CASPER, Wyo. — The federal government will distribute about $23 million to American Indian land trustees in Wyoming after years of breached obligations on trust payments, according to Dennis Gingold, attorney for the plaintiffs in the Cobell lawsuit.
The settlement required unanimous congressional approval. As the ranking Republican on the U.S. Senate Committee on Indian Affairs, Sen. John Barrasso’s influence was paramount. He had objected to the settlement several times, jeopardizing the deal, Gingold said. Without his approval the settlement wouldn’t have come to fruition. The senator’s staff members went through the settlement word for word and found compromise.
“He had to decide he wasn’t going to oppose the settlement any longer,” Gingold said.
Barrasso proposed an enhancement for the lowest-income trust beneficiaries, which was approved. And in a rare display of unity after debating the settlement for a year, every member of Congress voted in favor in 2010.
"These changes will go a long way in protecting the interests of hundreds of thousands of Indians affected by this settlement,” Barrasso said in a statement to the Star-Tribune. "The input from tribal leaders and members of Indian Country helped me improve flaws in the settlement, without destroying the agreement."
The settlement ameliorates the wrongs set forth by the General Allotment Act of 1887. At the turn of the 20th century, the federal government divided reservations and allotted as trust 40 percent of reservation land to enrolled tribal members west of the Mississippi River. All of the class members in the lawsuit were beneficiaries of the land that the government allotted. After the government allotted the land in the early 1900s, there were 54 million acres of trust land for individuals to help integrate American Indians into society after Congress had deemed them incompetent. Now there’s only 11 million acres. The land’s been sold by beneficiaries and, in many cases, the government.
It’s like the government taking the titles to cars while still letting people drive them, Gingold said. "It's the dark side of American history."
State Rep. Patrick Goggles, D-Ethete, is a member of the Northern Arapaho Tribe and a beneficiary. He said the payments to beneficiaries are long overdue. The federal government failed as a fiduciary to pay the highest value for trustee land throughout the years, he said.
“Fiduciary doesn’t mean minimum. It means the highest rate possible,” he said.
Gary Collins is Gov. Matt Mead’s liaison to the Northern Arapaho Tribe. He said thousands of American Indians will be shortchanged in the deal. The courts excluded families of deceased beneficiaries from receiving settlement money, he said. Another downside according to Collins is the settlement won’t fulfill exact amounts owed to tribal members for land sales and leases.
There’s no way to account for the land sales and leases, Gingold said. Documents kept by the Bureau of Indian Affairs, Bureau of Land Management and the Department of the Interior were stored in barns and eventually destroyed, according to testimony from the federal government. The intent wasn't malicious, Gingold said. Until the Cobell case, the Interior Department regarded the beneficiary trust records as non-trust documents. Federal law requires government agencies to destroy non-trust documents over time. The lack of documents is what made the case difficult to litigate, Gingold said. It also made settlement figures hard to determine. The Riverton Ranger reported 8,000 beneficiaries in Wyoming will divide the $23 million.
Nationwide, 500,000 American Indian trust beneficiaries will split the $3.4 billion. The case began when the late Elouise Cobell, of the Blackfeet tribe in Montana, found it unjust that beneficiaries weren't paid when the federal government leased trust land to third parties for mining, drilling or grazing. She brought the class action suit against the government in 1996. Cobell died in October 2011.
“Before Elouise, no government official, no tribal member, no tribal authority did anything to enforce the trust duties the U.S. owes,” Gingold said.
The case is known as the most complex litigation of trust law in the history of the nation. It’s one of the nation’s largest class action lawsuits ever and one of the largest settlements. The litigation ended after the U.S. Supreme Court dismissed an appeal on Nov. 24. The Interior Department and thousands of tribal land owners reached a settlement on Dec. 7, 2009. President Barack Obama and Congress authorized it in late 2010. For the past two years, appeals from trustees tied up the case and prevented the disbursement of payments.
Myths about the case are already spreading throughout the country, Gingold said. He made clear that the payments aren’t delinquent and tribal governments are not involved with the case.
“This wasn’t a case for reparations,” Gingold said. “This was a case to enforce the trust duties the U.S. has owed to Indians since 1887.”
Of the settlement, $1.5 billion will pay trust beneficiaries based on a schedule of the value of the government’s breaches of trust. Payments depend on how much revenue was collected in the rent or sale of trust assets and what types of leases the government issued to third parties. Gingold said beneficiaries with profitable natural resources on their land will receive more. Beneficiaries from the Agua Caliente tribe in Palm Springs, Calif., are set to receive large payments because the government leased or sold the land to resort and golf course operators.
The settlement also includes a $1.9 billion fund for the government to purchase fractionated land allotments from individuals. As a result of the allotment act, fractionation happens when tribal members die and their land is allotted and divvied up by all heirs. As more members die, the fractions of land allotted to one person become smaller and smaller, eventually losing all of their value. Individual owners will be paid fair market value for the land, but the money must go into a trust and be consolidated for tribal communities.
Up to $60 million of the $1.9 billion will be used for scholarships for American Indians and Alaska natives to attend college or vocational school.
The Interior Department appointed GCG Inc. as the claims administrator. The company will work with the Interior's Office of Special Trustee to allocate the money to tribal members.
“With the settlement now final, we can put years of discord behind us and start a new chapter in our nation-to-nation relationship,” Interior Secretary Ken Salazar said in a media release.