Note:  Our thanks to the Citizens Equal Rights Alliance CERA for permission to publish this article.  What follows is the first in a 3 part series that discusses the congressional intent of the Indian Claims Commission toward the final resolution of Indian grievances against the United States, compared to the actual result.  While it was written about 2001, it is just appropriate now as it was 20 years ago, perhaps even more so.  CERA’s website can be found at this link.

50 Years Past the Deadline – Part I of III

Why Are Indian Tribes Still Suing Over Ancient Treaties?

By: Randy V. Thompson, Esq. and Brandon Thompson of Stapleton, Nolan,  MacGregor & Thompson, St Paul MN co-authored this article on behalf of Proper Economic Resource Management, Inc. (PERM), a Minnesota non-profit corporation whose mission is the preservation and management of natural resources for all persons.

Indian Claims Commission – As Congress itself pointed out, the purpose of the Act was to “bring this practice to an end and to settle once and for all every claim (Indian tribes) could possibly have under the categories set forth in the law.

A Goal Unrealized

This past August 13th marked the 50th anniversary of the deadline set by Congress for Indian tribes to sue the United States for grievances arising prior to 1946. Nevertheless, Indian tribes continue to file claims for loss of their treaty rights, loss of land, and other claimed injustices. The special law that allowed Indian tribes to file all claims and then closed the chapter on this part of America’s history is now largely forgotten by the courts and the public.

On August 13th, 1946, President Harry S. Truman signed into law the Indian Claims Commission Act.  Perhaps one of the most unique tools for judicial intervention in history, this Act created a special judicial body before which American Indian tribes could file claims of all kinds against the United States government. Any claim that any Indian tribe had against the United States, extending back to the American Revolution, could be brought before the Commission. In order to be valid, however, the claims had to be brought within five years of the passage of the Act. Any claims not brought before August 13th, 1951 would be forever barred by the statute. Despite the passage of the deadline, claims that arose from events prior to 1946 continue to be brought by Indian tribes. Congress passed the ICCA in order to allow Indian tribes the opportunity to “have their day in court,” but that day has long since passed. The important goal of the Indian Claims Commission has been largely forgotten or ignored, as courts persist in allowing tribal suits. As Congress itself pointed out, the purpose of the Act was to “bring this practice to an end and to settle once and for all every claim [Indian tribes] could possibly have under the categories set forth in the law.” Today, a half-century later, the Act’s purpose still stands unrealized.

The Largest Real Estate Transaction in History

In order to fully understand the ICCA, an examination of the shifting relationship between the United States and the American Indian tribes should first be conducted. Even before the Revolution, Indians were under pressure to allow settlers to purchase tracts of land tribes had been using, and at times land was taken from the Indians by force. Back in the eighteenth century, however, huge amounts of available land usually allowed settlers and natives to coexist in relative peace.  As the years passed, and the United States continued to expand, Congress realized that this cohabitation would not be able to last forever. The United States made treaties with tribes, at first affording them treatment of a somewhat similar nature to that given European nations. This soon gave way to the “removal” policy of President Andrew Jackson, which resulted in Indians from the Eastern states being “removed” to west of the Mississippi River. Rapid settlement in the West, fueled by both the railroads and the California gold rush, put an end to removal, however, and the government began to purchase land from the tribes and settle them on reservations.  Tribes were eventually concentrated on land designated as “Indian Territory,” (now Oklahoma) or moved to reservations on or near the land where they had once lived.

By the 1870s, nearly all tribal land had been acquired from the tribes, with the American government turning a blind eye to many injustices and actively assisting in some of the Indian’s oppression. In 1871, Congress ended treaty making, stating that tribes would no longer be recognized as independent nations or powers. Without a doubt, the shifting policies of the federal government played the primary role in the transfer, with varying degrees of consent, of nearly all tribal land, and in the degradation and even destruction of American Indian culture and way of life. As President Harry S. Truman pointed out, the United States had been dealing with Indian land claims since the country’s inception:

“Instead of confiscating Indian lands, we have purchased from the tribes that once owned this continent more than 90% of our public domain, paying them approximately 800 million dollars in the process. It would be a miracle if in the course of these dealings – the largest real estate transaction in history – we had not made some mistakes and occasionally failed to live up to the precise terms of our treaties and agreements with some 200 tribes. But we stand ready to submit all such controversies to the judgment of impartial tribunals. We stand ready to correct any mistakes we have made.”

