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Will Miami Return? Tribes and states have wrangled over land since the first treaties were signed

Landowners in east central Illinois aren't alone. Neither are the Indians who are suing for the ground they live on. Throughout the nation, Native American tribes have gone to court to recover ancestral lands they say were illegally taken from them. And in some cases they're winning.

New York, for example, has more cases pending than any other state. The Oneidas are laying claim to 250,000 acres upstate under a treaty they signed with President George Washington. Last year, the federal and state governments reportedly offered $250 million each to settle the claim, but talks collapsed in June. Other members of the Iroquois confederation, including the Cayugas, Senecas and Mohawks, also have gone to federal court over land in that state. In the Cayuga suit, a jury awarded the tribe $37 million in damages. The case is ongoing. The Onondagas, another Iroquois tribe, haven't gone to court yet but say they might.

And the land claims in New York are just the beginning of the story. The Mashantucket Pequots settled for land in Connecticut in 1983. 

The roots of Native American land claims reach back five centuries

Policy toward Indians has resembled a pendulum swinging between self-governance and paternal control

 

1532-1789 
Pre-Constitutional Period: The beginning of federal Indian law on tribal rights to land has been traced to a 1532 legal opinion requested by the emperor of Spain. The emperor was advised that Indian tribes must consent before Europeans could legally acquire title to their land. Colonial powers signed treaties with Indians for that land, thus recognizing the tribes' ownership rights. Whether formal treaty-making meant the colonists recognized tribes as "sovereign nations," however, remains a central debate.

1789-1871 
The Formative Years: The U.S. Constitution, adopted in 1789, increased federal control over Indian tribes. Congress immediately established a comprehensive program regulating Indian affairs. The Indian Trade and Intercourse Act, passed in 1790, brought virtually all interaction between Indians and non-Indians under federal control. One of the law's provisions, central to current land claim cases in New York, prohibits the conveyance of Indian land without federal approval. The U.S. government, during the formative period, removed many tribes to Indian reservations established through treaties. The Indian Removal Act, passed in 1830, authorized the president to exchange territory west of the Mississippi River for tribal lands in the East.

 

1871-1928 
Allotments and Assimilation Period: Congress provided in 1871 that the United States would no longer make treaties, which require only Senate consent, with Indian tribes. Instead, the government would deal with Indians through legislation, which also requires House approval. The General Allotment Act, passed in 1887, gave the Bureau of Indian Affairs authority to convert communally held tribal lands into small parcels for individual Indian ownership. Such allotments were held in trust by the federal government. More than 90 million acres were taken from the tribes and given to white settlers. Partly as a way to expedite assimilation of Indians into mainstream society, all Indians were made United States citizens in 1924.

 


By Aaron Chambers from a handbook on state/tribal relations written jointly by the National Conference of State Legislatures and the National Congress of American Indians; Federal Indian Law by David Getches and Charles Wilkinson; Felix Cohen's Handbook of Federal Indian Law; and interviews.


1928-1945 
Indian Reorganization Period: The Meriam Report, published in 1928, criticized the paternalistic administration of Indian policy and its detrimental effect on Indian life and self-sufficiency. The report concluded the goal of Indian policy should be to encourage positive aspects of Indian culture. Congress ended allotment with the Indian Reorganization Act of 1934. The law, which implemented some recommendations of the Meriam Report, sought to promote self-government by encouraging tribes to adopt their own constitutions, established a revolving loan fund for tribal development and allowed the secretary of the Interior to accept additional tribal land in trust.

 

1945-1961 
Termination Period: Termination has been described as "the most concerted drive against Indian property and Indian survival since the removals following the acts of 1830 and the liquidation of tribes and reservations following 1887." Fed up with policies designed to preserve Indian heritage and revive tribalism, some on Capitol Hill called in the 1940s for the repeal of the Indian Reorganization Act. Congres: passed a law in 1953 that imposed civil and criminal jurisdiction on several tribes. Federal programs for Indians were cut. Policies generally attacked tribal self-governance and emphasized speedy assimilation of Indians.

