© 2024 Concerned Citizens of Western Montana

Note:  This article is part two of a series of articles on the Tribal Inheritance. This is a complicated subject, and we expect that there may be one or two additional articles to come.

Section 8 of CSKT Corporate Charter: Corporate Dividends

The tribe MAY issue to each of its members a non-transferable certificate of membership evidencing the equal share of each member in the assets of the tribe ……

Do Vested Rights in the Tribal Estate Really Exist?

While we’re not sure just how often this happens, we’ve heard the stories about tribal family member “descendants” whose blood quantum is less that the 25% required for membership in the tribe, that have been evicted from their home after the death of their “tribal member relative.”   

While this may be a difficult pill for most of us to swallow, this kind of situation is the logical conclusion of the 1934 Indian Reorganization Act (IRA) and the tribal (communist) government entities it established for the purpose of self-government controlling and consolidating tribal assets, up to and including tribal member’s homes that are located on trust lands.  

How could this happen in America and why would Congress turn a blind eye to it?

  • Because through Congressional action and inaction, the Federal Government not only has enabled such treatment of individual Indians, it has perpetuated it.  Steve Daines are you paying attention?
  • And worse, when the tribal membership finally did assert their right to terminate and liquidate the tribe’s assets in 1954, Congress ignored them and failed to act upon the termination that the majority of CSKT members desired. 
  • And last but not least, this problem also exists because in many ways, We the People have also turned our backs on what has been happening to our tribal neighbors.  What we also seem to forget is the same communist enclave that deprives tribal members of their rights has become a cancer that is also destroying and eroding the rights and freedoms of non-Indians.  CSKT Compact anyone?

It speaks volumes that despite their circumstances and conditions, the tribal membership raised enough money to send three people to Washington DC in February of 1954.  

The Congressional Hearing on the Termination of Federal Supervision over the Flathead Tribe brought all of these issues into clear focus, because the majority of adult tribal members of the CS&K Tribes chose to assert their right to terminate federal supervision and to liquidate and distribute the tribal assets to the tribes’ members.

The majority also desired that the tribe’s assets be distributed to the bona fide members of the tribe, not the tribal roll that had artificially been manipulated by the tribal government.  They also wanted every tribal member, including non-reservation members to have a say and to share in the disposition of the tribe’s assets. 

This clearly was not what the tribal council wanted.

The Tribe Testifies Against Termination

The transcript of the Flathead Tribe termination hearings is quite lengthy.  We’ve posted a link to the entire transcript of the hearing at the bottom of this article.  Here is an excerpt of the tribe’s position as summarized by George Tunison, attorney for the CSKT.  Mr. Tunison was there to represent the interests of the tribal government, not individual tribal members. 

On February 26, 1954 Mr. Tunison, conveyed to the committee that:

….on behalf of this tribe, and the unanimous resolutions of its business council that is the position of this tribe today, that they are entitled to keep that territory which belonged to them long before there was a United States, and which they ceded with a reservation of this particular Indian reservation to themselves, and they are entitled to keep that as an Indian reservation as long as they want to keep it as an Indian reservation.

The argument I have heard here advanced and I say this part argumentatively – that the United States has the right to terminate this treaty with those Indians without consultation with them, without offering them any compensation for the loss of hunting and fishing rights which are guaranteed to them in that treaty, for the loss of their other incidental rights involved in that treaty, because simply you have the power and simply because this committee and this Congress has the power to do that-that, to my mind, is a whole new concept of the dealings of the United States with either a sovereign nation or an Indian tribe.

What this tribe wants is the right to have their right to own and occupy that reservation in perpetuity. Now, I will grant that if this Congress or any other nation wishes to abrogate and violate a treaty it has the perfect right to do that.. But common fair dealing requires: that when you do that you at least call in the other party and say, “We as a Government have decided that it would be better for you and better for us to terminate this treaty and we want to terminate the treaty with you gentlemen.” …..

February 26, 1954: Rep. Berry from South Dakota Advocates for CSKT Tribal Members

The tribal members that went to Washington DC to testify in support of the termination of federal supervision of the tribe brought with them the support of a majority of adult tribal members of the CS&K Tribes. But despite the wishes of the majority of its adult membership, the tribal council, their attorney, and many of the tribal elders pitted themselves against the individual tribal members in these hearings. 

