Talk:Indian Claims Commission

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Where is map of claim lands?--Kaiyr (talk) 10:09, 1 August 2012 (UTC)

Indian Claims Commission

@Doug Weller, David Biddulph, and Pliny the Elderberry: I opened this discussion last May and I apologize for the long delays in my replies. However, I have done the best I could to understand and adhere to the rules of Wikipedia (while having other work to do). I have just written an entirely new article, below, using the sources noted and my knowledge of the Commission. I have no financial stake in anything related to this. I do not own any of the publications referred to, having sold them all in 1987, and I have never been entitled to, or received, any income since. I own the copyrights to the 2 books cited and which I used as source materials for my article, but that's all, and everyone is free to use books as sources. My article below is not copyrighted of course. My only concern is that the current article is the only article I've ever seen on Wikipedia that makes no sense, and I feel an obligation to correct the historical record for future researchers. I hope the editors of this page are as concerned as I am. And I am more than happy to answer any questions and to provide more citations of the published records of the ICC.

The Indian Claims Commission (ICC) was created on August 13, 1946 after nearly 20 years of Congressional debates. Its purpose was to serve as a tribunal for hearing claims against the United States arising prior to that date by any Indian tribe or other identifiable group of Indians living in the United States. In this it exercised primary jurisdiction that formerly rested with the United States Court of Claims. The Court of Claims had jurisdiction over claims arising after August 13, 1946 and subsequently after the ICC ended its operations on April 10, 1977 on any claims filed with the ICC and not yet fully resolved.

Under the terms of the 1946 Act there were three Commissioners and a period of ten years in which to complete the work. It soon became obvious, however, that ten years were insufficient. In 1957 and 1962 the Commission was extended for five-year periods, and in 1967 it was extended for a third time and enlarged to five members, and the staff was increased to accommodate the increased workload.

In creating the ICC, Congress broadened the normal grounds on which Indian tribes could sue the United States. This wider jurisdiction reflected an awareness of the problems arising from the relations between the Government and the Indian tribes. Two hundred years of westward expansion had produced much conflict and created some of the harsher episodes in the history of the U.S. as it acquired the Indians' lands. By various treaties–and after 1871 by agreements--the Indians' lands were ceded to the United States, and the Indians were moved onto reservations. The treaties were the primary source of the 370 petitions filed with the Commission prior to the cutoff date of August 13, 1951.

The 370 original petitions were gradually separated into 617 claims, each of which was assigned its own docket number. Under the Act, the tribes were permitted to claim “unconscionable consideration,” which is not normally permitted in civil suits. Those claims were largely based on the fact that the tribes had relied on the U.S. Government for determining the extent and value of the lands being ceded, and the tribes contended that they had been cheated. The Commission also received claims of the uncompensated taking of land, as well as of other wrongs as defined by the Act.

The first four clauses under Section 2 of the Act covered every actionable wrong under law. Clause 5 permitted suits on claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity. In the trial of these cases the plaintiffs were represented by attorneys of their own choosing under contracts approved by the Secretary of the Interior. The United States Government, as stipulated in the Act, was represented by the Department of Justice. Thus it was an adversarial process despite the fact that the Government, by dint of creating the Commission, admitted, ipso facto, to having transgressed equitable practices.

Since these claims arose in the 18th and 19th centuries, the passage of time created considerable difficulty in establishing the facts pertaining to the claims. In the absence of witnesses the parties relied on contemporary expert witnesses and documentary evidence consisting of available historical records, as well as extant ethnological studies. This type of evidence primarily focused on the question of the size of the area occupied by the plaintiff tribes and was referred to as the "aboriginal title" phase of the typical case. The large majority of the cases filed before the Commission were of such a nature.

During the treaty years no tribe had a deed or other documentation establishing their ownership of the land they utilized for all of the activities they undertook, for instance hunting and burial areas that weren’t necessarily in the area where they lived. But the tribes claimed that they should have been compensated for those lands. After the size of the area was recalculated based on the evidence (vs. the size as specified in the treaty) and the Indians' title was established and specified by a vote of the Commissioners, it was necessary to determine the value of the land and the consideration, if any, given by the Government for the purpose of determining whether it was conscionable or unconscionable. In this second portion of a typical case the parties introduced newly created land, timber, mineral and water appraisals as evidence for the purpose of establishing the value of the land on the date it was ceded by the tribe.

