Cobell v. Kempthorne
Encyclopedia
Cobell v. Salazar is a class-action lawsuit
brought by Native American
representatives against two departments of the United States government. The plaintiffs claim that the U.S. government has incorrectly accounted for Indian trust assets, which belong to individual Native Americans (as beneficial owner
s) but are managed by the Department of the Interior (as the legal owner and fiduciary trustee
). The case was filed in the United States District Court for the District of Columbia
. The original complaint asserted claims for mismanagement of the trust assets; these were subsequently disallowed since such claims could only properly be asserted in the United States Court of Federal Claims
.
The case is sometimes reported as the largest class-action lawsuit against the U.S. in history, but the basis for this claim is a matter of dispute. Plaintiffs contend that the number of class members is around 500,000, while defendants maintain it is closer to 250,000. The potential liability of the U.S. government in the case is also disputed: plaintiffs have suggested a figure as high as $176 billion, and defendants have suggested a number in the low millions, at most. In 2008, the district court awarded the plaintiffs $455.6 million, which both sides have appealed. Cobell v. Kempthorne, 569 F. Supp.2d 223, 226 (D.D.C. 2008).
On July 29, 2009, the D.C. Court of Appeals vacated the award and remanded the District Court's previous decision in Cobell XXI. See, Cobell v. Salazar (Cobell XXII), 573 F.3d 808 (D.C. Cir. 2009).
On December 8, 2009, a $3.4 billion settlement was announced. $1.4 billion of the settlement is allocated to plaintiffs in the suit, and up to $2 billion is allocated for re-purchase of lands distributed under the Dawes Act
. President Barack Obama
signed legislation authorizing government funding of a final version of the $3.4 billion settlement in December 2010, raising the possibility of resolution after fourteen years of litigation. Judge Thomas Hogan
will oversee a fairness hearing on the settlement in the spring of 2011.
During the late 1800s, Congress and the Executive branch believed that the best way to foster assimilation
of Indians was to "introduce among the Indians the customs and pursuits of civilized life and gradually absorb them into the mass of our citizens." Under the General Allotment Act of 1887 (the Dawes Act
), tribal lands were divided and assigned to heads of households as individually owned parcels 40–160 acre (0.1618744–0.6474976 km2) in size. The Dawes Rolls
are the records of the members of each tribe who were registered at the time. The total land area comprised by the allotments was small compared to the amount of land that had been held communally by tribes in their reservations at the passage of the Act. The government declared Indian lands remaining after allotment as "surplus" and opened them for non-Indian settlement.
Section 5 of the Dawes Act required the United States to “hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made…” During the trust period, individual accounts were to be set up for each Indian with a stake in the allotted lands, and the lands would be managed for the benefit of the individual allottees. Indians could not sell, lease, or otherwise encumber their allotted lands without government approval. Where the tribes resisted allotment, it could be imposed. After twenty-five years, the allotted lands would become subject to taxation. Many allottees did not understand the tax system, or did not have the money to pay the taxes, and lost their lands.
ownership over a period of 25 years, about one generation. The theory that Indians could be turned into farmers, working their allotted lands was folly, not the least because much of the land they were allotted was unsuitable for small family farms. Within a decade of passage of the Dawes Act, the policy began to be adjusted because of government concerns about Indian competency to manage land and avoid predation by unscrupulous settlers. As late as 1928, the overseers were extremely reluctant to grant fee patents to Indians – the Meriam Report
of that year advocated making Indian landowners undergo a probationary period to prove competence.
By passage of a series of statutes in the early 1900s, the government’s trusteeship of these lands increasingly was made a permanent arrangement; Interior’s trusteeship is sometimes referred to as an “evolved trust.” Little thought was given at the time to the consequences of making permanent the heirship of allotments. Lands allotted to individual Indians were passed from generation to generation, just as any other family asset passes to heirs. Probate proceedings commonly dictated that land interests be divided equally among every eligible heir unless otherwise stated in a will. As wills were not, and are not, commonly used by Indians, the size of land interests continually diminished as they were passed from one heir to the next. An original allotted land parcel of 160 acre (0.6474976 km²) may now have more than 100 owners. While the parcel of land has not changed in size, each individual beneficiary has an undivided fractional interest in the 160 acre (0.6474976 km²).
