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News from Indian Country
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‘ Spilyay Tymoo
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In a cave, counting up w hat Indians are owed
LENEXA, Kan. (AP) - Sev­
enty feet beneath the prairie, the
government is filling limestone
caverns — protected by guards
and a bomb-sniffing dog - with
truckloads o f American Indian
financial and cultural records.
What is ground zero for an
accounting that will take seven
years and cost $335 m illion
owes its existence to a bitter
class-action lawsuit brought
against the Interior Department
a decade ago. Still, it’s only a
short version o f the historical
accounting that Indians de­
manded but no longer want -
because they don’t think it can
be done properly.
The Indians say the govern­
ment mismanaged a trust in
their names for 120 years and
now owes them tens o f billions
o f dollars.
The dispute dates to 1887,
when Congress made the Inte­
rior Department trustee for 145
million acres o f Indian lands.
Indians were supposed to ben­
efit but the government gave
most o f the land to white set-
ders.
Today, Interior manages 10
million acres o f trust land for
individual Indians and 46 mil­
lion acres for tribes. In 1996, the
Indians sued to reconcile their
historical accounts. They, and
Congress, demanded an audit.
The Indians may be ow ed a
century’s worth o f grazing rents,
oil and gas royalties and timber
sales from the land, plus inter­
est.
Both the Indians and the In­
terior Department agree $13
billion was collected between
1909 and 2001.
The Indians had claimed the
unpaid interest could be more
than $150 billion, but they’ve
offered to drop the whole thing
if the government coughs up
$27.5 billion. That money would
be spread among individual In­
dian accountholders, about a
fifth o f the nation’s 2.5 million
N ative A m ericans w h o live
mainly in the West.
N o way, the Bush adminis­
tration replied: The government
has been forwarding most o f the
rents and royalties to tribes and
individual Indians all along.
“ It could be just $30 million
that’s owed to the Indians,” said
Ross Swimmer, the Interior
Department’s special trustee for
American Indians and also a
member o f Oklahoma’s Chero­
kee Nation.
During a tour o f the Kansas
cave, Swimmer and other Inte­
rior officials were eager to show
that many more Indian records
exist than people realize. They
also wanted to demonstrate their
ability to check the accuracy o f
financial transactions with Indi­
The Indians’ biggest ally is
embattled U.S. District Judge
R oyce Lam berth, a form er
Reagan administration official
whose strongly worded rulings
condemn the Interior Depart­
ment. After nine years presid­
ing over the case, Lamberth con­
cluded last July the agency is a
“ pathetic o u tp o st” that has
bungled its fiduciary duty.
“ For those harboring hope
that the stories o f murder, dis­
possession, forced marches,
assimilationist policy programs,
and other incidents o f cultural
genocide against the Indians are
merely the echoes o f a horrible,
bigoted government-past that
has been sanitized by the good
deeds o f more recent history,
this case serves as an appalling
reminder o f the evils that re­
sult when large numbers o f the
politically powerless are placed
at the mercy o f institutions en­
gendered and controlled by a
politically powerful few,” the
judge wrote.
N ot surprisingly, the Interior
Department wants Lamberth
removed from the case and an­
other judge assigned to it.
Dow n the rabbit hole, trac­
tor trailers disappear into an ob ­
celed checks, and court docu­
ments attest to numerous de­
scure grassy knoll just o f f the
Prairie Star Parkway. Situated in
an industrial park a half hour
southwest o f Kansas City, the
cave offers few indications it
houses a semi-secretive govern­
ment facility.
Several minutes o f driving
through the dark, and the corri­
dors get curiouser and curiouser.
A faint dankness and dust fill
the nostrils. Pocked walls climb
in to shadow. Painters have
brightened them, like gardeners
painting red roses white.
In dimly lit parking spaces,
trucks disgorge box after box o f
documents to be catalogued,
computerized and stashed away.
Two years and $120 million
into the accounting, the archive
has amassed 140,000 boxes with
300 million pages o f old leases,
bills, ledgers, account statements,
school records, maps, letters and
black-and-white photographs.
