Native Americans could win $10B over dispute
USA Today
By: Tom Kenworthy
February 14, 2002
Elouise Cobell and her seven siblings grew up in a one-bedroom home without electricity, telephones and running water.
On the beautiful, often unforgiving landscape of the Blackfeet Indian Reservation abutting Glacier National Park, Cobell learned early that liberty and justice for all was often a shallow promise.
As a little girl, she heard her parents’ neighbors and friends complain that the federal government wasn’t paying royalties they were owed from oil companies and ranching outfits leasing their land.
In a community where unemployment tops 70% in winter, the missing payments, she says, sometimes cost people their land and critically needed medical treatment. “I was always asking the why,” she recalls. “I was ‘why this and why that?’ ”
Today, Cobell, 56, stands on the brink of triumph in a David vs. Goliath legal battle that has repeatedly humbled and embarrassed the U.S. government and its army of lawyers. As the lead plaintiff in a class-action suit over the government’s historically mismanaged Indian trust fund system, she is the prime force in a battle that could deliver $10 billion or more to as many as 500,000 of her fellow Native Americans.
It happened because Cobell decided that Indians had suffered enough from a system that lost track of tens of thousands of beneficiaries, failed to pay them interest and couldn’t tell them how much money they were due. It happened because she had the moxie to take on Uncle Sam — and doggedly raised $8 million from foundations to hire lawyers of her own.
“For the first time ever,” she says, “we are going to make the government live up to the promises they told Indian people in the treaties.”
The turning point in Elouise Cobell’s 25-year crusade to force the federal government to fix the broken trust system came on a trip to Washington, D.C., not long before she brought her lawsuit in 1996. She and several colleagues thought they had arranged an audience with Attorney General Janet Reno. Instead, they were met by Justice Department lawyers who, she says, told her “not to come in here with false expectations.”
“I said at that meeting, ‘I want a special prosecutor,’ ” she recalls in measured terms that mask a steely determination. “They all looked at me and laughed. And it gets to the point where they’ve humiliated you so much that you say, ‘I’m going to get you.’ And at the end of that meeting was when I said I’m going to sue.”
So more than a century after the government set up a trust fund system to manage Indian lands and the revenue they produced, Cobell went to court to get some answers: How much are we owed? How many of us are there? What has happened to our money? Since the suit was filed, Cobell, her co-plaintiffs and their attorneys have won a stunning series of victories:
-U.S. District Judge Royce Lamberth in 1999 found two Clinton administration Cabinet officers, Interior Secretary Bruce Babbitt and Treasury Secretary Robert Rubin, in civil contempt. Government lawyers had — foolishly, some say — agreed to produce thousands of documents, many of which had been lost or destroyed. When the government couldn’t deliver, Lamberth held the Cabinet officers in contempt, with taxpayers eventually paying some $630,000 in fines. Babbitt’s successor, Gale Norton, testified Wednesday as part of a similar contempt trial.
-Lamberth ruled two years ago that the government had violated its responsibilities to hundreds of thousands of Indians. “I have never seen more egregious conduct by the federal government,” Lamberth wrote.
-In February 2001, the U.S. Court of Appeals for the District of Columbia upheld Lamberth’s ruling, which requires court supervision of the Indian trust fund system for five years.
Later this year, the suit’s final phase will begin: determining how much is owed up to 500,000 Indian beneficiaries of trust accounts (4.1 million people claimed to be all or part “American Indian or Alaska Native” in the 2000 Census).
Dennis Gingold, a banking attorney who represents the Indian plaintiffs, credits Cobell with the courage to confront the federal government. “It’s gone on for over 100 years until someone stood up and said, ‘No more,’ ” he says. “She just wouldn’t take it anymore.”
A century-old mess
The government’s mishandling of the proceeds from Indian lands it held in trust dates almost to the 1887 passage of the Dawes Act. That law was designed to make Indians more self-sufficient by giving them up to 160 acres apiece to own as individuals. But reflecting the paternalism of the time, Indians were not entrusted to manage their own lands. The government would hold them in trust, handling the leasing and the revenue that followed from grazing, mining and lumber sales.
Over the decades, Indians often have discovered that the records — if there are any — are a shambles. “You can’t get the information no matter how many times you go back,” says Naomi Crawford, a Blackfeet of Heart Butte, Mont.
From 1887 to 1934, about 90 million acres of Indian land passed out of their control. In many cases Indians took title to their land but subsequently sold or lost it, often because they could not pay taxes.
