4
THE EARTH IS OUR MOTHER

Struggles for American Indian Land and Liberation in the Contemporary United States

The inhabitants of your country districts regard—wrongfully, it is true— Indians and forests as natural enemies which must be exterminated by fire and sword and brandy, in order that they may seize their territory. They regard themselves, themselves and their posterity, as collateral heirs to all the magnificent portion of land which God has created from Cumberland and Ohio to the Pacific Ocean.

—Pierre Samuel Du Pont de Nemours letter to Thomas Jefferson,
December 17, 1801

SINCE THE INCEPTION OF THE AMERICAN REPUBLIC, AND BEFORE, CONTROL OF land and the resources within it has been the essential source of conflict between the Euroamerican settler population and indigenous nations. In effect, contentions over land usage and ownership have served to define the totality of U.S./Indian relationships from the first moment, shaping not only the historical flow of interactions between invader and invaded, but the nature of the ongoing domination of native people in areas such as governance and jurisdiction, identification, recognition, and education.1

The issue of a proprietary interest of nonindians in the American Indian landbase has also been and remains the fundament of popular (mis)conceptions of who and what Indians were and are, whether we continue to exist, and even whether we ever “really” existed.2 All indications are that these circumstances will continue to prevail over the foreseeable future.

As should have become quite evident in reading the essay entitled “The Law Stood Squarely on Its Head” in this volume, a rather vast amount of intellectual energy has been expended by Euroamerican legal theorists over the years in an unending effort to make the armed expropriation of native land on a continental scale seem not only “natural” and therefore “inevitable,” but “right and just,” which is to say “lawful.”3 All questions of jurisprudence aside, the hegemonic function embodied in any such trajectory of legalistic rationalization is unmistakable.4 Plainly, the exercise has been harnessed not to the task of extending and perfecting the set of humanitarian and explicitly anti-imperialist principles to which the United States laid claim in 1787, but rather to a diametrically opposing purpose. Meanwhile, it has been all along insisted that the opposite of this opposite is true. The result can only be described as comprising, at best, an unremitting juridical subterfuge.5

While this pattern of prevarication has always worked well enough within what the U.S. has proclaimed as its own domestic sphere, the situation became considerably more complex during the early-to-mid-twentieth century, during the course of the country's emergence as a bona fide world power.6 In the main, the objective of American foreign policy during this period can be seen as an undermining of the conceptual cornerstones by which the “classic” European mode of external colonialism was purportedly legitmated,7 thereby creating openings in the former colonies comprising what has become known as the Third World for a more refined form of neocolonial exploitation at which the United States all along figured to excel.8 The trick, of course, was to devise some practical means of discrediting Europe's conquest/colonization of peoples abroad that would not simultaneously demolish the inherently self-contradictory justification(s) with which America larded its continuing subjugation of indigenous nations within its “home” territory.9

The crunch came in 1945, when the U.S. sought to assert its “moral leadership” on a planetary basis by formulating and forcing upon its allies a plan to prosecute surviving officials responsible for nazi expansionism during World War II.10 Charged with having committed “Crimes Against Peace,” “Waging Aggressive War,” and “Crimes Against Humanity” as a result, the Germans initially professed a certain bewilderment, their first line of defense being that they’d done nothing the United States itself hadn’t done to American Indians.11 Although the presiding judges dodged this bullet by accepting at face value the transparently false assertion advanced by U.S. representatives that, unlike Germany's gunpoint expropriations, their own country's territorial acquisitions had occurred mainly by purchase and always with the consent of prior owners (i.e., through treaties of cession),12 America's vulnerability to allegations that it was in many respects no better than the Third Reich was glaringly apparent.


THE INDIAN CLAIMS COMMISSION

One upshot of this circumstance was the abrupt passage, on August 2, 1946, of an act establishing what was dubbed the “Indian Claims Commission” (ICC), an entity mandated to review all outstanding grievances expressed by native peoples within the U.S. “domestic” sphere concerning wrongful takings of our property.13 The idea was plainly to put the United States, however belatedly, on precisely the footing it had already announced it stood, thus creating an appearance that the U.S. record was decisively distinct—or at least distinguishable—from that of the nazis it was busily hanging in Nuremberg.14 As President Harry Truman insisted when he signed the bill into law on August 13, creation of the ICC was intended to make “perfectly clear what many men and women, here and abroad, have failed to recognize, that… [I]nstead of confiscating Indian lands we have purchased from the tribes that once owned this continent more than 90 percent of our public domain (emphasis added).”15

Predictably, all bets attending this international public relations gesture were from the outset carefully hedged.


Under such circumstances, it was expressly anticipated by federal legislators that all outstanding claims would be “remedied” within five years and for a relatively paltry sum.22 In the process, it was expected that the documentary basis for U.S. title assertions would be clarified, parcel by parcel, once and for all. Any other course of action would have, in the words of Henry M.Jackson, Chair of the Senate Subcommittee on Indian Affairs, “perpetuated clouds upon white men's title that [might] interfere with development of our public domain.”23

Viewed in even the most favorable light, then, the 1946 Act had nothing to do with the dispensation of justice, as its apologists have claimed.24 Rather, it was at best a self-serving “clean-up measure,” affording federal authorities an opportunity to reconcile their own ledgers in terms of real estate.25 More to the point, awards of compensation by the ICC were coupled to what North Dakota Senator Karl Mundt described as America's “permanent solution to the Indian problem,”26 a procedure wherein, having forced upon them payment of a pittance in exchange for property they never wished to sell, Congress followed up by “terminating” its relationship with more than a hundred native peoples, professing thereafter to consider them “extinct” (see “Like Sand in the Wind,” herein).27

At that, however, the congressional notion of how quickly the commission's role in “getting the U.S. out of the Indian business” might be wrapped up proved absurdly shortsighted.28 While legislators had estimated that at most 200 claims would be presented for consideration, a total of 852—implicating well over half the territory of the 48 contiguous states—had been filed with the ICC by the time its original charter expired at the end of 1951.29 Of these, a mere 26 had been acted upon, and so the ICC was extended for a second five-year period, then a third.30 Its lifespan was extended several more times, until finally, in 1978, the commission was abruptly dissolved. At that point, there were still 68 cases pending.31

There were, to be sure, substantial reasons underlying this interesting development. As early as 1956, Justice Department personnel assigned to refute claims brought before the ICC, were warning that if it were carried through to its conclusion, the process was likely to produce the opposite of its intended result.32 Unable to discern a legal or documentary basis upon which to defend the federal interest in scores of cases, they had already resorted to a strategy of seeking to delay the whole procedure, requesting some 5,000 extensions of time in which to file their various pleadings between 1951 and 1955.33 This clearly obstructionist technique had been perfected to such an extent by 1960 that the ICC's chief commissioner—a former senator and staunch terminationist named Arthur Watkins—complained of “U.S. Attorneys obtaining 35 separate continuances in a single case.”34 More than a decade later, in 1971, Watkins’ successor, Jerome Kykendahl, noted that “federal lawyers” had sought 6,451 days-worth of extensions in active cases over the preceding eighteen months.35 By the mid-1970s, the source of discomfort among the Attorney General's whiz kids had become apparent for all to see. Try as they might, and no matter how many eminent historians and other archivists they enlisted in the effort, they could muster no evidence that the United States had ever enjoyed a legal right to possess about 35 percent of the continental territory over which it professed “lawful jurisdiction” (see Figure 4.1).36 Overall, as Russel Barsh has summarized:

The fact is that about half the land area of the country was purchased by treaty or agreement at an average price of less than a dollar an acre; another third of a [billion] acres, mainly in the West, were confiscated without compensation; another two-thirds of a [billion] acres were claimed by the United States without pretense of [even] a unilateral action extinguishing native title.37

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FIGURE 4.1. Indian lands judicially recognized as unceded.

Thus, although the aggregate acreage encompassed within reservation boundaries added up to about 2.5 percent of the total comprising the 48 contiguous states, American Indians remain in a rather straightforward sense the rightful owners of about “one-third of the nation's land.”38 This proportion, moreover, does not include areas to which U.S. title is predicated upon fraudulent treaties or agreements,39 or those into which native peoples entered under extreme coercion.40 Nor does it address the implications of America's history of noncompliance with reciprocal provisions in treaties of cession which might otherwise be considered valid.41 Were U.S. title to territory acquired under such circumstances to be considered null—as, legally, it must—then well over half the country's continental holdings would have to be viewed as “Occupied America.”42

In other words, it was the nazi defendants at Nuremberg—not Robert H.Jackson, the Supreme Court Justice who prosecuted them, or Francis Biddle, the former Attorney General who sat in judgment of them in behalf of the U.S.—who had it exactly right.43 As to Jackson's famous pronouncement, offered in the course of the trial at Nuremberg , that the United States was “not prepared to lay down a rule of criminal conduct against others which we are not willing to have invoked against us,” well, some things speak for themselves.44 No less, Harry Truman's bald 1947 assertion that “it should be perfectly clear…that in our transactions with the Indian tribes we have [always] set for ourselves the standard of fair and honorable dealings, pleadging respect for all Indian property rights.”45


CRACKS IN THE EMPIRE

Well before the ICC process was finally aborted, some American Indians had begun to home in on the vulnerabilities in the U.S. position exposed during the commissioners’ efforts to “quiet title” to the country's purported domestic landbase. As was pointed out by Vine Deloria, Jr., all the commission managed to do in most instances was “update the legal parity” of indigenous property rights by “clearing out the underbrush” previously obscuring an accurate appreciation of who actually owned what in the U.S. portion of North America.46 Seen in this light, the monetary awards made by the ICC assume more nearly the form of “back rent” payments on native lands used by the United States than a “resolution” or “settlement” of indigenous property interests.47

Such knowledge fueled a resurgent indigenous national militancy which, with emergence of the American Indian Movement (AIM) during the early 1970s, has led to a series of spectacular extralegal confrontations over land and liberty with federal authorities (several of them are covered in “The Bloody Wake of Alcatraz,” herein). These, in turn, have commanded the very sort of international attention to U.S. territorial claims, and Indian policy more generally, that the ICC was supposed to avert.48 After 1977, Native North Americans—spearheaded for a time by AIM's “diplomatic arm,” the International Indian Treaty Council—have been able to escalate this trend by putting their issues before the United Nations, entering annual reports of official misconduct in both the U.S. and Canada towards native peoples and our lands.49

In this changing context, the federal government has once again begun to engage in “damage control,” allowing a calculated range of concessions in order to bolster what it seeks to project as its image abroad. Notably, in 1974, the U.S. Supreme Court announced for the first time that American Indians have a right to pursue the actual recovery of stolen land through the federal judiciary.50 Although resort to the courts of the colonizer is hardly an ideal solution to the issues raised by indigenous nations, it does place another tool in the inventory of means by which we can now pursue our rights. It has, moreover, resulted in measurable gains for some of us over the past quarter-century.

Probably the best example of this is the suit, first entered in 1972 under the auspices of a sponsoring organization, of the basically landless Passamaquoddy and Penobscot Nations in present-day Maine to some twelve million acres acknowledged as being theirs in a series of letters dating from the 1790s and signed by George Washington.51 Since it was demonstrated that no ratified treaty existed by which the Indians had ceded their land, U.S. District Judge Edward T.Gignoux ordered a settlement acceptable to the majority of the native people involved.52 This resulted in the recovery, in 1980, of some 300,000 acres of land, and payment of $27 million in compensatory damages by the federal government.53 In a similarly argued case, the Narragansetts of Rhode Island—not previously recognized by the government as still existing—were in 1978 able to win not only recognition of themselves, but to recover 1,800 acres of the remaining 3,200 stripped from them in 1880 by unilateral action of the state.54

In another instance, the Mashantucket Pequot people of Connecticut filed suit in 1976 to recover 800 of the 2,000 acres comprising their original reservation, created by the Connecticut Colony in 1686 but reduced to 184 acres by the State of Connecticut after the American War of Independence.55 Pursuant to a settlement agreement arrived at with the state in 1982, Congress passed an act providing funds to acquire the desired acreage. It was promptly vetoed by Ronald Reagan on April 11, 1983.56 After the Senate Select Committee on Indian Affairs convened hearings on the matter, however, Reagan agreed to a slight revision of the statute, affixing his signature on October 18 the same year.57

Other nations, however, have not fared as well, even in an atmosphere where the U.S. has sometimes proven more than usually willing to compromise as a means to contain questions of native land rights. The Wampanoags of the Mashpee area of Cape Cod, for example, filed suit in 1974 in an attempt to recover about 17,000—later reduced to 11, 000—of the 23,000 acres historically acknowledged as theirs. (The Commonwealth of Massachusetts unilaterally declared their reservation a “township” in 1870.) At trial, the all-white jury, each of whom had property interests in the Mashpee area, were asked to determine whether the Wampanoag plaintiffs were “a tribe within the meaning of the law.” After deliberating for 21 hours, the jury returned with the absurd finding that they were not such an entity in 1790, 1869, and 1870 (the years which were key to the Indians’ case), but that they were in 1832 and 1834 (years in which it was important they had been “a tribe” for purposes of alienating land to the government). Their claim was then denied by District Judge Walter J. Skinner.58 An appeal to the U.S. First Circuit Court failed, and the U.S. Supreme Court refused to review the case.59

