Paying attention to Indian Country? Then by now you should have heard of Elouise Cobell.
In 1996 Cobell filed a class-action lawsuit against the Department of the Interior and the Department of the Treasury, now known as Cobell v. Salazar. The case became the most important litigation ever to occur between American Indians and the United States. Cobell, a citizen of the Blackfeet Nation, filed the suit on behalf of nearly 400,000 other American Indians. She and her co-plaintiffs alleged the mismanagement of leased lands held in trust for individual Indians by the federal government.
These trust accounts began in 1887, when Congress started to divide Indian lands among citizens of tribal nations and then sell off the remaining tribal land to American citizens, a policy known as allotment. The federal government then managed the land that remained in Indian hands on behalf of those Indians and their beneficiaries. Often the government leased this land at below-market rates to mining, oil, gas, livestock, and timber companies.
Cobell alleged that the government failed to keep adequate account records and that it destroyed records, used the income from leasing for other purposes, and simply failed to pay Indians and their beneficiaries the amounts they were owed under the trust relationship. On December 8, 2009, the Department of the Interior announced that it and the plaintiffs had reached a settlement for $3.4 billion. But in the past the Cobell plaintiffs have claimed that the government owes them more than $120 billion to account for funds lost, mismanaged, or not paid.
The Cobell plaintiffs are victims twice over, first of one of the largest financial frauds in U.S. history and second of their own government. Not their tribal government, but the United States government. The U.S. has proven inept at protecting its Native American citizens and has now admitted that for the past century it has actively defrauded them. The Cobell case highlights the tragic consequences of the erosion of tribal sovereignty; individual Indians, already vulnerable after centuries of colonial conflict, have been left unprotected by any government. In many ways, the settlement is an amazing achievement.
Us “unrecognized” Indians must feel fortunate to have dodged that bullet. But not so fast, pardner. The implications of the Cobell settlement are becoming clear and are potentially far-reaching. Consider the problem of Congressional plenary power; if and when the tribes seeking acknowledgement become recognized, they become subject to Congress’ plenary authority. “Plenary” in recent legal terms has meant not “absolute” in every case but rather all the power Congress can muster to execute its authority. In his blog on Turtle Talk, Matthew Fletcher pointed out that tribes depend on plenary power when they seek protection from Congress, as in the Indian Child Welfare Act. It’s not always a bad thing, and tribes receiving federal recognition would be eligible for those benefits too.
But the Cobell settlement points out how Congressional plenary power can be dangerous, and Kimberly Craven (Sisseton-Wahpeton Dakota) has argued that Indians should not willingly fall into its clutches, no matter how alluring it might seem. In an op-ed for Indianz.com, Craven writes that the settlement’s primary flaw rests with the expansion of the class of plaintiffs. Anyone who accepts the settlement payout cannot then make a claim against the government for land that was mismanaged. Craven explains,
“So if in the leasing of your land, it was damaged from overgrazing, minerals extracted without your permission, timber cut without payment, soil poisoned from agricultural chemicals or any other reason, you will be paid $500, plus a formula amount, to extinguish these potential claims.”
The original suit did not intend to extinguish these potential claims, but the new settlement does extinguish them. Congress has to approve and fund the settlement, and people are objecting before Congress “rushes to judgment,” in Craven’s words.
Allow me to invoke the spirit of Vine Deloria, Jr. (Yankton Nakota), who repeatedly warned us about the dangers of Congressional plenary power (see, among other works, Behind the Trail of Broken Treaties). A settlement out of court, approved by Congress, that eliminates future suits against the government for mismanagement will only entrench plenary power further, and it was plenary power that essentially got us into this mess in the first place. Indians whose land was mismanaged by the government will have no recourse in the court system if Congress approves this settlement. Kimberly Craven implies that accepting the suit effectively removes the courts’ ability to check Congressional power.
For unrecognized Indians, the allure of federal recognition is not that different from the allure a multi-billion dollar settlement must have to Indians who have been defrauded for over a century. We have been defrauded too–perhaps not by the federal government in every instance, but by our neighbors and by local and state authorities. We want justice, we want resolution, just as the Cobell plaintiffs do. But we must step carefully through this minefield, and not hand the fox the keys to the henhouse.
Take the Lumbee case–we began our federal recognition campaign in 1888, and we received a half-baked form of recognition in 1956, when Congress recognized us but, in its infinite power and wisdom, refused to grant us any benefits or services normally accorded to recognized tribes. If I had a dollar for every time someone furrowed their eyebrows in confusion when I explained that, I’d have $3.4 billion myself. We’ve been waiting 122 years for full acknowledgement, and by now we should know what we’re getting. We’re gaining the right to have our sovereignty eroded by Congress. As it now stands, we’ve never expressly given up any aspect of our sovereignty, as implied by the deft work of David E. Wilkins (Lumbee). Maybe the benefits of acknowledgement outweigh the costs, but we have to think carefully about the consequences of our desires. What is a fair price to sell self-determination?