>I National Indian Law Library • NILL No. 010070 NARF Legal Review
Eastern Indian Land Claims Part 11: Update on NARF' s Cases After Maine
"My people have never consented to 1/11~ forced sales of their Another problem in the latlcr part of 1982 faci ng Lhrse Ea sl land, nor has the passinr, of y Pars diminishrd our srnsr of in· !'rn trihf's with la nd claims whi ch havr not yrt hrl'll filed in iusticc . .. It was f !t1· desif<' of 011 r pn•df'assors that w1· hold <·011 rl is that a f1·d cral ~ t al 11lt • of limitations law , pott'nlially and maintain the land. It is the desire of the Mashantucket aff<'cl ing these land cl aims, <'X pires at th e end of Lh e year. [t Pequot people to continue to exist on its land as a tribe and to is hopC'd that the stalutl' will he extended, as it has been beforr. be selj-govrrni1t f!,. " - Tribal Chairman Hi f·harcl llaywa rrl ll f hut if it apprars that d 1a 11 (TS fo r S11 <' h an Pxtf' 11 sion an· di 111 - the Mashantucket P <·quol T ribe of Cornwclicut, ll<'a ri ngs 111' 111i11 g, it is <'X jH'l'll'd that 111ost trih<' s will fi le suils to proll'l'l fore the U.S. SPnalr on thf' l\fo shanluckl'l PPquol lndian Claims th<' ir land claims_ Fort11 11a tt ·ly , most havt• al ready donr so and Settlement Bill, 1982. the co 11 rt ~ hav <· pul sornt' ca~r s on hold pending sett lemrnl efforts.
The end of th e Carter Administration may prov <' to have marked a signi fica nt ~ h i ft in thr progn•ss of settlin g tlw ahori gi· nal land daims of the Eastern tribes who, in the l'arly 1970s, " That no sale of lands ma.de by any Indians, or any nation began asserting their rights to lands taken ill egall y from them or tribe o} lndi'.ans within the United States, shall be valid to after passage and in violation of the In di an 1oni nlercourst• nny person or prrsons, or tu any state, whether having the right Act. At the end of his Administration, in October 1980, Presi· o} pre-emption to such lands or not, unless the same shall be dent Carter signed into law the l\Iaine Indian Settlement Act, made and duly executed at some public treaty , held under the which authorized a $81 -milli on-dollar settlement for the land authority of the U nitcd States." U.S. Congress, Trade and I nter· daims of three Maine tribes invoking two-thirds of the Stall'. <;O urse Act, J uly 22, 1790. Settlement of the Maine Indian claims, the largest and most controversial of the dozen or so active claims, gaYr encourage ment to othrr trihrs with claims pending in tlw courts or in NA ]{].' was not onl y lead co uns<·I in the Mairn· caSl' - rl'pn· negotiations. But e\-en as the historical selllement was being sentin g lht· Passamaquoddy and P enobscot tribes - but earlier signed, the advent of th e Heagan Administration put other tribes represented thP Narragansl'lt Tribe of Rhode Island when thei r on notice that future settlements might he even more prolractr rl land <'l aim was surcf'ssfull y sett kd hy federal anrl state legis· and difficult to reach. lation in 197B _ NA Hi; now rt•pn·st·nt s th\' following lril•es in their efforts to have their aboriginal land claims recognized and sett !rd: CONTENTS Wl NTEll 1082 W cstern Pequot Claim: Legislation is pendi ng in Congress to sC' ttle tl1P d aim of the Weste rn Pequots of Connecticut. It wou ld Eastern Indian Claims (P t. II) ----·-· ----- ·------· __ . 1 pro Yicl c $900,000 for the T ribe for economic development and Planned Giving P rogram --· ------·-·-·------·-· --- ·------·-··--- .... __ __ 3 give the Tribe federal recognition status. NARF News ------·- 5 Tunica-!J iloxi Claim_· Now th at NARF has successfu lly as· Pamunkey Contribution ______, ______, __ __ _., ____ _ -- ---·-·- ---- ·- 6 sistcd the Trihe in obtaining frderal recognition, a stumbling Case Developments ------·-----·------· .. ·------.. ------·· 6 Continued on page 4 Corporate O fficers Exec utive Director: John E. Echohawk (Pawnee) Deputy Director: Jeanne S. Whiteing (Blackfeet-Cahuilla) Development Officer: Mary L. Hanewall Native American Rights Fund Treasurer : Susan Rosseter Hart Secrerary- Oran G. LaPointe (Rosebud Sioux) The Ndrive Americ
