A 124 Year Odyssey Involving Cases and Records Finally Ends
Updated: Feb 19, 2022
I first became aware of this matter about 10 years ago when I read a story about a woman named Josephine Wild Gun (yes, that is her name) who then lived in a small run-down house on the Blackfeet reservation in Montana. Like most of her Native American neighbors, she owned several parcels of reservation land that were being held in trust by the U.S. Government (Indian Trust Fund).
The Indian Trust Fund
The Indian Trust Fund was created in 1887, as part of the Dawes Act, to oversee payments to Native Americans. This fund managed nearly 10,000 acres on Josephine’s behalf, leasing the property to private interests for grazing and oil drilling fees. In return, she was supposed to receive royalties from the trust fund.
Despite the lucrative leases, Josephine had allegedly never received more than $1,500 a year from the trust fund. According to the story, the payments trickled off and one check totaled only 87 cents. When her husband died, she even had to borrow money to pay for the funeral. Josephine’s story is compelling … and it stuck with me.
This story, along with some research I was doing on the Cobell v. Salazar lawsuit (involving the same Indian Trust Fund) and the government’s inability to produce records documenting the income accounting of the payments to Josephine and about 300,000 other Native Americans, caused me to wonder how and why something like this could happen.
Cobell vs Salazar
The 15-year old class action (Cobell v. Salazar) lawsuit was recently settled for $3.4 billion. I am writing about this today because hundreds of thousands of notices went out this week to American Indians who are affected by the $3.4 billion settlement bringing an end to a 124-year odyssey involving The Department of the Interior, The Bureau of Indian Affairs and many Native Americans and their descendants.
In this suit, Elouise Cobell (a Native American and member of the Blackfeet tribe) sued the federal government over the mismanagement of the trust fund. In her suit, Cobell claimed that the U.S. Government failed to provide a historical accounting of the money the government held in trust for Native American landowners in exchange for the leasing of tribal lands.
Ultimately, the case hinged on the government’s ability to produce these accounting records showing how the money was managed on behalf of the original landowners. I find myself wondering if the whole entire thing could have been avoided with better case management and recordkeeping practices. This 15-year court battle is the culmination of events going all the way back to the 19th Century! The landowners had a right to expect proper case management, proper records management and proper distribution of funds. Apparently, none of those things happened.
As a history buff, I find the whole back story fascinating … so here we go …
It all starts with Henry Dawes (1816 – 1903) who was a Yale graduate from Massachusetts. He was an educator, a newspaper editor, a lawyer and perhaps, somewhat infamously, a Congressman who was both a member of the U.S. House of Representatives (1857 to 1875) and the U.S. Senate (1875 to 1893).
During his time in public service, he had his ups and his downs. In 1868, he received a large number of shares of stock from a railroad construction company as part of the Union Pacific railway’s influence-buying efforts. On the positive side, Dawes was both a supporter and involved with the creation of Yellowstone National Park. He also had a role in promoting anti-slavery and reconstruction measures during and after the Civil War. In the Senate, he was chairman of The Committee on Indian affairs, where he concentrated on the enactment of laws that he believed were for the benefit of American Indians.
Dawes’s most noteworthy achievement was the passage of The General Allotment Act of 1887 (known as The Dawes Act referenced earlier). The Dawes Act authorized the government to survey and inventory Indian tribal land and to divide the area into allotments for individual Indians. Although later amended twice, it was this piece of legislation that set the stage for 124 years of alleged mismanagement and eventually the Cobell v. Salazar lawsuit.
I see this as a cautionary tale … reminding us of the need for enterprise content and case management as well as records management (but more on that later). I wasn’t around but I would imagine PCs ran pretty slowly back in 1887 (chuckle) … but I digress, as manual paper-based practices did exist.
Back to the story … The Dawes Commission was established under the Office of Indian Affairs to persuade American Indians to agree to the allotment plan. Dawes himself later oversaw the commission for a period of time after his time as a Senator. It was this same commission that registered and documented the members of the Five Civilized Tribes.
