Why the Big Tribal 'Payout' Is Only a Start

The complex legal history of the federal government's connection to Native American tribes was on display in separate events last week, neither shining a positive light on this continuum of American history, but both sowing the seeds for a more positive future.

The National Museum of the American Indian in Washington, D.C. recently celebrated its 10th anniversary with the exhibition Nation to Nation and a gala to celebrate the milestone. The exhibit explores treaties that were made between tribes and the United States, a powerful reminder of the long, complicated and painful relationship.

The federal government has a second relationship with tribes and Native Americans. The U.S. government also is a trustee to tribes, overseeing assets such as land and the general well-being of tribes.

Last week, the government paid the largest settlement to a single Native American tribe in history: $554 million for mismanaging trust assets on behalf of the Navajo Nation.

Many other tribes (mine, too) have settled similar cases of mismanaged assets, but this is remarkable because of the dollar amount. This recent Navajo case is also distinct from the Cobell settlement in 2009 when the government acknowledged mismanagement of individually owned assets. The Navajo case alleges mismanagement of tribally owned assets -- land.

The government also settled the Keepseagle case in 2010 that found discrimination against Indian farmers by the U.S. Dept. of Agriculture.

The U.S. is in the process of paying tribes after losing two court cases, most recently in 2012. These cases involve contracts to tribes to carry out health and other programs on behalf of the federal government. The contracts are managed by tribes across the country where individual tribes or consortia choose to take on this on behalf of the government.

Unlike other federal contracts, the government did not provide tribes with sufficient "contract support costs." The lack of administrative funds meant tribes had to pay these costs at the expense of health care to tribal members. That is a dire situation considering the Indian Health Services is woefully underfunded.

The government lost two cases before the Supreme Court before it moved to pay these costs, and only after Congress insisted upon it (though Congress did not fully fund these administrative costs initially).

There is a pattern here.

Each case rested on the federal government's failure to meet its trust responsibility to Indians and Indian tribes. To those who question whether these settlements are "pay back" for general historical grievances or that tribes should "get over" previous wrongs, know that the trust relationship is ongoing and modern.

The cases largely boil down to the notion that the government did not meet its legal obligations as a trustee to tribes. Through treaties, court decisions and statutes, the United States has created a trust responsibility to tribes, meaning the government has a legal responsibility to manage some tribal assets and provide services to tribes. They demonstrate the trustee's failure to meet its fiduciary obligations.

But the reality is these settlements address historical shortcomings.

Some tribes and individual Indians will experience a slight windfall but will come up short of what is truly owed. In the case of Cobell, some estimates measured the true liability at more than $48 billion, or $45 billion more than the settled amount.

The settlement usually marks the end of the legal issue in question. But in recent settlements between tribes and the government, they should mark only the beginning. The outcomes of these cases should mark the end of poor management of trust assets. Moving forward, the government must better administer and account for land held on behalf of tribes and Indians.

The Obama administration is responsible for settling these cases. It is also responsible for building a more positive government-to-government relationship to fulfill the obligations to, and honor the relationship with, Indian tribes.

Despite all the progress, the federal government must do more. Tribes still need improved health care, better housing and more jobs. Congress must ensure programs are funded properly and that tribes are empowered economically. There needs to be a guarantee that the administration has the resources to properly manage the trust assets of tribes and individual Indians.

Think of these settlements as a foundation to a building. Where there was once a big hole, these efforts represent concrete and steel filling the space where little existed before. You need a strong foundation in order to build from the ground up. Now that these cases have settled, we can begin to build a strong entity.

The exhibition and the settlements are reminders that we as Native Americans are still here. Tribes and Indians are not relics of the past. The exhibit will last three years. I hope the settlements not only improve the trust relationship, but that it lasts far longer than 2017.