For most of its 122-year history, the government trust fund program that pays American Indians royalties for use of their land has been a tragic mess, plagued by bureaucratic mismanagement and accusations of flat-out theft.
Tribal members have long contended that they are owed billions of dollars in unpaid dues for farming, grazing, timber-cutting and other government leases on their land dating back to the 1887 federal act that broke up reservations and gave Indians individual parcels.
Too many individual beneficiaries are dying every day without their money. At least this settlement will give those people a payment.
Records about who owns — and are owed — are scattered across the country in remote locations and dusty files, or simply don't exist.
And many tribal elders waiting for their rightful recompense have been dying in poverty.
That, perhaps more than anything, says Indian activist Elouise Cobell, is what persuaded her to agree this week to settle her 13-year legal fight to force the government to account for what's due to a half-million Indian landowners, and to pay up.
She joined administration officials Tuesday in announcing an agreement under which the government would spend about $3.4 billion to pay out a fraction of the unpaid royalties claimed in the lawsuit, and to help tribes acquire small, Indian-owned parcels to establish larger, more usable tracts.
"Too many individual beneficiaries are dying every day without their money," said Cobell, a banker and member of Montana's Blackfeet Tribe.
"At least this settlement will give those people a payment."
Said lawyer Keith Harper, who has devoted the past dozen-plus years to arguing the case: "There are times to fight wars, and times to make peace."
"This is an important first step," he said, "in laying a foundation for a healthier relationship" between Native Americans and the U.S. government.
Long Fight, Long Paralysis
In 2004, some estimates put the royalties owed at more than $137 billion. If it were only up to her, Cobell said Tuesday, she would have fought on for another 100 years to right the royalties wrong.
But other Indian leaders expressed relief at the long-sought settlement — and not just because the Obama White House had moved to devote money and effort to resolve the groundbreaking struggle.
The cost to the government to defend Cobell's class-action suit, coupled with the major issues it was set to resolve, had essentially brought to a halt government action on a host of other urgent issues in tribal communities — from law enforcement and water rights to health care and education.
Many tribal leaders and their legal representatives, stymied for years in their efforts to move other issues forward, had agitated for a settlement much earlier.
"The lawsuit created paralysis within the federal government's relationship with tribes in many areas," says Henry M. Buffalo Jr., a St. Paul lawyer representing Indian interests and member of the Red Cliff Band of Lake Superior Chippewa Indians.
"For many years, tribal leaders have been saying to the Cobell plaintiffs, 'You've got to get this settled,' " Buffalo says. "The [royalty] amounts are important, but from an operational standpoint, we needed to get it behind us."
When computer hackers got into the trust fund files in 2001, the court ordered the entire federal Internet function devoted to Indian affairs shut down. It remained down for seven years.
"For years, the bureau was behind the rest of the universe in terms of communicating with tribes," says Mark Anderson, one of Buffalo's law partners and a former Interior Department lawyer.
An Obama Priority
Members of Obama's transition team at the Interior Department, which oversees the troubled Bureau of Indian Affairs, say that settling Cobell was a priority for the new administration.
"I can certainly say that this was one of the issues that came up repeatedly as we did our outreach to employees, as well as to the Indian community," says Robert Anderson, an associate professor of law at the University of Washington's Native American Law Center.
The plaintiffs made forceful arguments for a strict accounting of past-due royalties, Anderson said, but, given the condition and scattered locations of records for accounts that numbered in the hundreds of thousands, it had become increasingly clear that wasn't possible.
"It was a case that really cried out for settlement," Anderson said, characterizing the battle as "bitter, bare-knuckled litigation."
"It's great to see that it's reached this settlement that will allow the department to put this behind them," he said, "and work on fixing the problem, and to deal with other pressing issues."
Tribal Justice?
The proposed settlement, which has to be approved by Congress and the court, would send an initial $1,000 payment to all beneficiaries. A distribution model would be developed to award the remaining $1.4 billion royalty award, Cobell says.
In addition, another $2 billion would be used by the government to buy, in trust for the tribes, parcels of what are called "fractionalized" land interests — parcels that have been divided and redivided among tribal heirs over the past century or so. The voluntary buy-back program, says lawyer Harper, would allow tribes to piece together larger parcels that could be used more productively — and under tribal control.
The administration has also proposed a new commission to oversee the management of the Indian trust in the future. Indian leaders and their legal representatives say the board should be comprised of Indians to encourage a rebuilding of trust.
The settlement still isn't a done deal, but it appears to be on its way to approval — an important step, Buffalo says, in fixing the destroyed federal-tribal relationship.
As for Cobell, whom Harper placed in league with rights activists Rosa Parks and Cesar Chavez, she says she accepted that the Justice Department would litigate this "till hell freezes over," and the settlement is simply a solution to a "long, long trial."
"Did we get all the money that was due us? Probably not," she said.
But it will provide many with "some money, and some peace of mind," she said. And given the troubled history of the Indian trust fund, that's no doubt as good an outcome as she permitted herself to expect.
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