Adjudication Of All Tribal Claims

As Truman spoke those words, he was preparing to pen his signature on the Indian Claims Commission Act, signing it into law. The federal government, along with most other Americans, realized that wrongs had been committed in dealings with the Indian people. Until after World War II, however, few attempts were made to right the wrongs that had been done. What had happened between the United States and Indians were considered political, even military, matters over which the courts had no jurisdiction. As a result, tribes could not sue in court for damages, and Congress had to pass special acts for each claim in order to allow courts to hear cases or award any compensation to Indian tribes. This system was extremely complicated and time-consuming, which made it difficult for many tribes to successfully receive compensation. This was unacceptable to everyone involved with the issue and a better solution was sought. During the mid-1930s, the idea of allowing Indian tribes to recover for past wrongs in a specially designed body was put forth by John Collier, then Commissioner of Indian Affairs. It took a decade before Congress was able to agree on a bill that would garner enough support to pass both houses and be signed into law, but the Indian Claims Commission Act was finalized on August 13th, 1946.

Both the federal government and Indian tribes welcomed the creation of the Commission, realizing that it would be a means by which to decide all claims outstanding. The tribes embraced the Commission because it gave them the right to file all claims and gave much more latitude than the special jurisdictional acts, while the United States government appreciated the Commission as a way to allow all cases to be heard, decided and forever closed by a single judicial body. It was agreed that the Indian Claims Commission would be a positive development in the relationship between the tribes and the government.

The logistics of the Commission were a bit complex, since never before had such sweeping resolution of Indian claims been attempted. Though the Commissioners were required to be lawyers, typical legal concepts were not always applicable in these types of cases. For example, in most legal disputes, a statute of limitations forces claims to be brought within a certain time of the wrong being committed. American Indian claims, however, had been repeatedly thwarted by government action. In order to be fair, any claims originating after 1776 were heard by the Commission, regardless of how long they had been pending.

The cases brought before the Commission also differed from typical legal disputes in the types of arguments that could be made. Generally, lawsuits must be based on purely legalistic principles, but Congress gave the Commission authority to also hear claims that were moral in nature. Therefore, tribes could bring cases claiming that the federal government had coerced them into signing treaties, or misrepresented agreements, or acted in other ways that could be characterized as violating notions of “fair and honorable dealings that are not recognized by any existing rule of law or equity.”

Of equal importance was Congress’ understanding that no one should be allowed to litigate a claim forever. In return for the elimination of any statute of limitations on claims filed under the Act, tribes understood that the ICCA would provide complete, final closure to their complaints. If a claim existed by an Indian tribe prior to passage of the Act, that claim was forever barred if not filed by August 13, 1951. As long as the claim was filed before that date, however, virtually any interaction between the government and Indian tribes was subject to question before the Indian Claims Commission. In this way Congress “provide[d] for a final adjudication of all tribal claims.”

Their Day In Court

Though the Commission was created to deal with the difficult questions arising from nearly 200 years of shifting federal policies and conflicting relationships, no one was quite sure how to go about answering the questions that had arisen.  In order to deal with the uncertainties that lay ahead, Congress gave the commissioners only general guidelines, allowing them to set their own standards for dealing with claims.  These individuals came from different backgrounds, different political parties, and different areas of the country. They had a common understanding of the place of the legal world, however, and this allowed them to gradually shape the Commission into a viable judicial body. The commissioners heard evidence from both the tribes and the government, determined which side had the stronger case, and passed judgment. In short, the Indian Claims Commission provided a prolific and effective forum for Indian tribes to have their “day in court.”

1946 Indian Claims Commission Act
1978 Amendment to Indian Claims Commission Act

Why Are Indian Tribes Still Suing Over Ancient Treaties?

Part 2 of 3
Part 3 of 3

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