The allotment policy was formally repealed in 1934, with passage of the Indian Reorganization Act
of 1934 (IRA).
Today, there are approximately four million owner interests in the 10000000 acres (40,468.6 km²) of individually owned trust lands, a situation the magnitude of which makes management of trust assets extremely difficult and costly. These four million interests could expand to 11 million interests by the year 2030 unless an aggressive approach to fractionation is taken. There are now single pieces of property with ownership interests that are less than 0.0000001% or 1/9 millionth of the whole interest, which has an estimated value of .004 cent.
The economic consequences of fractionation are severe. Some recent appraisal studies suggest that when the number of owners of a tract of land reaches between ten and twenty, the value of that tract drops to zero. Highly fractionated land is for all practical purposes worthless.
In addition, the fractionation of land and the resultant ballooning number of trust accounts quickly produced an administrative nightmare. Over the past 40 years, the area of trust land has grown by approximately 80000 acres (323.7 km²) per year. Approximately 357 million dollars is collected annually from all sources of trust asset management, including coal sales, timber harvesting, oil and gas leases and other rights-of-way and lease activity. No single fiduciary institution has ever managed as many trust accounts as the Department of the Interior has managed over the last century.
Interior is involved in the management of 100,000 leases for individual Indians and tribes on trust land that encompasses approximately 56000000 acres (226,624.2 km²). Leasing, use permits, sale revenues, and interest of approximately $226 million per year are collected for approximately 230,000 individual Indian money (IIM) accounts, and about $530 million per year are collected for approximately 1,400 tribal accounts. In addition, the trust currently manages approximately $2.8 billion in tribal funds and $400 million in individual Indian funds.
Under current regulations, probates need to be conducted for every account with trust assets, even those with balances between one cent and one dollar. While the average cost for a probate process exceeds $3,000, even a streamlined, expedited process costing as little as $500 would require almost $10,000,000 to probate the $5,700 in these accounts.
Unlike most private trusts, the Federal Government bears the entire cost of administering the Indian trust. As a result, the usual incentives found in the commercial sector for reducing the number of small or inactive accounts do not apply to the Indian trust. Similarly, the United States has not adopted many of the tools that States and local government entities have for ensuring that unclaimed or abandoned property is returned to productive use within the local community.
Fractionation is not a new issue. In the 1920s the Brookings Institute conducted a major study of conditions of the American Indian and included data on the impacts of fractionation. This report, which became known as the Meriam Report
, was issued in 1928. Its conclusions and recommendations formed the basis for land reform provisions that were included in what would become the IRA. The original versions of the IRA included two key titles, one dealing with probate and the other with land consolidation. Because of opposition to many of these provisions in Indian Country, often by the major European-American ranchers and industry who leased land and other private interests, most were removed while Congress was considering the bill. The final version of the IRA included only a few basic land reform and probate measures. Although Congress enabled major reforms in the structure of tribes through the IRA and stopped the allotment process, it did not meaningfully address fractionation as had been envisioned by John Collier, then Commissioner of Indian Affairs, or the Brookings Institute.
In 1922, the General Accounting Office (GAO) conducted an audit of 12 reservations to determine the severity of fractionation on those reservations. The GAO found that on the 12 reservations for which it compiled data, there were approximately 80,000 discrete owners but, because of fractionation, there were over a million ownership records associated with those owners. The GAO also found that if the land were physically divided by the fractional interests, many of these interests would represent less than one square foot of ground. In early 2002, the Department of the Interior attempted to replicate the audit methodology used by GAO and to update the GAO report data to assess the continued growth of fractionation; it found that it increased by more than 40% between 1992 and 2002.
As an example of continuing fractionation, consider a real tract identified in 1987 in Hodel v. Irving
, 481 U.S. 704 (1987):
Fractionation has become significantly worse. As noted above, in some cases the land is so highly fractionated that it can never be made productive. With such small ownership interests, it is nearly impossible to obtain the level of consent necessary to lease the land. In addition, to manage highly fractionated parcels of land, the government spends more money probating estates, maintaining title records, leasing the land, and attempting to manage and distribute tiny amounts of income to individual owners than is received in income from the land. In many cases, the costs associated with managing these lands can be significantly more than the value of the underlying asset.