In a space the size o f Kan­
sas City’s Arrowhead Stadium
and managed by the Interior D e­
partment and the National Ar­
chives, boxes extend close to the
ceiling and down aisles so long
they fade into the caverns —
reminiscent o f the fate met by
Indiana Jones’ recovered ark.
“ People com e in and ask,
‘Where is the Lost Ark?” ’ said
Jeffrey Zippin, deputy executive
director o f Interior’s Office o f
Historical Trust Accounting.
The shelves are coated with
an electrostatically charged pow­
der to resist corrosion or chemi­
cal action. The air within the
painted cavern walls is kept at
60 degrees Fahrenheit and 40
percent humidity. H ig h -effi­
ciency air filters catch 99 per­
cent o f all microscopic particles.
The facility is leased for
$900,000 a m onth from
Minneapolis-based Meritex En­
terprises Inc. Its security and
climate controls are matched
only by the National Archives
itself in Washington and an an­
nex in College Park, Md.
T he cavern teems with a
small army o f federal contrac­
tors — five accounting firms and
stroyed trust records.
15 other businesses — assisting
ans.
“They’re finally going to get
their accounting,” Swimmer said.
“ For once we’ve gotten some­
thing right for the Indians.”
In an iron y b efittin g an
“Alice’s Adventures in Wonder­
land” legal war, the government
is relying on the Indian-de­
manded accounting - actually,
it’s a statistical sampling - to
come up with figures that Indi­
ans claim lowball what they’re
owed.
“ It’s a number in the m’s, not
the b ’s,” said Fritz Scheuren, who
oversees Interior’s statistical
sampling and was president o f
the American Statistical Associa­
tion last year.
The Indian plaintiffs now say
too many records have been
destroyed to com e up with an
accurate figure. Before 1990, the
Treasury Department routinely
destroyed the Indian trust’s can­
<
“The documents that the gov­
ernment has preserved are a
fraction o f those that have been
lost and destroyed,” said Den­
nis Gingold, an attorney for the
suing Indians. “ Massive hard
copy and electronic destruction
... make the accounting legally
and factually impossible.”
i
about a dozen Interior and Na­
tional A rchives em ployees.
Thirty students at Haskell Indian
Nations University, in nearby
Lawrence, use the documents
for training. It is closed to all but
federal workers, contractors,
Indian tribal representatives and
researchers; privacy laws protect
the
names
of
living
accountholders.
The boxes come from about
100 o f Interior’s Bureau o f In­
dian Affairs offices and National
Archives’ record centers around
the country. At a nondescript
warehouse nearby, 100 workers
sort through the boxes and log
their contents into computers.
The records are an eclectic
mix: 1943 photographs o f Na­
vajo women cooking; a hand­
written appeal from a Great
Plains Indian for compensation
because some o f his cattle died;
and a 16-page list o f Sioux In­
dians killed and w ounded —
bearing ill-fated names like
Black M oon, Sore Eyes Woman
and Afraid o f Left Hand — on
D e c. 29, 1890 at W oun ded
Knee.
Som e b oxes are tattered,
faded or water-damaged. A few
were decontaminated because
o f animal droppings.
Concerns about the how the
trust accounts are managed are
almost as old as the trust itself.
In 1915, the Joint Commis­
sion o f Congress on Indian
Funds warned o f “ fraud, cor­
ruption and institutional incom­
petence almost beyond the pos­
sibility o f comprehension.” In
1928, the Interior Department
found Indian trust data unreli­
able and almost useless. Dozens
o f other, scathing reports fol­
lowed.
Finally, in 1994, Congress
demanded Interior fulfill an
obligation to account for money
received and disbursed. A year
later when account statements
still hadn’t been reconciled,
Elouise Cobell o f the Blackfeet
Indian tribe joined with the
Boulder, C olo.-based Native
American Rights Fund and oth­
ers in filing suit.
