by Becky Shaw
Gazette Staff
Billings, Mont., Gazette
BROWNING – After 10 years of leading the largest American Indian lawsuit against the U.S. in history, Elouise Cobell has been through her share of emotions.
Last week, however, the lead litigant in the Indian Trust Fund lawsuit was flat shocked when Sen. John McCain, R-Ariz., pulled back legislation that could have ended the lawsuit.
“They were that close,” Cobell said, sitting in her Browning office. “What kind of pressure happened that they pulled back and lost the greatest chance they had?
“Who knows what goes on behind closed doors,” she said.
Had the McCain bill moved forward as it was written, it would have settled the class action lawsuit that seeks a historical accounting and trust-fund reform for money accounts belonging to 500,000 landowners.
The bill called for an $8 billion settlement – down from accounting as high as $237 billion – to be paid as restitution for money lost, accounting errors and unpaid interest on federally managed land accounts.
The bill was scheduled to go through the Senate Committee on Indian Affairs this week to be worked out before going to the Senate. But, in an Aug. 1 meeting, Interior Secretary Dirk Kempthorne; Attorney General Alberto Gonzalez; McCain; and Byron Dorgan, D-N.D., who is committee vice chairman, apparently worked out a deal to hold the legislation.
“If we can define a legislative settlement consistent with our collective goals, I believe, together we can determine what financial consideration and level of funding for improved beneficiary services would be provided to Indian Country,” Kempthorne wrote to McCain and Dorgan on Aug. 1. “There is both an atmosphere and positive attitude in the Administration to find a settlement solution.”
Cobell said she does not think the administration needs more time to work on a settlement, nor does she think work will move more smoothly after Congress’ August recess when “they will have a million things to focus on.”
“They don’t need any more time,” Cobell said. “I really thought that McCain could pull it off if he used his power.”
Cobell and other leaders from across Indian Country spent a week in July in
Washington, D.C., talking to senators trying to ensure the bill would survive, Cobell said.
The litigants have proposed several settlements, she said. The $8 billion figure is lower than they expected to go, she said, calling the current legislation a “compromise.” Trust management accounting and reform are key, she said.
“To me, the money is not that important,” Cobell said. “I’d like to stay in court and just keep duking it out, duking it out with them.”
During a recent national radio interview, Cobell spoke with an older woman who hoped her trust money would pay for hiring health care assistance for herself and her husband.
“I really, truly believe we’re conceding a lot,” Cobell said. “But what do you do when people are so desperate? When people need their money?”
It’s been a “long battle,” she said, but advancements have been made with the lawsuit.
“One overall victory, that is not on paper, is individual Indian people have started to be more active on their own assets,” Cobell said. “The suit really, really empowered individual Indians.”
The plaintiffs have achieved court victories, too, including a 1999 U.S. District Court decision that the secretaries of Treasury and Interior had breached their trust obligations to Indians, which resulted in judicial oversight of the system and the Trust Reform Act of 2004.
“Three secretaries (of the Interior) have been held in contempt,” she said. “We’re setting the pace for we’re not going to tolerate this behavior.”
Victories aside, because the defendant is the U.S. government, Cobell worries no one will hold officials accountable.
“There’s nobody to hold their feet to the fire,” Cobell said.
“So much money is owed,” she said. “They really can’t do an accounting, and they know it.”
The idea of the trust was to hold land for American Indians, “in lieu of taking other lands from them,” Cobell said.
The individual trusts were created after Indians were placed on reservations in the 1870s, and then some of that land was broken up and redistributed to non-Indians. Individual Indians had allotted land that was put into government trust – giving the U.S. title to the land and management responsibility with revenues from natural resources to be paid back to the Indian owners.
The payments are the landowners’ due for their land, Cobell said.
“We didn’t get that free,” she said. “A lot of blood was lost and a lot of land was lost.”
Cobell was raised about 27 miles outside of Browning on her father’s allotment land, where her parents moved after their wedding and raised nine children. Cobell still lives on the land and loves her Blackfeet heritage and the Blackfeet Nation.
