Standing Rock: many nations, one people

"It is not necessary for

eagles to be crows"

Sitting Bull, Hunkpapa

Its almost 2 AM and I made a Facebook post about the Kanaka Maoli who came to help protect the waters (Native Hawaiian's). This was very important to me as I recall the relationships that our people have made with them over the years, we've supported them for their independence from the US, which was reaffirmed by former President Clinton signing an apology to the Kanaka Maoli's for the unlawful overthrow of the lawful Hawaiian Kingdom in the by the United States military and its agents. The apology was toothless, but it acknowledged the truth they were illegally overthrown by force and if you have colonized a people and their lands, the only right thing is to relinquish your control over it. I know it bothers people that we all do not chose to be Americans, but I believe the quote above, attributed to Sitting Bull, is very relevant within the context of the colonization to eradicate our culture and our connections to the land. And you are in the lands of the Hunkpapa.

When I went to Hawai'i, I was not aware of the Akaka Bill hearings starting up in Honolulu until my friends, whom I was visiting on Kaua'i asked me if I was there for the hearings. I said I wasn't aware of a hearing on the Bill, which was almost a carbon copy of the Indian Reorganization Act. If passed, the bill would have submitted them to the authority and jurisdiction of the United States. Creating a roadblock to their independence. They called for a friends on their island to come and share their stories with me. We met at a bed and breakfast by the beach, built and owned by Michael and Sondra Grace, who were evicted from their home, previously, which was torn down (news report at 25:00).

The people who came told me of their history and their stories of resistance, it is no different than ours and they seek to do it in a Pono (good) way, as do the Hunkpapa's at Standing Rock, who put the call out for support in protecting the waters. There was one man who came, Henry Smith, he told me his brother was on a waiting list of the Department of Hawaiian Homelands (DHHL) for a very long time to move onto his lot where DHHL constructed his home, which was of sub-quality. He fought them for several years to repair his home, but lost and was going to be evicted. When the police came to evict him, he poured gasoline throughout his house and sat down in a chair in his home before he lit a match. It was powerful and tragic event at the same time. What has never left me is that while he was speaking, he collapsed. An ambulance took him to the hospital where he died from massive heart failure. As the medics were placing Henry on the stretcher, I went and placed my hands on his arm and told him I would make sure others would know his story. I shared it with the Senate Select Committee on Indian Affairs after a Kanaka said he would yield me his time to speak. After speaking against the Bill and sharing Henry's story, the committee turned of my microphone and walked out on me as I was still speaking.

I've shared what I remember with many people over the years, but it is important that I share it today with everyone because the next thing I want to share is what has been on my mind for a few days now, and somehow, with the Kanaka Maoli being there now - I felt everyone who needs to be there is there now, and I need to share the following with you.

Most people know that I have worked with the Leonard Peltier Defense Committee over the years. And some may remember when I did the spiritual fast at the White House in 2009. It was there sitting across from the White House holding my pipe bag that I thought about all the years we have been coming to DC to raise awareness or push for legislation, and what had we accomplished in securing our independence as a sovereign nation, upholding the terms of those treaties, or reconciling the manipulation of their laws that resulted in further loss of lands and resources. I prayed and thought on those things during that time. And before the end of the fast that it seemed to come to me that a Grand Council of the Indigenous Nations in the Western Hemisphere needs to take place. It needs to happen with traditional Chiefs, Headmen, Clan Mothers, and spiritual leaders of the people to bring us of one mind.

I saw how our Native pride resurged in the Seventies through actions by young Natives led by traditionals, and I saw how the movement became fractured by the efforts of the FBI, federal government and corporations, with many of our people dead or in jail for standing up. Their sacrifices did awakened the spirit of our ancestors within us, and we began to stand against a system that has yet to deal honorably with us.

It is always a fight when it comes to returning stolen lands or money, as in the Cobell Settlement. Now it is seems they are intent on compromising our sovereignty with every lawsuit, settlement or Acts of Congress, and even the states are pushing harder, in some cases.  Those battles has us all over the country, including the UN, throughs the International Indian Treaty Council, on all types of issues, from mascots to traditional spirituality in the prisons, to water rights. Some people tried to weaken us by telling us what is more important, but what I have always know is that they are all important. They are all inter-connected, but today, we all know what is at the forefront, that is why you are there. And it looks like you will be there for a long time if DAPL is permitted to proceed.

