The History Behind the Cobell Case

Surviving multiple presidential administrations since its inception in 1996, the Cobell case has been known variously as Cobell v. Babbit, Cobell v. Norton, Cobell v. Kempthorne and its current name, Cobell v. Salazar (all defendants being Secretaries of the Interior under which the Bureau of Indian affairs is organized). With upwards of 500,000 plaintiffs, it has been called the largest class-action lawsuit against the United States in U.S. history. The suit is the result of over 100 years of abusive federal Indian policy and gross negligence in the management of Indian trust lands.

Overview

Eloise Cobell, a Blackfoot Indian from Montana and banker by profession, filed the lawsuit on behalf of hundreds of thousands of individual Indians in 1996 after finding many discrepancies in the management of funds for lands held in trust by the United States in her job as treasurer for the Blackfoot tribe. According to U.S. law, Indian lands are technically not owned by tribes or individual Indians themselves but are held in trust by the U.S. government. Under U.S. management, Indian trust lands Indian reservations are often leased to non-Indian individuals or companies for resource extraction or other uses. The revenue generated from the leases is to be paid to the tribes and individual Indian land "owners." The United States has a fiduciary responsibility to manage the lands to the best benefit of tribes and individual Indians, but as the lawsuit revealed, for over 100 years the government failed in its duties to accurately account for the income generated by the leases, let alone pay the revenues to the Indians.

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Injustices of the Past and Present Against Indigenous Peoples

By Dina Gilio-Whitaker

History of Indian Land Policy and Law

The foundation of federal Indian law begins with the principles based on the doctrine of discovery, originally defined in Johnson v. MacIntosh (1823) which maintains that Indians only have a right to occupancy and not the title to their own lands. This led to the legal principle of the trust doctrine to which the United States is held on behalf of Native American tribes. In its mission to "civilize" and assimilate Indians into mainstream American culture, the Dawes Act of 1887 broke up the communal landholdings of tribes into individual allotments which were held in trust for a period of 25 years. After the 25-year period, a patent in fee simple would be issued, enabling an individual to sell their land if they chose to and ultimately breaking up the reservations. The goal of the assimilation policy would have resulted in all Indian trust lands in private ownership, but a new generation of lawmakers in the early 20th century reversed the assimilation policy based on the landmark Merriam Report which detailed the deleterious effects of the previous policy.

Fractionation

Throughout the decades as the original allottees died the allotments passed to their heirs in subsequent generations. The result has been that an allotment of 40, 60, 80, or 160 acres, which was originally owned by one person is now owned by hundreds or sometimes even thousands of people. These fractionated allotments are usually vacant parcels of land that are still managed under resource leases by the U.S. and have been rendered useless for any other purposes because they can only be developed with the approval 51% of all other owners, an unlikely scenario. Each of those people is assigned Individual Indian Money (IIM) accounts which are credited with any revenue generated by the leases (or would have been had there been appropriate accounting and crediting maintained). With hundreds of thousands of IIM accounts now in existence, accounting has become a bureaucratic nightmare and highly costly.

The Settlement

The Cobell case hinged in large part on whether or not an accurate accounting of the IIM accounts could be determined. After over 15 years of litigation, the defendant and the plaintiffs both agreed that an accurate accounting was not possible and in 2010 a settlement was finally reached for a total of $3.4 billion. The settlement, known as the Claims Settlement Act of 2010, was divided into three sections: $1.5 billion was created for an Accounting/Trust Administration fund (to be distributed to IIM account holders), $60 million is set aside for Indian access to higher education, and the remaining $1.9 billion sets up the Trust Land Consolidation Fund, which provides funds for tribal governments to purchase individual fractionated interests, consolidating the allotments into once again communally held land. However, the settlement has yet to be paid due to legal challenges by four Indian plaintiffs.