, Mildred Cleghorn, Thomas Maulson and James Louis Larose. The defendants are the United States Department of the Interior
and the United States Department of the Treasury
. According to Cobell, "the case has revealed mismanagement, ineptness, dishonesty, and delay of federal officials." Since inception the Indian plaintiff class has been represented by attorneys Dennis M. Gingold, Thaddeus Holt and attorneys from the Native American Rights Fund
, including Keith Harper and John Echohawk. The Department of the Interior was represented first by Bruce Babbitt
, then Gale Norton
, Dirk Kempthorne
, and finally Ken Salazar
.
The case was assigned to Judge Royce Lamberth, who eventually became a harsh critic of Interior in a series of sharply worded opinions.
Due to a court order (at the request of the plaintiffs) in the litigation, portions of Interior's website, including the Bureau of Indian Affairs (BIA), were shut down beginning in December 2001. BIA and other Interior bureaus and offices were reconnected to the Internet following a May 14, 2008, order of the D.C. District Court.
plaintiffs contend that a complete accounting will show the IIM accounts to be misstated on the order of billions of dollars. If that contention were indeed supported by the Court, plaintiffs would leverage such a finding to seek an adjustment of all IIM account balances.
DOI’s Factual Stipulations (filed June 11, 1999)
§4011.]
In December 1999 the District Court for the District of Columbia found for the plaintiffs and identified five specific breaches that warranted prospective relief:
This decision was upheld by Court of Appeals in February 2001.
In June 2001 Secretary of the Interior Norton issued a directive creating the Office of Historical Trust Accounting (OHTA), “to plan, organize, direct, and execute the historical accounting of Individual Indian Money Trust (IIM) accounts,” as mandated by both the Court and the 1994 Act.
Lamberth, a Ronald Reagan
appointee known for speaking his mind, repeatedly ruled for the Native Americans in their class-action lawsuit. His opinions condemned the government and found Interior secretaries Gale Norton
and Bruce Babbitt
in contempt of court for their handling of the case. The appellate court reversed Lamberth several times, including the contempt charge against Norton. After a particularly harsh opinion in 2005, in which Lamberth lambasted the Interior Department as racist, the government petitioned the Court of Appeals to remove him, saying he was too biased to continue with the case.
The Appeals Court concluded that some of Judge Lamberth's statements went too far, and "on several occasions the district court or its appointees exceeded the role of impartial arbiter." The Court wrote that Lamberth believed that racism at Interior continued and 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."
The Appeals Court ordered the case reassigned to another judge [December 7, 2006. Case reassigned to Judge James Robertson for all further proceedings].
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
brought by Native American
Native Americans in the United States
Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...
representatives against two departments of the United States government. The plaintiffs claim that the U.S. government has incorrectly accounted for Indian trust assets, which belong to individual Native Americans (as beneficial owner
Beneficial owner
Beneficial owner is a legal term where specific property rights in equity belong to a person even though legal title of the property belongs to another person. Black's Law Dictionary...
s) but are managed by the Department of the Interior (as the legal owner and fiduciary trustee
Trustee
Trustee is a legal term which, in its broadest sense, can refer to any person who holds property, authority, or a position of trust or responsibility for the benefit of another...
). The case was filed in the United States District Court for the District of Columbia
United States District Court for the District of Columbia
The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...
. The original complaint asserted claims for mismanagement of the trust assets; these were subsequently disallowed since such claims could only properly be asserted in the United States Court of Federal Claims
United States Court of Federal Claims
The United States Court of Federal Claims is a United States federal court that hears monetary claims against the U.S. government. The court is established pursuant to Congress's authority under Article One of the United States Constitution...
.