Other Members: Legislative Liaiso n : Su zan Shown Harjo (Cheyenne.Creek) ReNee Howell (Oglala Sioux) ...... South Dakota Roger Jim (Yakima) ...... Washington National Indian Law Libra ry Patric k Lefthand (Kootenai) ...... Montana Diana Lim Garry (Acoma Pueblo) ...... Librarian Chris McNeil, Jr. (Tlingit ) ...... Alaska Bryce Wildcat (Pawnee·Euchee ) ...... Research Assistant Wayne Newell (Passamaquoddy) ...... M aine Joyce G ates (Seneca) ...... Secretary Leonard Norris, Jr. (Klamath) ...... Oregon Mary Mousseau (S<1n tee Sioux) ...... Librarian Assistant Harvey Paymella (Hopi-Tewa) ...... Arizona Lois J. Risling (Hoopa) ...... California Indian Law Support Center Wade Teeple (Chippewa) ...... M ichigan Anita Remerowski ...... D irector Gloria C uny (Oglala Sioux) ...... Administrative Assistant
National Support Committee Head Bookkeeper: M Founded 111 1970 and lncorpora1ed m Washmglon. D.C * Wc1shing1on, D.C. office srafl members. 2 NARF Initiates Planned Giving Program course, provide legal counsel in such matters. Donors interested in making or changing their NARF has recently initiated a pla nned giving wills or giving substa ntial lifetime gifts wil l want program which will offer informatio n to donors to consult their own attorneys. who would like to consi der making a substantial For further information, contact Marilyn Pour contribution to the Native American Rights Fund, ier at 303/ 447-8760 or write her for more informa especially through a will. Such gifts represent the tion c/o NARF, 1506 Broadway, Boulder, Colo fas test growing area of Ameri can philanthropy ra do 80302. All inquiries are st ri ctly confidential and provide a so und b asis for future su pport to and under absolutely no obligation. orga nizatio ns such as ours. Th ey often provide substantial tax savings to the donor as well as Th e Native America n Rights Fu nd is fortu tremendo us sa tisfacti on by ass uring the fina ncia l na te to have Marilyn future of one's favorite cha rity. Ve ry importantly, Pourier as NARF's first proper pla nning in setting up such a gift results in Planned Giving Coor a well-managed, long-range financial plan for dinator. Marilyn, a the donor. m ember of the Oglala Sioux Tribe of the Pine Beca use of the generous support of CBS, Inc. Ridge Reservation in and the Norman Fo undation, NARF recently has South Dakota, brings been able to add to its staff a Planned Giving to th e position a high Coordina tor-an individual special ly tra ined to level of administrative assist donors w ith more information on making expertise, not only wills and major lifetime gifts. We ca n now pro through her previous work with NARF, but vide the individual w ith the necessary informa also in her for mer ca tion for starting the will-mak ing process. O ur pacity as Office Manager of the Coalition of development staff can also give specific sug ges Indian Controlled School Boards and as Project tio ns for major gifts that will not affect one's Assistan t to the VISTA Project under the Coalition. current income. Transfers of insu rance, rea l es Marilyn has previously been a Project Director for tate, appreciated stock and other va luables might the Johnson-O'Malley Indian Education Program on the Pine Ridge Reservation. She has also all be considered as possibilities for a li fetime worked for her tribe as Secretary/ Assistant to the chari table contribution. Controller, an d as Medica l Records Technician NARF 's new Pl anned Giving Coordinator, w ith th e Indian Hospital in Pine Ridge. In her new Marilyn Po urier, ca n help our donors by provid capacity as Planned Giving Coordinator, she will ing the initial, bas ic informa tion necessa ry to be filling a much needed position in NARF's fund begin putting o ne's estate in order. We cannot, of development program. "President after president has appointed com Annua l Reports, and that is the end of them. It would mission afte r commission to inquire into and report probably be no exaggeration to say that not one upon Indian a ffairs, and to make suggestions a s to American citizen out of ten thousand ever sees the best methods of managing them. The reports them or knows that they exist, and yet a ny one of are ti lled with eloquent statements of wrongs done them, circulated th·oughout the country, read by to the Indians, of perfidies on the part of the the right-thinking, rig ht-feeling men and women of Government; they counsel, as ea rnestly as words this land, wo uld be of itself a campaign document can, a trial of the simple and unperplexing expedi that wo uld initiate a revolution which would not ents of telling truth , keeping promises, making fair subside until the Indians' wrongs were, so far as is bargains, dealing justly in all ways and all th ings. now left possible, righted ." (Helen Hunt Jackson, A These reports are bound up with the Government's Century of Dishonor. 