Elouise Cobell
One of the great ironies of federal-Indian relations became undeniably clear at the beginning of the twenty-first century. The Bureau of Indian Affairs, an agency established to administer programs for peoples perceived as incapable of managing their own affairs, was revealed to be utterly incompetent. Indians had consistently complained about the misappropriation, poor accounting, and outright theft of tribal trust funds and Individual Indian Money Accounts. But these issues exploded into public view in 1996 when Elouise Cobell (1945–2011), a Blackfeet citizen and founder of the first tribally owned national bank, served as lead plaintiff in a suit that called for a full accounting of the trust funds. The government’s response was stunning. After failing to comply with court orders, the Interior Department revealed that it did not know how much was owed or to whom. In 2010 Congress passed legislation to carry out a negotiated settlement worth $3.4 billion. In this document, Cobell recounts the history of the suit and what motivated her to take on what must have seemed like an impossible mission.19
I am here today on behalf of myself and the more than 500,000 individual Indian trust beneficiaries represented in the lawsuit we filed in the Federal court, Cobell v. Norton. I would also like to explain to you that the Blackfeet pray at the Baker massacre on a yearly basis and we pray that the Federal Government will never treat us like they treated us then.20 I also pray on a daily basis going to work on the Blackfeet Reservation at Ghost Ridge where 500 Blackfeet died of starvation because the Indian agent withheld rations.
So, I apologize to you if I hurt the committee’s feelings when I explained what I felt about S. 1439, but that is the only way that I could express myself because I have to tell you that it has been a very difficult task in making the U.S. Government accountable for individual Indian beneficiaries. I did not want to be in a 9-year lawsuit. I think this could have been over very quickly if the U.S. Government would admit that they could not give an accounting to individual Indian beneficiaries. . . . In the 50 principles, the Work Group put forward a reasonable and well-founded aggregate settlement amount of $27.487 billion. This is not reparations. This is not damages, nor is it welfare. It is quite simply a return of a portion of the money that was and is being taken from us. . . .21
Let me reiterate what I have said in prior testimony, there is nothing I would like more than a quick and just resolution to this lawsuit. We are in the tenth year of this litigation. Because of obstruction and delay by government counsel—for which they have been repeatedly sanctioned—justice has been delayed for individual trust beneficiaries. Delay and obstruction is not in our interest. Understand though that trust beneficiaries I have spoken with have—to a person—told me that they want a fair resolution, even if it takes a little longer. They do not want to be sacrificed on the altar of political expediency as they have so many times before.
Since 1887, members of the class have been subjected to injustice after injustice. Report after report for generation after generation have cited the rampant mismanagement and malfeasant administration of the Individual Indian Trust. As you know a congressional report from 1915 spoke about this scandal in terms of “fraud, corruption, and institutional incompetence almost beyond the possibility of comprehension.” A 1989 Investigative Report of this Committee also found similar fraud and corruption. In 1992, the Misplaced Trust Report from the House Committee on Government Operations made similar findings of malfeasance. The Court of Appeals described the disastrous historic and continuing management of individual Indian property as “malfeasance”—not misfeasance or nonfeasance, but malfeasance—and held further in 2001 that the continuing delay was “unconscionable.” Most recently [in 2005], the Federal District Court Judge Royce C. Lamberth—a former Justice Department senior official, appointed to the bench by President Ronald Reagan—who has presided over this case for nearly a decade—appropriately described the utter failure to reform by the Interior Department and continuing abuse of the Indian beneficiaries in this way in a recent opinion:
“For those harboring hope that the stories of murder, dispossession, forced marches, assimilationist policy programs, and other incidents of cultural genocide against the Indians are merely the echoes of a horrible, bigoted government – past that has been sanitized by the good deeds of more recent history, 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. It reminds us that even today our great democratic enterprise remains unfinished. And it reminds us, finally, that the terrible power of government, and the frailty of the restraints on the exercise of that power, are never fully revealed until government turns against the people.
“The entire record in this case tells the dreary story of Interior’s degenerate tenure as Trustee-Delegate for the Indian trust—a story shot through with bureaucratic blunders, flubs, goofs and foul-ups, and peppered with scandals, deception, dirty tricks and outright villainy—the end of which is nowhere in sight.”
I could not have said it better. This property was taken from Indians to be held in trust in 1887 because the US government thought it could do a better job of managing it than Indians themselves. By setting up the trust, the government promised to abide by common trust laws—like investing the property profitably and providing an accounting to the beneficiaries. As you and many others have recognized, the government has made a criminal mess of the situation, and it has only gotten worse over the years. It has failed even the most simple of trustee duties. It is shocking to say, but the government cannot even say how much money is in each beneficiary’s account.
Imagine the outrage if suddenly a major US financial institution were to announce that it had no idea how much money was in each depositor’s account. Imagine the headlines. Imagine the congressional hearings, the class action lawsuits that would be filed as a result. Heads would surely roll on Wall Street.
