Justice for Indians
The Economist
March 23, 2002
A plaintiff from the Blackfeet may have the courts going her way IF THE opinion polls are to be believed, most Americans are coming to trust their government more than they used to. The habit has not yet spread widely among American Indians, who suspect an organisation which has so often patronised them, lied to them and defrauded them. But the Indians may soon win a victory in a legal battle that epitomises those abuses.
Elouise Cobell, a banker who also happens to be a member of the Blackfeet tribe in Montana, is the leading plaintiff in a massive class-action suit against the government. At issue is up to $10 billion in trust payments owed to some 500,000 Indians. The suit was filed by Ms Cobell back in 1996; she now has more than 300,000 joint plaintiffs from dozens of tribes.
The suit revolves around Individual Indian Money (IIM) accounts that are administered by the Interior Department’s Bureau of Indian Affairs (BIA). Back in the 1880s, the government divided more than 11m acres of tribal land into parcels of 80 to 160 acres that were assigned to individual Indians. Because these parcels were rarely occupied by their new owners, the government assumed responsibility for managing them. As the Indians’ trustee, it leased the land out for grazing, logging, mining and oil drilling – but it was supposed to distribute the royalties to the Indian owners.
In fact, officials admit that royalties have been lost or stolen. In some cases the money was never collected in the first place. Records were destroyed, and the government lost track of which Indians owned what land. The plaintiffs say that money is owing to 500,000 Indians, but even the government accepts a figure of about 300,000.
Ms Cobell and her seven siblings grew up in a one-bedroom house on the Blackfeet reservation without electricity, telephones or running water. For years, she heard Indians complain of not getting payment from the government for the oil-drilling and ranching leases on their land. So, after she had been to college and become treasurer of the Blackfeet nation in the late 1970s, she asked BIA officials what was going on. They told her she had misread the numbers. In 1994 she and other tribal leaders successfully pushed for the creation of a special trustee for the funds. But nothing much got done. Ms Cobell returned to Washington and, after a brush-off from government lawyers, filed the suit.
Since then, the courts have gone her way. “I’ve never seen more egregious misconduct by the federal government,” said Royce Lamberth, a federal district judge, in 1999, fining the interior secretary, Bruce Babbitt, and the treasury secretary, Robert Rubin, more than $600,000 for failing to disclose the destruction of documents relating to the case. The same judge ruled that the government had breached its responsibilities to the Indians, and said the trust fund would remain under court jurisdiction for at least five years. An appeal against the ruling was denied last year. Over to Gale Norton, George Bush’s interior secretary. She was charged with contempt in November because her department had failed to fix the problem. In December, Judge Lamberth ordered the Interior Department to shut down all its computers for ten weeks because trust-fund records were vulnerable to hackers. The system was partly restored last month and payments to some Indians, which had been interrupted, resumed. But tens of thousands of Indians, it seems, are still waiting for their cheques.
Judge Lamberth’s ruling in Ms Norton’s contempt trial is expected soon. If the judge finds that she wilfully misled him, he could fine her and, in theory, send her to prison. Later this year the court will tackle the question of deciding how much money is owed to Indian beneficiaries of the trust accounts.
And that is not the end of it. Ms Norton has proposed the creation of a new Bureau of Indian Trust Management, separate from the BIA. Indians are cross that she suggested this without consulting them. Some want the trust funds to be placed in receivership, under a neutral supervisor. Others have called for Congress to establish an independent commission, including Indians, to draw up a plan for reforming the whole system. A messy injustice may at last be getting sorted out.
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