Wednesday, November 23, 2016

Elouise Cobell is My Hero

After spending a week listening to the stories of Native Americans in Albuquerque and at the Indigenous Comic Con, my mind kept straying back to the story of one Native American woman, Elouise Cobell. As you can see from the articles below, she was a champion in recent Native American struggles to get redress and develop themselves economically after centuries of both abuse and neglect by the United States. She was just awarded the Presidential Medal of Freedom although she passed away in 2011. I would have liked to have met her once and sat down and talked to her. What she and others accomplished in terms of suing the US Federal Government was inspirational on so many levels and largely unknown by the wider United States.

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Tester Announces Elouise Cobell Honored with Presidential Medal of Freedom
November 16, 2016
Press Release

(U.S. Senate)-Senator Jon Tester today announced that Elouise Cobell has been recognized with the Presidential Medal of Freedom.

Tester recommended Cobell earlier this year to receive the nation's highest civilian honor for her leadership and fight for justice for Native American families.

"Elouise Cobell was a champion for change and a fierce advocate for Native American families," Tester said. "Elouise has now joined some of the most influential Americans in our nation's history by receiving the Presidential Medal of Freedom, and her legacy is guaranteed to live on for generations to come."

Cobell's case against the federal government was settled in 2009, thirteen years after it was originally filed in U.S. District Court. Cobell passed away just two years later in 2011. Tester attended her funeral.

The first distribution of Cobell payments was made to Native American families in 2013. Additional payments through the Department of the Interior's Land Buy-Back Program are ongoing, and to date, over $900 million in payments through the Buy-Back Program have been made to tens of thousands of Native American landowners for selling their fractional interests in land to their respective tribe.
As Treasurer of the Blackfeet Nation, Cobell also founded the first tribally-owned national bank located on an Indian reservation. The Blackfeet National Bank is now the Native American Bank and provides access to capital and financial services to more than 20 tribes across the nation.

The Presidential Medal of Freedom is the highest civilian award that can be presented by the United States. According to the White House, the award may be presented "to any person who has made an especially meritorious contribution to the security or national interests of the United States, or world peace, or cultural or other significant public or private endeavors."

In 2008, Tester recommended Crow tribal historian and veteran Joe Medicine Crow for the Presidential Medal of Freedom. He was honored by President Obama in August of 2009.


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A Victory for Native Americans?
James Warren
The Atlantic
Jun 7 2010

Mistreatment of Indians is America's Original Sin, and the narrative is consistent. They lose their land, get portrayed as caricatures of social maladies, and are ripped off by the likes of Jack Abramoff. So it's no surprise that a tale with a very different ending, namely the righting of a horrible wrong affecting 500,000 Native Americans, proceeds with virtually no notice.

Indeed, you'd think that even Tea Party diehards should rally to this cause, given their anti-government and pro-property rights passion. They might even want to pay homage to the intrepid female accountant-turned-banker, who inspired one of the most fiercely litigated disputes against the federal government in history. But they likely won't. Who will? Not even many Indians believe that belated fairness is now on the way, given more than a century of government abuse and deceit whose undisputed facts strain credulity.

The facts are these: Following the House's approval, the Senate is considering whether to approve a $3.4 billion settlement of a 15-year-old lawsuit, alleging the government illegally withheld more than $150 billion from Indians whose lands were taken in the 1880s to lease to oil, timber, minerals and other companies for a fee. Back then, the government started breaking up reservations, accumulating over 100 million acres, giving individual Indians 80 to 160 acres each, and taking legal title to properties placed in one of two trusts. The Indians were given beneficial ownership but the government managed the land, believing Indians couldn't handle their affairs. With leases for oil wells in Oklahoma, resorts in Palm Springs, and rights-of-ways for roads in Scottsdale, Arizona, some descendants of original owners receive six- and even seven-figure sums annually. But the prototypical beneficiary, now poised to share in the settlement, is a poor Dakotan who struggles to afford propane to heat his quarters and has been receiving as little as $20 a year. More than $400 million a year is collected from Indian lands and paid into U.S. Treasury account 14X6039.