You have the time and the people now, I simply ask everyone to consider if it is time to establish a coordinated plan to secure our sovereignty as a nation and not a semi-dependent nation? Shouldn't we be the ones to regulate the waters and other resources from our nation without asking for permission?

How we do this is through the support of the traditional leadership and a shared vision renewed through your defense of the waters. It wouldn't happen overnight since it took generations to bring us where we are now in a concerted effort, take time to conceive of what our world would look like if we were truly sovereign, along with understanding what it really implies on an international level. I worked with a group called the League of Indigenous Sovereign Nations with the idea of being many nations, but one people in how we rose to support one another across the hemisphere.
That is the thought I want to share with everyone. It is yours, do with it as you will. And should some people want to come together and discuss it to take it back to their communities, do so with one mind. The sacred fires have been lit and prayers have been made for what you are all doing. Yakoke! 



"Lets put our minds together and see what life we can make for our children" Sitting Bull

The Cobell Four: standing firm for justice

There is no doubt about how important the Cobell case is to so many people, but take a moment to weigh how really important this case is, and if the settlement is really the kind of justice your ancestors really deserve? I know some people have been upset with some of the class members appealing the settlement and putting the disbursement checks on hold indefinitely. I've spoken with a few people who have said that in some cases, they weren't allowed to file their own lawsuit, and if they did, it was consolidated in the Cobell case. The first round of hearings is scheduled for February 16, in Washington, DC.


I wrote about my experience and thoughts from the hearing last summer in Washington, DC. It was really long, but you cannot detail it simply, so I'll try it here, but you can read more at this link: http://eaglemanz.blogspot.com/2011/06/cobell-settlement-knife-in-our-backs.html


This morning, Tim Giago wrote a piece about the "Cobell Four" and I'm indebted to him for inspiring me to write in support of Kimberly Cravens, Carol Good Bear, Mary Lee Johns, and Charles Colombe. I would also encourage other writers to consider writing about the settlement. http://www.huffingtonpost.com/tim-giago/slamming-the-door-on-the-_b_1254499.html


The necessity for creating this awareness isn't something trivial. Recently, the Cobell attorneys publicly released the names, addresses, and phone numbers of the Cobell Four, and told people to ask them why they were not getting their settlement checks. This action resulted in threatening and harassing phone calls. “To put my name out there for the public, I think that's scary that these attorneys would use this tactic and intimidate me into dropping my appeal,” (Carol Good Bear) said. “I don't have protection. If somebody is upset about all this and comes at me with a gun, what am I supposed to do?” Since then, their names have been removed from the letter. http://nativetimes.com/news/federal/6766-objectors-of-indian-trust-deal-decry-open-letter


Now lets' take a look at this objectively. These attorneys, Dennis Gingold, et al., are attorneys, and it is difficult to understand that they could not explain the basis of the appeal to the members of the Cobell class members. Instead, they said "Ask them!" Pretty childish way to address a question. I feel it has more to do with the fact that any changes to the settlement would scuttlebutt their multi-million dollar payday! This tactic was a way to "punish" the Cobell Four for holding up the settlement. We usually call it divide and conquer, where you manipulate a group of people to turn on each other. With actions by these attorneys, they are worse than the snake-oil salesman I compared them to.


According to the Native Times article:

"Each objector is appealing the settlement for his or her own reasons. Craven and Johns both say the settlement does not include an accounting for how much money was lost, which is what Cobell originally set out to accomplish, and that many class members did not understand that they could have opted out of the deal.

Johns and Good Bear both object to the class of landowners that the settlement creates, saying each is different and their claims should be assessed differently. Johns added that the tribes should have been involved in the process from the beginning, not just individuals."

Internet gossip states that they are only after more money. A few months ago, I spoke with a woman whose family has been fighting to be paid from a mining company that has been taken resources from their lands, which would amount to millions. When she contacted Gingold about opting out and why, she said Gingold told her that he would fight her on it. When the Cobell Four were filing their appeals, Gingold attempted to force them to put up a multi-million dollar surety bond. The court ruled against this request.

