Pembina settlement finalized for Chippewa Indian tribes, individuals

A settlement in a lawsuit some 150 years in the making was settled Thursday, providing $59 million to individual Native American litigants and tribes including The Chippewa Cree Tribe of Rocky Boy’s Indian Reservation and The Little Shell Tribe of Chippewa Indians of Montana.

Judge Thomas F. Hogan of the United States District Court for the District of Columbia finalized Thursday settlement of litigation between the Department of the Interior and plaintiffs in Peltier v. Haaland, the U.S. Department of Interior announced Thursday.

“The Department of the Interior is wholly committed to strengthening our government-to-government relationship with tribes, including reconciling long-standing disputes regarding proper management of tribal trust assets,” a spokesman for the Department of the Interior said. “The department will continue to diligently execute its trust responsibility to federally recognized tribes and enact policies that promote tribal sovereignty, self-determination and economic self-sufficiency.”

The Class Action Settlement Agreement settles the claims of 39,003 individual beneficiaries against the United States for mismanagement of the Pembina Judgment Fund, a trust fund containing additional compensation for certain lands that the Pembina Band of Chippewa Indians ceded to the United States. Final approval of the CASA activates the settlement reached in the Court of Federal Claims with the four beneficiary tribes, the White Earth Band of Chippewa Indians and the the Turtle Mountain Band of Chippewa Indians as well as the the Chippewa Cree Tribe and the The Little Shell Tribe.

The litigation was filed in 1992 by individual and tribal beneficiaries of the Pembina Judgment Fund, alleging mismanagement and failure to account.

The settlement builds upon the work initiated under the Obama-Biden administration, which settled the vast majority of the outstanding claims, some dating back more than a century, with more than 100 tribes and totaling over $3.7 billion, the Justice Department release said.

Receiving justice after 150 years

The settlement of the claim going back to land transfers in 1863 and 1892 was made in November 2020. The hearing Thursday finalized that settlement.

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, White Earth Band of Ojibwe and eligible people not members of those tribes.

The issued started in 1863 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.

About 40 years later Indian tribes began to think maybe they had not gotten a good deal in their treatment by the federal government — 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.

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.

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.

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

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

Waiting 30 more years for a settlement

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.

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 Native American Rights Fund in 1992 and Sept. 30, 1992, NARF filed a lawsuit — the first Native American class action suit filed on the issue.

Melody McCoy, the attorney who represented the plaintiffs, 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.

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.

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.

When Barack Obama became president, he promised he would seriously look at settlements.

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

The final settlement wasn’t reached until almost the end of the Trump Administration, two years after the serious negotiations began.

And now, with the hearing finalizing it, the descendants of the Pembina Tribe will receive their award — almost 150 years after the original deals.