The case is sometimes reported as the largest class-action lawsuit against the U.S. in history, but the basis for this claim is a matter of dispute. Plaintiffs contend that the number of class members is around 500,000, while defendants maintain it is closer to 250,000. The potential liability of the U.S. government in the case is also disputed: plaintiffs have suggested a figure as high as $176 billion, and defendants have suggested a number in the low millions, at most. In 2008, the district court awarded the plaintiffs $455.6 million, which both sides have appealed. Cobell v. Kempthorne, 569 F. Supp.2d 223, 226 (D.D.C. 2008).
On July 29, 2009, the D.C. Court of Appeals vacated the award and remanded the District Court's previous decision in Cobell XXI. See, Cobell v. Salazar (Cobell XXII), 573 F.3d 808 (D.C. Cir. 2009).
On December 8, 2009, a $3.4 billion settlement was announced. $1.4 billion of the settlement is allocated to plaintiffs in the suit, and up to $2 billion is allocated for re-purchase of lands distributed under the Dawes Act
Dawes Act
The Dawes Act, adopted by Congress in 1887, authorized the President of the United States to survey Indian tribal land and divide the land into allotments for individual Indians. The Act was named for its sponsor, Senator Henry L. Dawes of Massachusetts. The Dawes Act was amended in 1891 and again...
. President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
signed legislation authorizing government funding of a final version of the $3.4 billion settlement in December 2010, raising the possibility of resolution after fourteen years of litigation. Judge Thomas Hogan
Thomas Hogan
Thomas Francis Hogan , a United States federal judge, is serving as Director of the Administrative Office of the United States Courts...
will oversee a fairness hearing on the settlement in the spring of 2011.
Early Federal Indian law
The history of the Indian trust is inseparable from the larger context of the Federal government’s relationship with American Indians, and the policies that were promulgated as that relationship evolved. At its core, the Indian trust is an artifact of a nineteenth-century Federal policy and its current form bears the imprint of subsequent policy evolutions.During the late 1800s, Congress and the Executive branch believed that the best way to foster assimilation
Assimilation
Assimilation may refer to:*Assimilation , a linguistic process by which a sound becomes similar to an adjacent sound...
of Indians was to "introduce among the Indians the customs and pursuits of civilized life and gradually absorb them into the mass of our citizens." Under the General Allotment Act of 1887 (the Dawes Act
Dawes Act
The Dawes Act, adopted by Congress in 1887, authorized the President of the United States to survey Indian tribal land and divide the land into allotments for individual Indians. The Act was named for its sponsor, Senator Henry L. Dawes of Massachusetts. The Dawes Act was amended in 1891 and again...
), tribal lands were divided and assigned to heads of households as individually owned parcels 40–160 acre (0.1618744–0.6474976 km2) in size. The Dawes Rolls
Dawes Rolls
The Dawes Rolls were created by the Dawes Commission. The Commission, authorized by United States Congress in 1893, was required to negotiate with the Five Civilized Tribes to convince them to agree to an allotment plan and dissolution of the reservation system...
are the records of the members of each tribe who were registered at the time. The total land area comprised by the allotments was small compared to the amount of land that had been held communally by tribes in their reservations at the passage of the Act. The government declared Indian lands remaining after allotment as "surplus" and opened them for non-Indian settlement.
Section 5 of the Dawes Act required the United States to “hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made…” During the trust period, individual accounts were to be set up for each Indian with a stake in the allotted lands, and the lands would be managed for the benefit of the individual allottees. Indians could not sell, lease, or otherwise encumber their allotted lands without government approval. Where the tribes resisted allotment, it could be imposed. After twenty-five years, the allotted lands would become subject to taxation. Many allottees did not understand the tax system, or did not have the money to pay the taxes, and lost their lands.
Fruit of a failed policy
The early Indian trust system evolved from a series of adjustments to a policy that was gradually abandoned, then finally repealed. The allotment regime created by the Dawes Act was never intended to be a permanent fixture; it was supposed to transition gradually into fee simpleFee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
ownership over a period of 25 years, about one generation. The theory that Indians could be turned into farmers, working their allotted lands was folly, not the least because much of the land they were allotted was unsuitable for small family farms. Within a decade of passage of the Dawes Act, the policy began to be adjusted because of government concerns about Indian competency to manage land and avoid predation by unscrupulous settlers. As late as 1928, the overseers were extremely reluctant to grant fee patents to Indians – the Meriam Report
Meriam Report
The Meriam Report , whose official title was The Problem of Indian Administration, was commissioned by the Institute for Government Research and funded by the Rockefeller Foundation...
of that year advocated making Indian landowners undergo a probationary period to prove competence.