Given such mixed results, it is plain that that justice in native land claims cases cannot ultimately be expected to accrue through the federal court system. Whatever remedial potential resides in judicial and diplomatic venues must therefore be pursued through bodies such as the United Nations Working Group on Indigenous Populations, which is even now engaged in finalizing a “Universal Declaration of the Rights of Indigenous Peoples,”60 and the International Court of Justice (ICJ, or “World Court”), which must interpret and render opinions based in such law.61 From there, it can be expected that international scrutiny and pressure, as well as changed sentiments among a growing segment of the U.S. body politic, may serve to force the United States to edge closer to a fair and equitable handling of indigenous rights.62

In the meantime, nearly every litigation of land claims within the federal system adds to the weight of evidence supporting the international case presented by native people: when we win, it proves we were entitled to the land all along; when we lose, it proves that the “due process rights” the U.S. insists protect our interests are, at most, inconsistently available to us. Either way, these legalistic endeavors force cracks in the ideological matrix of the American empire. In combination with extralegal efforts such as refusal to leave their homes by native traditional and physical occupations of contested areas by groups such as AIM, as well as the increasing international work by indigenous delegations, they comprise the core of the ongoing land struggles which represent the future of Native North America.63


CONTEMPORARY LAND STRUGGLES

Aside from those already mentioned, there is no shortage of ongoing struggles for land being mounted by native people within the United States today, all of which might be used to illustrate various aspects of the phenomenon. In Florida, the descendants of the Seminole and Miccosukee “recalcitrants” who had managed to avoid forced relocation to Oklahoma during the 1830s by taking refuge in the Everglades, simply “squatted” in their homeland for more than 130 years, never agreeing to a “peace accord” with the U.S. until the mid-sixties. Because of their unswerving resistance to moving, the state finally agreed to create a small reservation for these people in 1982, and Congress concurred by statute in the same year.64 In Minnesota, there is the struggle of Anishinabe Akeeng (People's Land Organization) to reassert indigenous control over the remaining twenty percent— 250,000 acres—of the White Earth Chippewa Reservation, and to recover some portion of the additional million acres reserved as part of White Earth under an 1854 treaty with the U.S. but declared “surplus” through the General Allotment Act in 1906.65

In southern Arizona, the Tohono O’Odam (Papago) Nation continues its efforts to secure the entirety of its sacred Baboquivari Mountain Range, acknowledged by the government to be part of the Papago Reservation in 1916, but opened to nonindian “mineral development” interests—especially those concerned with mining copper—both before and since.66 In the northern portion of the same state, there have been struggles by both the Hopis and Diné (Navajos) to block the U.S. Forest Service's scheme to convert San Francisco Peaks, a site sacred to both peoples, into a ski resort complex.67 And, of course, there is the grueling and government-instigated land struggle occurring between the tribal councils of these same two peoples within what was called the “Navajo-Hopi Joint Use Area.” The matter is bound up in energy development issues—primarily the stripmining of an estimated 24 billion tons of readily accessible low sulphur coal—and entails a program to forcibly relocate as many as 13,500 traditional Diné, a number of whom have refused to leave their land.68

In Massachusetts, the Gayhead Wampanoags, proceeding slowly and carefully so as to avoid the pitfalls encountered by their cousins at Mashpee, are pursuing litigation to regain control over ancestral lands.69 In Alaska, struggles to preserve some measure of sovereign indigenous—American Indian, Aleut, and Inuit—control over some forty million oil-rich acres corporatized by the 1971 Alaska Native Claims Settlement Act are sharpening steadily.70 In Hawai‘i, the native owners of the islands, having rejected a proffered cash settlement for relinquishment of their historic land rights in 1974,71 are pursuing a legislative remedy which would both pay monetary compensation for loss of use of their territory and restore a portion of it.72

The fact is that, wherever there are indigenous people within the U.S., land claims struggles are occurring with increasing frequency and intensity. To convey a sense of the texture of these continuing battles, it will be useful to consider a small selection of examples in depth. For this purpose, the claims of the Iroquois Confederation in upstate New York, the Lakota Black Hills Land Claim, centered in South Dakota, and the Western Shoshone claims, primarily in Nevada, should serve quite well. Although none is especially unique in its overall configuration—to that extent, each is fittingly representative of a broad range of comparable efforts—they number among the most sustained and intensively pursued.


The Iroquois Land Claims

One of the longest fought and more complicated land claims struggles in the U.S. is that of the Haudenosaunee, or “Six Nations” Iroquoian Confederacy. While the 1783 Treaty of Paris ended hostilities between the England and its secessionist subjects in the thirteen colonies, it had no direct effect upon the state of war existing between those subjects and native peoples allied with the Crown. Similarly, while by the treaty George III had quitclaimed his discovery rights to the affected portion of North America, it was the opinion of Thomas Jefferson and others that this had done nothing to vest title to these lands in the newly-born United States.73

On both counts, the Continental Congress found it imperative to come to terms with indigenous nations as expeditiously as possible.74 A very high priority in this regard was accorded the Haudenosaunee, four nations of which—Mohawk, Seneca, Cayuga, and Onondaga—had fought with the British (the remaining two, the Oneidas and Tuscaroras, having remained largely neutral but occasionally providing assistance to the secessionists).75 Hence, during October of 1784, the U.S. conducted extensive negotiations with representatives of the Six Nations at Fort Stanwix, in the State of New York.

The result was a treaty, reinforced with a second negotiated at Fort Harmar in 1789, by which the Indians relinquished their interest in lands lying west of a north—south line running from Niagara to the border of Pennsylvania—that is to say, their territory within the Ohio River Valley—as well as parcels on which certain mili tary posts had been built. In exchange, the U.S. guaranteed three of the four hostile nations the bulk of their traditional homelands. The Oneida and Tuscarora were also “secured in the possession of the lands on which they are now settled.” Altogether, the Haudenosaunee reserved about six million acres—about half of the present state of New York—as permanent homelands (see Figure 4.2).76

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FIGURE 4.2. Iroquis treaty lands in 1794.

This arrangement, while meeting most of the Indians’ needs, was also quite useful to the U.S. central government. As has been observed elsewhere:

First…in order to sell [land in the Ohio River area] and settle it, the Continental Congress needed to extinguish Indian title, including any claims by the Iroquois [nations] of New York. Second, the commissioners wanted to punish the… Senecas. Thus they forced the Senecas to surrender most of their land in New York [and Pennsylvania] to the United States… Third, the United States…wanted to secure peace by confirming to the [Haudenosaunee] their remaining lands. Fourth, the United States was anxious to protect its frontier from the British in Canada by securing land for forts and roads along lakes Erie and Ontario.77

New York State, needless to say, was rather less enthusiastic about the terms of the treaty. Indeed, it had already attempted, unsuccessfully, to obtain additional land cessions from the Iroquois during meetings conducted prior to arrival of the federal delegation at Fort Stanwix.78 Further such efforts were barred by Article IX of the Articles of Confederation, and subsequently by Article I (Section 10) and the Commerce Clause of the Constitution, all of which combined to render treatymaking and outright purchases of Indian land by states illegal. New York therefore resorted to subterfuge, securing a series of twenty-six “leases,” many of them for 999 years, on almost all native territory within its purported boundaries.

its purported boundaries. The Haudenosaunee initially agreed to these transactions because of Governor George Clinton's duplicitous assurances that the leases represented a way for them to keep their land, and for his government to “extend its protection over their property against the dealings of unscrupulous white land speculators.” The first such arrangement was forged with the Oneidas in a meeting begun at Fort Schuyler on August 28, 1788.

The New York commissioners…led them to believe that they had [already] lost all their land to the New York Genesee Company, and that the commissioners were there to restore title. The Oneidas expressed confusion over this since they had never signed any instruments to that effect, but Governor Clinton just waved that aside… Thus the Oneidas agreed to the lease arrangement with the state because it seemed the only way they could get back their land. The state received some five million acres for $2,000 in cash, $2,000 in clothing, $1,000 in provisions, and $600 in annual rental. So complete was the deception that Good Peter [an Oneida leader] thanked the governor for his efforts.79

Leasing of the Tuscaroras’ land occurred the same day by a parallel instrument.80 On September 12, the Onondagas leased almost all their land to New York under virtually identical conditions.81 The Cayugas followed suit on February 25, 1789, in exchange for payment of $500 in silver, plus an additional $1,625 the next June and a $500 annuity.82 New York's flagrant circumvention of constitutional restrictions on non-federal acquisitions of Indian land was a major factor in passage of the first of the so-called Indian Trade and Intercourse Acts in 1790.83 Clinton, however, simply shifted to a different ruse, avoiding such tightening in the mechanisms of federal control over his states manipulations by backdating them. In 1791, for example, he announced that New York would honor a 999-year lease negotiated in 1787 by a private speculator named John Livingston. The lease covered 800,000 acres of mainly Mohawk land, but had been declared null and void by the state legislature in 1788.84

Concerned that such maneuvers might push the Iroquois, the largely landless Senecas in particular, into joining Shawnee leader Tecumseh's pan-Indian alliance and physically resisting further U.S. expansion into the Ohio Valley, the federal government sent a new commission to meet with the Haudenosaunee leadership at the principal Seneca town of Canandaigua in 1794. In exchange for a pledge from the Six Nations not to bear arms against the United States, their ownership of the lands guaranteed them at Fort Stanwix was reaffirmed, the state's leases notwithstanding, and the bulk of the Seneca territory in Pennsylvania was restored.85

Nonetheless, New York officials, obviously undaunted by this turn of events, rapidly parceled out sections of the leased lands in subleases to the very “unscrupulous whites” it had pledged to guard against. On September 15, 1797, the Holland Land Company, in which many members of the state government had invested, assumed control over all but ten tracts of land, totaling 397 square miles, of the Fort Stanwix Treaty area. The leasing instrument purportedly “extinguished” native title to the land, a process which would be repeated many times over in the coming years (see Figure 4.3).86

Given the diminishing military importance of the Six Nations after the Shawnees’ 1794 defeat at Fallen Timbers and the eventual vanquishment of Tecumseh at Tippecanoe in 1811, federal authorities ultimately did little or nothing to correct the situation despite continuous Iroquois protests.87 New York, along with others of the individual states, was thus emboldened to proceed with wholesale appropriations of native territory (albeit an appearance of “free enterprise within the private sector” rather than official policy was usually maintained).

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FIGURE 4.3. Land grants, purchases, and Indian reservations within the 1794 treaty area.

In 1810, for instance, the Holland Company “sold” some 200,000 acres of its holdings in Seneca and Tuscarora land to its own accountant, David A.Ogden, at a price of fifty cents per acre. Ogden then issued shares against development of this land, many of them to the very Albany politicians who already held stock in Holland. Thus (re)capitalized, the “Ogden Land Company” was able to push through a deal in 1826 to buy a further 81,000 acres of previously unleased reservation land at fiftythree cents per acre. A federal investigation into the affair was quashed in 1828 by Secretary of War Peter B.Porter, himself a major stockholder in Ogden.88

Under such circumstances, most of the Oneidas requested in 1831 that what was left of their New York holdings, which they were sure they would lose anyway, be exchanged for a 500,000-acre parcel purchased from the Menominees in Wisconsin. President Andrew Jackson, at the time pursuing his policy of general Indian Removal to points west of the Mississippi, readily agreed.89 In the climate created by Jackson's own posturing, an ever-increasing number of federal officials followed Porter's example, actively colluding with their state-level counterparts and private speculators, thereby erasing altogether whatever meager protection of native rights had previously emanated from Washington, D.C.90

One outcome was that on January 15, 1838, federal commissioners oversaw the signing of the Treaty of Buffalo Creek, wherein 102,069 acres of Seneca land was “ceded” directly to the Ogden Company. The $202,000 purchase price was divided almost evenly between the government (to be held “in trust” for the Indians) and individual nonindians seeking to buy and “improve” plots in the former reservation area. At the same time, what was left of the Cayuga, Oneida, Onondaga, and Tuscarora holdings were wiped out, at an aggregate cost of $400,000 to Ogden.91 The Haudenosaunee were told they should relocate en masse to Missouri. Although the Six Nations never consented to the treaty, and it was never properly ratified by the Senate, President Martin Van Buren proclaimed it to be the “law of the land” on April 4, 1840.92

By 1841, Iroquois complaints about the Buffalo Creek Treaty were being supplemented by those of increasing numbers of nonindians outraged not so much by the loss of land to Indians it entailed as by the obvious corruption involved in its terms.93 Consequently, in 1842, a second Treaty of Buffalo Creek was drawn up. Under this new and “better” instrument, the U.S. again acknowledged the Haudenosaunee right to reside in New York and restored small areas such as the Allegheny and Cattaraugus Seneca reservations. The Onondaga Reservation was also reconstituted on a 7,300-acre landbase, the Tuscarora Reservation on a paltry 2,500 acres. The Ogden Company, for its part, was allowed to keep the rest.94

Although the Tonawanda Band of Senecas immediately filed a formal protest of these terms with the Senate, all they received for their efforts was an 1857 “award” of $256,000 of their own money with which to “buy back” a minor portion of their former territory.95 Ogden, of course, was thus perfectly positioned to reap an extraordinary profit against what it had originally paid the same unwilling “sellers.” And so it went, year after year.

So rich were the rewards to be gleaned from peddling Indian land that, beginning in 1855, the Erie Railway Company entered the picture. While the state legislature quickly approved the company's bids to obtain long-term leases on significant portions of both the Cattaraugus and Allegheny Reservations, the state judiciary sensed an even greater opportunity. Playing upon the depth of then-prevailing federal enthusiasm for railroad construction, New York's high court justices engaged in a cynical and rather elaborate ploy meant to “persuade” Congress to open the door of legitimation to the full range of the state's illicit leasing initiatives.

