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2008-08-12

Federal Judge Rules US Government Owes Group of Native Americans $455 Million for Unpaid Royalties on Drilling for Oil and Gas

Guests

Elouise Cobell, the lead plaintiff in the case and member of the Blackfeet Nation in Montana. She is the executive director of the Native American Community Development Corporation.

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We speak to Elouise Cobell, the lead plaintiff in what was the largest class-action lawsuit against the US government. The Native American plaintiffs were seeking $47 billion, the total amount of lost royalties since 1887. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We move from indigenous issues in Bolivia to indigenous issues right here at home. After a twelve-year struggle in the courts, a federal judge has ruled the US government owes a group of Native Americans nearly half a billion dollars for unpaid royalties on drilling for oil and gas. But the $455 million judgment is just a fraction of the $47 billion the Natives are seeking in the largest-ever class-action lawsuit against the US government. The suit seeks to force the government to account for all royalties due individual Native Americans since 1887 on seized lands. Plaintiffs say they’re considering an appeal.

Elouise Cobell of the Blackfeet Nation in Montana launched the class-action lawsuit on behalf of 500,000 plaintiffs in 1996. She is the lead plaintiff in the suit. After break, we’re going to go to an extended conversation with her that I had a few weeks ago, before the decision came down, but right now we go right to the Blackfeet reservation. Elouise Cobell is on the phone with us.

Your response to the judge’s decision, Elouise Cobell?

ELOUISE COBELL: Good morning. Well, it’s —-

AMY GOODMAN: It’s good to have you with us.

ELOUISE COBELL: The opinion is both profoundly disappointing and difficult to understand, in that it disregards unchallenged evidence of the record, law of the case, law of the D.C. Circuit since 1895, and settled law as set forth by the United States Supreme Court. You know, among other things, duties and responsibilities of the US government as the trustee for individual Indian trusts are the same as those that apply to the private trustee. I guess the -— you know, the opinion —- the unwillingness of the district court to apply trust law is puzzling, as is the unwillingness to hold the government accountable for its horrible breaches of trust, because the district court says that holding the government accountable would be unfair to the government. The complete lack of concern for fairness to victims of 120 years of abuses is just utterly incomprehensible to Native people. I’m just very, very disappointed in this opinion.

AMY GOODMAN: Just after break, we’re going to go to your whole explanation about what the trust is and how the US government was holding the money in trust for Native Americans. But what is your plan right now, Elouise Cobell? Will you appeal this decision?

ELOUISE COBELL: Yes, we plan on appealing as soon as possible.

AMY GOODMAN: And in terms of however much money you end up getting, from half-a-billion to $47 billion, how will you distribute it?

ELOUISE COBELL: Well, this money is in individual Indian trust, and so it belongs to individual Indians. And that will yet be determined. There are different thoughts that are coming about, but I’m sure that the court will be involved with that. But, of course -—

AMY GOODMAN: When we spoke —-

ELOUISE COBELL: —- we’re going to be working on an appeal, so we will not talking about the distribution.

AMY GOODMAN: When we spoke, you were very hopeful that the judge was sympathetic and would be awarding you a good portion of what you were demanding. What do you think happened?

ELOUISE COBELL: You know, I have been — I have been wrestling with this ever since the opinion came out last Thursday. You know, the facts and the law were on our side. And for him to just disregard the Supreme Court ruling that says that the United States government has to behave like any other private trustee, and I just — it really was unbelievable to me. I just — I don’t know what happened. I keep wrestling with it.

What could have happened, certainly, you know, the government — the amount that they’ve talked about, that was pulled out of the air by the government. During the trial, there was evidence that there was huge blocks of missing records, I mean, that there was absolutely no records that they could find. And for the judge to agree with the government is unbelievable. It’s basically unbelievable to me.

AMY GOODMAN: Elouise Cobell, I want to thank you for joining us live from the Blackfeet reservation in Montana. We’re going to go to break. When we come back, we’re going to go to the whole background of this groundbreaking case. Elouise Cobell, the lead plaintiff in the case, executive director of the Native American Community Development Corporation. This is Democracy Now!, democracynow.org, the War and Peace Report. We’ll be back in a minute.

