February 24, 2006
On February 23rd, 2006, the Law School’s American Indian Law Program and the Native American Law Students Association presented a symposium regarding the ongoing Cobell case. Since 1887 (and with respect to some tribes, even earlier,) the United States government has held land in trust for many individual American Indians and managed the income from those trust lands. The Cobell litigation is a class action suit by the American Indian beneficiaries of those trust accounts against the Secretary of the Interior, Assistant Secretary for Indian Affairs, and the Secretary of the Treasury, for breach of statutory and common law trust obligations. The legal question in Cobell is fairly straightforward: Have the defendants breached their fiduciary obligations to the plaintiffs? The trial court determined that the answer to this question is “Yes.” The much more difficult question in Cobell is how to get the federal government, paralyzed by the inertia of a century’s worth of trust account mismanagement, to remedy the situation.Elouise Cobell, Montana’s Blackfeet tribal member and one of the original plaintiffs who brought the case in 1996, came to speak about her personal experience with how the lawsuit came about. “All this case is about is accountability,” Cobell commented as she stressed to the law students and attorneys about “the importance of responsibility in upholding the law.”“This case is more than just about the money….We are talking about a fundamental change in the Department of the Interior and to put Indians in charge of their own destiny,” commented Keith Harper, a member of the Cherokee Nation and NARF attorney who worked on this case since its inception.Cobell is the largest class-action lawsuit ever attempted: forensic accountants estimate that the government owes individual Indian landowners a total of $176 billion (averaging $352,000 per plaintiff). As Cobell litigants await the latest in a long string of court opinions, legislative solutions appear to be on the horizon. Senator John McCain, Chairman of the Indian Affairs Committee has spearheaded efforts to open up the lines of communication with tribal leaders, Indian landowners, and the Cobell plaintiffs regarding potentials for legislative settlement of the case. After a series of meetings across the country, principles of settlement emerged. Only time will tell whether court decisions, legislation like that introduced by Senator McCain last July, or another alternative will resolve the Cobell litigation.The Native American Rights Fund’s website provides more information about Cobell v. Norton and can be accessed at http://www.narf.org/cases/iim.html.