Alan van Gestel
On February 5, 1970, in the United States District Court at Utica, New York, there was born a phenomenon remarkable in American jurisprudence. On that day the first of an aggregation of lawsuits commonly called the Eastern Indian land claims was filed. An organization calling itself the Oneida Indian Nation of New York claimed ownership to roughly 100,000 acres of land, approximately 872 of which were then occupied by the counties of Madison and Oneida, New York, and asked the court to declare the counties trespassers. The great bulk of the county land constituted a giant spiderweb made up of portions of the local highway systems. The complaint charged that in 1795, 175 years before its filing in court, and before the counties of Madison and Oneida even existed, the State of New York purchased land from the Oneida Indian Nation in a transaction that was illegal because it did not have the technical approval of the federal government.
A little over two years later, on June 2, 1972, another Indian community, the Passamaquoddy Tribe, filed a complaint in the United States District Court in Bangor, Maine. In this second case the Indians sought to compel the help of the federal government in bringing suit against the State of Maine and private landowners for over 12 million acres of land, more than half of the entire state. The transaction that formed the basis for the Passamaquoddy complaint occurred in 1794, 178 years before its filing and when the State of Maine did not exist. In 1794 what is now Maine was a district of Massachusetts and the land involved was under its jurisdiction.
With the filing of the Oneida and Passamaquoddy lawsuits, the Eastern Indian land claims began in earnest. In the next eighteen years, through 1988, states east of the Mississippi witnessed a cascade of over thirty lawsuits by groups of Indians, all seeking, in one way or another, to “recover” from states, counties, cities, towns, and private landowners over 35 million acres of land. The predicates of the claims are acts, or failures to act, by one or more of the sovereign states in their dealings with various Indian tribes or groups, the latter being the objects of benign neglect by their guardian, the United States of America.
Understanding the issues and who the adversaries are in these liti-gative wars is of the utmost importance. They are fought over rights and liabilities shared among three different kinds of political entities—the government of the United States, the government of the individual state containing the land in question, and the government of the Indian community bringing the lawsuit. Significantly, those who are threatened with the greatest loss are not any of the governments involved. They are, instead, the innocent and law-abiding citizens who live under the clouds of these legal battles. None of the people whose land is the target of these claims were even born until many decades after the purchases in question were completed. Why must they receive this procrustean treatment?
A catalog of some of the major claims that have been litigated or are still pending will give a picture of what is involved. If some claims are left out of this catalog is not meant to suggest they lack importance but merely to indicate that a description of all claims is not necessary to make the point. As already noted, the first Oneida claim involved approximately 100,000 acres in New York’s Madison and Oneida counties, and the Passamaquoddy case clouded the title to 12 million acres in the State of Maine. A later Oneida claim, based on preconstitutional transactions with the State of New York, lays claim to almost 6 million acres spread through twelve counties in the central and northern part of that state, running from the Pennsylvania border in the south to the St. Lawrence River boundary with Canada. The Oneida are not the only claimants in New York State, as is evidenced by a 64,000-acre claim brought by the Cayuga in Seneca and Cayuga counties, an 11,600-acre claim brought by the St. Regis Mohawk, principally in St. Lawrence County, and a claim to a six-square-mile area in southeastern Madison County and southwestern Oneida County by the Stockbridge-Munsee.
The Mashpee claim in Massachusetts involved all the land in the entire Town of Mashpee, approximately 15,000 acres. In Florida the Micco-sukee claimed 5 million acres, as did a similarly threatening challenge by the Seminole Tribe. Then the Chitimacha Tribe in Louisiana entered the fray, seeking recovery of 3 million acres, while, in South Carolina, the Catawba Tribe campaigned in the courts to recover 144,000 acres in the northwestern corner of that state. Other claims involving smaller land areas have been threatened, filed, resolved or settled in Connecticut, Massachusetts, New Jersey, New York, Rhode Island, Virginia, and Vermont.
While the total area subjected to these claims is difficult to determine, in part because references in the various complaints are often made to purchases vaguely described in documents literally centuries old, 35 million acres is a conservative estimate. Thus, the land areas that are the subject of these claims are vast, encompassing geography as great as entire states larger than the size of Maine or South Carolina or entire countries larger than Austria, Hungary, Ireland, or Scotland.
No mere abstract right to remote, unoccupied tracts is at issue in these courtroom offensives. At risk are titles to innumerable homes, businesses, municipal facilities, schools, colleges, universities, hospitals, and other public services. In addition, if the Indians’ lawsuits are successful, throughout the eastern part of the country the stability of state and local taxation programs could be cast into immediate disarray, with consequent disruptions extending far beyond the areas claimed. The financial and sociological consequences would be disastrous and widespread. The personal fiscal security of a great many individuals and families, as well as that of business and governmental obligations, could be fatally impaired or wiped out. The hopes and investment-backed expectations of hundreds of thousands, perhaps millions, of blameless citizens, would be dashed. What was vacant and unimproved land when the Indians “owned” it is now enormously valuable property benefiting, and benefiting from, the industry, investments, and development of many generations of people, businesses, and governmental bodies that did not even exist when the asserted wrongs were supposedly committed.
Attorneys for the Indians proceed with superficial simplicity evoking generally sympathetic public reactions. They demand that their clients be “restored” to “immediate possession,” a demand which ignores that by no means all Indians affected are aware of, much less support the cases, and which obscures the fact that no single or simple order could be fashioned to grant such relief. The cases represent legal activism on behalf of causes thought to be noble, with tactics generally invented and defended by the attorneys, not their clients. Yet, given the dislocations and disruptions that would inevitably result, and assuming the order of the court which made it would be obeyed, the federal judge would have to provide for and oversee innumerable contingencies and ramifications. In effect, the court would have to establish itself by judicial fiat as a kind of “transitional government” and appoint its officers as unelected vice-regents to manage a transfer which could take many years.
