Blog: Off the Reservation
Elouise Cobell and the Maze of Retribution
By Troy Doney, 8-13-08
Back in June, I was riding back to Missoula with my girlfriend, aunt and grandmother. It’s a long drive from Ft. Belknap to Missoula, so we idled time with conversation, music and news. The newscaster told us about the lawsuit between Elouise Cobell and the Department of the Interior entering into a critical phase.
I was excited. My aunt just said, “We’ll never see a result in our lifetimes.”
On August 9, she was proven right and wrong. U.S. District Judge James Robertson ruled that Cobell and the 500,000 Native plaintiffs were entitled to $455 million. At first glance, that’s a tangible result.
But don’t be fooled. Just because it looks, tastes and feels like a result doesn’t mean that it is a result. This is a pseudo-victory, the smallest of steps forward in a marathon that has barely begun.
An issue in the ruling is the award. Cobell and crew estimated that the trust-holding Natives are owed $47 billion. Judge Robertsons’ total of $455 million is closer to the lower total of the Feds. This is, as my grandmother put it, a slap in the face. Cobell and the attorneys presented factual evidence that much more then $455 million was misappropriated.
I hate to say it, but the $47 billion originally sought may be impossible. This lawsuit has been in court for what feels like a glacial age, against every possible obstacle that the Department of the Interior could think up. There’s a long and grinding appeals phase to go through next, but any monetary award that’s more then a gift card is amazing.
I’m not saying to accept this award, though. Everybody knows that this lawsuit is a long way from being over. There’s a series of appeals coming that will make this trial look like Olympic fencers hopped up on energy drinks and powdered mongoose blood, parrying and striking for hours. This mad appeals process is where everything will start to take its “final” shape, where more can be gained or, God forbid, lost.
It was never really about the money, of course. This was more about the injustice of the situation, to be stolen from for ages and not get even the barest shred of respect in return. This is about legitimacy in the eyes of the government and ourselves. That said, this is pretty damned close to being spat on. It’s a pittance, a faint echo, of the amount originally sought. It’s hard to consider it progress when the mark is reached that badly; the equivalent of dropping a horseshoe at your feet and still winning the game.
One of the other big issues in this lawsuit is that most of the original trust holders are nearing the end of their lives or have already passed on. This attempt at righting wrongs goes missed, the money to be divvied up between their children most likely. The process eventually creates trust holders deserving reimbursement to be in the area of 500,000 trust holders. $455,000,000 divided by 500,000 trust-holders is $910. That would make the final product of this decades plus long trial into a more generous version of the federal stimulus check. A couple months rent, a months mortgage or 364 pairs of $2.50 socks.
On the topic of who deserves what, Judge Robertson chose to not get involved, saying his opinion “leaves for another day the question of how and to whom the award should be distributed.” A good idea for Judge Robertson and for everyone else involved. This lawsuit is all about reimbursing Native American land owners for overdue money from the federal government spanning generations. If there is one area where Native America has created hyper-Kafka styled inescapable labyrinth of bureaucracy and red tape, it would be in land management. Just imagine the unspeakable maze between the beneficiaries and their award, the colossal beasts of federal and tribal bureaucracy. It would take the whole attention of a dedicated, competent and well-funded organization to sort that mess out. Considering the recent track record of federal Native American institutions like the BIA and the IHS, this task could be beyond the capability of apathetic government bureaus.
Judge Robertson also mentioned hopes that the involved parties could come to some kind of settlement before he holds another proceeding. I don’t see that happening. As of August 12, Elouise Cobell stated that she would be filing an appeal “as soon as possible.” The Interior will be up for a tumble, no doubt.
It’s a measure of justice, though. It may be decades late, not nearly enough to compensate, still lagging and toothless, but it’s still some form of justice. Better late then never, right?
At least it was within my lifetime.