The story turns on theft and incompetence by the Interior and Treasury Departments, with culprits including Interior's Bureau of Indian Affairs (BIA) and the same Minerals Management Service now at the center of the BP oil spill fiasco. Over the past 100 years, government record systems lost track of more than 40 million acres and who owns them. The records simply vanished. Meanwhile, documents were lost in fires and floods, buried in salt mines or found in an Albuquerque storage facility covered by rat feces and a deadly Hantavirus. Government officials exploited computer systems with no audit trails to turn Indian proceeds into slush funds but maintain plausible deniability.

The lack of accountability is confirmed in the government's own reports and testimony dating to the early 20th century. Conclusions of "fraud," "corruption," "institutional incompetence," "deficiencies in accounting," "the accounts lack credibility," "multifaceted monster," "organizational nightmare," "dismal history of inaction," "criminal negligence," and "sorry history of department mismanagement," are found regularly between 1915 and the present. Congress ordered an accounting in 1994 but interior secretaries in both the Clinton and George W. Bush administrations were held in civil contempt for not forking over records. District Judge Royce Lamberth, a Texas Republican nominated by President Reagan who oversaw the case for a decade, called the whole matter "government irresponsibility in its purest form."

I sat in Lamberth's courtroom in 1999 when Interior Secretary Bruce Babbitt both lost his cool and conceded that the government couldn't provide accurate cash balances of most accounts and that "the fiduciary obligation of the United States is not being fulfilled." But the dispute would not end, as the Clinton and Bush administrations fought unceasing adverse rulings in a case inspiring 3,600 separate court filings and 80 published decisions. No single case, including the antitrust action against Microsoft, has been as heavily litigated and defended by the government, say lawyers.

The government's chief nemesis has been Elouise Cobell, a member of the Blackfeet Nation in Montana, the accountant-turned-banker who in 1987 started Blackfeet National Bank, the first national bank on a reservation. With a very small team of attorneys led by a Washington banking specialist, Dennis Gingold, her suit has inspired 3,600 court filings and 80 published decisions. Not even the antirust action against Microsoft was as heavily litigated by the government.

The historic resistance melded with an unsympathetic appeals court often overruling the dispute's two trial judges. It ordered removal of Lamberth, now the district court's chief judge, due to harsh language toward the government. Last year, it threw out a ruling by District Judge James Robertson, Lamberth's successor, that the Indians were owed $476 million, a pittance compared to the reduced, $48 billion they were seeking by then. Presidential candidates Barack Obama and John McCain both urged settlement during the 2008 campaign.

A resolute Judge Robertson then hauled Interior Secretary Ken Salazar and plaintiffs into his chambers last year. He made clear to one and all that, in light of the latest appeals court ruling, both sides had the choice between spending maybe another 10 years in court or trying to finally settle. The initial atmosphere was not necessarily conducive to harmony. Career government employees in the Interior, Justice and Treasury departments felt burned after years of being belittled by both the plaintiffs and Judge Lamberth. Meanwhile, the plaintiffs had minimal trust in the government. But political appointees in the Obama administration, including Salazar and Attorney General Eric Holder, took their cue from President Obama's own support of a settlement. Dozens of meetings ensued, with the many prickly issues including how far back in time one would go to try to determine who should benefit.

Ultimately, Judge Robertson prodded what, given all the legal setbacks, is an impressive $3.4 billion deal announced in December. Ironically, before the recent congressional recess, the House approved the deal and Robertson announced his retirement, meaning District Judge Thomas Hogan becomes the third, and hopefully final, arbiter in the case. He would oversee a so-called "fairness hearing" in which objections can be raised.

There is inherent complexity in wrapping up. If the Senate approves, there will be a media campaign throughout Indian Country, including direct mail, newspaper and broadcast public service advertisements. Garden City Group of Melville, New York, which handled the major class action against Enron, will be claims administrator. It will get computer lists from the Interior Department, with the account information of perhaps 500,000 Indians and then doublecheck names and addresses. How good are the records? Nobody is really sure.