It is not “merely” a restoration of possession to real estate that would flow from such a final judgment. Because of peculiarities and fictions which abound in Indian law, the courts, in actuality, are asked to create entirely new sovereignties out of major portions of the states involved, with political and social ramifications of inconceivable complexity.
Perhaps more darkly for our judicial system, which relies on public obedience to its mandates, the ultimate result of Indian victories could instigate civil disobedience on a massive scale. Courts would be well advised to proceed with caution before issuing orders which may not be obeyed and cannot be enforced. It was, coincidentally, an earlier Indian case1 which is said to have produced the disobedient response from President Andrew Jackson: “John Marshall has made his decision, let him enforce it.”
Once before, the Supreme Court faced the issue of deciding the question of the rightful government of one of the states. In declining to do so it pointed out some of the pitfalls involved:
[I]f this Court is authorized to enter upon this inquiry as proposed by the plaintiff, and it should be decided that the charter government [of Rhode Island] had no legal existence during the period of time above mentioned,—if it had been annulled by the adoption of the opposing government,—then the laws passed by its legislature during that time were nullities; its taxes wrongfully collected; its salaries and compensation to its officers illegally paid; its public accounts improperly settled; and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not in some cases as criminals.
When the decision of this Court might lead to such results, it becomes its duty to examine very carefully its own powers before it undertakes to exercise jurisdiction.2
In many of the Eastern Indian land claims the plaintiffs also seek from the present-day landowners the “fair rental value” of the land claimed “for the entire period of [their] dispossession.” These amounts, if they could be determined at all, would be staggering. The result of an execution on such judgments could only be countless personal, business, and municipal defaults. These are not cases where the treasury to be tapped is that of the United States3 or the sums to be paid, although large, are manageable. Enforcement of the judgments would dwarf the largest and most complicated, expensive, and time-consuming bankruptcy proceedings and business reorganizations on record. Those judgments would constitute, by judicial order, some of the greatest transfers of wealth ever seen; transfers from the present day landowners to the “successors in interest” of Indian communities, themselves of doubtful existence when the transactions in issue occurred.
The problem facing the courts in Indian cases was thoughtfully and sensitively addressed by Chief Judge Warren K. Urbom of the District of Nebraska:
[White Americans] may also ask themselves questions: How much of the sins of our forefathers must we rightly bear? What precisely do we do now? Shall we pretend that history never was? Can we restore the disemboweled or push the waters upstream to where they used to be?
Who is to decide? White Americans? The Native Americans? All, together? A federal judge?
Who speaks for [the Indians]? Those traditional people who testified here? Those [Indians] of a different mind who did not testify? The officials elected by [the Indians]?
Feeling what was wrong does not describe what is right. Anguish about yesterday does not alone make wise answers for tomorrow. Somehow, all the achings of the soul must coalesce and with the wisdom of the mind develop a single national policy for governmental action.4
The plantiffs in these cases characterize themselves as Indian “nations” or “tribes” who are “the direct descendants” of aboriginal Indian communities who inhabited the claim areas centuries ago. These Indians claim to be the owners of, and to have the exclusive right to possession of, all their ancestors’ aboriginal territory. The parties being sued are actually hundreds of thousands, perhaps millions, of individuals, business entities, municipalities, governmental agencies, schools, colleges and others who now assert various interests in and occupy the land.
The Treaty of Paris of 1783, concluding the American Revolutionary War, made no provision for the Indian allies of either Britain or the United States. Thus, the claimants in one of the largest of the cases5 have alleged, the Continental Congress took separate steps to adjust relations with the Indian tribes pursuant to authority delegated under Article IX of the Articles of Confederation.
A significant portion of Article IX provides:
The United States in congress assembled shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the Sixth Article [having to do with the invasion of a state] . . . entering into treaties and alliances ... of regulating the trade and managing all affairs with Indians, not members of the States, provided that the legislative right of any State within its own limits be not infringed or violated.
On September 22, 1783, Congress passed a “proclamation” prohibiting and forbidding all persons from making settlements on lands inhabited or claimed by Indians “without the limits or jurisdiction of any particular state” and from purchasing or receiving any gift or cession of “such lands” unless expressly authorized and directed by the United States in Congress assembled. The 1783 Proclamation also provided that every “such purchase or settlement” not having the authority of the United States would be null and void and that no right or title would accrue in consequence of any “such purchase, cession or settlement.” The United States Constitution became effective on the first Wednesday of March 1789.6 Unlike Article IX of the Articles of Confederation, the Constitution contained language which made clear the absolute power of the federal government to regulate affairs with Indians. The debates at the Constitutional Convention reflect the intentions of the Framers—to commit the sole and exclusive power to manage Indian affairs to the federal government, thereby freeing the Constitutional Charter from the conflicting claims of state power which had plagued the Confederation. The Constitution vested in the Congress the power to regulate “commerce . . . with the Indian tribes.”
The First Congress passed the first of a series of Indian trade and intercourse acts, codifying federal jurisdiction over Indian land transactions under the new Constitution. There has been a form of Indian trade and intercourse act continuously in force from July 22, 1790, to the present. The current version of the Act provides in part that:
[n]o purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.7
Most of the Eastern Indian land claims assert that the United States did not authorize or participate in the negotiation of the land purchase transactions between the States and the Indian tribes, nor did it ever later ratify the purchases.