Though the [railroad] leases were ratified by New York, the state's supreme court in 1875 invalidated them. In recognition of this action, the New York legislature passed a concurrent resolution that state action was not sufficient to ratify leases because “Congress alone possesses the power to deal with and for the Indians.” Instead of setting aside the leases, Congress in 1875 passed an act authorizing [them]. The state now made [all] leases renewable for twelve years, and by an amendment in 1890 the years were extended to ninety-nine. Later the Supreme Court of New York deemed them perpetual.96

As a result, by 1889 eighty percent of all Iroquois reservation land in New York was under lease to nonindian interests and individuals. The same year, a commission was appointed by Albany to examine the state's “Indian Problem.” Rather than “suggesting that the appropriation of four-fifths of their land had deterred Indian welfare, the commission criticized the Indians for not growing enough to feed themselves,” thereby placing an “undue burden” on those profiting from their land. Chancellor C.N.Sims of Syracuse University, a commission member, argued strongly that only “obliteration of the tribes, conferral of citizenship, and allotment of lands” would set things right.97

Washington duly set out to undertake allotment, but was stunned to discover it was stymied by the “underlying title” to much of the reserved Haudenosaunee land it had allowed the Ogden Company to obtain over the years. In 1895, Congress passed a bill authorizing a buyout of Ogden's interest, again at taxpayer expense, but the company upped its asking price for the desired acreage from $50,000 to $270,000.98 The plan thereupon collapsed, and the Six Nations were spared the individual/social/political trauma, and the potential of still further land loss, to which they would have been subjected in the allotment process.99

Not that the state did not keep trying. In 1900, after uttering a string of bellicosities concerning “backward savages,” Governor Theodore Roosevelt created a commission to reexamine the matter. This led to the introduction in 1902 of another bill (HR 12270) aimed at allotting the Seneca reservations—with fifty thousand acres in all, they were by far the largest remaining Iroquois land areas—by paying Ogden $200,000 of the Indians’ “trust funds” to abandon its claims on Allegheny and Cattaraugus.100

The Senecas retained attorney John VanVoorhis to argue that the Ogden claim was invalid because, for more than a hundred years, the company had not been compelled to pay so much as a nickel of tax on the acreage it professed to “own.” By this, they contended, both Ogden and the government had all along admitted that, for purposes of federal law, the land was really still the property of “Indians not taxed.” Roosevelt's bill was withdrawn in some confusion at this point, and allotment was again averted.101 In 1905, the Senecas carried the tax issue into court in an attempt to clear their land title once and for all, but the case was dismissed on the premise that Indians held no legal standing upon which to sue nonindians.102

Yet a third attempt to allot the Six Nations reservations (HR 18735) foundered in 1914, as did a New York State constitutional amendment, proposed in 1915, to effectively abolish the reservations. Even worse from New York's viewpoint, in 1919 the U.S. Justice Department for the first time acted in behalf of the Haudenosaunee, filing a suit which (re) established a thirty-two acre “reservation” near Syracuse for the Oneidas.103

The state legislature responded by creating yet another commission, this one headed by attorney Edward A.Everett, a political conservative, to conduct a comprehensive study of land title questions in New York and to make recommendations as to how they might be cleared up across the board.104 The fix again seemed to be in. After more than two years of hearings and intensive research, however, Everett arrived at a thoroughly unanticipated conclusion: The Six Nations still possessed legal title to all six million acres of the Fort Stanwix treaty area.

He cited international law to the effect that there are only two ways to take a country away from a people possessing it—purchase or conquest. The Europeans who came here did recognize that the Indians were in possession and so, in his opinion, thus recognized their status as nations… If then, the Indians did hold fee to the land, how did they lose it? …[T]he Indians were [again] recognized by George Washington as a nation at the Treaty of 1784. Hence, they were as of 1922 owners of all the land [reserved by] them in that treaty unless they had ceded it by a treaty equally valid and binding.105

In his final report, Everett reinforced his basic finding with references to the Treaties of Forts Harmar and Canandaigua, discounted both Buffalo Creek Treaties as fraudulent, and rejected not only the leases taken by entities such as the Holland and Ogden Companies but those of New York itself as lacking any legal validity at all.106 The Albany government quickly shelved the document rather than publishing it, but it could not prevent its implications from being discussed throughout the Six Nations.

On August 21, 1922, a council meeting was held at Onondaga for purposes of retaining Mrs. Lulu G.Stillman, Everett's secretary, to do research on the exact boundaries of the Fort Stanwix treaty area.107 The Iroquois land claim struggle had shifted from dogged resistance to dispossession to the offensive strategy of land recovery, and the first test case, James Deere v. St. Lawrence River Power Company (32 F.2d 550), was filed on June 26, 1925, in an attempt to regain a portion of the St. Regis Mohawk Reservation taken by New York. The federal government declined to intervene on the Mohawks’ behalf, as it was plainly its “trust responsibility” to do, and the suit was dismissed by a district court judge on October 10, 1927. The dismissal was upheld on appeal in April 1929.108

Things remained quiet on the land claims front during the 1930s, as the Haudenosaunee were mainly preoccupied with preventing the supplanting of their traditional Longhouse form of government by “tribal councils” sponsored by the Bureau of Indian Affairs via the Indian Reorganization Act of 1934.109 Probably as a means of coaxing them into a more favorable view of federal intentions under the IRA, Indian Commissioner John Collier agreed towards the end of the decade that his agency would finally provide at least limited support to Iroquois claims litigation.

This resulted, in 1941, in the Justice Department's filing of U.S. v. Forness (125 F.2d 928) on behalf of the Allegheny Senecas. The suit, ostensibly aimed at eviction of an individual who had refused to pay his $4-per-year rent to the Indians for eight years, actually sought to enforce a resolution of the Seneca Nation canceling hundreds of low-cost, 99-year leases taken in the City of Salamanca on the reservation in 1892. Intervening for the defendants was the Salamanca Trust Corporation, a mortgage institution holding much of the paper at issue. Although the case was ultimately unsuccessful in its primary objective, it did force a judicial clarification of the fact that, in and of itself, New York law had no bearing on leasing arrangements pertaining to Indian land.110

This was partly “corrected,” in the state view, on July 2, 1948, and September 13, 1950, when Congress passed bills placing the Six Nations under New York jurisdiction in first criminal and then civil matters.111 Federal responsibility to assist Indians in pursuing treaty-based land claims was nonetheless explicitly preserved.112 Washington, of course, elected to treat this obligation in its usual cavalier fashion, plunging ahead during the 1950s—while the Indians were mired in efforts to prevent termination of their federal recognition altogether—with the flooding of 130 acres of the St. Regis Reservation near Messena (and about 1,300 acres of the Caughnawaga Mohawk Reserve in Canada) as part of the St. Lawrence Seaway Project.113

The government also proceeded with plans to flood more than nine thousand acres of the Allegheny Reservation as a byproduct of constructing the Kinzua Dam. Although studies revealed an alternative site for the dam that would not only spare the Seneca land from flooding but better serve “the greater public good” for which it was supposedly intended, Congress pushed ahead.114 The Senecas protested the project as a clear violation of the Fort Stanwix guarantees, a position with which lower federal courts agreed, but the Supreme Court ultimately declined to decide the question and the Army Corps of Engineers completed the dam in 1967.115

Meanwhile, the New York State Power Authority was attempting to seize more than half (1,383 acres) of theTuscarora Reservation, near Buffalo, as a reservoir for the Niagara Power Project. In April 1958, the Tuscaroras physically blocked access to the site, and several were arrested (charges were later dropped). A federal district judge entered a temporary restraining order against the state, but the appellate court ruled that congressional issuance of a license through the Federal Power Commission constituted sufficient grounds for the state to “exercise eminent domain” over native property.116 The Supreme Court again refused to hear the resulting Haudenosaunee appeal. A “compromise” was then implemented in which the state flooded “only” 560 acres, or about one-eighth of the remaining Tuscarora land.117

By the early 1960s, it had become apparent that the Six Nations, because their territory fell “within the boundaries of one of the original thirteen states,” would not be allowed to seek redress through the Indian Claims Commission.118 The decade was largely devoted to a protracted series of discussions between state officials and various sectors of the Iroquois leadership. Agreements were reached in areas related to education, housing, and revenue sharing, but on the issues of land claims and jurisdiction, the position of Longhouse traditionals was unflinching. In their view, the state holds no rights over the Haudenosaunee in either sphere.119

The point was punctuated on May 13, 1974, when Mohawks from the St. Regis and Caughnawaga Reservations occupied an area at Ganiekeh (Moss Lake), in the Adirondack Mountains. They proclaimed the site to be sovereign Mohawk territory under the Fort Stanwix Treaty—“[We] represent a cloud of title not only to [this] 612.7 acres in Herkimer County but to all of northeastern” New York—and set out to defend it, and themselves, by force of arms.120

After a pair of local vigilantes engaged in shooting at the Indians were wounded by return gunfire in October, the state filed for eviction in federal court. The matter was bounced back on the premise that it was not a federal issue, and the New York attorney general, undoubtedly discomfited at the publicity prospects entailed in an armed confrontation on the scale of the 1973 Wounded Knee siege, let the case die.121

The state next dispatched a negotiating team headed by future Governor Mario Cuomo. In May 1977, partially as a result of Cuomo's efforts but more importantly because of the Indians’ obvious willingness to slug it out with state authorities if need be, the “Moss Lake Agreement” was reached. Under its provisions, the Mohawks assumed permanent possession of a land parcel at Miner Lake, near the town of Altona, and another in the nearby McComb Reforestation Area.122 Mohawk possession of the sites remains ongoing in 2002, a circumstance which has prompted others among the Six Nations to pursue land recovery through a broader range of tactics and, perhaps, with greater vigor than they might otherwise have employed (e.g., Mohawk actions taken in Canada concerning a land dispute at the Oka Reserve, near Montréal, during 1990).123

As all this was going on, the Oneidas had, in 1970, filed the first of the really sig nificant Iroquois land claims suits. The case, Oneida Indian Nation of New York v. County of Oneida, charged that the transfer of 100,000 acres of Oneida land to New York via a 1795 lease engineered by Governor Clinton was fraudulent and invalid on both constitutional grounds and because it violated the 1790 Trade and Intercourse Act. It was dismissed because of the usual “Indians lack legal standing” argument but reinstated by the Supreme Court in 1974.124 Compelled to actually examine the merits of the case for the first time, the U.S. District Court agreed with the Indians (and the Everett Report) that title still rested with the Oneidas.

The plaintiffs have established a claim for violation of the Nonintercourse Act. Unless the Act is to be considered nugatory, it must be concluded that the plaintiffs’ right of occupancy and possession of the land in question was not alienated. By the deed of 1795, the State acquired no rights against the plaintiffs; consequently, its successors, the defendant counties, are in no better position.125

Terming the Oneidas a “legal fiction,” and the lower courts’ rulings “racist,” attorney Allan Van Gestel appealed on behalf of the defendants to the Supreme Court.126 On October 1, 1984, the high court ruled against Van Gestel and ordered his clients to work out an accommodation, indemnified by the state, including land restoration, compensation, and rent on unrecovered areas.127 Van Gestel continued to howl that “the common people” of Oneida and Madison Counties were being “held hostage,” but as the Oneidas’ attorney, Arlinda Locklear, put it in 1986:

One final word about responsibility for the Oneida claims. It is true that the original sin here was committed by the United States and the state of New York. It is also no doubt true that there are a number of innocent landowners in the area, i.e., individuals who acquired their land with no knowledge of the Oneida claim to it. But those facts alone do not end the inquiry respecting ultimate responsibility. Whatever the knowledge of the claims before then, the landowners have certainly been aware of the Oneida claims since 1970 when the first suit was filed. Since that time, the landowners have done nothing to seek a speedy and just resolution of the claims. Instead, they have as a point of principle denied the validity of the claims and pursued the litigation, determined to prove the claims to be frivolous. Now that the landowners have failed in that effort, they loudly protest their innocence in the entire matter. The Oneidas, on the other hand, have since 1970 repeatedly expressed their preference for an out-of-court resolution of their claims. Had the landowners joined with the Oneidas sixteen years ago in seeking a just resolution, the claims would no doubt be resolved today. For that reason, the landowners share in the responsibility for the situation in which they find themselves today.128

Others would do well to heed these words because, as Locklear pointed out, the Oneida case “paved the legal way for other Indian land claims.”129 Not least of these are other suits by the Oneidas themselves. In 1978, the New York Oneidas filed for adjudication of title to the entirety of their Fort Stanwix claim, about 4.5 million acres, in a case affecting not only Oneida and Madison Counties, but Broome, Chenango, Cortland, Herkimer, Jefferson, Lewis, Onondaga, Oswego, St. Lawrence, and Tiago Counties as well. (The matter was shelved, pending final disposition of the first Oneida claims litigation.)130 Then, in December 1979, the Oneida Nation of Wisconsin and the Thames Band of Southgold, Ontario, joined in an action pursuing rights in the same claim area, but naming the state rather than individual counties as defendant.131

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FIGURE 4.4. Oneida land claim, State of New York, 1984.

