Elouise Cobell story

But Cobell wasn't about to stop. If a lawsuit would be expensive, she would become a rainmaker. She knew that a century of injustice is a powerful appeal. She also knew that her years of arguing with the BIA, not to mention her banking experience, had brought her into contact with an array of organizations, including the Otto Bremer Foundation of St. Paul, Minn.

The regional foundation's goal is to promote social justice in four northern states--Minnesota, Wisconsin, North Dakota and Montana. So she started there, with a director who already knew of her odyssey. The foundation responded with a $75,000 grant and a $600,000 loan.

And so it began. On June 10, 1996, the Boulder-based Native American Rights Fund filed a class-action lawsuit against the Interior and Treasury departments, with Cobell as the lead plaintiff and Gingold as the lead attorney. The suit, filed on behalf of half a million Native Americans, accused the two agencies of failing to fulfill their fiduciary duties to manage the trust funds.

Then Cobell caught a huge break. In 1997, the John D. MacArthur Foundation gave her a $300,000 "genius award"--quite out of the blue. Cobell had never heard of the foundation. Surprised but elated at the windfall, she threw most of the money into the legal defense kitty. She didn't know that in Santa Fe, N.M., one J. Patrick Lannan Jr., whose Lannan Foundation has a keen interest in Native American causes, was reading about Cobell's MacArthur award.

Lannan asked the foundation if Cobell had applied for a Lannan grant. Yes, he was told, and the application had been rejected.

Intrigued, Lannan flew to Montana. He met Cobell for coffee at the Glacier National Park lodge and they talked for almost two hours. What the Native Americans needed most, Cobell told him, was money to hire accountants, people to crunch the numbers in preparation for their day in court.

Lannan left the lodge without promising any money. When he reached the Great Falls airport, he telephoned Cobell with a pledge of $1 million. Then he boarded the plane for Sante Fe. By the time he landed, he'd upped the figure to $2 million. Later, when that money ran out, the foundation chipped in another $2 million.

"We've always prided ourselves in the fact that if something needs to be done, we should so it," says Lannan, whose family made its fortune in finance. "There was something about her that really impressed us. I guess it was her ability to describe what it's been like to be an Indian in this sort of thing."

To date, legal and accounting expenses have amounted to about $8 million.

when Gingold was plotting his strategy about where to file the lawsuit, he knew that federal courts in Washington and New York are much less likely to be overturned on appeal. Partly as a matter of convenience, Gingold chose Washington. Then, he said, "We won the lottery."

The judge assigned the case was U.S. District Judge Royce Lamberth, a native Texan who favors boots and large cars. At first blush, the selection seemed dubious. Lamberth was a Reagan appointee whose decisions had often rankled the Clinton administration.

But Gingold knew that the judge had laser-like concentration when dealing with complicated subjects. That would be a plus in the trust case, with its voluminous boxes of documents and accountant-speak. Further, Lamberth had been a federal prosecutor for many years, giving him an insider's view of the federal bureaucracy.

From the beginning of the case, it was clear that the government could not produce the records that would have allowed accountants to reconcile the trust balance and get at least a rough estimate of how much the Indians had been paid.

Many of the records had already been destroyed and, to make matters worse, 162 boxes of case-related documents were shredded after the trial began, a procedure Justice Department lawyers withheld from the court for three months.

Other records were in Louisiana and in rat-infested warehouses in New Mexico. Many more were kept haphazardly on reservations. The government promised to produce various records during the trial, though it was eventually clear that would prove to be impossible. Lamberth also discovered that the Interior Department's computer system was so porous that hackers could set up trust accounts. He ordered the system shut down until the holes were plugged.

On Feb. 22, 1999, Lamberth held Babbitt, Treasury Secretary Robert Rubin and an assistant secretary for Indian affairs, Kevin Gover, in contempt for failing to produce records ordered by the court. The judge also imposed fines of more than $600,000.

In December 1999, Lamberth issued a 126-page opinion against the government. He called the case "a shocking pattern of deception. I have never seen more egregious conduct by the federal government."

Equally blunt, Cobell says: "I'd like to see a few people go to jailfor this."

The government appealed to the U.S. Court of Appeals, but was soundly rebuffed, and opted not to appeal to the U.S. Supreme Court.

"The folks at Interior are going to have to cut to the chase and admit they don't have the records and settle up," says Bruce E. Johansen, who teaches Native American studies at the University of Nebraska at Omaha. "They aren't fessing up to what they don't have and can't do."

But no settlement is on the horizon, which leaves the case far from over. A second phase of the trial, which is not yet on the court docket, will be held to determine how much the government owes. Gingold says he believes the final award will be "far north of $10 billion," and a study commissioned by the Interior Department warns that liability could be as high as $40 billion.

The government's legal team has had more than 100 lawyers assigned to the case--more than the government employed in the complex Microsoft antitrust litigation. "I think Justice doesn't want to give away the store," says Clinger, the former congressman. "But the longer it goes on, the worse it's going to get."

In a ritual two years ago, Cobell was declared a warrior of the Blackfoot Nation and presented with an eagle feather--an honor reserved these days almost exclusively for U.S. armed services veterans.

Cobell has traveled a lonely road, often dealing with a government that ignored or insulted her, says Darrell Kipp, a Harvard-educated Blackfoot who returned to the reservation intent on preserving the Piegans language. "It took a lot of guts for her to do what she did," Kipp says. "Remember, we're a minority, a fact that sometimes escapes greater America. Minorities do run a risk when we rise up like this."

Cobell now speaks to children around the country about the ability of Native Americans to succeed, even against long odds. Last month, more than three decades after she left school to care for her mother, Cobell returned to Montana State University to accept an honorary doctorate.

When she drives through Browning these days, she sees progress where others see poverty. Some homes on the north side of town are new and well-tended. A new gas station is on the main drag because the owner was able to borrow money from the Blackfoot bank.

She heads out of town, talking as she drives. The time has come for the government to settle, she says. For all the years of work, not a single Indian has been paid a dime for the government's malfeasance and neglect. "The government is going to fight this no matter what, even if it's morally or ethically wrong," she says. "That's a real crime in itself. They're in such denial, it's amazing. Congress needs to say no more money to fight this litigation."

The car swings south, past where the Blackfeet are buried at Ghost Ridge. Then the tidy Cobell ranch house comes into view, with a new white fence lining the driveway. She finds a solace in this place, where a creek slices through the land near the house.

She also takes comfort in Alvin, who shuns the spotlight that sometimes falls on his wife. It's nothing he wants for himself, but he takes pride in his wife for what she has accomplished. Sometimes he stops her in mid-sentence as she rattles on about the case, and he tells her it is time to talk about something else.

There are days when Cobell admits to being somewhat wistful about that $300,000 MacArthur award years ago, when she thinks of something she and Alvin might have done with the money--such as a nice long vacation to escape the frozen Montana winter. But then she shrugs and moves on.

In the light of late afternoon, Cobell spotted two of her cows standing by the roadside. They had found their way through a spot where the barbed wire was sagging. Cobell, dressed in a light blue business suit and street shoes, made her way through the muck of the spring thaw and herded the cows back onto her property. Her feet covered with mud, she hunted around until she found a sturdy stick to prop up the wire.

A rancher's life. Next morning, she would fly out of Great Falls for more work in her other life--of Blackfoot warrior.

SOURCE: J. Michael Kennedy is a staff writer for the LA Times. Reprinted under the "Fair Use" copyright laws.