1881). 3 I · tlw Catawlias whi ch purpnrte·dl y !'X ti11 g ui ~ h!'cl thr Catawba claim block to their land claim, pfforts to s<'ltlC" thrir land c-laim in to th eir promised r r!Oe rrnti on. In return, the State was to Loui siana arr now moving alwad. ~l'cure a lll'W res1·rl'ation for the T rihe and pay certain sums of monPy. Howcvrr. the State never fulfill ed its terms of this Schaghticoke Land Claim: After yrars of ne·got1at 1ons. the tr!'aty. defendants ha\·c finall y agreed to a proposed srttlC'm!'nl in this The basis of the Tribe's present land claim lies in the fact Connecticut claim. The settlr mrnt ,,·otild prov idr for 800 acrl's that tlw State treat y was roncludrd in \·iolation of federal law. for the Trihr, for which the la nd owners arr StTking S2.2 million tlwrc·by r<'ndering thl' attempted cx ti(l guishment of the 141J.,OOO dolla rs. The Tribe would also obtain fcdC' ral rrc-ognition and acrrs null and m id. Thr Catawba Tribe has been attempting Public Law 280 jurisdictional status. L1 ·gislation 111ay Ill' in tro· tu ~d ill' its land !'lai111 sinn· thc 1880s. In the 1•arly 1900s. it du cr.d in C:nngrrss in lalt· 1982 or 1•a rl y 19!t1. filf'rl two liti gat ion n·rpwsls with th e• D<'partrnr nt of lntr rio r, to 110 ;1vail. B1·gi1111 i11g i11 j Stockbridge-Munsf'e Claim: This is a claim of thr Stock Ancil'nl Eastern /,and Claims Settlemml Bill bridge-l\'l unsee Indians of Wisconsin to lands in \ c1' York 011 Februa ry 9, 1982, a hill was in troduced in Congress which th<·y rrcriv<'d as a gift from thr Onrida I ndian ~ . llnw whi ch would, if enacted, rrmove fndian suits then in court in· ever, wh en they wen' mo\·ed to Wisconsin, th!'y wen· n<•1 !'I" rnh·ing land claims in N('\v York a nd South Carolina. Thi' compensatrd for thi s land. NA HF fil!-cl a rl'q urst with lht' D!' l1ill wou ld also auth orize thc rcrrtary of the Interior to judg<' partmcnt of the• lnlPrior ask ing lnt!'rior to a!'srrt this claim tlw credibility of thrsc daims; rxtinguish 100% of the value for the Tribe. The request is still pt•11 d i11g with l111i-rior. of till' land cla ims and 95% of their monrlary val ue; and it would all oll' onl y rntai11 claims for S!'l rnorw tary damages 111 Catawba Claim: T he details of this South Carolina claim 1s go to the U.S. Court of Claims. set out below. It is now on appeal from the lowl' r fl'd1•ra l court Because th e· bill wou ld apply lo the Stockbridge-Munsee and which dismissed the Tribe's claim. Oneida claims in New York and th e Catawba claim in South Carolina, and indirectly to the Tunica-Biloxi land claim, NARF Although th e historical and Irgal background differs for racl1 has been inrnlved in the Indian opposition to the bill. NAR F of these lrihal claims. they g1·11 erally han! in common th!' fact atlorneys drafted a legal 11 t!' I11 0randum that was filed with both that the land losses are based upon the 1onintercoursl' Act of Senatr and House commitlC'PS considerin g the bill, laying out 1790, whi ch was enactl'd to prevent t ran sfer of J nd ian lands tlw constituti onal objl'cti ons. Hearings we re held in June in out of Indian ownership wi thou t first obtaining fedt>ral consen t. both the House and Srnate. It is now believed that the bill will The present claim of the Catawba Indians of South Carolina not he reported out of either the Senate or House committees is illustrati\"e of the typr of dealings under ll'hich thr Eastern in this Congress. But th ere is always the possibili ty that its tribes lost vast areas of tlu·ir lands i11 \·iolatio11 of tlw 1\on· s11p portns may r<'introclue·t· il in 1983, and, if so, NARF would intercourse Act and other