Here are just a few of the points about why the settlement is like a term of surrender, and more info on the settlement can be found at http://www.indiantrust.com:

• The federal government violated a trust, and in any case where this happens, the guardian is removed from that position. IN the early 1800's, we were decreed to be wards of the federal government, and that is why our lands are restricted or held in trust, and have Individual Indian Money Accounts. That is also why they manage our natural resources. If they were removed, they would lose control of this power. I objected and ask for dissolution of the Bureau of Indian Affairs, but it was ignored.

• The 3.4 billion doesn't all come to us, only 1.4 billion. The Interior Department will be given 2 billion to purchase selected fractionated lands, which they state will be given to the tribes. My feeling is that these selected fractionated lands will be high in natural resources, and the tribe will be leasing to some corporation with the Interior Department in the middle.

• Any unused funds from the Interiors 2 billion will revert back to the US Treasury.

• If an heir to fractionated lands cannot be found, his share will be purchased anyway. And if that person does not claim his money within 5 years, it is taken out.

• Another aspect that I raised in conjunction with the forced sale of these fractionated lands is that we have an inherent right of sovereignty attached to these lands. The real estate will be purchased at fair market value, but what is the fair market value of sovereignty? Also, didn't we once care for these lands in common, the fractionation didn't become an issue until the government made it one. When these lands are gone, it is gone.

• The 60 million dollar education fund? Lets assume four years of college is $20,000 as an average. Do the math and tell me how many students will go to college on just 60 million. You'll find that it doesn't even make a drop in the bucket.

• And opting out was a very difficult decision for many to make in light of the likelihood another attorney would take a case that resulted in a settlement that took over 14 years. And some were not allowed to opt out or didn't understand they could. It would have been better if the decision was made first if the settlement was approved or not, before allowing people the choice to opt out.

• And of the 1.4 billion awarded, subtract the expenses the attorneys, which will make it 1.3 billion, and then all the associated costs with the administration of cutting checks. The likelihood of the settlement running out of money before everyone is compensated is real.

• One of the bad deals is that everyone will waive any claims to sue the government if they discover that they were ripped off for millions and can then prove it. They will have accepted their small checks and it is over.

These are just some of the downfalls to the Cobell Settlement. Some people will get more than the $1,500 people have heard about. I could use even that amount, I won't lie, but I don't believe that is what our ancestors suffered for all across this land in trying to hold on to what we have left, nor is it what our children deserve. I hear a lot of arguments that we can't wait because people are dying who will never see a check. You know what? People have been dying since this injustice started over a hundred years ago. It isn't about us, it is about our children and this lawsuit was about getting a full accounting so we could have justice for once.

Only for lack of having the finances to file my own appeal, the Cobell attorneys could not put my name out there as a target. My communications to the court went unanswered as to whether I could file an appeal without paying fees. I couldn't afford justice, but fortunately these four warriors have stood up for us and maybe this despicable settlement will be scrapped, and the fight for true justice may continue.

And for all those who are badmouthing and threatening these people, three whom are women, I know your mother did not raise you to threaten or speak badly of women like these. You only bring shame to your family and your nation. This is not how Native people are suppose to act, like rats being thrown pieces of rotten meat to turn on another. I expect better than that, so remember who you are and that this battle is for the birthright of our future generations!

Cobell Settlement: A knife in our backs

“Real justice for these Indians may still lie in the distant future; it may never come at all. This reality makes a statement about our society and our form of government that we should be unwilling to let stand.” Judge Royce Lamberth

Those prophetic words by Lamberth became a reality on June 20 when the federal court in Washington, DC approved the Cobell settlement. There is much ado how this was a major victory as in a David and Goliath scenario. However, one only needs to read in between the fine print to know this was a serious setback. I had already suspected it was a foregone conclusion when the settlement was first announced and Obama signed off on it. This was an easy out for the government; they secured the victory, not us.

The basic provisions of the settlement are:

$1.4 billion to pay Individual Indian Money (IIM) account owners

$1.9 billion Trust Land Consolidation Fund to "purchase" fractionated Individual Indian trust lands.

Not more than $60 million for an Indian Education Scholarship Fund to assist Native people to attend college or vocational school.

More details are available at www.indiantrust.com

IIM Accounts

Initially, the estimates arrived by Cobell was that approx. 176 billion was missing from the IIM accounts. So why did she and the attorneys spend more than 2 million dollars encouraging people to accept this settlement? A settlement that only constitutes less than 2% of her original estimates? From what I have gathered by being in the courtroom listening to the attorneys, they admitted their chances of success at trial had grown smaller.

