On Dec. 8, 2009, the United States Court of Appeals for the District of Columbia settled one of the largest class-action lawsuits in the nation's history. Cobell v. Salazar was fought for nearly 14 years in federal courts prior to the $3.4 billion settlement, and is now considered the greatest victory people in Indian Country have ever witnessed.
The case, filed against the Department of the Interior, sought compensation for more than a century of mismanagement of Individual Indian Money (IIM) trust accounts. Since passage of the Dawes Severalty Act in 1877, the U.S. government has accepted responsibility for managing millions of dollars accrued from resource development on land held in trust for thousands of individual Indians. Many see the settlement as merely a drop in the bucket compared to the vast sums American Indians are truly owed.
"We still have a long way to go," Sen. John Tester said in an official announcement shortly after the settlement, "but as a member of the Indian Affairs Committee, I'll keep working with folks on the ground to empower Montana's sovereign tribes and make sure the federal government meets its trust responsibilities."
Lead plaintiff Elouise Cobell, 64, a Montana native and member of the Blackfeet Tribe, first uncovered evidence of account mismanagement by the U.S. Department of the Interior in the early 1990s while serving as treasurer of the Blackfeet Indian Nation. At the time her office was primarily investigating mismanagement of collective tribal trust accounts. But growing concern about the state of IIM accounts and the sums robbed from them over decades prompted Cobell to file a lawsuit in 1996.
The case dragged on for over a decade, with Cobell relying heavily on private donations and a legal team led by Washington, D.C., attorney Keith Harper. Cobell v. Salazer was punctuated by minor victories as well as harsh national criticism. Harper refers to the case as a "long road, a tough road," rife with delays and unique defenses on the part of the U.S. government. Presidential administrations under Bill Clinton and George W. Bush failed to give the situation much attention. Those closest to the case hail President Barack Obama's early interest in the plights of Indian Country, including tours to reservations during his presidential campaign, as a major milestone on the road to settlement.
Cobell has come off publicly as something of a powerhouse over the course of her lawsuit. Part of that reputation stems from her roots as a Montana rancher and the strength of her connection to the Blackfeet. She's the great-great-granddaughter of Mountain Chief, whose refusal to live exclusively on the Blackfeet Reservation launched a manhunt resulting in the 1870 Marias Massacre on the Marias River.
Cobell exhibits that same strain of independence, openly displaying a reluctance to conform to the U.S. government's historical views of Indian Country as a place in need of close federal supervision. She founded Blackfeet National Bank, the first tribally owned national bank in the country, in 1987. Now Cobell runs the Native American Community Development Corporation, a nonprofit affiliate of the Native American Bank.
"Anybody who knows her knows that she has a spine of steel," says Harper, a member of the Cherokee Nation of Oklahoma. "She will speak truth to power without blinking, and she has a profound ability to galvanize people."
The Independent sat down with Cobell at her second-floor office in downtown Browning a month after her historic victory. Surrounded by numerous awards and an impressive collection of Elvis Presley memorabilia—she is an unabashed fan of the King of Rock 'n' Roll—Cobell spoke about the origins of the case, the misperceptions about the victory and, above all, how this is just the beginning of a greater future for her people.
Independent: So how long have you noted problems with the management of Individual Indian Money accounts on the part of the United States government?
Cobell: Forever. We all grew up in our communities, in our families, with people saying they had land and they weren't getting any money. It was just a natural conversation at the dinner table in the evenings, and normally had a lot of relatives and friends and neighbors that were constantly talking about how the government was cheating them. In fact, they've known since the 1800s, when the very first trust was established for individual Indian account holders in 1887, that it was corrupt. In one of the hearings that I had in Congress, [someone mentioned] a newspaper from the 1800s that said, "Indian trust funds in shambles, fraud." So they were reporting the fraud on these trust accounts since the 1800s, and they had a photo of that in one of the hearings.
Independent: But individual Indians had no influence in establishing these trusts, back in the 1800s?
Cobell: It was a trust that was forced on individual Indians. They basically said, "You're all incompetent, you're all stupid. You can't manage your assets so we will manage that land for you, we will collect the money and we will manage it to the highest fiduciary standards." People never had control of their lands, and that was a trust that was forced on the people that's still there today.
Independent: What do you think your chances of pursuing a case like this would have been 100 years ago?
Cobell: If I would have done what I'm doing today back then, I would probably have been dead. The government killed people like me that asked questions, called them renegades. My great, great grandfather [Mountain Chief] was one of those people. He didn't want to conform to staying just on the Blackfeet Indian Reservation because the Blackfeet country was the entire state of Montana. He felt that was wrong. They wanted everyone to stay right here and hand over their firearms. He didn't want to do that. When they had the Baker [or Marias] Massacre back in the 1800s, that's who they were after, Mountain Chief.
