After 11 years of litigation, it’s hard to believe that basic issues about the government’s acknowledged mishandling of thousands of individual Indian trust accounts could remain unresolved. But thanks to the government’s determination to prolong our class-action lawsuit over a scandal that dates back to 1887, many issues remain.
On Oct. 10, that may change. That’s when U.S. District Judge James Robertson will walk into Courtroom 23A in Washington, D.C., and attempt to resolve basic questions about what happened to the individual Indian Trust accounts the government established for 500,000 Native Americans.
Ever since Judge Robertson was assigned the case late last year, he has been asking hard questions. In response to a request we filed, he is going to tackle some of the vital issues that have evaded resolution for years.
We’re talking about elementary issues, such as: How will the Interior Department conduct its long-promised accounting? How many of the thousands of trust accounts must it cover? What standards must the government use? Must it follow the accounting standards imposed on commercial banks and other fiduciary institutions? Or does the government, because it’s the government, get a special pass?
The judge has declared that he hopes the proceeding will give the public a dollar figure as to the amount of “through put”—as he calls it—money that never got to the Indians or their accounts. In short, he wants to know how much money the government stole from the Indians.
Both sides in the case agree that since the trust accounts were created in 1887, roughly $13 billion has flowed to Native American beneficiaries. But while acknowledging major problems with the accounts, the government argues that Indians have gotten most of the money they were due.
We say otherwise. There is documented evidence that Indians were cheated out of revenues that came from our lands. Abuses were widespread as oil and gas leases, timber sales and coal and hard-rock mining agreements were never even recorded, and payments were never made. What records existed were stored in barns and allowed to rot. Rats became the only record keepers at some sites.
Numerous Indian families in the West have watched as oil wells chugged away 24 hours a day on their lands. But their government checks were often minuscule and, in some cases, they stopped coming even as the wells continued to chug.
A major issue facing Judge Robertson will be how the Interior Department can now contend that it is able to recreate many of those lost trust records at an underground records center it has built at considerable taxpayer expense in Kansas. The judge will also have to weigh the fairness of the government’s attempt to use statistics to make up for the many gaps in its records.
We will argue that the government’s plans are nothing more than a field of dreams. Interior Department bureaucrats have argued that the government can fix the trust—if Congress will just keep giving them millions more each year for their snail-paced effort to create records we know are lost.
No one can predict how long the trial will last. It will be an often-technical proceeding, dealing with the fine points of accounting and what the government must do to perform the accounting. On May 31, the Interior Department submitted its latest plan to “complete” the court-ordered historical accounting. Its scheme excludes many beneficiaries from the process, and Judge Robertson must decide whether those exclusions are proper.
Indian families who had trust accounts have suffered losses in the billions of dollars. Much of what they are owed is interest on monies that were never paid on time. Several appeals courts have agreed that the government must pay compound interest to make the Indian beneficiaries whole, and this is what we think is fair. That’s why the government will be fighting so hard to restrict the number of trust beneficiaries covered by the accounting, since reducing the number of accounts can dramatically change the government’s liability.
For our part, we believe that 120 years ago Congress created a trust agreement with Native Americans. It entitled every Indian covered to an accurate and timely accounting. But because the government has so totally failed some of our poorest citizens, a federal judge now has to put on the green eyeshades of an accountant. He must see that these forgotten Americans get justice—and their money back.
Elouise Cobell is a contributor to Writers on the Range, a service of High Country News (hcn.org). She is a member of the Blackfeet Nation from Browning, Montana, and lead plaintiff in the class-action lawsuit, Cobell vs. Kempthorne.