When the case first started, Federal District Judge, Royce Lamberth presided over the case. Although he was a Regan appointee and a republican, his compassion and sense of justice made him the perfect judge. He was very candid and scathing in his remarks and orders towards the Department of the Interior, which raised the hopes of the Native Plaintiffs and their attorneys. After nine years the attorneys for the Interior Department had Lamberth removed claiming he was biased against them. I told the court that this reminded me of the judge shopping that US Attorneys had done in order to gain the wrongful conviction of Leonard Peltier. The following is a glimpse of Lamberths' frustrations with the defendants.

Memorandum Opinion, 12/21/99

The United States’ mismanagement of the IIM trust is far more inexcusable than garden-variety trust mismanagement of a typical donative trust. For the beneficiaries of this trust did not voluntarily choose to have their lands taken from them; they did not willingly relinquish pervasive control of their money to the United States. The United States imposed this trust on the Indian people. As the government concedes, the purpose of the IIM trust was to deprive plaintiffs’ ancestors of their native lands and rid the nation of their tribal identity.

Defendants’ cry of “trust us” is offensive to the court and insulting to plaintiffs, who have heard that same message for over one hundred years.

The case was assigned to another federal judge who loosened many of the court orders Lamberth had imposed on the Interior department, but that judge eventually retired before it was assigned to Judge Thomas Hogan, another Reagan appointee, who approved the settlement.

The Cobell case became a series of complex trials and appeals mostly through the legal manipulations by the defense attorneys. Records were lost or destroyed, and the Interior Department was held in contempt several times as a result of refusing to comply with court orders.

The Interior Department said they would not settle until they can be assured they would have "peace". They didn't want any more lawsuits over the "mismanagement" of the IIM accounts.  Without Lamberth there to hold the fire to the feet of the Interior Department, it seems as if the Cobell attorneys were willing to throw in the towel and take whatever they could get. I can understand that, but I definitely do not agree with it.

We are in a time where we as Native people need to feel a real sense of victory, a good taste of justice, but it didn't happen with the settlement approval yesterday.  Don't let the press releases by the attorneys fool you; it was not a win by any measure. It was more like a retreat and the wounded were left lying in the battlefield.

An important stipulation is that by accepting the settlement, a person gives up any right to sue the federal government for claims that could have been made prior to September 30th, 2009, such as "Funds Administration Claims", "Historical Accounting Claims", and "Land Administration Claims". Lawsuits can be brought against the federal government for claims after the above date.

One of the emotional strings played upon by Cobell and her attorneys is that no one should have to die before getting their money. Native people have been cheated and dying prior to and before the implementation of the Individual Indian Money accounts in the late 1800's. A few months ago while researching the Cobell case, I stumbled across a congressional hearing held in the early 1900's where testimony was given about a case where a young Indian girl was in the custody of non-Natives and her guardians sold off some of her land to pay medical bills, even though she had sufficient funds to pay the bills. She has long since passed away, and it is possible her descendants do not know this happened. I've found many other Native people whose family have lost land but don't know how.

However, in accepting the settlement, they will never know what it is they have lost or how much money they have been cheated out of. In the 1970's I often asked my parents and grandparents about our Indian allotments, but I was told that we had none. It was only a year and a half ago at the age of 50 that I discovered we still had five acres left.

As Native people we have a common philosophy, a way of thinking, that we consider the impact our decisions of today will have upon the seventh generation ahead. With this in mind, how can we be wiling to give up so much just for money. That money will not be there for the seventh generations ahead, but keep the land and it will always be there!

With records missing and destroyed, intentionally and otherwise, we will never know what was lost through accepting the settlement. We will never know what government official or agency stole the monies or if they could be prosecuted. I believe this was one of the reasons for the settlement offered by the government and why the Congress and the President signed off on it. They want to protect the guilty by sweeping this under a rug called the Cobell Settlement.

