In the class action lawsuit Cobell vs. Salazar, plaintiff Elouise Cobell accused the Federal Government of mismanaging nearly 150-billion dollars in royalties owed to Indian landowners due to the loss and destruction of records. The government agreed to a $3.4 billion dollar settlement – and government data estimates there are up to 8,000 possible beneficiaries here in Wyoming.
On Monday, the Federal Court of Appeals reinstated a similar claim filed by the Shoshone and Arapaho tribes originally filed in 1979.
The two suits are similar in that they deal with mismanaged funds owed to Indian people, and Wyoming Public Radio’s Tristan Ahtone spoke to Matthew Fletcher, a professor at Michigan State University College of Law, and the Director of the Indigenous Law & Policy Center, who has been following the Wind River Tribes case.
MATTHEW FLETCHER: Well first of all the claim going back to 1979, almost all of those claims have been adjudicated and settled and this is just what is called Claim II, one of the very last claims. It has to do with certain leases that were initially established and entered into under an act of congress dating back to 1916, and when congress passed the Indian Mineral Leasing Act in the late 1930’s, and many of the leases were legally turned into 1938 kind of leases. This is a very small claim compared to much of the other claims overall, but what’s left is that the tribe is arguing that these leases that were transformed into different kind of leases: that was done illegally. So under the statute called the non-intercourse act, which applies to Indian tribes, if an act relating to Indian lands is not done properly in accordance with federal law it is void from its inception. So they’re arguing that these oil and gas companies that are still working off those initial five or six leases going back to the 19-teens, everything that they’ve done since then have been void, and so they have to pay trespass damages to the tribe and pay everything back that they’ve taken. That claim since it was so long would be worth an ungodly amount of money, and what the lower court determined was that the tribe had waited too long to bring the claim, and what’s left after the federal circuit is parsed through it is that they’ve largely affirmed everything the lower court said with one exception, which is that since they’re still out there and it’s still likely that these leases are void, they can at least sue the federal government for the last six years, the federal government typically has six year statute of limitations for bringing these kind of claims so they’ve known about it for more than six years certainly, so they can get damages going back to six years before the claim was filed. So that would still be very significant and that’s why it’s such a big case.
TRISTAN AHTONE: With such an extensive history, let’s backtrack just a little bit: how did the tribes end up in this position in the first place?
FLETCHER: One of the reasons that the Department of Interior ever created a reservation was to get at natural resources under Indian country, and I think, at least in part, the Wind River reservation was put in this position because of that. Whole tribes have been created just for the purpose of giving the Department of Interior someone to sign a lease that the interior simply would not enforce. The original version of the Navajo Nation tribal council is well documented and was created in the 30’s and 40’s so that the Department of Interior would have somebody to sign off on mineral leases – gas and coal for the most part. That tribe had, in the 1930’s, declined to establish a constitutional form of government – they still don’t have a constitution – at least in part because they didn’t want the Department of Interior to have anybody sign off on allowing this kind of exploitation, so since the tribe voted in the ‘30’s not to adopt a constitutional form of government that would allow that to happen, congress and the Department of Interior created a tribal council that still exists, although it certainly has a Navajo character to it, they’ve taken it over essentially, but that was the original purpose of Navajo and some other tribes as well. So it’s very likely that the oil and gas companies that are still out on the reservation are the beneficiaries of decades of open theft, it’s unlikely that the Department of Interior paid much attention to how much was actually leaving and probably paid even less attention to how much royalty payments were even being paid. I don’t like to use this word, but it fits perfectly: it’s an incestuous relationship going back decades between oil companies and the Department of Interior, and the interior is encouraged to sort of do a big giveaway to oil and gas companies in Indian country and elsewhere, but especially Indian country because Indian tribes, typically, are politically powerless. So I’ve seen this kind of case multiple times around the country.
AHTONE: So from your point of view, should this reinstatement be seen as a fruitful step, or just more time and money spent in court for something that may never be fully addressed or addressed at all?
FLETCHER: Well, that’s a good question. Ten years ago, I would have said any chance you get in a kind of slam-dunk case like this, to sue the federal government, you gotta take it. But if this case goes to the Supreme Court for example, and I don’t know if the United States is going to bring a cert petition, it’s possible it could get reversed. And the way the current Supreme court, the Roberts court, and even going back to 2003, the last few years of the Rehnquist court, the way that the Supreme Court has interpreted the trust relationship between Indian tribes and the united states is very, virulently, hostilly anti-tribal. They are not impressed whatsoever with the trust relationship. The Department of Interior has enormous leeway to do anything it wants with tribal assets. It doesn’t have to tell the tribe, the trust beneficiary, what it’s doing with the trust assets in most cases, unless congress has passed a statute giving great detail exactly what the Department of Interior has to do. And this is one of those cases where it’s possible, I don’t know if this would happen, but it’s possible that the Supreme Court could reverse on the grounds that way back in the 19-teens and again in the 1940’s, the Wind River Reservation tribal council signed off on these leases. Now, you recall what I said about tribal councils in the first half of the 20th century, and you don’t really know if they’re in the back pocket of Department of Interior and they’re just being used as an ostensible source of authority that may or may not be legitimate. The federal circuit seemed to think it was irrelevant that the tribe had consented. Under the non-intercourse act it doesn’t matter if the tribe consents or not, the Department of Interior has to follow its own rules and if it doesn’t the leases are void. But I can see the Supreme Court just kind of tossing that all away. So it is sort of spinning your wheels until you can actually get a judgment and have it paid out by the Department of Interior and the federal government – until that actually happens, until they actually see the money… it’s a poor bet these days.
AHTONE: So what’s next on the timeline with this case?
Fletcher: Well, if the federal government decides to let this one go and not go to the Supreme Court, it’ll probably – looking at the opinion – it’ll go back down to the Federal Claims Court for a factual determination on what the damages are, and then you’ll see it all the way come through again, although the damages judgment of the trial court will be given a great deal of deference. So I don’t really know, they might have all of that material already. My suspicion is that these kind of cases have a lot of historical documents, and occasionally you might even need an expert witness or two to talk about fair market value of things going back to the 70’s, so that could take a year to really figure out what the damages are going to be. In an ideal world the Department of Interior and Department of Justice go to the tribe and say “let’s just negotiate this thing, come to a reasonable settlement, and move on with our lives.” Unfortunately the United States in the last 10 years especially, has not been a good player in these kind of cases. They fight them absolutely to the death so it could be dragged out for several more years again, I don’t know.
Matthew Fletcher is a professor at Michigan State University College of Law, and the Director of the Indigenous Law & Policy Center.