Is $910 each a form of justice? Sometimes I think that, to win any real form of justice, a person has to be willing to grow enough personal scar tissue and develop enough generational numbness to be able to focus on justice as some kind of timeless impersonal idea. I think the people who argue these cases for the bureaus and institutions in court approach it that way. They represent something that has no lifetime and so they don't think about lifetimes or in terms of real people; they just keeping their workdays and cashing their checks and figuring that, on a personal level, their pay will keep coming as long as the case keeps going and, from the standpoint of the case, the longer it keeps going the greater the chance that the other side will get old, tired, worn down and start thinking that $47 billion may be impossible and that at least $910 each is something. I think the only way to win against this kind of timeless unblinking opponent might be to be timeless and unblinking too, wrapped in scar tissue and numbness and perpetually sliding and grinding up against the walls of the institution forever like a big rock. Maybe then, they'll get old, tired, worn down and start thinking that $47 billion might NOT be impossible. After all, $47 billion is about what Bush has been spending in Iraq every four months or so. The more I think about it, the more I feel kind of all scarred and numb and timelessly rocklike myself.
Comment By Darcie D. Thinker, 8-16-08Awesome article. I'm anxious to see the feedback from the non-natives. It should provide some interesting opinions. Undoubtedly, there are going to be those who say they didn't do anything to the Indians, why do they have to pay. And then there will those who say Indians already live free, they don't pay taxes, etc. And there will those than are going to get down right rude and racist and get personal. I commend you for writing this article, it is never easy to write regarding the history between Natives and Non-Natives. Good Luck with any future articles you may write regarding Cobell.
Comment By Calvin Twoteeth, 8-16-08We interviewed Elouise Cobelle today in Helena, Montana. If you would like to see the interview, You can view it at www. native-view.com And if you don't have broadband, you can watch it on Bresnan cable t.v. on the Bigsky channel in a couple of weeks. Thanks for the story. It was very interesting!! Calvin Twoteeth
Comment By Thomas M. Wabnum, 8-16-08August 15, 2008
To understand the pain of this article is to have lived it. If this is just daily reading then there is no vision or pain felt. If a bureaucrat reads this then he just did his job. But if you are an accountholder/tribal member that lived on the allotment and trusted the federal government with your daily life, its trust responsibilities and the money generated from the land, then you know what pain this article brings.
There are centuries of history to be learned but imagine living free on unlimited homelands, a safe zone and then forcibly removed under duress to promises of land that is better then home. Your homelands for thousands of years are to be given to encroaching strangers with a lifestyle unknown to you. These glorified promises, written in treaties, render hope forever, if you sign the treaty.
In 1999, the Lamberth Court said:
“The Court ultimately held that the statutes and regulations before it “clearly [gave] the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians. They thereby establish[ed] a fiduciary relationship and define[ed] the contours of the United States’ fiduciary responsibilities” to the individual Native American plaintiffs. Mitchell II, 463 U.S. at 224. In addition to this statutory basis, the Court went to great lengths to emphasize the role of comprehensive control over Indian monies and property:
[A] fiduciary relationship necessarily arises when the Government assumes such elaborate control over forests and property belonging to Indians. All of the necessary
elements of a common-law trust are present: a trustee (the United States), a beneficiary (the Indian allottees), and a trust corpus (Indian timber, lands, and funds). [W]here the Federal Government takes on or has control or supervision over tribal monies or properties, the fiduciary relationship normally exists with respect to such monies or properties (unless Congress has provided otherwise) even though nothing is said expressly in the authorizing or underlying statutes (or other fundamental document) about a trust fund, or a trust or fiduciary connection.”
The fiduciary duty is a legal relationship of confidence or trust between two or more parties, most commonly a fiduciary or trustee and a principal or beneficiary. One party, for example a corporate trust company or the trust department of a bank, holds a fiduciary relation or acts in a fiduciary capacity to another, such as one whose funds are entrusted to it for investment. In a fiduciary relation one person justifiably reposes confidence, good faith, reliance and trust in another whose aid, advice or protection is sought in some matter. In such a relation good conscience requires one to act at all times for the sole benefit and interests of another, with loyalty to those interests.
“ A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.[1] ”
A fiduciary duty [1] is the highest standard of care at either equity or law. A fiduciary (abbreviation fid) is expected to be extremely loyal to the person to whom he owes the duty (the "principal"): he must not put his personal interests before the duty, and must not profit from his position as a fiduciary, unless the principal consents.”
This trust is in the land. The land generates income from leases, sales of natural resources. The highest standard of care should be to take care of the land. This money is then the responsibility of the federal government for the care of Tribes and Indian allottees.