These cases, if successful, will overturn almost 200 years of real property law and transactions and affect “immediate possession” or the “fair market value” of millions of acres of land. They seek to do so despite the enormous changes to the parties and the land that have occurred in the intervening centuries. Indeed, two of the cases8 seek to do so despite the fact that the claims involve transactions which took place before the founding of the government that established the courts in which the cases are pending. These transactions occurred, generally, at times when there was no national government worthy of the name, and the only laws to apply and courts to apply them were the laws and the courts of the thirteen original states. In these pre-constitutional years the sovereignty of the thirteen states was unimpaired by membership in anything like the present federal system, established by a constitution deriving its powers and legitimacy directly from the American people.
The Indians who are suing are twentieth-century groups composed of twentieth-century people who do not themselves claim they were cheated or defrauded by the present landowners. They claim instead to be “successors in interest” (succeeding to the rights of their ancestors by being born into the tribe) to eighteenth-century Indian communities which in the eighteenth century, they claim, were cheated and defrauded by an eighteenth-century political sovereignty. The Indian “governments” then ceded vacant, wild, and for the most part uninhabited land on the frontier of a new and struggling country; their successors now want to “recover” vastly improved and fully inhabited property in the hearts of stable and prosperous states.
Most of the present landowners can trace their ancestry only so far back as Ellis Island or other ports of debarkation for America’s great immigrant population. Even those with roots that reach to the Mayflower or the Half Moon can hardly be charged with active malice toward the Indians of the eighteenth century. All current landowners acquired their property in utter innocence of these ancient Indian claims. Not a single man or woman who has been sued had any hand in the motives or methods of the land purchases by the various states occurring one or two centuries before their birth. Today’s landowner defendants are nothing less than hostages in a power struggle between three governments—federal, state, and Indian.
Judge Nichols, of the United States Court of Claims, made an apt point in a 1978 Indian claim. He said:
Though the role is relatively new for courts, historians have long been assessing the morality of statesmen, warriors, and prelates of the past. They have learned how to do it in a more sophisticated way than is often found in court opinions. For example, let me quote from Macaulay’s essay on Machiavelli—
Every age and every nation has certain characteristic vices, which prevail almost universally, which scarcely any person scruples to avow, and which even rigid moralists but faintly censure. Succeeding generations change the fashion of their morals, with the fashion of their hats and their coaches; take some other kind of wickedness under their patronage, and wonder at the depravity of their ancestors.
It pleases us to consider the Indian a protected ward as to his present needs, and a wronged victim as to the past. We wonder at the depravity of our ancestors because they had a different view. Our ancestors might have wondered at our depravity could they have enjoyed the gift of prophesy.
The whole essay is a superb example of Macaulay’s technique in passing moral judgment on the past, and I cannot recommend it too highly. But it has not been universally accepted. Lord Acton, of the generation that followed Macaulay, may be taken as representing a contrary approach. He is best known to Americans today by the famous quote, become a cliché, about absolute power corrupting absolutely. This he tossed off as an aside in a personal letter to the Reverend Mandell Creighton, who had displeased Acton by being too easy on long dead Popes in his “History of the Papacy.” Acton took the occasion to expound his favorite thesis, which was that it is the duty of the historian to avenge the evil and wrong of the past, by harsh denunciation of its principal actors. In doing this, his standards are those of the present, because right and wrong do not change, like fashions in coaches and hats. Thus he would judge everyone from Attila the Hun to Zoroaster strictly by the standards of a Victorian English gentleman. See Essays on Freedom and Power, Lord Acton, selected by Gertrude Himmelfarb, Gloucester, Mass. 1972.
We have a good deal of Actonism with us today. Thus, we do not own slaves, or countenance others owning them, but Thomas Jefferson did, and therefore his memory is deemed by many not worthy of respect or veneration. Ironically, Acton himself defended slavery in an essay written in 1861, and therefore by his own technique of moral admeasurement, he was wicked too. Much of our contemporary Actonism is based on sheer ignorance, or the view that history is “not relevant,” but Acton himself was enormously learned. Our national sport of discovering and denouncing the depravity of our ancestors has both knowledgeable and ignorant practitioners.9
That the landowner defendants have been figuratively seized as hostages in the political battle between the Indian, state, and federal governments was proudly proclaimed by Professor Robert N. Clinton of the University of Iowa Law School. In August of 1981, Professor Clinton replied to an earlier version of this essay (van Gestel 1981) which criticized there, as here, the use of innocent landowners as pawns in this intergovernment struggle. Commenting on the Oneida and Cayuga lawsuits in New York, Clinton said:
The litigation is necessary to afford the tribes the necessary bargaining leverage to achieve their not unreasonable demands in a political arena which has historically ignored them and even now is structured in a fashion antithetical to their interests . . . [T]he threat of the eastern Indian tribes to actually litigate and enforce their seemingly valid claims to large land areas in the east is necessary to create the required bargaining strength needed to have long ignored demands redressed. No country and no good attorney should be expected or required to negotiate from a position of weakness by unilaterally giving up or being forced to abandon a major bargaining strength [Clinton 1981].
The Eastern Indian land claims present an unusual and complex set of problems for the courts. Difficult issues of first impression have been raised and addressed; complicated, sometimes confused and often foreboding areas of the law have been surveyed and traversed. Legal fictions created earlier have been built upon. And all the while, a strange and unusual guilt complex derived from notions of past treatment of native Americans by the “invading” Europeans clouds the ability of modern courts clearly to see and apply legal and equitable concepts to protect the unoffending landowners. There is with these Indian claims no better example of the oft-quoted maxim that hard cases make bad law.
Until the advent of the Eastern Indian land claims, most Indian litigation took place in midwestern and western states and generally involved claims between Indian groups and the United States government. The basis for most claims had to do with rights under treaties, relations with Americans on and around reservations, and claims to water and mineral rights. Some of these cases involve Indian groups resettled in what was to have been a permanent “Indian Territory” (eastern Kansas and Oklahoma) under the Indian Removal policy of the 1830s. Other western cases involve groups awarded rights, guaranteed by federal treaties, to reserved remnants of their former lands. In most such treaty dealings, the semblance of formal negotiations between the United States and “governments of domestic dependent nations” were observed, although the United States soon adopted a policy of assimilation and direct management of these populations that bypassed whatever political institutions had prevailed in earlier years. It is litigation over those treaties, and the rights claimed to flow therefrom, that generally comes to mind when people think about Indian land claims.