The $3.4 billion will be placed in a still-to-be-selected bank and $1.4 billion will go to individuals, mostly in the form of checks ranging from $500 to $1,500. A small group, such as members of the Osage tribe who benefit from huge Oklahoma oil revenues, will get far more, based on a formula incorporating their 10 highest years of income between 1985 and 2009. As important, $2 billion will be used to buy trust land from Indian owners at fair market prices, with the government finally returning the land to tribes. Nobody can be forced to sell. As for the winning lawyers, their take is capped at $100 million, actually low by class-action standards, though Republican Sen. John Barrasso of Wyoming, an orthopedic surgeon, has groused about the fees.

The fairness hearing will be interesting since many Indians have a hard time believing they're not still being shafted. "This proposed settlement fixes nothing, the U.S. won by legal weaseling," writes a member of the Upper Midwest's Prairie Band Potawatomi tribe on a message board. He's not alone. Like a family victimized by homicide, Indians may never experience enough healing to truly recover. But, finally, as hard as it is for them to believe, there really may be some justice.

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"Elouise Cobell is My Hero"
by Tanya H. Lee
Indian Country Today Media Network
11/13/16

On November 22, President Barack Obama awarded the nation’s highest civilian honor to Elouise Cobell, Blackfeet. Her son, Turk Cobell, accepted the Presidential Medal of Freedom on his mother’s behalf. “It is a very exciting day for all of our family who are here in Washington,” said Cobell on the morning of the presentation ceremony.

In 1996, Elouise Cobell became the lead plaintiff in a lawsuit alleging the U.S. government had failed to pass on to half a million individual American Indian landowners the royalties and fees they had earned under oil, timber and mineral leases negotiated and administered by federal agencies.
Cobell eventually won a $3.4-billion negotiated settlement on behalf of the plaintiffs, but the case dragged on for years, with the U.S. marshaling all of the considerable resources at its disposal to delay the court proceedings and avoid accounting for the funds, which probably totaled in the hundreds of billions of dollars.

Ambassador Keith Harper, U.S. Permanent Representative to the UN Human Rights Council, was a lead attorney for the plaintiffs.

“I cannot think of a person who deserves this more. She was a courageous soldier for justice. She spent an incredible amount of time and her entire spirit to ensure 500,000 individual Indians received a measure of justice. She knew it would not be perfect, but if she didn’t stand up they wouldn’t get anything. I am deeply honored to have worked with her,” said Harper, Cherokee Nation of Oklahoma.
The Cobell Settlement, which included copy.4 billion in payments to the individual plaintiffs, a copy.9-billion land buy-back program to return individually-owned fractionated lands to the control of tribes and a scholarship program for undergraduate and graduate students, was signed by President Obama in December 2010.

Walter Lamar, Blackfeet/Wichita, is a former FBI special agent, deputy director of BIA law enforcement, and is currently president of Lamar Associates. He said: “Elouise Cobell saw a wrong and decided to step forward to do something about it. Always we have a choice to do something or do nothing, and doing nothing always offers no risk. Elouise knew early on that stepping forward to expose decades of the government’s gross mismanagement of our precious resources was going to take a personal toll, but she courageously pressed on.

“As the years went by, she was more vigorously attacked and still she continued the fight. The government fought to mitigate their devious behavior while the plaintiffs’ attorneys fought to demonstrate the true scope of the damage done. In the end some battles were won and lost by both sides, but at the end of the day it was demonstrated without question the government willfully pillaged the coffers on Indian country. In the end, thousands have received checks, thousands will be educated into the future, tribes’ land base will be strengthened and we have the satisfaction of exposing epic misdeeds—all because one determined woman made the choice to take courageous action. Elouise Cobell, may you rest in peace with the warriors of our nations.”


