Cobell, settled at last
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I remember the first time I learned of the Cobell case. It was several newspaper-lives ago. Over the years I collected lots of paper, listened to lawyers explanations and written a bit about the litigation.
The original complaint, filed in 1996, said at least 300,000 individual American Indians were victims of a gross breach of trust because of the way the Interior Department mismanaged Individual Indian Money accounts. IIM accounts hold money for individuals from land or natural resource payments as well as other transfers.
I remember thinking at the time about first-hand encounters with such record keeping. One Bureau of Indian Affairs agency superintendent told me that short-term interest from IIM accounts could even be used as a “secret slush fund” for urgent and unbudgeted expenses.
Elouise Cobell’s fourteen-year litigation was both complex and simple. The sheer volume of paper filed with the courts was extraordinary: Thousands of pages of documents, several trials, appeals, and plenty of contempt of court sanctions along the way. The case was also simple, based on this question: Can the government, acting as trustee, account for how it managed individual Indians’ money?
The U.S. District Court in DC answered that question this way: “No real accounting, historical or otherwise, has ever been done of the IIM Trust.” Indeed, as late as 1995 the Interior Department testified it was destroying records that could be used for reconciliation of these account.
Has the United States, the trustee, fixed this problem? The short answer is who knows? But possibly.
“My greatest optimism about this settlement, however, is the hope it holds for significant and permanent reform in the way the Departments of Interior and Treasury account for and manage Individual Indian Money accounts,” Cobell said in a statement last year.
The Interior Department is also optimistic. “One of the benefits of the Cobell litigation is the accounting has proceeded over the last ten years, literally tens of millions of dollars have been spent to straighten out the accounting and to have a solid accounting going forward,” said Interior Deputy Secretary David Hayes on Monday “Part of the settlement, essentially, validates the account as it is today. We are confident we have the right numbers and a good baseline for going forward.”
Another part of the settlement -- a process to consolidate land -- could make that system work better as well. As the district court noted, “although the documents necessary to complete adequate accountings are available, the accounting process is extremely expensive, often dwarfing the dollar amounts reflected in beneficiaries’ accounts.”
Trying to keep track of small lease payments for a piece of ground owned by dozens of heirs is damn near impossible. The settlement creates a $1.9 billion fund so individual land owners can sell their share back to a tribe. The idea here is the settlement can unlock land now essentially frozen by multiple heirs who own it.
A few years ago the judge who was then on the case, Royce Lamberth, wrote: “It may be that the opacity of the cause renders the Indian trust problem insoluble.”
The Cobell case was always both legal and political. The legal case was clear because there was no defense against mismanagement of trust money. Either the government could account for its management of individual Indian accounts or it could not.
But the political case has always been much more iffy. No administration -- until the Obama administration -- was willing to pull out all the stops to reach a resolution. And, even then, Congress would still have to own up the government’s mismanagement and pay for those mistakes. What’s remarkable about this settlement -- and the pending congressional resolution -- is that we may be at the only point in history where the votes are there to make it so.
The insoluable? Perhaps no longer.
Mark Trahant is a writer, speaker and Twitter poet. He is a member of the Shoshone-Bannock Tribes and lives in Fort Hall, Idaho. Trahant’s new book, “The Last Great Battle of the Indian Wars,” is the story of Sen. Henry Jackson and Forrest Gerard.
Essays in the Just West blog are not written by High Country News. The authors are solely responsible for the content.
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The water rights settlement was passed by Congress on Tuesday to meet Native Americans’ needs for access to clean drinking water in tribal communities. The four settlements contained in the legislation approved by Congress on Monday refer to the White Mountain Apache Tribe in Arizona, the Crow Tribe in Montana, the Pueblos of Taos the Aamodt Settlement in New Mexico. The centerpiece of the agreement will ensure the construction of water infrastructures, rural water systems and irrigation projects.
Secretary of the Interior Ken Salazar expressed great satisfaction with the legislation. “Congress’ approval of the Cobell settlement and the four Indian water rights settlements is nothing short of historic for Indian nations,” he said.
Native tribes are waiting for the President’s final signature of the Claims Settlement Act to celebrate the news.
But if many tribal members see the Act as a victory, others remain hesitant to declare justice done. In many parts of Indian Country, water rights remain a contentious issue that still needs to be addressed at the tribal, local, regional and federal level.
Water shortage, lack of access to water, drought, contamination, and water-related sickness are issues that many tribes, including the Navajo, the Onondaga, the Havasupai and the Lakota Nations (to name only a few) are struggling to overcome despite limited political attention.
“I support these settlements and my administration is committed to addressing the water needs of tribal communities. While these legislative achievements reflect important progress, they also serve to remind us that much work remains to be done,” President Obama said.
And President Obama is right. Much work remains to be done.
12 percent of American Indians lack regular access to clean water. And if this statistic is not compelling enough to you, take the whole population of the District of Columbia and deprive all them the use and access to clean drinkable water. Now, you get a quick picture of what 600,000 American Indian go through on an everyday basis in Indian Country.
Isn’t it ironic to hear U.S. experts telling people in Haiti who are now confronted with the deadly epidemic of cholera that they should be drinking and using clean water, when the U.S. government itself is not even able to provide clean water at home?
Americans wouldn’t like their country to be labeled a “Third World nation”. And with a per capita GDP of US $46,000 per year, it clearly isn’t. But if a country with such financial and technological capacities fail to provide almost one million people with what the United Nations considers to be a “human right that is essential for the full enjoyment of the right to life”, surely, something is wrong.
We have reached a point in American politics where indigenous peoples’ rights have been overlooked that the implementation of a basic human right has to be measured in terms of the increased cost it represents for the Congressional Office. We have reached a point in American politics where indigenous peoples’ rights have been so overlooked that tribal leaders from the four designated tribes are celebrating something that should have never required years of political struggles and legal battles. Access to clean water is an inherent human right, not something that one should be fighting for.
It took 43 years of litigation for people of the Aamodt settlement to prove this.
On Monday, their voices were finally heard. But if the enactment of the water rights settlement marks a milestone in Native American history, it also reminds us that the road to justice for tribal people has been, is, and will be long.