By contrast, the Eastern Indian land claims are generally not based upon treaties or any other formal relationship with the federal government; and they do not involve rights on or about Indian reservations. They principally involve claims to land that has been inhabited and developed by non-Indians for 150 or more years. Usually the land was first acquired by purchase by one of the states when the country was first being developed and settlement began moving west. West at that time, of course, meant west of the Hudson River in New York or west of the Appalachian Mountain chain, but was still considerably east of the Mississippi River. Thus, what is being litigated are the rights to fully developed and inhabited land which has not housed an Indian tribe’s corn fields or witnessed a hunting or fishing expedition for two centuries or more.
That the Eastern Indian land claims must be taken seriously is apparent from the consequences of the Passamaquoddy claim in Maine. There, the Indians, by settlement, were granted 350,000 acres and a monetary package of $81 million.10 A much more recent resolution of an Indian land claim (albeit in Tacoma, Washington) involves the Puy-allups. On August 27, 1988, a group of Puyallup Indians, numbering some 1400, voted to accept an out-of-court settlement valued at over $140 million.11
Another indication of the seriousness of Indian land claims appears in the December 17, 1980, opinion of Judge Lumbard in Mohegan Tribe v. Connecticut.12 There, speaking for the Second Circuit Court of Appeals, he said:
In the past few years numerous suits have been brought by Indian Tribes still residing in eastern parts of the United States.13 These tribes have asserted claims to large tracts of land in the East, thereby throwing into uncertainty the validity of land titles throughout the area ... To date, the Indians have been largely successful in their legal battles regarding their claims to eastern lands. Defenses based upon state adverse possession laws and state statutes of limitations have been consistently rejected. The only grounds upon which the states have thus far succeeded in defeating Indian claims is to show that plaintiffs in these suits do not properly represent an existing tribe which can be proved to be the legitimate descendant of the original landholding tribe.14
In order to appreciate why such claims are often successful, some basic ideas of Indian land law must be understood. Very early in American judicial history a legal fiction was created which caused Indian tribes to become defined as “distinct, independent, political communities” qualified to exercise powers of self-government and having other prerogatives by reason of their tribal sovereignty.15 A legal fiction is a situation, circumstance or status contrived by the law to permit a court to dispose of a matter. It is an assumption of fact made by a court as a basis for deciding a legal question. Roscoe Pound, in his great work on jurisprudence, points out, aptly for the present discussion, that while fictions have played an important part in legal history,
We must not forget that they are a clumsy device appropriate only to periods of growth in a partially developed political organization or society in which legislation on any large scale is not possible. They are not suited to later times and developed systems. In a period of growth, when ideas are few and crude, they enable a body of law to be molded gradually, without legislative action, to meet immediate wants as they arise and to conform to the requirements of cases as they arise.
After a certain state of legal development, on the other hand, fictions retard growth and clog development. In a rational age, an age of substance rather than form, when legal doctrines are logically worked out and a body of learned jurists is at hand to apply and develop them, fictions may confuse and conceal the substance of legal precepts. In a sense they were devised to conceal the substance when the substance was not regarded as of legal consequence. They may operate still to conceal the substance after later ideas have made the substance almost the only thing of legal consequence [Pound 1949].
In Worcester v. Georgia,16 decided in 1832, one year after the Cherokee Nation case, the Supreme Court declared that a weaker power does not surrender its independence by associating with a stronger power and accepting its protection. Conquest of the Indians did, however, render tribes subject to United States law, which by the Constitution vests in Congress the ultimate power of dealing with Indian tribes.
There were more legal fictions invented in the Supreme Court’s Indian decisions of the 1830s. The relationship between the federal government and the Indians was then characterized as that between guardian and ward. This, of course, was a wholly fictitious construct of Chief Justice Marshall. As a direct result of the concepts espoused by Marshall, a tribe has been given at the same time some aspects of a sovereignty and certain rights—those of a childlike ward—protected by the “parental” United States. It is this concept of separate sovereignty which has brought to Indian country tax-free gasoline and cigarettes, high-stakes bingo and freedom from many state criminal laws. Conversely, the United States has assumed broad authority to deal with a tribe and its interests, as well as obligations to provide protection against any invasion of those interests by third parties, including the individual states. This special, but fictional, relationship has led courts to find state-created limitations on the enforcement of claims to property to be inapplicable to the property rights of Indian tribes.17
The notion of an Indian “tribe” or “nation” is itself a legal fiction much the same as the idea that a corporation is a person. The term “tribe” or “nation” as used in connection with Indian groups in the United States has a vast number of definitions and connotations. Some are ethnological, some are legal, some are historical, and some are a mixture of all of the foregoing.
In the early years “nation” did not have the political-legal meaning given it in later years. Instead, “nation” was synonymous with “a people” or “race.” In modern social science usage, the earlier usage of the word “nation” had the meaning of phrases such as “identity group” or “ethnic group” today, without the connotation of political autarchy. For an anthropologist to call the Pequot of Connecticut a “nation” is an intellectual atrocity. The sixty-five people living on the modern reservation called Pequot are all descendants of one woman, their collective great-great grandmother. Technically, they constitute a bilateral descent group.