By passage of a series of statutes in the early 1900s, the government’s trusteeship of these lands increasingly was made a permanent arrangement; Interior’s trusteeship is sometimes referred to as an “evolved trust.” Little thought was given at the time to the consequences of making permanent the heirship of allotments. Lands allotted to individual Indians were passed from generation to generation, just as any other family asset passes to heirs. Probate proceedings commonly dictated that land interests be divided equally among every eligible heir unless otherwise stated in a will. As wills were not, and are not, commonly used by Indians, the size of land interests continually diminished as they were passed from one heir to the next. An original allotted land parcel of 160 acre (0.6474976 km²) may now have more than 100 owners. While the parcel of land has not changed in size, each individual beneficiary has an undivided fractional interest in the 160 acre (0.6474976 km²).
The allotment policy was formally repealed in 1934, with passage of the Indian Reorganization Act
Indian Reorganization Act
The Indian Reorganization Act of June 18, 1934 the Indian New Deal, was U.S. federal legislation that secured certain rights to Native Americans, including Alaska Natives...
of 1934 (IRA).
Fractionation
For nearly one hundred years, the consequences of federal Indian allotments have developed into the problem of fractionation. As original allottees die, their heirs receive equal, undivided interests in the allottees’ lands. In successive generations, smaller undivided interests descend to the next generation. Fractionated interests in individual Indian allotted land continue to expand exponentially with each new generation.Today, there are approximately four million owner interests in the 10000000 acres (40,468.6 km²) of individually owned trust lands, a situation the magnitude of which makes management of trust assets extremely difficult and costly. These four million interests could expand to 11 million interests by the year 2030 unless an aggressive approach to fractionation is taken. There are now single pieces of property with ownership interests that are less than 0.0000001% or 1/9 millionth of the whole interest, which has an estimated value of .004 cent.
The economic consequences of fractionation are severe. Some recent appraisal studies suggest that when the number of owners of a tract of land reaches between ten and twenty, the value of that tract drops to zero. Highly fractionated land is for all practical purposes worthless.
In addition, the fractionation of land and the resultant ballooning number of trust accounts quickly produced an administrative nightmare. Over the past 40 years, the area of trust land has grown by approximately 80000 acres (323.7 km²) per year. Approximately 357 million dollars is collected annually from all sources of trust asset management, including coal sales, timber harvesting, oil and gas leases and other rights-of-way and lease activity. No single fiduciary institution has ever managed as many trust accounts as the Department of the Interior has managed over the last century.
Interior is involved in the management of 100,000 leases for individual Indians and tribes on trust land that encompasses approximately 56000000 acres (226,624.2 km²). Leasing, use permits, sale revenues, and interest of approximately $226 million per year are collected for approximately 230,000 individual Indian money (IIM) accounts, and about $530 million per year are collected for approximately 1,400 tribal accounts. In addition, the trust currently manages approximately $2.8 billion in tribal funds and $400 million in individual Indian funds.
Under current regulations, probates need to be conducted for every account with trust assets, even those with balances between one cent and one dollar. While the average cost for a probate process exceeds $3,000, even a streamlined, expedited process costing as little as $500 would require almost $10,000,000 to probate the $5,700 in these accounts.
Unlike most private trusts, the Federal Government bears the entire cost of administering the Indian trust. As a result, the usual incentives found in the commercial sector for reducing the number of small or inactive accounts do not apply to the Indian trust. Similarly, the United States has not adopted many of the tools that States and local government entities have for ensuring that unclaimed or abandoned property is returned to productive use within the local community.
Fractionation is not a new issue. In the 1920s the Brookings Institute conducted a major study of conditions of the American Indian and included data on the impacts of fractionation. This report, which became known as the Meriam Report
Meriam Report
The Meriam Report , whose official title was The Problem of Indian Administration, was commissioned by the Institute for Government Research and funded by the Rockefeller Foundation...