E.Y. Berry, Representative from South Dakota, Chairman of the House Sub-committee on Indian Affairs questioned Mr. Tunison on the constitutionality of the 1934 Indian Reorganization Act (also known as the Wheeler-Howard Act).  He began by asking whether the act had taken away the right of individual Indians to determine what should happen to the assets of the tribe.

EXCERPT FROM TESTIMONY

Representative BERRY. Well, Mr. Tunison, I just have a question or two. How would you suggest that the people (individual tribal members) ever get their rights to the property?

 Mr. TUNISON. The people, Your Honor, have all of the rights to the property they need now, the ones that own property (Allottees) there, like these men who are going to appear before you. They occupy the land and they farm it, but they do not pay taxes on it.

Representative BERRY. Would you think that if a majority of the Indians favored this legislation or similar legislation, whatever they wanted, that should terminate this treaty that you are talking about?

Mr. TUNISON. I think if a majority of those Indians living on that reservation and using that reservation want to terminate this treaty, they have a right to do it; yes.

Representative BERRY. You think it should be limited to those who live on the reservation?

Mr. TUNISON. That is right.

Representative BERRY. Do you think that those who have left the reservation do have property rights in that property?

Mr. TUNISON. Yes, sir; and I agree that in the event of a dissolution or termination of that reservation, they should receive their proportionate share.

Representative BERRY. But they should not have anything to say about what should be done with it?

Mr. TUNISON. No, sir; for the reason that the Wheeler-Howard Act (Indian Reorganization Act) under which that tribe is organized, and to which it has faithfully adhered, provides that only Indians living on the reservation, the charter of incorporation issued under that act, provides that only the Indians living on the reservation shall have a right to vote on the disposition of tribal property. Those who have seen fit to stay there Your Honor, and make that their home, are the people who are interested in the heritage received from their Great Chief Victor, whose son, incidentally, sits here in this room, and will testify later. That has been their home and it is the home of their ancestors, and the home where their ancestors are buried, and those that want to stay there and live there, some 2,000 of them, are the people who should decide what should be done with it.

NOTE:  We found no specific provisions in the IRA as to the disposition of tribal property should federal supervision be terminated, but the tribe’s Corporate Charter clearly states that only Congress has the authority to revoke or terminate the corporate charter.  The CSKT charter linked above provides for amendments via a vote of on-reservation members, but only with the submission of a tribal council resolution to the Secretary of Interior, making any such effort extremely difficult and highly unlikely.

Representative BERRY. How long do you think it should be before they should be given an opportunity to have their property?

Mr. TUNISON. Well, I do not agree, or I cannot grasp the concept of Your Honor’s question, “agree to have their property.” They already have their property.

Representative BERRY. Subject to the supervision of the Federal Government, is that right?

Mr. TUNISON. That is right.  He goes on to read some of the provisions of the Hellgate Treaty …… There is reserved for the use and occupation of said tribes all of which tracts shall be set apart, surveyed, and marked out for the exclusive use and benefit of said Confederated Tribes as an Indian reservation. I submit on that point–

Representative BERRY. It does not say under the jurisdiction of the Federal Government or anything like that, though, does it? If they should form an association or a corporation to handle their own affairs would it not be covered by this treaty, and it is for their own exclusive use and benefit?

Mr. TUNISON. The tribes themselves, you mean? If the tribes are willing to give up that exclusive use and benefit provision, you mean?

Representative BERRY. But this does not take the exclusive use and benefit from the tribal property; does it? By that I mean this bill.

Mr. TUNISON. No, it provides for a patent in fee to this tribe and then they are in the same position as your chairman has indicated repeatedly in this hearing, as· any other citizen of the United States. Now, the position of this tribe is that they are in a better position and they had something which the United States wanted, and they ceded that to the United States for a valuable consideration, and they are entitled to the benefit of that bargain. That is the position of this tribe…..

Representative BERRY. There is just one more thing that I would like to ask you and that is this: You say that under the Wheeler Howard Act, the non-reservation Indians have no right in the operation of that reservation?

 Mr. TUNISON. That is right. For your honor’s information, I will be glad to read that to you. 