The Cayuga Nation, landless throughout the twentieth century, has also filed suit against Cayuga and Seneca Counties for recovery of 64,015 acres taken during Clinton's leasing foray of 1789. (The Cayuga claim may develop into an action overlapping with those of the Oneida; see Figure 4.4.)132 The latter case, filed on November 19, 1980, resulted from attempts by the Cayugas to negotiate some sort of landbase and compensation for themselves with federal, state, and county officials from the mid-70s onward. By August 1979, they had worked out a tentative agreement that would have provided them with the 1,852-acre Sampson Park in southern Seneca County, the 3,629-acre Hector Land Use Area in the same county, and an $8 million trust account established by the Secretary of the Interior (up to $2.5 million of which would be used to buy additional land).133

Although not one square inch of their holdings was threatened by the arrangement, the response of the local nonindian population was rabid. To quote Paul D. Moonan, Sr., president of the local Monroe Title and Abstract Company: “The Cayugas have no moral or legal justification for their claim.”134 Wisner Kinne, a farmer near the town of Ovid, immediately founded the Seneca County Liberation Organization (SCLO), a group defined by nothing so much as its propensity to express the most virulent anti-Indian sentiments. SCLO attracted several hundred highly vocal members from the sparsely populated county.135

A bill to authorize the settlement subsequently failed due to this “white backlash,” and so the Cayugas went to court to obtain a much larger area, eviction of 7,000 county residents and $350 million in trespass damages. Attempts by attorneys for SCLO to have the suit dismissed failed in 1982, as did a 1984 compromise offer initiated by Representative Frank Horton. The latter, which might well have been accepted by the Cayugas, would have provided them with the 3,200-acre Howland Game Management Reserve along the Seneca River, a 2,850-acre parcel on Lake Ontario possessed by the Rochester Gas and Electric Company, and a 2,000-acre parcel adjoining Sampson State Park. Additionally, the Cayugas would have received “well in excess” of the $8 million they had originally sought.136

While SCLO appears by this point to have decided that acquiescence might well be the better part of valor, the proposal came under heavy attack from nonindian environmentalists and other supposed progressives “concerned about the animals in the Howland Reserve.” Ultimately, it was nixed by Ronald Reagan in 1987, not out of concern for local fauna, or even as part of some broader anti-Indian agenda, but because was he angry with Horton for voting against his own proposal to fund the Nicaraguan Contras’ low intensity war against that country's Sandinista government.137

Meanwhile, in the town of Salamanca, to which the leases expired at the end of 1991, the Allegheny Senecas also undertook decisive action during the second half of the 1980s. Beginning as early as 1986, they stipulated their intent not only to not renew leasing instruments, but to begin eviction proceedings against nonindian lease and mortgage holders in the area unless the terms of any new arrangement were considerably recast in their favor. In substance, they demanded clarification of underlying Seneca title to the township, a shorter leasing period, fair rates for property rental, and preeminent jurisdiction over both the land and income derived from it.138

A further precondition to lease renewal was that compensation be made for all nonpayment and underpayment of fair rental values of Seneca property accruing from the then-existing lease. Although these demands unleashed a storm of protest from local whites, who, as usual, argued vociferously that the Indian owners of the land held no rights to it, the Senecas were successful both in court and in Congress.139 With passage of the Seneca Nation Settlement Act in 1990, the more essential Seneca demands were met. These included an award of $60 million, with costs borne equally by the federal, state, and local governments, to reimburse the Allegheny Band for rental monies they should have received over the past ninety-nine years, but did not.140

The limited but real gains posted thus far, in both the Oneida land claims and with regard to renegotiation of the Salamanca leases, point to a viable strategy for a gradual recovery of Haudenosaunee land and jurisdictional rights in upstate New York during the years ahead. As of this writing, the second Oneida suit remains in process, as does the Cayuga suit. Viewed in light of the sort of settlement achieved in the earlier Oneida win, these seem likely to generate, if not a truly fair resolution of the issues raised, then a marked improvement in the circumstances of both peoples.141

Also at issue is a longterm lease of Onondaga land upon which the City of Syracuse has been built. Following the pattern evidenced at Salamanca, the Onondagas have been able to secure an agreement in principle with state, local, and federal authorities which would both compensate them for lost rental earnings over the past century and generate a much higher level of income in the future. These monies can, in turn, be invested in the restoration of rural areas adjoining the presently tiny Onondaga Reservation to the nation's use and control.142

Overall, it seems probable that such efforts at litigation and negotiation will continue over the next ten to twenty years, and thereby serve to enhance the relative positions of the Tuscarora and Mohawk nations as well as their four confederates. The increasing scope of native jurisdiction in New York, which such a process would necessarily entail, may accomplish a changed sensibility among the state's nonindian residents, as they discover firsthand that a genuine exercise of indigenous rights does not automatically lead to their disenfranchisement or dispossession of personal property.143

Indeed, it may be that at least some sectors of New York's nonindian population may learn that coming under Indian jurisdiction can be preferable to remaining under the jurisdiction of the state (which has, among other things, one of the highest tax levies in the country). If so, it may be that the ongoing (re)assertion of Haudenosaunee sovereignty within the 1794 treaty territory may develop peacefully and with a reasonably high degree of Indian/white cooperation over the long run, reversing the unrelenting manifestation of Euroamerican avarice, duplicity, and racism which has marked this relationship over the past two centuries.144

In the alternative, when the methods of litigation and negotiation reach the limit of the state's willingness or ability to give ground—as surely they must, absent a profound alteration in the attitudes of the interloping white populace—conflicts of the sort previewed at Ganiekeh and Oka must be the inevitable result.145 Something of a crossroads is thus at hand in northern New York State; things could go either way. And in the final analysis, the choice is one which resides with the state and its immigrant citizens. The Haudenosaunee own the land there by all conceivable legal, moral, and ethical definitions.146 They always have, and will continue to until they decide otherwise. As a whole, they have demonstrated a remarkable patience with those who have presumed to take what was and is theirs. But such patience cannot last forever.


The Black Hills Land Claim

A much more harshly fought struggle, at least in terms of physical combat, has been the battle waged by the Lakota Nation (“Western” or “Teton Sioux,” composed of the Oglala, Hunkpapa, Minneconjou, Sicangu [Brûlé], Bohinunpa [Two Kettles], Ituzipco [Sans Arcs], and Sihasapa [Blackfeet] bands) to retain their spiritual heartland, the Black Hills. In 1851, the United States entered into the first Fort Laramie Treaty with the Lakota, Cheyenne, Arapaho, Crow, and other indigenous nations of the northern and central plains regions. In large part, the treaty was an attempt by the federal government to come to grips with the matter of Indian property rights within the vast “Louisiana Purchase” area it had acquired from France earlier in the century.147 The Lakota were formally recognized in the 1851 treaty as being entitled to a huge tract centering upon their sacred lands, called Paha Sapa (Black Hills), including virtually all of the present states of South Dakota and Nebraska, as well as appreciable portions of Kansas, North Dakota, Montana, and Wyoming, and a small portion of Colorado. In sum, the U.S. formally recognized Lakota sovereignty over an area totaling between six and seven percent of the lower 48 states.148

It was not long, however, before silver was discovered in the Virginia City portion of Montana Territory, and a “short route” to these ore fields began to be considered essential to a U.S. economy beset by the demands of the Civil War. Hence, at least as early as 1864, the government openly violated the 1851 treaty, sending troops to construct a series efforts intended to secure what was called the “Bozeman Trail,” directly through the western portion of the Lakota homeland. The Lakota, under the political leadership of Red Cloud, an Oglala, responded by forming an alliance with the Cheyenne and Arapaho, bringing their joint military forces to bear upon the trail during the winter of 1866–67. By early 1868, the United States, having suffered several defeats in the field, and finding its troops trapped within their forts, sued for peace.149

This led, that same year, to a second Fort Laramie Treaty in which (in exchange for being allowed to withdraw its remaining soldiers in one piece) the federal government once again recognized Lakota sovereignty and national territoriality, this time establishing a “Great Sioux Reservation” encompassing all of contemporary South Dakota west of the east bank of the Missouri River, and acknowledging that the “Greater Sioux Nation” was entitled to permanent use of “Unceded Indian Territory” involving large portions of Nebraska, Wyoming, Montana, and North Dakota.150 Further, the new treaty committed U.S. troops to prevent nonindians from trespassing in Lakota territory, specified that it did nothing to “abrogate or annul” Lakota land rights acknowledged in the 1851 treaty,151 and provided that:

No [subsequent] treaty for cession of any portion of the reservation herein described which may be held in common shall be of any validity or force as against said Indians, unless executed and signed by at least three-fourths of all adult male Indians [the gender provision was a U.S., rather than Lakota, stipulation], occupying or interested in the same.152

Again, the United States was unwilling to honor the treaty for long. A priest, Jean de Smet, ventured illegally into the Black Hills and afterwards reported to the Sioux Falls Times (South Dakota) that he had discovered gold therein.153 In short order, this led to the government's reinforcing Lt. Colonel George Armstrong Custer's élite 7th Cavalry Regiment and violating both the 1851 and 1868 treaties by sending this heavy military force directly into the Hills on a “fact-finding” mission. Custer's 1874 report that he too had found gold in the Paha Sapa, much ballyhooed in the eastern press, led to another military foray, the Jenny Expedition, during the summer of 1875.154 The fact that there was gold in the heart of Lakota Territory, in their most sacred of places, was thus confirmed to the satisfaction of Washington officials.

With that, the government sent yet another treaty commission to meet with the Lakota leadership, this time in an effort to negotiate purchase of the Black Hills.155 When the Lakotas refused to sell (as was clearly their right, under either or both treaties), Washington responded by transferring its relations with them from the Bureau of Indian Affairs (BIA) to the Department of War. All Lakotas were ordered to gather at their “assigned agencies” within the Great Sioux Reservation by no later than the end of January 1876, although they plainly had every right to be anywhere they chose within their treaty territory; those who failed to comply with this utterly unlawful federal directive were informed that they would be viewed as having “broken the peace” and consequently treated as “hostiles.” Meanwhile, President Ulysses S.Grant completed the government's raft of treaty violations by secretly instructing his army commanders to disregard U.S. obligations to prevent the wholesale invasion of the Lakota heartland by nonindian miners.156

Rather than submitting to federal dictates, the Lakotas gathered in the remote Powder River Country of southeastern Montana, a part of their unceded territory, to discuss how they should respond. In turn, the army used this “gesture of hostility” as a pretext for launching a massive assault upon them, with the express intent of “crushing Sioux resistance completely, once and for all.” The U.S. objective in this was, of course, to simply obliterate any Lakota ability to effectively oppose federal expropriation of the Black Hills. The mechanism chosen to accomplish this task was a three-pronged campaign consisting of some 3,000 troops under Major Generals George Crook (coming into the Powder River Country from the south) and Alfred Terry (from the east). Another thousand men under Colonel John Gibbon were to approach from the west, and the Lakotas (as well as their Cheyenne and Arapaho allies) were to be caught between these powerful forces and destroyed.157

The army's plan failed completely. On June 17, 1876, Crook's entire column was met by an approximately equal number of Lakotas led by Crazy Horse, an Oglala. The soldiers were quickly defeated and sent into full retreat.158 This was followed, on June 25, by the decimation of Custer's 7th Cavalry, part of Terry's column, in the valley of the Little Big Horn River.159 For the second time in a decade, the Lakotas had successfully defended Paha Sapa, militarily defeating the U.S. Army in what has come to be known as the “Great Sioux War.”160

On this occasion, however, the victory was to prove bitter. Vengefully licking it; wounds after having been unable to best the Indians in open combat, the army imported Colonel Ranald Mackenzie, a specialist who had perfected the craft of “total war” in earlier campaigns against the Kiowas and Comanches on the southern plain, of present-day Texas and Oklahoma. The new tactician spent the winter of 1876–77 locating individual Lakota and Cheyenne villages which had been rendered immobile by cold and snow. He then used sheer numbers to overpower each village as it was located, slaughtering women, children, and old people as matter of course.161 By the spring of 1877, in order to spare their noncombatants further butchery at the hand of the army, most Lakotas decided it was time to stop fighting. Sitting Bull and Gall Hunkpapa leaders, took their followers to sanctuary in Canada, not returning until 1881. Having laid down his arms, Crazy Horse, preeminent among Oglala resistance leaders, was assassinated by the military on September 5, 1877, and the era of Lakota defensive warfare was brought to a close.162

Undoubtedly as a result of the military advantage it ultimately gained over the Lakotas during the Great Sioux War, the Congress felt empowered to pass an act on February 28, 1877, taking for itself a large portion of the Great Sioux Reservation containing the Black Hills (the Unceded Indian Territory was taken about the same time; see Figure 4.5).163 There is strong evidence that the legislators involved were aware that this act was patently illegal, given that they had effected a slightly earlier measure suspending delivery of subsistence rations, to which the Lakota were entitled, both under their treaties and under the laws of war, until such time as the Indians “gave up their claim over the Black Hills.”164

In simplest terms, the United States set out to starve the captive Lakota population into compliance with its plan. Even under these conditions, however, a commission headed by George Manypenny and sent to obtain the Lakota consent was unable to get the job done. While the 1868 treaty required the agreement of 75 percent of all adult male Lakotas to legitimate any “Sioux Land Cession,” Manypenny's commission came away with the signatures of only about ten percent of the Lakota men. Nonetheless, Congress enacted its statute “lawfully” expropriating the Hills.165

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FIGURE 4.5. Lakota Nation reservations and unceded lands.

Over the following two decades, erosion of Lakota sovereignty and landbase were accelerated by imposition of the Major Crimes and General Allotment Acts.166 The Lakota economy was thus prostrated, and the political process by which the nation had traditionally governed itself was completely subverted. By 1890, despair at such circumstances had reached a level leading to the widespread adoption of the Ghost Dance religion, a belief that the rigorous performance of certain rituals would lead to a return of things as they had been before the Euroamerican invasion. This phenomenon, dubbed an “incipient uprising” by Indian agents, provided the government an excuse to declare a state of military emergency during which Sitting Bull (last of the great “recalcitrant” leaders) was assassinated at his home near Standing Rock, and some 350 of his followers were massacred along Wounded Knee Creek on what is now the Pine Ridge Reservation.167 Lakota spiritual practices were then outlawed in general.168 After that, Washington tended to view the victims as being “thoroughly broken.”