, was issued in 1928. Its conclusions and recommendations formed the basis for land reform provisions that were included in what would become the IRA. The original versions of the IRA included two key titles, one dealing with probate and the other with land consolidation. Because of opposition to many of these provisions in Indian Country, often by the major European-American ranchers and industry who leased land and other private interests, most were removed while Congress was considering the bill. The final version of the IRA included only a few basic land reform and probate measures. Although Congress enabled major reforms in the structure of tribes through the IRA and stopped the allotment process, it did not meaningfully address fractionation as had been envisioned by John Collier, then Commissioner of Indian Affairs, or the Brookings Institute.
In 1922, the General Accounting Office (GAO) conducted an audit of 12 reservations to determine the severity of fractionation on those reservations. The GAO found that on the 12 reservations for which it compiled data, there were approximately 80,000 discrete owners but, because of fractionation, there were over a million ownership records associated with those owners. The GAO also found that if the land were physically divided by the fractional interests, many of these interests would represent less than one square foot of ground. In early 2002, the Department of the Interior attempted to replicate the audit methodology used by GAO and to update the GAO report data to assess the continued growth of fractionation; it found that it increased by more than 40% between 1992 and 2002.
As an example of continuing fractionation, consider a real tract identified in 1987 in Hodel v. Irving
Hodel v. Irving
Hodel v. Irving, 481 U.S. 704 , is a case in which the U.S. Supreme Court held that a statute ordering the escheat of fractional interests in real property which had been bequeathed to members of the Oglala Sioux tribe was an unconstitutional taking which required just...
, 481 U.S. 704 (1987):
Tract 1305 is 40 acres (161,874.4 m²) and produces $1,080 in income annually. It is valued at $8,000. It has 439 owners, one-third of whom receive less than $.05 in annual rent and two-thirds of whom receive less than $1. The largest interest holder receives $82.85 annually. The common denominator used to compute fractional interests in the property is 3,394,923,840,000. The smallest heir receives $.01 every 177 years. If the tract were sold (assuming the 439 owners could agree) for its estimated $8,000 value, he would be entitled to $.000418. The administrative costs of handling this tract are estimated by the Bureau of Indian AffairsBureau of Indian AffairsThe Bureau of Indian Affairs is an agency of the federal government of the United States within the US Department of the Interior. It is responsible for the administration and management of of land held in trust by the United States for Native Americans in the United States, Native American...
at $17,560 annually.
Today, this tract produces $2,000 in income annually and is valued at $22,000. It now has 505 owners but the common denominator used to compute fractional interests has grown to 220,670,049,600,000. If the tract were sold (assuming the 505 owners could agree) for its estimated $22,000 value, the smallest heir would now be entitled to $.00001824. The administrative costs of handling this tract in 2003 are estimated by the BIA at $42,800.
Fractionation has become significantly worse. As noted above, in some cases the land is so highly fractionated that it can never be made productive. With such small ownership interests, it is nearly impossible to obtain the level of consent necessary to lease the land. In addition, to manage highly fractionated parcels of land, the government spends more money probating estates, maintaining title records, leasing the land, and attempting to manage and distribute tiny amounts of income to individual owners than is received in income from the land. In many cases, the costs associated with managing these lands can be significantly more than the value of the underlying asset.
The case
Cobell v. Babbitt was filed] on June 10, 1996. The named plaintiffs are Elouise Cobell, Earl Old PersonEarl Old Person
Earl Old Person , also named Cold Wind or Changing Home, is an American Indian political leader and the chief of the Blackfeet tribe in Montana, United States. Old Person became a member of the Blackfeet Tribal Business Council in 1954 and served as tribal chairman from 1964 to 2008...
, Mildred Cleghorn, Thomas Maulson and James Louis Larose. The defendants are the United States Department of the Interior
United States Department of the Interior
The United States Department of the Interior is the United States federal executive department of the U.S. government responsible for the management and conservation of most federal land and natural resources, and the administration of programs relating to Native Americans, Alaska Natives, Native...
and the United States Department of the Treasury
United States Department of the Treasury
The Department of the Treasury is an executive department and the treasury of the United States federal government. It was established by an Act of Congress in 1789 to manage government revenue...