In 1979, the United States Court of Appeals for the First Circuit discussed the legal definition of a tribe in the context of a claim for the recovery of real estate based on alleged violations of the Indian Trade and Intercourse Act. The court ruled that because of wide variations among tribal groups living in different parts of the country under different conditions, the definition of “tribe” should remain broad and flexible. The court went on basically to approve a definition included in a charge to the jury which applied the principles laid down in an earlier Supreme Court opinion.18 That definition is as follows:
By a “tribe” we understand a body of Indians of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory ... 19
The definition’s four elements: (1) “same or similar race”; (2) “united in a community”; (3) “under one leadership or government”; and (4) “inhabiting a particular though sometimes ill-defined territory”—leave much to be explained. Nevertheless, this is the most recent definition applied by a court in the context of a real estate claim by an Indian tribe. Similar concepts have been applied in earlier cases.20
The State of Connecticut once argued with considerable vigor that the Trade and Intercourse acts had geographical applications limited to “Indian country” and so did not apply to lands within the states. This contention was rejected by the Connecticut District Court;21 and the Second Circuit Court of Appeals, on December 17, 1980, affirmed that holding.22 The Supreme Court itself has stated that the Trade and Intercourse Acts “apply in all States, including the original 13.” 23 Another twist in Indian law that poses serious problems in presenting a defense relates to the allocation of the burden of proof. Although ambivalent in meaning, “burden of proof” generally refers to the responsibility for persuading the trier of fact—the judge and jury—that an alleged fact is true. When the time for decision comes, the jury, if there is one, or the judge without a jury, must be guided how to decide an issue if their minds are in doubt. The party having the burden of proof will fail if the jury or judge is unpersuaded or left in doubt about the existence of a fact.
A little known federal statute,24 first enacted in 1822, allocates the burden of proof in all trials about the rights of property in which an Indian may be a party. The 1822 statute mandates that when an “Indian” is on one side and a “white person” is on the other—and those are the precise words of the statute—the burden of proof shall fall upon the “white person” whenever the Indian shall make out a presumption of title in himself from the fact of previous possession or ownership. In 1979, 157 years after its passage, the Supreme Court added still more fictions when it construed the word “Indian,” as used in the statute, to include Indian tribes, not just individual Indians, and the word “white person” to include all non-Indians regardless of color and status or as either human or nonhuman (such as a corporation).25 Peculiarly, the court excluded from the reach of “white person” the sovereign states of the United States. Thus, the burden of proof, which in cases involving facts that occurred 150 to 200 years ago can often be determinative, has been thrust upon the only truly innocent party in these Indian land claims—the present-day landowner. At the same time the individual states, which were the perpetrators, if any wrongdoing ever occurred, do not suffer the same impediment.
The interpretation of the burden of proof statute was facilitated by an extraordinary application of legal fiction. The fiction that enables a community of Indians living as a tribe to constitute a sovereignty, a domestic dependent nation, permitted the court to avoid the blatant racism otherwise implicit in using “Indian” and “white person” as criteria for applying the law (see chapter 14).
The shifting of the burden of proof to the defendant is highly unusual in American jurisprudence—and in the situation presented by the modern Indian land claims, wholly unnecessary, even on moral grounds. The Indian plaintiffs can hardly be considered as disadvantaged in the modern federal court. The rules and principles of law are on their side, as is much of the case law. Public sentiment as reflected in the press and the academic world favors Indians in such cases. Indian cases, also, are richly subsidized by the federal government, large private foundations, church groups, and other institutions, so that most of the long-committed, specialized legal expertise works for Indian groups. There are exceedingly few lawyers with expertise among the defense bar, and no publically financed firms such as the Native American Rights Fund with its considerable resources, standing ready to defend landowners and others affected by these cases. Further, when such defenses are mounted, they are almost automatically attacked by well-organized Indian support groups—including the media, church groups, academics, and public officials—on moral, legal, political, racial, and other grounds (see chapter 13). The most common accusation hurled at those who defend landowners and local units of government in the courts is that they are “racist,” certainly a questionable tactic in a political system that prides itself in supporting the rights of defendants.
Additionally, Indians have nearly monopolized the available anthropological and historical research expertise. This is so because of the sentiments of most academics, because of the heavy level of funding available to hire them, and because when they “help” Indians they are praised by their institutions and colleagues. By contrast, those scholars who are called to serve the defense often come under intense pressure both within and outside their institutions to refrain from participation. In a judicial system that relies upon an adversarial process which assumes that the truth will emerge from two well-presented opposite positions, the situation can become entirely unbalanced.
A fundamental and pervasive difficulty with the Eastern Indians’ claims is that they ask courts to decide issues not well suited to judicial resolution, to grant relief not appropriate for an appointed tribunal, and incapable of judicial administration. Thus, a question initially faced was whether these cases are justiciable. The courts were asked to decide whether the claims presented and the relief sought were of the type which admit of judicial resolution. These difficult issues were squarely addressed by the United States Supreme Court in its second decision in one of the Oneida cases. An explanation of that important decision is vital to an understanding of Indian land claim law.
