Indian Lands

Kirke Kickingbird and Karen Ducheneaux

[Reprinted from The People's Land, A Reader on Land Reform in the United States, edited by Peter Barnes for the National Coalition for Land Reform, printed by Rodale Press, 1975]

The Indian land problem is not confined to a single region. Rather, it stems from a long and tragic history of conquest and destruction that began on the Atlantic shores and still goes on - albeit with less bloodshed - today. The latest rush for Indian lands and water rights is occurring in places like Arizona and Montana, where energy companies are eager to develop coal that lies beneath Indian reservations. White people have never understood the Indian concept of the sacredness and non-divisibility of land; just compare our stewardship of the North American continent during the past 200 years with the Indian stewardship over the preceeding 1,000 years! Of course, it is too late to get white men out of North America, but there is at least a chance for a more enlightened policy toward Indians, Here Kirke Kickingbird and Karen Ducheneaux survey the origins of U.S. policy toward native Americans and recommend a new policy based on establishing an inviolable Indian land base. Kickingbird, a Kiowa, [at the time of this writing was] an attorney with the Institute for Development of Indian Law in Washington. Ducheneaux, a Cheyenne River Sioux, [was] a staff writer for the American Indian Press Association. The following excerpt is taken from their book, One Hundred Million Acres [Macmillan, 1973].

The major source of all Indian-white conflict and confrontation has been land.

When Indians fought for their land, their struggles were called uprisings, their victories recorded as massacres. Because whites could not understand the Indians' concept of land tenure, they derided the communal use of land as inefficient or, worse, thought that the Indians were trying to "get away with something." This attitude developed in the remote past and has characterized the relationship between Indians and whites to this day.

The world of the European prior to the discovery of the New World was relatively simple. It was flat, finite and Christian. The discovery of the Western Hemisphere was a shock to most Europeans. No one had expected to find two immense continents sitting out there where the edge of the flat earth should have been.

In order to encourage exploration, the doctrine was developed that the European nation that discovered a land had exclusive rights to trade with it. This doctrine encouraged a dramatic race between exploring expeditions to "claim" lands on behalf of their respective sovereigns. It was not long before Europeans decided that their nations should not claim only trading privileges in an area but the land itself.

There was a major flaw in the doctrine of discovery: no provision was ever made for the natives of the "newly discovered" lands to obtain a final decision on their titles. Once the riches of the New World began to pour into the coffers of Europe, any consideration of native land tenure was conveniently put to rest in favor of absolute rule by the conquering power.

After the Revolution, American political theorists contended that the United States had stepped into the shoes of England with respect to the doctrine of discovery.

The United States claimed the right to extinguish all Indian titles to lands on the continent within its domestic borders, and the Indian tribes were deprived of any right of appeal. It became merely a matter of when, not if, the United States would take the lands. The assumption upon which this policy was based was that land title could only be acquired from the federal government. Indian titles were considered nonexistent.

The earliest policy on Indian lands envisioned the gradual removal of the eastern tribes to the stark plains of the West, where it was thought that no white man could exist. The policy was a step above genocide. The savagery of the Indian, his obvious inability to use the land according to Christian principles of commerce, and his persistence in his pagan religions were used to justify his banishment to the great American desert, as the Great Plains were then called. Indian land policy was thus shifted from one of original ownership to allocation by relative levels of civilization, a wholly cultural conception lacking any legal basis whatsoever.

With the adoption of the Constitution, the colonies became a federal government in which functions were allocated to the various branches of government. The President, with the advice and consent of the Senate, could make treaties with the Indians that had the same legal status as those made with foreign nations. But treaties never gave the tribes a totally sovereign and independent status in the eyes of the United States because the doctrine of discovery lurked in the background.

The interstate commerce clause authorized Congress to make laws with respect to trading with Indian tribes and with foreign nations. The first laws passed by Congress concerning the Indians primarily involved trade. With constant pressure from Western settlers, Congress began to alter its duties from mere trade regulation to total control over every aspect of Indian programs and policies. The courts have accepted the presumption that Congress always acts with wisdom and in good faith when dealing with Indians. It is a fanciful notion rather than a fact of life.

As the role of the federal government in Indian affairs has grown, various agencies have come into being that deal with Indian lands. When the Bureau of Indian Affairs was transferred to the Department of the Interior in 1849, it was placed in competition with a number of the department's other agencies, all addressing themselves to the task of supervising national physical resources. For the most part these agencies have been devoted to the confiscation of Indian lands rather than to safeguarding them for their Indian owners. The 20th century has seen a rapid growth of policies devoted to the exploitation of Indian lands by government agencies, with the Interior Department supervising the rape of Indian legal rights in a most interesting manner.

Within the Interior Department, the Bureau of Reclamation and the Wildlife Service from their very inception have coveted Indian lands. These agencies, supported on the outside by powerful groups of citizens and commercial interests, have generally determined what position would be officially taken by the parent Interior Department as protector of Indian reservation lands and waters.

It would be fair to say that if a private trustee were discovered acting in the same manner as the Interior Department does toward the Indians, he would immediately be indicted for gross violation of his trust. In all but a few cases, bureaucrats in the department have deliberately thwarted attempts by the Indian tribes to keep their lands under tribal ownership.