So-called “ fractionalization”
o f accounts is a major obstacle
in managing the trust. As own­
ership o f the 160-acre and
smaller land parcels transferred
from generation to generation,
proceeds from the trust accounts
May 11, 2006
had to be divided among more
and more descendants. Interior
officials say 90 percent o f the
transactions are for less than
$ 100 .
“ In every category it has cost
us more to find the errors than
the total amount o f the errors
we found,” said departing Inte­
rior Secretary Gale N orton .
“ When you consider that we
have millions o f transactions
under $1, y o u ’re spending
$3,500 to find out if we handled
$1 correctly.”
N o rto n ’s plan for the ac­
counting includes checking half
the 57 million transactions and
a quarter o f the $5 billion at
stake between 1985 and 2000.
“We don’t have every single
record o f every single transac­
tion that has occurred since the
1800s. We certainly do have
enough records to do a com ­
plete accounting,” she said.
Accountants are examining
nearly all financial transactions
over $100,000 in the 1985-2000
window. That represents $276
million _ or about 5 percent o f
all the money at stake. Also be­
ing checked is nearly every pay­
ment an Indian tribe made to
its members or resulted from a
lawsuit or settlements. They to­
tal $784 million - or 16 percent
o f the transactions.
A nother 4 percent o f the
money —19 million transactions,
most for less than $1 — is con­
sidered interest. That represents
$177 million. All those transac­
tions are checked, too.
For the other half o f the
transactions — three-quarters o f
the $5 billion at stake — the de­
partment uses statistical sampling
to the check the accuracy. It’s a
m eth od the Indians and
Lamberth rejected, but a federal
appeals court approved for use
as a tool. The courts must sign
o ff on any final accounting.
After 10 years o f battling in
court, no one knows exactly how
much was collected or paid out
to the Indians.
“ The previous administration
as well as ourselves tried in good
faith to tackle this problem. It
was a much larger undertaking
than anyone imagined,” Norton
said. Early in her tenure, Norton
half-joked about how she di­
vided her time. “ Indian trust,
Indian trust and Indian trust,”
she told the AP.
Geoffrey Rempel, an accoun­
tant working for Indian plain­
tiffs, said the evidence is undis­
puted that trust records were de­
stroyed over the past century,
so there is no way Interior offi­
cials can claim to have enough
o f them for a proper account­
ing.
“All they’re doing is match­
ing bad documents to bad docu­
ments, showing you what they '
want you to see,” he said.
“ People would be thrown in jail
if they audited banks like this.
This is completely unacceptable
— unless it’s for the Indians.”
Most people agree the only
acceptable solution will com e
from Congress. Senate Indian
Affairs Committee Chairman
John M cC ain, R -A riz., and
H ouse Resources Committee
Chairman Richard Pom bo, R-
Calif., co-chaired a recent hear­
ing to find the quickest and fair­
est way to end the dispute.
Experts urged them to study
the legal arguments — then arbi­
trarily pick a settlement figure.
Stuart Eizenstat, a form er
deputy Treasury secretary in the
Clinton administration, believes
Congress should create an In­
dian claims settlement commis­
sion to process claims, similar
to the reparations made after
World War II.
“ It would be a disaster to go
back to court. It would just re­
sign the Indians to another de­
cade o f fruitless litigation,” he
told the AP. “ This cries out for
an administrative, rough justice
solution.”
Eizenstat negotiated the his­
toric
agreem ent
with
Switzerland’s two largest banks
to pay H oloca u st survivors
$1.25 billion. He said Congress
should pick a figure that errs on
the side o f overpay to handle
both accounting claims and an­
ticipated claims from Indians
challenging how the government
actually managed the lands.
“ You presume that i f the
records weren’t there, it’s be­
cause o f mismanagement,” he
said. “ I f they themselves as
trustees mishandled records,
then they have to handle the
burden.”
Even Swimmer, who wants
Congress to give Interior some
“ clear direction on its responsi­
bilities,” agrees with the concept
o f a big, somewhat arbitrary
payout. “Just pick a number,” he
told the AP. “ It’s reparations, not
repayment.”
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