1961-present 
Self-Determination Period: Beginning as early as 1958, policy-makers' attitudes toward tribes began to shift. "Both as a matter of justice and as a matter of enlightened social policy, we must begin to act on the basis of what the Indians themselves have long been telling us," President Richard Nixon wrote to Congress in 1970. "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." The Indian Civil Rights Act of 1968 extended most of the protections of the Bill of Rights to tribal members in dealings with their tribal governments. The law also permitted states to transfer jurisdiction back to tribes and the federal government. The period has been characterized by expanded recognition of tribal self-government and exclusion of state authority from reservations. Indian tribes, meanwhile, won several legal victories which gave them, for example, more room to sue in federal court to recover lost ancestral lands.

 


suing landowners there in the 1970s. They're still fighting for more land. Tribes in Maine, Rhode Island and Massachusetts settled land claims out of court. And in Illinois, the Miami Tribe of Oklahoma is suing for some 2.6 million acres in the Urbana-Champaign area along the eastern side of the state.

Disputes over ancestral land are nothing new, though. Tribes and states have wrangled over land since the first treaties were signed. But in recent years, federal courts have given Native Americans more leeway to sue.

"There's been a proliferation of suits, and that's largely because, in modern times, courts have ruled that the tribes themselves, for a variety of reasons, have the right to go into federal court and sue on these claims without the United States [government as a party]," says Arlinda Locklear, an attorney for the Oneidas.

Besides hiring top legal talent to pursue land claims, tribes also have gotten more involved in politics. They're supporting candidates they like and opposing those they don't. Beyond key court decisions backing Indian claims, this recent activism, observers say, can be attributed to changes in federal policy favorable to Native American movement toward economic and cultural self-determination. And it has likely been fueled by growth in casino-generated revenues.

Here in Illinois, the Miami sued landowners in each of 15 counties last June. The tribe contends the land belongs to them under an 1805 treaty and that they never ceded it to the United States.

As in other states, this land claim has been tied - by critics, the media and the tribe - to gambling. Landowners and others allege the Miami want a casino in Illinois and are using the suit as leverage to win a few acres for Indian gaming. Chief Floyd Leonard indicated last summer the tribe might be willing to settle the lawsuit for a casino, but the tribe has otherwise been tight-lipped about its interests.

Gaming has clearly helped revitalize tribes in other states. Still, tribal groups downplay any dependence the tribes have on gaming, saying it's only one tool of economic development. "Everybody looks at Indian gaming and, in my mind, Indian gaming is only one aspect of the whole self-determination movement," says John Dossett, general counsel to the National Congress of American Indians. "The tribes are moving forward on a whole bunch of ways to bring economic development to their reservations. Some of the tribes that do the best aren't doing it with gaming; they're doing it the old-fashioned way, with natural resources like timber and gas."

Meanwhile, state Attorney General Jim Ryan's office wants to intervene as a defendant in the Miami case so the state can move to get it dismissed. But U.S. District Judge J. Phil Gilbert has questioned whether the state can join the case without waiving its sovereign immunity. If the state waives immunity, it could put its own assets in the targeted area at risk, including most of the campus of the University of Illinois at Urbana-Champaign and Eastern Illinois University in Charleston. The judge is reviewing the state's argument that it can intervene while retaining immunity.

The land claim also has captured the attention of other state officials. Gov. George Ryan in February signed legislation to pay $100,000 toward the landowners' legal fees. And a bipartisan group of four Illinois congressional lawmakers, U.S. Sens. Richard Durbin of Springfield and Peter Fitzgerald of Inverness, Rep. Timothy Johnson of Sidney and U.S. House Speaker J. Dennis Hastert of Yorkville, have proposed legislation aimed at shielding landowners from the claim.

Like the Miami case, land claims in other states involve treaties the Indians claim confirm their title to disputed land. But there are some significant differences.

