All nine appeals were filed by the government, anxious to avoid any liability for the damage that 121 years of abuse have caused this country’s poorest citizens.
This time, the Indian plaintiffs are taking our case to the U.S. Court of Appeals.
To be sure, the $455.6 million that U.S. District Judge James Robertson has ordered the government to pay is far less than what we believe we are owed. Just as important, we want the appeals court to review Robertson’s reasoning, which, if left unchallenged, would effectively excuse future breaches of trust and theft of beneficiaries’ trust assets. We believe Robertson is wrong.
The court’s Aug. 7 memorandum rejects basic trust law that is and has been the foundation of the trust relationship between Indians and the federal government for more than a century. Robertson does not believe the trust obligation is as far-reaching and encompassing as the U.S. Supreme Court declared. He offers many excuses for the government’s troubles with the trust accounts: he says it is not proper to impose the same standards on the government-run Indian Trust that a small-town bank would face. He says the Indian Trust is too old, too large and run by too many historically incompetent civil servants to have to comply with the rules imposed on “a garden-variety trust.”
None of the excuses used to avoid treating the government as any other trustee was the fault of the Indian beneficiaries. Not one. The Indian beneficiaries are blameless. Yet they pay the price.
The judge dismissed our effort to apply trust law, saying we were demanding “super strong” regulations. Strong, yes, but no stronger than what any other trust must comply with every single day.
At bottom, the Aug. 7 memorandum is yet another double standard: Every other bank and trust company in the nation shall abide by one standard, but every other Indian trust beneficiary shall suffer under another.
The trust rules we believe the government must follow are the ones that the Supreme Court clearly laid down in two cases, White Mountain Apache and Mitchell II. In both cases the trust rules are specific and, yes, they are burdensome to the government.
“... Our construction of these statutes and regulations is reinforced by the undisputed existence of a general trust relationship between the United States and the Indian people,” said Justice Thurgood Marshall in the 1983 Mitchell II ruling. The court, he noted, has previously emphasized “the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people.”
The high court made no exceptions, provided no waiver for the government simply because it is the federal government. There is nothing in the laws creating the Indian Trust that suggests that Congress was creating a second-class trust for Indians.
It is fair to ask what happened during the June trial that resulted in the Aug. 7 memorandum. The answer is: “nothing.” The government and plaintiffs agreed that more than $14 billion flowed into the individual Indian Trust accounts.
The June trial was to establish how much was actually received by individual Indian beneficiaries, but we’re still waiting on that answer because the government produced “nothing.” No evidence was produced quantifying the amount of money disbursed to the beneficiary class or transferred to other accounts of the federal government. None.
Robertson gave the government a pass, choosing instead to rely on a government statistician whose firm was paid upward of $10 million. Had the court applied traditional trust law, the government would have been compelled to prove by competent evidence the amount of funds distributed to the beneficiary class.
Many beneficiaries are understandably fatigued by this seemingly endless court case, and some might even be satisfied with the pittance that $455.6 million would represent after a century of abuse. Any appeal will surely delay justice in this case.
I share their frustration. But if we do not draw the line here and say “no more; not ever again,” then we consign our children and our children’s children to a legacy of fiscal servitude, forever pledging our trust money and trust assets to the government for its use.
I hold out guarded optimism that an end draws near in this case, but this decision cannot stand. Our legacy depends on it.
Elouise Cobell of Browning is a member of the Blackfoot Tribe and the lead plaintiff in a lawsuit against the U.S. Department of the Interior.
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