Cobell: More than a question of dollars

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When U.S. District Judge James Robertson agreed to issue an order that will speed our appeal in the long-running Indian Trust lawsuit, he suggested our action is largely dictated by concerns over the $455.6 million which he says the federal government owes trust beneficiaries.

“What the plaintiffs are most exorcised about is that this dollar [amount] has two fewer zeros than they wanted and one fewer than they really thought they were entitled to…,” he declared during an Aug. 28 hearing.

He is partly right. Our case has always been about the money of Indian beneficiaries and how the federal government has treated some of the poorest people in this country. But it has mainly been about accountability – the accountability of our Trustee.

From the filing of our lawsuit in 1996 to today, we have been clear that our aim is to right one of the biggest wrongs ever committed against Native people by the federal government.

But there is much more than the dollar amount that is upsetting about the judge’s Aug 7 order. It is how he reached his dollar figure and how he has rejected key tenets in the cherished trust relationship between Indians and the federal government.

That relationship is vital to so much of daily life in Indian country that any ruling that chips away at it should be worrisome. It is one of the major reasons we decided to appeal the ruling.

If left unchallenged, the judge’s ruling will undermine the current relationship, allowing exceptions to the basic concept that Native people must not be accorded second-class status under the trust relationship.

Two U.S. Supreme Court rulings have provided the legal foundations of Indian trust relations, spelling out that the federal government does have a deep obligation and historic commitment to Native people.

But read Judge Robertson’s ruling and you’ll discover that he does not take that obligation as seriously as the nation’s highest court has. Instead he seems to offer excuse after excuse for the government’s acknowledged mishandling of Indian accounts. He says, for example, it’s not fair to impose the same standards on the government-run Indian Trust that a small town bank would face. He says it’s too old, too large and run by civil servants and therefore the usual trust rules cannot apply. Whose fault is that? The beneficiaries are blameless, yet they are made to pay the price as Judge Robertson sees it.

“The rules that identify and govern a breach of the accounting duty for a simple, 25-year trust with a single beneficiary cannot be applied, unaltered, to a 121-year old perpetual trust, managed by civil servants, with rapidly multiplying beneficiaries and a variety of ever-changing assets,” he declared.

Those trust rules apply, he says, to “a garden-variety trust” not a big government run Trust. He mocked our effort to apply the trust rules we seek to apply to the Indian trust operation, saying we were demanding “super strong” regulations. Strong, yes, but the rules we seek are no stronger than those other trusts face.

We think Judge Robertson is just plain wrong. The trust rules we believe the government must follow are the ones that the Supreme Court clearly laid down in the two cases, White Mountain Apache Tribe v. Bracker and United States v. Mitchell (Mitchell II). In both cases the trust rules are specific and, yes, they are burdensome to the government.

In 2003, the high court ruled that the federal government’s trust responsibility is so encompassing that it must maintain the former Fort Apache Military Reservation in Arizona. Congress declared the old fort was to be held in trust by the federal government the White Mountain Apache Nation in 1960. The Interior Department, not surprisingly, let the fort fall in ruin even though it was listed as a national historic site. The tribe sued for damages and the Supreme Court agreed with its claim.

“…Elementary trust law, after all, confirms the commonsense assumption that a fiduciary actually administering trust property may not allow it to fall into ruin on his watch,” said Justice David Souter in the 5 to 4 ruling. Here the court laid what the Bush administration had resisted as an onerous burden on the federal government.

This should not have been a surprise. White Mountain Apache follows the precedent in trust relations that the Supreme Court set in Mitchell II, a 1983 case. The Supreme Court used Mitchell II to define the government’s trust responsibility to Indians in much stronger and broader terms, reversing a previous ruling that spoke of “limited” responsibility.

The issue in Mitchell II was the government’s Trust responsibility to manage forest lands for individuals in the Quinault Tribe in Washington State.

The high court declared that “the statutes and regulations now before us clearly give the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians. They thereby establish a fiduciary relationship and define the contours of the United States’ fiduciary responsibilities.

“…All of the necessary elements of a common-law trust are present: a trustee (the United States), a beneficiary (the Indian allottees), and a trust corpus (Indian timber, lands, and funds),” the court declared in what was a critical 6-to-3 ruling.

“…Our construction of these statutes and regulations is reinforced by the undisputed existence of a general trust relationship between the United States and the Indian people. This court has previously emphasized ‘the distinctive obligation of trust incumbent upon the government in its dealings with these dependent and sometimes exploited people.’”

Contrary to the Supreme Court’s declaration that the traditional rules of a private trust shall apply to the IIM trust, Judge Robertson says that he can – and does – make up as he goes along special, novel and different rules to govern the Indian trust, none of which is favorable to Indian beneficiaries.

What is important about both White Mountain Apache and Mitchell II is that the Supreme Court describes the Trust responsibility as a strong, vibrant relationship in which the federal government must commit considerable resources and follow the same obligations general trust law imposes on any trustee. It made no exceptions and provided no waiver for the government simply because it is the big, federal government.

The high court assumed that the government entered into these trust relationships knowingly and willingly. There is nothing in the laws creating the Indian Trust that suggests that Congress was creating a second-class trust for Indians. Congress has never said it’s just too hard for the federal government to meet the same standards as a small-town bank.

But, sadly, that’s just what Judge Robertson’s order does. It declares that Indians don’t qualify for a regular trust, or the same protections accorded, as he puts it, a “garden variety” trust.

That’s why I am deeply alarmed by his ruling. It creates so many exceptions to what is the government’s Trust obligation that it weakens every trust agreement between the federal government and Native people.

It should not be allowed to stand.

As for the money, we intend to tell the U.S. Court of Appeals for the District of Columbia that the judge was wrong here, too. Under trust law, we believe we’re entitled to interest on the $455.6 million. He gave us no interest, even though the trust laws make clear interest was to be paid Indians for all monies the government holds for them.

We also believe that under trust law we are entitled to any benefit that the federal government obtained from the use of the Indian monies it did not promptly pay out to beneficiaries. By our count, the federal government obtained a benefit totaling $47 billion by its mishandling of Indian money.

We think we are entitled to that sum, just as any other wronged trust account holder would be.

We are not seeking special benefits. We simply want the Indian Trust to be administered as are all other trusts. It is not a second-class trust.

Elouise Cobell is a member of the Blackfeet Nation from Browning, Mont. She is the lead plaintiff in the 11-year-old class action lawsuit, Cobell vs. Kempthorne, which challenges the federal government’s admitted mismanagement of the Indian Trust.