Yet that’s exactly what has happened here. In the nine years that our lawsuit has been proceeding, we’ve won on virtually every single substantive point. Both Judge Lamberth and the Court of Appeals have agreed with us that the government has done a despicable job—that it has completely failed us—the individual Indians. Understand the extent that we have prevailed. The government argued that they had no duty to account for our money prior to 1994. The District Court and Court of Appeals agreed with us that they did have such a duty and that they would have to account for “all funds.” The Courts held that the duty to account “pre-existed” the 1994 Trust Fund Reform Act. The Courts have also held that the government is in breach of its trust duties. They have held that interest and imputed yields are owed the beneficiary class. The Courts have rejected the government’s position that the Courts have limited remedial powers and that this suit is controlled by the limitations—such as deferential review—of the Administrative Procedures Act. The government’s position that the statute of limitations limits the accounting back to 1984 has been repudiated as well. The government has challenged the court’s jurisdiction; they lost that one too. Time after time on major issue after major issue, the Courts have made clear that the law and the facts are on our side. These have been hard won victories, nine years of brutal litigation that has taken its toll on those of us involved. But we will not sell out individual Indian beneficiaries—we have worked too hard to get where we are.
One would have thought that our government’s response to the wholesale repudiation of its case time and again would have resulted in reforms, acquiescence to the rule of law and obedience to Court orders. Sadly, it hasn’t. Instead, government officials have continued what the Court of Appeals has termed their “record of agency recalcitrance and resistance to the fulfillment of its legal duties” and “intransigent” conduct. Further, not satisfied with flouting orders, government officials have attempted to vilify the Court itself. They—along with certain allies in Congress—have tried to paint the District Judge as a rogue. What is the evidence? There is none. No court filing nor even the whispered slander has identified any fact that Judge Lamberth got wrong. The Court has—similar to the Court of Appeals—simply called a spade a spade and cited the government’s routine and continuing utter disregard for the law.
To be sure, this case continues to be about mismanagement, breach of trust and the victimized Indian beneficiaries—abused by a century of dishonorable dealings. But this case has become something else as well—it has become about the Judiciary attempting to bring an intransigent executive branch into compliance with its crystal clear fiduciary duties and the things that certain Executive Branch officials will do to keep business as usual.
Because of the government’s legendary, obstructionist tactics in this case, it has taken nine years to get to this point, and who knows really how long it will take to get to a judgment. Again, don’t take my word for it; listen to the words of the judge: “Despite the breadth and clarity of the record, Interior continues to litigate and relitigate, in excruciating fashion, every minor, technical legal issue. This is yet another factor forestalling the final resolution of the issues in this case and delaying the relief Indians so desperately need.”
Because of the government’s position in this litigation, we can be assured that we will be litigating for years before we see victory. We are quite willing to do so if necessary, but we would like to find a way to bring the case to a just resolution sooner if possible. We are simply losing too many elders who have waited a lifetime for this debacle to be corrected. Every time one of them dies, my heart breaks. They should see this fixed in their lifetime. . . .
I say these things because I have an obligation—a fiduciary obligation—to represent the many other individual Indians out there who rely on me. Like Mary Johnson, a Navajo grandmother who relies almost exclusively on the few dollars from her allotment she receives to support herself and her family. She receives pennies of what a non-Indian is paid for the gas from her land. Or Mary Fish, a seventy-year old Creek woman, who cannot replace the windows in her small home because she lacks the fund yet there are five oil wells that have been pumping constantly for decades on her land. There are so many more—across every reservation, grandmothers and grandfathers, parents and children all suffering the same indignities of their forebears. And why? Because, in the end, people in Washington have always cared more about their own parochial interest than the Indian beneficiaries. The powerful have always assured that the gravy train for corporations—oil companies, gas companies, timber companies—doesn’t stop. Too many have been willing to cut the expedient deal, despite the negative affect of beneficiaries.
I won’t do that. I’ve promised too many that I will not rest till justice is achieved. We have been in this for nine years and I want an end, but I am prepared to fight for as long as it takes to achieve fairness—to make this right. A century of “fraud, corruption and institutional incompetence” is enough. . . . We have vigorously pursued litigation because we want resolution. We do not care if achieving fairness and stopping abuse of individual Indian beneficiaries comes through litigation, mediation or a settlement act, or arbitration for that matter. The means are unimportant. What is important is that we do so quickly and fairly.
I look forward to continuing our work together to finally and conclusively put an end to the criminal administration of our trust property. We have a chance right now to stop this “fraud, corruption, and institutional incompetence” that has pervaded the system for a century. We will not rest until that is completed and we pledge to work with you to get that done. With help from this Committee, we can make sure that the abuse present since 1887 is not still present in 2007.