There are two types of Indian land title – aboriginal title and recognized title. Recognized title occurs when there is a treaty or statute that states that a particular Indian group or individual owns or controls specific lands.
Aboriginal title is synonymous with the Indian rights discussed in Johnson v. McIntosh – that is, the right to occupy the land. This right can only be extinguished by the federal government, either through purchase or by taking the land.
Indian Claims Commission
What do you need to sue the federal government? Congressional consent. On various occasions, Congress has consented to suit by specific groups for specific claims. Unless there is legislation specifically authorizing a claim, the federal government cannot be sued. This includes suits by Indian tribes for land claims.
The Court of Claims was established in 1855 to hear claims against the federal government. Its jurisdiction was extended to many types of claims, but in 1863, Congress specifically excluded claims based on treaty violations. The only way for tribes to pursue claims against the federal government was if there was an act of Congress allowing the specific claim.
In the 1940s, 142 Congressional acts gave tribes permission to sue the U.S. government for claims based on treaty violations, so in 1946, Congress established a 3 member Indian Claims Commission to hear suits by tribes and other groups of Indians. The act establishing the claims commission required that at least two members be attorneys and no more than two members be of the same political party.
All decisions of the Indian Claims Commission were reported to Congress. The report included how each commissioner voted in each matter. If any party wanted to appeal the decision, the matter could be appealed to the Federal Court of Claims. The Court of Claims could reach a final decision or remand the matter back to the Indian Claims Commission for further proceedings.
All claims were required to be filed by 1951 and it was anticipated that the Indian Claims Commission would be dismantled by 1956. The Commission was finally dismantled in 1978, with 68 cases still on the docket. In 1993, there were still 15 unresolved cases. Why did it take so long to resolve these cases? Typically, 98% of all lawsuits settle without going to trial. In the case of land claims, U.S. attorneys were unwilling to compromise on many claims so a large percentage of the claims went to trial.
The Act allowed suit against the federal government for:
1. Claims arising under the Constitution, laws, treaties, and Executive orders;
2. All other claims where suit would be permitted if there were no sovereign immunity;
3. Revision of treaties or agreements caused by force or duress, unconscionable consideration, mistake or other equitable ground;
4. Claims arising from a taking by the U.S. government;
5. Claims based on fair and honorable dealings not otherwise recognized by law or equity.
Most of the claims paid were for takings of land or unfair land purchases. The federal government paid money for the takings but offsets were allowed for funds expended on behalf of the tribe if the entire course of dealings between the tribe and the federal government warranted it. The act did not allow offsets for costs of removing Indians from their land, but deductions were allowed for attorney’s fees and expenses incurred by the BIA in distributing any funds the Indian Claims Commission found to be owed to the tribe or group.
Some tribes filed claims with the hope that their land would be returned, but the only remedy offered by the Indian Claims Commission was monetary compensation. Once a claim was paid, the tribe could no longer assert that they owned the property in question. Some tribes have not accepted payment for their lands because they learned only after filing suit that they would have to give up their rights to the land.
In determining the level of compensation to be paid for takings of land, the Indian Claims Commission based these amounts on the fair market value at the time of the taking.
There was a case several years ago involving eight Sioux (Lakota) tribes who originally owned the Black Hills of South Dakota both by aboriginal title and by treaty. They filed claims with the Indian Claims Commission in the hopes of recovering their sacred land. The Commission found that the federal government took Sioux lands without just compensation. The government appealed the decision and the Sioux won.
The Indian Claims Commission found that there was a taking in the 1800s. Tribes were awarded $17.7 million plus interest - based on 1800s prices. This sum was subject to an offset for expenses paid by the government in support of the tribes. The tribes disputed the amount of the offset.
The claims took many years to reach completion and the largest of the Sioux tribes notified both its attorney and the court that the attorney’s contract had expired and the attorney was no longer authorized to act for the tribe. In fact, by that time, most of the attorney contracts had expired for all of the groups. The attorneys for the tribes and the court all knew that many tribal members were opposed to the settlement. The Indian Claims Commission and the Court of Claims approved an agreement anyway that was signed only by the attorneys – it included no tribal signatories. The Court of Claims said the settlement of the offset was merely clerical. The tribes did not object for almost 30 years while the claim was being litigated and didn’t offer a substitute attorney so it doesn’t matter that the attorneys didn’t have their client’s consent.
Settlement funds were placed in accounts with the Bureau of Indian Affairs, but thus far, the Sioux tribes have refused to accept the money for the Black Hills. It still sits in accounts maintained by the BIA (provided they didn’t lose it).
An interesting case arose in California in the past several years. The Torres-Martinez Reservation is located on the edge of the Salton Sea. In fact, a portion of the Salton Sea is on the reservation. Flooding from two water districts and Mexican agricultural interests created the Salton Sea in 1905. In 1909, the Torres-Martinez Reservation was created. At the time the reservation was created, everyone believed that the flooding would cease and the Salton Sea would evaporate. This didn’t happen and a portion of the tribe’s reservation is still under water.
