Righting A Wrong
BY JULIE DELCOUR Associate Editor
Sunday, December 02, 2012
12/02/12 at 3:29 AM
Her Blackfeet Nation name was Yellow Bird Woman but during many years of contentious litigation attorneys for the federal government undoubtedly described Native American activist Elouise P. Cobell in more colorful terms.
Yet Cobell, lead plaintiff in a groundbreaking 1996 class-action lawsuit, never gave up on her dream of seeing indigenous tribes compensated for the government's mishandling of Indian accounts and trust funds.
Unfortunately, Cobell, along with another original plaintiff, Oklahoman and Apache tribal member Mildred Cleghorn, are not around to see the final chapter. Cobell, 65, succumbed to cancer in October 2011, not long after the lawsuit was settled for $3.4 billion. Cleghorn, 85, one of five original plaintiffs, died in a car accident in 1997.
The settlement will pay $1.5 billion to 500,000 Native Americans, including 50,000 Oklahomans. One class of beneficiaries will receive $1,000 and the other class will receive $800 as well as a share of the balance of the settlement funds as calculated by a formula based on the activity in their trust accounts. Some checks will be sent out this month.
The settlement approved and funded by Congress also puts in place a $60 million scholarship fund for young Indians and establishes a $2 billion Trust Land Consolidation Fund. A commission will be created to oversee and monitor the government's management and accounting of individual Indian trust accounts.
Not a minute too soon.
Recipients should savor this moral victory because it's not exactly an individual financial windfall. The payout is insultingly small considering the history of this sordid episode. No one knows exactly how much Indians actually lost. Cobell's forensic accountants estimated the amount was at least $176 billion.
And no one knows how that money might have changed so many Native Americans' lot in life. Over a 122-year history of "managing" accounts, the government failed to account for royalties from mineral, timber and oil rights owed to the trusts. Records were destroyed. In many instances royalties owed account-holders simply disappeared.
This mishandling, well known but little understood among Indians, represented yet another example of the federal government's legacy of taking the low road in dealing with Native Americans. Uncle Sam is better known for wronging a right rather than righting a wrong.
Last week, Tulsa World correspondent Lenzy Krehbiel-Burton, who covers Indian issues, interviewed Julia Lookout, a member of the Osage Nation, about the impending checks.
"I'm still a little gun-shy when they (federal officials) say it's over, because they've said numerous times that it's over," Lookout said. "With the judicial system, you never know whether someone will find a loophole. However, this time, I'm a little less hesitant."
Three years ago, the Obama administration finally did what prior administrations would not do, acknowledge gross mismanagement by the government, and settle the case. Yet even resolution of the lawsuit - a settlement - is not an admission by the government of wrongdoing. Until 2009, government attorneys fought the plaintiffs tooth and nail.
Cobell had worked hard to avoid a lawsuit. For a decade she knocked on doors in Washington but no one listened. She had grown up hearing her people's laments: "My children have no shoes. Where is my money? My house has no running water. Where is my money? We're poor and I cannot feed my family. Where is my money?"
The stories drove her forward. But even securing an attorney willing to take on such a complex case was difficult. She found Dennis Gingold, who didn't take a vacation for 13 years.
The government threw all its resources into its defense. The case included 192 trial days in more than seven proceedings on different issues, 3,600 filings, more than a million pages of discovery and more than a dozen appellate rulings. Government officials twice were held in contempt by a judge. One judge was removed from the case.
The scorched-earth litigation continued when it should have stopped. After a settlement finally was reached, Rep. Tom Cole, R-Okla., noted that past administrations simply refused to acknowledge and correct the obvious that the government had cheated its Native American peoples and would continue to do so unless a system of checks and balances were put in place. Cole, a champion of Native American rights, is a member of the Chickasaw Nation and of the House's Native American Caucus. In 2010 the U.S. House passed the settlement as part of the Claims Resolution Act.
"This legislation brings a fair and responsible resolution to the Cobell case and is a great bargain for American taxpayers," Cole said. "The settlement helps correct a historic wrong and ensures that Native Americans enjoy the full benefit of tribal lands and resources. The bill is fully paid for and will save taxpayers millions in additional costly litigation."
Cobell agreed. Speaking on National Public Radio's Diane Rehm Show, she likened the litigation and eventual agreement to "riding into the cavalry and coming out alive."
She said that she'd tried not to focus on the settlement amount nor to forget the thousands of Indians who died through the years without ever seeing a penny of what was rightfully theirs.
"Indians did not receive the full financial settlement they deserved but we achieved the best settlement we could. This is a bittersweet victory, at best."
There comes a time, Cobell said, when half a loaf - or even some crumbs - is better than nothing at all.
Julie DelCour, 918-581-8379
The late Elouise Cobell, seen here in front of an oil well on the Blackfeet Indian Reservation near Browning, Mont., in 1999, remembered her parents wondering why they weren't getting paid regularly for letting others use their land to farm and drill for oil. As the lead plaintiff in a class-action lawsuit over mismanagement of Indian trust accounts, Cobell took on the federal government in an effort to reform the system responsible for distributing royalties and lease money to Indians for the use of their land. Associated Press file