As currently written, the Cobell settlement endorsed by the four named plaintiffs is backwards with the Department of Interior only engaging in remedial measures after everyone signs on for a pittance of what is owed from a true accounting of the land use, leases and depletions of Indian-owned land held in trust by the United States.
I am proposing the following as justice in the Cobell settlement. Right now, there is an opportunity with some of the best legal minds working as attorneys and officials in federal Indian affairs. Based on the presence of these Native attorneys, I have hope that major sustainable positive changes are in reach. Here is my four-part proposed just settlement for the Cobell accounting lawsuit (“just Cobell settlement” or JCS).
1) Remedial measures must occur first in phase one of the JCS. The U.S. must recognize and apologize for its actions as a negligent trustee squandering Indian resources over the last several hundred years.
The federal agencies responsible for trust land management must work together. President Barack Obama has the authority to issue an executive order to make this happen. Department of Interior, Department of Treasury, BIA and the Office of the Special Trustee must coordinate. By executive order, the president may also correct the OST hiring policies and mandate Indian preference in that agency which was created specifically for the management of Indian resources, similar to the Indian preference in the BIA due to its function over Indian affairs. See Morton v. Mancari, 417 U.S. 535 (1974).
By executive order, the president may mandate that the BIA implement highest market value for all leases and uses of trust lands. Furthermore, a review of all leases for individual trust lands should be mandated by 2013 for compliance with this provision. Long-term low value leases require the trustee to step in and renegotiate on behalf of individuals and tribes. This duty has not been taken seriously by the federal agencies responsible for overseeing leasing of trust lands. See United States v. Navajo Nation, 537 U.S. 488 (2003).
2) An accounting needs to occur for all trust lands in phase two. I propose another executive order directed at the regional BIA offices. Each regional office should be charged with doing a full accounting for one reservation every month until all Indian lands are accounted for in the region. The charge should direct that the accounting start on the north side of the tribal territory and proceed south for every parcel of trust land. The best and most efficient way to carry this out is in collaboration and consultation with the Tribal Realty Offices in a joint effort.
For a full accounting, people are needed to compile records, enter data and get the accounts accurate. Internships can be created, the Americorps program can be activated, and temporary contracts with accounting firms can be entered into until this is fully completed.
The collaboration between federal agencies should include cooperation between the Office of the Special Trustee, the BIA, Tribal Realty Offices and Tribal Enrollment Offices to ensure that landowners names and addresses are known.
3) The Department of Justice owes Indian country an apology. In the Cobell litigation, the federal attorneys needlessly turned on the beneficiaries of the U.S. trust system and fought for over a decade to prevent an accounting. This is the same DOJ that tribes must go to and seek representation to uphold their rights because the U.S. Supreme Court has placed barriers to tribes suing states. See Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997).
The DOJ has acted in an abusive manner and yet stands in the role as the only attorneys available to vindicate tribal government rights when states encroach on tribal lands. There must be a separate division within the DOJ that is dedicated to the legal duties involved in the federal trust function for tribes.
4) The last piece of justice is the monetary compensation. Because the U.S. as trustee has been negligent, the U.S. should issue an apology and be prepared to pay a set amount to every Indian landowner under its trustee duties. I propose that justice requires that every plaintiff in the class action receive $1,000 for every year since the Cobell lawsuit was filed until it is settled. This would be for the years 1996—2010 at present. Right now, each plaintiff under this formula would receive $14,000 for the 14-year-old litigation. The four named plaintiffs should receive costs and expenses that they actually incurred and a cap of an incentive award of $1 million each. The attorneys representing the class action should provide records of their billable hours and should be capped at compensation not to exceed $250,000 per attorney.
This would be a just Cobell settlement.
Angelique EagleWoman (Wambdi A. WasteWin) is a citizen of the Sisseton-Wahpeton Dakota Oyate of the Lake Traverse Reservation in South Dakota. She is a licensed attorney and a law professor teaching Civil Procedure and Native American Law.