During the 1920s and 1930s, Lakota sovereignty was diminished even further through imposition, first of the Indian Citizenship Act, and then the Indian Reorganization Act (IRA).169 The former did much to confuse Lakota national allegiances, engendering a distorted sort of loyalty to the United States among many younger Indians, especially men, desperate to overcome their sense of personal disempowerment. In practice, such “patriotism,” common to most colonial systems, has meant Indians being “allowed” to serve as mercenaries in the military of their oppressors, fighting (usually against other peoples of color) and dying in disproportionate numbers during the Second World War, Korea, and Vietnam.170

The IRA was in some ways even more insidious, putting in place a “more democratic and representative” form of “elected council” governance, owing its very existence to federal authority, as a replacement for the popular and consensus-oriented traditional Councils of Elders.171 As a consequence, divisiveness within Lakota society increased sharply during the 1940s, with “progressives” in the tribal council orbit pitted by Washington directly against the much larger population of grassroots traditionals.172

By the mid-1950s, things had deteriorated to such an extent that Congress could seriously consider “termination” (i.e., externally and unilaterally imposed dissolution) of the Lakota Nation altogether.173 Although, unlike the situation of the Menominees, Klamaths, and a number of other indigenous nations dissolved during the 1950s, the Lakota termination was never ultimately consummated, by 1967 nearly half the “Sioux” population had been removed to city slums—Denver, Minneapolis, Chicago, San Francisco, and Los Angeles were the preferred dumping grounds—through federal relocation programs designed and intended to depopulate the land base of the reservations.174 The degeneration of social cohesion resulting from this policy-generated diaspora has created for the Lakota and other impacted peoples staggering problems that have never been resolved.

Other effects of advanced colonization were almost as devastating: By the contemporary era, the 1868 treaty territory had been reduced to a meager ten percent of its original area and broken up into a “complex” of reservations geographically separating the bands from one another. Of the residual land base, assertion of BIA leasing prerogatives under a unilaterally assumed federal “trust authority” over Lakota property, a matter accommodated within the U.S. doctrine of exercising “plenary [full] power” over Indian affairs, placed more than two-thirds of the most productive reservation acreage in the hands of nonindian ranchers, farmers, and corporate concerns.175

Completely dispossessed of their land and traditional economy, modern Lakotas confront a circumstance on their reservations in which unemployment has hovered in the ninetieth percentile throughout the past half-century and more.176 The implications of this situation are both predictable and readily apparent. The poorest county in the United States every year since World War II has been Shannon, on the Pine Ridge Reservation. Todd County, on the adjoining Rosebud Reservation, has kept pace, consistently placing among the ten poorest locales in the federal poverty index.177

Many Lakotas, of course, never accepted the fact or circumstances of their colonization. Realizing in the wake of the Wounded Knee Massacre that any direct military response to U.S. transgressions would be at best self-defeating, they opted instead to utilize the colonizers’ own legal codes—and its pretense of being a “humanitarian power, bound by the laws of civilized conduct”—as a means of recovering what had been stolen from them.178 In 1920, a federal law was passed which “authorized” the Lakotas to sue the government “under treaties, or agreements, or laws of Congress, on the misappropriation of any funds or lands of said tribe or band or bands thereof.”179 The law was hardly altruistic. Realizing that there had been “difficulties” with the manner in which Lakota “consent” had been obtained for the 1877 Black Hills land expropriation, the government saw the bill as a handy means to buy the now-impoverished Indians off and “quiet title” to the Paha Sapa. This was amply revealed in 1923 when the Lakotas entered their suit with the federal Court of Claims seeking return of their stolen land rather than the monetary compensation the United States had anticipated would be at issue. Not knowing what to do in the face of this unexpected turn of events, the court stalled for nineteen years, endlessly entertaining motions and countermotions while professing to “study” the matter. Finally, in 1942, when it became absolutely clear the Lakotas would not accept cash in lieu of land, the court dismissed the case, claiming the situation was a “moral issue” rather than a constitutional question over which it held jurisdiction.180 In 1943, the U.S. Supreme Court refused to even review the claims court decision.181

The litigational route appeared to be stalemated, but in 1946 the Indian Claims Commission Act was passed (see above). The Lakotas therefore (re)filed their suit with the ICC in 1950. The Commission, however, opted to view the case as having been “retired” by the 1942 Court of Claims dismissal and subsequent Supreme Court denial of certiorari. It likewise dismissed the matter in 1954.182 The Court of Claims upheld the Commissions decision on appeal from the Lakotas during the same year.183 Undeterred by this failure of “due process,” the Lakotas entered a second (very different) appeal, and in 1958, “[T]he Indian Claims Commission [was] ordered by the Court of Claims to reopen the case on the grounds that the Sioux had previously been represented by inadequate counsel and as a consequence an inadequate record [had] been presented.”184

In 1961, the U.S. Department of Justice attempted to have the Black Hills case again set aside, requesting a writ of mandamus seeking “extraordinary relief” for the government; the Court of Claims rejected this tactic during the same year. The ICC was thereby forced to actually consider the case. After a long hiatus, the commissioners announced that, having “studied the matter,” they were reducing the scope of the issue to three elements:


Proceeding on this basis, the Commission entered a preliminary opinion in 1974 that Congress had been exercising its “power of eminent domain” in 1877, and that it had therefore been “justified” in taking the Black Hills from the Lakotas, although the United States was obligated to pay them “just compensation” for their loss, as provided under the fifth amendment to the U.S. Constitution.186 The opinion denied any right of the Lakotas to recover the land taken from them, and they therefore objected to it quite strongly.

The federal government also took strong exception to the direction things were moving, given its reluctance to pay any large sum of money as compensation for territory it had always enjoyed free of charge. Hence, in 1975, the Justice Department appealed to the Court of Claims, securing a res judicata prohibition against the ICC “reaching the merits” of any proposed Lakota compensation package.187 What this meant, in simplest terms, was that the Commission was formally constrained to awarding the Lakotas nothing beyond “the value of the land in question at the time of taking.” The stipulation resulted in the Commission's assigning an award of $17.5 million for the entire Black Hills area, against which the government sought to “offset” $3,484 in rations issued to the Lakotas in 1877.188 The Lakotas attempted to appeal this to the Supreme Court, but the high court of the United States again refused to consider the matter.189 Meanwhile, arguing that acceptance of compensation would constitute a bona fide land cession, and invoking the consent clause contained in the 1868 Treaty, the Lakotas themselves conducted a referendum to determine whether three-fourths of the people were willing to relinquish title to Paha Sapa. The answer was a resounding “no.”190

The unexpected referendum results presented the government with yet another dilemma in its continuing quest to legitimize its theft of Lakota territory; in order to make the best of an increasingly bad situation, Congress passed a bill in 1978 enabling the Court of Claims to “review” the nature and extent of Lakota compensation.191 This the court did, “revising” the proposed award in 1979 to include five percent simple interest, accruing annually since 1877, adding up to a total of $105 million; aggre gated with the original $17.5 million principal award, this made the federal offer $122.5 million.192

The Justice Department again attempted unsuccessfully to constrict the amount of compensation the government would be obliged to pay by filing an appeal with the Supreme Court. In 1980, the high court upheld the Claims Court's award of interest.193 The Lakotas, however, remained entirely unsatisfied. Pointing to a second poll of the reservations conducted in 1979 showing that the people were no more willing to accept $122.5 million than $17.5 million in exchange for the Black Hills, and arguing that return of the land itself had always been the object of their suits, they went back to court.194 On July 18, 1980, the Oglalas entered a claim naming the United States, the State of South Dakota, and a number of counties, towns, and individuals in the U.S. District Court, seeking recovery of the land per se, as well as $11 billion in damages. The case was dismissed by the court on September 12, supposedly because “the issue [had] already been resolved.”195

In 1981, the U.S. Eighth Circuit Court affirmed the District Court's dismissal, and, in 1982, the Supreme Court once again declined to hear the resultant Lakota appeal.196 These decisions opened the way in 1985 for the Court of Claims to finalize its award of monetary compensation as the “exclusive available remedy” for the Black Hills land claim.197 In sum, further Lakota recourse in U.S. courts had been extinguished by those courts. The game had always been rigged, and the legal strategy had proven quite unsuccessful in terms of either achieving Lakota objectives or even holding the United States accountable to its own professed system of legality.198

On the other hand, the legal route did mark solid achievements in other areas: Pursuing it demonstrably kept alive a strong sense of hope, unity, and fighting spirit among many Lakotas that might otherwise have diminished over time. Further, the more than sixty years of litigation had forced a range of admissions from the federal government concerning the real nature of the Black Hills expropriations; Judge Fred Nichol, for example, had termed the whole affair a “ripe and rank case of dishonorable dealings” and “a national disgrace” in a 1975 opinion written for the Court of Claims.199 Such admissions went much further toward fostering broad public understanding of Lakota issues than a “one-sided” Indian recounting of the facts could ever have.200 Cumulatively, then, the Lakota legal strategy set the stage for both an ongoing struggle and for public acceptance of a meaningful solution to the Black Hills claim.

It is likely that the limited concessions obtained by the Lakotas from U.S. courts during the 1970s were related to the emergence of strong support for the American Indian Movement (AIM) on the Pine Ridge and Rosebud Reservations during the early part of the decade. At the outset, AIM's involvement on Pine Ridge concerned the provision of assistance to traditional Oglalas attempting to block the illegal transfer of approximately one-eighth of the reservation (the so-called Sheep Mountain Gunnery Range) to the U.S. Forest Service by a corrupt tribal administration headed by Richard Wilson.201 AIM provided a marked stiffening of the Lakota resolve to pursue land rights by demonstrating a willingness to go toe-to-toe with federal forces on such matters, an attitude largely absent in Indian Country since 1890.202

The virulence of the federal response to AIM's “criminal arrogance” in this regard led directly to the dramatic siege of the Wounded Knee hamlet in 1973, a spectacle which riveted international attention on the Black Hills issue for the first time. In turn, this scrutiny resulted in analysis and an increasingly comprehensive understanding of the vast economic interests underlying federal policy in the region (see Figure 5.2, p. 127). This process steadily raised the level of progressive criticism of the government and garnered further nonindian support for the Lakota position. Anxious to reassert its customary juridical control over questions of Indian land rights, the government engaged in what amounted to a counterinsurgency war against AIM and its traditional Pine Ridge supporters from 1973 to 1976.203

By the latter year, however, it was a bit too late to effectively contain AIM's application of external pressure to the U.S. judicial system. In 1974, the Lakota elders had convened a treaty conference on the Standing Rock Reservation and charged Oglala Lakota AIM leader Russell Means with taking the 1868 Fort Laramie Treaty “before the family of nations.”204 Means therefore formed AIM's “diplomatic arm,” the International Indian Treaty Council (IITC) and set about achieving a presence within the United Nations, not only for the Lakotas, but for all the indigenous peoples of the Western Hemisphere. IITC accomplished this in 1977—largely on the basis of the work of its first director, a Cherokee named Jimmie Durham—when delegations from 98 American Indian nations were allowed to make presentations before a subcommission of the U.N. Commission on Human Rights at the Palace of Nations in Geneva, Switzerland.205

In 1981, the United Nations reacted to what it had heard by establishing a Working Group on Indigenous Populations, lodged under the Economic and Social Council (ECOSOC), an entity dedicated to the formulation of international law concerning the rights and status of indigenous nations vis-à-vis the various states by which they’d been subsumed.206 The regularized series of hearings integral to working group procedure provided an international forum within which American Indians and other indigenous peoples from Australia, New Zealand, Polynesia, and Micronesia could formally articulate the basis of their national rights and the effects of governmental abridgment of these rights.207

By the late 1980s, the working group had completed a global study of the conditions under which indigenous peoples were forced to live, and had commissioned a comprehensive study of the treaty relationships existing between U.N. member states and various native nations.208 The stated objective of the working group has become the eventual promulgation of the earlier mentioned “Universal Declaration of Indigenous Rights” (originally scheduled for submission to the U.N. General Assembly in 1992), holding the same legal and moral force as the Universal Declaration of Human Rights, the 1948 Convention on Prevention and Punishment of the Crime of Genocide, assorted Geneva Conventions, and other elements of international law.209

The result of this international approach was to deny the United States the veil of secrecy behind which it had conducted its Indian affairs as a purely “internal matter.” Exposed to the light of international attention, the federal government was repeatedly embarrassed by the realities of its own Indian policies and court decisions. As a consequence, federal courts became somewhat more accommodating in the Black Hills case than they might otherwise have been.

