Cobell v. Salazar

The history of the Indian trust is inseparable from the larger context of the Federal government’s relationship with American Indians, and its policies as that relationship evolved. At its core, the Indian trust is an artifact of a nineteenth-century Federal policy.[2] Its late 20th-century form bore the imprint of subsequent policy evolution.[3]

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."[4] Under the "General Allotment Act of 1887" (the Dawes Act), communal tribal lands were divided and assigned to heads of households as individually owned parcels 40–160 acres (0.16–0.65 km²) in size. The Dawes Rolls are the records of the members of each tribe who were registered by government representatives at the time. The total land area that was allotted 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, resulting in the loss of millions of acres of tribal lands.

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 at that time.

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early Indian trust system evolved from a series of adjustments to a policy that was gradually abandoned, then finally repealed.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 not intended to be permanent. The expectation was that Native Americans would gradually assume fee simple ownership of lands over a period of 25 years, about one generation. The theory that Indians could be turned into useful subsistence farmers, working their allotted lands, was overwhelmingly unsuccessful. Much of the land they were allotted in the arid West was unsuitable for small family farms, and they were subject to abuse by speculators. 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. As late as 1928, the overseers were extremely reluctant to grant fee patents to Indians. The Meriam Report of that year, which assessed the effects of federal policy toward Native Americans, advocated making Indian landowners undergo a probationary period to "prove" competence.

In the early 1900s, the federal government passed a series of statutes that together made the government’s trusteeship of these lands a permanent arrangement. The Department of 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 down from one heir to the next generation. The result was that, by the mid-20th century, an original allotted land parcel of 160 acres (0.65 km²) could have more than 100 owners. While the parcel of land had not changed in size, each individual beneficiary had an undivided fractional interest in the 160 acres (0.65 km²). It made it impossible to effectively use the land.

The allotment policy was formally repealed in 1934, with passage of the Indian Reorganization Act of 1934 (IRA) during the Franklin D. Roosevelt administration. This was part of an effort to encourage Native American tribes to restore their governments and control over communal lands.

Elouise Cobell was a banker and treasurer of the federally recognized Blackfeet Confederacy in Montana. In the late 20th century, she became increasingly concerned about evidence that the federal government had mismanaged trust accounts and failed to pay monies owed to Native Americans. After efforts to lobby for reform in the 1980s and 1990s were not successful, she decided to file a class action suit.

Cobell v. Babbitt was filed on June 10, 1996.[5] The named plaintiffs are Elouise Cobell, Earl Old Person, 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." The plaintiffs alleged that "the government illegally withheld more than $150 billion from Indians whose lands were taken in the 1880s to lease to oil, timber, minerals and other companies for a fee."[6] Since inception the Indian plaintiff class was represented by attorneys Dennis M. Gingold (who left in 2012 after the settlement), Thaddeus Holt, and attorneys from the Native American Rights Fund,[7] including Keith Harper and John EchoHawk. The Department of the Interior was represented by presidential appointees, 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 the Department of Interior, making 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.[8] The stated reason for the shutdown order was to protect the integrity of trust data in light of concerns that trust data could be accessed and manipulated by persons outside the Department. The order also prevented persons within the Department from using the Internet.

In 2002, the Department ordered the extension of the shut down to the National Indian Gaming Commission, which would have caused serious disruption of the regulation of Indian gaming because the Commission used Internet connections to conduct fingerprint checks for background investigations of persons working in the gaming industry. The NIGC strongly resisted the imposition of the shut down order and, in doing so, helped establish its status as an independent federal agency.[9] Following a May 14, 2008, order of the D.C. District Court, BIA and other Interior bureaus and offices were reconnected to the Internet.

On December 8, 2009, the Barack Obama administration announced having reached a negotiated settlement in the trust case.[11] In 2010 Congress passed the Claims Resolution 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.)[12] Among the provisions of the settlement are for the government to buy land from Indian owners, which has been highly fractionated by being divided among heirs over the generations, and return it to communal tribal ownership. This was to correct a longstanding issue that was supposed to have been a temporary provision.[13]

$1.4 billion of the settlement is allocated to plaintiffs in the suit. 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 was to oversee a fairness hearing on the settlement in the spring of 2011.

A December 2014 press release on the Indian Trust website indicated mailing of checks to "approximately 263,500" claimants. "Over two-thirds of checks have been cashed within 10 days of their arrival and over 80% of class members have received their Historical Accounting payments."

As another part of the settlement, the government set up a scholarship fund, named the Cobell Education Scholarship Fund in honor of lead plaintiff Elouise Cobell.[14] It contributes money on a quarterly basis from sales in the buy-back program, with a cap of $60 million. By November 2016, the total amount contributed to the scholarship fund so far was $40 million.[1] The Scholarship Fund provides financial assistance through scholarships to American Indian and Alaska Native students wishing to pursue post-secondary and graduate education and training.[15]

In addition to payments to individual plaintiffs, the government has paid $900 million to individuals to buy back the equivalent of 1.7 million acres in fractionated land interests, restoring more of the land base of reservations to tribal control.[1]

• List of class-action lawsuits

• Cobell v. Salazar Settlement Website (operated by the Claims Administrator / Counsel for Cobell Plaintiffs)
• Office of the Special Trustee for American Indians
  • Restoring Trust: The Reformation of Indian Trust Management (1994-2007) Archived 2015-06-02 at the Wayback Machine
• Findlaw page on the action