In a crowded federal courtroom near the National Mall in Washington, D.C., on June 20, the first person to testify was Elouise Pepion Cobell, a member of Montana’s Blackfeet Tribe.
Cobell, 65, exemplifies persistence. She grew up in a house without utilities and has worked as a banker and the treasurer of her tribe. Testifying on speakerphone from her home in Browning, Mont., where she was recovering from cancer treatment, she told U.S. District Judge Thomas Hogan: “My great-grandfather was Mountain Chief, the last war chief of the Blackfeet Nation.”
The dramatic hearing was the climax of an incredibly challenging class-action lawsuit, in which Cobell was the lead plaintiff representing an estimated half-million landowners — members of more than 150 tribes. Over 15 years, the case had snowballed into more than 3,000 docket entries, several trials and appeals court rulings. Two Interior secretaries (Bruce Babbitt and Gale Norton) were charged with contempt, and other officials had admitted to destroying key records. A previous judge expressed so much anger against the government that some said he’d gone over the edge, and he was forced off the case. The Obama administration finally broke the stalemate by negotiating a settlement, approved by Congress in 2010. Cobell testified as Judge Hogan evaluated the settlement’s “fairness.”
Both sides wanted to fix a mess that began in 1887, when a paternalistic Congress passed the Dawes Act, based on the assumption that American Indians were incapable of managing their land. That law allotted portions of reservations to individual Native landowners, but also set up a trust system, in which the Interior Department manages those parcels for mining, drilling, grazing and timber, distributing the revenues to the individual owners through Individual Indian Money accounts.
Attorneys for Cobell’s side charged that upwards of $170 billion was missing or stolen from those accounts. In the settlement, the feds agreed to pay $3.4 billion. Less than half of that — $1.5 billion — would be distributed, using complex formulas, to the individual owners, who now have about 11 million acres. The average landowner would get $1,000 to $2,000.
Most of the rest of the settlement — $1.9 billion — would go toward consolidating the “fractionated” ownership that complicates most of the parcels, a result of generations of heirs dividing their property into smaller and smaller percentages for each owner. Interior would use that money to buy some fractionated parcels and return them to tribes.
Only 92 people filed formal objections; 11 of them testified. Many thought the government should be pressed for a full, detailed “historical accounting,” not required by the settlement. “This settlement is nothing more than a cover-up. You know, pitch a few crumbs — a few dollars out here, and get (the Natives) quiet, and now you can never bring up these issues again,” Ben Carnes, a Choctaw from Oklahoma, told the judge. “Who stole the money? … Are they still alive? … Can they be prosecuted?”
Even Cobell said, “I do not think (the settlement) compensates for all of the losses.” But she also believed it was “historical” in how it attempts to address “this century-old injustice. … It is the best settlement possible,” she said.
Judge Hogan agreed: He observed that the feds “mismanaged these resources on a staggering scale,” but concluded that further legal battle probably wouldn’t yield a better result. He approved the settlement, plus a $2 million payment to Cobell, $150,000 to $200,000 for each of the other three named plaintiffs, and $99 million for the lawyers.
It was a genuine milestone, but uncertainties loom ahead. The effort to consolidate so many parcels is bound to be incomplete. Some objectors, and the 1,800 Native landowners who “opted out” of the settlement, might file more appeals and lawsuits. Meanwhile, similar, still-active lawsuits represent more than 100 tribes that have much more land than the individual landowners. Altogether, the tribes own 44 million acres, and the federal government also manages those acres in questionable ways.
Cobell believes another massive lawsuit should be filed, demanding fundamental reform of the Indian trust system. She was among those who spurred Congress to pass reform laws in 1994 and 2004, trying to streamline management and consolidation. Interior is still struggling to carry out those reforms. Interior Secretary Ken Salazar promises to establish a new Commission on Indian Trust Administration and Reform to “undertake a forward-looking, comprehensive evaluation of how the Department manages and administers its trust responsibilities.” Ultimately, Cobell has empowered individual Native landowners and tribes across the country, who now feel they have a right to ask questions and get answers.
This article appeared in the print edition of the magazine with the headline Milestone in Cobell Indian trust case.
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