Trust Land Consolidation Fund

Another provision of the Cobell settlement is the 1.4 billion set aside for the Trust Land Consolidation Fund. The Interior Department claimed it was a fiscal headache to manage the interests to fractionated lands, with several hundred heirs to a few acres of land. Their solution under the settlement is to purchase highly fractionated lands at fair market value and then place the lands under tribal control. And this is voluntary so it sounds like a good solution, but there is something each individual will lose and can never be compensated for. That is, if there was ever a value placed on sovereignty. If we sell the land in the face of what we have been through as Native people, the few dollars received will be gone quickly. The land will always be there.

Before the forced marches, reservations and boarding schools, we all understood that spiritual relationship with the land. While the missionaries were whipping the Indian out of the children, the military and Indian agents imposed their process of conditioning us to behave as them. Through an observation by Senator Dawes, he commented that we had a flaw in our character; we weren't selfish enough to be productive Americans. He saw that through our communal way of life, everyone had a home, no one was hungry and the children were well taken care of. The allotments, Indian Citizenship, and Indian reorganization Acts were all intended to force us into conformity to their way of life and to an extent it has succeeded.

There is something that many of us can do to reverse this and I hope that this idea will spread to the other Native communities. Regardless of how fractionated the land is, don't sell, especially if you can grow foods on it. Do your own consolidation of the land. Ask relatives if they would be willing to protect the land by establishing an agreement to keep the government from interfering with a project to grow your own healthy foods. The foods that could be grown there could out value the few dollars the government will offer you. Having a food cooperative will give you something to barter with among your own communities.

I know that some lands will not be suitable for farming, some may not even be suitable for living, but explore all your options before selling the land. If anything, a provision should have been made to increase your current land base for the people to have someplace to live or grow foods on. In some places, I know that tribal politics interferes with what you can do on your own land, including the Interior Department. I also now that some families are desperate due to poverty or other misfortunes, but this is something that the government is counting on to have you give up the land willingly. And even though they say this program is voluntary, I need to point out that it isn't as voluntary as the settlement would have you believing. In the cases of IIM account holders who have land interest, but cannot be located, the government has written, and the Cobell attorneys have agreed, that notice will be sent out and that after a period of time if the person cannot be found, that land will be purchased and the money will be deposited in the IIM account and available for disbursement for whenever that person is located.

Louise Cobell offered her statement to the court by phone at the beginning of the hearing, she said that over 99% of the Indian plaintiffs supported the settlement and the attorneys said that of all the Indian communities they visited with, the Indians were happy. I explained to the court that this was not an accurate perception because so many did not opt out because they didn't fully understand the stipulations of the settlement and that felt resigned to accept what they can since there appears to be no hope for justice in this case. Another person raised a point that she knew many Native people who don't even read mail from the federal government, along with the fact that there are Native people who do not have TV's, Internet or read the papers so there are those who weren't aware of it.

One of Cobell's attorneys dismissed this and said they are sure everyone knew about it, except those whom they have no current address for. He reiterated that 99% of the Indians thank him and appreciated the efforts. Personally, when those attorneys came to Durant, I was not aware of it until a week later. I wished I had known because I would have been there. I never received an email, letter or anything, I wonder how well attended some of these meetings actually were.

Indian Education Scholarship Fund

In order to make the settlement appealing as an act of sincerity, there is actually a $60 million limit for educational scholarship; it will be partially funded from the Land Consolidation Fund that is devised through a special formula. Along with portions being used for administrative costs to operate the scholarships. It is important to understand that some portions of the 3.4 billion will return to the US Treasury:

·      The Department of the Interior will have up to 10 years from the date the Settlement is granted final approval to purchase the fractionated trust land.  Any money remaining in the Land Consolidation Fund after that time will be returned to the U.S. Treasury.

·      Any remaining funds in the Accounting/Trust Administration Fund, after all distributions and costs relating to the Settlement are paid, will be transferred to the Indian Education Scholarship Fund.

·      Any payments for Class Members that remain unclaimed for five years after Settlement is approved will be transferred to the Indian Education Scholarship Fund.  This transfer will not occur for money being held for minors and adults who are mentally impaired, legally disabled, or otherwise in need of assistance.

The 3.4 billion-settlement will actually be smaller than many have been led to believe once it is over, and some of the account holders who may not have been aware of payments in their accounts could lose them.