The third part of the typical case was the determination of the payments made by the United States, and of any and all offsets, counterclaims and demands claimed by the Government. The evidence consisted of statutes or Executive Orders involving land transfers, and vouchers showing payments of money or goods.

Although courts adjudicating civil suits normally require all witnesses to testify verbally, the Commission decided early in its proceedings to require all of the documentary reports to be submitted in writing because of their complexity and technical nature. The tribes and the Government paid tens of millions of dollars cumulatively to historians, anthropologists, archaeologists, linguists and timber, mineral and water experts, among others, to create the reports. They thus produced an enormous body of primary research materials pertaining to the tribes and their lands, perhaps the largest single body of scholarly materials on Native Americans ever assembled, so to speak, in one place.

Although the Commission made periodic deposits of the records of closed cases to the National Archives, those records are far from complete for a variety of reasons. First, although the Commission recorded in its Journal every piece of evidence it received, its files were poorly managed. For instance, members of the public were (occasionally) permitted to borrow documents on a trust basis, i.e., with no supervision and with no records by the Commission of what was borrowed, and many of the expert reports disappeared. Second, several of the Commissioners donated the records of closed cases to their alma maters, and there is no concise guide to those donations. Thus NARA does not have the records of all of the dockets and the files it holds are generally incomplete.

Adhering to more normal civil proceedings, all of the expert witnesses were required to testify about their findings and to submit to cross examination. Thus the transcripts of the hearings uniquely contain arguments and debates regarding purported historical facts pertaining to all of the issues documented, such as religious practices, hunting traditions, timber resources, land values, etc. And although the president of the American Anthropological Association lobbied in the 1950s against the involvement of anthropologists in the proceedings, he later prepared reports and testified on behalf of the Government. Thus the existence of the Commission impacted substantially on the academic fields involved in doing the research.

Included among the claims were a number of accounting cases wherein the tribes asked that the Government account to them for its management of their assets. Owing to the nature of the cases their determination was very difficult, and each award voted by the ICC had to be approved by Congress. However, by September 30, 1978, the Commission’s last day of operations, most of the cases had been settled, and the 68 open dockets were remanded to the Court of Claims. By that time nearly $820,000,000 had been awarded to the tribes, however in some cases, for instance in the State of Washington, the tribes were required by Congress to cede more land to the Government in order to receive their award.

References

• United States Indian Claims Commission Final Report, August 13, 1946-September 30, 1978. The Report contains background articles, a list of the Commissioners, an Alphabetical Index by Tribe of Indian Claims Commission Cases, as well as other indexes, records of awards and a map, “Indian Land Areas Judicially Established 1978,” with an alphabetical index by tribe of its own. The Report would have been submitted to Congress and can probably be found in The Congressional Record.
• Ross, Norman A., Index to the Decisions of the Indian Claims Commission. Clearwater Publishing Company Inc., New York, NY, 1972. The book is an index to the Decisions of the Commission and to the microfiche containing the Decisions, which include abstracts by Frances L. Horn of the law firm Wilkinson, Cragun and Barker, which began lobbying for the Act in 1929 and which represented more tribes than any other firm. Library of Congress Cataloging: Index. 1. Indians of North America-Claims-Cases. I. Horn, Frances L., 1915- . II. Ross, Norman A., 1942- III. United States. Indian Claims Commission. KF8208 343'.73'025 72-13850 ISBN 0-88354-001-0
• Ross, Norman A., Index to the Expert Reports before the Indian Claims Commission. Clearwater Publishing Company Inc., New York, NY, 1972 The book is an index to the written Export Reports submitted to the Commission by both the plaintiffs and the defendant, and to the microfiche containing the Reports. Library of Congress Cataloging: Index. 1. Indians of North America-Claims-Cases. I. Ross, Norman A., 1942- II. United States. Indian Claims Commission. KF8208 343'.73'025 72-13850 ISBN 0-88354-002-0

Norman20c (talk) 16:03, 20 February 2021 (UTC)