In 1977, Federal Judge Edmund Port of the Northern District of New York ruled that New York State had violated the Trade and Intercourse Act in a 1795 purchase of 100,000 acres from the Oneida Indians. Later, in 1982, Judge Port assessed damages against the counties of Madison and Oneida for trespassing on the Oneida Indian lands in the years 1968 and 1969. Finally, in 1983, Judge Port ruled that the counties were entitled to indemnification and reimbursement from the State of New York for any amounts that they may ultimately have to pay to the Indians. The basis for Judge Port’s 1983 ruling was that the State of New York, and not the counties which did not even exist at the time, was the ultimate wrongdoer and, therefore, in equity, the state should bear the cost of the loss. The Second Circuit Court of Appeals affirmed all of the rulings by Judge Port.26
The Oneida case was argued next before the United States Supreme Court on October 1, 1984.27 On March 5, 1985, the Court handed down its decision. In an opinion supported by five justices and dissented from by the remaining four, the High Court ruled that Indian tribes and nations have a common law right to sue in the federal courts for the recovery of land illegally appropriated from them, that the claims are justiciable in the federal courts (even though they may create new sovereignties), and that there is no state or federal statute of limitations which bars these claims even though they are brought centuries after the acts on which they are based.28
Justice Stevens dissented and was joined by Chief Justice Burger, Justice White, and Justice Rehnquist. The theory of the dissent was that the equitable doctrine of laches should bar a claim brought so many years after the facts on which it is based. Laches is a theory which requires a court to look at the relative equitable positions of the parties and attempt to determine whether it is fair to permit a claimant to sue long after the date of the incident in question. A laches defense includes consideration of whether there were open and innocent changes of circumstances on the part of the person being sued on the assumption of the validity of his position. Courts have traditionally found it inequitable to permit one person to stand by silently and watch another who believes he has rights in himself to make significant changes to the land and then come forward with a claim. Justice Stevens closed his dissent with the following words:
The Framers recognize that no one ought be condemned for his forefather’s misdeeds—even when the crime is a most grave offense against the Republic. The Court today ignores that principle in fashioning a common law remedy for the Oneida Nation that allows the Tribe to avoid its 1795 conveyance 175 years after it was made. This decision upsets long-settled expectations in the ownership of real property in the Counties of Oneida and Madison, New York, and the disruption it is sure to cause will confirm the common law wisdom that ancient claims are best left in repose. The Court, no doubt, believes that it is undoing a grave historical injustice, but in so doing it has caused another, which only Congress may now rectify.29
Remarkably, seven justices joined in a portion of the Oneida decision which reversed Judge Port’s findings for indemnification in favor of the counties against the state. They held that the Eleventh Amendment to the United States Constitution barred a suit in federal court against the State of New York. Since there is only a limited right or law permitting such a suit in a state court in New York, it appears that this part of the Supreme Court’s ruling effectively prevents the counties from recovery for the wrongdoing of the State of New York.
The results of the 1985 Oneida decision, together with earlier rulings on other points of Indian law, are that an Indian community which can prove itself to be a “tribe” has a common law claim to recover land which it sold hundreds of years ago, without any limitations or similar time bar, against blameless present-day landowners. Those landowners have no effective right to sue the real wrongdoer, their state government, for reimbursement even though that state government is the entity which broke the law when dealing with the Indian tribe’s predecessors. The same state government, it should be noted, has forced its citizens—private landowners—to pay taxes and abide by laws and regulations which it would have had no right to impose if the land really belonged to an Indian sovereignty. One could hardly be critical of those landowners who, when attempting to make sense of the rulings by the courts, agree with Dickens’ Mr. Bramble when he said that “the law is a ass, a idiot” (Dickens 1838).
The legal absurdity of some of the recent decisions is highlighted when one realizes that these kinds of claims can only be brought by a legally created fiction, an Indian tribe. Neither an individual Indian nor a group of Indians without the status of a tribe has standing to sue for tribal land.30 And if the individual Indian brought suit for land he claimed to be his own, he would face the same legal impediments that apply to non-Indians, including the bar of the statute of limitations or laches if he waited too long before starting suit.31 Indeed, in many of the Eastern Indian land claims wending their way through the courts, individual Indians and their families who are themselves private landowners, like their non-Indian neighbors, are hostages to the process. Thus, a fictional entity, an Indian government, can sue an individual and take his land away if a century or more ago the state government bought the land from an Indian “tribe” without the permission of the United States government. And, the only nonfictional entity, the landowner who loses his land because of the state’s ancient transgression, has no right to sue the state for indemnification.
Why must the Supreme Court play judicial brinkmanship with the lives and fortunes of the hostage landowners? Even it, after making its extraordinary and far-reaching ruling in the Oneida case, seems to realize where the true responsibility lies. After stating the law, the five justices in the majority added an intriguing final footnote to their opinion:
The question whether equitable considerations should limit the relief available to the present day Oneida Indians was not addressed by the Court of Appeals or presented to this Court by petitioners. Accordingly, we express no opinion as to whether other considerations may be relevant to the final disposition of this case should Congress not exercise its authority to resolve these far-reaching Indian claims.32
The meaning of that footnote is far from obvious. What guidance, if any, does it give to a trial court faced with one of these kinds of claims? Does it mean that in some way a judge ruling in favor of Indian claimants can nevertheless apply “equitable considerations” to limit the relief available? Does it mean to suggest that the relief may be limited? Can the judge say to the Indian tribe that it wins but it cannot have the land back? If so, what does it get from the victory—and from whom?
This footnote is a stunning example of the dilemma faced by modern courts in struggling with ancient Indian land claims and the legal fictions on which they are based. Courts want very much to compensate native Americans for ill-treatment of their ancestors in the past. At the same time, the Supreme Court at least seems, albeit in a somewhat abstruse way, to recognize that it is not fair to place the burden on the innocent landowner. The court agrees that these claims call for resolution by an elected Congress, not an appointed judge. Again, it was Chief Judge Urbom who made the point eloquently in the Wounded Knee cases. He said:
I feel not shirking of duty in saying that formulation of such a national policy should not be made by a federal judge or the handful who may review his decision on appeal. Four reasons press me to that conclusion.
First, a strength of the elective process is that the citizenry may choose those who mirror their thoughts, and an amalgam of many thus elected is more likely to reflect the conscience and wisdom of the people than a few who are appointed.
Second, legislative bodies have investigative tools for listening to a wider community than do courts for ferreting out the deeper consciousness of the body politic.