When the Lakotas rejected monetary settlement of their land claim in 1979–80, AIM was instrumental in popularizing the slogan, “The Black Hills Are Not For Sale.”210 This was again coupled with direct extralegal action when Russell Means initiated an occupation in 1981—“the first step in physically reclaiming the Paha Sapa,” as he put it—of an 880-acre site near Rapid City in the Black Hills. The AIM action again caused broad public attention to be focused upon the Lakota land claim, and precipitated the potential for another major armed clash with federal forces. The latter possibility was averted at the last moment by a federal district judge who, reflecting the government's concern not to become engaged in another “Wounded Knee-type confrontation,” issued an order enjoining the FBI and U.S. Marshals Service from undertaking an assault upon the occupants of what was by then called Yellow Thunder Camp.211

Under these conditions, the government was actually placed in the position of having to sue the Indians in order to get them to leave what it claimed was U.S. Forest Service property.212 AIM countersued on the basis that federal land-use policies in the Black Hills violated not only the 1868 treaty, but also Lakota spiritual freedom under the First Amendment to the U.S. Constitution and the Indian Religious Freedom Act.213 In 1986, the government was stunned when U.S. District Judge Robert O’Brien ruled in favor of AIM, finding that the Lakotas had every right to the Yellow Thunder site, and that the United States had clearly discriminated against them by suggesting otherwise. The Yellow Thunder ruling was a potential landmark, bearing broad implications for application in other Indian land claims in the United States. However, O’Brien's finding was severely undercut by the Supreme Courts “G-O Road Decision” and was consequently overturned by the Eighth Circuit Court.214

Like the Lakota legal strategy, AIM's course of largely extralegal action has proven insufficient in itself to resolve the Black Hills land claim. Nonetheless, it can be seen to have had a positive bearing on the evolution of litigation in the matter, and it has accomplished a great deal in terms of bringing public attention to, and understanding of, the real issues involved. In this sense, the legal and extralegal battles fought by Lakotas for Paha Sapa may be viewed as having been, perhaps inadvertently, mutually reinforcing. And, together, these two efforts may have created the context in which a genuine solution can finally be achieved.

By the mid-1980s, the image of the United States regarding its treatment of the Lakotas had suffered so badly that a New Jersey senator, Bill Bradley, took the unprecedented step of introducing legislation the Indians themselves had proposed.215 With the goal of finally ending the Black Hills “controversy,” the draft bill, S. 1453, was proposed to “re-convey” title to 750,000 acres of the Hills currently held by the federal government, including subsurface (mineral) rights, to the Lakotas. Further, it provided that certain spiritual sites in the area would be similarly retitled. These sites, along with some 50,000 of the re-conveyed acres, would be designated a “Sioux Park”; the balance of the land returned would be designated a “Sioux Forest.”

Additionally, considerable water rights within the South Dakota portion of the 1868 treaty territory would be reassigned to the Lakotas. A “Sioux National Council,” drawn from all existing Lakota reservations, holding increased jurisdiction within the whole 8.5 million acres of the 1868 Great Sioux Reservation, would also be established. Timbering, grazing permits, and mineral leasing in the Black Hills would be transferred to Lakota control two years after passage of the bill, thus establishing a viable Lakota economic base for the first time in nearly a century. The $122.5 million awarded by the Court of Claims, plus interest accrued since 1980—a total of over $350 million216—would be disbursed as compensation for the Lakotas’ historic loss of use of their land rather than as payment for the land itself. Finally, the draft bill posited that it would resolve the Black Hills claim only, having no effect on “subsisting treaties.” In other words, with satisfactory settlement of the Hills issue in hand, the Lakotas would remain free to pursue resolution of their claims to the 1868 Unceded Indian Territory and the 1851 treaty territory.217

Although the Bradley Bill was obviously less than perfect—compensation remained very low, considering that the Hearst Corporation's Homestake Mine alone has extracted more than $18 billion in gold from the Black Hills since 1877,218 and the United States and its citizens are left with considerable land and rights in the area to which they were never legally entitled—it represented a major potential breakthrough not only with regard to the Black Hills land claim, but to U.S.-Indian relations far more generally. Although the full Lakota agenda was not met by the bill, it probably came close enough that the bulk of the people would have endorsed it. That, more than anything, was a testament to their own perseverance in struggle in the face of astronomical odds. The bill, however, foundered during the late eighties in the wake of a campaign to “improve” upon it advanced by a rather mysterious individual named Phil Stevens.

Throughout his life, Stevens functioned as a nonindian, fashioning for himself a highly profitable defense contracting corporation in Los Angeles. Deciding to retire in 1984, he sold his company for an estimated $60 million. Thereupon, he claimed to have “discovered” he was a direct descendant of a noted Lakota leader and to be consumed with a belated passion to “help” his people. In 1986, he began to approach certain disaffected elements on the reservation, arguing that with his federal contacts and “negotiating expertise,” he could better not only the monetary compensation portions of the Bradley Bill, increasing reparations to $3.1 billion, but improve upon its jurisdictional provisions as well.219 He punctuated his points by spreading relatively small quantities of cash around destitute Lakota communities and stipulated that all he needed was to be designated “Great Chief of All the Sioux” to get the job done.220

Resistance to Stevens’ posturing was intense in many quarters, especially among those who worked most unstintingly to bring Bradley's initiative into being. Nonetheless, interest in Stevens’ ideas had reached sufficient proportions by early 1988 that Gerald Clifford, chief negotiator and chair of the Black Hills Steering Committee (which had

drafted the legislation), was compelled to take him to Washington, D.C., to broach his proposals to various key congresspeople.221 The timing was most inopportune, given that Bradley had, since introducing his bill for a second time on March 10, 1987, been able to secure support for the legislation even from such notoriously anti-Indian senators as Lloyd Meeds (Washington). The chairs of both the House and Senate Interior Committees— Representative Morris Udall (Arizona) and Senator Daniel Inouye (Hawai‘i)—had also agreed to serve as cosponsors.222

The baleful consequences of Stevens’ Washington tour soon became evident. Bradley had no intention of amending his bill to include Stevens’ $3.1 billion compensation package or getting caught in the crossfire between competing Sioux factions. With Clifford's reluctant concurrence, Bradley decided to hold his bill in abeyance until the Lakotas settled their internal dispute.223 The first significant congressional land return initiative in U.S. history now thoroughly in tatters, Stevens quickly quit the field, withdrawing his flow of funds to the reservation communities as well.

Meanwhile, “liberal” South Dakota Senator Tom Daschle capitalized on the situation, founding what he called the “Open Hills Committee,” designed to “counter… the long-term campaign…by those who seek to replace the 1980 Supreme Court settlement with a massive land and even more massive money transfer.”224 The committee is chaired by Daschle's close friend David Miller, reactionary “revisionist historian” at Black Hills State University in Spearfish, South Dakota.

The Open Hills Committee [mainly] riled up what Miller himself described as South Dakota's considerable redneck population, people who would “just as soon load up shotguns” as return any portion of the Hills to the Sioux. In a part of the country where many people thought of Indians either as dirty drunks or crazed militants, the Open Hills Committee had no difficulty recruiting.225

In a context of mounting tension between Indians and whites in South Dakota during 1989, Daschle had no difficulty in teaming up with his fellow senator from South Dakota, Larry Pressler, in securing an agreement from Inouye, by then chair of the Senate Select Committee on Indian Affairs, that there would be “no hearings, mark-ups, or other action” taken on any Black Hills legislation without the express consent of the “South Dakota senatorial delegation.”226 In 1990, Pressler sought to follow up by introducing a resolution which would have required yet another reservation-by-reservation poll of the increasingly desperate Lakotas with regard to accepting the Supreme Courts 1980 cash award as “final resolution of the Black Hills question.”227

Small wonder that “Clifford [along with many others who question Stevens’ story about his ancestry] view[s] the emergence of Stevens’ program as an unmitigated disaster, the work not of a savior but of a ‘manipulator and salesman,’ a gloryhound whose ties to the tribe were at best attenuated.”228 Russell Means, observing that “no provocateur could have done a better job of screwing up the Black Hills land claim,” has openly expressed suspicions that Stevens may have been an outright federal agent of some sort, or at least an individual aligned with the opponents of the Lakota land claims.229 Uncharacteristically, even arch-conservative editor of the Lakota Times Tim Giago agreed with Means, describing Stevens as “a ringer, pure and simple.”230

In the end, the question becomes whether some version of the Bradley Bill can ever be passed in anything resembling its original form. If so, the Lakotas’ long fight for their land, and for their integrity as a nation, will have been significantly advanced. Moreover, a legislative precedent will have been set which could allow other peoples indigenous to what is now the United States to begin the long process of reconstituting themselves. This, in turn, would allow the U.S. itself to begin a corresponding process of reversing some of the worst aspects of its ugly history of colonization and genocide against American Indians. The prospect remains, but it is now only a feeble glimmer of what it was ten years ago. Only a substantial upsurge of nonindian support for the concept— unlikely, given the typical priorities manifested by even the most progressive sectors of Euroamerica—would now serve to salvage the legislative option.

In the alternative, if comparable remedies are rejected, and thus fail to resolve what by any measure is the best known of all Indian land claims in North America, it will be a clear sign that the United States remains unswervingly committed to its longstanding policy of expropriating Indian assets by whatever means are available to it, and to destroying indigenous societies as an incidental cost of “doing business.” In that event, the Lakotas will have no real option but to continue their grim struggle for survival, an indication that the future may prove even worse than the past. The crossroads in this sense has already been reached.


The Western Shoshone Land Claim

A differently waged, and lesser known, struggle for land has been conducted by the Newe (Western Shoshone), mainly in the Nevada desert region. In 1863, the United States entered into the Treaty of Ruby Valley, agreeing—in exchange for Newe commitments of peace and friendship, willingness to provide right-of-way through their lands, and the granting of assorted trade licenses—to recognize the boundaries encompassing approximately 24.5 million acres of the traditional Western Shoshone homeland, known in their language as Newe Segobia (see Figure 4.6).231 The U.S. also agreed to pay $100,000 in restitution for environmental disruptions anticipated as a result of Euroamerican “commerce” in the area.

As concerns the ultimate disposition of territorial rights within the region, researcher Rudolph C.Ryser has observed that, “Nothing in the Treaty of Ruby Valley ever sold, traded or gave away any part of the Newe Country to the United States of America. Nothing in this treaty said that the United States could establish counties or smaller states within Newe Country. Nothing in this treaty said the United States could establish settlements of U.S. citizens who would be engaged in any activity other than mining, agriculture, milling and ranching.”232

From the signing of the treaty until the mid-twentieth century, no action was taken by either Congress or federal courts to extinguish native title to Newe Segobia.233 Essentially, the land was an area in which the United States took little interest. Still, relatively small but steadily growing numbers of nonindians did move into Newe territory, a situation which was generally accommodated by the Indians so long as the newcomers did not become overly presumptuous. By the late 1920s, however, conflicts over land use had begun to sharpen. Things worsened after 1934, when the U.S. installed a tribal council form of government—desired by Washington but rejected by traditional Newes—under provision of the IRA.234 It was to the IRA council heading one of the Western Shoshone bands, the Temoak, that attorney Ernest Wilkinson went with a proposal in early 1946.

i_Image1

FIGURE 4.6. Traditional Shoshone Territory.

Wilkinson was a senior partner in the Washington-based law firm Wilkinson, Cragen, and Barker, commissioned by Congress toward the end of World War II to draft legislation creating the Indian Claims Commission. The idea he presented to the Temoak council was that his firm be retained to “represent their interests” before the ICC.235 Ostensibly, his objective was to secure the band's title to its portion of the 1863 treaty area. Much more likely, given subsequent events, is that his purpose was to secure title for nonindian interests in Nevada and to collect the ten percent attorney's fee he and his colleagues had written into the Claims Commission Act as pertaining to any compensation awarded to native clients.236 In any event, the Temoaks agreed, and a contract between Wilkinson and the council was approved by the Bureau of Indian Affairs in 1947.237

Wilkinson followed up in 1951 with a petition to the ICC arguing that his representation of the Temoaks should be construed as representing the interests of the entire Newe Nation. The commissioners concurred, despite protests from the bulk of the people involved.238 While such a ruling may seem contrary to popular notions of “American

Justice,” it is in fact entirely consistent with the form and function not only of the commission, but of federal Indian law more generally. As Dan Bomberry, head of the Seventh Generation Fund, has explained:

When the U.S. succeeded in forcing the Indian Reorganization Act upon tribes, installing puppet governments, the ultimate U.S. aim was to make Indians a resource colony, like Africa was for Europe. Sometimes the issue is coal or uranium and sometimes it's just open land… The role of the Indian Claims Commission is to get the land of tribes who do not have puppet governments, or where the traditional people are leading a fight to keep land and refuse money.239

It follows that, from the outset, Wilkinson's pleadings, advanced in hearings by his partner, Robert W.Barker, led directly away from Newe rights over the Ruby Valley Treaty Territory. The Shoshone objectives in agreeing to go to court have been explained by tribal elder Saggie Williams, a resident of Battle Mountain: “All we wanted was for the white men to honor the treaty. [We] believed the lawyers we hired were to work for the Indians and to do what the Indians asked. But they didn’t. They did as they pleased and told us we didn’t have any land. At the time, we didn’t talk about selling our land with the lawyer because we had the treaty, which settled the land question; it protected [our] lands.”240

As Glenn Holly, a Temoak leader of the contemporary land claims struggle, puts it, “Most of our people never understood that by filing with the Claims Commission, we’d be agreeing we lost our land. They thought we were just clarifying the title question.”241 However, “Barker filed the claim in 1951, asserting that the Western Shoshones had lost not only their treaty lands, but also their aboriginal land extending into Death Valley, California. He put the date of loss at 1872 (only nine years after the Treaty of Ruby Valley), and he included in the twenty-four million acre claim some sixteen million acres that the Shoshones insist were not occupied by anyone but Indian bands, and that were never in question. But the Justice Department agreed with Barker's contention. Since opposing attorneys agreed, the Claims Commission did not investigate or seek other viewpoints.”242

Clarence Blossom, one of the Newe elders who signed the original contract with Wilkinson, and who supported Barker for a time, points out that “[t]he land claim was never explained to the people. The old people do not even understand English. It was years later that I read that once you accept money, you lose your land. The government pulled the wool over our eyes. If I had known what was going on, I never would have accepted the attorney contract.”243

As Raymond Yowell, a member of the Temoak Band Council and another original signatory, laid it out in a 1978 issue of the Native Nevadan: “A majority of the people present [at a 1965 mass meeting called to confront the attorneys] objected to the way Barker was giving up the remaining rights to our lands and walked out… Soon after, at [another such] meeting, about 80 percent of the people showed their opposition by walking out. It is important that at these meetings Barker insisted we had no choice as to whether to keep title to some lands or to give them up for claims money. The only choice was whether to approve or disapprove the [compensation package]. And if we disapproved we would get nothing (emphasis added).”244

Ultimately, the Wilkinson, Cragen, and Barker firm received a $2.5 million federal subsidy for “services rendered” in its “resolution of the matter” in a fashion which was plainly detrimental to the express interests of its ostensible clients.245 Shawnee scholar and activist Glenn T.Morris has summarized the matter in what is probably the best article on the Western Shoshone land struggle to date.

