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• 1 2021-04-19T17:20:02+00:00 Treaties Present 1 image_header 2021-04-19T17:20:02+00:00

  Above: Erminie Wheeler-Voegelin at the Department of Justice, 1956. Erminie Wheeler-Voegelin Papers (Newberry Library, Ayer Modern MS, Wheeler-Voegelin Box 44, f. 17). View catalog record

  By the late 19th century, Indian political life focused on efforts to get the United States to fulfill treaty promises. Tribes petitioned Congress and the President for investigations of mismanagement of Indian resources and for redress for other treaty violations. Tribes sent delegations of leaders year after year to negotiate and lobby. And, as a last resort, tribes began to bring suit in federal court.

  The U. S. Court of Claims was established in 1855 for citizens to sue the United States. Tribes also sought redress here, but Congress passed legislation in 1863 barring them from this court, even though non-Indians could sue tribes. In 1881 Congress permitted individual tribes to obtain legislation that authorized the filing of a lawsuit. Obtaining an attorney required the permission of the secretary of the interior. This was a difficult process for tribes, and from 1881-1946 the court dismissed most Indian claims on legal technicalities. Practically every tribe filed one or more claims against the federal government.

  For example, after many years of petition and protest, in 1930 the Menominee obtained permission to hire an attorney, and in 1935 Congress passed legislation to allow them to sue in the Court of Claims for the mismanagement of their forest resources. They won their case in 1951, proving that the federal government failed to exercise fiduciary responsibility. Congress passed legislation in 1951 to award the Menominee about eight million dollars, but in 1954 tied that award to the termination of the Menominee’s trust relationship with the federal government.

  Listen to Menominees discussing these events

  Menominee Claim. From Since 1634: In the Wake of Nicolet. Video courtesy of Ootek Productions, 1993. View transcript

  Congress responded to pressure for reform in federal Indian policy by creating the Indian Claims Commission in 1946. This judicial tribunal was authorized to hear and determine Indian claims against the United States. Congress expected that in a short time, the Commission could dispense with Indian claims and relieve Congress of its responsibilities. Claims could be filed for failure to fulfill treaty provisions, obtain consent for land cessions, pay a fair price for land ceded, manage Indian resources and assets in a responsible manner, and, in general, failure to behave in a “fair and honorable” manner in dealings with Indians. Redress could come only in the form of a monetary judgment. Congress had to pass legislation to enable a tribe to collect an award. Claims averaged about 20 years between filing and settlement. A decision could be appealed to the Court of Claims and the Supreme Court. By 1951, 25 cases had been decided, only 2 in tribes’ favor.

  Do you want to learn more about the Indian Claims Commission?

  "Do We or Don't We?" Indianapolis Times, 9/24/1953

  News that Indian land claims would be adjudicated in court precipitated articles like this one that, by intent or not, posed an imagined threat to state residents. This article states that 200 million acres in the Midwest (Ohio, Michigan, Indiana, Illinois, Wisconsin, and Minnesota) were in question and that "the entire state of Indiana is in dispute." Even though the Indian Claims Commission was only able to make monetary judgments, the article inflames the situation by reporting that non-Indians "may have to give Indiana back to the Indians." Nine tribes were filing land claims for treaty violations in Indiana land cession cases. The cartoon ridicules the government for addressing Indian claims. Courtesy of Glenn A. Black Laboratory of Archaeology and the Trustees of Indiana University.

  "Three Cents Enough to Pay Indians?" Fort Wayne Indiana News, 9/23/1953

  This article raises the issue of injustice to Indians, which some Americans, as well as the Commission, were willing to consider. The U. S. paid for land cessions but the amounts paid were far below market value in many cases taken up by the Commission. Anthropologists at Indiana University (as well as scholars from other universities) were hired by the Department of Justice and by the Tribes suing the government to determine what tribe or tribes had exclusive occupancy of lands in question and what the fair value of the land was at the time of the treaties. The article suggests that ten dollars an acre was probably fair value for lands that the U. S. purchased for three cents per acre. In these cases, threats and fraud had been employed to obtain Indian consent. Courtesy of Glenn A. Black Laboratory of Archaeology and the Trustees of Indiana University.

