by JOEL BRINKLEY
The New York Times
WASHINGTON, Jan. 6 — More than 300,000 American Indians gave a federal judge a detailed court filing today based on private historical records asserting that the government had cheated them out of as much as $137.2 billion over the last 115 years.
The court action marked a significant turn in the largest class-action suit ever filed by Indians against the federal government and showed just what kind of sums are at stake.
For generations Indians have complained that the federal government has lost or stolen millions of dollars earned on tribal lands. And for decade after decade the government has ignored or disputed those contentions while failing to offer detailed accounts of how much money has been raised from oil and mineral, timber and grazing leases, proceeds of which go into a trust fund for the Indians’ benefit.
The conflict — dating from 1887 — escalated into a lawsuit that the Indians filed against the Department of the Interior in June 1996. In the six years since, the standoff has become ever more bitter, documents have been destroyed and interior and Treasury secretaries have been held in contempt of court. But until now the Indians’ evidence of loss was largely anecdotal.
“We just knew there was a lot of money missing,” said Tex Hall, president of the National Congress of American Indians and the leader of his tribe, the Mandan, Hidatsa and Arikara Nation in North Dakota. “Elders would come to me and say, `Tex, I got money last year but didn’t get any this year.’ There was so much variation in the system that we know something was wrong.”
Today, however, the Indians attempted to quantify their loss. In a voluminous filing that included detailed private records of oil extraction and mineral mining going back to the late 19th century, lawyers for the Indians said the government had stolen, lost or misallocated tens of billions since it was given responsibility for managing assets on Indian lands in 1887. The lawyers said that if all the figures were added up they would reach $137.2 billion.
Government officials, told what the Indians were claiming, ridiculed the figure, which is more than 10 times the size of the Interior Department’s budget. J. Steven Griles, the deputy interior secretary, who manages the trust fund issue, said: “Nobody has shown me that there has been a loss. They haven’t provided one shred of evidence.”
For its part, the Interior Department filed a brief today that shows only how it intends to overhaul trust fund management and account for the money in the fund.
Over the last several years, Judge Royce C. Lamberth has come down hard on the side of the Indians, saying he has never seen greater government incompetence than the department has displayed in administering the Indians’ money and in representing itself in court.
When the government appealed his 1999 order for a full accounting, the Court of Appeals resoundingly upheld Judge Lamberth and accused the department of “malfeasance.”
The Interior Department’s performance has served as “the gold standard for mismanagement by the federal government for more than a century,” Judge Lamberth wrote last September.
Problems with the Indian Trust Fund began almost as soon as it was set up. It came into existence as a result of a scheme in 1887 by Senator Henry Dawes, a Massachusetts Republican who proposed dividing much of the land held by Indian reservations into plots for individual Indians as a way to persuade them to become farmers on their own land.
Others saw the new law as an opportunity for a great land grab, through purchases or swindles. Just after passage of the law in 1887, individual Indians owned 138 million acres. Today they own about 10 million. Tribes own an additional 45 million acres.
The new law also charged the Interior Department with managing the land. A timber company hoping to cut down trees on an Indian’s land, for example, would negotiate a lease with the department, which would collect the money and then pay the landowners.
Almost right away, newspapers began to report that Indians were not getting their money. But it was another 40 years before the government took its first look at the problem. In 1929, the General Accounting Office reported that “numerous expenditures are made from these funds” that were not payments to the Indian owners “by using a very broad interpretation of what constitutes the benefit of the Indian.”
In general, the accounting office said, the trust fund’s books were in such disarray that it was impossible to verify that “the Indian received the full measure of benefit to which he was entitled.”
In the decades since then scores of reports from government auditors continued to document the problems, culminating with an influential Congressional report in 1992 titled “Misplaced Trust: The Bureau of Indian Affairs’ Mismanagement of the Indian Trust Fund.”
It documented “a dismal history of inaction and incompetence.”
In 1994, Congress passed the American Indian Trust Reform Management Act, which required the department to account for all the money in the fund — and to clean up the accounting and payment processes. Interior promised to comply, but in the following years little was done.
In 1996, Elouise Cobell, a banker and Blackfoot Indian from Montana, filed the lawsuit demanding a full accounting of the fund. She said she was left little choice because, when she asked questions of Interior Department officials, “what I got were patronizing pats on the head.”
No doubt, reconstructing trust records for thousands of accounts over the last 115 years is a daunting task — particularly since many of the records have been destroyed. But the government continued destroying hundreds of boxes of trust fund records years after the suit was filed, even after Judge Lamberth ordered that they be preserved.
When the Interior Department asked the Justice Department to appeal Judge’s Lamberth’s ruling calling for an accounting in 1999, Justice Department lawyers advised that an appeal would not succeed unless interior at least appeared to be performing an accounting, court records say.
So in April 2000 the government published a notice in the Federal Register saying it wanted to take opinions on how an accounting should be done. But even before most of the public opinion was taken, the Interior Department decided privately to use a statistical sampling technique, instead of real accounting.
Judge Lamberth wrote last fall that the Federal Register notice was “a sham.” The entire exercise was “an unconscionable scheme” and “gross misbehavior” that “rises to the level of fraud on the court.”
When Secretary Gale A. Norton came into office, she endorsed the sampling plan but changed her mind a few months later. In the spring of 2001 the Interior Department opened and staffed a new division, called the Office of Historical Trust Accounting. Fourteen employees and dozens of contract workers spent a year determining how a full accounting might be done. When they finished last July, their report said the work would last a decade or longer, cost at least $2.4 billion — and might not even produce a usable result.
Joseph F. Keiffer III, appointed by Judge Lamberth to monitor the case, concluded that “it is time to consider that the department not only will not — but also cannot — perform the historical accounting mandated by Congress and ordered by this court.”
In interviews last month, department officials acknowledged that they were scrapping the historical accounting office proposal and writing off the time and money spent on it. The officials also said they had concluded that a full historical accounting would be impossible.
Today, the fund holds about $3.2 billion, and the government pays out about $560 million a year. Some recipients are paid as little as 5 cents annually; others get as much as a few thousand dollars.
After more than six years in court, some in Congress and elsewhere have urged the two sides to settle. But views have hardened.
Mr. Griles, the deputy interior secretary who manages the trust fund, said, “I am not settling a case with taxpayer money for billions of dollars when there is no supporting evidence that the money they say they lost ever existed.”
But Mr. Hall, the president of the National Congress of American Indians, counters: “This isn’t taxpayer money. This is our money that the government took, and they have to give it back.”
for more information: click here
|
