A 124 Year Odyssey Involving Cases and Records Finally Ends


I first became aware of this matter about 10 years ago when I read a story about a woman named Josephine Wild Gun (yes, that is her name) who then lived in a small run-down house on the Blackfeet reservation in Montana. Like most of her Native American neighbors, she owned several parcels of reservation land that were being held in trust by the U.S. Government (Indian Trust Fund).  The Indian Trust Fund was created in 1887, as part of the Dawes Act, to oversee payments to Native Americans.  This fund managed nearly 10,000 acres on Josephine’s behalf, leasing the property to private interests for grazing and oil drilling fees.  In return, she was supposed to receive royalties from the trust fund.

Despite the lucrative leases, Josephine had allegedly never received more than $1,500 a year from the trust fund.  According to the story, the payments trickled off and one check totaled only 87 cents.  When her husband died, she even had to borrow money to pay for the funeral.  Josephine’s story is compelling … and it stuck with me.   This story, along with some research I was doing on the Cobell v. Salazar lawsuit (involving the same Indian Trust Fund) and the government’s inability to produce records documenting the income accounting of the payments to Josephine and about 300,000 other Native Americans, caused me to wonder how and why something like this could happen.

The 15-year old class action (Cobell v. Salazar) lawsuit was recently settled for $3.4 billion.  I am writing about this today because hundreds of thousands of notices went out this week to American Indians who are affected by the $3.4 billion settlement bringing an end to a 124 year odyssey involving The Department of the Interior, The Bureau of Indian Affairs and many Native Americans and their descendants.  In this suit, Elouise Cobell (a Native American and member of the Blackfeet tribe) sued the federal government over the mismanagement of the trust fund.  In her suit, Cobell claimed that the U.S. Government failed to provide a historical accounting of the money the government held in trust for Native American landowners in exchange for the leasing of tribal lands.  Ultimately, the case hinged on the government’s ability to produce these accounting records showing how the money was managed on behalf of the original landowners.  I find myself wondering if the whole entire thing could have been avoided with better case management and recordkeeping practices.  This 15-year court battle is the culmination of events going all the way back to the 19th Century!  The landowners had a right to expect proper case management, proper records management and proper distribution of funds.  Apparently, none of those things happened.

As a history buff, I find the whole back story fascinating … so here we go …

It all starts with Henry Dawes (1816 – 1903) who was a Yale graduate from Massachusetts.  He was an educator, a newspaper editor, a lawyer and perhaps, somewhat infamously, a Congressman who was both a member of the U.S. House of Representatives (1857 to 1875) and the U.S. Senate (1875 to 1893).

During his time in public service, he had his ups and his downs.  In 1868, he received a large number of shares of stock from a railroad construction company as part of the Union Pacific railway’s influence-buying efforts.  On the positive side, Dawes was both a supporter and involved with the creation of Yellowstone National Park.  He also had a role in promoting anti-slavery and reconstruction measures during and after the Civil War.  In the Senate, he was chairman of The Committee on Indian affairs, where he concentrated on the enactment of laws that he believed were for the benefit of American Indians.

Dawes’s most noteworthy achievement was the passage of The General Allotment Act of 1887 (known as The Dawes Act referenced earlier).  The Dawes Act authorized the government to survey and inventory Indian tribal land and to divide the area into allotments for individual Indians.  Although later amended twice, it was this piece of legislation that set the stage for 124 years of alleged mismanagement and eventually the Cobell v. Salazar lawsuit.

I see this as a cautionary tale … reminding us of the need for enterprise content and case management as well as records management (but more on that later).  I wasn’t around but I would imagine PC’s ran pretty slowly back in 1887 (chuckle) … but I digress, as manual paper based practices did exist.

Back to the story … The Dawes Commission, was established under the Office of Indian Affairs to persuade American Indians to agree to the allotment plan.   Dawes himself, later oversaw the commission for a period of time after his time as a Senator.  It was this same commission that registered and documented the members of the Five Civilized Tribes.  Eventually, The Curtis Act of 1898 abolished tribal jurisdiction over the tribes’ land and the landowners became dependent on the government.  Native Americans lost about 90 million acres of treaty land, or about two-thirds of the 1887 land base over the lifespan of the Dawes Act.  Roughly 90,000 Indians were made landless and the Act forced Native people onto small tracts of land … in many cases, it separated families.  The allotment policy depleted the land base and also ended hunting as a means of subsistence.  In 1928, a Calvin Coolidge Administration study had determined that The Dawes Act had been used to illegally deprive Native Americans of their land rights.  Today, The United States Department of the Interior is responsible for the remnants of The Dawes Act and the Office of Indian Affairs is now known as the Bureau of Indian Affairs.

