Most Censored 2012: Bait and switch, divide and conquer: Justice denied for Indian country
By Steve Melendez, Pyramid Lake Paiute
President American Indian Genocide Museum
The depiction of justice in this country is that of the Roman goddess of Justice, wearing a blindfold and balancing the scales of truth and fairness. The idea is that if you are in the right, you will prevail in the American justice system. This works 99.999% of the time with the exception being that if you are Indian and that you are trying to get land and resources restored that are rightfully yours, you will lose all of the time. Today, American is hidden from view by a hedge all around it and most people do not see it for what it really is. But the hedge is being cut shorter and shorter by the shears of truth and when America has nowhere to hide, judgment will surely fall.
The best kept secret in 2012 was that the late Elouise Cobell never had the right to accept a monetary settlement for what was originally supposed to be an accounting. It is almost as though the federal government is once again using the old “bait and switch” that they have always used against the Indians. The reality of this situation is that it is a racist policy. One Indian leader, whom I shall not name, wondered why our people even try to find justice in this country, using the white man’s courts because we always lose. The “bait and switch” scam is when a store owner advertises a name brand item at a bargain price, but when the customer comes to the store, he finds only an off-brand being sold. In the same way Indians are being enticed into court in hopes setting the record straight but what they find is that this United States Government is just as crooked and racist as ever.
The Elouise Cobell case is just the latest example. Though it involved officials shredding, “162 cartons of ledgers listing transactions and disbursements plus records of uncashed checks—some 100 years old—that never reached their intended Indian recipients…” it is by far not the worst example.
In the case of the Western Shoshone, after more than three decades of court fights trying to get the United States to honor the Treaty of Ruby Valley of 1863, the U.S Congress stepped in and rather than honor the treaty, they cut a check in the amount of $20,000 for each tribal member (which in some diabolical way will probably be paid out with the Cobell Settlement). This happened immediately after the United Nations Committee on the Elimination of Racial Discrimination (CERD) ruled in their favor, urging the United States to, “freeze," “desist” and “stop” actions being taken or threatened to be taken against the Western Shoshone Peoples of the Western Shoshone Nation. The United States has taken their “divide and conquer” tactics to a new level—the poverty level. The poverty of the people is used as a weapon to undercut any leadership toward self-sufficiency. We are honored to have Carrie Dann as one of our board members of the American Indian Genocide Museum. Her decades-long fight for the Western Shoshone homeland was an honorable fight but her fight turned out to be a fight against a Roman-Empire-conquest-exploitation interpretation of justice.
Likewise, in the Cobell case, what began as a request for an accounting, also ended up being a sale of the homeland for a few coins bearing the image of the Roman goddess of liberty. When Professor Richard Monette was asked what his concerns were about the Cobell Case, his response was,
“The tribes were not consulted ... Cobell was simply about a corrective accounting … as we were told early on, the genius of this was that we were not asking the United States for any money. If an account said $100.00 and it should have been $500.00, then correct it … if it had asked for money, then the sovereign immunity of the United States would have been on the table, which is why it wasn’t a request for money. That is why it was simply the court sitting in equity and being able to mandate by injunctive powers to order the United States to do a corrective accounting. As soon as it became a request for money of course that required a waiver of United States sovereign immunity. That’s why we go for 14 years without money being on the table and all of a sudden this turns into a request for money … the judge ordered $455 million dollars. The second that was $455 million and one dollar, it should have raised a couple of questions in our minds … what is the United States of America getting out of this that they are willing to pay a billion dollars more than the court would have ordered them to pay. The thing that they are getting primarily is a settlement of claims that are based not on money but on the administration and management of the assets themselves. The oil, the gas, the coal, the timber, the water-- none of that was ever part of this lawsuit. It was not what they filed for. Its way beyond the reconciliation of accounts. Its way beyond the question of the historical record. The Cobell plaintiffs … maybe just Cobell with her lawyers at this point, putting something on the table that they didn’t have the right to put on and the defendants saying we like that you put that on. Let’s settle it and clear the table. And who is losing again? All the unnamed plaintiffs, all the Indians out in Indian country losing on this issue and neither one of them had the right to do that. These issues were not litigated … there is no robustly developed record on them … in some tribes those claims are minimal and in some tribes, those claims are huge where individual allottees have claims for utility lines running through their property, oil has been extracted without their consent. Congress had a whole senate committee on investigations exercise about oil companies regularly skimming oil …those are the claims that this settlement is purporting to settle -- without talking about, without litigating, showing us no records whatsoever. That frankly is unconscionable.
There is the Federal Class Action Settlement Act of 2005 … is to protect absentee plaintiffs, absentee class members in these class action lawsuits. Essentially the settlement is asking congress to move this through in an exercise of its plenary powers so that those laws don’t have to apply. That as well is unconscionable. What the Federal rules say, and the Class Action Fairness supports, when a settlement puts more money on the table than the last, best decision that the judges would have put on the table, $455 million or two or three billion depending how you look at it. When that happens, the judge becomes an even greater trustee for the absentee class members to make sure there isn’t collusion among the named plaintiffs and the defendants, exchanging goods and their lawyers getting exorbitant attorney’s fees behind closed doors and the real class, the absentee class members being forgotten about. And that is what looks like is happening here.”
It is easy to understand how there can be so many Bernie Madoffs, Allen Stanfords and Charles Ponzis in America today, men who have no conscience and care nothing of the lives they ruin, when you realize that America was founded on the scam. It was twenty one year old George Washington who was commissioned by Governor Dinwiddie to carry a message to the French warning them to get out of the Ohio Valley and claiming that land for England. The scam was that he employed the Indians to escort him. When they asked what was in the letter, knowing that they considered it their land, he answered them in very general terms and noted in his journal that it, “allayed their curiosity a little.” Twenty six years later, as Commander of the Continental Army he would order General Sullivan, “The immediate objects are the total destruction and devastation of their settlements and the capture of as many prisoners of every age and sex as possible … to lay waste all the settlements around, with instructions to do it in the most effectual manner; that the country may not be merely overrun but destroyed … It should be previously impressed upon the minds of the men whenever they have an opportunity, to rush on with the warhoop and fixed bayonet. Nothing will disconcert and terrify the Indians more than this … But you will not by any means, listen to any overture of peace before the total ruin of their settlements is effected … Our future security will be in their inability to injure us; [the distance to which they are driven] and in the terror with which the severity of the chastisement they receive will inspire them …When we have effectually chastised them we may then listen to peace and endeavor to draw further advantages from their fears … Hostages are the only kind of security to be depended on.”
When President Obama told the Tribal Nations Conference this month that, “Longstanding legal disputes like the Cobell Case have been resolved," he omitted the fact that the Cobell settlement was illegal according to the Federal Class Action Settlement Act of 2005. The best kept secret of 2012 is that the deliberate and systematic destruction of our people continues at the federal level. The “bait and switch” scam happened in these two very similar situations when both Carrie Dann and Elouise Cobell started out dealing with the United States judicial branch of the government and like lightning out of the blue, found themselves dealing with the legislative branch of the government. Rather than justice being allowed to run its course, we have lawmakers passing laws that sweep these two landmark cases under the rug at $500.00 per person. But what can you expect of a corrupt system that once appointed a man like the late William Rehnquist to the position of Chief Justice of the Supreme Court, a man who, “had nothing but contempt for Indian cases...' As the disappearing hedge reveals, this nation was not founded “one nation under God," it was founded, one nation under the “Apotheosis of George Washington”.
Steve Melendez - President
American Indian Genocide Museum