Wednesday, January 29, 2003

Hi there!

I’d like to offer a welcome to those visiting the site for the first time via TNR. Like many blogs, mine is a combination of writings about: stuff I can claim some expertise in (political philosphy, political science, multiculturalism, the rights of ethnic minorities, freedom of association), stuff I care passionately about (academic freedom and academic governance), stuff that I find fun (Lord of the Rings, science fiction), and stuff about which I don't necessarily know any more than any other news addict, though sometimes my poli sci/ political theory background means I have an idiosyncratic take on it (i.e. everything else).

Here's the basic story o' me.

My first TNR column is on something I can claim expertise in: the law, politics, and justice of indigenous rights, in this case the rights of American Indians. (My other writings on indigenous rights include two chapters in my book The Multiculturalism of Fear, one of which also appears in Kymlicka and Norman, eds., Citizenship in Diverse Societies; and a chapter on "Indians in Madison's Constitutional Order" in Samples, ed.,
James Madison and the Future of Limited Government

To expand on a few points from the column:

Trusteeship, in the case of Individual Indian Money accountholders, is supposed to refer to the straightforward fiduciary-responsibility concept. This is also true when the landowner is a tribe. But "trusteeship" also refers to something more general and amorphous as the underpinning of the federal government's relationship to tribes. Both are paternalistic in their origin. But the tribes have an interest in not doing away with the idea of a trustee relationship, since it underlies the federal government's commitment (such as it is) to act in the interest of the tribes. Back before the Eleventh Amendment turn in federalism jurisprudence, it also solidified the federal commitment to protect tribes against the states when necessary. This understanding of trusteeship-- which predates the Revolution, and can also be found in the other Anglo-settler states of Canada, Australia, and New Zealand-- is notoriously difficult to pin a precise legal meaning to. The duties it imposes aren't nearly as well-specified as the duties of an ordinary financial trustee. But a reluctance to jeopardize the idea of trusteeship has, I think, some effect on how the tribes view the Cobell litigation. If the plaintiffs were to propose terminating the trust relationship over the IIM accounts altogether (rather than placing them into a receivership with a different trustee) the tribes might be more worried still. I nonetheless think that such a termination is the right thing to do. The federal government has no business posing as the trustee of Indians' money, when it is itself the greatest threat to that money.

Another concern from the tribes' perspective-- and this is inference on my part, not based on anything that has been said in public-- is budgetary. In principle, the IIM mess should be entirely separate from other Indian affairs, just like the IIM accounts should be separate from other governmental outlays and revenues. But, politically, if the Cobell suit results in billions or tens of billions of dollars in (what looks like) new spending to compensate for past misappropriation, the separation probably won't be so clean. The squeeze will probably be put onto appropriations for other BIA functions, for tribal colleges, and for the rest of the federal government's Indian activities.

So, altogether, one wouldn't expect tribes to expend too much of their finite lobbying capital on forcing a fair, speedy, generous settlement. Tribal organizations have been supportive, and have filed amicus briefs on Cobell's side, but they just don't have much incentive to make it a top priority of their relationship with Congress or the BIA. And, as I've said, there are aspects of trusteeship and the relationship with the BIA that they're understandably more interested in protecting than the Cobell plaintiffs are.

Gale Norton has no such excuse for betraying her alleged commitment to the rights of property-owners...

Shortly after Lamberth held Assistant Secretary for Indian Affairs Neal A. McCaleb in contempt, the latter announced his retirement, complaining that "the litigation has taken first priority in too many activities, thus distracting attention from the other important goals that could provide more long-term benefits for Indian Country." As I've blogged previously, I don't have a lot of sympathy for this complaint. Coming into compliance with Interior's fiduciary obligations, and ensuring that individual Indian property-owners get the full value of their resources, would do more for Indian self-reliance than would coming up with another BIA program. Being reminded that the department wasn't fulfilling its obligations apparently took all the fun out of it.

If the lawsuit is so unpleasant and time-consuming, then Interior ought to quit dragging its feet.

UPDATE: Resigning hasn't freed McCaleb from the lawsuit entirely; he can still get in trouble for having destroyed documents.

I should note that a few Republicans in Congress-- including John McCain and Ben Nighthorse Campbell-- have been on the right side here, and have treated the issue seriously.


Some links:

Complete information on Cobell v. Norton can be found at The Department of Justice maintains its own site on the case here.

The Harvard Project on American Indian Economic Development is an indispensable resource for information on tribal governments, and the problems tribes confront from two directions: external limits on self-government, and internal institutional failures, violations of the rule of law and separation of powers, and obstructions to economic development.

The National Council of American Indians is the most important tribal lobbying group. The Native American Rights Fund is involved in the Cobell litigation.

The BIA website "as well as the BIA mail servers have been made temporarily unavailable due to the Cobell Litigation. Please continue to check from time to time. We have no estimate on when authorization will be given to reactivate these sites." The story: at one point Interior slapped together a new computer system to handle the IIM accounts. Lamberth found that the system was woefully insecure and prone to hacking. Interior took it down-- and, in a fit of spite, stopped issuing all checks to IIM account-holders for months, saying that they couldn't do without the new computer system what they had always done without the new computer system. This was more than a year ago. I'm pretty sure that Lamberth's order didn't require BIA to take down its public webpage with contact information and the like.

UPDATE: See this follow-up post above.

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