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Cobell and Echohawk: Cobell case is a just and proper cause

Last week, Indian Country Today published the letter of five tribal chairmen criticizing our efforts to seek redress for the Department of Interior's historic and continuing mismanagement of the individual Indian money and other resources in the Cobell v. Norton litigation. While we welcome a constructive dialogue focusing on ways to improve the lives of Indians by improving the systems that impact the governance and management of Indian assets, the chairmen's letter includes several assertions - stated in remarkably harsh terms - that are absolutely false. We appreciate the opportunity to respond and clarify the record.

Since the inception of this lawsuit, our goal has been to fundamentally change for the better the relationship Indians have with the United States regarding the management of our trust assets. We are pleased that now no one - the United States, Indian trust beneficiaries, these tribal chairmen - can say with a straight face that the trust management systems are not severely broken and in dire need of repair. The chairmen admit that but for the Cobell v. Norton case, trust reform and the government's historic and continuing mismanagement of Indian trust assets - funds and natural resources - would remain an issue lost in the bowels of the Interior Department. The more difficult question is how Indian trust beneficiaries will achieve redress for the government's multi-billion dollar failure to manage our assets properly and how to ensure effective trust management systems are in place.

The chairmen believe we should trust the "consultation, communication, and cooperation" promises of this Department of the Interior. History shows, however, that this approach, particularly when dealing with the challenges of creating a trust management system, is doomed to fail because it depends on the good faith of Interior. It is a matter of record that Interior has not acted in good faith with tribes or individual Indians.

Contrary to the chairmen's position, experience has shown us that the only path to true reform is to bring external forces - like a Federal Court - to bear on Interior. Further, we believe that federal officials who are entrusted with management of Indian money and resources must be accountable for their actions, no less accountable than those who manage assets belonging to non-Indians. On this point, we wholeheartedly agree with Senator John McCain of Arizona who has publicly stated that in any other context (i.e. other than with Indians as beneficiaries), trustees committing these type of malfeasant acts would be held criminally liable. Our approach is to ensure accountability when people mismanage Indian assets and that can no more be described as "scorched earth" than holding Enron and Arthur Andersen executives accountable for their misdeeds.

In our efforts to bring positive change for Indian people, we have respected the essential role of tribes in governing their lands and territory. We are thus obviously concerned about the chairmen's allegations that our efforts threaten the inherent sovereign rights of tribes. Indeed, the chairmen go so far as to specifically allege that "an attorney for the plaintiffs has publicly stated that the Cobell suit has the potential to destroy tribal governments." This allegation is patently false. No member of the Cobell team has ever uttered these or similar words. Furthermore, our positions in court belie this allegation. For example, in the Compliance Plan we recently filed before the Court wherein we state our views regarding how Indian trust assets should be managed, we argue that the United States in carrying out its trust management of Indian assets must act in "compliance with governing law" including applicable "tribal law." In other words, we recognize the tribal authority to make laws which the federal government must abide by in the management of Indian trust resources. One can scarcely imagine a more pro-sovereignty statement.

The chairmen also allege that plaintiffs have been unwilling to meet with or hear the concerns of tribal leaders. Again, this charge is baseless when measured against the indisputable facts. Since the inception of this litigation, plaintiffs' counsel has made no less than 20 appearances at either National Congress of American Indians (NCAI) or the Intertribal Monitoring Association (ITMA) meetings precisely for the purpose of engaging tribal leaders on these very issues. Moreover, while plaintiffs invited NCAI to file an amicus brief in Cobell, the United States opposed. The facts clearly demonstrate that the chairmen's accusation that plaintiffs have shown "disregard for - and perhaps even - contempt" for tribal governments is groundless and borders on the absurd.

The chairmen also raise the concern that "plaintiffs' suit has no end in sight." We can understand how a party outside of the litigation may fear this to be the case; after all, the case has been ongoing since 1996. However, we believe that a judgment is now a year to two years away. In the Court's Sept. 17, 2002 decision, holding Secretary Norton and Assistant Secretary McCaleb in contempt for committing four separate counts of fraud on the Court, Judge Lamberth set forth a fairly aggressive trial schedule that will lead to judicial resolution of this case, as well as the likely multi-billion dollar restatement of accounts judgment. A preliminary trial to evaluate the compliance and accounting plans submitted by the parties two months ago will begin on May 1. Soon thereafter, the Court will schedule the accounting trial - the final phase of this case. In short, an end is in sight.

That is why it is curious that now when a multi-billion dollar restatement judgment and accountability seem inevitable, officials within Interior are pushing the notion that there is "no end" and that a congressionally forced "settlement" is the only solution. Tribal leaders and Indian people must not fall for this ploy, and must see these actions for what they are - an attempt to get Congress to step in at the eleventh hour and bail out the government. That being said, we have participated in settlement discussions on numerous occasions with the government. Each time, however, government officials have utilized such discussions as an excuse to delay and acquire information. Yet, as always, we remain interested and willing to engage with the government to resolve this case.

In sum, rather than cast false and bald accusations at our efforts to deal with these long-standing problems, we believe it would be far more constructive if the chairmen asked themselves a different set of questions, including: (1) If the Interior Department is so ready to resolve these issues, why did they discuss the matter with tribes for nine months only to walk away from the table because tribes stated the undeniably reasonable position that reform must include a restatement of trust standards? (2) If Interior will not agree to standards, how can they possibly be acting in good faith? (3) If Interior is acting in good faith then why are they proposing a "settlement bill" that would confer full authority on Secretary Norton to mislead trust beneficiaries? (4) If Interior is not acting in good faith, as the record clearly demonstrates, how can Indian country possibly reach any agreement with those we cannot trust?

We cannot allow the Interior Department, their proxies, or anyone to "divide and conquer" us. The government is losing and they are desperate. They are banking on being able to make us war against one another - tear each other down - while they continue to sacrifice billions of dollars of our money. The choice is ours. We say, let's stop them and make sure that the next generation will not be exploited like our fathers, mothers, grandfathers and grandmothers were and continue to be.

What's wrong with the Indians winning for once instead of the cavalry?

Elouise Cobell is a member of the Blackfeet Tribe of Montana and lead plaintiff in Cobell v. Norton.

John Echohawk is the Executive director of the Native American Rights Fund, who, along with private counsel, represent the plaintiff class in Cobell v. Norton.