The Oneidas, who have a small reservation in New York but want more land, claim that state violated federal law in 1795 when it signed a treaty with the tribe's ancestors. The Seneca, Cayuga, Mohawk and Onondaga claims in New York involve similar scenarios. In Connecticut, the Pequots alleged that state violated federal law when it took land from their ancestors in 1856.

The key difference between those cases and the claim in Illinois is that the Miami have made no allegation that the state violated federal law.

The New York claims involve a 1790 federal law, the Trade and Intercourse Act, which prohibits states or other parties from conveying land from Indian tribes without Congress' consent. And they rest on agreements the state subsequently made with the tribes without that consent. Though the Miami raised the so-called Non-Intercourse Act in their complaint, they argue that the United States - not the state of Illinois - "forcibly removed" them in 1846 from Illinois to Kansas and later Oklahoma. And they contend the federal government never extinguished their title to the land and, therefore, the current occupants are trespassing.

"The land could not be transferred - by purchase, gift, trade, abandonment, force, deceit or trick - away from the Miami tribe without the specific consent and approval of the United States expressed through a treaty or convention adopted pursuant to the [U.S.] Constitution, or pursuant to an unambiguous act of Congress," attorneys for the Miami write in their complaint.

In the New York cases, the federal government intervened on behalf of the tribes to help them recover the land. Cristine Romano, a justice department spokeswoman, says the government joined the cases because, under the doctrine of federal trust responsibility, it's obligated to protect tribal interests. It also intervened, she says, to prevent the state from asserting its sovereign immunity to drop out of the suit. Had the state dropped out, then individual landowners would have been left to defend the land claims on their own.

Some argue, however, that the federal government appeared to be motivated by another interest: prosecuting the state's violation of federal law. As a result, they say, the Miami's claim is unlikely to get the full force of the federal government behind it and comparing it to claims in New York is like comparing apples and oranges.

"Here in Illinois, there's no allegations of a state treaty," says Mark Warnsing, legal counsel to Gov. Ryan. "There's no allegation of the state negotiating with the tribe in violation of federal law. There's no allegation that, at the time, Illinois citizens were shoving tribal members off of their reservation or off of tribal property. There's just a federal treaty, which the tribe claims was never subsequently extinguished. But yet the federal government went ahead and issued land patents [documents used to convey public land into the private domain], which all of our property owners can trace title back to."

Romano says that while federal prosecutors have raised New York's violation of federal law, the issue was not the primary factor that motivated the government to join those cases. Further, she would not speculate on whether the Justice Department will join the Illinois case.

One thing's for sure: The legal wrangling is probably just getting started. Landowners in New York note that the Oneidas filed their suit in 1970. The Pequots, officials in Connecticut say, initiated their claim in 1976. "It is our opinion that your attorney general's office has not a clue about what they are up against," Scott Peterman, president of Upstate Citizens for Equality Inc., a New York group opposed to the Oneida claim, wrote in a letter to Illinois landowners. "Their motion [to intervene] will be dismissed and the circus will begin."

The formal rights of tribes to land has been traced by scholars to a legal opinion requested by the emperor of Spain in 1532. He was advised by Francisco de Victoria, a Spanish intellectual and academic, that Indians would need to consent before the colonists could legally acquire their land. Thereafter, colonial powers signed treaties with Indian tribes for land, thus recognizing their ownership rights to it. By the time of the American Revolutionary War, it was accepted that Indians held "aboriginal title" to their ancestral lands and that no one could take the lands without their consent.

The U.S. Constitution, adopted in 1789, brought Indian relations within the exclusive province of federal law. The U.S. Supreme Court has on several occasions recognized the tribes' aboriginal title to land. And courts today are still dealing with disputes over land once held by the tribes, shaping the already enormous and complex body of federal Indian law.

As recently as 1974, the U.S. Supreme Court held that the Oneidas could sue under common law to vindicate their aboriginal rights. Then in 1984, the top court ruled that the Oneidas weren't barred from maintaining the action, even though 175 years had passed since the state violated its possessory rights. "One would have thought that claims dating back for more than a century and a half would have been barred long ago," the court wrote. "As our opinion indicates, however, neither [the counties named as defendants in the suit] nor we have found any applicable statute of limitations or other relevant legal basis for holding the Oneidas' claims are barred or otherwise have been satisfied."

