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Johnnie P. Flynn: If you can't beat em, cheat em

That should be the name of the new strategy by Interior Secretary Gale Norton, et al, at the Interior Department these days in the Individual Indian Money account case, especially since they have lost every round to the Cobell plaintiffs.

A piece of proposed legislation by the Department of Interior is floating around Indian country called, "A Bill to provide for a voluntary incentive program for extinguishment of historic accounting claims related to Individual Indian Money accounts, and for other purposes." It is an interesting piece of writing, given that Judge Royce Lamberth of the IIM accounts trial has recently found Neal McCaleb in contempt of court for failure to do an historic accounting in the IIM case. Since the defendants in the case have allegedly destroyed records related to the historic IIM accounts, it seems a plausible Interior strategy to buy their way of this mess in the cheapest possible manner.

What is most notable is that this proposed piece of legislation comes on the heels of a report to Congress filed with the court in July 2002 which purports to outline the strategy for doing an historical inventory of the money lost, stolen or simply disappeared out of individual Indian accounts over the last one hundred plus years. In that report, drafted out of the office of Assistant Secretary Ross Swimmer, it is alleged that only a little more than 13 billion dollars went through IIM accounts from 1887 through the year 2000.

The report also contends that only a "negligible" amount of the 13 billion was "lost" due to accounting errors, which conflicts with former Assistant Secretary Kevin Gover's statement just before he left the BIA of 20 billion dollars "lost" through the life of the IIM accounts. Square those guesses with the estimate of the principal plaintiff in the case Eloise Cobell on the amount owed individual Indian plaintiffs nationwide of 137 billion dollars. The truth is that without some kind of representative sampling of how much was lost through the IIM accounts no one has any idea how much money was supposed to go through individual Indian accounts. And that "supposed to" is a giant question mark that no one but Ms. Cobell is talking about.

If we listen to Mr. Swimmer, plaintiffs in the IIM accounts case can look forward to pennies in compensation, thousands if Mr. Gover is right, and millions if Ms. Cobell's estimate is even close.

Why the disparity in estimates? Simple.

According to the research strategy outlined in the July report to Congress, the BIA or outside auditors are only going to "reconcile" the beginning and ending balances of the historic IIM accounts. They are not going to take into account oil, gas or timber royalties that were never paid, or simply disappeared on their way to the individual Indian's accounts.

The research "strategy" is to ignore decades of mismanaged resources where timber lease payments, timber royalty payments and oil and gas well-head production figures were fudged in order to keep from paying to Indian account holders what they were really owed.

If this proposed legislation is passed, - and with oilmen in the White House and Republicans in control of the purse strings in both houses of Congress, it has a good chance of passage, - it is cheating on a scale that has never, ever, been seen in Indian country.

Under the proposed legislation, cash offers will be made only to those individual Indians who were supposed to receive oil, gas and timber lease or royalty payment. An "accounting" will be done, and once the account holder receives a statement or "reconciliation," they will have 60 days to appeal that accounting or forever lose their rights to do so.

Interesting point, because consistently the BIA and Department of Interior have said they don't know how much money was lost or stolen, and have no idea where all the records are in the case. Put simply, the Department of Interior in this legislation is hoping to avoid having to do an historic accounting by offering a payoff based on figures pulled out of the air. If the history of Indian treaties is any guideline, and it appears that Interior officials know their history, the "extinguishment" of the claims will be the lowest number they can invent and offer without recourse to appeal once the check is cashed.

What is most disturbing about this mess is the lack of information being given to Indian people nationwide by the Indian and tribal press. Most of the tribal press here in Oklahoma was deafeningly silent in the recent election, and as a result the list of anti-Indian legislators elected from Oklahoma grew again with this election.

The BIA in Anadarko have recently mauled individual Indian rights in the Texas Kickapoo case and continue to waffle in the increasingly dangerous Seminole standoff over exactly who is the tribal chairman and council. Even with their hands full with those cases and others, one can imagine the BIA folks crowding the exits to get out and knock on doors throughout the state peddling to individual Indians this payoff for pennies on the dollar.

My question is, why is everybody so silent? Indian people are about to be swindled on a level not seen since the treaty days, and no one is saying a word.

Johnnie P. Flynn, Ph.D. is a Potawatomi Indian from Oklahoma. He graduated with honors in History from the University of California at Santa Barbara, was the first American Indian to receive a Ph.D. in Native American Religion from the University of California at Santa Barbara and is currently a free lance writer.