laws. onct· aga in he occ11picd in opposing its passage. Case Study: The Catawba Claim How far these Eastern Ind ian land claims wi ll proceed dur i.ng In a 1763 treaty with th e south ern coloni es and the King of the Rragan Administration is uncertain, but more difficulty is England, the Catawba Indian Tribe of South Carolina gan up surc·ly e·xpccted sinf'<' land claim settlements inevitably involve possession of over two million acres in exchange for promises federal funding - a difficult hurdle considering the current of a 144,000-acrc• tract to he locatrd 011 the pr!'st·nt hordn of Administration's budget policies. Nevertheless, NARF will con· North and Sou th Carolina. In 1840, South Carolina, without ti11 u!' to press the· claims of its client tribes rega rdless of the the consent of the federal government and therefore in viola difficulties encountered, difficulti es whi ch NARF has faced be· ti on of the Nonintcrcoursc Act of 1790, concl udl'd a treaty wi th fore hut overcame in tlw Narragansett and Maine land claims. 4 NARF NEWS Staff Attorney Changes In the Boulder Office, NARF has three new staff attorneys. Scott McElroy, who joined NARF in April from his position with the Indian Resources Section of the Department of Justice, transferred to Boulder from NARF's Washington office last July. In August, Jeanette Wolfley and J ero me Kim Gott schalk joined NARF as new staff attorneys. Jeanette, of Navajo/ Shoshone-Bannock descent, is a recent graduate of the University of New Mexico Law School and past president of the American Indian Law Students' Association. Kim was formerly with the firm of Fettinger and Bloom in Alamagordo, New ~· Mexico, and worked extensively on behalf of the nearby Mes calero Apache Tribe. Rick Collins resigned in August to ac K im Gottschalk cept a full-time law professorship at the University of Colorado Law School, but he will continue to be associated with NARF on an of-counsel basis. In the Washington office, Lar e Aschen - brenner has departed for a position as Deputy Attorney Gen JPanctte Wolfley eral with the Navajo Nation, and Rick Dauphinais recently transferred to NARF's W ashington office on temporary assign fiction. Mr. Highwater's upcoming books include the Ghost ment. H orse Trilogy, consisting of Legend Days, I Wear the Morning Star, and Kill Hole. Besides his writing, Mr. Highwater lectures nationwide and is active in numerous literary, civic and welfare National Support Committee organizations throughout the United States. H e is also featured Since the last issue of Announcements wos published, Cali in the six-part PBS program titled , " Red , White and Black: fornia Governor Edmund G . Brown Jr. , jazz musician David Ethnic Dance in America," and in another six-part series pro· Brubeck , Indian author Jamake Highwater, and physician duced by Bill Moyers for PBS, "Six Great Wes tern Ideas." He is scientist Dr. Jonas Salk have joined NARF's N ational Support developing several other PBS programs, one of which is a Committee. The Support Committee was established in 1980 cultural history of American Indians titled, "Songs of the Thun and now has a membership of 22 nationally and internationally derbird," a six-part series which he is writing, narrating and known people in the arts, politics, literature and other areas to hosting. ossist NARF in its national fund raising Indian self-government is not a new or radical (3) Condemna tion of Allotments Struck Down policy but an ancient fact. It is not something in Nebraska Distric t Court. On the heels of the Tenth friends of the Indians can confer upon the Indians. Circuit decision upholding condemnation of allotments dis· Nobody can grant self-government to a nybody cussed in the Yellowfish case above, the N ebraska Federal else. We all recall that when Alexander was ruler of District Court ruled that condemnation was not an appropriate most of the known civilized world, he once visited vehicle to obtain rights of way over trust lands in which individ· uals or tribes have an unJivi due process ." The court substantially relied on the arguments in policies which made it difficult for the Indian parents to become the NARF amicus brief (State of Wisconsin u. C