[break]

AMY GOODMAN: Later in the broadcast, we’ll be speaking with the leader of Students for a Free Tibet, just deported from China. But right now, we turn to the interview I did with Elouise Cobell just a few weeks ago, of the Blackfeet Nation in Montana, lead plaintiff in the case, the class-action lawsuit on behalf of 500,000 Native Americans, that was decided last week.

    ELOUISE COBELL: In 1887, the Congress passed what was called the Dawes Act, or the Allotment Act, in where parcels of land that was already owned by Indian tribes were divided up and redistributed to individual Indians, and at that particular point in time, basically, the government, the Secretary of Interior said, “You Indians are all stupid, and you’re not able to manage your own funds, so we will manage these funds to the best fiduciary duties.” Well, as time went by, of course, that’s not what happened. And many individual Indians, for number of years, have continued to ask the questions: Why can we get an accounting of our money? I know we have land, I know we have resources on our land, but what’s happening to our money? And there was never any answers.

    And I actually tried — I was the treasurer of the Blackfeet Indian tribe for a number of years, and so I saw many of the elderly people coming to me, asking, “Can you help us? Can you help us? Can you write letters for us? We’re not getting our money. We need food for our families. We need medical attention for our families, but we can’t get our money from the government, from the Indian agent.” And I continued to write letters for individual Indian people, because I felt that they were totally underrepresented. They didn’t have the education and the know-how to get any answers.

    And so, I began this entire campaign of trying to get answers for individual Indians on what happened to their money and why weren’t they getting it. I visited with the administrations, many administrations. I talked to Congress. You know, I just — I did everything possible. And finally, the only alternative that I could ever — the last alternative, because I’ve never sued anybody in my entire life, is that I determined the only way that we were going to get justice is to file this class-action lawsuit, and that’s what I did in 1996 on behalf of over 500,000 individual Indians.

    So, basically this lawsuit is for three simple things — is, one, to give individual Indians — to compel the United States government to fix the accounting systems that are broken, that are broken and are not capable of managing our money for us. The second part of the lawsuit was to give individual Indians an accounting for their money. And the third part of the case was, if there is restitution due as a result of this accounting, then restitution has to be paid to individual Indian people.

    In 1999, we won the first part of the case, which is compelling the United States government to fix the accounting systems, although they have not done that yet, but we won that.

    The second part of our case was determined on January the 30th. Can the government actually do an accounting? And the judge ruled on January the 30th of 2008 that it’s impossible for the government to give us an accounting. There’s so many things wrong with the systems. And as you mentioned earlier, you know, there are zillions of reports from inspector generals, from the Government Accounting Office, from independent accounting firms, that this is a mess. This is the worst accounting nightmare that anybody had ever seen. And they continue to report all kinds of conditions: fraud — you know, who knows where the money went? You know, the money goes into Treasury. The Treasury was using our money for other purposes, such as reducing the national debt. They were absolutely not getting any information from the Department of Interior of where this money — or who owns this money and where this money should be paid to.

    In the meantime, in our communities, in our Indian communities, people are living in dire poverty. People that have oil wells pumping in their backyards are not receiving their money. And they don’t have homes. They can’t send their children to school. And it’s a very sad condition. It doesn’t take you very long to drive through an Indian community and see all these wonderful resources, but seeing our communities living in dire poverty. And then, after you find out — and what we found out through this lawsuit is the fact that, well, the government was just using our money to reduce the national debt, because the inept Department of Interior was not sending information to the Treasury so that they could draw the checks to the right people.

    So, the third part of the case is what we just finished up in June, the trial that we just finished up, which is basically the monetary recovery. OK, as a result of — since the accounting is impossible, what is owed individual Indians?

    AMY GOODMAN: Mother Jones did a great piece and focused on, well, among the unnamed plantiffs, James Mad Dog Kennerly. Talk us more about him.

    ELOUISE COBELL: Well, James Mad Dog Kennerly is certainly a good person that has been really — I guess the government’s behavior toward Mad Dog is the fact that, you know, this man has oil wells, him and his family. He has two other sisters. And they have oil wells that have been pumping forever. And he continues to try to find out: what is the production on my oil coming out of the ground? Why am I being paid so little amount of money? Well, the government says, you know, “Well, you know, your oil isn’t worth that much money.” And there’s always, always these excuses.

