Cobell v. Salazar, the thirteen-year Individual Indian Money Trust Fund litigation, was settled on Friday for $3.4 billion. I have taken some time to sort through reports and my own reaction. The New York Times provided background:
The Interior Department now manages about 56 million acres of Indian trust land scattered across the country, with the heaviest concentration in Western states. The government handles leases on the land for mining, livestock grazing, timber harvesting and drilling for oil and gas. It then distributes the revenue raised by those leases to the American Indians. In the 2009 fiscal year, it collected about $298 million for more than 384,000 individual Indian accounts.
The trust was established in 1887 as a consequence of the Dawes act. In her official statement about the settlement, lead plaintiff Elouise Cobell accounted for the suit’s inception:
In 1996, we embarked on a journey to end decades of mistrust, suspicion and apprehension about the federal government’s management of Individual Indian Money accounts. I was among the more than 500,000 Indians across the nation with funds in such an account, and I did not know and could not find out how much money I had, where it came from, how it was being invested, nor how or whether it would ever reach my pocket.
The remarkable Cobell is executive director of the Native American Community Development Corporation. She was a founder and former chair of the Blackfeet National Bank, the first national bank located on an Indian reservation and owned by a Native American tribe. She was a 1997 recipient of a John D. and Catherine T. MacArthur Foundation “Genius” grant.
Over its life, the case involved hundreds of motions, dozens of rulings and appeals, and contempt orders on two secretaries of the interior for obstruction in their handling of the lawsuit. Judge Royce Lamberth, a Republican appointed by Ronald Reagan was finally moved to declare after ten years of presiding over the case:
Alas, our ‘modern’ Interior Department has time and again demonstrated that it is a dinosaur–the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the last pathetic outpost of the indifference and Anglocentrism we thought we had left behind.
In an America in which few think about the reality of Native American history or the Native present, in which the American Indian, when considered at all, is either, still, culturally despised or culturally and spiritually appropriated as an idealized, anthropological object of fascination, few knew about the suit. Few understood that hundreds of years of displacement and conquest had culminated in that 1887 legislated disposition of the seized land, and that the trust malfeasance being litigated in the twentieth and then the twenty-first centuries was lineally connected to the very conquest and abuse that most had consigned in their imaginations to ancient history.
When I wrote about the suit for the first time in “Aboriginal Sin,” for the March-April 2008 issue of Tikkun, the case was already 12 years old, and original and presiding Judge Lamberth had recently been removed from it by the Alberto Gonzalez Justice Department for having expressed his disgust with the government. Forensic accountants for the plaintiffs had estimated a total due account holders of potentially as much as $156 billion. In 2005 Gonzalez himself had testified to congress that the total amount due Native Americans from varied litigations (including the separate Tribal Trust Fund suit) might top $200 billion. The number that the plaintiffs were most recently proposing was $47 billion.
In March 2007, the Bush administration had actually floated a $7 billion figure, but that was an amount intended to cover all outstanding and potential future litigations – Indians being asked, once again, in keeping with a long and dishonest government history, to give up their rights in the face of government opportunism and abuse. Judge James Robertson, replacing Lamberth, actually ruled last year that account holders were due only $455 million.
Speculation is that this figure – and no doubt the national economy – influenced the decision, at last, to settle. Cobell has said that she originally anticipated 2-3 years of litigation, and the U.S. government of 1996 could far better have accommodated a more just settlement of the accounts than the debt-haunted, recession-wracked nation of today. Anyone, too, who has ever suffered the debilitating burden of protracted and consuming litigation knows how choices are shaped, in the end, by considerations far different from those at the start.
“There is little doubt,” said Cobell, “this is significantly less than the full amount to which individual Indians are entitled.”
Nevertheless we are compelled to settle now by the sobering realization that our class grows smaller each year, each month, and every day, as our elders die, and are forever prevented from receiving their just compensation. We also face the uncomfortable, but unavoidable fact that a large number of individual money account holders currently subsist in the direst poverty, and this settlement can begin to address that extreme situation and provide some hope and a better quality of life for their remaining years.