Cobell passed on in 2011, less than a year after the president signed the settlement and before any restitution had been paid to Indian people. By the end of 2015, nearly copy.2 billion had been paid out to individual Indians. According to a status report issued in November 2016, nearly $900 million had been paid out to purchase the equivalent of 1.7 million acres of fractionated land interests. Roughly $40 million has been paid into the scholarship fund.

Sen. Jon Tester, D-Mont., a member of the Senate Indian Affairs Committee, recommended Cobell for the Medal of Freedom. “Elouise Cobell was a champion for change and a fierce advocate for Native American families,” Tester said in a statement. “Elouise has now joined some of the most influential Americans in our nation’s history by receiving the Presidential Medal of Freedom, and her legacy is guaranteed to live on for generations to come.”

Tester’s compatriot, Denis Juneau, Blackfeet, ran for the U.S. House of Representatives as Montana’s at-large representative in 2016. Had she won, she would have been the first Native American woman to serve in the House. Juneau said: “Elouise Cobell is my hero. Her toughness, perseverance and ability to steadfastly stand on the side of justice definitely makes her a woman warrior. Knowing Elouise is receiving the Presidential Medal of Freedom makes me proud to be an American Indian woman from the Blackfeet Nation.”

During Tuesday’s presentation of medals, President Obama said he chose as recipients those who have “lifted our spirits, strengthened our union and pushed us toward progress.” Cobell, he said, wanted for Indians the “equal treatment [that is] at the heart of the American promise.”

Read more at http://indiancountrytodaymedianetwork.com/2016/11/23/elouise-cobell-my-hero-awarded-posthumous-presidential-medal-freedom-166553
 

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Elouise Cobell, American Indian who led suit against U.S. Government, dead at 65
by T. Rees Shapiro
October 17, 2011
Washington Post

Elouise Cobell, a Blackfeet tribal member who led a class-action lawsuit on behalf of 500,000 Indians against the Interior Department that yielded one of history’s largest government settlements — a payout worth $3.4 billion — died late Sunday at a hospital in Great Falls, Mont. She was 65 and had cancer.
 
The death was confirmed by Bill McAllister, a family spokesman.
 
Mrs. Cobell spent nearly 15 years advancing the suit, which was settled in 2010. It claimed that the Interior Department had stolen or squandered billions of dollars in royalties owed to individual tribal members, mostly in the West, in exchange for oil, gas and other leases.

Mrs. Cobell, an accountant who grew up on a reservation in Montana without electricity, a telephone or running water, was all too familiar with stories of the government’s mistreatment of tribes. She said the federal mismanagement of the land trusts dated from the 19th century and had contributed to a pattern that had left her tribe with high poverty and unemployment rates.

“The issue we’re dealing with,” she told the New York Times in 2004, “is the fact that we don’t know how much land we own, we don’t know what the resources are on that land because the government has gotten away with not reporting to the trust beneficiaries.”

The landmark settlement was ratified by Congress and signed into law last year by President Obama, who called it an “important step towards a sincere reconciliation.”

Eric Eberhard, an Indian law expert at the Seattle University law school, said there was “no doubt that Elouise Cobell changed the legal landscape when it comes to Indian law and the federal government’s trust responsibilities.”

He said Mrs. Cobell was “able to demonstrate in court that the mismanagement was profound — that, in some instances, monies which should have been credited to accounts never showed up.”

Mrs. Cobell served as treasurer of her Montana tribe and helped found the first Indian-owned national bank, where she spoke with Blackfeet distressed by the paltry income their acreage seemed to bring in from Washington.

By the time she filed the far-reaching lawsuit in 1996, she had grown convinced that the federal government was not moving swiftly enough to address problems with the land trusts.

Almost nothing had happened, she said, even though Congress passed a trust reform act in 1994, after a scathing report two years earlier by the House Committee on Government Operations called “Misplaced Trust: The Bureau of Indian Affairs’ Mismanagement of the Indian Trust Fund.”

She thought that no action by the government would likely occur without legal pressure from Indian country.