I'm sure that anybody who challenged the way we challenged, there would have been hell to pay. Fear, I think, was a big thing for a lot of the Indian people, why they didn't take it on earlier. And they didn't have money to sue. That's why it went on for so long—100-plus years before somebody filed a lawsuit.
Independent: So, in essence, you're continuing what Mountain Chief started?
Cobell: I would say so. It's accountability, and I think the entire thing is making the United States government accountable to Indian people. They said when they did the Allotment Act that they would manage our trust land and moneys to the highest fiduciary standards. Where did that get us? They got away with never having to audit, for 100-plus years...I would say we have to carry on a lot from where our ancestors at one point in time felt they were free and part of this land, and not continue to always live by somebody else's standards. Maybe we should start living by our own standards.
Independent: When you first entertained the thought of this lawsuit and started gathering steam toward litigation, did you realize how big an undertaking it would be?
Cobell: Absolutely not. How we can get justice working with the different branches [of government] and their separations of power—I really believed in that. Gosh, if you could only let the president know. If you could get the attention of the president. I was such a pollyanna.
Independent: Surely having served as treasurer for the Blackfeet for 13 years, you had some idea of the scale of mismanagement?
Cobell: I started working on this with several other financial officers from other tribes—when I was working on the tribal trust accounts—because we knew there was a big mess there. It was through many hearings that a congressman out of Oklahoma who was the real champion in starting this, [Rep. Mike] Synar, began holding hearings and bringing the government in and questioning them on the accounting. He held his ground, and it was through that process that we got started. Then, after we had determined someone was listening, [Rep. Sidney] Yates, who was in charge of the appropriations committee back in the '80s, approved appropriations for the Department of the Interior to reconcile and certify all the trust accounts. Not only the tribal trust accounts, but the individual trust accounts. Congressman Synar put four of us on an ad-hoc committee from Indian Country. So we got to be in the room when they contracted a huge accounting firm to look at these accounts. Every time they reported back, we got to hear what they said and that really empowered us.
Independent: How did your family and friends react when you decided to take on the government?
Cobell: I don't even think they really understood what the effects would be. "Oh, yeah, I'll sue the government." I think every other Indian always says that, but a lot of people don't go through with it. I think in this situation a lot of private people thought, "How's she going to sue the government?" They underestimated what would happen.
Independent: As the case progressed, did anyone believe you had a shot at winning?
Cobell: I don't think a lot of Indian people across the country would think we'd ever have a victory. I used to give these talks after we'd win a great big portion of this case, like in 1999 when the judge said the Department of the Interior was in breach of trust and all the systems were broken and had to be fixed. That was a huge victory. You'd go out to Indian Country and tell people about it and they'd go, "Yeah, yeah, ho hum." I'd go, "What's wrong with winning? Can't you understand what a victory is? You're so used to losing that you don't even understand what it's like to win."
Independent: So how did you convince yourself that you could win?
Cobell: I knew I was right. I really knew I was right, just from being the tribal treasurer and watching how they managed the tribal trust accounts. Money was missing from those accounts and they couldn't reconcile them. I wasn't a super intelligent person. Anybody could just watch the accounts and see that money was going out of them. I wasn't taking it out, and I was the treasurer. So who was taking it out? I knew we were right. And I was just very fortunate to get a legal team...that understood that this was a financial issue, not an Indian issue. They stole money.
I was just thinking of reading you a little note I got yesterday: "I wanted to congratulate you on your recent victory. I just happened to be listening to NPR the day they announced it. I got very emotional about the whole thing"—and these are non-Indians, by the way—"During the '40s and '50s, our family lived at Fort Washakie, and I vividly remember all the oil trucks that passed by our house coming from the oil fields at the north end of the reservation. Members of the tribe would get a small per capita yearly, but it was nothing compared to what they were owed. I so remember the poverty on that reservation and how so much suffering could have been prevented if the government and the oil companies had been fair and honest. I can just imagine how muddled those records were when your attorney was trying to untangle them. My dad, Charles Spencer, was later superintendent up at Browning Agency, and although I am 10 years older than you I am familiar with your family names."
Independent: Just from talking to people locally in the past month, do you think people have a grasp of what this settlement means?
Cobell: Nobody gets it, and Montana is bad for it. My husband was down in Valier or something and someone said, "Tell your wife congratulations, I'm really proud of her. But we don't agree because this is our taxpayers' money that's going back to individual Indians." That's not true. It's our money. It's our own money that they stole from us. And people still think that Indians get government checks. Well, those checks are for the oil and gas and timber...from their own land. People in Montana are the hardest to educate.
