WASHINGTON - When Congress asked Indian country leaders to unite and
develop a plan for trust reform, Indian country met the challenge. Now the
ball is back in Congress' court.
Senate Indian Affairs Committee Chairman Sen. John McCain, R-Ariz., Vice
Chairman Sen. Byron Dorgan, D-N.D. and House Resource Committee Chairman
Rep. Richard Pombo, R-Calif., threw down the gauntlet - and the result is a
set of 50 principles adopted by a national tribal task force that gives
Congress guidelines for developing legislation to change how the Department
of Interior does business with Indian country.
Congress received the list of principles for consideration.
"Now they [Congress] have to deliver, and if they deviate from what we
asked for we will not accept that," said Elouise Cobell, lead plaintiff for
Cobell v. Norton.
A settlement amount of $27.5 billion is one of the principles extended to
the government. According to some accounting experts, the actual figure the
U.S. government owes to tribal members is close to $175 billion: a highly
"That is what I would like to see, but how many people will die before we
get that?" Cobell asked.
"My main concern is to try to get people paid who are older, who have been
victimized by this horrible management. I will never go less than $27
billion," Cobell said.
The largest class action suit ever filed against the federal government
lists 500,000 tribal members who are leased-land payment (Individual Indian
Money accounts, or IIMs) recipients who either have not received any, or
just a portion, of what they are owed. IIMs - money that individual Indian
land owners should have received for grazing, agriculture and mineral
leases on their family lands - are not part of a federal funding program.
"We won the trust reform. It was one of the first victories and it has to
be done," Cobell said.
The plaintiffs have won every judgment in Cobell v. Norton and the result
is that Interior has engaged in reform measures that have been neither
adequate nor acceptable to the court, nor to Congress.
Dan DuBray, Department of Interior spokesman, accused the plaintiffs of
changing the goals midstream.
"They sued to achieve an accounting and the department has spent $100
million on an historical accounting. Now they're saying that's not the
goal. It's an odd turn of events," DuBray told The Associated Press.
Former Assistant Secretary for Indian Affairs Neal McCaleb said there would
have to be an agreed settlement because of a problem in finding all source
documents to obtain historic accountability. McCaleb admitted the
government could not do an accounting.
"I don't know how long Interior can continue to lie to the court. They say
the security system is in place and we find out they have nothing; their
own inspector general said nothing was fixed," said Cobell.
"In the private sector you wouldn't get away with that: you would be in
She said that until there are severe sanctions imposed against Interior,
and as long as Congress continues to let the department get by with
inaction, nothing will change.
The first principle addresses the historical accounting of individual
Indian trust accounts. Congress needs to appropriate the funding necessary
to repay the individuals. The task force stated that to take money out of
Interior or the BIA's budget to repay the recipients would be unjust.
The principle requests a permanent and indefinite appropriation. Since an
accurate accounting is impossible, the principles suggest a lump-sum amount
that reflects the aggregate correction of accounts be adopted as the
Further, legislation should affirm and spell out specific standards for the
administration of trust funds and transactions with clarity of the
fiduciary duties that must be administered in accordance with law.
The task force report suggested the creation of an independent executive
branch entity to provide oversight and enforcement for federal trust
administration, a branch that could not diminish tribal governments'
inherent sovereign authority. This entity would theoretically be separate
from Interior and prohibited from engaging in trust management functions.
The principles requested that the Deputy Secretary of Indian Affairs manage
and administer IIMs. The position would ideally have oversight of the
Office of Special Trustee, and consultation with the tribes would take
place before appointing anyone to the position.
One of the most contentious parts of trust reform and management of trust
assets is the fractionation of land. The principles request that
consolidation of such land take place. A buyback program for highly
fractionated lands would give the secretary the authority to purchase such
land from individuals at a rate higher than the market value.
Another principal suggested that tribal governments be allowed to
repurchase fractionated lands allowing flexibility for cultural needs and
A recommendation for any such legislation would be to affirm that land
consolidation payments would not diminish eligibility for federal benefits
such as TANF, Social Security, Medicare/Medicaid and Veterans Affairs
benefits; and that such payment should not be taxable.
Finally, the principles recommended that Congress provide a fair offer to
the trust recipients which would fairly reimburse the individuals for
decades of mismanagement, and that mismanagement should be treated much the
same as the savings and loan was handled.
One very important point made by the principles calls for Congress to
ensure that individuals who wish to seek redress for federal mismanagement
of their trust resources will not have their rights involuntarily
"The federal government's mismanagement of the Indian trust system for the
past 125 years has brought tremendous damage and loss to Native American
tribes and individuals across the Unites States," said Tex Hall, president
of the National Congress of American Indians and one of the leaders who
participated in the task force.
"This national injustice has today resulted in a historic union of Indian
nations across the country and individual Indian allottee organizations who
are rallying together behind these principles which stand for fairness,
accountability, restitution and honesty," Hall said.
For a complete list of the principles, visit www.indiantrust.com.