Philip P. Frickey and Curtis Berkey, San Francisco Chronicle
By Philip P. Frickey and Curtis Berkey, San Francisco Chronicle
The government’s record of collecting, holding and disbursing funds earned by American Indians on their trust lands has long been a national scandal. Litigation seeking redress has gone on for 12 years, involving several lengthy trials, 28 published judicial opinions and myriad government and private reports. The government was found liable for breach of trust in 1999, but a final resolution seems far off.The litigation has also hamstrung the Interior Department. Several Cabinet-level officials in both the Clinton and Bush administrations were found in contempt of court for the slow pace of reform. For long periods, the court even terminated e-mail service to the Interior Department, due to concerns that the account holders’ financial information was not secure. The specter of other breach-of-trust cases has chilled government initiatives in many areas of importance to Native Americans.
The trust case tests the Obama administration’s commitment to real reform concerning the government’s treatment of Native Americans. The Obama administration can signal its intention to change the way the government handles Indian affairs by changing its basic approach to the case. Rather than fighting every step of the way, the government should be primarily concerned with how to reform the trust fund management and accountability system. It should treat the plaintiffs as collaborators in a joint process to fix the system and provide justice to the account holders.
Attorney General Eric Holder and Interior Secretary Ken Salazar should create an interdepartmental working group, with a representative from the White House, to work with the plaintiffs and others to solve this problem – once and for all.
Philip P. Frickey is the Alexander F. & May T. Morrison professor of law at the UC Berkeley School of Law. Curtis Berkey is a partner in Alexander, Berkey, Williams & Weathers law firm.