In 1962, the commission conceded that it “was unable to discover any formal extinguishment” of Western Shoshone to lands in Nevada, and could not establish a date of taking, but nonetheless ruled that the lands were taken at some point in the past. It did rule that approximately two million acres of Newe land in California was taken on March 3, 1853 [contrary to the Treaty of Ruby Valley, which would have supplanted any such taking], but without documenting what specific Act of Congress extinguished the title. Without the consent of the Western Shoshone Nation, on February 11, 1966, Wilkinson and the U.S. lawyers arbitrarily stipulated that the date of valuation for government extinguishment of Western Shoshone title to over 22 million acres of land in Nevada occurred on July 1, 1872. This lawyers’ agreement, entered without the knowledge or consent of the Shoshone people, served as the ultimate loophole through which the U.S. would allege that the Newe had lost their land.246

By 1872 prices, the award of compensation to the Newe for the “historic loss” of their territory was calculated, in 1972, at $21,350,000, an amount revised upwards to $26, 154,600 (against which the government levied an offset of $9,410.11 for “goods” delivered in the 1870s) and certified on December 19, 1979.247 In the interim, by 1976, even the Temoaks had joined the other Newe bands in maintaining that Wilkinson and Barker did not represent their interests; they fired them, but the BIA continued to renew the firm's contract “on the Indians’ behalf” until the claims commission itself was dissolved in 1979.248

Meanwhile, the Newes retained other counsel and filed a motion to suspend commission proceedings with regard to their case. This was denied on August 15, 1977, appealed, but upheld by the U.S. Court of Claims on the basis that if the Newe desired “to avert extinguishment of their land claims, they should go to Congress” rather than the courts for redress. The amount of $26,145,189.89 was then placed in a trust account with the U.S. Treasury Department in order to absolve the U.S. of further responsibility in the matter.249

One analyst of the case suggests that if the United States were honest in its valuation date of the taking of Newe land, the date would be December 19, 1979— the date of the ICC award—since the [commission] could point to no other extinguishment date. The U.S. should thus compensate the Shoshone in 1979 land values and not those of 1872. Consequently, the value of the land “that would be more realistic, assuming the Western Shoshone were prepared to ignore violations of the Ruby Valley Treaty, would be in the neighborhood of $40 billion. On a per capita basis of distribution, the United States would be paying each Shoshone roughly $20 million … The [U.S.] has already received billions of dollars in resources and use from Newe territory in the past 125 years. Despite this obvious benefit, the U.S. government is only prepared to pay the Shoshone less than a penny of actual value for each acre of Newe territory.250

The Newes as a whole have refused to accept payment for their land under the premise articulated by Yowell, now Chair of the Western Shoshone Sacred Lands Association: “We entered into the Treaty of Ruby Valley as co-equal sovereign nations . . . The land to the traditional Shoshone is sacred. It is the basis of our lives. To take away the land is to take away the lives of the people.”251 Glenn Holly concurs. “Nothing happened in 1872,” he says. “No land was ‘taken’ by the government. We never lost that land, we never left that land, and we’re not selling it. In our religion, it's forbidden to take money for land. What's really happening is that the U.S. government, through this Claims Commission, is stealing the land from us right now.”252 “We should have listened to our old people,” Yowell sums up, “They told us Barker was selling out our lands. It took me years to realize it.”253 Giving form to this sentiment, were the sisters Mary and Carrie Dann, who not only refused eviction from their homes by the U.S. Interior Department's Bureau of Land Management (BLM)—which claimed at that time to own property that had been in their family for generations—but challenged all U.S. title contentions within the Newe treaty area when the Bureau attempted to enforce its position in court.

In 1974, the Dann sisters were herding cattle near their home (a ranch outside Crescent Valley, Utah) when a BLM ranger stopped them and demanded to see their grazing permit. The Danns replied that they did not need a permit since they were not on U.S. land, but the land of the Western Shoshone Nation. They were charged with trespassing. “I have grazed my cattle and horses on that land all my life,” says Carrie Dann, “and my mother did before me and her mother before her. Our people have been on this land for thousands of years. We don’t need a permit to graze here.”254

The trespassing case was filed in the U.S. District Court for Reno, where the sisters invoked aboriginal land rights as a defense. The ensuing litigation has caused federal courts to flounder about in disarray ever since. As John O’Connell, an attorney retained by the Newes to replace Barker, and who has served as lead counsel in defending the Danns, has put it, “We have asked the government over and over again in court to show evidence of how it obtained title to Shoshone land. They start groping around and can’t find a damn thing. In fact, the relevant documents show the United States never wanted the Nevada desert until recently. There's no doubt in my mind that the Western Shoshones still hold legal title to most of their aboriginal territory. The great majority of them still live there and they don’t want money for it. They love that desert. But if the Claims Commission has its way, the United States may succeed in finally stealing the land ‘legally.’”255

In 1977, the district court ruled that the Danns were indeed “trespassers”—fining them $500 each, an amount they have steadfastly refused to pay—because the claims commission had allegedly resolved all title questions. This decision was reversed on appeal to the Ninth Circuit Court in 1978 because, in the higher court's view, the question of land title “had not been litigated, and has not been decided.”256

On remand, the district court engaged in a conspicuous pattern of stalling, repeatedly delaying its hearing of the case for frivolous reasons. “The judge never wanted [the second] trial,” O’Connell recalls. “At one point I accused the government of deliberately delaying the Dann case long enough to get the Indian claims check written, under the theory that once payment was received Indian title would have been extinguished and the Danns would have been prevented from asserting it. The judge admitted on record that he was “sympathetic with the government's strategy” in this regard.257 In the end, this is exactly what was done.

In other words, a $26 million payment to Indians who never sought it, tried to stop it, and refused to accept it—payment for lands that were alleged by the payer to have been “taken” in 1872, but which the courts have finally affirmed were never “taken” at all—is now being used as the instrument to extinguish Indian title.258

The district court, however, in attempting to reconcile its mutually contradictory determinations on the topic, observed that “Western Shoshone Indians retained unextinguished title to their aboriginal lands until December of 1979, when the Indian Claims Commission judgment became final (emphasis added).”259 This, of course, demolished the articulated basis—that a title transfer had been effected more than a century earlier—for the commission's award amount. It also pointed to the fact that the Commission had comported itself illegally in the Western Shoshone case insofar as the Indian Claims Commission Act explicitly disallowed the commissioners (never mind attorneys representing the Indians) from extinguishing previously unextinguished land titles. Thus armed, the Danns went back to the Ninth Circuit and obtained another reversal of the lower court's decision.260

The government appealed the circuit court's ruling to the Supreme Court and, entering yet another official (and exceedingly ambiguous) estimation of when Newe title was supposed to have been extinguished, the justices reversed the circuit court's reversal of the district court's last ruling. Having thus served the government's interest on appeal, the high court declined in 1990 to hear an appeal from the Danns concerning the question of whether they might retain individual aboriginal property rights based on continuous occupancy even if the collective rights of the Newe were denied.261

Tom Luebben, another of the nonindian attorneys involved in defending Newe rights, has assessed the methods of litigation employed by the U.S. “It is dear that one of the main strategies the government uses in these cases is simply to wear out the Indians over decades of struggle,” he observes. “The government has unlimited resources to litigate. If the Indians win one victory in court, the government just loads up its legal guns, adds a new, bigger crew of fresh lawyers, and comes back harder. It is the legal equivalent of what the cavalry did a hundred years ago. There is simply no interest in justice. It is hardball all the way. The government has all the time in the world to achieve its goals. The Indians run out of money, they get tired of fighting; they get old, and finally, after 10 to 20 years, somebody says, ‘The hell with it; let's take what we can.’ It's really understandable that it worked out that way, but it's disgusting and it's wrong.”262

Thus far, such tactics have proven unsuccessful against the Newe. “A new [resistance] strategy was hatched [in 1990] to sue the government for mineral and trespass fees from 1872 to 1979,” says analyst Jerry Mander. “The logic of the argument was that since the courts now recognize that the Shoshones did have legal title until the Claims Commission took it away in 1979, they are entitled to mineral and trespass fees for 109 years. This would amount to billions of dollars due the Shoshones; it was hoped that this amount [would be] sufficient to cause the government to negotiate. But the [district] court rejected this new intervention on the technical grounds that the specific interveners were not parties to the original claim. This suit may yet—re-emerge.”263

The need for it was punctuated in November 1992 which the Dann sisters’ brother, Clifford, took direct action to block impoundment of wild horses and other livestock by the Bureau of Land Management (BLM). Stating that in “taking away our livelihood and our lands, you are taking away our lives,” he doused himself with gasoline and attempted to set set himself afire. Quickly sprayed with fire extinguishers by surrounding BLM rangers, Dann was then arrested and, for reasons never adequately explained, charged with assaulting them. On May 17, 1993, he was sentenced to serve nine months in prison, two years probation and a $5,000 fine.264

For their part, Mary and Carrie Dann have announced their intent to go back into court with a new suit of their own, contending that the continuous use and occupancy evidenced by Newes on the contested land “prior to the authority of the Bureau of Land Management” (which began in 1935) affords them tangible rights to pursue their traditional livelihood. “They hope,” Mander notes, “to carve a hole in the earlier [judicial] decisions…which might open a doorway for the rest of the Western Shoshones” to do much the same thing.265

The chances were bolstered on March 6, 1998, when the Inter-American Commission on Human Rights of the Organization of American States issued a formal request to the U.S. government that it stay all further action with respect to evictions, impoundment of livestock, and the like, “pending an investigation by the Commission” into the historical context of the case, the respective rights of the parties involved, and, consequently, the legal validity of current U.S. policies vis-à-vis the Newes.266

Perhaps most important, as of this writing, the Dann sisters remain on their land in defiance of federal authority. Their physical resistance, directly supported by most Newes and an increasing number of nonindians, forms the core of whatever will come next. Carrie Dann is unequivocal: “We have to be completely clear. We must not allow them to destroy Mother Earth. We’ve all been assimilated into white society but now we know it's destroying us. We have to get back to our own ways.”267 Corbin Harney, a resistance leader from the Duckwater Shoshone Community in northern Nevada, reinforces her position: “We don’t need their money. We need to keep these lands and protect them.”268

Federal officials tend to be equally straightforward, at least in what they take to be private conversation. Mander quotes one Interior Department bureaucrat, a reputed “Jimmy Carter liberal” responsible for seeing to it that Indians get a “fair shake,” as saying in an interview, “[L]et me tell you one goddamn thing. There's no way we’re ever letting any of the Indians have title to their lands. If they don’t take the money, they’ll get nothing.”269

The accuracy of this anonymous assertion of federal policy is amply borne out by the fact that an offer of compromise extended by a portion of the Shoshone resistance in 1977 —that the Newes would drop their major land claim in exchange for the establishment of a three million-acre reservation, guarantee of perpetual access to specified sacred sites outside the reservation, and payment of cash compensation against the remaining 21 million acres—was peremptorily rejected by then Secretary of the Interior Cecil Andrus. No explanation of this decision was ever offered by the government other than that the secretary felt that being relegated to a landless condition would be in the Indians’ “best interests.”270

Leo Kurlitz, an assistant to Andrus and the Interior Department's chief attorney at the time the compromise offer was rejected, admits that he “didn’t give the legal issues much thought.”271 Admitting that he was “uncomfortable” with the very idea that the Shoshones “still seem to possess title” to their land, he acknowledges that “under no circumstances was I going to recommend that we create a reservation… I saw my job as assessing the resource needs of the Shoshones, but I couldn’t recommend that we establish a reservation.”272

Mander's unnamed source says much the same thing, observing that, “These Indian cases make me so damned uncomfortable, I wish I didn’t have to work on them at all.”273 He professes a certain bewilderment that at least some indigenous nations refuse to be bought off: “I really can’t understand what these people want. Their lawyers get them great settlements—the Shoshones were awarded $26 million, and the Sioux may get [more than $300 million] for the Black Hills—and damn if they don’t turn around and start talking about land.”274

Such uniform and undeviating adamance on the part of diverse Interior Department personnel that not so much as a square inch of the Nevada desert, other than the minor reservations already designated as such, will be committed for Newe use and occupancy may seem somewhat baffling on its face. Their collective willingness to lay out not inconsiderable quantities of tax dollars in order to retain absolute control over such barren and lightly populated territory—with interest, the Western Shoshone settlement award now exceeds $80 million and is increasing steadily—raises further questions as to their motivations.275

