Elousie Cobell has led a nine-year court fight forcing the federal government to give an estimated 500,000 American Indians a full accounting of Indian Trust accounts. David Reese photo

Blackfeet leader seeks justice over lease payments

By DAVID REESE

It was about 20 years ago that Elouise Cobell figured something was wrong.
Cobell, 63, was working at the local bank in Browning, Montana, a windswept town on the east slope of the Rocky Mountains, on the Blackfeet Indian Reservation.

A banking client of Cobell's was trying to figure out their lease payments from the U.S. Department of the Interior. When Cobell could not ascertain where those funds were deposited, she had a hunch that the U.S. government didn’t know, either.
That hunch turned into Cobell vs. Norton, the largest class-action case ever filed against the U.S. government. Her suit alleges that the U.S. government owes some 500,000 native Americans lease payments of over $100 billion dating back to 1887, when the Allotment Act was passed. This law allowed the U.S. government to parcel out Indian reservations to private individuals.

When those individuals lease the mineral, mining, grazing, timber or agriculture rights to their land, that money goes to the Department of the Interior, first, then to the landowner. At least that’s how it’s supposed to work. But the government has no method of accounting and no way to keep track of where the money goes, says Cobell, co-chairperson of the Native American Bank in Browning. The lack of accounting has resulted in perhaps billions of dollars never making it back to the rightful native American landowners, says Cobell, a Browning native and Blackfeet Indian.

The lawsuit affects landowners on six of the seven Indian reservations in Montana. Only the Rocky Boy reservation, a Chippewa-Cree reservation in northcentral Montana, does not have claims for the money because it is entirely tribally owned.
Despite the pending litigation — and the increased governmental surveillance of private corporate accounting — the government still has not devised a method of accounting for these lease payments, says Cobell, who ranches with her husband on the south edge of the Blackfeet Indian Reservation. “It’s still a huge issue,” she says. “Those of us in the private world understand how money has to be accounted for. When it’s the government, nothing applies.”

As a community banker, Cobell saw what was happening to her customers who owned land on the reservation. It was these people she was going to bat for. “They’d have oil wells in their back yards and have no idea of what was going on. They didn’t understand what kind of money they were supposed to be getting off the land,” she says. “Then I just started at working on unpeeling the onion and found this horrible mess.”

“There are so many positive things that have to happen in the community that you don’t want to spend your entire time fighting the government,” Cobell says. “I’d like to spend a lot more time doing that, than trying to prove the government is wrong. They ought to be ashamed … they’re fighting the poorest people in the country.”

— Elouise Cobell

The situation affects her own relatives on the reservation. “I had no other alternative but to go to court,” she says.
This is the classic case of a smalltown woman going up against a giant — this time, the government. The U.S. Department of Justice, Department of the Interior and Department of Treasury have over 100 lawyers on their side, plus the 39 officials in the case who were accused of wrongdoing have been able to hire private attorneys to defend themselves — at the U.S. taxpayers’ expense.

Meanwhile, Cobell has five attorneys in Washington, D.C. “They’re (the government) throwing millions of dollars at this case … sometimes I wonder why they’re going to such horrible ends to do what was right,” she says. “That tells me that somebody is getting rich off this broken system and it’s certainly not the Indians.”
Meanwhile, she says, “I haven’t been able to pay our attorneys for what seems like forever. They’re on a shoestring, but they’re totally committed.”

In March 2008, the government finally agreed to send the case to a hearing. In February 2008, U.S. District Judge James Robertson said government accounting for the money owed to Indians has been unreasonably delayed — but finding accountability of where the money went is ultimately impossible.
He wants plaintiffs and defendants to lay out their cases again at a status hearing.
 
Leading Cobell’s case is Dennis Gingold, one of the top banking attorneys in the country. “With his dedication and commitment, we’ve made it this far,” Cobell says.
One of the cornerstones of the government’s defense has been that they would not be able to do an accounting of the trust fund. Recently, however, because of an expired appeal that the government lost, the government now says it can do an accounting but it would take 10 years and $6 billion.

“This case would be over … if they just said ‘we could do an accounting,’” Cobell laments. “We can settle the historical wrongs ... but we have to fix it for the future or else we’ll be back in 10 years.”

The government has fought her tooth and nail every step of the way, but she’s winning battles. In December, a federal judge ruled that common trust law applies to the government, and that the government is not immune from proper accounting procedures for Indian trust lands. Also in December, the U.S. Court of Appeals ruled that interest is due on all funds owed to the Cobell plaintiffs, going back to 1887.
In February, U.S. District Court Judge Royce C. Lamberth reissued an injunction against the Department of the Interior requiring an immediate historical accounting of the assets of American Indian landowners who are plaintiffs in case.
Lamberth also urged an end to the continuing delay. “The government has not only set the gold standard for mismanagement, it is on the verge of setting the gold standard for arrogance in litigation strategy and tactics,” he said in his opinion.
Lamberth wrote that hope is fading fast for elderly members of the class-action suit to ever see rewards of the case.

Given the delays, Lamberth ruled that the case will not be stayed pending appeal, and that the accounting must go forward even if the U.S. government decides to appeal the ruling. “This is a fantastic result for the Cobell plaintiffs,” Gingold said. “This decision is the light at the end of the tunnel.”
In two separate earlier trials, a federal judge found that the U.S. departments of the Interior and Treasury engaged in "fiscal and governmental irresponsibility in its purest form” in maintaining and accounting for the trust assets belonging to the 500,000 Indians. 

It’s been a long, hard fight, but Cobell is not tired yet. She would, however, prefer to have the battle over and be able to put her energy toward something more productive on the home front — like building the economies on Indian reservations around the country.

She’s been doing that, as a chairperson on the Native American Bank in Browning.
“There are so many positive things that have to happen in the community that you don’t want to spend your entire time fighting the government,” Cobell says. “I’d like to spend a lot more time doing that, than trying to prove the government is wrong. They ought to be ashamed … they’re fighting the poorest people in the country.”