    James lives in — was raised in an orphanage, and he lives in a small, little, modest, modest home. He doesn’t have a car. He’s, you know — and in any other situation, James would probably be living in a mansion, if the government had done its duty as a trustee. But, you know, there are certainly just — every other person has the same story to tell throughout the entire nation, is the government — it would just be like, if you had oil wells on your land, Amy, if you had oil wells and you had timber and you were collecting money and, you know, but somehow that money wasn’t coming to you, and you knew it. I mean, you would have proper channels to probably get, you know, justice. But in our situation, it’s the United States government that is managing our money, managing the money that comes from our oil, our timber, our agricultural lands. They are the trustee, and they are managing it. And they could care less about the recipients, because nobody has held them to the standards that they need to be held to. They are a trustee, my god!

    And to be in litigation against the United States government for twelve years is almost in a crime itself, as, you know, why in the world do you have to fight the United States government for accountability? And, I mean, let me tell you, every time you go in a courtroom, I don’t know how many government attorneys that we have in that courtroom. And it’s been — you know, the behavior of the United States government against the poorest people in this country is just unbelievable. And why is this happening? And many times through this lawsuit, through twelve years, I would think, “Where are the American people? Why aren’t they helping us? Why aren’t they assisting us? You know, why are we letting the United States government behave like this?”

    This is our money. It’s no different than you having your money in your bank and your bank not keeping track of your money, in fact, letting people steal it. It’s like having a bank with the doors open twenty-four hours and the vault door open, and anybody walking by could come in and take whatever they want to, because that’s how the government manages our trust assets, such as money: on the honor system.

    And all these accounting reports, inspector general — the inspector general just came out with a report last week and in his audit report said, you know, there’s all this corruption going on with the Office of the Special Trustee, there are people that are on the take. And nobody does anything. You know, I think I’ve testified before Congress about, I don’t know, I want to say about fifteen times, and Congress gets all excited for about five or ten minutes during the hearing, and then it goes away, and nothing happens.

    AMY GOODMAN: Elouise Cobell, could you talk about retaliation, both against those who filed affidavits and against you, naming you on a government website so that Native Americans would blame you when they didn’t get, for example, royalty checks?

    ELOUISE COBELL: Well, it’s just become a common thread throughout the government offices, because if something goes wrong with anything, if there’s thunder and lightning, it’s because of the Cobell lawsuit. And it’s very hard sometimes, but I think that individual Indian people now are much aware that they cannot believe the government and they can’t trust the government. But early on in the lawsuit, it was very difficult.

    The government — the judge in our case at that particular time shut down the entire security system, the IT security system of the Department of Interior, just because of the vulnerability of hackers, that anybody — there was no firewalls. Anybody could hack into the system, so the government cut it down. So the way — I mean, the judge shut it down. But the way they got back at us, the Department of Interior, instead of just doing everything that they could to fix the systems, they basically just stopped all the payments to individual Indian people. And it was right before Christmas, as it was in December, and of course people needed their money very badly, the ones that are getting their checks. I mean, we never know if it’s the right amount, because we never have had a proper accounting, but the money that was trickling to them just stopped.

    And when they were —- they called and asked the government agencies, “Where’s our money?” well, they said, “Call Elouise Cobell, because it’s her fault, the reason you’re not getting your checks.” And so, you know, that was probably the low point in what I had to deal with. I remember driving home that night and feeling so sad that, you know, people were not getting their checks and the behavior of the United States government had come to this low. So, you know, and the retaliation -—

    AMY GOODMAN: But you were able to turn it around.

    ELOUISE COBELL: I was able to talk to individual Indians —-

    AMY GOODMAN: And get information from people.

    ELOUISE COBELL: I talked to individual Indian people,
    and I said, you know, this is the way it is. And the most, I think, wonderful part about this is the patience of the individual Indian people, because they have waited a long time for justice, and they were not going to believe the trustee that has behaved so badly to them. So we were able to come through that.

    But, you know, there were other people within the Department of Interior that wanted to do the right thing. We had one woman that actually whistleblew and said, you know, these systems are so bad that anybody could hack into the systems. And the government retaliated against her. But fortunately, the judge had a protective order, which protected the people coming forward, the witnesses. And that particular woman was an absolutely crucial person. And there’s been many others that have come forward that have worked within this broken system and came forward to tell the truth. And the Department of Interior retaliated against them. And it’s a sad situation.

