Two tribes in Montana are closing in on a settlement in a series of claims against the federal government that dates back to land deals from the late 1800s, in which the government underpaid the tribes by tens of millions of dollars.
The Little Shell Tribe and the Chippewa Cree Tribe in Montana have joined the Turtle Mountain Tribe of North Dakota and the White Earth Tribe of Minnesota in giving their approval to a preliminary agreement for a $59 million settlement with the United States, the Department of Interior and the Department of the Treasury.
The U.S. government has also agreed to the preliminary settlement plan.
The four tribes are the modern-day descendants of the Pembina Band of Chippewa Indians.
The Pembina were far from the only Native Americans to be cheated in deals with the U.S. government. In 1946, Congress created the Indian Claims Commission to handle an onslaught of complaints from tribes arguing the federal government hadn’t dealt with them fairly.
Congress had barred those claims from being brought in the courts. The justification was that they grew out of treaties and required a special act by Congress to permit a hearing. Until the Indian Claims Commission was established, tribes had no platform to address their complaints.
Some claims pertained to land, while others centered on natural resources like timber, oil and gas.
Complaints ranged from duress to fraud. Some tribes said they had been pressured into signing over their land, or that Congress essentially set the price for tribal land seized by the United States and the tribe had no meaningful opportunity to counter.
In other cases, tribes were promised money but the government simply never paid it, according to a report from the 79th Congress on the creation of the Indian Claims Commission.
"There are a number of cases where certain tribes after entering into a treaty ceding their lands were asked to move off from the land in question, which they did, only to find that while they surrendered their land, the United States failed to ratify the treaty or pay them compensation therefor," the report said.
Those claims led to monetary awards that were placed in a trust to be administered by the U.S. government.
One land deal with the Pembina led the Indian Claims Commission in 1964 to award slightly more than $277,000.
With the other land deal – for 8 million acres along what’s now the U.S.-Canada border in North Dakota – the commission found the government had shorted the Pembina $53 million.
Out of 600 similar awards the Indian Claims Commission made, this was the second largest.
But the money wasn’t handled properly. It took 20 years for the government to even begin sending out checks for the first award made in 1964.
The government also sat on the larger award made in 1980, for $53 million.
“They had held $53 million for eight years in the 1980s when the economy was robust,” said Melody McCoy, one of the attorneys representing the tribes in the proposed settlement. “And they couldn’t tell the Pembinas how they’d invested it, whether they’d invested it. Nothing. Zippo. It was just, ‘We’re doing your distribution. Here’s your payout.’”
The Turtle Mountain Tribe demanded an accounting to see how the money was being invested, “and the United States either couldn’t or wouldn’t,” McCoy said. The tribe hired an accounting firm to try to make sense of the situation.
“And they said, ‘You don’t need an accounting firm – you need a law firm,’” McCoy said.
The Pembina case is one of the last pending to reach a settlement. That’s out of 108 complaints from tribes over mismanagement of Indian trust funds, McCoy said.
Federal failures in the management of Indian trust funds is well documented. In the 1990s the government spent $21 million in a project designed to validate the account balances of thousands of Indian trust accounts pertaining to hundreds of tribes.
But the private accountants and analysts the government hired found that “missing records and systems limitations made a full reconciliation impossible,” according to testimony before the Senate Committee on Indian Affairs in 2002 by McCoy Williams, of the U.S. General Accounting Office.
Melody McCoy, the attorney, has been working the Pembina case since 1996. It was filed in 1992 – nearly three decades ago.
“People are dying every day waiting to get this money,” she said. “It shouldn’t have taken this long.”
There are between 38,000 and 40,000 eligible claimants under the proposed settlement.
McCoy said roughly a third of those people have died since the Indian Claims Commission awards were first made. (Those claims can then be realized by an heir or legal representative.)
McCoy works for the Native American Rights Fund, which has fought similar legal battles on behalf of other tribes in the past.
In the Pembina case, the four tribes, the U.S. Attorney General’s Office and dozens of individually named representatives or claimants have signed off on the terms of the preliminary settlement agreement.
Now the individual claimants are being notified of the preliminary agreement. They have until April 29 to object or to opt out.
Objections will be heard in June at a hearing in U.S. District Court for the District of Columbia.
If 10% of the individual claimants opt out of the preliminary settlement, the agreement becomes void. To date, the parties haven’t received any requests to opt out.
Tyler Cherry, spokesman for the Department of the Interior, declined to comment on the preliminary settlement.
The press office at the Department of the Treasury did not respond to a request for comment.
Gerald Gray, chairman of the Little Shell Tribe, said it was disheartening to watch the process to address the government’s mismanagement of trust money drag on for nearly 30 years.
He’s glad a preliminary settlement is at hand but worries some will miss the point.
“When people read this, I really don’t want them to think, ‘Oh, the Indians are just getting more money. More free money,’” Gray said. “It’s like, no. No, no, no, no, no. It’s more than that.”
More information on the preliminary settlement, including instructions for class members, can be found online at https://www.pembinasettlement.com/pembina/ or by calling Class Experts Group LLC, which is administering the settlement, at 262-292-3004.
This story has been updated to correct the amount of the initial settlement agreement.