WASHINGTON - When the trust funds litigation in Cobell and other cases are finally resolved, people like lead plaintiff Elouise Cobell, her fellow plaintiffs in the class action lawsuit, a cast of Native American Rights Fund attorneys and other members of the legal team, as well as an honor roll of others will no doubt all wear every feather Native culture can bestow.
Congressional intervention would emphasize the mediation of adversarial differences that have dominated the case so far. By its very nature, and no doubt because of its historic importance, the hearing drew out a distilled record of essential information in the case as the ground beneath it begins to shift. This shift and the information it throws out, the new perspective it generates, leaves some reputations on higher public ground in this regard, and some not.
This multi-part series will take a look at a few who have found higher ground, followed by a look at one whose reputation as a former Interior Secretary may be settling into lower ground, at least on the subject of the trust funds: Bruce Babbitt.
Tex Hall: a kind of vindication
The caption needs explaining - Tex Hall doesn't really need vindication.
But he received one at the July 30 hearing anyway.
The explanation is this: in recent years, as he has divided his duties between the chairmanship of Three Affiliated Tribes and increasingly prominent national roles culminating in a place at the helm of NCAI, the National Congress of American Indians, Hall has become an easy mark for the charge of "vertical inclination."
The particular phrase rarely comes up. But it's shorthand for the way some tribal leaders are inclined to work on Native issues at a level that in some way transcends the grassroots community level, opening themselves up to criticism from the community that they are not in touch enough, or rather are in touch with everything except their community.
Several times in recent years, in venues widely separated as to time and place, members of the Three Affiliated Tribes (Mandan, Hidatsa, Arikara) have spoken of Hall in this manner. For others who may not follow every national issue in its detail, it's not hard, given Hall's many speaking engagements and the many issues that find him out on the point, to let the uninformed impression develop of one who addresses all the issues without necessarily reaching closure on the substance of any. Hall's work is often about process - thought processes, debate processes, negotiation processes, procedural processes, communications processes, all the processes that go into defining local tribal issues within a framework of national political interests and larger policy superstructures.
Such processes seldom provide us with defining events. But the processes are surpassingly important - events would not come off without the processes that produce them.
With football season fast approaching, a comparison with major college football coaches is sure to be overly simple, but also instructive. A head coach and his staff engage year-round in the process of fielding a football team - they recruit players, condition them, train them, drill them, coach them in technique, coordinate their position into a team approach to playing offense or defense or special teams, teach them the various plays and alignment packages, practice them week in and week out, instill team spirit and rise with them to the inspirational occasion, shepherd them through various off-field situations, attend to their academic performance, and respond to the countless administrative requirements of a major college football program ?
All this processing for the sake of only about a dozen events, depending on team schedule. But there would be no game days without the year-round underlying process.
Of course, most of the process work Indian country must master doesn't yield an event like game day on Saturday afternoons in autumn, even though it is most certainly more important in the long run. More often than not, such events associated with these processes may be little-noticed - a vote is cast, debate is joined, clarity gained, documents are adopted, strategies refined, agendas established. Just as often, by the time an intended event transpires to make everyone feel good, process work has moved on to other issues and not enough commitment is given to savoring victory.
So in a sense, it was good to see Hall get his due at the big event - the July 30 hearing of the Senate Committee on Indian Affairs on the Cobell litigation. Hall provided the usual stalwart testimony from NCAI. But what made it a great day for him were the words of Donald Gray, the attorney specializing in financial "hardship" cases whose testimony made such an impression on the committee.
Gray reviewed Hall's prior testimony before the House of Representatives. There, again representing NCAI, Hall suggested guiding principles to govern any settlement effort. The principles were to take the time to do it right, establish a process that will keep pressure on for settlement, involve Congress in evolving a settlement process, make sure any settlement fixes trust systems for the future, appoint an independent body to a significant role in the settlement process, bear in mind that one size does not fit all, designate the first fruits of the reform effort to relief for elderly accountholders, safeguard the most vulnerable accountholders from being preyed upon in the reform process, and ensure that funds for settlement do not deplete appropriations for other federal services to Indians.
"I heartily agree with all of the above," Gray said. (It should be noted that to the above, Hall in his Senate testimony added a strong appeal for a congressional investment in curtailing Indian land fractionation, a topic too complicated for this space but one that drives many of the problems with the federal Indian trust system.)
Then he moves on to consider the creative stroke in Hall's testimony before the House - "a hypothetical discussion with Secretary Norton regarding settlement of historic IIM accounts, specifically his own, and those of his immediate family. He states that, as an IIM accountholder he does not know what leases have been let out, or the rate they received, or whether the full amount was correctly collected, invested and distributed. He wants a listing of all the tracts of land in which he has an ownership interest, the lease activity on those lands and copies of all leases."
He ponders whether the Secretary's rather narrow proposal for a statistical sampling will take into account the fact that continued overgrazing on IIM lands has resulted in only half the value of the resources accruing to the benefit of the grazing land IIM holders. A very good question [this is Gray reverting to his own voice after narrating Hall's testimony], and one I doubt a statistical expert, working under agreed procedures, would be adequately able to answer."
Gray concludes that Hall's creative testimony provides the road map to reform of the Indian trust system. "These are the guiding principles and goals, and all methodologies must be used, if a comprehensive, historic reconstruction [of the trust accounts], that can serve as a basis for a fair and reasonable settlement, is to occur. I hope Congress will help this to occur."
By the end of the Senate hearing, it was as clear as such things ever become beforehand, that Congress will follow this model in mediating the Cobell litigation.
Consider this, then: after a long process of meetings, speaking engagements, involved thought and complex discussion, Hall, his staff, and the voices of many NCAI member tribes came up with a creative way of framing the issue. And at the end of the process there was Hall, offering the guidance that will likely lead to an important event in the modern history of Indian country - congressional intervention to mediate settlement of the Cobell litigation.
Whatever we or one of us or history itself may make of such leadership, one must not make of it anything to do with "vertical inclination."