In 1982, the U.S. Dept. of Justice filed suit against the water districts for damages to the Torres-Martinez reservation. Nine years later, the U.S. attorneys had not interviewed a single tribal member about the suit. The tribe became impatient and filed suit against the water districts for the flooding and the Justice Dept. for failing to protect the tribe’s interests. What result would you expect?
A federal judge found that the tribe suffered $4 million in damages. The water districts were ordered to pay $3 million. The remainder of the damages were uncollectable because they were caused by Mexican agricultural interests that were not named in the suit. The case was appealed by all parties. While waiting for the appeal to be heard (this could take years), the Justice Dept. reached a settlement with the tribe. The U.S. would give the tribe 11,800 acres that were then under the control of the Bureau of Land Management. The land was not quality land, but while the agreement was awaiting presidential approval, President Clinton took over the White House from George Bush and the deal was tabled.
The Clinton administration modified the offer to the tribe. The offer was now 750 acres of land, of a better quality than that originally offered, and $1 million. This was offered in addition to the $3 million that the water districts were to pay.
In the meantime, there is a state highway that runs through the Torres-Martinez reservation. There are many trucks that travel the highway back and forth to Mexico. The road contained many dangerous curves and the state wanted to straighten the highway. To straighten the highway, the state needed to obtain a right-of-way from the tribe. The tribe refused to grant a right-of-way unless they received a settlement of their land claim. The federal government’s settlement offer was then modified. The new offer was $14.2 million (this includes the $3 million from the water districts) and included an easement to be granted to the water districts to allow for permanent flooding on the reservation of that area encompassed by the Salton Sea. In addition, the tribes could purchase 11,800 acres off-reservation and the land would be treated as if it were a part of the reservation created in 1909. The tribe agreed to this settlement.
The portion of the agreement allowing the tribe to buy land off-reservation was controversial. It was easier to get federal approval to operate a casino on tribal lands that were occupied prior to 1988. It requires approval of the governor to operate casinos on land acquired after 1988. (At the time, Pete Wilson was the governor of California). The Cabazon Band of Mission Indians is well connected politically and was strongly opposed to this provision of the agreement. The fear was that Torres-Martinez would buy land closer to the Palm Springs area than Cabazon. This would allow them to “leap-frog” over Cabazon to reach the closest customer base for their casino. The agreement required a congressional act to complete. Congressman Sonny Bono sponsored the bill authorizing this land settlement. Cabazon lobbied Congress against the bill, and Sonny Bono skied into a tree and died, so the bill authorizing the settlement died as well.
Shortly before the end of Pete Wilson’s reign as governor, he advised the tribe that if they did not agree to the road improvements, the state highway dollars allocated to the project would be released and the highway would not be improved. Since tribal members travel the state highway, they wanted the road improved so they finally agreed to let the road improvements proceed without tying it to settlement of their land claim. The tribe decided at one point that they did not want a casino after all. They would rather subsist by increasing agricultural production on the reservation, and gold mining. There is apparently, what the tribe believes to be, a substantial gold mine on their reservation.
On December 27, 2000, HR 5528 was signed by President Clinton, which finally settled this claim. It provides that the water districts pay the tribe $4 million and that the federal government pay the tribe an additional $10,200,000. The tribe may then acquire land, which will be taken into trust and treated as if it were in trust in 1909. The city or county in which the proposed land acquisition is located has an opportunity to object to the acquisition. The tribe attempted to get a compact with the state of California to offer gaming, but the governor refused to meet with the tribe until September, 2003, when he finally reached an agreement with the tribe.
Eastern Land Claims
Many Eastern tribes have an interesting relationship with the federal government. States wanted to reward tribes for siding with them during the American Revolution so they entered into various agreements with tribes whereby the states received land, often in violation of the Trade and Intercourse Act, and tribes received money and goods. In many cases, the states established a trust relationship with the tribes and the tribes, while recognized by the state, were not recognized by the federal government.
Several Eastern Tribes have asserted land claims based on aboriginal title. In 1974, the Oneida Nation brought a land claim against the State of New York for taking Oneida lands without the consent of the federal government. The U.S. Supreme Court said that a tribe relying on aboriginal title had a federal claim, that is, the tribe had a right to sue under federal law. (Note that they were suing the state, not the federal government). After this ruling, many other tribes filed claims based on aboriginal title instead of treaty rights.
When land claims were filed, they clouded title to lands in the state. Some tribes sued county governments and private individuals to avoid any state claims of sovereign immunity. In most cases, the claimant tribes were not federally recognized. Congress passed settlement acts, such as the Maine Indian Claims Settlement Act and the Connecticut Indian Claims Settlement Act to resolve these claims.
The Settlement Acts treated land transfers that were done in violation of the Trade and Intercourse Act, as if they were made in accordance with the act. They extinguished all Indian claims to the lands and provided for monetary payments to the tribes. In addition, the acts granted federal recognition to the claimant tribes
In the western states, non-Indian settlers arrived so late, that Indian lands were generally taken by treaty or executive order so there is little litigation outside of the Indian Claims Commission.
