"The way these trust fund holders have been treated . . . is a national disgrace," said Rep. Tom Udall (D-N.M.), whose district includes large numbers of Navajo. "If 40,000 people were cut off Social Security, there would be an uproar in Congress."
The problem dates to the early 19th century, when the government began putting tribal land in trust. Accounting problems were cited as early as 1828. Then, with the 1887 Dawes Act, the government began breaking up Western tribal land into allotments to individual Indians. That law was a means of winning land for white settlers. Typically, the government would declare land "surplus" and pay the Indians -- who often did not see land as something that could be bought or sold -- a pittance.
In North Dakota, Indian Tex Hall is one of thousands trying to track missing payments.
(Will Kincaid - AP)
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Within 50 years, Native Americans lost more than 135,000 square miles of land -- roughly the area of Maryland, Virginia, West Virginia, Pennsylvania, Rhode Island and the District of Columbia combined. The remaining 57 million acres, 47 million of which is tribal land, has been held in trust by the government.
Companies or individuals who want to extract the oil or minerals from the property or graze cattle on it sign leases with the local BIA superintendent and pay the Office of Trust Fund Management in Albuquerque, which manages the accounts. The accounts pay interest, though investments are limited to government securities.
Over the decades, the government gave the accounts low priority, spreading records across dozens of poorly kept warehouses across the country, where fires, floods and insects destroyed them. Compounding the problem is the fact that most Indians die without wills, leaving a probate court or administrative law judge to divide the land among the heirs. The number of accounts has increased exponentially with each generation, while each owner's share of the land has become correspondingly smaller.
Today, there is a backlog of more than 20,000 probate cases. Property inspections are not done on time or not done at all. Appraisals are figured on a computer in a regional office, often without a site visit. Surveys are sometimes based on traditional boundaries, as in "Go to the old oak tree." There is no way to ensure that account holders are receiving the highest value for their leases, no way to know when money is owed an account holder, no central location to get information on a single account.
"You have to talk to the Bureau of Indian Affairs to find out what's going on with the land management and the lease," NCAI attorney John Dossett said. "To find out how much money is in your account, you have to talk to the Office of Trust Fund Management. . . . One office supposedly knows how much is to come in. The other office is supposed to know how much actually came in." And in most cases, he said, they don't know either.
In 1972, the BIA announced it had lost the ability to reconcile the tribal trust accounts. In the early 1980s, the General Accounting Office, the Interior Department's inspector general and Price Waterhouse issued reports urging reforms. Interior created the Branch of Trust Fund Accounting in 1985 to handle all trust accounting duties. Then in 1991, the department created the Office of Trust Fund Management to oversee all trust fund investment and accounting duties. The next year, Congress issued a report urging reform, and in 1994, it passed the American Indian Trust Reform Management Act, setting up a special trustee within Interior to develop a new management plan.
Reports gathered dust. The bureaucracy expanded. Still, there was no broad solution.
By 1996, Cobell had had enough. She sued to force the government to account for all royalties due since 1887 to individual Indians and their heirs.
Norton said her department is developing a long-term plan to improve the security of individual Indian trust data. In February, she told Congress that the agency would upgrade individual trust fund technology systems by 2005.
"Indian trust asset management responsibility is a very high priority for the department," Norton said. "The tribes, Interior and the Congress have to reconcile the competing principles associated with trust responsibility and self-determination."
But the government's lack of progress over the past six years has infuriated Judge Lamberth. He has found that government lawyers have misled the court so often that he held Interior Secretary Bruce Babbitt and Treasury Secretary Robert E. Rubin in contempt during the Clinton administration and placed the individual trust system under his oversight for five years.
In December, Lamberth ordered the Interior Department to shut down Web sites that linked to the trust funds after discovering computer security was so lax that the accounts could be hacked into. The department responded by yanking all its Web sites, even for vacationers making camping reservations in Yellowstone and other parks.
Five months later, checks are still not going out to tens of thousands of Indians. The BIA's Land Records and Information System (LRIS), which records all probate and lease changes, remains off-line, blocking new transactions and "choking" the Indian economy, as Hall puts it.
A series of lawsuits filed over the last decade hints at the scale of lost Indian income. In Minnesota, the Red Lake Band of Chippewa won $80 million in two cases for underpayment of forestry land fees. After the Jicarilla Apache nation sued over the handling of its oil and gas leases and began auditing its own leases, royalties rose more than $53 million over 10 years.
Cobell said that if all royalties due for individual accounts since 1877 were totaled, they would amount to more than $100 billion in current dollars. Even if the government could account for 90 percent of that, at least $10 billion would still be missing, she said.
Some former government officials doubt the plaintiffs can prove losses in that range or that the government would pay that much. "Any settlement is not going to be $10 billion," said Kevin Gover, a Pawnee Indian and former assistant secretary for Indian affairs, who was held in contempt in 1999. "It's not going to be a lot of money, and you're going to see a lot of extremely unhappy people."
It would not be impossible to fashion a reckoning, Cobell said. "Go back to the original allotment and come forward," she said. "Determine who the heirs are. This is not hard to do. Hire crisis managers. They do it every day in the outside world."