hosa, No. involved with and consulted about che school programs and the 80-1903-CR (S.Ct. Wisc., decided July 2, 1982)). problems of Indian students. Because the school distric t refu sed voluntarily to amend its (5) Yankton Sioux Riverbed Case Sent Back policies and procedures to ensure adequate Ind ian parent and to District Court. In September 1981 , the U.S. District student partic ipa tion in the school programs, as required by the Court for South Dakota had ruled that the Yankton Sioux Impact Aid law, the Tribe filed a complaint to compel compliance. Tribe was the rightful owner of the lakebed of Lake Andes After hearings were held and recommendations filed by all located within their original reservation. When the case was parties, the Department of Education ordered a revision in the appealed by South Dakota, the Eighth Circuit Court of Appeals distric t's policies. These were accepted on June 10. 1982. 11-.e declined to rule on the merits of the case and sent it back to the Wetumka experience could aid other Indians in Oklahoma with Dis trict Court in South Dakota for a r uling on whe ther the lake similar problems, and could potentially benefit tribes outside was navigable during certain periods of ti me. T he outcome of O klahoma as well. this case is especially important since it is one of the fi rst court rulings related to the landmark 1981 decision of the U.S. Su· (8) S uit Against Feder a l Agencies Charges preme Court in Montana u. United S tates, which held that 15,000 Valid Claims Threatened to be Lost. A number Montana, and not the Crow Tribe, held title to the bed of the of American Indian tribes and Indian individ uals from throughout Big Horn River within the Crow Reserva tion (Yankton Sioux the United States filed suit on September 23rd in Federal District Tribe u. Nelson (8th C ir.)). Court in Washington, D.C. to preserve thousands of Indian land claims. The claims a re threatened to be lost forever due to decisions and policies of various officials of the Department of (6) S tat es Seel< Supreme Court Review of In Interior, Office of Management and Budget and Justice Depart dian Water Cases. In two decisions issued in February 1982, ment. The 15 ,000 claims are subject to a federal law setting the U.S. Court of Appeals fo r the Ninth Circuit upheld federal December 3 1, 1982 as the deadline fo r bringing the claims to court jurisdiction over Indian wa te r cases in Arizona and court. After that the United States is fo rever barred from Montana in which NARF represents Montana's Northern Chey commencing lawsuits on behalf of Indian tribes and individuals e nne Tribe and the Ft. Mc Dowell Mohave-Apache Tribe in whose lands are affected by this statute. Arizona. T he question of whether state or federal cour ts sho uld The suit fi led on behalf of the Indian tribes and individuals by adjudicate Indian water rights is of critical importa nce to Indian NARF assert s that the fe deral agencies have failed to evaluate, tribes. S ta tes have historically been hostile to Indian right s, and prosecure or resolve the over 15,000 valid claims that have been both Congress and the U.S. S upre me Court have nearly always identified to date. It also charges that these federal agencies have favored federa l courts as the e xclusive forum for deciding Indian ignored a congressional requirement to submit proposals for property iss ues. However, in 1974 the U.S. Supreme Court held legislative resolution of some of these claims. By filing this action, that state courts, under certain circumstances, also have jurisdic· the tribes and individuals are seeking to compel the Departments tion to adjudicate Indian water rights under a 1952 federal statute of Interior and Jus tice to take immediate steps to ensure that the known as the McCarran Ame ndment. claims are not lost. If appropriate action is not taken immediately, In distinguishing the Arizona and Montana cases from the these claims will be eit her abandoned or dealt wit h in an arbitrary S upreme C ourt's 1974 decision, which involved Colorado juris· and capricious manner in violation of the federal government's dic tion over the water rights of the Ute tribes, the Ni nth C irc ui t trust responsibilit y to