John Echohawk Speaks on Critical Issue
By Gary E. Mitchell
"John Echohawk, a national renowned lawyer who has worked for 36 years for the Native American Rights Fund (NARF) in Colorado came to the Potawatomi reservation to give a summary of the Cobell v. Kempthorne case on Saturday, December 2, 2006. In attendance were concerned tribal members from the surrounding area.
This case involves a class action suit where various Indian entities want a legal accounting of individual and tribal accounts held by the government which are commonly called IIM accounts. They cite mismanagement of the funds.
Echohawk said a generation of people went to Washington D.C. to complain about the Bureau of Indian Affairs accounting system, but nothing was ever done. Congress passed the 1994 Trust Reform Act, which chronicled the mismanagement of the government and mandated a legal accounting of each IIM account held by individual Indians and Tribes. But nothing happened everything in D.C. went back to normal, Congress allocated no money to the project whcih turned into a meaningless act.
Eloise Cobell, the lead plaintiff, who had worked hard for ten years at getting the legislation passed in 1994, grew frustrated at the turn of the events following the passage of the act. She said we needed to take the issue to court to enforce government responsibility. Echohawk said NARF had hoped it would be handled politically but knew the system was incapable of handling the problem. The courts were the only answer.
An Arizona Republic editorial agreed, stating: â€œThe Interior Department, under both Presidents Clinton and Bush, has shown such breathtaking ineptitude that the only answer is to take the job away and let the courts sort it out.â€
Over the years there have been about 500,000 IIM accounts, and Echohawk said the government has the control and are like bankers. But under their trust responsibility, they just havenâ€™t done their jobs. The litigation asked for a proper legal accounting for the government to comply with the law and to restate the account balance of each IIM account since they are understated now. The money is income from grazing, mining logging and oil drilling on Indian land. As the system was set up in 1887, the federal government collects the payments and distributes them to individual tribal members who have rights to the land.
Once in court in front of Disrict Judge Royce C. Lamberth, the government couldnâ€™t get five sample IIM accounts up to speed. Lamberth held many administration officials in contempt for numerous delays. He eventually ruled that the Department of Interior breached its fiduciary duties by its massive and long-standing mismanagement of the IIM accounts.
The government didnâ€™t take the challenging the issue of validity seriously, and Lamberth found them in contempt for not producing the necessary records. â€œThe government couldnâ€™t do the accounting since the records were in such disarray,â€ said Echohawk. After Lamberth took a hard line approach with the government, they asked that he be removed from the case because, in their minds, he was biased and prejudiced against the government. Echohawk said Lamberth was dismissed from the case. The Bush administration didnâ€™t want to take it to the Supreme Court under the guise of working it out and seeking resolution, but after the filing deadline passed, they also failed to do anything like past administrations.
To put the argument in perspective, in 1887, $13 billion went through these accounts and adding interest to these figures, Echohawk said $176 billion has gone through these accounts. In July of 2005, Dorgan of North Dakota and John McCain of Arizona proposed a settlement bill, but had no monetary amount set. NARF has suggested $27.465 billion based on the calculation that the government receives credit for paying 80% or only doing 80% of their job. Looking at past government behavior, Echohawk said the government wouldnâ€™t want to pay the interest involved.
Echohawk said that $8 billion is now mentioned but with two factors. One, the shares would go out like a per capita payment and each IIM account holder would receive a share. Two, a weighted system would go into effect to take in account the size and value of each IIM account.
But the government has argued for some stipulations such as 1) to begin a process to let beneficiaries to manage a trust themselves; 2). no more liability for the government; 3) to develop a system of no more than ten owners on an allotment; and 4) all the tribes trust funds be settled. Echohawk called it a global settlement.
Echohawk said the tribes have more money involved than individual IIM account holders and have until December 31, when a statute of limitations ends, to challenge the Arthur Anderson accounting figures of how much the tribes have lost, after that they are stuck with these numbers. Tracy Stanhoff, Tribal Chairperson, said the Potawatomi Nation has voiced their objection legally.
All of this, according to Echohawk will come up in the 110th Congress starting in January of 2007, and he recommends settlement."