No Native American "Trust", Yesterday or Today

In 1996 Elouise Cobell and 500,000 of her Native American compatriots bravely set about righting a 115-year-old wrong with a class-action lawsuit filed against the United States Interior Department. In 1999 they were heard, finally, and even vindicated by the ruling of U.S. District Court Judge Royce Lamberth. Lamberth's was a decision that not only acknowledged the wrong as a matter of public record and ordered restitution to be paid, but also rebuked the U.S. federal government for its egregious and contemptible behavior in the matter.

So what's the latest government shame in question? Literally, a broken trust that dates back to the year 1887.

In that year the passage of the Dawes Act made it possible for Native Americans to privately own property via a government parceling of approximately 138 million acres of reservation land into smaller plots - up to 160 acres to be assigned for individual ownership.

What motivated the federal government to do so?

The author of the legislation, Henry Dawes, seemed to see it as a means to civilize the American Indian, while his contemporary, Senator Henry M. Teller of Colorado, said the legislation was nothing more than a new scheme to remove American Indians from their land to allow resettlement by White Americans.

Native Americans themselves, however, were told the purpose of breaking up their land was in efforts to protect their property rights during the Oklahoma Land Rush and pay for more than 100 years of genocide - in light of the present controversy this seems sadly laughable.

In any event, the right to own was a conditional right. While given the deeds and titles to these plots of land, Native Americans were not given the right to manage the land themselves. Instead, the United States federal government took on this responsibility by holding not only the smaller, individually owned plots in trust, but also the subsequent income the plots garnered from companies leasing the land for grazing, mining, logging, and oil drilling purposes. It is precisely this income that is at the heart of the present controversy.

The payments made by the various companies leasing the Native American owned lands were to be paid out to the Native American owners through the trust fund by the U.S. government in the form of monthly royalty checks. In many cases - at least 500,000 - this has either never occurred due to a system that has lost track of tens of thousands of beneficiaries or not happened with any degree of consistency to have even a modicum effect.

Instead, the trust fund from the time of its inception has become an arrangement that even Gale Norton, the Bush administration's Interior Secretary, admits has created a system plagued by problems; specifically government mismanagement that has fostered corruption and the misappropriation of the fund payments owed to Native Americans.

The incompetence of The Bureau of Indian Affairs (BIA), the Interior Department agency handling the Native American trust fund account (and the only federal agency with a clear mandate to serve Native Americans), in handling this matter is so serious that it is suspected the plaintiffs in this case are owed as much as $10 billion in missing monies.

In efforts to ensure the plaintiffs were completely compensated for past accounting mistakes and in many instances thievery, as well as properly paid in the future, Judge Lamberth ordered the Interior Department to not only repair the $500 million-per-year account, but also required court supervision of the trust fund system for five years - a condition the government resisted. Upon appeal, Judge Lamberth's decision was upheld by the U.S. Court of Appeals for the District of Columbia in a decision commenting, "The trusts at issue here were created over a hundred years ago, and have been mismanaged nearly as long."

Nevertheless, many plaintiffs in this case have still yet to receive a dime of the money owed to them. Many haven't received any payments at all since December due to security breaches in the computer system, which forced Judge Lamberth to order a 10-week shutdown of all Interior Department computer communications. As a result of this computer failure and the failure of Interior Department officials to put in place a system that works, all the plaintiffs have received since bringing their case to the court system are empty promises and half-hearted apologies reminiscent of promises and apologies offered up after the failure of the Dawes Act, and successive legislation created over a 115-year period with the same supposed aim of rectifying an admitted wrong. And now, true to the history of this fund, the Native American plaintiffs in this case still wait for restitution?

Why?

The Department of the Interior claims that one hindrance is in determining exactly how much money is owed and to which plaintiffs (As of February 2002 Tom Kenworthy of USA Today reports the government does not have the current addresses of at least 50,000 beneficiaries). "In general terms, trying to piece together all the information since 1887 is going to be a difficult job," Secretary Norton has testified. She and the assistant secretary for Indian Affairs, Neal McCaleb, both risk being found in contempt of court due to Judge Lamberth's perception that the two have failed to comply with previous court orders to repair the trust fund account and have additionally tried to cover up failed attempts, including the computer system that proved easy prey to hackers. Norton goes on to say in her testimony that, "[Delivering payments] will be blocked in some cases because a particular piece of information has been destroyed," further crystallizing a reality that many of the plaintiffs may never be paid any substantial amount of the monies owed if they are ever paid at all.

This is sobering news to impoverished shareholders who have depended upon the monthly royalty checks that range from a few dollars to several thousand dollars to make house payments and supplement income that is not nearly enough. How do these shareholders live on the rhetoric of lost and damaged records?

The government's foot dragging in this matter would seem to suggest that they are not terribly concerned about the answer. "The way these people have been treated recently is an outrage," comments Representative Tom Udall, a Democrat from New Mexico. Twenty-one percent of his district comprises Native Americans, prompting him to also lend his voice to the mounting groans of dissatisfaction in regards to government handling of the Indian trust funds. "It's just been a huge injustice," Udall continues. "There are people out there living day to day, month to month on these checks, and the pace from Interior has been like molasses in winter."