I feel the disappointment that many do about the dollar amount, yet indications are that reaction in Indian Country is quite positive. The government, directly through Secretary of the Interior Salazar, Attorney General Holder, and President Obama himself, has acknowledged for the first time the long-standing injustice that led to and perpetuated the suit. According to the Times,
President Obama hailed the agreement as an “important step towards a sincere reconciliation” between the federal government and American Indians, many of whom, he said, considered the protracted lawsuit a “stain” on the nation.
As a presidential candidate, Mr. Obama said, “I pledged my commitment to resolving this issue, and I am proud that my administration has taken this step today.”
It is difficult to say what difference $1000-1500 per account holder can mean to a life. Certainly, for the very poor, problems that are immediate and pressing can be alleviated. But such amounts fund no policy of remediation. They fund no foundation for future advance. A commission will be formed to determine reform of the trust system, of which no better can be found than its elimination. Fellow blogger MaxedOutMama wrote in to say, “It’s a major victory, but I think the tribes really need to get control of their own assets.”
I agree. A profound element in the nexus of difficulties Native Americans face is the unwillingness of the nation to confront the nature of their circumstance. This unwillingness is best represented by insistence on considering Indians as, now, no more than just another ethnic minority. However, unlike any other minority group, Natives were not only incorporated into the social network unwillingly (as were African-Americans), but they are the peoples of conquered cultures. In any unhappiness with their irreversible fortunes, there is no native land to which to return other than the one in which they still and already live, in submission to a larger culture that ignores and frequently disdains them. The study of history provides ample opportunity to contemplate the rise and fall of cultures, the migration of peoples, the persistent and always fascinating evidence of one society subsumed within a newer, more dominant one that supplants it. Often, we are much removed in time form that historical and cultural analysis.
With the Native cultures of North America, however, as with other indigenous cultures like them, our more sophisticated historiography, our ever developing sociological and anthropological analyses – all as scholarly representations of ourselves, simply, as humans – get to apply themselves to very slow history as it occurs in time: the effects on a people, and the transformations in their cultural life and status, of just such an epochal experience.
What occurred in the history of Native America is neither, simply, ancient or simple in description. Some of the elders Julia and I met on the San Carlos Apache Reservation in Arizona are old enough, as children, to have known warriors who fought with Geronimo. Geronimo died the year of my own father’s birth halfway across the world. Division in memory persists between those descendent from the Apache scouts who helped track Geronimo and those who revere him still. In contrast, the Pamunkey Indians of Virginia – unknown to almost all by name, but famous in story for their Chief Powhattan, and his daughter Pocahontas, who encountered the Jamestown colony and John Smith – had already been defeated for two and half centuries at the time the Apache were driven onto the reservation at San Carlos. By that time the Pamunkey had already lost their language.
History is cruel. The world is what it is. There is no perfect justice, and nothing can ever undo what was done. It’s not a sad red earth for nothing. What was the likelihood that Native American account holders were ever going to get all that was due them among all the other losses in land, culture, and dignity?
What matters is how Americans, as people, will understand and respond, in time, to the unfolding history around them to suggest we are something a little more developed in our response to cultural contact than the Myceneans supplanting the Minoans or the Angles overwhelming the Celts. How may we still respond to conquered cultures struggling, however it might be done, to regain themselves? In what ways will we recognize their unique place within our society and unique rights they never willingly forswore?
What matters is not how I, an interested outsider, feel about the settlement, but how Native Americans feel about it. There will be dissent, as in all matters, but the feelings so far are positive. Acknowledgments have been made that transcend the history of deception and denial. The president, personally, has committed himself in word and deed to a new relationship with Native America. With so many enormous problems facing him from the outset of his presidency – with constituencies impatient with him for delay on other matters – Obama chose to wipe away this stain in his first year in office.
The first Black president of the United States has offered to the land’s first people a measure of genuine respect and good will unlike what they have known. Much remains to be seen, but that is a combination of circumstances to contemplate for a moment, or two, and of which to be proud.