Third, relations with American Indians are rooted in international relations . . . including the laws of conquest and of treaties developed over centuries, not by courts, but by executive heads of nations through negotiations. The United States in its early history accepted in its dealings with other nations the European concepts. Perhaps it should not have done so in its relations with the American Indians. But it did. Changing now, after nearly two centuries, is a matter of massive public policy for broader exploration than courts are able to provide. Essentially, the issues here have to do with the methods of shifting power from one group to another—by war, threat of war, economic pressure or inducement, verbal persuasion, election, agreement, or gradual legislative encroachment. The acceptability of each method should be decided by the citizenry at large, which speaks directly or through its elected representatives.
Fourth, the people of the United States have not given me or any other judge the power to set national policy for them. By the Constitution the people have assigned governmental powers and have set their limits. Relations with Indian tribes are given exclusively to the executive and legislative branches. Perhaps it should be otherwise, but it is not. When and if the people amend the Constitution to put limits on the executive and legislative branches in their affairs with Indian tribes the federal courts will uphold those limits, but in the meantime the courts cannot create limits. In short, a judge must hold government to the standards of the nation’s conscience once declared, but he cannot create the conscience or declare the standards.33
On October 31, 1988, a three-judge panel in the United States Court of Appeals for the Second Circuit in New York rendered a decision in one of the largest and most complicated of all Eastern Indian land cases, which may prove to be a beacon of reality in assessing the viability of these ancient claims. The case involved the claim to almost 6 million acres of land by the successors in interest to the Oneida Indian Nation. The case was predicated upon the assertion that the State of New York illegally purchased the land in 1785 and 1788 without getting the express permission of the central government under the Articles of Confederation. It thus involved a preconstitutional transaction. The decision, perhaps for the first time, required a federal court to interpret the meaning of the Articles of Confederation, that failed charter which later required “We the People . . . to form a more perfect Union” under the constitution that became effective in March of 1789. After an extraordinarily detailed analysis of the events leading up to and reasons for the Articles of Confederation, as well as their failure, the court concluded that the historical evidence indicates that the Articles of Confederation, along with the 1784 Treaty of Fort Stanwix and the Proclamation of 1783, which were also interpreted in the decision, are properly construed not to prohibit or require the assent of Congress for New York’s 1785 and 1788 purchases of Indian land from the Oneida.34 Throughout the lengthy opinion, the court set down many lessons, all historically sound, and in a truly pragmatic way genuinely wise, which could provide the solid basis for at last disassembling the fictions that seem to confuse and conceal the substance of the legal precepts which should apply in determining these complex cases.
In appraising these Indian complaints, based as they are on eighteenth-and nineteenth-century actions and fictions, it is important that clear meanings not be distorted by the gloss of twentieth-century perceptions. These are not instances of current wrongs measured by statutes or a constitution whose meaning has evolved over the passage of time. Nor do they present instances of the federal government acting in collusion with some giant corporation cutting back on a reservation’s boundaries or overlooking the plain language of a solemn treaty. The rights of the landowners must not be ignored because a court may regard the actions of our predecessors in a manner dictated by today’s accepted views and practices. The courts must be ever careful to view the law and the actions alleged with a sensitivity to how they would have been viewed at the times of their occurrence and to the “justifiable expectations” 35 of the current landowners, whose total innocence must be acknowledged.
Courts are not free to give untrammeled effect to their personal or policy preferences. As Justice Cardozo succinctly said: “The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles” (Cardozo 1921).
What is the position of the federal government in these cases? After all, it was the federal government as guardian which, if anyone, failed the Indians generations ago; and it is the federal government today which is the embodiment of the national conscience. The federal record is dismal, confused, inept and almost wholly unresponsive. By stark contrast to the Canadian government,36 the United States, to date, has done little to assume the responsibility for and burdens of the Indian land claims. When the Indians sought relief, the federal government ignored them. When the beleaguered landowners seek to join it as a defendant it hides behind the doctrine of governmental immunity, that is, the government cannot be sued without its permission. Even in those few cases that have been settled, such as in Maine, Rhode Island, Florida, or Connecticut, it has played a reluctant role, joining in only after the parties themselves have, because of the enormous burdens of the litigation, negotiated a settlement with concessions by guiltless landowners. In addition, the United States has, as in the instance of the Oneida cases, provided funding to the Indians’ attorneys for purposes of bringing the suits.37
There is something fundamentally wrong in the stance taken by the United States government. “By standing on the sidelines as Indians and non-Indians fight these bitter court battles, the federal government has encouraged the impression that Indian advances can be made only at the expense of non-Indians who did not commit the acts alleged as the basis of the suit” (Hutchins 1980). It is neither equitable nor fair to force landowners to defend themselves against ancient claims that are in no sense based upon any wrongdoing on their part while the United States sits on the sidelines or, worse yet, assists in the prosecution.
This essay is an expanded and updated rendering of a chapter included in Iroquois Land Claims (Syracuse, NY: Syracuse University Press, 1988). By permission of Syracuse University Press.
1 Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). This story that Jackson made such a statement is likely apocryphal. He was accused of doing so before the Cherokee case was decided by his Whig political opponents, including the attorney for the Cherokee, who alluded to this in his argument before the Supreme Court. However, once the Court had rendered its judgment, President Jackson had no legal power to enforce the Court’s decision and did not do so. See Prucha 1984 Vol. 1: 212-13.
2 See Luther v. Borden, 48 U.S. (7 How.) 1, 38-39 (1849).
3 See Yankton Sioux Tribe v. United States, 272 U.S. 351 (1926).
4 United States v. Consolidated Wounded Knee Cases, 389 F.Supp. 235, 238-239 (D.Neb. and D.S.D. 1975).
5 Oneida Indian Nation of New York v. State of New York, 860 F.2d 1145 (2d Cir. 1988).
6 See Owings v. Speed, 18 U.S. (5 Wheat.) 420, 5 L.Ed. 124 (1820).
7 25 U.S.C. §177.