  "U. S. Approves $12 Million to Pay Sioux for Land." New York Times, 8/6/1967

  The Sioux tribes (including the four Dakota communities in Minnesota) sued the U. S. over the price paid for the land they were pressured to cede during 1805-1863. The Dakotas proved fraud in the treaties of Traverse des Sioux and Mendota. The Sioux also proved that they were paid an unconscionably low amount for the lands they ceded and that the government failed to pay even that low amount in its entirety. They were awarded $12.2 million, to be divided among eight Sioux Tribes. The map shows the land in question. Courtesy of Glenn A. Black Laboratory of Archaeology and the Trustees of Indiana University.

  Erminie Wheeler-Voegelin at the Department of Justice, 1956

  Wheeler-Voegelin was one of the scholars who served as an expert witness for the Indian Claims Commission. She was on the faculty at Indiana University where much of the research on Midwest tribes was done under contract from the Department of Justice. The Commission adopted an adversarial approach so that the lawyers for the Department of Justice cross-examined the experts for the tribes and vice versa. The scholars, who viewed their research as an effort to reach an objective assessment, were extremely uncomfortable with this situation. Scholars, such as Wheeler-Voegelin, tried to instruct the court about Indian understandings of land tenure and other subjects. Their efforts informed, to some degree, subsequent rulings because the trust doctrine of the Supreme Court authorized treaties to be construed as the Indians would have understood them and ambiguities resolved in the Indians' favor. The United States, not the tribes, drew up the documents, so treaties should be read in a manner so as to protect the tribes' right to exist and to change with the times. The work of scholars on the claims also invigorated the field of "ethnohistory" as anthropologists combined the documentary record with ethnographic or archaeological field research and historians used anthropological work in combination with their documentary expertise. Wheeler-Voegelin was a key figure in the field of ethnohistory. Erminie Wheeler-Voegelin Papers (Newberry Library, Ayer Modern MS, Wheeler-Voegelin Box 44, f. 17).

  By the 1960s, Congress, influenced by public opinion, which in turn was shaped by Indian activism, was less hostile to the claims process, and the Indian Claims Commission decided cases in favor of the tribes more often than in early years. Tribal plantiffs won 57 percent of the cases filed. Although the Indian Claims Commission suspended activity in 1978, remaining cases were transferred to the Court of Claims and heard into the 1990s. Congress began making judgment awards in the 1960s, but tribes first had to obtain approval of a plan to use these funds, which delayed the awards for years. Per capita payments from these awards generally were small, about $1,000.

  Some Potawatomi communities filed a claim for unconscionable consideration, that is, they argued that the money they received for their several land cessions was below market value. The Pokagons and other Potawatomis in Michigan successfully petitioned the court to join the other plaintiffs. The Commission ruled in the Potawatomi Tribe’s favor in 1972 and 1973, and a monetary award of over $2,000,000 was made in 1974. It took several years for Congress to provide this money. The Pokagons received their share in 1983.

  Listen to John Low discuss what this claim meant to his community, the Pokagon Potawatomi

  John Low on Pokagon claims. Production by Mike Media Group, 2009. View transcript | View at Internet Archive

  In 1966, Congress passed legislation to allow tribes to bring suit in federal court, so tribes could file a wider variety of cases. For example, the Menominees sued the state of Wisconsin in 1962 after the state arrested tribal members for hunting on land assigned to the Menominee by the treaty of 1854. The state claimed that the termination of the Menominee abrogated the hunting and fishing rights guaranteed by treaty. The case went to the Supreme Court, and in 1968 the Court ruled that Menominee hunting and fishing rights survived termination, that is, tribes have an existence independent of any recognition by Congress and hunting and fishing rights are tribal rights. In other cases, Ojibwa communities filed suit to recover their off-reservation hunting and fishing rights.

  Listen to the Ojibwas’ Attorney Marc Slonim discuss the Mille Lacs v. Minnesota case

  Mille Lacs v. Minnesota. Video courtesy of Indian Country TV, 2009. View transcript

  The land claim cases and the associated frustrations spurred Indian activism. Indian organizations, such as the National Congress of American Indians, lobbied for treaty rights, and treaty rights became the rallying cry for the American Indian Movement. A “treaty rights movement” spread throughout Indian country, helping to shape a general cultural renaissance among Indians and bolstering tribal governments’ demand for sovereignty.

  Read an article in a tribal newspaper on how the Sault Saint Marie Ojibwas insisted on their exemption from the state’s motor fuel and cigarette taxes

  "Tribes close agreements over fishing and taxes," The Sault Tribe News, July 31, 2000

  How do Indian communities support the treaty rights movement?