Breach of Trust

As I sat through the hearing, I waited to hear if there would be a response from either of the attorneys or the Judge in regards to my arguments that there was a serious breach of the fiduciary relationship that was established by a series of Supreme Court decisions known as the Marshall trilogy that decreed Indian people were wards of the federal government. In any other guardian - ward trust relationship that is violated by the guardian, they are removed and prosecuted. I made a comparison to having a knife shoved to the hilt in our backs by the defendants, and then only pulling it out less than 2% could not be construed as a victory. I told the court that it has been nearly two hundred years and that we are more than competent to manage our own affairs and that a meaningful ruling would include the dissolution of this trust and that the Indian people reorganize their self-governance through their own means and not one required by the Indian Reorganization Act. I said we want to be liberated from this relationship.

In a memorandum and order dated 7/12/05, Lamberth wrote:

The plaintiffs have invited the Court to declare that Interior has repudiated the Indian trust, appoint a receiver to liquidate the trust assets, and finally relieve the Indians of the heavy yoke of government stewardship. The Court may eventually do all these things—but not yet. Giving up on rehabilitating Interior would signal more than the downfall of a single administrative agency. It would constitute an announcement that negligence and incompetence in government are beyond judicial remedy, that bureaucratic recalcitrance has outpaced and rendered obsolete our vaunted system of checks and balances, and that people are simply at the mercy of governmental whim with no chance for salvation. The Court clings to a slim and quickly receding hope that future progress may vitiate the need for such a grim declaration.

Such a ruling would have given me the sense of justice we would all share in, but the silence in addressing this point affirmed that they are not ready to relinquish control of our assets and lands. To do so would mean they could no longer have access to the natural resources that lay beneath our collective lands; they could no longer politically dominate Native people. As it is, the hand that has the knife in our backs still remains there.

Timed to an appeal

Although the court has approved the settlement, it is not really over. The processing of checks and other aspects of this settlement will not take place for a period of 60 days in the event of an appeal. I haven't seen that point explained in the news. One reason is that if any of the conditions of the settlement is changed, then it becomes null and void. Neither of the attorneys, nor the court wants this to happen.

If there was a time to rock the boat, this is it. We may be ignored and criticized by those who only care for money, but in my closing to the court I stated that I reserve the right to appeal if the settlement is approved and that if my appeals fails all the way to the Supreme Court, I reserve my right to opt out of the case. I said I remained hopeful that we might see true justice from the court by denying this settlement.

In the settlement, there is a disclaimer that states the federal government is not acknowledging any wrongdoing, the language is similar to the apology resolution Clinton signed for the illegal overthrow of the Hawaiian Kingdom or in the Native American apology resolution. Even though Judge Hogan was publicly reported to have said the government “mismanaged these resources on a staggering scale.”

We have 60 days to submit a notice of intent to appeal and develop a brief in support challenging the fairness of the settlement. And in the meantime, everyone should keep a careful eye on the tribal governments and Interior Departments. Earlier this month, Judge Hogan allowed consultations to occur with tribal leaders to hold discussions on implementing the land consolidation. They already knew the outcome of this Fairness Hearing and were impatient to start moving forward. Don't let a single one go by quietly.

In closing, I am grateful to all who made it possible for me to be there, to all the others who made sacrifices to speak their objections to the settlement, and to those who came and bore witness to an example of the injustice we've endured over the centuries. I've reflected on so much since the hearing, and I recall a line from an article written by a Choctaw whose name I can't remember, but it begins, "If we were allowed to practice our sovereignty in the morning. What would it look like?"  I've wondered about that for years, and where are we in that process. I believe that we should be proactive in this regard and begin this conversation within our own communities. We can't rely on the federal government to do this, and we already know what it looks like. And if you really look at the treaties, how often have we said that they have violated every treaty they made with us. Isn't a contract null and void if violated by a party, releasing the other party from its obligations?

Maybe it is time we take a leap of faith and begin really empowering ourselves. Some of us are capable of fighting the battles at the door, but the People need to find ways to come together and keep coming together until we have developed our alliances with one another. This isn't going to happen quickly or overnight, and it has taken a few centuries of assimilation to push us this far.

I don't have all the answers, just a principle to base an idea upon and I hope that it can begin here before we find a time where it will be too late as we have understood our respective prophecies.

I send my heartfelt prayers to all who read and share the words I have written here.

Ben Carnes

(c) copyright 2011