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 in 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 III 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.

Whether or not these amounts were adequate will be forever debated. These awards were certainly substantial, however, especially when one considers that much of the $1.3 billion awarded represented additional compensation over the $800 million tribes had originally received for their land. Even though the Commission awarded over a billion dollars to hundreds of tribes, broke new legal ground for Indian claims, and was extended six times as long as originally intended in order to ensure that all tribes got their day in court, the ICCA has been beset by criticism since its inception. It is true that the government, through the Department of Justice, fought Indian claims with vigor. That is the way the American adversarial system of justice works. The plaintiffs (Indian tribes) had attorneys advocating for them. Indian tribes did not get everything that they wanted. If all the damages that the Indian tribes claimed would have been granted, they would have amounted to over $14 billion, or one-third of the federal budget at the time of the petitions.

The bottom line is that American Indian tribes got their “day in court” and the tribes succeeded in winning awards in the majority of claims. The Indian Claims Commission Act was designed to create an atmosphere in which the negative actions of the past could be rectified. The passage of the ICCA was a remarkable development in a process designed to hear all claims, and then forever close the door on that chapter of history. Even the tribes themselves, for the most part, agree that they received a fair hearing. As the Commission itself wrote at its conclusion in 1978:

The last question that needs an answer is did the Indians gain their “day in court”? The answer is yes. The Commission was a court, complete with appelate [sic] review. And it was unique among courts in its jurisdiction over “moral claims” and having no statute of limitations except the requirement that the claims must have accrued prior to [August 13 of 1946]. The tribes, represented by some of the best legal talent in the country, litigated more than 500 claims and won awards on over 60 percent of them.

A Final Resolution

When cultures collide, as they have for centuries, problems will inevitably result. Sometimes the resolution of these problems takes on a military form – one culture becomes the conqueror, and the other the conquered. Sometimes the dominant culture overwhelms and assimilates or eliminates its less powerful rival. Words like “fairness” and “just compensation” rarely are addressed in these situations. As historian Imre Sutton points out, “recognition of the right of an indigenous people to sue a government over the misdeeds of its predecessors is a consideration that few conquerors have ever accorded a subjugated people.” Instead, the conquered culture is swallowed by the conqueror. Certainly, it would not have been difficult for the United States government to allow the Indian cultures to go this same route. From the infancy of the American republic, however, the government decided to deal with the collision of cultures through treaty making, Congressional action and, in 1946, judicial intervention.

That judicial intervention was the creation of the Indian Claims Commission, which provided a unique judicial forum for what are traditionally military or political issues – one of the few instances in which a “subjugated” people were allowed to sue their “conquerors.” Congress waived the statute of limitations, allowed for the consideration of moral claims, and gave the Commission as much time as it needed in order to fully consider the claims. The trade-off for the tribes, however, was that they had five years during which to file their claims. Congress made it quite clear that “all claims arising before 1946 must be files within five years of the date of the Act. Such claims that were not files would be barred.”

Ever since the Indian Claims Commission ended in 1978, attorneys on behalf of Indian tribes have sought new ways to file lawsuits over old claims to circumvent the closure intended by Congress in passing the ICCA. For example, because the Act bars all claims against the United States Government, tribes have brought suits against states and even private citizens for claims over the taking of land, trespass, and loss of hunting and fishing rights. Because these claims invariably involve, at their heart, actions or wrongs by the United States, these claims are also barred by the Act. Indeed, tribes often asserted these very same claims before the Commission, but whether filed or not, if the claim existed before August 13, 1946, it is forever barred.

The Act was unique because it created both a statute of limitations of five years to file claims by August 13, 1951, and a prohibition or jurisdictional bar to the courts ever hearing the tribal lawsuit.

[N]o claim existing before such date but not presented within such period may thereafter be submitted to any court or administrative agency for consideration…

Some courts have applied the law as written and dismissed these lawsuits. Other courts have ignored or forgotten the Act. In this 21st century, fifty years after the statute of limitations expired, courts need to remember and respect the 20th century’s unique judicial process to hear and forever decide all tribal claims originating from the 18th, 19th and early 20th centuries.

There are simply no legal issues today as to whether the tribes were “fully compensated,” or even whether the federal government should have paid tribes interest on the money they held in trust, or that land should have been valued higher, or that more compensation should be given for other losses. Though these are all important questions, they are once again political questions. Congress defined the role of the special commission to decide American Indian claims and further judicial intervention has been foreclosed. To day, the doors of the courthouse are simply closed to claims that arose between 1776 and 1946. The Indian Claims Commission Act was embraced by tribes, by the government, and by the public because it was a way to adjudicate with finality any and all claims between the government and the Indian tribes. It is time that its purpose, an end to costly and divisive lawsuits, is finally realized.

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 2 of 3

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