  Eva Conner, St. Croix Ojibwa, running with the treaty staff in central Wisconsin en route to Washington D.C., 1998

  The Ojibwas had organized a number of culturally significant events in connection with the Mille Lacs v. Minnesota hunting-fishing rights case to be heard at the Supreme Court. The run with the staff energized Ojibwas throughout Minnesota and Wisconsin and elsewhere and lent a religious element to the struggle for treaty rights. Photo courtesy of Charlie Otto Rasmussen.

  Mille Lacs elder Jim Clark speaks to the crowd at the "talking circle" in Washington D.C. prior to the Supreme Court hearing in 1998

  Orations such as this one helped to mobilize support among Ojibwas and educate Ojibwas about their history and culture. Photo courtesy of Charlie Otto Rasmussen.

  At the International Indian Treaty Council, 1981

  Indigenous peoples began to share ideas and extend mutual support for aboriginal rights during the 1970s and 1980s. This council was held on White Earth reservation in Minnesota. In this photo, young people are shown with a drum that reads "International Indian Treaty Council." The drum was used as a means of transmitting prayer and as a way to unify people and restore health. The treaty rights movement motivated many young Indians to become involved in tribal politics and tribal government. Photo courtesy of Randy Croce.

  Vernon Bellecourt at the International Indian Treaty Council, 1981

  Vernon Bellecourt is seated at the table. He was an important founder and leader of the American Indian Movement. Bellecourt, an Ojibwa, was from the White Earth community. Photo courtesy of Randy Croce.

  Listen to Patty Loew, an Ojibwa journalist and activist, discuss the effects of the treaty rights movement

  Treaty Rights Movement. Video courtesy of Indian Country TV, 2009. View transcript

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  Ottawa Delegation to Washington, 1900

  During the late 19th century, Ottawa complaints about treaty violations were ignored by the U. S. Their villages in northern Michigan were in danger of being overrun by American settlers. One of the Ottawa leaders from the Harbor Springs area, Simon Keshigobenese, bought the land there to preserve it for Ottawas (Odawas). By 1900 Ottawa leaders had discovered that the U.S. had ignored the 1855 treaty obligation to invest some of the money paid to the Ottawas for a land cession. Keshigobenese and two other leaders, John Miscogon (standing) and John Kewaygeshik (on the right) went to Washington in 1900 to present the tribe’s grievances. Obtaining no satisfaction, the tribe obtained an attorney and in 1905 sued in the Court of Claims. They won the case and the accomplishment of Keshigobenese and the other leaders was a source of inspiration for future Ottawa leaders. Photo courtesy of National Anthropological Archives, Smithsonian Institution (NAA INV0613000/OPPS NEG 00466B).

  Ojibwas at the Supreme Court, 1998

  Prior to 1999, the Ojibwas had won fishing rights cases based on the 1837 treaty, but Minnesota refused to recognize these decisions, so the Mille Lacs Ojibwa took the case to the Supreme Court, which ruled in their favor on March 24, 1999. On December 1998, prior to the hearing, Ojibwa people from many reservations held a prayer ceremony outside the Court. Tobasonakwut, an Ojibwa spiritual leader from Canada, is shown here leading the pipe prayer ceremony. Photo courtesy of Great Lakes Indian Fish and Wildlife Commission (GLIFWC)

  Lawsuit against the U. S. for Financial Mismanagement

  In 1996, the Native American Rights Fund brought suit against the Department of the Interior on behalf of about 500,000 Indians, including people from the Midwest. At issue was the Department’s management of the income from allotments (largely lease and royalty income). NARF argued that the Department mismanaged and did not properly account for the money in the individual accounts. The income from allotments is collected and managed by the federal government, as trustee. This lawsuit initially was started by an Indian woman from the Blackfeet tribe in Montana, then became a class action suit. The federal district court in Washington DC ruled on behalf of the Indian plaintiffs and the judge ordered the Department to take corrective measures. In 2002, the judge held federal officials, including Secretary of the Interior Gale Norton and Assistant Secretary for Indian Affairs Neal McCaleb (Chickasaw) (shown in the photo) in contempt for not complying in good faith. Norton and McCaleb are shown above at a hearing on Indian trust accounts, held before the House Committee on Resources, February 6, 2002. In the background is Blackfeet Tribal Business Council member James St. Goddard. On December 21, 2010, the United States District Court for the District of Columbia granted preliminary approval to the Settlement. On December 8, 2010, President Obama signed legislation approving the Settlement and authorizing $3.4 billion in funds. Photo by Bill Clark, courtesy of Scripps Howard News Service.

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