But as Indians move to regain their standing as independent nations, they are finding that the law, and politics, are adversarial processes. As in Illinois, each effort by tribes to recover land has provoked a backlash from non-Indian landowners who risk losing property and from local governments that risk losing revenue from virtually tax-exempt Indian lands.

Because federally recognized Indian tribes are considered sovereign nations, the ability of states to regulate reservation activities and tax reservation commerce is limited. Circumstances vary from tribe to tribe, but, in many cases, reservation residents don't pay property taxes and businesses on the reservations don't collect sales taxes. (There are different laws governing Indians and non-Indians living, working and purchasing on reservation land.) Local zoning ordinances passed by neighboring communities, in some cases, don't apply to the tribes, either.

In Illinois, the acquisition of well over two million acres, most of it productive farmland, by the Miami could surely mean a sizable tax hit for many communities and for the state. Not to mention the bite it could take out of Illinois' agricultural economy.

Those who support Indian rights say sovereignty is key to preserving the tribes' governments, history and culture. But critics say the time has come to abrogate the tribes' sovereignty and move Indians into mainstream America. They argue tribes are taking advantage of their unique status.

"If you start looking at the unfair tax advantage of these Indian tribes and guys [investors and developers] that are backing them, people are going to get wise that this isn't about heritage, history and background," says Nicholas Mullane, first selectman of North Stonington, Conn., which borders the Pequot reservation. "It's about how to make money and have tax shelters."

Mullane says North Stonington is swamped with traffic to the Foxwoods Resort and Casino, which is operated by the Pequots. With increased traffic comes increased crime. He also complains of lost tax revenue from the casino. But Bruce MacDonald, a tribal spokesman, says the tribe "has tried very hard to be a good neighbor." He says that under a compact his tribe arranged with the state and another tribe, the two tribes last year tunneled more than $300 million into the state treasury.

The abrogation and assimilation issues are familiar to those on both sides of the debate. The federal government, in its policy toward Indian tribes over the centuries, has vacillated between emphasis on tribal independence and disintegration of tribal nations.

The current era, known as the self-determination period, has been characterized by policies that encourage tribal self-governance. The previous era, called the termination period, emphasized tribal termination and assimilation.

The termination policies were abandoned in the 1960s, observers say, due to a resurgence of tribal government activity and a recognition that termination policies spelled economic and cultural disaster for tribes. In the years that followed, Congress extended numerous protections to Indians and restored various powers that had been stripped away.

Now critics are again calling for termination. They say some tribes have taken advantage of sovereignty to develop business enterprises against which non-Indians can't compete. And they accuse the tribes of using sovereignty to shield themselves from otherwise legitimate claims under the law. The Chronicle, a Centralia, Wash.-based newspaper, called in an April 1998 editorial for the end to tribal immunity. "Our federal government and every state and local government have substantially abolished sovereign immunity, an ancient legal doctrine protecting governments from being sued by citizens," the newspaper wrote. "This allows people who are wronged by these governments to have their day in court."

Legal experts say tribal sovereignty, as it's recognized today, predates the arrival of Europeans to this country. While it has been affirmed by the U.S. Constitution and case law, they say, sovereignty is an inherent power enjoyed by the tribes. Steven Tullberg, director of the Washington office of the Indian Law Resource Center, calls any suggestion that Indians should relinquish their sovereignty "a fundamentally discriminatory and bankrupt idea."

"In almost every case where people sit down and examine what is behind these kinds of demands, there is a notion that the non-Indian community has superior values, superior rights, superior notions of who they are," he says. "And this notion of superiority results in some rights and powers for them to impose on other people what they consider to be important at the moment. Whenever we see or hear of this kind of construct of superior and inferior peoples, we're talking about racial discrimination."

The Miami's land claim has not yet given way to debate over tribal sovereignty or racism. Or even the potential loss of tax revenue. Still, the case is, officially, less than a year old.

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