Copyright © 2002 NLThomas
All Rights Reserved

        The closer Interior Secretary Gale Norton comes to being held in contempt, the more myths and untruths we hear about the future of the Individual Indian Trust.

        It's critical that we keep the facts – not the myths and the politics – in focus.

        Contempt for Norton and the chances for true reform of the IIM trust are related. If the Court holds Norton in contempt, the judge will be much freer to take whatever action is necessary to ensure the broken trust system is fixed, including appointment of a receiver for the rehabilitation of the IIM Trust under the direction and control of the court.

        Norton’s big weapon to try to stave off contempt and receivership is her BITAM proposal to reorganize her trust responsibilities. By mixing both tribal and the IIM trusts together in her plan – which under the law must be managed separately – she violates the most fundamental trust duties and well-settled principles of trust law. She also is attempting to divide Indian Country. And keeping Indian Country divided is the oldest and most cynical trick in Interior’s bag.

        The best way to keep united is to deal in what’s real. Here are some very important points to remember:

        (1) The Cobell lawsuit only involves the IIM trust:

Our legal battle has nothing to do with the tribal trusts. We have fought in court for nearly six years on behalf of the 500,000 individual Indian trust beneficiaries. Only Norton’s proposal unlawfully lumps the two together.

        (2) Receivership will not sever the trust relationship; it will enhance the trust relationship:

The Cobell plaintiffs have asked that the IIM Trust be put in the care of a receiver appointed and supervised by a federal court. To ensure that the United States government properly discharges its trust duties, we desperately need highly skilled crisis managers who report to the court. These court officers can put the trust on a solid footing, with at least the controls and accountability that a commercial trust uses to protect people’s money.

At no point will the trust relationship be cut off. The trust will continue to be managed by the government. But until it is fixed, the administrator will be the Judicial Branch of the government because the Executive Branch is unfit. Unlike tribes, IIM trust beneficiaries cannot place their trust funds in private banks or money markets. The IIM trustee is the United States government and its three branches. The trust duties are delegated to the Interior Secretary. And, when the delegate fails – as the Secretary has done here -- the Judiciary must intervene directly to ensure that the trust obligations owed by the United States are discharged properly and solely in the best interests of the individual Indian trust beneficiaries. Simply put, your car doesn’t change owners just because a member of your family is at the wheel.

        (3) The receiver will be both a court officer and an experienced professional:

The Interior Secretary has failed at her fiduciary duties. If the court agrees that a receiver is needed – as we hope and expect – the court will appoint the receiver and will decide how receivership is structured. This court officer will be a trustee-delegate too, whose duties and responsibilities are delegated to him from the court, free from politics and other bad influences.

        Interior does not deserve "one more chance". Interior has had so many "last chances", it defies the laws of nature. One of Norton’s top aides, James Cason, and Assistant Secretary for Indian Affairs Neal McCaleb testified Feb. 26 to Congress. In their own testimony, they said, "GAO audits of 1928, 1952 and 1955, as well as 30 Inspector General reports since 1982 had found fault with management of the [trust] system." That first, incomplete audit report was 72 years ago. There’s a pattern here. It is time to put the IIM trust in competent, professional, accountable hands and make it into a proper trust.

        "The Secretary basically admitted that [her] department is unable to conduct a historical accounting of these trust funds," says Rep. Nick Rahall (D-W.Va.), ranking member of the House Resources Committee. "That being the case, I think it is time the department stop wasting taxpayer dollars on hare-brained schemes and more consultants and begin serious settlement negotiations with the plaintiffs."

        Only a receiver can bring about true trust reform. Whatever Norton says, her department lacks the tools and the will power to turn the IIM trust around. The IIM trust has been a bureaucratic and political football for more than a century. The trust fiasco is a direct product of its environment: turf battles, budget battles, power struggles and politics. As the St. Petersburg (Fla.) Times said in an editorial, "It is senseless to tolerate this record any longer. [The judge] needs to remove this problem from the political arena."

        After fighting and winning in court for almost six years, we are drawing close to our goal of forcing real reform of the IIM Trust. No one should be distracted by the myths. Even some of our opponents are giving us credit.

        "I think the Cobell lawsuit is a blessing," the BIA’s McCaleb told the National Congress of American Indians recently. "It focused national attention on this issue. Five years ago, nobody knew, so nobody cared outside of Indian Country. Now they do."

Elouise Cobell, a member of the Blackfeet Nation and a Browning, Montana banker, is the lead plaintiff in Cobell v. Norton.