His class is about one hour, 15 minutes. Mr. Smoak i guess we should go ahead and get started. Quick announcement, just so you are aware of where we are at, tuesday next week we will have the final quiz. I am sure you are happy about that. So please be ready for that at the beginning of class. Today, what i want to do is talk about the Indian Claims Commission as a means of continuing our discussion, the mid20th century, the Indian Claims Commission is something that is often not people dont spend a lot of time on. I think it is important. It certainly point out the link between the resources and land, the controlled resources and land and tribal sovereignty. It also illustrates very clearly the limitations on tribal sovereignty that the federal government puts in place, legislation that might seem to empower indian people, but also has real limitations on. And then we will spend time today talking about one particular claim, the most controversial one, it lasted half a century. That claim in particular illustrates how native conceptions of political power and control of territory, ownership of property, are fundamentally different from european and euro american conceptions and that poses obstacles to travel sovereignty, certainly tribal sovereignty, certainly in the land. We will start with background information, talk about the Indian Claims Commission in general and claims process and how that worked and move into and indepth look at a particular claim. Lets go ahead. Now the Indian Claims Commission is going to be signed into law in come of it was not the first time that claims were made against the United States. They were first heard in 1831 by the Supreme Court. Other mechanisms existed in the u. S. For claims against the government, tribes are not the only groups seeking redress regress. Individual citizens did. Before 1855, claims followed a particular process, individual acts of congress. Before we Start Talking about those private hills, one thing to keep in mind, the idea of sovereign immunity. The United States and others subscribe to this doctrine, boiling it down, you do not get to sue the sovereign unless the sovereign says you do. You cannot sue the United States unless the United States gives you permission. That is the basis. Before 1855, individuals who had a claim against the government over a contract, over whatever, could seek regress, but they had to do it directly through congress, getting them to propose a bill. And you see them filling the congressional record. And it is for that reason in 1855 that congress created the court of claims. It was envisioned to deal with all of these and to relieve burdens from congress. At first, they are simply an advisory board, they can only Tell Congress what should happen. But in 1863, a second piece of legislation gave the court of claims the power to make final determinations and decisions. For much of history, the court of claims that in that building across from the white house, today it is the smithsonian gallery. You might have seen it. Ok, now native access to the court, native tribes might have thought this was an avenue to pursue the government further wrongs. And they tried. But in 1863, that these of legislation gave the court that piece of legislation that gave the court this responsibly, also said that foreign nations and Indian Tribes were excluded. So they were left out, just like that. It remains like that for some time. The shift starts to occur during the reason malaysian era, one of and one oftion era, the most important times, a case that we looked at and they were hoping to remain in their homeland, a celebrity cause among reformers. The test case of crook was also important in claims, because this case, even though it decides that indians are not citizens, they are persons of a particular protection under the law. At the same time, these reformers are arguing that indians needed to be made subject to United States law, we need to set aside traditional norms of government and replace them with civilized forms. So it did not make sense for reformers that indians should be barred. So in 1881, congress for the first time granted a tribe, the choctaws, a right to bring a court a claim before the court. That is the way it would remain for the next 65 years, up until 1946. Each individual suits brought before the court by natives had to have a special piece of enabling legislation to make that happen. Once you got there, your chances of winning are not good. Of the 134 cases heard by the court in this time, native people only one 28. Choctaws did when that first claim. They are often dismissed on very near a technical grounds, mostly grounds that relate to the enabling legislation itself. An example from a 1942 case, northwestern shoshones, it was thrown out because they said that the enabling legislation said that they could be compensated for land that was held by treaty, but they did not hold them by treaty, they had them before that, therefore the case is gone. So there are these technicalities, cases get thrown out. Once you win a case, if you are one of those 28 groups, then your cash that you get from the government is severely reduced by offsets. Offsets are gratuitous expenditures of the government and what that means is it is an expense the government made on behalf of these people, on a group, that is not stipulated in the treaty. What are those costs . If you were removed from your homeland and forced to go somewhere else, that could be a gratuity. You get to pay the cost of your own removal. Of these cases, the cash awards are reduced by an average of 2 . 