    But we’ve also got to talk about the future, and we’ve got to make sure that Congress, in any administration -— and I’ve sort of lost a lot of faith in the administration really doing the right thing. But we won fixing the accounting systems. Those systems are not fixed yet. We won that in 1999, and they’re not done, and there’s no oversight. There’s nobody to force them to fix the systems. This is an eye-opener to all of the American people. It certainly has been an eye-opener to all of the individual Indian people across the United States. Some people, you know, don’t even know where their land is, because the government systems are so bad that people can’t find out where their land is. And it’s their land. And so, that we have an awareness now that we really have to stay in the face of the government in order to get justice.

    AMY GOODMAN: The government has said that they have paid out the overwhelming majority of trust funds. Your response?

    ELOUISE COBELL: They can’t prove that. You know, where are the records? There’s tons of missing records. You know, the boxes and boxes of checks were destroyed right during our case. You know, people don’t know that Secretary Rubin, Secretary Babbitt, Assistant Secretary Gover were all held in contempt of court, and they were held in contempt of court for the destruction of documents. And it was no different than Enron. As soon as we filed the case, the government started destroying documents.

    AMY GOODMAN: Could you tell us, Elouise Cobell, about your own nation, about the Blackfeet Nation, where you’ll return to now in Montana?

    ELOUISE COBELL: Well, the Blackfeet Indian Nation is located near the Canadian border in Glacier National Park, which Glacier National Park was once part of the Blackfeet Indian Nation. Our nation is 1.5 million acres. Probably about a third of that is owned by individual Indians as a result of the Dawes Act, or the Allotment Act, and a third is owned by the tribe, and a third is owned by non-Indians. And the third that is owned by non-Indians is a result of this mismanagement of our trust assets. Because of the government not being in control as the trustee, they allowed individual Indians to take over — I mean, they allowed non-Indians to take over individual Indian land.

    For instance, when people from the Blackfeet were going off to war to fight in the wars, World War II, they would come back with a big tax deed against them, and they said the answer was that — a tax debt, I meant — that the answer that they would give to the individual soldiers that came back to Blackfeet is, “Oh, we determined that you were a competent Indian, so we put your land on the tax rolls.” And so, all the time they’re out there fighting for the United States, in the meantime, they’ve allowed accumulation of taxes, and non-Indian people would come in and assume those taxes and take over the land. And so, it was a terrible situation, so basically one-third of our land is now owned by non-Indian people.

    And then and during our case, you know, we don’t even know where the government can account for all the land. Why is it there is only 11 million acres of individual Indian trust land now, when at once there was 55 million acres of trust land? They can’t give us the answers. What happened to all the land? It just dropped off of their accounting systems and etc., etc., etc.

    So, but the Blackfeet, they live in — the elements are pretty difficult in our area. We have severe winters that get very, very cold. We have situations where people really can’t — do not have the ability to have their own homes, and we have families that are living with other families. You know, we’ve worked really hard in getting banking services into our community in order to leverage funds that people have, to start financial literacy programs in our community, so that young people will never allow this to happen again, that when the government mismanaged and continues to mismanage, that we will all be in their face and not allow this to happen again to us.

    But we have serious situations at Blackfeet. There’s many people. And the saddest thing for me is, because this case has gone on for twelve years, I see people dying in our community every single day that haven’t got their money. And it just is heart-wrenching. And every time the government delays, delays, more people die. And people have been waiting for so many years for justice. And so, you know, I’m happy that we brought this lawsuit, but I just hope that proper justice is done. And I hope by telling and sharing with the American people, that the American people will stand up with us and help us make the United States government accountable as a trustee.

AMY GOODMAN: Elouise Cobell, speaking last month, before the court ruling on the suit seeking royalties for oil and gas drilling on Native American land. Last week, a federal judge ruled the US government owes the Native American plaintiffs nearly half-a-billion dollars, just a fraction of the $47 billion the plaintiffs were seeking. Elouise Cobell is the former president of the Blackfeet Nation in Montana.

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