Marker for the allotment near Pine Ridge, S.D., made to Basil Brave Heart's father with the 1887 Dawes Act
Photo: Pine Ridge Project Blog
The announcement of the federal court’s recent “resolution” of the Cobell case brings up some bad feelings for me. It's like bumping my gall bladder surgery scar. It hurts like hell and reignites my anger at the surgeon and the improbability of his being held accountable for botching a routine operation.
Last week, federal Judge James Robertson ruled that plaintiffs in the Cobell case are due $455.6 million for the historical mismanagement of Indian trust funds. This is a fraction (less than 1/100th ) of the $46 billion sought in the latest suit.
The Cobell case is the outcome of a class action lawsuit filed 12 years ago; it has sought redress for gross breaches of trust by the U. S. Department of the Interior, Bureau of Indian Affairs and U. S. Treasury with respect to the management of over 500,000 individual Indians' money collected for use of their lands. In 2001, the U. S. Court of Appeals upheld an earlier federal judge’s opinion that the U. S. government had breached its trust responsibilities to Indians. The lead plaintiff in the case is Elouise Cobell, a Blackfeet woman from Montana.
During an interview with Brian Bull of Wisconsin Public radio, she was clearly upset over the recent decision. “I really truly believed the facts in the law were on our side,” she said.
Elouise Cobell testified before Congress in 2002 about mismanagement of Indian funds with (left) Tex Hall, president of the National Congress of Indians, and Jimmy Goddard, a fellow Blackfeet
Photo: Terry Ashe for AP
Further, she indicated that the plaintiffs were giving the U. S. a hell of a deal by reducing their initial claim of $100 billion. She and her fellow plaintiffs are planning an appeal.
Although the Cobell case is the largest class action lawsuit ever filed against the federal government, it has not received much media attention. The mainstream media's strange neglect of American Indians seems to come from the view that we are denizens of ancient history (meaning anything that happened more than 20 years ago).
In fact, explaining the Indian trust fund story does requires journeying into ancient history.
In response to white settlers' and entrepreneurs' never ending hunger for land, the U. S. government enacted the Dawes Act in 1887. This policy sought to break up Indian land holdings by allotting small parcels of land, 80-160 acres, to individual Indians who had already been pushed from their land onto reservations through treaties. The government as trustee then took legal charge of the parcels and established the Individual Indian Money Trust to manage and collect revenues generated by mining, oil, timber, grazing and other interests. The money was then to be have been distributed to the allottees and their heirs.
There was trouble from the very start. The Trust was handled in a sloppy and criminal manner. There have been numerous allegations over the years that large oil, gas and coal interests may have received special deals from the Bureau of Indian Affairs for use of Indian lands. Some revenues were not collected, or if collected were distributed spuriously. Despite several court-ordered attempts at reform, the system continues to be hopelessly incompetent. In the words of Judge Lamberth's opinion finding the government guilty of mismanagement, “the Interior Department's handling of the Indian Individual Money Trust has served as the gold standard for mismanagement by the federal government for more than a century."
For many Native Americans, many of whom live on hardscrabble reservations, the Individual Indian Monies are used for basic necessities.
It may come as a surprise to many Americans that the obligation of the U. S. government to fulfill its trust responsibilities to Native Americans has its foundation in the very heart of federalism. The VI Amendment of the U. S. Constitution recognizes Indians’ special sovereign relationship with the United States. Treaties are not simply quaint relics from ancient history; they are binding agreements between nations.
I am reminded of a conversation I had with an elder on the Rosebud Reservation about the willful disregard non-Indians seem to have for treaty rights. “I tell those (white) guys, 'You know if your relatives had negotiated an agreement entitling you to receive payment for use of your land and holdings, you guys would be carrying around copies of those agreements in your back pockets ready to wave around if you weren’t getting your just payments.'”
Unfortunately, just like my gall bladder scar, the Cobell case looks like it will continue to cause pain and injustice for years to come.