The Conquest of Native America… Continues

One of the favorite argumentative gambits of conservatives and those otherwise unsympathetic to the making of present amends for past national crimes, is just that point – it’s in the past. It’s over. Let it go. And let me tell you something: I didn’t commit any crime.

Leaving aside the validity of that argument, which I have countered elsewhere, including here, the truth that presses on too few is that when speaking of crimes against American Indians, we are still speaking about the present. This was my fundamental point in “Aboriginal Sin.” The conquest of Native America is not nineteenth century history for those of antiquarian interest: it is ongoing.

The Individual Indian Money Trust Accounts (IIM) date back to the 1887 Dawes Act. While that is roughly the time at which the “Indian Wars” are considered to have come to an end, the whole history of Dawes itself is the substance and emblem of U.S. government conquest and destruction of Native culture. The monies held in the IIM, and the process by which monies enter the accounts, are the continuation of a system established during an era of Indian land allotment – the taking of land from American Indian tribes, the individual privatization of those lands, and the leasing of those lands for profit to private business via government trust.

During the 14-year history of the IIM litigation (Cobell v. Salazar), the evidence has been overwhelming of Bureau of Indian Affairs (BIA) mishandling of trust funds, within

Elouise Cobell and Secretary of the Interior Ken Salazar, Image by Getty Images via @daylife

the Department of the Interior, and effective federal government malfeasance. On behalf of 300,000 American Indian stakeholders, plaintiffs sued for $47 billion, an amount considered a low estimate, even by some in the U.S. government. Given that the U.S. is a nation still acting under the 1823 Supreme Court decision of Johnson v. McIntosh, which justified the Native conquest by inherited right of European discovery (the Discovery Doctrine), that few Native suits are decided in favor on American Indian plaintiffs, and that older Indian stakeholders have been dying off over the duration of the litigation, plaintiffs chose, finally, to settle. The agreed upon amount: $3.4 billion. And to make the point again, this law suit is the direct lineal extension of government acts and policies that involved conquest in war, ethnic cleansing, explicit policies of culturcide, and theft of Native lands. This is not history. This is then through now. This is ongoing. What has changed?

While most voices heard within Native America were supportive, under the circumstances, of accepting the clearly and dramatically inadequate amount of the settlement, some have been angrily opposed. As Tim Giago, founder of the Native American Journalists Association pointed out

$2 billion of the settlement would go to solve the age-old dilemma of land consolidation, since most allotted lands are so fractionated that oftentimes 160-acre allotments are co-owned by several hundred people.

This problem was brought on by the very people who became defendants in the Cobell lawsuit: the U. S. Department of the Interior and its agent the Bureau of Indian Affairs. Why should the plaintiffs in the lawsuit pay $2 billion of their settlement to the very agencies that caused the problem in the first place? That is such a crazy scheme that it would laughable if it was not such a serious issue. That’s like getting a check from the BIA, signing it, and then handing it back to them and saying, “Thank you for ripping me off.” Insane!

Giago believes that plaintiffs should not have settled.

By settling for $3.4 billion, the plaintiff attorneys took the mismanagement and malfeasance of the government off of the table and allowed the United States to forever conceal their crimes against a destitute people.

Giago desires the exposure of historical crimes that he believes ultimate legal hearing would produce.

For the first time in American history, the people would have learned about an issue that has been covered up for more than 100 years. That is the sad part of settling this issue behind closed doors. The Indian people are the losers and their story of poverty brought down upon them by an uncaring government will continue to be hidden forever….

If the general public had been educated to the deprivation, poverty and anguish caused to the Indian people by the mismanagement of their resources and assets, an outcry would have rumbled across America and the world.

Many are less hopeful than Giago of such an outcome. laid out the case for why there is little reason to hope for more than what this settlement offers.  It concludes

What happens if Congress doesn’t approve the $3.4 billion settlement to the Indian trust fund lawsuit?

Nothing. No one gets any money. Litigation will continue, at the expense of the Bureau of Indian Affairs budget, and Congress will continue to do nothing about trust reform.