60 . In some cases, it is egregious. From over 6 million to 622,000. The offsets reduce the actual cash. And so, this is the situation that they are in. I the number of cases increases radically in the 1920s, this is in part related to the native service in world war i and feelings about native people, 1920s, native veterans become citizens, and later a citizenship act makes them all citizens of the u. S. And there is a flurry of enabling acts in congress. Between 19241927, 38 claims are filed, that is about the same number that had been filed since 1881. So a flurry of claims. What it leads to is a call for a special commission, a special Indian Claims Commission to handle these. The idea actually goes back to 1910, the commission of Indian Affairs, but it is in the 1920s that more people call for it and it is also time of the report we talked about last time, miriam report. Meriam report. So that is the background. Where does the commission come from . Any questions . Ok, where does the commission come from . The origins should be understood in this previous claims history, but also in the fluctuations in federal policy in the 20th century. The 1930s saw a major shift in policy, the new deal, the end of the assimilation policy, the allotment. This is why congress will hold numerous hearings on indian claims and the idea of an independent commission. Four times between 19301940, they hold special hearings on Indian Claims Commission. Now the claims commission was something that john callier considered for the reorganization act, but it was rejected, because he thought it would overburden the act which was already complicated. And claims were controversial, one of the key sponsors of the indian reorganization act was wheeler, it is called the wheeler howard act. Burden k wheeler was very suspicious of attorneys and he expressed his belief that it was claims attorneys driving this process, trying to take their cut. So callier is not going to include in the reorganization act. The shift comes after world war ii and post callier. In 1945, 1940 they hold their final hearings on the Indian Claims Commission idea. A key witness, this man. Ernest wilkinson, a claims attorney who was the chief partner and a very powerful washington based law firm that tells mostly with indian law and specifically with indian claims. He testified in 1945 before these hearings. He railed against the narrow decision of the court of claims, specifically that of the northwestern band shoshones, an attorney on that case. He testified he had lost, he had spent seven years and 12,000 of his own money, that he lost. So he is going to argue for a claims commission that is empowered to make final decisions. He also suggests that lawyersfees should be bumped up, but that does not happen, he remains at a maximum of 10 . And the final act, the Indian Claims Commission act will come out of the set of hearings and in 1946, in august, it will be passed by congress and signed into law by harry truman. Ok, so what is in the act . The Indian Claims Commission act empowered allowed tribes or any identifiable group, residing within the territorial limits of the United States or alaska to bring a claim before the commission. It created a threeperson commission. In practice, the commission acted like a court. What i mean, it had adversarial proceedings. A tribe hired councils, who hired attorneys, no tribe pursued a claim on its own. They also hired Expert Witnesses. The act set up a very tight time frame, which did not work out the way they thought it would. The filing part did, they had five years to file claims. The deadline for filing was august 13, 1951. Then theoretically, the claims would it be decided in the next five years. So the commission is only supposed to last from 1946 until 1956. That is not the way it works out. It lasts until 1978. That is a long time, 1978. By that time it has heard 370 dockets, divided into sub dockets and decided 550 of them. What was left over when back to the court went back to the court of claims. This bill receives bipartisan support in congress. It can be conceived of by those who are proindian and prosovereignty as justice, paying off a debt. This is also viewed by conservative forces as people who want to get a return on an assimilation policy, that they view it as, well we finally paid them, now we can end the federal government relationship with tribes. So it sort of premises that extermination policy. It is not listed as part of termination, but it plays into it. Paying off debt, now we can move on. Support from both sides. I know this is technical stuff. Student who served on the commission . Mr. Smoak individuals appointed over the years, it was not Able Commission stAble Commission. Probably 2030 different people. Three at a time. And they are often attorneys or government officials. Ok. The process, lets talk about the general process and how it is, in a couple important ways, it is important to native understandings and Property Ownership. For some native people, they welcomed the claims process. It was in flow of cash, but for others it seems a violation of their way of life. Every claim will go through three phases. Title, value liability, and then the offsets. I am not going to say much time on the offsets. Under the act, the offsets were not completely defined, but much better defined than other claims cases. There are a range where some were excluded, you could not count the cost of removing somebody in these offsets. So they are far lower, on average, maybe 2 . In some cases more. We will not spend much time talking about that. I want to focus on these first two. Title and thought you liability. And this is one of the crucial factors of the operation of the commission. No land would be returned. This is not about acknowledging title or returning land, it is about a monetary settlement. That is going to shape the process. The first phase any tribe will have to enter into is the title phase. Once the claim is filed, it goes to the title phase. In this phase, the tribe isnt burdened with proving that is is burdened with proving a definable area. Now, this is not a native concept. Native people did have ideas about property, about land, about who could possess the land as a group, but the idea of elusive use or occupancy was not a common