8 See Oneida Indian Nation of New York v. State of New York, 860 F.2d 1145 (2d Cir. 1988) and Stockbridge-Munsee v. State of New York, et al., 86-CV-1140 (N.D.N.Y. Oct. 15, 1986).
9 United States v. Oneida Nation of New York, 576 F.2d 870, 883-884 (Ct. Cl. 1978).
10 See Maine Indian Claims Settlement Act of 1980, Pub. L. No. 96-420, 25 U.S.C. §§1721-1735.
11 New York Times, August 29, 1988, p. 1.
12 638 F.2d 612 (2d Cir. 1980).
13 See e.g., Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974); Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979); Epps v. Andrus, 611 F.2d 915 (1st Cir. 1979); Oneida Indian Nation v. County of Oneida, 434 F. Supp. 527 (N.D.N.Y. 1977); Schaghticoke Tribe v. Kent School Corp., 423 F. Supp. 780 (D. Conn. 1976); Narragansett Tribe v. Southern Rhode Island Land Development Corp., 418 F. Supp. 798 (D.R.I. 1976); Joint Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975); Chitimacha Tribe v. Laws, Civ. No. 77-0772-L (W.D.La.); Catawba Indian Tribe v. South Carolina, No. 80-2050-C (D.S.C.).
14 638 F.2d at 614-615.
15 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).
16 31 U.S. (6 Pet.) 515 (1832).
17 See County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 240-244 (1985). Western Pequot Tribe v. Holdridge Enterprises, Inc., CA H-76-193 (D. Conn. 1977); Oneida Indian Nation v. County of Oneida, 434 F. Supp. 527, 541-43 (N.D.N.Y. 1977); Schaghticoke Tribe v. Kent School Corp., 423 F. Supp. 780 (D. Conn. 1976); Narragansett Tribe of Indians v. Southern Rhode Island Land Dev. Corp., 418 F. Supp. 798 (D.R.I. 1976).
18 See Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 582 (1st Cir. 1979).
19 Montoya v. United States, 180 U.S. 261, 266 (1901).
20 See United States v. Candelaria, 271 U.S. 432, 442-443 (1926); The Kansas Indians, 72 U.S. (5 Wall.) 737, 756 (1867); United States v. Wright, 53 F.2d 300 (4th Cir. 1931). See also James v. U.S. Dept, of Health and Human Services, No. 85-417 (D.D.C. Aug. 4, 1985) which urged consideration of the specially prescribed procedures for recognition of tribes developed by the Department of the Interior.
21 Mohegan Tribe v. Connecticut, 483 F. Supp. 597 (D. Conn. 1980).
22 Mohegan Tribe v. Connecticut, 638 F.2d 612 (2d Cir. 1980).
23 Oneida Indian Nation of New York v. County of Oneida, 414 U.S. 661, 670 (1974).
24 25 U.S.C. §194.
25 Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979).
26 Oneida Indian Nation of New York v. County of Oneida, 719 F.2d 525 (2d Cir. 1983).
27 The case was argued on behalf of the counties by the author of this essay, Allan van Gestel, and on behalf of the Indian claimants by Attorney Arlinda Locklear of the Native American Rights Fund in Washington, D.C.
28 County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226 (1985).
29 Id. at 273.
30 Epps v. Andrus, 611 F.2d 915 (1st Cir. 1979); Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir.), cert, denied, 444 U.S. 866 (1979).
31 Schrimpscher v. Stockton, 183 U.S. 290 (1902); Felix v. Patrick, 145 U.S. 317 (1892).
32 County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 253 n.27 (1985).
33 United States v. Consolidated Wounded Knee Cases, 389 F.Supp. 235, 239 (D.Neb. and D. S.D. 1975).
34 Oneida Indian Nation of New York v. State of New York, 860 F.2d 1145 (2d Cir. 1988).
35 Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 605 (1977).
36 In August, 1973, the Canadian government, through the Minister of Indian Affairs and Northern Development, announced that it was prepared to negotiate comprehensive land claims with aboriginal groups where their traditional and continuing interest in the lands concerned could be established. The Government of Canada thus committed itself to the resolution of comprehensive land claims through the negotiation of settlement agreements. No hostages were necessary to inspire action in Ottawa. Through its Comprehensive Land Claims policy Canada seeks to ensure consistency between that policy and other federal policies for aboriginal people and has dedicated itself to an equitable application of the policy to guarantee the overall fairness of settlements. A full description of the Canadian plan is contained in a booklet entitled “Comprehensive Land Claims Policy” published under the authority of the Hon. Bill McKnight, P.C., M.P., Minister of Indian Affairs and Northern Development, Ottawa, 1986.
37 Annually, the United States government, through the Department of the Interior, provides funding to a private Indian legal office called the Native American Rights Fund. NARF is counsel for the Indian groups who have brought most of the Eastern Indian land claims. Some of the funding is specifically earmarked for land-claims litigation.
Cardozo, Benjamin N. 1921. Nature of the Judicial Process. New Haven, CT: Yale University Press.
Clinton, Robert N. 1981. “The Eastern Indian Land Claims: A Reply.” New York State Bar Journal 53 (5) 374-375.
Dickens, Charles J.H. 1838. Oliver Twist. Chapter 5.
Hutchins, Francis G. 1980. “Righting Old Wrongs.” The New Republic (August 30, 1980) 14.
Prucha, Francis Paul. 1984. The Great Father: The United States Government and the American Indians. 2 vols. Lincoln, NE: University of Nebraska Press.
van Gestel, Allan. 1981. “The New York Land Claims: An Overview and a Warning.” New York State Bar Journal 53 (3): 182-185, 212-216.