"Royce Lamberth has made his decision. Now let him enforce it."

04 December, 2003

When the Supreme Court under John Marshall ruled that the Cherokees could keep their land despite white Americans' desire for the gold that lay under it, then-President Andrew Jackson was said to have retorted, "John Marshall has made his decision. Now let him enforce it." The executive branch's respect for its legal and moral obligations to the rights of Native Americans has made distressingly little progress in the century and a half since.

The idea of a trust fund operated by the federal government on behalf of Native Americans sounds like it ought to be just a bad joke. In a sense it is, as Washington has made a mockery of its duty to serve its native people. A century ago, the government took over management of large portions of Native Americans' land, promising to deposit into a trust fund revenues earned by leasing out the land for resource extraction and grazing, from which the lands' former owners would receive dividends.

The part about taking Native Americans' land and the part about leasing it out for resource extraction have gone according to plan, but the part about compensating Native Americans never quite happened. Somehow the money that ought to be going to Native Americans has gotten lost, falling through the cracks of an Enronesque bookkeeping fiasco. In 1996, Elouise Cobell filed a suit against the Department of the Interior to force it to straighten out its accounting and pay what it owed to Native Americans -- $176 billion for 300,000 people, by the plaintiffs' estimate. Judge Royce Lamberth has sided unequivocally with the Native Americans, ordering Interior to get its act together and holding Secretary Gale Norton in contempt of court.

Interior seems unfazed by its legal and moral obligation. Congress used to be on the Native Americans' side, ordering an accounting of the trust fund back in 1994 (which, of course, never happened). But it turns out that justice for Native Americans is another among the many things that have gone downhill in Congress over the last nine years. Last month, Congressional Republicans slipped a "midnight rider" into the Interior Department spending bill that provided for the postponement of the trust fund accounting for a year. Because the rider was added so late to a huge and important bill, it slipped through without effective protest. The measure comes with the endorsement of the White House.

Supporters of the midnight rider complain that, at a price tag of around $10 billion, it's too expensive to straighten out Interior's books. It seems a small price to pay for justice. Beyond the direct impact of getting the trust fund in order, cooperating with the accounting would send a powerful message of reconciliation to a sector of the country that has been too often the victim of injustice, and signal a commitment to responsible management of our nation's lands. Clearly those are not things that some Congressional Republicans or the Bush administration want to do.

Fixing the trust fund could be a good issue for Democrats. Its most obvious appeal would be to Native Americans, who are becoming a more politically powerful constituency, especially in the Western and Southwestern states that the party will need to win in 2004. But it also has appeal for non-Native voters. The tale of the trust fund is a fairly straightforward case of government corruption and betrayal, an example of Washington selling out marginalized people for the profits of mining companies and other corporations. The abysmal accounting that leads Interior not even to know how much money it owes is crying out for someone to shake up the way the federal government handles, and wastes, money. While both parties have been irresponsible with the trust fund in the past, the nature of the problem fits nicely with the narrative of corruption and greed that Democrats need to tell about Republicans.

An "outsider" candidate like Howard Dean or Wesley Clark may be best positioned to take advantage of the trust fund issue. They will better be able to frame themselves as coming into a corrupt Washington establishment and cleaning house. Dean has taken the first step, promising in an appearance at the National Congress of American Indians that he would settle the trust fund case within the first two years of his administration. Let's hope that whoever gets the nomination is committed to reversing the federal government's longstanding betrayal of Native Americans' trust.

Stentor Danielson