Reflections on the Cobell Settlement and Indian Land Consolidation

December marked an important milestone for Native American's across the country. In a landmark 3.2 Billion dollar settlement, the Obama administration finally ended a 14 year class-action lawsuit brought against the U.S. Department of Interior by some 300,000 Native American land owners. In their suit, Native Americans argued that the government failed to pay them nearly 42 billion dollars in lease revenue collected by the government over the past 120 years serving as their self-appointed Trustee. After years of stalling with disingenuous accounting, racking up millions of dollars in legal fees charged to tax payers, withholding and even destroying evidence, a crime for which the Department of Interior was held in contempt of court, the government finally conceded and agreed to settle with the Plaintiffs. According to the lead Plaintiff, Eloise Cobell, “there is little doubt this is significantly less than the full amount to which individual Indians are entitled...Nevertheless we are compelled to settle now by the sobering realization that our class grows smaller each year, each month, and every day, as our elders die, and are forever prevented from receiving their just compensation. We also face the uncomfortable, but unavoidable fact that a large number of individual money account holders currently subsist in the direst poverty, and this settlement can begin to address that extreme situation and provide some hope and a better quality of life for their remaining years.”


Village Earth has reported regularly on the developments in this case for several years now as we are working at the front lines of helping families remove their lands from the Government's “broken” leasing system, a term used by Larry Ecohawk, head of the U.S. Bureau of Indian Affairs in a speech at last week's Intertribal Agriculture Conference in Las Vegas and attended by Village Earth. While we do not challenge the Plaintiffs for their decision to accept such a low settlement, we do however find it deeply unsettling that desperation was a factor, a desperation largely born from the same injustices this case was all about. According to the Plaintiff's website, the settlement guarantees Native Americans a “$1.4 billion Accounting/Trust Administration Fund and a $2 billion Trust Land Consolidation Fund. The Settlement also creates an Indian Education Scholarship fund of up to $60 million to improve access to higher education for Indians.” Based on our experiences working with families and the Tribe assisting with the consolidation and utilization of fractionated interests were are particularly concerned with the proposal for the $2 Billion dollar Trust Land Consolidation Fund. According to the settlement agreement, this program will operate in accordance with the Land Consolidation Program authorized under 25 U.S.C. §§ 2201 also known as the American Indian Probate Reform Act (AIPRA) and Indian Lands Consolidation Act (ILCA). According to the settlement agreement and consistent with the AIPRA the purpose of  the Trust Land Consolidation Fund shall be used solely for the following purposes: (1) acquiring fractional interests in trust or restricted lands; (2) implementing the Land Consolidation Program; and (3) paying the costs related to the work of the Secretarial Commission on Trust Reform, including costs of consultants to the Commission and audits recommended by the Commission. An amount up to a total of no more than fifteen percent (15%) of the Trust Land Consolidation Fund shall be used for purposes (2) and (3) above. The general impact of ILCA programs is a transfer of ownership of land from Individual Indians to Tribal Governments. While this may be an effective strategy for some Tribes, our experience working at the grassroots level on the Pine Ridge Reservation has shown us that many people on the reservation feel that the ILCA exploits the desperation of individuals, tempting them with short-term monetary gain but then leaving them with little long-term benefit. It has also caused tensions within families who feel their allotted lands, even though they are fractionated, should be retained for the benefit of future generations. Despite ILCA, other options exist for individuals, families, and communities to consolidate their lands including Tribal land exchange programs, partitioning, gift deeds, and creating wills however, right now, there is virtually no support for these programs. In fact, our research on Pine Ridge demonstrates that the Federal Government is a primary bottleneck in the whole process. Furthermore, when you consider that, in the case of the Pine Ridge Reservation, all Tribally owned lands have been tied up in loans to the Federal Housing Administration for the past 25 years, this has forced the tribe to lease their lands out, oftentimes to non-tribal members, greatly limiting their ability to develop these lands in a way that will benefit their members. A real solution to repairing the injustices of the past would look at each reservation in a holistic way and consider these differences. ILCA consolidation may not be the best option for each Reservation in those cases, supporting grassroots consolidation efforts my have a greater impact on promoting self-determination and development. Furthermore, it makes little sense to promote tribal and consolidation when at the same time you have the Tribe's hands tied-behind it's back with debt to where they benefit very little from those lands.