The National Museum of the American Indian, in Washington, D.C.
Photo: Smithsonian

The First National Rural Assembly, held in July, came together to generate change in rural policy, and to honor six “rural heroes,�? too.

One was Elouise Cobell, the former treasurer of the Blackfeet tribe, a founder of the first Native American Bank, director of a Native American community development corporation, and a member of the board of trustees of the National Museum of the American Indian (NMAI). (Recently, Cobell was also elected to the Board of the Center for Rural Strategies, which publishes the Daily Yonder.)

Those attainments would have been more than sufficient to qualify her for rural heroism, but instead the Assembly highlighted Elouise Cobell’s role as the lead plaintiff in the nation’s largest class action law suit, Cobell v. Kempthorne. Cobell and her fellow plaintiffs are asking the government to account for billions of dollars owed to 500,000 Indians and tribes, allegedly lost due to the federal government’s trustee management of Indian lands.

For her role in the litigation, Cobell may be a hero to rural America and the recipient, in 1997, of one of the MacArthur Foundation’s “genius awards,�? but she does not appear to be quite so admired by the Smithsonian Institution, which recently hired Kevin Gover as the new director of the National Museum of the American Indian without consulting Cobell or most of the museum board’s other trustees.

Kevin Gover, a member of the Pawnee tribe, just so happens to be the federal official who fought Cobell for years in court, earning a contempt citation in the process.

Elouise Cobell

When the case was first launched, it was called Cobell v. Babbit; at the time, Bruce Babbitt was Bill Clinton’s Secretary of the Interior, and the Department of the Interior, through its Bureau of Indian Affairs, functioned as the trustee for the Indian lands. Babbitt’s deputy secretary in charge of the Bureau was one Kevin Gover. In court, federal judge Royce Lamberth ordered the Interior and Treasury Departments to produce records and documents of the mineral, timber, and energy earnings of the Indian trust lands. With Gover in charge of the process, Interior told the court it was assiduously gathering the records—at the same time that Interior employees were destroying 162 boxes of documents in a Maryland warehouse.

Declaring that he had never seen more “egregious�? conduct by a federal agency, Judge Lamberth found Babbitt, Treasury Secretary Robert Rubin and Gover in contempt of court and imposed a $600,000 fine. Judge Lamberth refrained at the time from removing Indian lands from the Bureau of Indian Affairs’ oversight. As he left the Clinton Administration, Gover gloated that he had “whipped�? the “dangerous�? and “destructive�? Cobell plaintiffs because the Bureau had maintained its role as trustee.

Kevin Gover
Photo: Arizona State University College of Law

On September 11, 2007, the Smithsonian announced in a press release that it was hiring Kevin Gover to replace the retiring Rick West as director of the National Museum of the American Indian. Only two NMAI trustees were part of the Smithsonian’s search committee. Prior to the news release the rest of the museum’s board members, including Cobell, were never informed of Gover’s candidacy, much less his selection.

Cobell complained loudly and publicly, saying the Smithsonian had treated the NMAI board (statutorily established as an advisory board) as “wooden Indians,�? on display for show but without a voice in the most important administrative decision affecting their museum. In response, the Smithsonian hurriedly convened a phone call with a few of the NMAI trustees and explained that the names of the finalists for the job had been “confidential.�? The NMAI board telephone meeting occurred on the same day that the Smithsonian Regents held a press conference pledging a new era of transparency and openness in place of the culture of secrecy under disgraced Smithsonian secretary Larry Small. Only three months earlier, an independent report on the Smithsonian found that Small’s institution was rife with ethical problems, lavish expense-account spending and lax management.

Had the Smithsonian shared Gover’s name with the NMAI trustees, Cobell might have pointed out his role in the Indian land trust case and the contempt citation he and Babbitt garnered for the Department. According to Elouise Cobell account of the last minute phone conference between trustees and Institution officials, the Smithsonian claimed not to have known about Gover’s role in the Cobell litigation and Judge Lamberth’s contempt citation before it made the job offer.

There are many ironies in this story. The Department of the Interior under Babbitt and Gover destroyed files demanded by the courts that could have revealed critical information about monies owed to a half million Indians. At the Smithsonian this past year, a subordinate was caught trashing files containing critical information about Larry Small’s compensation, travel, and expense accounts.

The departing director of the museum, Rick West, likely knew of Gover’s role in the Indian land trust case. West and Gover had been long time law partners, and Gover said that West had even counseled him on how to answer the Smithsonian’s questions during the recruitment process, according to Indian Country Today. But the information about Gover’s role in the case somehow didn’t reach the Smithsonian regents or the NMAI trustees who were in on the hiring, or so they told Cobell.

To improve the Smithsonian’s operations, Acting Secretary Cristián Samper pledged more frequent and honest involvement of the Smithsonian’s more than two dozen advisory boards, but demonstrated the exact opposite in circumventing the NMAI board with the confidential hiring of Kevin Gover. The Smithsonian’s new policy of treating its advisory boards seriously and professionally was part of Samper’s message at a National Press Club speech titled (incongruously in light of the NMAI incident) “Facts, Fiction, and the Future of the Smithsonian.�?

"I’m troubled by the Smithsonian's actions here,�? Sen. Charles E. Grassley (R-Iowa) said after Gover’s appointment. Grassley has led an investigation of the Smithsonian by the Senate Finance Committee's Republican staff. “After recent scandals, the institution needs to operate with complete transparency, especially when vetting the new leaders of its museums. The management needs to go the extra mile to ensure public trust. In this case, I worry that they have trouble even going the first mile."

The deed is done. The power to hire and fire rests with the Smithsonian regents, not the NMAI board. Gover asserts that he will do a great job and win over his critics, even Cobell herself. After all, in 2000, Gover made a tearful apology for the Bureau of Indian Affairs' "legacy of racism and inhumanity," making him the highest ranking federal official to ever issue such a statement about the country's treatment of Native Americans. Chastened by the Indian land trust litigation, Gover could turn out to be a worthy successor to Rick West. The jury is still out.

But for the Smithsonian itself, the verdict is increasingly obvious. The Smithsonian’s performance in the hiring of the new NMAI head suggests that its current leadership still doesn’t quite get it. Larry Small may have been dragged out of the Smithsonian leaving claw marks on the floor, but he was a symptom of the Institution’s problem, not its sole cause.

The Cobell suit is a vital issue for the tribes. In fact, how many more important issues in the history of Native Americans can there be than the rights to the billions earned from the rural lands Indians entrusted to the federal government to manage on their behalf?

A Seminole leader on the NMAI board summed up the Smithsonian’s mistreatment of the largely Indian members of the NMAI board of trustees:

“It is my opinion that the [search] committee should have known the potential conflict and taken the appropriate steps to inform the board, if not consult with the board on the potential selection. I do not know Kevin Gover and have never worked with him, therefore, I cannot personally attest to his suitability for the job. I must say that due to his tenure with the BIA as well as his actions during the Cobell litigation, I will find it hard to hold him in the high regards that I have for Rick West.�?

The Smithsonian might have elicited some obviously important information about its candidate to lead the NMAI had it simply asked the museum’s advisory board members to advise rather than keeping them in the dark.

Rick Cohen is National Correspondent for Nonprofit Quarterly magazine.