Forty-Five Thousand, Nine Hundred and Fifty Six Days (or Thereabouts)

Many top stories are receiving their usual high levels of attention, from the structural taxation reforms bandied about in the face of the “fiscal cliff” that is really a graded driveway to Israel and Gaza. What receives no attention? The usual, including from among the far left advocates of “peace and justice” who pretend to be concerned with matters of indigeneity in Israel-Palestine. Indigenous America is at the heart neither of au currant left ideological interests nor the challenge to Western liberal democracy, so other than lending a terminological veneer to attacks on Israel, you will find no Code Pink or BDS for it, no section of The Daily Beast specially edited by a former editor of the New Republic devoted to changing the conversation about Native America. But consider…

This blog began in December 2008, nine months after I published “Aboriginal Sin” in Tikkun. A general survey of the nature of the conquest of Indigenous Peoples, focused mostly on the United States, the inciting story of the article was that of the Individual Indian Money Trust Fund lawsuit first brought by Elouise Cobell against the Department of the Interior in 1996. That story now concludes.

On February 8, 1887, the Dawes General Allotment Act, also known as the Dawes Severalty Act,was passed into law in the United States. The law’s purported intent was to help fully integrate American Indians into the general culture. Accordingly, it broke up tribal lands and provided for the distribution of Indian reservation land among individual tribesmen, with any excess remainder from the equal allotments to be made available for public sale to non-Indians. In addition, many poor American Indians, unacculturated to farming, unfamiliar with agricultural practices, accepted offers for their land. By the termination of the allotment policy in 1934, of the 132 million acres in the possession of Native Tribes in 1887 – already greatly reduced, through treaty and the abrogation of treaties, from the lands once home to Native America – 90 million had been transferred to white ownership.

Reservation life and European encroachment now preventing militarily conquered and ethnically cleansed Indians from living successfully as they had, and in return for the transfer of land for white settlement, the U.S. government, promised to provide health, education, and economic development to the Tribes and their people. The government took into trust relationship the remaining 56 million acres, of which 10 million were for individual Indians, in the Individual Indian Money (IIM) Trust Funds, and 46 million for tribes, in the Tribal Trust Funds. The U.S. government was to use its expertise and the power of collective leases to negotiate and manage the proceeds of oil and other mineral leases and grazing rights.

On June 10, 1996, Elouise Cobell a Blackfoot Indian who the next year was awarded a MacArthur Foundation Fellowship, filed as the lead plaintiff in a suit against the U.S. Department of Interior alleging historical mismanagement (misappropriation) of the IIM funds of as much as $176 billion. The suit dragged on for 13 years in the face of Bureau of Indian Affairs obstruction that included even the destruction of documents.

On December 8, 2009, Cobell accepted a settlement on behalf of as many as 500 thousand allottees: after so many years, and in the face of the poverty and death through aging of so many class members of the suit, Cobell thought the Obama administration offer – very far from what she and others believed was owed – was the best they would ever receive.

The offer was $3.4 billion.

Cobell died of cancer on October 16, 2011 at the age of 65.

The settlement still has not been disbursed.

After delays in congressional approval of the settlement led by Senator John Barosso of Wyoming, four American Indians decided to file their own suits objecting to the terms of the settlement. According to Dennis Gingold, Lead Counsel, who assumed responsibility for communications after Cobell’s death, the court found one case to consist of

“blatantly mischaracterized” arguments that are “without merit” and [that] otherwise “ignore the history of this hard-fought litigation and enormous obstacles to producing an historical accounting.”

Nonetheless, all four litigants appealed. Why, in the face of such rejection? Gingold would not speculate, but he noted of the law firm whose counsel was representing one plaintiff that it

is the same firm that filed an amicus brief in the Court of Appeals on behalf of Competitive Enterprise Institute (“Institute”) in support of Craven’s meritless arguments. The Institute is a tax-exempt organization and Wikipedia reports that it is funded by ExxonMobil Corporation, Texaco, Inc., Coca Cola Company, CSX Corporation, FMC Corporation, and others. The Institute says that it is “dedicated to the principles of free enterprise and limited government.”

Now, earlier this month, came news from Gingold that after one appeal was dismissed, the three remaing plaintiffs have dropped their appeals ” in return for Class Counsel’s agreement to pay their attorney’s fees and expenses out of attorneys’ fees we expect to receive.” Wrote Gingold on November 7,

This will greatly increase the likelihood that we can begin to disburse settlement funds to [class members] before Christmas and before winter …. Most importantly, we also wanted to finalize the settlement before more Class Members die without realizing any measure of justice. Sadly, it is estimated that 12,000 class members have died since the settlement’s record date of September 30, 2009. As you know, the year and one half delay caused by the appeals prevented Elouise from seeing the results of her extraordinary efforts. In addition, each month that finality has been delayed has cost class members at least $300,000 out of their recovery.

So, roughly forty-five thousand, nine hundred and fifty six days, 125 years, since the Dawes Act fully legalized the process of expropriating and economically exploiting Native lands, 189 years since the Supreme Court decision of Johnson v. M’Intosh made it the law of the land – standing until this day – to accept the Papally-endorsed European Doctrine of Discovery, the religiously and racially superior right of ownership by conquest, 335 years since the oldest Indian reservation in the United States, the Pamunkey Indian Reservaton, was established in the colony of Virginia, 520 years after after Columbus first arrived in the Western Hemisphere, Native Americans will only now begin to receive some very small amount of the value in economic terms of what was taken from them.

Those are the Individual Indian Money Trust Funds.

The Tribal Trust Fund litigation is still outstanding.

History is not history. It is in the soil and the streets we walk on, the grazing lands, the oil derricks, the run down homes on the Pine Ridge Reservation, the drunken bodies in White Clay, Nebraska, just across the state line from Pine Ridge, where the modern versions of the opportunistic frontier trading post still sell alcohol to forlorn and forgotten Indians. It is in the dollars in a vault, on a ledger, unaccounted for – in 2012, still unpaid.

Forty-five thousand, nine hundred and fifty seven days.

AJA