Quite possibly, a hallowed U.S. pseudophilosophy, extended from the nineteenth century doctrine of “Manifest Destiny” and holding that Indians are by definition “disentitled” from retaining substantial quantities of real property, has a certain bearing in this connection.276 Most probably, concern that a significant Newe land recovery might serve to establish a legal precedent upon which other indigenous nations could accomplish similar feats also plays a role.277 Another part of the answer can probably be glimpsed in the July 1996 purchase of a 48,437-acre ranch in Crescent Valley by the Oro Nevada Mining Company.278

Oro Nevada Mining, which also holds mineral rights to an additional 46,606 acres of “public lands” in the area, is a subsidiary of the Canadian transnational, Oro Nevada Resources, Ltd.279 The parent corporation has been heavily involved in the mining boom which has recently afflicted the Innu and Inuit peoples of Labrador, around Voisy Bay, and in Nitassinan, along the north shore of the St. Lawrence in Québec.280 Another subsidiary, Bre-X, was created to explore and develop gold deposits for the Suharto régime in Indonesia.281

In Crescent Valley, it is believed that Oro is preparing to enter into a collaborative arrangement with Placer Dome/Kennecott subsidiary Cortez Gold, which already operates mines on the Pipeline and Pipeline South gold deposits further north, to extract the mineral from areas immediately adjoining the Dann Ranch.282 Indeed, there has been talk throughout the mining industry that Crescent Valley may well turn out to be the scene of the next big gold rush. To some extent self-fulfilling prophecies, such rumors have in turn prompted corporations from as far away as Australia to begin acquiring speculative leases.283

Even more to the point, however, is the fact that federal usurpation of Newe land rights since 1945 has devolved upon converting their “remote” and “uninhabited” territory into a sprawling complex of nuclear weapons testing facilities. In addition to the experimental detonations conducted in the Marshall Islands during the 1950s, and a handful of tests in the Aleutians a few years later, nearly 1,000 U.S. nuclear test blasts have thus far occurred at the Energy Resource and Development Administration's Nevada Test Site located within the military's huge Nellis Gunnery Range in southern Nevada.284 At least as recently as July 2, 1997, a “subcritical” plutonium device was detonated there.285

This largely secret circumstance has made Newe Segobia an area of vital strategic interest to the United States and, although the Shoshones have never understood themselves to be at war with the United States, it has afforded their homeland the dubious distinction of becoming by a decisive margin “the most bombed country in the world.”286 The devastation and radioactive contamination of an appreciable portion of Newe property has been coupled to construction of a primary permanent storage facility for nuclear waste at Yucca Mountain, a site well within the Ruby Valley treaty area.287 Moreover, the Pentagon has long since demonstrated a clear desire, evidenced in a series of plans to locate its MX missile system there, for most of the remaining Newe treaty territory, that vast and “vacant” geography lying north of the present testing grounds.

The latter situation, which involved bringing approximately 20,000 additional nonindians onto Newe land, creating another 10,000 miles of paved roads, and drawing down 3.15 billion gallons of water from an already overtaxed water table in order to install a mobile missile system accommodating some two hundred nuclear warheads, provoked what may have been the first concerted Shoshone response to military appropriation of their rights.288 As Corbin Harney put it at a mass meeting on the matter convened in October 1979 after the Carter administration had made its version of the MX program public, “Now we are witnessing the real reason why we are being forced to accept money for lands.”289

At the same meeting, Glenn Holley articulated the implications of the MX project to the Newes. “Water is life,” he said, “and the MX system will consume our water resources altogether. Another thing the MX will destroy is the natural vegetation: the herbs like the badeba, doza, sagebrush, chaparral, Indian tea… [N]ot only the herbs but other medicines like the lizard in the south, which we use to heal the mentally sick and arthritis. There will also be electric fences, nerve gas, and security people all over our lands. It will affect the eagles and the hawks, the rock chuck, ground squirrel, rabbit, deer, sage grouse, and rattlesnake. If this MX goes through, it will mean the total destruction of the Shoshone people, our spiritual beliefs and our ways of life.”290

On this basis, overt Newe opposition to nuclear militarism became both pronounced and integral to assertion of their land claims. As the matter was framed in a resolution first published by the Sacred Lands Association during the early 1980s, “The Western Shoshone Nation is calling upon citizens of the United States, as well as the world community of nations, to demand that the United States terminate its invasion of our lands for the evil purpose of testing nuclear bombs and other weapons of war.”291

This stance, in turn, attracted attention and increasing support from various sectors of the nonindian environmental, nuclear freeze, and antiwar movements, all of which are prone to engaging in largescale demonstrations against U.S. nuclear testing and related activities. Organizations such as SANE, Clergy and Laity Concerned, Earth First!, and the Sierra Club were represented at the 1979 mass meeting. Their loose relationship to the Shoshone land claim struggle has been solidified through the work of Newe activists like the late Joe Sanchez, and reinforced by the participation of groups like Friends of the Earth, the Environmental Defense Fund, the Great Basin Greens Alliance, the American Peace Test, and the Global Anti-Nuclear Alliance.292

As Mander puts it, “[In this regard], there have been some positive developments. Many of the peace groups have belatedly recognized the Indian issue and now request permission from the Western Shoshone Nation to demonstrate on their land. The Indians, in turn, have been issuing the demonstrators ‘safe passage’ permits and have agreed to speak at rallies. The Western Shoshone National Council has called the nuclear testing facility ‘an absolute violation of the Treaty of Ruby Valley and the laws of the United States’ …Peace activists are instructed that if they are confronted or arrested by U.S. government officials while on Shoshone land, they should show their Shoshone permits and demand to continue their activities. Furthermore, in case of trial, the defendants should include in their defense that they had legal rights to be on the land, as granted by the landowners.”293

It is in this last connection that the greatest current potential may be found, not only for the Newes in their struggle to retain (or regain) their homeland, but for (re) assertion of indigenous land rights more generally, and for the struggles of nonindians who seek genuinely positive alternatives to the North American status quo. In the combination of forces presently coalescing in the Nevada desert lie the seeds of a new sort of communication, understanding, respect, and the growing promise of mutually beneficial joint action between native and nonnative peoples in this hemisphere.294

For the Shoshones, the attraction of a broad—and broadening—base of popular support for their rights offers far and away the best possibility of bringing to bear the kind and degree of pressure necessary to compel the federal government to restore all, or at least some sizable portion, of their territory. For the nonindian individuals and organizations involved, the incipient unity they have achieved with the Newes represents both a conceptual breakthrough and a seminal practical experience of the fact that active support of native land rights can tangibly further their own interests and agendas.295 For many American Indians, particularly those of traditionalist persuasion, the emerging collaboration of nonindian groups in the defense of Western Shoshone lands has come to symbolize the possibility that there are elements of the dominant population that have finally arrived at a position in which native rights are not automatically discounted as irrelevancies or presumed to be subordinate to their own.296 On such bases, bona fide alliances can be built.

Herein lies what may be the most important lesson to be learned by those attempting to forge a truly American radical vision, and what may ultimately translate that vision into concrete reality: Native Americans cannot hope to achieve restoration of the lands and liberty which are legitimately theirs without the support and assistance of nonindians, while nonindian activists cannot hope to effect any transformation of the existing social order which is not fundamentally imperialistic, and thus doomed to replicate some of the most negative aspects of the present system, unless they accept the necessity of liberating indigenous land and lives as a matter of first priority.297

Both sides of the equation are at this point bound together in all but symbiotic fashion by virtue of a shared continental habitat, a common oppressor, and an increasingly interactive history. There is thus no viable option but to go forward together, figuratively joining hands to ensure our collective well-being, and that of our children, and our children's children.


MOVING FORWARD

The question which Inevitably arises with regard to indigenous land claims, especially in the U.S., is whether they are “realistic.” The answer, of course, is “no they aren’t.” Further, no form of decolonization has ever been realistic when viewed within the construct of a colonialist paradigm. It wasn’t realistic at the time to expect George Washington's rag-tag militia to defeat the British military during the American independence struggle. Just ask the British. It wasn’t realistic, as the French could tell you, that the Vietnamese should be able to defeat U.S.-backed France in 1954,298 or that the Algerians would shortly be able to follow in their footsteps.299 Surely, it wasn’t reasonable to predict that Fidel Castros's pitiful handful of guerrillas would overcome Batista's regime in Cuba, another U.S. client, after only a few years in the mountains.300 And the Sandinistas, to be sure, had no prayer of attaining victory over Somoza twenty years later.301 Henry Kissinger, among others, knew that for a fact.

The point is that in each case, in order to begin their struggles at all, anticolonial fighters around the world have had to abandon orthodox realism in favor of what they knew (and their opponents knew) to be right. To paraphrase Daniel Cohn-Bendit, they accepted as their agenda—the goals, objectives, and demands which guided them—a redefinition of reality in terms deemed quite impossible within the conventional wisdom of their oppressors. And, in each case, they succeeded in their immediate quest for liberation.302 The fact that all but one (Cuba) of the examples used subsequently turned out to hold colonizing pretensions of its own does not alter the truth of this—or alter the appropriateness of their efforts to decolonize themselves—in the least. It simply means that decolonization has yet to run its course, that much remains to be done.303

The battles waged by native nations in North America to free ourselves, and the lands upon which we depend for ongoing existence as discernable peoples, from the grip of U.S. internal colonialism is plainly part of this process of liberation.304 Given that our very survival depends upon our perseverance in the face of all apparent odds, American Indians have no real alternative but to carry on.305 We must struggle, and where there is struggle there is always hope. Moreover, the unrealistic or “romantic” dimensions of our aspiration to quite literally dismantle the territorial corpus of the U.S. state begin to erode when one considers that federal domination of Native America is utterly contingent upon maintenance of a perceived confluence of interest between prevailing governmental/ corporate elites and common nonindian citizens.306

Herein lies the prospect of longterm success. It is entirely possible that the consensus of opinion concerning nonindian “rights” to exploit the land and resources of indigenous nations can be eroded, and that large numbers of nonindians will join in the struggle to decolonize Native North America. Few nonindians wish to identify with or defend the naziesque characteristics of U.S. history. To the contrary, most seek to deny it in rather vociferous fashion.307 All things being equal, they are uncomfortable with many of the resulting attributes of federal posture and—in substantial numbers—actively oppose one or more of these, so long as such politics do not intrude into a certain range of closely-guarded self-interests. This is where the crunch comes in the realm of Indian rights issues. Most nonindians (of all races and ethnicities, and both genders) have been indoctrinated to believe the officially contrived notion that, in the event “the Indians get their land back,” or even if the extent of present federal domi nation is relaxed, native people will do unto our occupiers exactly as has been done to us; mass dispossession and eviction of nonindians, especially Euroamericans, is expected to ensue.308

Hence, even those progressives who are most eloquently inclined to condemn U.S. imperialism abroad and/or the functions of racism and sexism at home tend to deliver a blank stare or profess open “disinterest” when indigenous land rights are mentioned.309 Instead of attempting to come to grips with this most fundamental of all issues concerning the continent upon which they reside, the more sophisticated among them seek to divert discussion into “higher priority” or “more important” topics like “issues of class and gender equity” in which “justice” becomes synonymous with a redistribution of power and loot deriving from the occupation of Native North America even while the occupation continues (presumably permanently).310

Sometimes, Indians are even slated to receive “their fair share” in the division of spoils accruing from expropriation of their resources.311 Always, such things are couched—and typically seen—in terms of some “greater good” than decolonizing the .6 percent of the U.S. population which is indigenous.312 Some marxist and environmentalist groups have taken the argument so far as to deny that Indians possess any rights distinguishable from those of their conquerors.313 AIM leader Russell Means snapped the picture into sharp focus when he observed that:

So-called progressives in the United States claiming that Indians are obligated to give up their rights because a much larger group of non-Indians “need” their resources is exactly the same as Ronald Reagan and Elliot Abrams asserting that the rights of 250 million North Americans outweighs the rights of a couple million Nicaraguans. Colonialist attitudes are colonialist attitudes, and it doesn’t make one damn bit of difference whether they come from the left or the314

Leaving aside the pronounced and pervasive hypocrisy permeating their positions, which add up to a mentality defining “settler state colonialism,”315 the fact is that the specter driving even most radical nonindians into lockstep with the federal government on questions of native land rights is largely illusory. The alternative reality posed by native liberation struggles is actually much different:


When you think about it like this, the great mass of nonindians in North America really have much to gain, and almost nothing to lose, from native people succeeding in struggles to reclaim the land which is rightfully ours. The tangible diminishment of U.S. material power which is integral to our victories in this sphere stands to pave the way for realization of most other agendas—from antiimperialism to environmentalism, from Afroamerican liberation to feminism, from gay rights to the ending of class privilege— pursued by progressives on this continent. Conversely, succeeding with any or even all these other agendas would still represent an inherently oppressive situation if their realization is contingent upon an ongoing occupation of Native North America without the consent of Indian people. Any North American revolution which failed to free indigenous territory from nonindian domination would be simply a continuation of colonialism in another form.322

Regardless of the angle from which you view the matter, the liberation of Native North America, liberation of the land first and foremost, is the key to fundamental and positive social changes of many other sorts. One thing, as they say, leads to another. The question has always been, of course, which “thing” is to be first in the sequence. A preliminary formulation for those serious about achieving (rather than merely theorizing and endlessly debating) radical change in the United States might be “First Priority to First Americans.” Put another way, this would mean, “U.S. Out of Indian Country.” Inevitably, the logic leads to what we’ve all been so desperately seeking: The U.S.—at least as we’ve come to know it—can be permanently banished from the planet. In its stead, surely we can join hands to create something new and infinitely better. That's our vision of “impossible realism.” Isn’t it time we all went to work on attaining it?