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 II 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.

Tribal attorneys filed claims demanding compensation for every wrong they could think of, realizing that Congress had barred all claims after the five year period.

The period during which tribes were permitted to file their claims saw a wide and interesting variety of petitions. Of course, the ICCA could not have been considered a success if tribes were unaware of its existence or unable to file claims. This was not a problem, however, as all 176 federally recognized Indian tribes were notified of the Commission and its purpose shortly after its inception in 1946 and 370 different petitions were filed during the first five years of the Commission’s existence. Indeed, nearly every existing tribe in the nation filed claims under the ICCA. The tribes were ably represented by very accomplished lawyers, many of whom spent the majority of their professional careers trying cases before the Commission. These attorneys were by and large successful in obtaining awards for their clients – at least as successful, if not more so, as any trial attorney could hope to be as the Taos, wanted to have sacred land returned to them. This and similar claims proved difficult to grant – after all, much of the land that tribes had lost or sold was now in the hands of private individuals, people who had nothing to do with the original transactions. The Commission recognized that the return of land would only create an entirely new group of people that would be wronged, necessitating more lawsuits, not a closure of these claims. Due to these concerns, the Commission decided early on that monetary awards were highly preferable to the return of land. Though there were rare cases, such as with the Taos, in which the sacred land was still held by the government and thus could be returned, the Commission was understandably reluctant to grant such demands and awarded money instead.

While a few tribes sought the return of land, other tribes wanted to have the government held accountable for the way tribal money was spent. More so than others, these petitions were frequently successful. The relationship between the government and the American Indians often involved the government acting as a trustee for the tribes. As trustee, the Department of the Interior and later the Bureau of Indian Affairs were in charge of overseeing and, in many cases, designing programs on reservations. Earlier courts had agreed that the government needed to account for any expenditures, and that the expenditures had to fulfill the congressional purpose of acting as a trustee for the tribes. The Commission even ordered the government’s General Accounting Office to prepare reports listing transactions that involved any Indian funds for a period of almost an entire century. But the cases brought before the Commission went further. The attorneys for the tribes insisted not only that the government must account for all expended funds, but also that they must pay interest on any funds that were not spent. In 1970, the Commission heard the claim of the Mescalero Apaches and the Te-Moak Bands of Western Shoshone on this issue.

This question of paying interest to Indian tribes on money that was held in trust is one of the most complicated the Commission faced. The government had generated hundreds of millions of dollars for tribes over the years by overseeing the usage by non-Indians of Indian land. This money was deposited in a trust account, and was then used to fund various Indian programs. The United States Government asserted that no interest was due on the funds, since the money was constantly being spent for the benefit of the tribes. Tribal attorneys countered this by pointing to a statute, passed over a century earlier in 1841, that required funds held in trust by the United States to be invested in bonds bearing at least five percent interest. Although the statute had not mentioned any funds belonging to the tribes, the Commission again sided with the Indian tribes.

Then, in an even more radical step, the Commission awarded the tribes the interest not at a simple interest rate, but at a compound rate. This was a huge difference, due to the time that had elapsed between the wrong and the Commission’s decision. At simple interest, what is typically awarded in such cases, $1 million dollars would have turned into $5 million after eighty years. The compound interest that the Commission awarded, however, would have turned it into 10 times that much. The Department of Justice, who represented the government before the Commission, appealed the case to the Court of Claims. The Court of Claims reversed the decision, determining that the tribes were not entitled to interest, a decision that has been hotly contested by advocates of increased tribal awards.

Most of the cases brought before the Commission did not deal with the return of land or accounting issues, however. By far the most prevalent of all cases were those dealing with compensation for taken aboriginal lands. Before the arrival of Europeans, the concept of owning land was foreign to most American Indians. As Tecumseh put it, “Sell a country! Why not sell the air, the clouds and the great sea, as well as the earth? Did not the Great Spirit make them all for the use of his children?” Indian tribes did not own the land in the American or European sense, because the land could not be owned.

When the ICCA became law, however, Indian tribes understandably demanded that they be fully compensated for any land that was ‘taken’ from them. Determining what land could be considered as belonging to tribes was an extremely complicated process. Many tribes had not consistently remained in a single area, making it impossible to draw distinct lines around an inhabited land. Furthermore, many tribes had been dislocated over the previous centuries by the settlement patterns of whites. The Commission had to balance accounts from different anthropological experts, determining the extent to which land had been used by a tribe in order to decide whether they had gained ownership over periods of time. The Commission was very lenient with tribes on this issue, requiring little proof linking the tribes to the land they claimed. For example, the Commission in 1957 determined that the Pawnee tribe had aboriginal title to 23 million acres of land in Nebraska and Kansas, despite the fact that the tribe’s own expert witness admitted that number was arbitrary and that many of the 23 million acres were actually “common hunting ground among several tribes.” This sort of limited information was enough, however, for many tribes to convince the Commissioners that they deserved compensation for the loss of ‘their’ land.

Once the Commission had determined that a tribe held title to land that had been taken from them, the only thing that remained was for damages to be awarded. In order to do so, the value of the land needed to be determined. This was often just as difficult, however, as determining the ownership of Indian land. As Edgar Witt, the first Chief Commissioner, remarked to Congress, “it is very difficult to determine what these lands were worth in 1814 or in 1865 before they were really occupied by white citizens of the United States.” Should the Commission value the land at what it would be worth with improvements, as the Indians wanted? Or should the land be valued at the use the tribes had for the land, as the Department of Justice wanted? The Commission always chose a number somewhere in between. Tribes seldom recovered all they demanded, which even included claims that they should be compensated for the ‘trespass’ of miners on their property or the loss of their hunting and fishing rights, in addition to the value of the land for its highest and best use. The Commissioners rejected this approach, finding that payment for highest and best use included compensation for lesser included rights like hunting and fishing privileges. At the same time, tribes always received more than the government’s valuation of the land. Overall, the Commission awarded damages in 341 cases, or over 62% of the claims that were adjudicated. At an average of nearly $2.4 million per case, the Indian Claims Commission awarded about $1.3 billion during its 32-year life.

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

Why Are Indian Tribes Still Suing Over Ancient Treaties?

Part 1 of 3
Part 3 of 3

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