I just got off the phone with a lawyer from New Mexico that has worked with tribes for a number of years...He just called to congratulate me, and said, "I hope you understand, Elouise, this is one of the largest victories Indians have ever had in the history of Indian relationships with the government." It is. It's one of the largest, ever, and people just don't get it.
Independent: Over the past 14 years, you've become something of a folk hero in Indian Country. Did you sense that reputation materialize during the lawsuit?
Cobell: There's a lot that stems from not just fighting for justice, but realizing what capacities have to be built into your community so that the government doesn't get away with this, so you don't have to have a Cobell v. whomever. This has really pushed me toward the work I do in community development. I'm the executive director of Native American Community Development Corporation...What we do is really build the capacities of our communities to access financial abilities as far as credit and capital. By having the government managing our assets, we were never able to do that. You could own 320 acres of land and have 20 oil wells pumping on it, and you couldn't get a loan to send your kids to college. What's wrong with that picture?...What I want out of this lawsuit is that history does not repeat itself, that we become smart enough as individual Indians to hold that government accountable if they're going to continue to manage our trust assets...One of these days, we need to say, "Department of Interior, go take a hike. We're going to manage all our own assets." If we allow them to manage as they have in the past, we won't end up with any assets. We'll be gone as a people.
Independent: Your role as lead plaintiff in this case also came with a degree of unpopularity. What criticisms have you heard over the last 14 years?
Cobell: I remember the older people were so accustomed to Indian agents, doing everything the Indian agents wanted. There was one old guy—I was in this big meeting out in the state of Washington—and he says, "You leave the BIA [Bureau of Indian Affairs] alone. The BIA has done nothing." And I said, "So, is that why billions of dollars are missing from our trust accounts?" There were certain things that you had to take on like that, which I didn't mind. I really didn't mind. I kept thinking to myself, "What can they do to you? The only thing they can do to you is kill you. So what the hell, I'll go for it."
The divide and conquer thing was a dangerous situation to be in, but the government has used that very effectively in Indian Country to win. I really didn't take the negatives that seriously. The government did a lot of retaliation against me personally...A lot of lies the government's told. I've been to situations where I'm supposed to speak, and the government's said, "If she speaks, we can't provide the funding for this conference." They can make it hard on you. My income taxes have been audited every year to a degree no one can believe.
Independent: Was there ever a point when you lost faith in what you were doing?
Cobell: When the Clinton administration came in, I really breathed a sigh of relief. I thought, "This is going to be so easy now, because all I have to do is get to the secretary and things will change." Then it was complete stonewall. [Interior] Secretary [Bruce] Babbitt wouldn't even meet with me. It just became harder and harder.
Independent: How did you deal with those moments?
Cobell: There are times that you just have to pray. Fortunately I have a 27-mile drive from here to my home. After they say something like "You can't speak" or "You're stupid," you'd think, "Why did I do this?" I'd be driving and I'd look over at Ghost Ridge, out there at Old Agency, where all those people starved to death during Starvation Winter. They didn't get their rations because the government hoarded their rations, and over 500 people starved to death. They just opened up these big old pits and covered them up. I'd look over there and I'd think, "Oh my God, why do you ever feel sorry for yourself? What would it be like to be a mother and have your children starving with you and dying?" Just like that you'd snap out of it and go, "I'm going to fight them till the end."
Independent: Can you be more specific about those challenges?
Cobell: When I filed this case, I really needed money. I only had $675,000 and I knew that I needed at least $3 million to start out and I was projecting we could have the government settle in three years. I had proposals out to all the foundations that have social justice focuses, then all of a sudden in 1997 I won that [John D. and Catherine T.] McArthur Genius Award. The president of the Lannan Foundation was reading the story in the New York Times and I was the lead-in to the story. So he called his office in Santa Fe and said, "Do you know this Blackfeet woman that won the McArthur Genius Award," and she said, "No, but I just read one of the most dynamite proposals that was rejected by us from her." She read the proposal that was rejected and he said, "Pack your bags. We're going to Browning, Montana." ...We met up in East Glacier at a little café and he asked, "How much money do you need?" And I just was shaking, because I didn't know what to ask for. I said, "A million dollars? I could use a million dollars." He said okay. They spent I don't know how long talking about the case, and by the time they reached the Great Falls airport he said, "We decided we're going to give you $1.5 million." By the time they got back to their trustees and had a meeting, they called me back and said, "We're going to give you $2 million."
Independent: You've been bouncing between Washington, D.C., and Browning, Montana, for 14 years now. How difficult has all that travel been on your life back here?