protect Indian lands and resources ( Coue/o Cour t held that state courts may be precluded from exercising /ndicm Community, et al. u. Watt, et al. !D.D.C., filed Sept. 23, jurisdiction over Indian water rights if the state has provisions in its 1982]). enabling act or constit ut ion which disclaim jurisdiction over Indians. T he Ninth C ircuit also distinguished the Montana cases on the additional ground that there were no exceptional circum stances fa voring state jurisdic tion, and in fact the circumstances in the Montana cases favored retention of federal jurisdiction. NARF Publications & Resources Bo th Montana and Arizona have asked the Unit ed States S upreme C ourt to review the decisions. NARF, along wit h counsel for other tribes in Arizona and Montana, have fi led briefs ANNOUNCEME NTS. NAR F's qua rter ly news · opposing review. The Court will decide whether to review the letter reports on our activities to granters, individual cases when it convenes in October. contributors, clients, the Indian community and others interested in Native American rights. There is no pres· (7) Final Decision Issued in Wetumka S chool en! subscription charge but contributions to help pay Case. The U.S. Departme nt of Education has issued its decision for publication and mailing are very much appreciated. accepting the revised policies and procedures of the Wetumka School District in Oklahoma, which will hopefull y ensure greater part icipation by Indian students and their parents in the Wetumka "Indian Rights, Indian Law." This is a film docu· mentary produced by the Ford Foundation, focusing public schools. Under the federal Impact Aid program, the school on NARF, its staff and certain NARF casework. T he district receives federal funding because of its Indian student population. However, for years Indian parents and the Tribe have hour-long color film can be rented from: Association been concerned about the lack of equal participation of Indian Films, Ford Foundation Fiim, 866 Third Ave., New York, New York 10022 (212-935-4210). 16mm, FFl 10- students in the school program, low achievement levels and the high dropout rate. They were equally concerned with the distric t's $50.00) 7 Thank You For Your Help Requests for Assistance Our work on behalf of thousands of America's Indians Any work undertaken by the Native American Rights Fund, throughou', the country is supported in large part by your whether it be litigation, advocacy or other legal assistance, must generous contributions. Your participation makes a big difference come within the priorities and guidelines established by the in our ability to continue to meet the ever-increasing needs of NARF Steering Committee. NARF's resources, both financial impoverished Indian tribes, groups and individuals. The support and attorney staffing, also determine NARF's ability to accept needed to sustain our nationwide program requires your con· legitimate requests. All requests for legal assistance or inquiries tinued help. Please enclose your contribution wiih the enclosed regarding NARF's services must be addressed to the Deputy coupon or contact Mary Hanewall, Development Officer, at the Director at the Boulder, Colorado office. Boulder office for further information. Jeanne Whiteing, Deputy Director Native A merican Rights Fund "Giving Can Benefit You" 1506 Broadway Boulder, Colorado 80302 We are now able to better assist you by offering information on (303-447-8760) making a charitable gift through your will (see page 00). Not only can such a gift benefit a charitable organization such as ours, but it can eliminate unnecessary costs and taxes to the donor. The Native American Rights Fund has been in existence since 1970 and will continue to exist as long as there is a need for our legal defense of Indian rights. Gifts and bequests in your name will help us to accomplish our objectives on behalf of Native Americans nationwide, not only today but in the years to come. For further information please contact Marilyn Pourier at the Boulder office or check the box on the "Contribution" coupon. Native American Rights Fund 1506 Broadway Boulder, Colorado 80302 Nonprofit Org. U.S. POST AGE PAID Boulder, Colorado Permit No. 589