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A new tribal perspective on Cobell v. Norton

Certainly there should be gratitude extended to Elouise Cobell and the attorneys who filed the Cobell v. Norton lawsuit (originally Cobell v. Babbitt). The case brought national attention to the present and historic problems caused by the federal government's mismanagement of the trust funds of many Indian people. It is beyond question that the Cobell case's original focus was intended to right many of the injustices to Indian people, to assist in recovering lost funds and to institute reforms so trust funds could be properly and professionally managed. There is little question that had the suit not been filed, the BIA would not have instituted the reforms and begun a comprehensive transformation of the management of trust funds that is now underway.

That said, there are some aspects of this case that need to be examined and discussed at the highest levels of Indian country, of the Congress and of the Bush Administration and there are some absolute givens on which we must not lose sight. We are hopeful that this communication will serve as a catalyst for such discussion. First and foremost, we must remember that the entire nature of the relationship between federally recognized tribes and the United States is described as a government-to-government relationship. Our forefathers signed treaties with the federal government as existing governmental authorities in this country and the rights reserved by those tribal governments extend to the Indian people who are members of those governing tribes. Only through the citizenship in a federally recognized tribe do tribal members receive special benefits including the right to an allotment of land originally held by the tribe.

The Supreme Court has ruled in Morton v. Mancari (1974) that benefits afforded Indian people do not constitute racial discrimination or racial preference due to the fact that tribal people are part of political groups and giving them employment benefits "? to further the cause of Indian self-government ?" is not unconstitutional. Numerous cases have held that the trust responsibility of the U.S. must ensure the rights of tribal governments.

The Cobell case started with the premise to protect Individual Indian Monies (IIM) funds specifically but the plaintiff's suit has no end in sight and the restructuring changes being proposed demonstrate a disregard for - and perhaps even - contempt for tribal governments. Because of the plaintiff's self-described "scorched earth approach," the burden of the Cobell litigation is now falling on the shoulders of the tribes and the people the tribes represent. The Department of Interior has become completely consumed with responding to the non-ending discovery demands of the plaintiffs to the point where the delivery of the services to tribes and individuals has been seriously hindered. Routine approval of leases, probates, and other realty transactions have been severely curtailed while BIA employees are consumed by the scorched earth litigation tactics. Others, such as Assistant Secretary Neal McCaleb have simply resigned in frustration over not being able to institute any positive change.

A key aspect of the trust funds issues that has been lost of late is the fact that 90 percent of funds held in trust by the Interior Department and the Treasury are tribal trust funds, whereas only 10 percent of trust funds are those of individual Indian people. Despite this fact, the remedies sought by the plaintiffs - a group contending to represent thousands of IIM account holders - are clearly intended to enhance the role of Indian allottees and may well do so at the expense of tribal governments themselves. In fact, an attorney for the plaintiffs has publicly stated that the Cobell suit has the potential to destroy tribal governments. It is time for the tail to stop wagging the dog.

The plaintiff's efforts to seek a third party receiver clearly flew in the face of tribal self-governance. Further, the plaintiff's failure to consult with Indian tribes before motioning the court for a receiver or presenting a trust reform plan illustrates disregard for tribal governments. The plaintiffs are asking the courts to institute changes that would demonstrably interfere with tribal authority over trust resources, such as tribal management over lands, minerals, timber and other natural resources. The plaintiffs have refused to accept or understand that tribal and individual interests are inextricably linked. On some reservations, tribes own mineral rights and individuals own surface rights or tribes and individuals own undivided interests in the same allotments. The plaintiff's often-repeated position that their case only affects IIM accounts disregards the reality of land ownership in Indian country.

This is not to suggest that tribal governments are not concerned with their own tribal members. Our beloved grandmothers and grandfathers are what keep us going and the efforts to ensure a better life for our children are what we strive to improve. Tribal leaders are elected to serve their members and can maintain office only with the approval of those members. It is our duty to ensure that individual tribal members are cared for and that their IIM funds are professionally managed and made available when our people have need of them. However, allowing the Cobell plaintiffs to drive a wedge between a tribe and its members severely damages the concept of tribal sovereignty and the ability of tribes to govern their affairs. Is the diminishment of tribal government, the very source of the individual Indian's rights, worth the continuation of litigation without an identified end game? If so, then let's all be prepared for the Bureau of Indian Allottees.

The time is now to come together, to make our people whole again and to fix the management of Indian trust funds forever more. Those people who claim to be representatives of Indian country - but who do not know how to act respectfully toward tribal governments - need to go away or start working with tribes and their elected leaders.

The tactics of some lawyers involved do not mesh with the traditional Indian views on warfare, and warfare is what Cobell has become. As Native American leaders, we have always believed that the sweeter victory is achieved with the least amount of damage to the adversary. Instead of pursuing a "win/lose" solution, it appears that the Cobell case creates the opportunity to resolve some of the injustices against Indian people utilizing diplomacy and negotiation that comports with notions of traditional Native American values. Congressmen and Senators are ready to engage with tribal leaders. The Department of the Interior is reiterating its offers for consultation, communication and cooperation. Let us ignore, as Indian people, the Department of Justice's delay tactics, and let's take the high road by working for a positive solution that also protects the sovereign governmental authority of federally recognized tribes, particularly relative to management of trust resources and trust assets. To do so requires that we engage with the leadership within the Department of the Interior and that those same officials reengage with tribes to determine how a restructured BIA can best serve the needs of both tribal governments and our members.

John Berrey is the chairman of the Quapaw Tribe. Fred Matt is the chairman of the Confederated Salish and Kootenai Tribes (Flathead Reservation). Ross Sockzehigh is the chairman of the Yakama Nation. Burton Hutchinson Sr. is the chairman of the Northern Arapaho Tribe. Ron Allen is the chairman of the Jamestown S'Klalam Tribe.