency and openness and democracy into the Smithsonian and the NMAI, where reportedly the reins of decision-making have been tightly controlled by his predecessor.
Maybe he will revise the governance structure at the Museum, elevating the board of trustees from a showcase role that Cobell described to the Washington Post as “wooden Indians”. Maybe he will recognize, contrary to his comments about having whipped the asses of the Cobell plaintiffs, that good governance of nonprofit institutions requires common sense and common decency, as in breaking with the arrogance of his Smithsonian overseers and actively consulting with the 95% Indian board of trustees about the operations and symbolism of their institution.
Maybe Gover will lift himself out of the old-boys network that seems to pervade Beltway and Smithsonian decision-making. Maybe the fact that he and his predecessor were law partners at Gover, Stetson, Williams and West really did have no bearing on his candidacy, that he was not simply Rick West’s hand-picked and predestined successor. Did his history as a fundraiser with important people help blind the Smithsonian to his history with the Cobell litigation? Reputedly, Gover was a more than capable bundler for candidate Bill Clinton’s presidential campaigns in 1992 and 1996 , potentially addressing a dual concern of the Smithsonian to build relationships with a likely incoming Democratic White House, perhaps one with a Clinton again in the Oval Office, and to raise big money for future Smithsonian operations in an era of tight Congressional budgets.
Gover himself is convinced that he will be a worthy successor to Rick West and win over his critics, even Cobell. Maybe Gover has been or can still be rehabilitated from his perfidious role in the Indian land trust case and will turn out to be the epitome of good governance, the yardstick competition by which the commitments made by the Smithsonian regents will be judged. The jury is still out.
But for the Smithsonian itself, the verdict is increasingly obvious. The Smithsonian’s performance in the hiring of the new NMAI head suggests that its current leadership at the Board of Regents, including some of the nation’s top philanthropic leaders, is beyond repair. They just don’t get it. Larry Small may have been dragged out of the Smithsonian leaving claw marks on the floor, but he was a symptom of the Institution’s problem, not its sole cause.
NMAI trustee and executive director of the Tribal Historic Resources Department of the Seminole Tribe, Tina Osceola, provided a message that summarizes the controversy in a nutshell: “ It is my opinion that the committee should have known the potential conflict and taken the appropriate steps to inform the board, if not consult with the board on the potential selection. I do not know Kevin Gover and have never worked with him, therefore, I cannot personally attest to his suitability for the job. I must say that due to his tenure with the BIA as well as his actions during the Cobell litigation, I will find it hard to hold him in the high regards that I have for Rick West.” 
Once again, the Smithsonian’s leadership, headquartered in the Smithsonian’s “Castle” on Jefferson Drive on the Mall, is operating like their offices are surrounded by an alligator-filled moat to protect themselves against marauding invaders like advisory committee members and investigative journalists.
1. Amazingly, here’s a report [PDF] published in June 2001 of the Senate Government Affairs Committee chaired by Fred Thompson (!). The Indian land trust issue ranked #2 on the list, just behind the Big Dig which headed the list. The press release was released by the Cobell plaintiffs at the time.
2. (The citation for the description of the Clinton Administration’s implementation of the Trust Reform Act as “breathtaking ineptitude” is a quote from an Arizona Republic article cited in a Native Blog article about John Echohawk’s role in the Cobell case. Echohawk is the executive director of the Native American Rights Fund which provided legal counsel much of the time to the Cobell plaintiffs).
3. Cobell got the “Indian Erin Brockavich” description in a “Native America Calling” radio show in November 2001, a syndicated broadcast run on many public radio stations.
4. Jonathan Stein, “Contempt from Court: The Blistering Eloquence of Judge Royce C. Lamberth,” Mother Jones (September 1, 2005)
5. James V. Grimaldi, “Smithsonian Official Quits After Records Destroyed: Hobbins Had Key Role In Hiring and Upkeep Of Ex-Secretary Small”, Washington Post (August 8, 2007)
6. Elements of Federal Indian Law in the United States: An Analysis of the Legal Roots of Racism, Briefing Paper for March 2006 UN Human Rights Committee Session
7. Telephone interview, September 20, 2007
8. Mary Pierpoint, “”Gover Reflects on BIA Changing of the Guard”, Indian Country Today (August 30, 2000),
9. Eloise Cobell, “The Smithsonian’s Troubling Pattern” (letter to the editor), Washington Post (September 18, 2007)
10. Telephone interview, September 21, 2007
11. The Federal Advisory Committee Act, Public Law 92-463
12. Levitas quotes from a telephone interview on September 20, 2007.
13. Dwight Gourneau, “Gourneau: Kevin Gover unquestionably best choice to run NMAI”, Indian Country Today (September 20, 2007)
14. James V. Grimaldi and Jacqueline Trescott, “Secrecy Pervaded Smithsonian on Small ‘s Watch: Independent Panel Also Faults Regents And Others for Lack of Spending Scrutiny,” Washington Post (June 21, 2007)
15. Comment received from Senator Grassley’s spokesperson by e-mail, September 21, 2007
16. “National Press Club Luncheon Speech by Cristian Samper, Acting Secretary of the Smithsonian; Subject: Facts, Fiction and the Future at the Smithsonian”, Federal News Service (September 21, 2007)
17. Describing West as his “first boss”, Gover had previously worked for Fried, Frank, Harris, Shriver & Jacobson, where West had been the first Native American to be made a partner in a national law firm, Gover acknowledged help from West in answering “the Smithsonian’s extensive questioning”, but West recused himself from the decision-making, leaving Acting Secretary Samper to make the final decision, cf. Jerry Reynolds, “Gover to Take Helm at National Museum of the American Indian,” Indian Country Today (September 19, 2007)
18. Jacqueline Trescott and James V. Grimaldi, “Former Interior Official to Lead Indian Museum”, Washington Post (September 12, 2007)
19. Jerry Reynolds, “Gover, Supporters Respond to Criticism”, Indian Country Today (September 21, 2007)
20. E-mail comments in response to NPQ inquiry, September 21, 2007.