Her concerns about the trust system go back to her childhood, when she heard people saying the Indian agent had their money. Those concerns intensified when Cobell served as the treasurer for the Blackfeet Nation, an appointed position she held eight years.
She would help people wade through huge government documents to understand their trusts and write letters to the government, hoping to help trustees receive payments, but nothing was done.
With her background in accounting, Cobell would look through people’s trust documents, and “it just didn’t make sense,” she said. There were unexplained disbursements and principle deficits, she said.
“Before I brought the lawsuit, I really believed, if I made people aware of what was going on, they would come forward and fix it, they would do the right thing,” Cobell said.
She made it as far as President Clinton’s attorney general.
“I thought when I got Janet Reno’s ear, I was really going to go somewhere,” Cobell said.
Promises were made, and Cobell was sent back to “lower echelon” attorneys, she said. But the system did not reform.
Cobell said she had never sued anybody in her life, but court action was the only remaining option.
“Your conscience got to you; if you didn’t do something, you’re were just as bad as the government,” Cobell said. “There was no other avenue except to file a lawsuit to make them do their jobs.”
Cobell said she knew the suit would be huge because there were so many rumors and stories of trust mismanagement.
“I guess I didn’t realize how universal it was through Indian Country,” she said, ticking off states across the nation where there are litigants and where Elouise Cobell is now a household name.
As the lawsuit moved forward, Cobell said, she was surprised by testimony, especially that billions of dollars had been moved from Interior trusts into the Treasury Department with no good accounting of to which landowners it belonged. The money was used to help pay down national debt, Cobell said.
“Then it really started hitting home,” she said. “My God. They use Indian trust funds, our money, as a slush fund.”
Cobell said she has a farsighted view. “I know things are not going to be fixed in my lifetime,” she said. “I want my grandchildren and my nieces to experience the change.”
The lawsuit has continued through three different presidential administrations, and Cobell has waited out promises from Democrats and Republicans. Each is as guilty as the other, she said. “They haven’t done anything to solve it,” she said.
Now, when politicians and bureaucrats promise something, “I am going to stay right in their faces,” Cobell said.
“This lawsuit screams to the heavens for justice,” she said. “When something horrible happens, something really good happens, too.”
That type of balance has followed Cobell through the lawsuit, she said. During the first year, after some of the worst personal attacks on her and some of the government “retaliation” of withholding checks was the worst, Cobell said, she was awarded the prestigious “genius grant” from the John D. and Catherine T. MacArthur Foundation.
When word got back to her that people in the Interior Department refer to Cobell with disparaging, sometimes crude, names, she learned to hold her head high.
“I don’t care what the government says about me,” she said. “And I don’t care what they blame on me. What I care about is (individual Indians) know someone cares about them.”
Cobell firmly believes the truth of trust mismanagement is what will allow the case to prevail.
“We need to continue to educate people,” she said.
One way that is occurring is through a documentary, “Broken Promises: Indian Trust,” that Fire in the Belly Productions is making about the lawsuit. It meshes historical photos of Indian leaders with comments from modern leaders, including Cobell.
She called the lawsuit a sidebar to her real life, albeit a time-consuming and sometimes tiring one.
She helped establish the Blackfeet Reservation Development Fund Inc. and served as chairwoman of the Blackfeet National Bank, the first Indian bank in Montana and one of the first in the nation. She is now executive director of the Native American Community Development Corp. and works with reservation communities to prepare them for banking and to foster small-business development.
Sitting in her small office in downtown Browning, a space dotted with Indian artwork and Elvis Presley memorabilia and dozens of certificates of accomplishment and letters of appreciation, Cobell said she loves the community work.
But she also takes a considerable amount of time to work on the lawsuit, even looking ahead to the possible need some day to “hit the road and fundraise” to pay attorneys.
“You try to rationalize why you dedicated yourself to this cause,” Cobell said. “I just feel as a person that I need to do something because it can’t stay the same.”
“Especially when you know you’re right,” she finished with a smile.
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