There is a pretty big taxpayer bill about to finally be paid out ($3.4 billion) to the surviving Native American descendants and for other purposes.  Throughout the lifecycle of this case, there were multiple contempt charges, fines and embarrassing mandates resulting in the government’s reputation taking a significant hit.  Interior Secretary Bruce Babbitt and Treasury Secretary Robert Rubin were found in contempt of court for failing to produce documents and slapped with a $625,000 fine.  And while time went by and Administrations changed, not much else did when Interior Secretary Gale Norton and Assistant Interior Secretary of Indian Affairs Neal McCaleb were also held in contempt.  At one point, the judge also ordered the Interior Department to shut down most of its Internet operations after an investigator discovered that the department’s computer system allowed unauthorized access to Indian trust accounts.  During this time, many federal employees could not receive or respond to emails, and thousands of visitors to national parks were unable to make online reservations for campsites.  The shutdown also prevented the trust fund from making payments to more than 43,000 Indians, many of whom depended on the quarterly checks to make ends meet. In Montana and Wyoming, some beneficiaries were forced to apply for tribal loans to help them through the holidays.

There was plenty of mudslinging as well:

“Federal officials have spent more than 100 years mismanaging, diverting, and losing money that belongs to Indians,” says John Echohawk of the Native American Rights Fund, which directed the lawsuit.  “They have no idea how much has been collected from the companies that use our land and are unable to provide even a basic, regular statement to most Indian account holders.”

Again I ask … where was the accountability for these landowner cases and the associated records?  Could all of this have been prevented with better policies and processes?

The damage was already done but we know that the government invested in an array of systems such as Integrated Records Management System (IRMS), Trust Funds Accounting System (TFAS), Land Records Information System (LRIS) and Trust Asset and Accounting Management System (TAAMS).  These systems were to collect, manage and distribute trust funds in support of the 1994 Indian Trust Fund Management Reform Act.  They were used for historical accounting purposes and contained land ownership records and financial records for the associated cases.  A major premise of the government’s accounting effort was that the transition from paper to electronic records took the accuracy, completeness and reliability of the trust data to a level that far surpassed the “paper ledger era” … seems like it was too little too late.

I guess we’ll never know for sure, but I firmly believe that much, if not most, of this could have been avoided.  It was alleged during the case that as much 90 percent of the Indian Trust Fund’s records were missing, and the few that were available were in comically bad condition. An Interior Department report provided to the court refers to storage facilities plagued by problems ranging from “poisonous spiders in the vicinity of stored records” to “mixed records strewn throughout the room with heavy rodent activity.”

It’s a tragic story and I am glad it’s finally ending.  It’s disheartening that Josephine Wild Gun and many others had to suffer the way they did for the past 124 years.  It’s amazing the number of people that this impacted starting with Henry Dawes and ending with ~300,000 Native Americans (and everyone in between).  It’s encouraging to know that technologies like Enterprise Content Management, Advanced Case Management and Records Management can all be used with great impact in the future to improve processes and outcomes like this.

As always, leave me your thoughts and opinions here.

12 thoughts on “A 124 Year Odyssey Involving Cases and Records Finally Ends

  1. InterestIng, not just becuase my Dad belonged to an Chippewa Band of the Ojibwe, who were part of the Blackfoot Confederation.

    Mostly becuase of all the work I’ve done in Government, mostly State and Local. Oh the nightmares I’ve seen ill concieved, neglected, and just plain archaic paractices.

    The Corrections Records for New York City if they haven’t been recovered will most likely bue a total loss after Irene. The city had kept them in boxes snd milk crates stacked in an old church missing part of it rook out in the sound. Nothing preserved, covered or ordered, most in decay.

    You touched on but didn’t address the governments most duanting issue though, one that does’t face most commercial businesses; government records are considered by a large to be perpetual. If the BIA was bound by the same records requirements they most likey wouldn’t have been responsible for records older than 7 years.

    If I recall I saw a personnel record in the NYS Retirement Systems paper records for Benedict Arnold. In 2004 I believe they had something like 2 trillion paper records in their Civil Service system.

    That’s more records than the Library of Congress…. The largest in the world.

    • Tom – I am not piling on but the court records, testimony and accounts are all pretty harsh on the BIA. That information pretty much stands on it’s own. Even the DOI’s own submitted report details a number of problems associated with record keeping practices from “poisonous spiders in the vicinity of stored records” to “mixed records strewn throughout the room with heavy rodent activity.”

  2. Craig,
    Very interesting. At issue is the magnitude and duration of the tasks at hand.

    Several things come to mind. First is the potential conversion of hard copy archival documents to digital form. A very daunting task. If you have been to any of the National Archive facilities, you will know what I mean. Second, with approximately 98% of all new data being generated in a digital format, the ECM and Data Governance issues as they relate to long term digital data retention and preservation are critical.

    Flash forward 50 years from now… This set of settlements may not be as “easy” to administer if the digital records are not in order. I suspect that most of the supporting documentation in the class action (Cobell v. Salazar) lawsuit was in hard copy form. In 50 years the majority of the information in a suit like this will be in digital form.

