A Victory for Native Americans?

Mistreatment of Indians is America's Original Sin, and the narrative is consistent. They lose their land, get portrayed as caricatures of social maladies, and are ripped off by the likes of Jack Abramoff. So it's no surprise that a tale with a very different ending, namely the righting of a horrible wrong affecting 500,000 Native Americans, proceeds with virtually no notice.
 
Indeed, you'd think that even Tea Party diehards should rally to this cause, given their anti-government and pro-property rights passion. They might even want to pay homage to the intrepid female accountant-turned-banker, who inspired one of the most fiercely litigated disputes against the federal government in history. But they likely won't. Who will? Not even many Indians believe that belated fairness is now on the way, given more than a century of government abuse and deceit whose undisputed facts strain credulity.
 
The facts are these: Following the House's approval, the Senate is considering whether to approve a $3.4 billion settlement of a 15-year-old lawsuit, alleging the government illegally withheld more than $150 billion from Indians whose lands were taken in the 1880s to lease to oil, timber, minerals and other companies for a fee. Back then, the government started breaking up reservations, accumulating over 100 million acres, giving individual Indians 80 to 160 acres each, and taking legal title to properties placed in one of two trusts. The Indians were given beneficial ownership but the government managed the land, believing Indians couldn't handle their affairs. With leases for oil wells in Oklahoma, resorts in Palm Springs, and rights-of-ways for roads in Scottsdale, Arizona, some descendants of original owners receive six- and even seven-figure sums annually. But the prototypical beneficiary, now poised to share in the settlement, is a poor Dakotan who struggles to afford propane to heat his quarters and has been receiving as little as $20 a year. More than $400 million a year is collected from Indian lands and paid into U.S. Treasury account 14X6039.

The story turns on theft and incompetence by the Interior and Treasury Departments, with culprits including Interior's Bureau of Indian Affairs (BIA) and the same Minerals Management Service now at the center of the BP oil spill fiasco. Over the past 100 years, government record systems lost track of more than 40 million acres and who owns them. The records simply vanished. Meanwhile, documents were lost in fires and floods, buried in salt mines or found in an Albuquerque storage facility covered by rat feces and a deadly Hantavirus. Government officials exploited computer systems with no audit trails to turn Indian proceeds into slush funds but maintain plausible deniability.

The lack of accountability is confirmed in the government's own reports and testimony dating to the early 20th century. Conclusions of "fraud," "corruption," "institutional incompetence," "deficiencies in accounting," "the accounts lack credibility," "multifaceted monster," "organizational nightmare," "dismal history of inaction," "criminal negligence," and "sorry history of department mismanagement," are found regularly between 1915 and the present.  Congress ordered an accounting in 1994 but interior secretaries in both the Clinton and George W. Bush administrations were held in civil contempt for not forking over records. District Judge Royce Lamberth, a Texas Republican nominated by President Reagan who oversaw the case for a decade, called the whole matter "government irresponsibility in its purest form."

I sat in Lamberth's courtroom in 1999 when Interior Secretary Bruce Babbitt both lost his cool and conceded that the government couldn't provide accurate cash balances of most accounts and that "the fiduciary obligation of the United States is not being fulfilled." But the dispute would not end, as the Clinton and Bush administrations fought unceasing adverse rulings in a case inspiring 3,600 separate court filings and 80 published decisions. No single case, including the antitrust action against Microsoft, has been as heavily litigated and defended by the government, say lawyers.

The government's chief nemesis has been Elouise Cobell, a member of the Blackfeet Nation in Montana, the accountant-turned-banker who in 1987 started Blackfeet National Bank, the first national bank on a reservation. With a very small team of attorneys led by a Washington banking specialist, Dennis Gingold, her suit has inspired 3,600 court filings and 80 published decisions. Not even the antirust action against Microsoft was as heavily litigated by the government.

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James Warren is the Chicago editor of The Daily Beast and an MSNBC analyst. He is the former managing editor of the Chicago Tribune.

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