The Bureau of Indian Affairs (BIA), an Interior Department agency, is responsible for leasing the 11 million acres of Indian land the government still holds in trust. Some valuable oil and gas leases pay thousands of dollars a month, small leases only a few dollars.
Almost from the beginning, management of the trust funds has been an accounting nightmare. In report after report, the General Accounting Office, Congress’ auditing arm, congressional committees and other investigative bodies have found shoddy accounting in a system that handles $500 million a year. The government, for example, does not have current addresses for about 50,000 beneficiaries. “While mismanagement of the Indian trust fund has been reported for more than a century, there is no evidence that either the (BIA) or the Department of Interior has undertaken any sustained or comprehensive effort to resolve glaring deficiencies,” a House subcommittee declared in 1992.
For many years, Indians hoped for a political solution. “We’ve always known this lawsuit was out there, but it was so big we never really thought we could do it, and that a political solution was the best way to go,” says John Echohawk of the Native American Rights Fund of Boulder, Colo. “Elouise convinced us this would never be resolved politically.”
How much might be owed Indians for decades of mismanagement is anybody’s guess. The government and the plaintiffs cannot even agree on how many individual Indian accounts there are, with the government estimating 300,000 and the plaintiffs 500,000. Gingold, the attorney, says an accurate accounting of what is owed will never be done because so many documents have been lost and destroyed over the years. But the amount due — most of which would require funding from the U.S. Treasury — “is certainly in excess of $10 billion,” he says.
Current and former Interior officials say they cannot speak on the record because they are under the threat of civil contempt. But they say privately that Indians are owed far less than the plaintiffs allege.
On Wednesday, Norton acknowledged that a complete accounting may be impossible. “Trying to piece together all the information since 1887 is going to be a very difficult job,” she testified. “It will be blocked in some cases because a particular piece of information has been destroyed.”
‘A tough life’
Elouise Cobell first set her sights beyond the Blackfeet Reservation in third grade, when she began reading the Sunday New York Times — month-old editions ordered by her teacher.
“I started reading about other people and how they lived,” she says. “I was setting this goal: to go off to school. I wanted to make sure I got a really good job so I could help my parents live a better quality of life.”
Though Cobell’s mom and dad had little, they stressed the value of education. Of their six children still living, five went to college. “They built a strong foundation for us,” Cobell says.
She attended business college in Great Falls, then Montana State University. She left before graduating to nurse her mother, who was dying of cancer. Cobell later held jobs in Denver and Seattle, where she met her husband, a Blackfeet working as a commercial fisherman. She returned to the reservation about 30 years ago, working first for the Army in Montana and later for the tribe. Her husband raises cattle on the family spread, and their son, their only child, manages a Las Vegas hotel casino. After becoming the Blackfeet tribe’s treasurer more than a quarter-century ago, Cobell began a long quest to reform the trust fund system.
She fought with BIA bureaucrats to get straight answers. She and other tribal officers banded together in the 1980s, getting passage of legislation in 1994 that created a special trustee. But without adequate funding, reform languished. The lawsuit followed. Because of her efforts to empower Indian women and to foster economic development, including her role in founding the first Indian bank with a national charter, Cobell in 1997 was awarded a $310,000 MacArthur Foundation “genius grant.” She put the money into her legal battle.
“I think my story is just an example of what thousands of people have gone through and experienced,” she says. “It was a tough life for people.” Made tougher by dealing with the long-broken trust fund system. “You don’t really know what you own,” says Robert Crawford, 71, a Korean War veteran. He owns small shares of a half-dozen oil and gas leases on lands held in trust for him, but his monthly statements often show payments of zero.
Cobell does not even know how many trust fund accounts she and her husband have, or how much she might receive in a settlement.
Not everyone in Indian country approves of Cobell. Some accuse her of undermining the BIA, the only federal agency with a clear mandate to serve Native Americans. Some Native Americans were concerned when Lamberth found major security problems with computerized trust fund accounts and Interior shut down its computer systems, which disrupted payments. Payments have resumed.
“It may surprise Elouise, but most of the reservation, grass-roots American Indians I know are thoroughly knowledgeable about their property and the income they have coming from it,” wrote Kenneth Davis of Belcourt, N.D., in a December letter in the newspaper Indian Country Today. “Shame on you, Elouise Cobell, and your high-priced attorneys.”
Cobell regrets what she calls “a big backlash in Indian country.” But she is undeterred. “All we’re fighting for is an accountability, to put the proper accounting systems in place and let people know what they own,” she says. “It’s not a suit over damages. It’s a suit to make the government do the right thing.”
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