Cobell: Personally, we've gone through some really tough times. My husband [Alvin] got really sick in 2004 and almost died. He had diabetes really bad, lost his leg below the knee, then got very, very sick and had to be on dialysis. The only thing that was going to save him was a new kidney, so I gave him one of my kidneys in 2004. That was when this lawsuit was going on full-blast. But it was just like the lawsuit; you have to do what you have to do. If you want him to live, then you have to do it. And it saved his life, because it made him eligible for a pancreas transplant in 2006. Now he has no more diabetes. He's healthier than I am, gets around really good. But those were really trying times, and trying to juggle one of the largest class-action lawsuits in history with that was really tough.
Independent: You work a full-time job here in Browning. You've served on the state Board of Directors for the Nature Conservancy and helped start the Blackfeet Land Trust. On top of all that, you and your husband own a ranch. You've been involved in so much beyond just the case in the last 14 years, how did you manage to juggle all that?
Cobell: The lawsuit took me away from things I really loved. I eventually had to get off the Nature Conservancy board, which I wanted to stay on forever. It seemed like every time there was something really wonderful that you could really be happy about and go to, there'd be a hearing.
When I won that McArthur Award, they take care of you for five years, and every year they take people on an expedition. The first year I was there, they said, "We're going to Montana. We're going to visit Egg Mountain and the dinosaurs and Elouise." But the next year it was Turkey. I ran and got my passport for the first time and was all excited to go to Turkey, and that's exactly when our trial started. So I felt really sad about that. In the long run, I've really sacrificed a lot for this case.
Independent: Were those personal sacrifices worth this settlement and everything it represents?
Cobell: I really think it is. Where you really get your strength as an older person who's been through something like this is from younger people. I was back in Washington in Sen. [Byron] Dorgan's office. This young man came up to me—he was from an Indian tribe in California—and he said, "I want to have my picture taken with you. In high school, I read about you." In high school he read about me? Now he's graduated from college and he's an attorney? He kept saying I'm his hero and he just kept saying, "I'm going to keep going because I think what you're doing is so important." So it was inspiration I was able to give to younger people, and to a lot of women. You just can't believe how many Indian women write to me and say, "I'm so inspired, because it makes me want to keep doing what I'm doing or makes me want to go into a career." That's been so rewarding. It's so rewarding to hear back from younger people who think that this was a great achievement and it's given them inspiration to go on and change their lives and do what they want to do.
Independent: Is that what you'll take away from all these years of litigation?
Cobell: I learned this from my parents: Make life better for our children. I don't like all the poverty. I don't like houses that have trashy yards and wrecked cars. I don't like what some of our communities have come to, and I just want to make sure that changes for the future. I know a lot of it is driven by poverty, and maybe we can get out of that poverty mode.
Independent: So what's the next step as far as Cobell v. Salazar is concerned?
Cobell: Getting the settlement approved by Congress. That's a big thing. It'll have to be attached to a bill, because I don't think it's big enough to be a standalone bill. Somehow Congress will have to approve it, and they'll have to do it by the end of February. If not, it'll go to the Supreme Court...We kept that door open.
If Congress approves it, then it goes to the judge for a fairness hearing. He'll hear any complaints, and that's what I tell people. If you don't like it, then go to the fairness hearing. Then it'll be approved and we move on.
Independent: What chance do you think the settlement has of passing Congress?
Cobell: Everybody, even [Sen. John] McCain, has said they support the approval of it. I don't see why anyone wouldn't.
Independent: What's next for you?
Cobell: I really want to work on making sure Native American Bank is very successful. And I think after a couple years I want to retire, continue to work on fun stuff that I've always liked to work on. I love living out in the country on our ranch, where I was born and raised, so I want to enjoy that more. I want to see my granddaughter, Olivia, more...And I'd like to spend more time with the Blackfeet Land Trust, because that's really been neglected and we have to raise money for it. It's one of the last pristine pieces of property that has the plants that exist nowhere else on the Rocky Mountain Front...I'd like to work hard there, fundraising to protect more lands and educate more of our young people to respect the land.
Independent: So you're glad to finally pick up where you left off back home?
Cobell: When I leave Washington, I feel like I'm drained, like everyone's taken all the blood out of me. But as soon as you drive into your driveway and you see those mountains, you're puffed up again...you're back to normal and you're human again.
When you're younger, you think, "God, I just need to get away from here. I don't like it. I want to get someplace where the action is and things aren't as hard." I always wanted to live in the cities. I lived in Denver and I loved it. I lived in Seattle and I loved it. I was never going to move back here. But once you come home, you know in your heart this is where you're supposed to be. It's a good feeling to live here at Blackfeet.