The Curtis Act of 1898
Eventually, The Curtis Act of 1898 abolished tribal jurisdiction over the tribes’ land and the landowners became dependent on the government. Native Americans lost about 90 million acres of treaty land or about two-thirds of the 1887 land base over the lifespan of the Dawes Act. Roughly 90,000 Indians were made landless and the Act forced Native people onto small tracts of land … in many cases, it separated families. The allotment policy depleted the land base and also ended hunting as a means of subsistence.
In 1928, a Calvin Coolidge Administration study had determined that The Dawes Act had been used to illegally deprive Native Americans of their land rights. Today, The United States Department of the Interior is responsible for the remnants of The Dawes Act and the Office of Indian Affairs is now known as the Bureau of Indian Affairs.
There is a pretty big taxpayer bill about to finally be paid out ($3.4 billion) to the surviving Native American descendants and for other purposes. Throughout the lifecycle of this case, there were multiple contempt charges, fines and embarrassing mandates resulting in the government’s reputation taking a significant hit. Interior Secretary Bruce Babbitt and Treasury Secretary Robert Rubin were found in contempt of court for failing to produce documents and slapped with a $625,000 fine.
And while time went by and Administrations changed, not much else did when Interior Secretary Gale Norton and Assistant Interior Secretary of Indian Affairs Neal McCaleb were also held in contempt. At one point, the judge also ordered the Interior Department to shut down most of its Internet operations after an investigator discovered that the department’s computer system allowed unauthorized access to Indian trust accounts. During this time, many federal employees could not receive or respond to emails, and thousands of visitors to national parks were unable to make online reservations for campsites. The shutdown also prevented the trust fund from making payments to more than 43,000 Indians, many of whom depended on the quarterly checks to make ends meet. In Montana and Wyoming, some beneficiaries were forced to apply for tribal loans to help them through the holidays.
There was plenty of mudslinging as well. “Federal officials have spent more than 100 years mismanaging, diverting, and losing money that belongs to Indians,” says John Echohawk of the Native American Rights Fund, which directed the lawsuit. “They have no idea how much has been collected from the companies that use our land and are unable to provide even a basic, regular statement to most Indian account holders.”
Again I ask … where was the accountability for these landowner cases and the associated records? Could all of this have been prevented with better policies and processes?
The damage was already done but we know that the government invested in an array of systems such as Integrated Records Management System (IRMS), Trust Funds Accounting System (TFAS), Land Records Information System (LRIS) and Trust Asset and Accounting Management System (TAAMS).
Indian Trust Fund Management Reform Act
These systems were to collect, manage and distribute trust funds in support of the 1994 Indian Trust Fund Management Reform Act. They were used for historical accounting purposes and contained land ownership records and financial records for the associated cases. A major premise of the government’s accounting effort was that the transition from paper to electronic records took the accuracy, completeness and reliability of the trust data to a level that far surpassed the “paper ledger era” … seems like it was too little too late.
I guess we’ll never know for sure, but I firmly believe that much, if not most, of this could have been avoided. It was alleged during the case that as much as 90 percent of the Indian Trust Fund’s records were missing, and the few that were available were in comically bad condition. An Interior Department report provided to the court refers to storage facilities plagued by problems ranging from “poisonous spiders in the vicinity of stored records” to “mixed records strewn throughout the room with heavy rodent activity.”
It’s a tragic story and I am glad it’s finally ending. It’s disheartening that Josephine Wild Gun and many others had to suffer the way they did for the past 124 years. It’s amazing the number of people that this impacted starting with Henry Dawes and ending with ~300,000 Native Americans (and everyone in between). It’s encouraging to know that technologies like Enterprise Content Management, Advanced Case Management and Records Management can all be used with great impact in the future to improve processes and outcomes like this.
As always, leave me your thoughts and opinions here.
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