Speakout: Obdurate government hurts Indians

Elouise Cobell

Monday, November 28, 2005

In its haste to condemn U.S. District Court Judge Royce C. Lamberth for his anger over the government's deception, stonewalling, document destruction and witness intimidation in our 10-year-long lawsuit, the News overlooked a crucial conclusion in the Nov. 15 decision by the U.S. Court of Appeals for the District of Columbia that helps explain Lamberth's frustration with the government ("Common sense on Indian trusts," Nov. 21).

"It is not disputed," the court held, "that the government failed to be a diligent trustee. In the two decades leading up to the plaintiffs' initiation of their lawsuit, report after report excoriated the government's management of the IIM (Individual Indian Money) trust funds."

That is one of the reasons Lamberth has been so exasperated at the government's foot-dragging and litigation misconduct. Notably, the Court of Appeals went out of its way to emphasize that the Department of Interior as an institution cannot, in any way, be exonerated given the pervasive "malfeasance" that the appellate court previously has cited in the management of the Individual Indian Trust.

In its earlier rulings the Court of Appeals unanimously has declared that the government owes us a complete and accurate accounting of all our trust funds that the government has collected since 1887, including all imputed income and interest. The government admits that it collected at least $13 billion but cannot account for the collections nor the interest accruing each day on these funds. This is our property and our property right just as your car, your house, and your bank accounts are your property, property that the government cannot take from you.

Nobody - not plaintiffs, not the government, and certainly not a federal District Court judge with a distinguished and unblemished record of fiscally responsible decisions - ever suggested that it was appropriate to spend $12 billion to $13 billion for the accounting.

The government never sought relief from the District Court based on the exorbitant cost to restate the trust accounts. Instead it chose to immediately appeal the injunction before the District Court could consider the cost issue. To criticize Lamberth under these circumstances is inappropriate and certainly not a balanced assessment of what really happened.

What the plaintiffs want, as the editorial stated, is "to ensure that claimants get what is owed them, and a reasonably estimated payment now is better than a perfectly precise one years from now." But such a simple step is bitterly resisted by the government.

The government's accounting plan promises only a further prolonged fight in the courts. By the government's own estimates such a resolution would not be in the offing for at least another five to 10 years, at a minimum.

Even now, after scores of congressional and accounting reports have revealed that fraud and malfeasance have pervaded the management of this trust - and 10 years of litigation has corroborated such malfeasance - the government claims no trust money is missing and refuses to "reasonably estimate \[a] payment" to resolve the case.

While it is reasonable to question any court order that might require centuries to comply with, perhaps a better query would be directed toward the federal trustee who is determined to indefinitely litigate a case, perhaps for decades, that has cost more than $200 million taxpayer dollars to defend the indefensible, and only harms the Indian beneficiaries who most need protection.

Elouise Cobell is a resident of Browning, Mont., and is a member of the Blackfeet Nation. She is the lead plaintiff in the case at issue, Cobell et al. v. Norton et al.