That’s not what Indian Country deserves.

The settlement is the best — and only — deal we’re going to see. The Clinton administration never agreed to a settlement and the Bush administration proposed something so egregious that it hurts to think about it now.

Indian Country deserves better. Indian Country deserves a settlement to Cobell.

Less concerned about actual payouts to stakeholders, who would not be receiving what should justly be coming to them, anyway, Giago may get his wish of continued litigation.

The settlement agreed upon did not allow for congressional modification, and the executive and plaintiffs urged congress to ratify the settlement quickly. Instead, ongoing delay has produced several extensions of the ratification deadline. What has been called the last is looming, and some Republican lawmakers are acting in the well-established tradition of disingenuousness, callous abuse, and obtuseness. And, of course, as the government has for hundreds of years, they frame their obstructionism as care and concern for Indians.

It is time, in fact, to play the Republican anti-lawyer theme, even at the expense of Native America.

Republican Sen. John Barrasso of Wyoming has proposed capping lawyer’s fees at $50 million. Republican Rep. Doc Hastings of Washington sent a letter to [lead attorney, who has worked on the case without compensation since 1992] Gingold saying it was reasonable to limit those fees so the Native Americans would receive more. Gingold and Cobell both say Congress doesn’t have the authority to change the agreement, and that the proposed fee of just under $100 million would represent just 3 percent of the total settlement.

Here is what lead plaintiff Elouise Cobell has to say:

This is less than 3% of the settlement funds – a very low percentage for attorneys in class action lawsuits. Consider that attorneys representing tribes under Indian Claims Commission Act generally received 10% as mandated by statute and attorneys involved in suits related to Enron received 9.5% (almost $700 million). Many medical malpractice attorneys receive over 30%; and, the tobacco attorneys received billions of dollars and very few did more than file a complaint in order to immediately negotiate a settlement. Most cases don’t even involve discovery, let alone go to trial, but our attorneys have prosecuted seven major trials in this case, litigated countless appeals, filed thousands of papers and reviewed tens of millions of pages of discovery without receiving due compensation for their services. I fully support the fee application. It is in fact unusually low for attorneys involved in complex, heavily litigated class action lawsuits. Frankly, I am concerned that if the legal fees for our attorneys are unreasonably low that will discourage competent lawyers from future representation of Native Americans in class action litigation against the government.

If Barrasso and Rep. Doc Hastings, R-Wash, are so concerned about how much money Natives will receive, and they are willing to scuttle the present agreement in the attempt to alter it, why don’t they alter it by offering to increase the settlement amount rather than play politics over already exceptionally low legal fees?

Reports Indian Country Today

The next anger at Republicans involving Cobell came from Senate Majority Leader Harry Reid, of Nevada. In early May, he tried to get the settlement passed by attaching it to a larger disaster relief bill.

Sen. Tom Coburn, R-Okla., objected to the plan, which was enough to derail it under Senate rules….

Reid expressed frustration, saying May 7 that the Republican obstruction “denied justice to those who only seek fair settlement of their grievances.

“There is no excuse for Republicans to continue to employ these partisan delay tactics – in this case, as in so many others, they are only hurting those who were wronged and are fighting for what is rightfully theirs. We will continue to work on this issue until it is resolved. My view on this is simple: Justice delayed is justice denied.”

Said Hastings, according to ICT

I am concerned that repeated talk of a ‘deadline’ has turned into a pretext to pass settlement legislation without the thorough scrutiny that individual Indians have been seeking from their elected representatives and senators. [Emphasis added]

How shall we breathe in the presence of such noxious manure as that last? American Indians have not been seeking “scrutiny” of any deal by “their elected representatives and senators.” They are seeking the money that their elected representatives and senators have been party to stealing from them for 127 years and still withhold from them under the insufferable pretense, continuously made over the life of the nation, of doing it for the Indians’ own good.

We all know the lines about fool me once and fool me twice. Change it to “screw.” Make it a hundred times. Make it a thousand. Then what? What?

The dominating mentality of conquest is still present. Your Republican form of government at work.


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