Mrs. Cobell was aided over the years by foundation money. That included a “genius grant” of $310,000 in 1997 from the John D. MacArthur Foundation, which called Mrs. Cobell “an advocate for Native American self-determination and financial independence whose work has inspired many Native American women to seek influence and leadership within their own communities.”

Mrs. Cobell traced the origins of her suit to 1887, when Congress passed the General Allotment Act. The legislation divided tribal-owned land into smaller parcels and gave the allotments to individual Indians.

The federal government placed the properties into a trust and leased the land to settlers. The royalties generated from logging, grazing, mining and oil drilling were distributed among the individual Indians and, after their death, to their descendants.

Investigations showed that the Interior Department’s Bureau of Indian Affairs, which managed the allotments and the revenue accounts, paid the Indian landowners erratically, if at all. For decades, some Indians were sent checks for as little as 8 cents.

Furthermore, the Bureau of Indian Affairs no longer possessed many of the documents that showed how much Indian land the government controlled.

At trial, several officials said some documents were shredded at a Hyattsville facility as part of the Interior Department’s routine house-cleaning. Other crucial records in an Albuquerque warehouse had to be destroyed because they became contaminated with asbestos and the deadly hantavirus from rodent feces.

Federal Judge Royce C. Lamberth, who oversaw the lawsuit, described the Interior Department in a 2005 court decision as a “dinosaur — the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the last pathetic outpost of the indifference and anglocentrism we thought we had left behind.”

Over the years, Lamberth held two secretaries of the interior, Gale Norton and Bruce Babbitt, as well as Treasury Secretary Robert Rubin, in contempt for failing to address what the judge described as a dysfunctional system.

In 2006, a panel of judges from the U.S. Court of Appeals for the District took the rare step of ordering Lamberth, a Ronald Reagan appointee, removed from the case, saying he displayed strong bias against the Interior Department because of his harsh tone.

“That was a low point,” Mrs. Cobell later told the Associated Press. “We knew it would be hard to get a new judge up to speed. The government has all the money in the world, but we don’t have deep pockets.”

After 220 days of trial, 80 court decisions and 10 interlocutory appeals, the case was settled when the Interior Department agreed to the $3.4 billion deal in 2009. The settlement included $1.5 billion for Indians involved in the lawsuit and $1.9 billion to purchase fractioned land parcels and turn them over in whole to tribes.

“This is an historic, positive development for Indian country,” Interior Department Secretary Ken Salazar said at the time, “and a major step on the road to reconciliation following years of acrimonious litigation between trust beneficiaries and the United States.”

On Mrs. Cobell’s request, the government also gave $60 million to create the Indian Education Scholarship Fund for Indians to attend college and vocational schools.

Mrs. Cobell was awarded $2 million. Her lawyers received $99 million, a figure that struck many Indians as too high.

“The settlement isn’t perfect,” Mrs. Cobell said. “I do not think it compensates all for all the losses sustained, but I do think it is fair and it is reasonable. That is what matters: A fair resolution has been achieved.”

Elouise Catherine Pepion was born Nov. 5, 1945, on the Blackfeet Nation reservation in Montana, situated on the eastern edge of the Glacier National Park. Her Indian name was Yellow Bird Woman.
She spent two years at Montana State University before leaving to care for her mother, who was dying of cancer. In 1968, she left the reservation and worked as an accountant at a television station in Seattle before becoming the Blackfeet treasurer in 1976.

Twelve years later, she helped open the Blackfeet National Bank, which was the first national bank on a reservation and the first to be owned by an Indian tribe. Today, it is the Native American Bank and is owned by 26 tribal nations.

Survivors include her husband, Alvin Cobell of Blacktail, Mont.; a son, Turk Cobell of Las Vegas; a brother; three sisters; and two granddaughters.

In the years Mrs. Cobell’s lawsuit was in court, she spent much of her time meeting with Indians across the country to gather support. Many joined her cause.

“They stand up and cheer,” Mrs. Cobell told the New York Times in 2004, “because finally someone stood up for justice.”

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