. According to Cobell, "the case has revealed mismanagement, ineptness, dishonesty, and delay of federal officials." Since inception the Indian plaintiff class has been represented by attorneys Dennis M. Gingold, Thaddeus Holt and attorneys from the Native American Rights Fund
Native American Rights Fund
The Native American Rights Fund, also known as NARF, is a non-profit organization that uses existing laws and treaties to ensure that state governments and the national government live up to their legal obligations...
, including Keith Harper and John Echohawk. The Department of the Interior was represented first by Bruce Babbitt
Bruce Babbitt
Bruce Edward Babbitt , a Democrat, served as United States Secretary of the Interior and as the 16th governor of Arizona, from 1978 to 1987.-Biography:...
, then Gale Norton
Gale Norton
Gale Ann Norton served as the 48th United States Secretary of the Interior from 2001 to 2006 under President George W. Bush...
, Dirk Kempthorne
Dirk Kempthorne
Dirk Arthur Kempthorne , was the U.S. Secretary of the Interior, who served under President George W. Bush from 2006 to 2009. A Republican, Kempthorne previously served as the 30th Governor and as a U.S. Senator from Idaho...
, and finally Ken Salazar
Ken Salazar
Kenneth Lee "Ken" Salazar is the current United States Secretary of the Interior, in the administration of President Barack Obama. A member of the Democratic Party, he previously served as a United States Senator from Colorado from 2005 to 2009. He and Mel Martinez were the first Hispanic U.S...
.
The case was assigned to Judge Royce Lamberth, who eventually became a harsh critic of Interior in a series of sharply worded opinions.
Due to a court order (at the request of the plaintiffs) in the litigation, portions of Interior's website, including the Bureau of Indian Affairs (BIA), were shut down beginning in December 2001. BIA and other Interior bureaus and offices were reconnected to the Internet following a May 14, 2008, order of the D.C. District Court.
Early victories for plaintiffs
Cobell is at bottom an equity case, with plaintiffs contending that the Government is in breach of its trust duties to Indian beneficiaries. Plaintiffs seek relief in the form of a complete historical accounting of all Individual Indian Monies (IIM) accounts. While Cobell is technically not a money damages case claims for money damages against the Government in excess of $10,000 must be brought in the United States Court of Federal ClaimsUnited States Court of Federal Claims
The United States Court of Federal Claims is a United States federal court that hears monetary claims against the U.S. government. The court is established pursuant to Congress's authority under Article One of the United States Constitution...
plaintiffs contend that a complete accounting will show the IIM accounts to be misstated on the order of billions of dollars. If that contention were indeed supported by the Court, plaintiffs would leverage such a finding to seek an adjustment of all IIM account balances.
DOI’s Factual Stipulations (filed June 11, 1999)
- [T]he Department of the Interior cannot provide all account holders with a quarterly report which provides the source of funds, and the gains and losses. [See 25 U.S.C.
§4011.]
- [T]he Department of the Interior does not adequately control the receipts and disbursements of all IIM account holders. [See id. §162a(d)(2).]
- [T]he Department of the Interior’s periodic reconciliations are insufficient to assure the accuracy of all accounts. [See id. §162a(d)(3).]
- [A]lthough the Department of the Interior makes available to all IIM account holders the daily balance of their account and can provide periodic statements of the account balances, the Department does not provide all account holders periodic statements of their account performance. [See id. §162a(d)(5).]
- [The] Department of the Interior does not have written policies and procedures for all trust fund management and accounting functions. [See id. §162a(d)(6).]
- [T]he Department of the Interior does not provide adequate staffing, supervision and training for all aspects of trust fund management and accounting. [See id. § 162a(d)(7).]
- [The Department of the Interior’s] record keeping system [is inadequate]. [See id. §162a(d)(1), (3), (4),(6).]