The federal services to date have been all about termination of the Indian, especially the treaties. In 1921, all the treaties were boiled down into the federal trust responsibility to conform to the annual federal budget cycle and their ease.
This trust has not been the highest standard of care. It and the money has been mismanaged, misused and broken. Low ball leases, pennies on the dollar for sale of natural resources, Indian lands given away free, poor investment, low interest rates, everything opposite of a public trust. Why? They stole the Indians’ land and money and they don’t want to compensate them for it. They spend billions defending there past actions of mismanagement and taxpayers money. Why couldn’t the appropriated money be put to better use by building the Indian trust to be tribal self-sufficient and tribal self-determining? Why? Because we are American Indians.
Continuous federal termination efforts are many. But public congressional and federal speeches are still promises of help and hope and the other side of the lips are saying termination by whatever means possible.
So the attack is now on the land that we live on. By not taking care of the land will generate less money. If the land does generate money then what becomes of the landowner? To lessen the liability, destroy the records. Now they want to destroy the land we live on by breaching the fiduciary duty to the land. How? By a perennial and decreasing federal budget to Indian services. Over time, the land is destroyed by erosion, overgrowth, undergrowth, over grazing, unleased and neglected forever.
Termination by probate. The fractionated heir ship problem of hundreds of co-owners on allotted lands generates no income. The only income that many accountholders relied upon since 1887 for their daily sustenance. The probate problem and solution remains unfixed even though the feds knew this hundreds of years ago.
The Courts decision of $455 million does not reflect the human damage caused by the perverse actions of the federal government. Our protector from outsiders but not from them. Our problem is that we believed them; we believed in the treaties, we believed in their federal trust responsibilities, we believed in their Oath of Office, we believed in the U.S. Constitution and now we believe in their trust reform efforts. For 12 years, they have been trying to fix this broken government trust and spent billions to escape responsibility and financial liability at its lowest. Spending a dollar to earn a penny. For their broken trust they allow tribes to have Casinos in lieu of their reckless fiduciary duty.
An apology would not heal the emotional and physical damaged inflicted over the past two centuries. It would be a start but then whom would believe in it.
The Cobell lawsuit is a comic book of federal failures. This lawsuit is also an official record of their failures. It is an attack on the original landowners who cannot make campaign contributions to public candidates. So whatever is their desire to terminate a culture it is an expensive appearance of trust reform at citizen’s expense.
Justice does not prevail in this case.
Thomas M. Wabnum
Prairie Band Potawatomi
IIM Accountholder
Former Federal Programs Relocation survivor
Former Indian Boarding School survivor
Former Tribal Councilperson
U.S. Navy Viet Nam Veteran
BIA/OST retired
The U.S. will NEVER admit it did anything wrong. Indians weren't even U.S. citizens until 84 years ago. How convenient that the U.S. can officially screw us since 1789, but how nice that they at least mention "sovereign, domestic dependent Indian nations" or whatever it says in the Constitution.
The U.S. justice system has NEVER been a friend of Indians. Only when white people's money and property are threatened does the system seem to work. Maybe we Indians should take all of our assets out of trust and put them under the management of corporations, and we'll see who can get sued if things go awry. Cobell will not be won on a class action. How about 500,000 individuals filing suit against the federal government? That might be a little harder to ignore.
The U.S. thinks it can put a government bureaucracy in charge of something (i.e., we Indians and all of our assets) and think it's going to work well. Um, NO. Then it puts the very bureaucracy that CAUSED the mismanagement (I stand by that, Judge Robertson) in charge of reorganizing itself in order to cure the shortcomings. Um, NO AGAIN.
Tribes need to just take control of the management of their own assets. Let's quit pretending that the federal government, whether it's the BIA or OST or whoever, is going to do right by us. THEY CAN'T AND THEY WON'T, and they have the record to prove it.
I'm still in a fog as I wonder how many appeals are in the future. As I see it Ms Cobell is in her 60's and I feel that another 12 years of litigation are really not going to matter. Make a final offer and barter with the BIA and sees what happens. Just a thought. My best wishes go to Ms Cobell and her team.
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