    As you know, long term digital data preservation is one of the toughest issues that face the IS community. Issues abound. Solutions and their implementations on a global enterprise scale are few and far between. For the past few decades the settlements associated with the mismanagement of data have been in the millions to tens of millions of dollars. Perhaps a settlement of $3.4 Billion is enough to spur the interests of our industry to get behind solving the issues of long term digital data preservation and it’s intricacies.

  3. Hello Craig,
    My name is Melinda Janko and I am the producer/director of Cobell vs. USA, a feature length documentary about the lawsuit. You did a great job in your background research for this article and I cringed every time I read about the need for case management and records management. If you only knew the extent of the gross malfeasance in this case because their were so few records. Cobell vs. will bring to light this incredible story of injustice and would be a good case study for the need for such technologies. I had the distinct honor of interviewing Federal Judge Royce Lamberth who presided over the case for 10 years. He called it the “gold standard for mismanagement in the federal government!” Please visit http://www.cobellvmovie.com to learn more about the film. We are 85% finished with production and are seeking corporate sponsors at this time.

    Thanks for such an informative article.

    Melinda Janko
    Producer/
    Director
    Fire in the Belly Productions

  4. Craig, thanks for sharing this story, very interesting and throught-provoking on numerous levels. As Peter Gailey brought up, it’s interesting to consider the future and how today’s governments and businesses will be perceived for their electronic record keeping that is being done (hopefully) today.

  5. Unfortunately there was not going to be great recordkeeping as racial bigotry does not drive one to do a great job. The government folks had no motivation at the start of the Dawes Act to create great records. Indian Affairs agents were often quite corrupt and had no real fear of interference from other agencies. Although there were a number of tries by well meaning people, pervasive bigotry overwhelmed all plans. After a while sloppy record practice just became the norm and were carried forward. Folks do what they were showed/told what to do even as racial issues lessened for many. Sometimes it takes a whack by a big stick to wake people up that today is 2011 not 1887.

  6. Thank you for your research. In the late ’90’s I was involved in implementing records management software for the Office of Trust Litigation (OTL) in Albuquerque at several records centers. The software was needed to provide for the re-inventory of boxes of case files in the local records centers operated by the Office of Trust Litigation. The need for the software and the re-inventory of box contents is sad to relate. At one time, the boxes had been labeled with the name of the first file folder and the last file folder in each box. It was crude, but if you were looking for a specific native American family member and the name fell in the box range, you could look inside to see if the file you needed was there. Just prior to my involvement, the OTL had hired a consulting firm to manage the relocation of the boxes from one records center to a new location. The consultant relabeled all the boxes with the same description: the record series title from the Federal Schedule. All the boxes were labeled exactly the same and all traceability from predecessor records to the boxes was lost. The only corrective action possible was to manually index each box (in this case, using the software I represented) and relate the box to its storage location. Several of the workers on this project were native Americans, some may have been owed payments. I can remember the very sad, somber expressions on their faces as they came to understand what had been done. As a white American, I was ashamed and appalled.

  7. I read your blog and all of the subsequent comments with great interest. You really struck an emotional chord with readers. This case is appauling for its lack of governance and neglect.

    In response to a few of the comments made as well as your conclusions, I can’t help but think that improved records keeping practices – even those available in the19th century – and technology could have enabled this process to run much more efficiently. But, as at least one comment points out, there was no will to do the right thing.

    Which brings me to 2011. Technologies for archiving, case management and records management are abundantly available. Case studies demonstrate that implementing such solutions improve employee productivity and customer experience, reduce risk and lower costs. The ROI is relatively easy to quantify.

    Technology continues to be the easy part of the solution. Politics, lack of communication and cooperation amongst departments and the short-sightedness of government and business leaders is the main hurdle that continues to thwart progress towards adoption of better records management policies and enabling technologies to support the process in both the public and private sectors.

    The challenge is getting organizations to do the right thing. Perhaps more multi-billion dollar adverse judgements will get more leader’s attention.

    Gary

  8. Good afternoon Craig,

    You say “It’s encouraging to know that technologies like Enterprise Content Management, Advanced Case Management and Records Management can all be used with great impact in the future to improve processes and outcomes like this.”

    This terrible story shows the failure not of records management nor of the absence of technology, but rather the failure of executive management — at all levels — to take seriously its basic responsibility to provide accountability to both the native Americans and the taxpayers.

    This type of failure is not unusual, it is endemic.

    Technology, as Peter Gailey points out (” … long term digital data preservation is one of the toughest issues that face the IS community. Issues abound. Solutions and their implementations on a global enterprise scale are few and far between”) may provide the appearance of a solution, but also creates new problems. Let’s start with solving the basics before we throw money and technology into the mess.

    Best regards,

    Fred

    • Fred – I agree with your overall intent although I am sure Senator Dawes would argue that the “executive management” and the Dawes Commission had the right intent. All involved parties clearly had an obligation to provide accountability to both the native Americans and the taxpayers. My point about Enterprise Content Management, Advanced Case Management and Records Management was to show that there are ways to enforce these policies and ensure propor handling of the case records … which did not happen here. Handling these records differently could have had a vast impact on the lawsuit and the overall situation.

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