Indigenous Land Rights wǝɫǝbʔaltxʷ University of Washington Eric D. Eberhard Seattle University School of Law October 29, 2015
Indian Lands 1660 to 1880 2
Stevens Treaties • Treaty of Point Elliott, January 22, 1855, Ratified March 8, 1859 -The Tribes relinquished all lands east of modern day Bremerton and Poulsbo to the crest of the Cascades, from the Canadian border to the Nisqually River, subject to provisions for several reservations, including the Port Madison Reservation for the Suquamish Tribe. - The U.S. claimed the right to settle more than one tribe on any reservation; to move the tribes at any time and to allot the reservations to individual Indians. - The Tribes reserved the “right of taking fish at usual and accustomed grounds and stations … in common with all citizens … together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, That they shall not take shellfish from any beds cultivated or staked by citizens.” 3
Stevens Treaties • Treaty of Neah Bay, January 31, 1855, Ratified March 8, 1859. – The Makah Tribe ceded most of its lands north of Quileute and east of the Coast Range, as well as all offshore islands to the U.S., but reserved a small portion adjacent to Neah Bay as its reservation. – The U.S. claimed the right to settle more than one tribe on the reservation; to move the Tribe at any time and to allot the reservation to individual Indians. – The Tribe reserved the “right of taking fish and of whaling or sealing at usual and accustomed grounds and stations … in common with all citizens … together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, That they shall not take shellfish from any beds cultivated or staked by citizens.” 4
Treaty Ceded Areas in Washington 5
Statehood • Washington became a state in 1889 and acquired the shores and beds of the navigable waters in the state and they were not reserved for the tribes in the state. United States v. Aam , 887 F. 2d 190 (9 th Cir. 1990); United States v. Ashton , 170 F. 509 (W.D. Wash. 1909) 6
Assimilation and Allotment “This continent had to be won. We need not waste our time in dealing with any sentimentalist who believes that, on account of abstract principle, it would have been right to leave this continent to the domain, the hunting ground of squalid savages. It had to be taken by the white race. Theodore Roosevelt (1894) *** In my judgment the time has arrived when we should definitely make up our minds to recognize the Indian as an individual and not as a member of a tribe. The General Allotment Act is a mighty pulverizing engine to break up the tribal mass.” President Theodore Roosevelt (1901) 7
Allotment “No longer did many tribal Indians feel pride in the tribal possession of many hundreds of square miles of territory which they could use as a member of the tribe. Now they were forced to limit their life and their vision to an incomprehensible individual plot of 160 or so acres in a checkerboard of neighbors, hostile and friendly, rich and poor, white and red. The blow was less economic than psychological and even spiritual. A way of life had been smashed; a value system destroyed. Indian poverty, ignorance and ill health were the results.” Wilcomb Washburn, Red Man’s Land, White Man’s Law: A Study of the Past and Present Status of the American Indian 75-76 (1971). 8
Allotment • General Allotment Act of 1887 • Land base dropped from 138 million acres in 1887 to 48 million by 1934 • Return of unallotted land to the public domain for settlement by non-Indians. • Lone Wolf v. Hitchcock , 187 U.S. 553 (1903) – Congress has the constitutional power to unilaterally abrogate the treaties. 9
Allotment 10
Reorganization • A New Deal for Tribes: - Indian Reorganization Act (1934) 25 U.S.C. §§ 461 et seq. - Permanent end to allotment of tribal land - Protect and restore land base - Secretary of Interior authorized to take land into trust - Reorganize tribal government under constitutions - Declare reservation boundaries - Federal charters for tribal business corporations 11
Termination • Termination - 1945-1989 • Congressional policy is “as rapidly as possible, to make the Indians within the Congressional territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, and to end their status as wards of the United States, and to grant them all the rights and prerogatives pertaining to American citizenship. . . .” H.R. Con. Res. 108, 67 Stat. 132 (July 27, 1953) – same day as P. L. 83-280 passed the House. 12
Termination • Over 100 tribes lost federal recognition. • Citizenship rolls were dissolved. • Lands were sold. • Assets were distributed to former citizens of the tribes or third parties. • State Civil and Criminal Jurisdiction under P.L. 83-280 13
Self-Determination • “The time has come to break decisively with the past and to create the conditions for a new era in which the Indian future is determined by Indian acts and Indian decisions. . . . We must assure the Indian that he can assume control of his own life without being separated involuntarily from the tribal group. And we must make it clear that Indians can become independent of Federal control without being cut off from Federal concern and Federal support. … 14
Self-Determination . . . [We must] affirm that the historic relationship between the Federal government and the Indian communities cannot be abridged without the consent of the Indians. . . . In my judgment, it should be up to the Indian tribe to determine whether it is willing and able to assume administrative responsibility for a service program which is presently administered by a federal agency.” Special Message to the Congress on Indian Affairs, Public Papers of the Presidents of the United States: Richard Nixon, July 8, 1970, pp. 565-567 15
Indian Land Today • 2.2 Billion Acres Total in U.S. • U.S. holds title to 755 Million Acres • Indian tribes: 46 Million Acres (trust) • Individual Indians: 10 Million Acres (trust) • Alaska Natives: 45 Million Acres 16
Indian Land Status • Reservations – Trust land • Tribal • Individual – Fee land – Rights of way • Allotments • Other interests in lands: leases, use areas, federal withdrawals, national parks and monuments 17
Indian Land Status Today Tribal Trust land: Owned by the U.S., held in trust for the benefit of a tribe. Individual Indian Trust land: Owned by the U.S., held in trust for the benefit of an Individual Indian; often multiple undivided interests; no foreclosure or local taxes. Fee land: Privately owned land registered on the state and county tax rolls; includes former Indian allotments or lands sold as surplus land. 18
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