Representative BERRY. I will take your word for it.  Do you not think that all Indians under this treaty and their children and grandchildren of all of the Indians covered in this treaty have a vested right in that reservation, in the property of that reservation, the assets of that reservation?

 Mr. TUNISON: Yes, sir.

Representative BERRY:  Then, when the Wheeler-Howard Act took their rights away from them, is that not taking from them a constitutional right?

Mr. TUNISON. No. Any Indian who is an enrolled member of this tribe that wants to live on that reservation has a perfect right to go there and live on it……

Mr. TUNISON:  I am saying to you that the descendants of the people who made this treaty have a right to stay there and use that reservation, and if anybody wants to get up and go to Seattle, or Washington, they have a perfect right to do so. But the people who live there and use and occupy that reservation and produce its products with their own hands are the ones who ought to have the management of it.

Representative BERRY. But you are taking property away from individuals without any compensation, and not just compensation, but any compensation; are you not?

Mr. TUNISON. No; we simply formed this corporation under the Wheeler-Howard Act, and we are adhering strictly to it. Now, if you want to repeal it–

Representation BERRY. It may not be constitutional though; may it?

Mr. TUNISON. No one has seen fit to attack it as yet.

Representative HARRISON. Does the Wheeler-Howard Act provide that only those residents who live on the reservation may vote on the disposition and use of the tribal property? Is that in the Flathead constitution?

Mr. TUNISON. Yes. Let me read what it says. I will be glad to do that.

Representative HARRISON. That is under the Wheeler-Howard Act?

Mr. TUNISON. Yes, sir.

Representative HARRISON. Now, are the rights of the enrolled members vested property rights?

Mr. TUNISON. That is a pretty broad statement, but will you elaborate a little on what you mean by vested property rights?

Representative HARRISON. You know what I mean, Mr. Tunison, as an attorney, are the tribal rights of all enrolled members vested property rights. Do the property rights vest in the individuals? And, are they rights of which you cannot divest them?

Mr. TUNISON. Yes. I would say that is a general question and I would answer that, yes.

Representative HARRISON. Then are they such rights of property as are protected by the due process clause to the fifth amendment of the Constitution?

Mr. TUNISON. I will grant that they are.

Representative HARRISON. What becomes of constitutionality of the Wheeler-Howard Act, then?

Mr. TUNISON. Now, listen, your honor, if you want to debate the constitutionality of that act–

Representative HARRISON. I am asking a question and the w:itness can say he does not or does want to answer it, but I am not going to get into an argument with him. I am asking a question and I am entitled to an answer.

Senator WATKINS. Can you answer it, Mr. Tunison?

Mr: TUNISON. I do not presume to pass in a judicial capacity on the constitutionality of an act of this Congress. You know as much about  it as I do.

Representative HARRISON. Your position is that you just prefer not to answer that question; is that right?

Mr. TUNISON. I prefer not to pass on the constitutionality of it.

Representative HARRISON. I am not asking you on that. I merely asked you a question of what, in your opinion, becomes of the constitutionality of the Wheeler-Howard Act.

Mr. TUNISON. In my opinion, then, I will say that the Flatheads had a perfect right to adopt this charter, which was submitted to the Secretary of the Interior, and was approved by him.

Representative HARRISON. Nobody has questioned that, Mr. Tunison, and I am merely saying if these are vested property rights and come under the fifth amendment would the Wheeler-Howard Act then, in your opinion, be constitutional if it deprives those who lived off the reservation and owning vested rights from a vote on the use and disposition of their property.

Mr. TUNISON. There are two “ifs” in there, and I prefer to go back to the fundamental doctrine that the tribe has the right to develop its own membership and this tribe could, if it saw fit, revise its rolls, and say only those living on this reservation are entitled to be enrolled here. Now, the tribe has not done that, and it has continued to carry these people, although they reside in various cities, on its rolls. But, it is entirely within the management and purview of these Indians to restrict the management of that reservation to those who prefer to stay there and live.

Representative HARRISON. Such action on the part of any council or any of those on the reservation voting would certainly violate our due process laws, would they not, of the fifth amendment?

Mr. TUNISON. No, sir; it would not.