This is a sentiment that Cobell would agree with as she suggests an alternate perspective on the reason for continued delays in payments: the government simply does not care. "[Secretary Norton] made a very good case for why we need a receiver to take over the system. There's no sense of urgency. She didn't even seem nervous - and I think most people, if called before a federal judge on contempt charges for their documented mismanagement of billions of dollars of other people's money, would at least appear to be upset about it."

So what can be done, while Norton and her staff sift through damaged and incomplete records trying to determine who they should make restitution to, how, and how much? Well, Secretary Norton herself in efforts to seem responsive to Judge Lamberth's demands has already established a new government agency, the Bureau of Indian Trust Asset Management (BITAM) - an agency that is independent from the Interior Department to contend with the trust fund account. However, the creation of such an agency is exactly what the plaintiffs in this case do not want. For one, "tribal officials object that the new agency will just serve as a smokescreen to avoid accountability for the missing money; worse, it reflects an abandonment of the federal commitment to native people that was codified in treaties long ago (Jeff Shaw of The Institute of Public Affairs In These Times)."

But secondly, the creation of such a department falls in line with government action taken following the failure of the initial Dawes legislation, which was repealed in 1928 due to accusations of corruption and misappropriation similar to those presently in litigation. In efforts to compensate for the failure of The Dawes Act, The Indian Reorganization Act (IRA) of 1934, which functioned as de facto Affirmative Action was then passed. When this failed for reasons similar to those behind the failure of the Dawes Act, the Termination and Relocation Act of 1954 was instituted. The result of this new law? No less than the removal of 61 tribes from the government radar screen "leaving hundreds of thousands of Native Americans unqualified for government assistance (International Journal on World Peace, 1993)."

Throughout this 115-year-old debacle the government has repeatedly set up functions of government with the goal of managing the problems with the Indians, instead of managing the problems with the way the United States government regards minority groups. And with the creation of BITAM, the U.S. government is simply creating a new way to avoid this accountability, remaining steadfastly focused upon managing the Indian problem.

Instead of establishing new law or government agencies to manage the uncomfortable, yet justified demands of the Native American community, the government needs to establish clear mandates that respond to the difficulties of the past.

Furthermore, instead of creating new government acronyms and falling susceptible to political survival instincts that say pass the buck, the involved government agencies need to do more to establish a pact of trust with the Native American people - a pact of trust that was initially divorced from the legislation that has created the Indian trust fund fiasco. A pact of trust that would offer what no previous legislation or government agency has ever been able to offer Native Americans like Rosemary Pimms who responds to the trust fund controversy this way: "Nothing new there: the Indian is always last in line."

The plaintiffs in this case do not need additional faulty legislation administered by government agencies still prone to corruption and incompetence.

It shouldn't be this hard for native peoples to obtain justice and fair treatment. That's really what is at issue, especially in light of the fact that Henry Teller's perception of the original legislation that has produced the present situation proved correct. The properties in question are not properties occupied by the Native Americans who own them; corporate settlers occupy these properties.

Moreover, the Native American plaintiffs are certainly not asking for a handout, so why are they being treated as if they were?

Shortly before Elouise Cobell filed her 1996 suit, she arranged a meeting with then Attorney General Janet Reno in an honest attempt to address the problems with the Indian trust funds in concert with the U.S. government, not in opposition or despite the U.S. government. However, instead of a fair opportunity to air her concerns, Ms. Cobell was greeted not by Attorney General Janet Reno, but by Justice Department lawyers and humiliation. When she asked for a special prosecutor, Ms. Cobell says the lawyers laughed at her. Cobell says in response to her treatment, "It gets to the point where they've humiliated you so much that you say, 'I'm going to get you.' And at the end of that meeting was when I said I'm going to sue." And how can Ms. Cobell be blamed (Although, there are some within the Native American community do)?

What other avenues of redress did the government leave her with, but filing suit?

First ignored and then when they would not be ignored, the government attempts to silence and pacify the Native American plaintiffs with empty promises even after two court rulings that say payment is owed. These plaintiffs simply want what is owed to them. The money that allows many of the Blackfeet Nation, the Oglala Sioux, and the Navajo to survive in a country that has historically made no room for them. In the face of this truth, how can the U.S. government hide behind claims of lost and damaged records? What of the lost and damaged native people? Give these people their money.

The U.S. government cannot be allowed to avoid accountability in this matter. Furthermore, the government must be forced to preserve the only honor left of the original legislation that created this travesty in the first place - the talk of protected property rights and restitution for genocide that initially swayed the cooperation of Native Americans already so mistrustful of the American government, and rightly so.

But in a larger context the accountability that is sought by Ms. Cobell and her co-plaintiffs is an important demand as it represents an critical first legal step in the legitimate call for reparations, especially as other reparation cases enter the court system in need of precedence.

Thursday, March 14, 2002