An editorial on Indianz.com asks, "What happens if Congress doesn't approve the $3.4 billion settlement to the Indian trust fund lawsuit?
It answers its own question with, "Nothing. No one gets any money. Litigation will continue at the expense of the Bureau of Indian Affairs budget and Congress will continue to do nothing about trust reform." It concludes with, "That's not what Indian country deserves." What Indian country got it also didn't deserve.
First of all, $2 billion of the settlement would go to solve the age-old dilemma of land consolidation, since most allotted lands are so fractionated that oftentimes 160-acre allotments are co-owned by several hundred people.
This problem was brought on by the very people who became defendants in the Cobell lawsuit: the U. S. Department of the Interior and its agent the Bureau of Indian Affairs. Why should the plaintiffs in the lawsuit pay $2 billion of their settlement to the very agencies that caused the problem in the first place? That is such a crazy scheme that it would laughable if it was not such a serious issue. That's like getting a check from the BIA, signing it, and then handing it back to them and saying, "Thank you for ripping me off." Insane!
All of that aside, the cash settlement was an insult to all Native Americans. So what if the litigation dragged on for 12 years? I am a landholder and I don't expect to get a single penny from the settlement because I think it should go to the next generation.
By settling for $3.4 billion, the plaintiff attorneys took the mismanagement and malfeasance of the government off of the table and allowed the United States to forever conceal their crimes against a destitute people.
A court trial would have put the theft of Indian lands and resources squarely before the eyes of the world. That stage of the media was effectively eliminated by settling out of court.
Day after day in an open trial, the government would have been exposed for what it is and a jury would have been allowed to see all of the evidence of theft, mismanagement and outright stupidity that caused billions of dollars of trust money to be flushed down the toilet or stolen outright from the poorest of the poor.
For the first time in American history, the people would have learned about an issue that has been covered up for more than 100 years. That is the sad part of settling this issue behind closed doors. The Indian people are the losers and their story of poverty brought down upon them by an uncaring government will continue to be hidden forever.
When the Cobell lawyers decided to accept a cash settlement they did so without consulting their clients. If that is not a breach of trust I don't know what is. It should not have mattered that the case drags on because in the long run the ultimate goal was simple justice. There should never be a time limit set on justice.
If the lawyers for the plaintiffs are as good as they seem to think they are, they should not have feared allowing the plaintiffs to have their day in court. By denying them this basic legal right and settling for what amounts to peanuts, they took the issue out of the public eye and doomed it to irrelevance. It denied the American Indians their day in the court of public opinion. A just jury exposed to all of the misdeeds and corruption of the United States would have been much more generous to the plaintiffs.
If the general public had been educated to the deprivation, poverty and anguish caused to the Indian people by the mismanagement of their resources and assets, an outcry would have rumbled across America and the world. And as many elders have said for years, a settlement reached without the full consent of the plaintiffs would be no settlement at all, but instead would be a travesty of justice.
Once the attorneys of the plaintiffs reached a settlement, they took out of the hands of the Indian people their ability to continue their more than 100-year fight for justice.
Cobell's line up of attorneys never understood that it wasn't so much about the money, but it was all about justice denied and of holding the feet of the thieves to the fire.
By Tim Giago (Nanwica Kciji) © 2010 Native Sun News
Tim Giago, an Oglala Lakota, is the publisher of Native Sun News. He was a Nieman Fellow at Harvard with the Class of 1990. His weekly column won the H. L. Mencken Award in 1985. His book Children Left Behind was awarded the Bronze Medal by Independent Book Publishers. Giago was inducted into the South Dakota Newspaper Hall of Fame in 2007. He can be reached at firstname.lastname@example.org