idea. This is a european idea. This is really the idea that is related to abstract ownership. At times the commission did recognize that views very, but in general it will come down to exclusive use and occupancy. This is an obstacle to tribes. Employees attorneys will employ Expert Witnesses. I have a journal of history there. This society emerges. This is a combination of anthropology and history, using culture and the understanding of another peoples culture to interpret historical documents, this idea emerges directly from the work of the Indian Claims Commission. Anthropologists and historians working together to prove claims. Unfortunately, the problem with titles is that there is a conflict of interest. The fact that these were not need of terms, it is meant not native terms it is meant , claims attorneys cannot go after claims were multiple groups used that area, they saw that as a losing proposition. Even more importantly, there is absolutely no incentive to claim that those native titles exist, kissing can only collect because he can only collect the fee when it is accepted that it is gone. Does that make sense . There is a competition interest. Conflict of interest. So this comes from the final report of the claims commission, this map, in 1978. All areas not shaded are places where there is no claim certified, nobody got paid. Did people live there, yes. Concrete example, this area around the boise valley. Serious tribes used that area, but those involved are steered away from making a claim their, because it was maybe a losing proposition of joint use. It would prevent settlement and attorneys are not going to spend time and money pursuing claims they dont think will win. Ok, then we go into the value liability phase. This is where we determine how much money a tribe get from the claim settlement. Values are going to be determined on fair market value at the time of taking. Not today. These settlements is the commission is hearing this in 1957, they are not going to look for value at 1957 prices, they will look at which the point the land was taken. In many cases there is a definable moment. In the case i will talk about in a moment, 1877, the treaty that follows the civil war when it is a definable point, that land will be valued. What happens after title phase is that attorneys hire expert appraisers and go out and use resources and they make what the Supreme Court in another case called, and informed and informed guess. That is on how much it was worth. There is no adjustment for lost profits or inflation and no interest. We will talk about ballooning settlement and that interest comes after the final determination from the claims commission. So we will get a very straightforward payment. The emphasis is cash only, no returnable land. That is the big rub, that is the Sticking Point for so many tribes. They want the land back. One of the most famous cases was still an ongoing case, the lakotas, the black hills, and these were sigrid, these were made part of the great sioux reservation. That created great sioux reservation made up of essentially all of south dakota and some north dakota, including the black hills. In the wake of 1876 and 1877, an agreement is forced on the lakota people and the black hills are gone. This is something that was traumatic for the lakota people. In 1972, the Indian Claims Commission decided the government old the lakotas old owed that tribe or the taking of land. That land had the most productive gold mines, but that is not playing into it. In 1979, the court of claims upheld a ruling and added interest, that brought the reward to 106 million. The lakota tribes refused to take the money, of until today even today, they refuse to take the money coming even though there are people who say the land is not coming back, we need to take the settlement. Due to interest as this is untouched in the treasury, the settlement is now 1 billion that the combined tribes have not taken. As you can imagine, that is a lot of money and that can eat away at peoples resolve, it can change lives, tribal existence. There seems to be, who knows, how long this could last or whether they will continue to resist taking the settlement. For now, that is where you stand in stands. The general operations of the Indian Claims Commission, any questions . What i want to do for the remainder of our time, for the next 55 minutes, focus on one claim in particular, i think that in doing this we can really get at those differences between political understanding and Property Ownership and the way in which the system was set up that disadvantages certain segments of the community and puts control in the hands of others. The western shoshone land claims among one of the longest battles, one of the most famous. It becomes a celebrity cause, documentary films are made about it in the 1970s and most recently in 2006, focusing on it. For narrated Robert Redford narrated a couple of them. The basis of this is the treaty of ruby valley. And we will talk about the shoshone homeland. This is how the native people would say it, newe sogobia. They had a word in other language that sounds similar, it sounds like the people. For our purpose, what i want to focus on are these intertwined concepts in the native political order, about authority and Land Ownership. Who talks to the people and for whom and how do you possess a land . There is this you often hear that native people have no concept of have her property, that is not true. In terms of land as property, ownership of the land really is inherent in the people, in the group. All shoshone people shared a sense of a larger homeland. Right . This concept of western shoshone homeland. Now, but not all of them lived in one or traveled throughout the area, they were not everywhere. So in each case you have smaller groups that have their own smaller homeland, places where the generally range. For those people, the right to the resources of the land were unfettered.