The two sides of Cobell v.Kempthorne
In an Indian Country Today article posted July 29, 2005 regarding Cobell v Kempthorne (then Cobell v. Norton) Associate deputy secretary of the Interior, Jim Cason, estimated a net difference of only about $10,000 in Individual Indian Money Accounts (IIMs). However, Elouise Cobell, the other plaintiffs, and the Native American Rights Fund attorneys representing them, claim that the $20 billion settlement they would accept in the Individual Indian Monies Account (IIM) case, represents only a fraction of what is owed.
Who has it right? It is difficult to tell.
The government's accounting so far in Cobell v. Kempthorne goes back only to 1987. The court ordered the accounting go back to 1887 when the Dawes Act divided reservations into individual allotments. Under that act, the US government was named trustee for all tribally owned and individually allotted American Indian property located on reservations and the lease income from it. Though trusteeship of allotments under the Dawes Act was set to expire after 25 years, it was continued during the FDR administration by the Indian Reorganization Act.
In 1887 Individual Indian Money Accounts would have been handled by the Indian agents and kept by hand in ledger books. Indian agents were not the most scrupulous people. In A Guide to the Indian Wars of the West John D. McDermott notes:
"...[T] he agent...had many ways of acquiring wealth at the expense of his charges. For instance, he could withhold annuities...and sell them to someone else." He could also "...inflate the number of tribal members at his agency to get surplus annuities for sale to others." (1) But even if this were not the case, mistakes could easily occur in such a system and until the IIM suit, Indians had little recourse when told their IIMs were empty.
Add to this that, even with computers, tracking Individual Indian Money Accounts is a nightmare, due totally to government policy. The Dawes Act required that allotments be divided equally among all heirs. Over 100 years this has led to what is called "fractionation" where individual Indians may own only a tiny fraction of the allotted property and thus be entitled to only pennies a year from leases held in trust.
Indeed, actions by the US Interior Department indicate that IIMs held little priority within the department until it came back to haunt them as Cobell v. Kempthorne (then Babbitt) 110 years after the recordkeeping began and, even then, the Interior Department delayed for two years, probably assuming it would all go away, before destroying 162 boxes of documents they told the court they couldn't find.
So, who has it right, the Interior Department or the Plaintiffs?
Let's put it this way. Five hundred thousand American Indians claim the US government owes them at least $20 billion dollars and the government can't locate the records to prove them wrong.
What would you do if you were the judge in Cobell v. Kempthorne?
(1) John D. McDermott, A Guide to the Indian Wars of the West, Bison, Lincoln, NE, 1998, p. 5
