Settlement coming on Pembina lawsuit against federal government

A settlement is finally on the way in a dispute some 150 years old, in one of the earliest lawsuits filed claiming the federal government had mishandled trust moneys it held for Native American tribes.

"It was what I call FILO, first in, last out," Native American Rights Fund attorney Melody McCoy, who is representing the plaintiffs, said.

McCoy said final approval in a settlement of a claim going back to land transfers in 1863 and 1892 was made in November 2020, and NARF is trying to contact all eligible people who could receive an award before an April 29 deadline to opt out or to submit testimony for a June 10 fairness hearing in federal court.

She said the people eligible are descendants of the Pembina Band of Ojibwe or Chippewa Indians, including eligible members of the Chippewa Cree Tribe of Rocky Boy's Indian Reservation, the Little Shell Tribe of Chippewa Indians, Turtle Mountain Band of Chippewa Indians, Whiter Earth Band of Ojibwe and eligible people not members of those tribes.

She said NARF has attempted to notify all eligible people or their eligible defendants, but about a third of the original plaintiffs have died and current addresses might not be the same.

"The bad news is the passage of time," McCoy said.

People who believe they are eligible but have not received the letter notifying them of the settlement can call 833-999-9915 or visit http://www.pembinasettlement.com online to check on their eligibility.

McCoy said the June 10 hearing is when the judge will decide whether to approve the settlement.

"That triggers the distribution of the settlement," she said.

Land concessions lead to questions

McCoy said the issued started in 1963 with a treaty with the Pembina Band and Red Lake Band of Chippewa, ceding land on the border of North Dakota and Minnesota, and then the McCumber Agreement of 1892, where the Pembina ceded land to the federal government on the border of North Dakota and Canada.

McCoy said if people fast forward about 40 years, Indian tribes began to think maybe they had not gotten a good deal - maybe they had been cheated.

Indians began getting attorneys and trying to have their claims heard in courts, but the courts were not very available to the Indians and the federal government generally was considered immune.

So the tribes turned to Congress, and got a better reception there, McCoy said.

But as more and more tribes began to file claims, it began to clog up the process, so Congress created the Indian Claims Commission to look at the tribes' claims.

Just more than 600 petitions were filed, McCoy added.

The Pembina requests actually had two claims, one for the 1863 treaty and for the 1892 agreement.

In 1964, the commission made an award on the 1863 claim, but most of that went to the Red Lake Band, with the Pembina receiving about $300,000.

But then the government had to set a process for distribution, which happened in 1971. By then, the Pembina Band no longer existed and Congress determined the award should go to the eligible members of the Chippewa Cree, Turtle Mountain and White Earth, as well as nonmember lineal descendant

Then the government had to set up distribution procedures and find exactly who was eligible. Those funds weren't distributed until 1984.

And in 1980 the commission ruled on the 1892 agreement and awarded the Pembina $53 million - the second-largest award made by the ICC, with only the $200 million to the Sioux over the taking of the Black Hills of South Dakota larger.

That included five beneficiary groups, Chippewa Cree, Little Shell, White Earth and Turtle Mountain and nonmember lineal descendants.

But McCoy said the groups, Turtle Mountain in particular, started wondering how the government had been handling the money it was holding in trust. The tribe hired an accounting firm to look at the $53 million held in trust to see what earnings it had made in eight years.

McCoy said the accounting firm said it couldn't determine that with the meager records available and its client didn't need an accounting firm, it needed a law firm.

So the tribe came to NARF in 1992 and Sept. 30, 1992, NARF filed a lawsuit.

McCoy said the government didn't take the case very seriously, but it was a growing issued starting in the 1970s and running into the 1990s. Tribes had been going to Congress to try to get an answer on their trusts.

The federal government held billions in trust funds but no tribe ever got an accounting of trust funds and tribes were never consulted about how those funds should be invested and no tribe had ever received information about how those funds were invested by the United States, McCoy said.

Ultimately Bureau of Indian Affairs hired an accounting firm to do that, but the firm, after spending five years and $23 million in taxpayer money, said it could not reconcile the accounts on the information available.

But it gave a cursory view of 20 years, 1970 to 1990, which it distributed to the tribes.

When they got the reports, "we were glad we were in court," McCoy said.

When asked if the reports answered their claims, "I said, 'No, your honor, they substantiate them,"' McCoy said.

The federal government tried to get the claims dismissed again, she said, but the judge ruled the plaintiffs had provided enough evidence for it to go forward.

That was in 2006, and in the meantime 100 other tribes had flied lawsuits, she said.

And Eloise Cobell also had filed a lawsuit dealing with the trust funds held for individual Native Americans.

Then a new president, Barack Obama, promised he would seriously look at settlements, McCoy said.

The Pembina group held out, saying its claim was worth more than was offered, she said.

"It wasn't until 2018 we started serious negotiations," she added. "It took nine or 10 years to negotiate the settlement we see today."

She said the Pembina claimants quickly approved the settlement - but now a new administration was in office, with Obama having termed out.

And now, with the settlement finally agreed to, just months ago, they are reaching out to all eligible members, she said, adding that at least they know exactly who was eligible - now they just have to find all of them or their eligible descendants.

"We know who our class is; whether we know where they live is another question," she said.

All people who think they may be eligible are encourage to call the number, 833-999-9915 or visit http://www.pembinasettlement.com online to check on their eligibility.