More than a century in the making, the largest legal case in
Native American history may finally come to a close within the next
Although Cobell v. Norton was not filed until 1996, its origins
lie in the United States government’s supervision of Indian
trust funds dating back to 1887. In that year, the government
established the trust to manage Native American land, but it now
admits to mismanaging it from its outset by underselling the land
and failing to retain documents proving the payments.
After years of grinding through the courts and colliding with
the Department of the Interior on nearly every proceeding to remedy
the system, the case’s resolution is almost in sight —
an appellate ruling that may bring at least $10 billion to half a
million Native Americans, said Keith Harper, a leading attorney for
“We’re getting to that place to where there’s
a light at the end of the tunnel,” said Harper, who is from
the Cherokee tribe and is a senior staff attorney for the Native
American Rights Fund, a Colorado-based organization that provides
legal representation for Native Americans.
Speaking last night at West Hall in a lecture titled
“Archives, Records, and the Multi-Billion Dollar Indian Land
Trust Litigation,” Harper sought to inform students about the
inherent failures of the government’s individual Indian trust
Marred by both the institution’s apathy for retaining
accurate records and its inability to rectify the problems, Harper
said the trust fund has become a “broken system”
incapable of insuring the proper management of many Native
“That is the reality, it is a broken system. The secretary
of the Interior recognizes it. Nobody doesn’t recognize
it,” he added.
The Department of the Interior acknowledges the system’s
error as well, but since the onset of the case, the department has
challenged the reforms Harper’s legal team have pushed in the
Brought on by government attempts in the 1880s to remove Native
peoples from their land, the trust fund was created to facilitate
the dividing of their territory. Under the trust fund, the
government would manage the land of the Native Americans and
prospective buyers would lease it. The money from the lease would
then go back to the Native American owners. Clearly, this has not
been the case, Harper said.
Navajos are now paid from $9 to $40 for their land’s
lease, while most land leased in the surrounding areas is valued
from $140 to as much as $590, Harper said. Combined with the lack
of documentation, Harper said the government has not filled its
obligation as a trustee.
“The problem is that they have the powers of a trustee,
but not the concomitant responsibility of the trustee,” he
said. “It was the inducement to fraud beyond the capability
Cultivated from the continued negligence of the system, which
persisted into the 1990s, Harper said he and the Native American
Rights Fund cracked down on the trust fund when they represented
Elouise Cobell, a Native American, in her 1996 suit against the
Department of the Interior.
But the department’s contempt and obstruction of justice
hindered the case, Harper said. The sheer failures of the trust
fund to bring forth any relevant documentation and the moral
arguments presented by the Native Americans furthered the case to
its current standpoint, he added.
Now that the court has ruled in favor of the fund, the
Department of the Interior has the option to either abide by the
steps outlined by the court’s order to reform the trust fund,
or it can opt to reject the order. If the department chooses the
latter, Harper said the court would appoint someone to oversee the
trust fund’s operations.
One huge hurdle still remains though, Harper said.
While Harper expects litigation to finally end around December
of this year, the case also has political implications that could
reverberate on a national level.
Harper said the result of the ruling would force people using
Native American land to compensate for what could possibly amount
to at least a total of $10 billion. Yet much of the Native American
land has been leased by oil, natural gas and timber companies
— for whom the added payments on leases would be a black
“There are those in Congress who don’t want us to
ask those questions,” he added.
For Rackham student Eva Reffel, the lecture elicited feelings of
disgust toward the government’s century-old failed
“I can now imagine what’s pretty much going on in
Interior, in which they are not willing to allocate any resources
to the Native Americans. … It’s disgustingly
short-sighted,” she said.
“I feel this is an important case,” Rackham student
Trond Jacksen said. “It brings into question, what kind of
people do we want to be? Do we want to be a people of a country
that keeps its word, or do we want to be a people of a country that
breaks its word?”