Representative HARRISON. Your position is that they can vote to take away and divest these people who reside off the reservation and divest themselves of their property rights and their interests in tribal assets.

Mr. TUNISON. I do not think that question is involved, but I will say this, that this treaty set aside this reservation as a home for these people belonging to this tribe. Now, if one of them sees fit to be in Seattle or to go to Washington, there is a grave question there whether he still retains that right or not. But the tribe has never raised that question. The tribe has continued to carry them on the rolls. That is a moot question there.

Representative Harrison. It might be a moot question, Mr. Tunison, to some individuals, but I would say it would be far from a moot question to the individuals concerned with it.

Mr. TUNISON. Nobody has raised it on them. It is a moot question until someone raises it.

February 27, 1954: No Such Thing as a Vested Right in the Tribal Estate by Members

On February 27, 1954, Rep. Wesley D’Ewart from Montana relayed this information to the chairman of the committee overseeing the hearings:

Mr. Chairman, yesterday the question of vested rights in the tribal estate came before the committee.

During the recess, I have gone into that matter with the attorneys for the committee and am advised that there was no such thing as a vested right in the tribal estate by members of the tribe; that it is not a property right, cannot be sold, cannot be traded, AND ENDS AT THE DEATH OF THE INDIAN.

THERE IS AN INHERENT RIGHT IN THE TRIBAL ESTATE THAT IS GAINED WHEN THE INDIAN’S NAME GOES ON THE ROLL AND ENDS WHEN HIS NAME IS TAKEN OFF THE ROLL ON DEATH.  HE CANNOT SELL IT, IT IS NOT IN THE TRUE SENSE A PROPERTY RIGHT.  

NOTE:  HE OR SHE ALSO CANNOT PASS IT DOWN TO DESCENDANT FAMILY MEMBERS, OR THEIR NON-MEMBER SPOUSE OR CHILDREN.  

Mr. Tunison, attorney for the tribe responded:  I would like to say, inasmuch as I was questioned on that, that I agree, as counsel for the tribe, 100 percent with the Congressman. 

Tribal Hunting

The Truth is Exposed

It’s difficult to understand why Congress did not terminate federal supervision of the CSKT specifically because the majority of its tribal membership desired it. 

The consent of a majority of the voting tribal membership in and of itself should have been enough for Congress to have finished what it started.

The dialog above between Mr. Tunison and Representative Berry raises questions about the constitutionality of the Indian Reorganization Act, and exposes the truth about the property rights of individual Indians as they pertain to the TRIBAL ESTATE.  

The IRA effectively transferred the property rights of individual tribal members, giving them instead to a newly created tribal government corporation for its own benefit and enrichment under the guise of “self-government.”  

SECTION 8 of the CSKT Corporate Charter says: The tribal government  MAY issue to each of its members a non-transferable certificate of membership evidencing the equal share of each member in the assets of the tribe ……

It is a right that is not transferrable and it dies with the tribal member.

We believe that this provision means that the tribal members absolutely have an equal share in the assets of the tribe, and they should assert their rights, while they are living, just as their predecessors did 70 years ago.  Otherwise the right dies with them, leaving their heirs with nothing.

It all begins and ends with true self-determination.  Unfortunately the tribal government elephant in the room keeps its tribal members from achieving true self determination. 

See:  The Cancer of Government Deemed Self Determination.

Realistically the CSKT tribal government ensures that self determination remains out of the reach of its membership.  Such a concept is meant to be a mirage, a false choice or promise that keeps the tribal membership under control.  It can’t happen unless the tribal government corporation says it can, or Congress revokes or terminates its corporate charter.

Tribal retribution

What we do know is that the same federally chartered corporate government that keeps its tribal membership under control via the auspices of communism, would very much like to do the same to non-Indian property owners that choose to live within reservation boundaries. 

As far as the tribal government is concerned non-Indians also have a choice.  They can accept the compact and its repercussions, or remove themselves from the reservation, like the 2,000 tribal members that were living outside of the reservation in 1954. 

Unfortunately for the federal, state and tribal governments, we’re not buying what they are selling. 

While tribal members may have the right to a share of the tribal assets, the tribal government and its members have no right to a share of anyone else’s.

See Also:

Documents

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