A case in point: an effort to take away the water rights of a number of tribes on the Colorado River in Arizona and the Rio Grande in New Mexico was made in the courts in 1971. Indian tribes had been aware that they might lose their water rights, rights that were essential to their existence in the southwestern deserts.

A number of tribes made official appeals to the Justice and Interior Departments. In a letter to Minerva Jenkins, tribal chairwoman of the Fort Mojave Tribal Council, at Needles, California, Solicitor General Erwin N. Griswold promised that the Justice Department would fully defend the rights of the tribe to water on the Colorado River. "Please be assured," he wrote in November 1970, "that the government intends to make the Supreme Court fully aware of its obligation as trustee of Indian water rights in this matter (the Eagle River case), and of any bearing that the decision may have on those rights." When, however, the Justice Department filed its brief in the case in which it was to assert the Indian water rights before the Supreme Court, it said in an obscure footnote, "To the best of our knowledge, none of the reserved water rights claimed by the United States in Water Division No. 5 relate to Indian lands."

The result of the Eagle River decision was to place all Indian water rights at the mercy of the court systems of the various states, courts that are notoriously anti-Indian. The tribes issued loud protests and finally a subcommittee of the Senate, headed by Senator Edward Kennedy, looked into the deprivation of water rights, concentrating on conflicts of interest within the Interior Department. Questioned by the committee, Harrison Loesch, assistant secretary of the Interior for land management, who oversees the administration of Indian programs, lamely related that he did not "know" that Indians placed a high priority on water.

The situation is far beyond the point of simple scandal. It is so blatant that even the President has been forced to concede the total abdication by federal officials of their responsibilities for the protection of Indian rights. In a special message on Indians sent to Congress in July 1970, President Nixon outlined new legislation of major proportions. He called for the creation of an Indian Trust Counsel Authority, a special agency independent of both the Justice and Interior Departments, to defend Indian rights. Indians have been urging this sort of thing for a long time.

Today, out of the vast continent once "owned" by American Indian people, slightly less than 100 million acres remain. Of this amount some 40 million acres only recently came into Indian hands through the Alaska land settlement, and groups of whites are now appealing that legislation in an attempt to reduce the Indian landholdings still further.

But the type of ownership that American Indians enjoy today is only theoretical. The federal government still holds Indian lands through the administrative structure of the assistant secretary of land management in the Department of the Interior. It is still accepted in the halls of Congress that Indians do not really own their lands but live on them at the pleasure of Congress. This anti-Indian sentiment is well understood everywhere in Indian country and is the major inhibiting force in developing Indian reservations.

We propose that the United States enter a new phase in its relationship with the American Indian by creating a new doctrine of Indian legal rights with respect to land titles and ownership. We propose a new category of legal status for Indian lands and a policy to stabilize the Indian land base at 100 million acres by restoring lands illegally taken during the last century. We believe this program should naturally be the first step in solving the problems of Indians created by the accidents and incidents of American history.

All lands in the new legal category called Indian lands would be held, as are all lands of Indians at present, in a legal status that makes them immune from state and federal taxation. Tribal governments would have complete control of zoning, hunting and fishing, gathering of berries, wild ricing, cutting of timber and mining of minerals. They could never be subjected to condemnation by state or local governments or by federal agencies for any purpose whatsoever. They would also have first-priority water rights on all streams arising on or passing through the lands, as they do now, but in any proposed use of water on any river or drainage system that would affect Indian rights to water, the full potential use of the Indian tribe would be determined prior to the determination of any other rights to the water.

Indian lands would not be subjected to the control of the Bureau of Indian Affairs or the Department of the Interior. They would be under the control of the tribe to which the lands belonged. Such lands could be sold by the tribe only after any plan to sell lands was presented to the whole membership of the tribe meeting in a general council and was discussed for a period of three consecutive years.

The termination of the Klamath Indians of Oregon, the Siletz and Grande Ronde Indians of Oregon, the Affiliated Utes of Utah and the bands of Paiutes of southern Utah would be ended. These tribes would be restored to full federal status, with their lands placed in the new category of Indian lands.

To facilitate the establishment of a permanent Indian land base, we recommend that two special funds be created for use by tribal governments. One fund of low-interest loans would be made available to Indian tribes to purchase allotments of individual Indians, the lands thus purchased to be added to the existing tribal estates. The other would be a no-interest fund for small tribes to purchase lands not now under Indian ownership for expansion of their existing tribal land base consistent with their needs.

We additionally recommend that the General Services Administration convene a general meeting and inform the Indian tribes about land currently surplus or soon to be surplus. We advocate priority be given to those Indian tribes or groups that present adequate use-plans for lands that are or may become surplus to federal needs.

All previous proposals for improving the condition of American Indian people have revolved around the confiscation of their lands and pious admonitions for them to stop being Indians. In the name of justice, mercy, sanity, common sense, fiscal responsibility and rationality we present this program to place Indian communities on a solid legal and economic basis once and for all. We appeal to the American people to demand of their Senators and Congressmen a new day for American Indian people, without any hidden agendas or any shifting of concepts and programs to confiscate Indian lands in the name of progress, patriotism or religion.