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NA3 Ai *ty »|.'C5 0/ n. a % c Doc 3/-> COMPREHENSIVE PLAN VOLUME HI THE IMPACT OF LAND TENURE Eastern Band of Cherokee Indians . STANDARD TITLE PAGE 1. Report No. 3. Recipient's Catalog No. FOR TECHNICAL REPORTS 4. Title and Subtitle 5. Report Date COMPREHENSIVE PLAN - VOLUME III August, 19 7^ THE IMPACT OF LAND TENURE EASTERN BAND OF 6. Performing Organization Code CHEROKEE INDIANS 7. Author(s) 8. Performing Organization Rept. No. EBCI Planning Board - June Myers 9. Performing Organization Name and Address 10. Project/Task/Work Unit No. N.C. DEPT. NATURAL & ECONOMIC RESOURCES DIVISION OF COMMUNITY SERVICES 11. Contract/Grant No. P.O. BOX 27687 - RALEIGH, N.C. 27611 CPA-NC-04-i9-103$ 12. Sponsoring Agency Name and Address 13. Type of Report 8. Period Covered Department of Housing and Urban Development 451 Seventh Street, S.W. FINAL Washington, D.C. 20410 14. Sponsoring Agency Code 15. Supplementary Notes 16. Abstracts This study. The Impact of Land Tenure, is the element of the Eastern Band of Cherokee Indians' Comprehensive Planning Program which Identifies the dominant socialistic problem, that of a complex and unique land possession system. Before the planning process can proceed, the land system must be understood In relation to its impact on the decision-making process and potential restraints 17. Key Words and Document Analysis, (a). Descriptors 17b. Identifiers/Open-Ended Terms 17c. COSATI Field/Group 18. Distribution Statement 19. Security Class(This Report) 21. No. of Pages UNCLASSIFIED 255 ^.Security Class. (This Page) 22. Price UNCLASSIFIED Form CFSTI-35 (4-70) THE IMPACT OF LAND TENURE EASTERN BAND of CHEROKEE INDIANS PREPARED FOR: Eastern Band of Cherokee Indians John A. Crowe, Principal Chief Leroy Wahnetah, Vice Chief Jerome Parker, Advisor Tribal Council Joe Bradley- Jonathan Ed Taylor Gerard Parker Edmund Youngbird Bertha Saunooke John Young Tom Bradley Wilbur Sequoyah Bill Ledford Dan McCoy Bailey Coleman Albert Martin PREPARED BY: Cherokee Planning Board Joe Bradley Jim Cooper John A. Crowe Bill Ledford June Maldanado Dan McCoy Frell Owl Bertha Saunooke Arnold Wachacha Bob Blankenship, Executive Director Patricia Smith, Secretary TECHNICAL ASSISTANCE PROVIDED BY: North Carolina Department of Natural and Economic Resources James E. Harrington, Secretary- Division of Community Assistance Robert S. Ewing, Director Community Services Section Harold E. Strong, Chief Western Field Office, Asheville, N.C. Michael Geouge, Chief Martha Ramsey, Asst. Field Office Chief June Myers, Planner-in-charge Herman Rector, Draftsman Jim Thompson, Draftsman The preparation of this report was financed in part through an urban grant from the Department of Housing and Urban Development, under the provisions of Section 701 of the Housing Act of 1954 as amended, Digitized by the Internet Archive in 2012 with funding from LYRASIS members and Sloan Foundation http://www.archive.org/details/comprehensiveplav3cher TABLE of CONTENTS » Page Number Introduction 1 Chapter 1. Indian Land Tenure Policy 7 During the Colonial Period Chapter 2. Agitation for Removal 19 Chapter 3- Compulsory Removal 31 Chapter 4. The Trail of Tears 43 Chapter 5- North Carolina Cherokees 51 Chapter 6. Land Use Controls Applicable to the 71 Lands of the Eastern Band of Cherokee Indians Appendix A. Handbook of Indian Land Policy 87 and Manual of Procedures Appendix B. Cherokee Land is Not a Reservation 131 Appendix C. Contents of Land Contracts 139 Eastern Band of Cherokee Indians Map Lands Owned by the Eastern Band of Cherokee Indians 57 INTRODUCTION A survey was conducted by personal interviews to determine the more important social related problems facing the citizens of the reservation that also have an impact on the decision-making process involved in the planning program. Of these type problems not discussed in the Population and Economy Study, the complexity of the legal status of the land stands out as the dominant problem most difficult to deal with. The majority of other problems re- lating to the planning program and the decision-making process involved, revert to questions of land tenure and legal control. Physical land development considerations will be discussed with detail in the Land Use Analysis. Pursuant to the provisions of the Act of June 4, 1924, all Tribal Lands owned by the Eastern Band of Cherokee Indians under the corporate charter were conveyed to the United States in trust on July 21, 1925. Today these lands comprise 56,572.80 acres of which 5,571«00 acres are tracts in Cherokee County; 2,249.00 acres are tracts in Graham County; 80.00 acres are located in Haywood County; 19,267.00 acres are located in Jackson County and 26,066.57 acres are located in Swain County. In addition, 139.23 acres in Swain County are used by the Federal Government and are either set aside by Secretarial Order for Government use under provisions contained in section 5 of the Act of June 4, 1924, or the title is " held in fee-simple by the United States Government. The area of realty demonstrates most vividly the unique nature of the legal situation on the reservation. The Tribe accepted the provisions of the Indian Reorganization Act (generally known as the Wheeler -Howard Act of June 18 , 1934) , but never organized under the provisions of the Act, In a statement which these Cherokees sent to Congress endorsing the Wheeler-Howard Bill, then pending, they said: "Under our charter we have been able to live, man- age our individual affairs, and operate and conduct all the business of the tribe in a satisfactory manner. We see little or no need to change our organization in- asmuch as the present charter is sufficiently flexible to meet any and all questions." The Federal reaction to the Cherokee statement recorded in the Land Planning Report published in November, 1934, was: "Their mode of life under corporate ownership has been so successful that one of their more immediate problems has been to protect themselves from legis- lation which would admit outsiders to share their estate, As noted, the Eastern Band of Cherokee Indians operates under the Charter issued to the Tribe by the State of North Carolina. Section 22 of said Charter authorizes the Tribal Council of the Eastern Band of Cherokee Indians to determine the management and control of all property, real and personal belonging to the Tribe as a corporation. The Council throughout the succeeding years has passed many resolutions designed to regulate and control the real property of the tribe, nevertheless the Council continues to be overburdened with land related decisions or resolutions. The lack of an effective judiciary has posed tremendous problems and the terms of the resolutions have generally not been enforced due to this lack of judicial organization. All land transactions and probate proceedings are executed under the mixed jurisdiction of the Tribal Council and the Bureau of Indian Affairs, North Caro- lina law is usually referred to as precedent but not necessarily as legal authority. All land disputes between individual poss- essory holders and between heirs to real property rests primarily within the Council. The Bureau of Indian Affairs tries to respect the requests and decisions of the Council. There are few accurate descriptions of the possessory holdings as recognized by the Tribe, and this is a major reason for numerous disputes over boundary lines. Normally, when a dispute is brought before the Tribal Council, the Council will direct its land Commit- tee, with the survey crew (Bureau of Indian Affairs) to proceed to the disputed site and settle the differences according to the wishes of the parties in disagreement. Because every individual dispute between possessory holders must be resolved to the full satisfaction of all parties involved, survey crews will often be delayed for months concerning a single dispute which is frequently over a few feet of land. Tribal resolutions require surveys of each assignment of pos- sessory holding before being issued and before the transferral be- tween members of the Band. Mapping and plotting has been under way for several years, but no one is very sure as to what percent- age of the present possessory holdings have actually been recorded by the survey crews. The process is extremely slow and somewhat frustrating to the possessory holder and transferee. The Realty Department of the Bureau of Indian Affairs has reported a back- log of requests for surveys to be as many as three or four hun- dred at one time s Land in dispute figuratively becomes static or inactive as it cannot (while in dispute) , be transferred, leased, or developed. With the great number of possessory holdings being in dispute and the even larger number of unfilled survey requests, the planning process must consider both active and inactive land in terms of immediate, short-range and long-range development. Improvements of the existing land administration operations is necessary to relieve the pressures on the Tribal Council, the Land's Committee, the survey crews, the Bureau of Indian Affairs and most impor- tantly, the possessory holder. In order to resolve a problem, the problem must be understood. As with the complexity of the land situation of the Eastern Band of Cherokee Indians, it took years, many incidents, numerous broken treaties and scores of other events to evolve a land status situa- . tion unique only to the Eastern Band of Cherokee Indians. The first five chapters of this study are devoted to the history of how the Cherokee land came to be in its present state of intricate complexity. The next chapter deals with the legality of land use controls with the Eastern Band of Cherokee Indians and is the opinion of Ben 0. Bridgers acting as the Cherokee Tribal Attorney and specifically under contract with the State of North Carolina to perform what is first published in chapter six of this study.
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