In December 1999 the District Court for the District of Columbia found for the plaintiffs and identified five specific breaches that warranted prospective relief:
- The Secretary of the Interior Had No Written Plan to Gather Missing Data
- The Secretary of the Interior Had No Written Plan Addressing the Retention of IIM-Related Trust Documents Necessary to Render an Accounting
- The Secretary of the Interior Had No Written Architecture Plan
- The Secretary of the Interior Had No Written Plan Addressing the Staffing of Interior’s Trust Management Functions
- The Secretary of the Treasury Had Breached His Fiduciary Duty to Retain IIM-Related Trust Documents and Had No Remedial Plan to Address This Breach of Duty
This decision was upheld by Court of Appeals in February 2001.
In June 2001 Secretary of the Interior Norton issued a directive creating the Office of Historical Trust Accounting (OHTA), “to plan, organize, direct, and execute the historical accounting of Individual Indian Money Trust (IIM) accounts,” as mandated by both the Court and the 1994 Act.
Lamberth removed
On July 11, 2006, the U.S. Court of Appeals for the District of Columbia Circuit, siding with the government, removed Judge Lamberth from the case finding that Lamberth had lost his objectivity. "We conclude, reluctantly, that this is one of those rare cases in which reassignment is necessary," the judges wrote.Lamberth, a Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
appointee known for speaking his mind, repeatedly ruled for the Native Americans in their class-action lawsuit. His opinions condemned the government and found Interior secretaries Gale Norton
Gale Norton
Gale Ann Norton served as the 48th United States Secretary of the Interior from 2001 to 2006 under President George W. Bush...
and Bruce Babbitt
Bruce Babbitt
Bruce Edward Babbitt , a Democrat, served as United States Secretary of the Interior and as the 16th governor of Arizona, from 1978 to 1987.-Biography:...
in contempt of court for their handling of the case. The appellate court reversed Lamberth several times, including the contempt charge against Norton. After a particularly harsh opinion in 2005, in which Lamberth lambasted the Interior Department as racist, the government petitioned the Court of Appeals to remove him, saying he was too biased to continue with the case.
The Appeals Court concluded that some of Judge Lamberth's statements went too far, and "on several occasions the district court or its appointees exceeded the role of impartial arbiter." The Court wrote that Lamberth believed that racism at Interior continued and 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."
The Appeals Court ordered the case reassigned to another judge [December 7, 2006. Case reassigned to Judge James Robertson for all further proceedings].
Internet reconnection
On May 14, 2008, Judge James Robertson issued an order allowing five offices and bureau of the Department of Interior to be reconnected to the internet. The Office of the Solicitor, the Bureau of Indian Affairs, the Office of Hearings and Appeals, the Office of the Special Trustee, and the Office of Historical Trust Accounting had been disconnected since December 17, 2001, when the government entered a Consent Order which stipulated how affected government offices could demonstrate proper compliance and reconnect to the internet. Judge Robertson's order vacated the Consent Order. In the following weeks, these offices and bureaus were reconnected and their websites again became publicly accessible.Settlement
In December 2009 the government announced having reached a settlement in the trust case. In 2010 Congress passed the Claims Settlement Act of 2010, which provided $3.4 billion for the settlement of the Cobell v. Salazar class-action trust case (and four Indian water-rights cases.) Among the provisions are for the government to buy land from Indian owners, which has been highly fractionated, and finally return it to communal tribal ownership, correcting for a longstanding issue that was supposed to be a temporary provision."The $3.4 billion will be placed in a still-to-be-selected bank and $1.4 billion will go to individuals, mostly in the form of checks ranging from $500 to $1,500. A small group, such as members of the Osage tribe who benefit from huge Oklahoma oil revenues, will get far more, based on a formula incorporating their 10 highest years of income between 1985 and 2009. As important, $2 billion will be used to buy trust land from Indian owners at fair market prices, with the government finally returning the land to tribes. Nobody can be forced to sell."
External links
- IndianTrust: Cobell v. Kempthorne
- Office of the Special Trustee for American Indians
- Site of the DoJ documents on the case
- Restoring Trust: The Reformation of Indian Trust Management (1994-2007)
- Findlaw page on the action
- Friends Committee on National Legislation bad link
- "Cobell vs. USA" Feature-length Documentary film