Justice delayed but finally delivered

  • Paul VanDevelder

 

When federal District Judge Thomas F. Hogan approved a $3.4 billion settlement with several hundred thousand Native American plaintiffs last month, it was the largest court-ordered payout in the history of the United States government.

The restitution finally closes an unsavory chapter in American history that began more than a century ago, when Congress passed the Dawes Act and threw open Indian Country to settlement by whites. The law not only robbed all the tribes that had treaties with the government -- treaties that involved roughly 120 million acres of their ancestral homelands -- it also turned over the management of any Indian-owned mineral royalties to the Department of the Interior.

Courts were soon picking apart the legality of Dawes, but the flood of homesteaders made it impractical to return all of that stolen land to the Indians. As the years passed, Indian Country turned out to be much more than land for homesteads; it held a treasure chest of gold, silver, uranium, copper, zinc, cadmium, virgin timber, pure water, coal, gas and oil. Though the accounts held in trust for Indian people at the Interior Department should have been swelling with royalties, somehow they never were. Time and again, the evidence presented in the 15-year-old legal marathon known simply as Cobell -- the case that was just settled recently -- revealed that asking the Interior Department to make the captains of American industry play fair was like turning Fort Knox over to a gang of safecrackers.

And they got away with it, year after year. Then, in 1994, as extractive corporations were discovering new oilfields on Indian reservations across the West, along came a feisty woman named Elouise Cobell. A banker for the Blackfeet Tribe in Montana, she had discovered irregularities in her own trust accounts, including the fact that royalties were not showing up as credits in her annual statements.

The research she conducted into the Interior Department's royalty program led her to file a lawsuit in 1996, accusing the federal government of gross mismanagement. Soon, her case grew into an enormous elephant camped out in the government's living room.  On one side were the Department of Justice, the Department of the Interior and the Bureau of Indian Affairs.  On the other side were Cobell and the 390,000 Indian plaintiffs who became part of her suit. Now, all of them wanted to know where their money had gone, and all of them wanted their money back.     

Cobell alleged that the federal government ignored its fiduciary duties to the plaintiffs by absconding with mineral royalties owed to the Indians since the passage of Dawes decades ago.  In 1998, accountants for the firm of Price-Waterhouse told federal District Judge Royce Lamberth that some $50 billion had gone missing from Indian accounts.

In 2003, after twice citing secretaries of the Interior for contempt of court, Judge Royce Lamberth, a conservative west Texas judge appointed by the first President Bush, made a landmark ruling in favor of the plaintiffs: "This case serves as an appalling reminder of the evils that result when large numbers of the politically powerless are placed at the mercy of institutions engendered and controlled by a politically powerful few."

After Lambert was removed from the case at the request of the second Bush administration, which alleged that Lamberth was being "too harsh on the government," in 2008, a new judge, James Robertson, offered the Indians $455.6 million to make their claim go away.

Cobell scoffed. "It's factually wrong and legally wrong," she declared, "so we have to challenge it."  The Department of the Interior filed a counter-appeal but a few months later, Cobell prevailed again.

Eric Eberhard, one of the nation's authorities on federal Indian law, says he hopes the Cobell case will lead to lasting reform in the management and administration of tribal and individual trust assets. "Ultimately," he adds, "the tribes should be managing their own trust assets, consistent with the principles of self-determination and self-governance, without diminishing the federal trust responsibility."

One hundred and twenty-four years after the passage of Dawes, this disgraceful scandal has finally reached a conclusion. Cobell, who is currently being treated for cancer, will receive $2 million. Three other named plaintiffs will receive payments ranging from $150,000 to $200,000, and hundreds of thousands of plaintiffs will receive a check from Uncle Sam for $1,000. At Cobell's request, $60 million will also be set aside to facilitate educational opportunities for Indian students.

"I spent a lifetime trying to get justice," says the 65-year-old Cobell.  "This has been with me since I was a child, hearing about people not having money, hearing people say, 'If I had money I would buy clothing for my child.'  I feel very fortunate that I was able to fight for the under-represented."

Like the plaintiffs, President Obama viewed this lawsuit as a stain on the nation, and he hailed the settlement as "an important step towards sincere reconciliation between the government and the Indians."

We'll see. I happen to think Gen. William Tecumseh Sherman had it right a long time ago. After spending 20 years in the West dealing with white settlers and Indian tribes, he was asked by a reporter in Washington, D.C., to describe the new reservations for the Sioux and Cheyenne.

The Indian reservations are parcels of land set aside for the exclusive use of Indians," said Sherman, "that are surrounded by thieves."

Paul VanDevelder is a contributor to Writers on the Range, a service of High Country News (hcn.org). He is the author of Savages and Scoundrels, the Untold Story of America's Road to Empire, and lives in Portland, Oregon.

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