Indian Landholding Today
Most Indian lands are owned by the federal government and held in trust for the beneficial interest of individual Indians or tribes. Allotments are the only Indian lands that are held in trust for the benefit of an individual Indian. All other Indian trust lands are owned by the federal government and held in trust for the benefit of a tribe. The deeds generally state that they are held in trust for a particular tribe, but in some cases, mistakes were made and there is no indication of the tribe’s beneficial interest. The deed is merely held by the federal government.
Tribes who have economic development on their reservations have purchased some lands. Most tribes then petition the federal government to have the lands taken into trust. This means the deed is changed from the name of the tribe to the federal government for the benefit of the tribe. Why would tribes want to give the federal government land that they have purchased using their own resources? If Indian land is in trust, that is the federal government owns the land for the benefit of the tribe, the state has no jurisdiction to enforce their laws (civil laws in the case of P.L. 280 states) or tax the land. For land to be taken into trust, it must be within the exterior boundaries of the reservation or contiguous to the reservation. Land located away from the tribe’s current reservation may be taken into trust in some cases, but it is very difficult to get this land into trust. The federal government is not eager to take land into trust in recent years, and the BIA has allocated few resources to processing land into trust applications in California. It has taken most tribes many years to get their trust applications processed.
Communally Held Land
If land is held by the federal government for the benefit of a tribe, no individual tribal member has the right to do anything with the land without tribal government approval. The tribal government usually assigns specific plots of land to individual tribal members for home sites. If an individual tribal member buys or builds a house on an assignment, the tribe generally allows descendants to take the house when the individual dies, provided that the descendants are tribal members.
In communally held land systems, non-tribal members have no right to live on the reservation, and do so after the death of a spouse only in reliance on the tribe’s generosity. Non-tribal members, including non-tribal member spouses, have no right to inherit assignments, unless a tribe specifically allows them to do so. (I am not aware of any such tribes).
As you may recall, during the allotment era, tribally held lands were divided into individual farm-sized parcels by the federal government in an attempt to civilize Indians and assimilate them into mainstream American society. Excess land was sold to non-Indians and usually there was at least a small parcel of land that remains in trust for the tribe. Allotment lands are held in trust for the benefit of an individual Indian. They are owned by the federal government in trust and held in perpetuity unless the landowner requests that they be taken out of trust.
Allotted lands can be sold, given away or willed to the person to whomever the allottee chooses, (whether a tribal member or not) subject to approval of the Secretary of the Interior (BIA).
The federal government has no duty arising out of this trust relationship to manage resources on allotments. The individual allottee makes decisions regarding land use.
Canby talks about problems with fractionation of land. Most people die without wills – known as intestate. The individual’s property, including allotments, then pass to his or her heirs in equal shares. For example, if a couple had 5 children, and the couple died without a will, each of the children would own a 1/5 interest in the trust land. If each of those 5 children had 5 children and died without wills, each child (grandchildren of our original couple) will receive a 1/25 interest in the trust land. Taking this example one step further, if each of these 25 people have 5 children, each child (great-grandchildren of our original couple) now has a 1/125interest in the trust land. These interests are undivided. That means that 125 people have to agree as to what is to be done with the land. This is difficult, and often impossible, so many allotments sit vacant.
Congress has tried to take care of this problem. They passed the Indian Land Consolidation Act that provided that if an individual owned less than 2% of an allotment and
the land yielded less than $100 per year, then the land would be owned by the tribe when the individual died. The Supreme Court said this was a taking without compensation in violation of the 5th amendment of the Constitution.
After the Indian Land Consolidation Act was found to be unconstitutional, Congress amended the act to provide that if an individual owned 2% or less of an allotment and the land earned less than $100 in each of the five years prior to the property owner’s death, then the landowner could will their land to other owners of the same parcel. The amendment also gave the tribe the right to adopt its own laws to take care of the problem, subject to the approval of the Secretary of the Interior. In 1997, the Supreme Court once again said this is still a taking because the landowner can’t will the land to whomever they wished.
The latest version of the Indian Land Consolidation Act was passed in November, 2000. It remains to be seen if this version will pass Supreme Court scrutiny.
New Mexico Pueblos
Most pueblos own their land as a result of a treaty with the Spanish and Mexican governments, which the United States has honored. The pueblo lands are held in fee – the U.S. government does not hold title to tribal lands. Fee land means that title is held in the name of the tribe, but they are treated the same jurisdictionally as other Indian reservations. Pueblo land is held communally and cannot be sold or given away without the permission of the federal government.
Alaska Native Lands
Alaskan natives hold their lands under a settlement act with the federal government. The settlement act was passed as a result of Alaskan tribes asserting their aboriginal title to lands that non-Indians wanted to develop. The act eliminated all aboriginal title to Alaska, including hunting and fishing rights. Villages and tribal corporations were formed under state law. Tribal members got shares in the corporations. Specific lands were then given to the corporations in fee. This means that the tribal corporations own the land, not the federal government. The corporations can sell lands but can’t sell stock in the tribal corporation. An additional act was passed that prevented state taxation of undeveloped lands.