Lo, The Poor Taxpayer
MARCH 01, 1958 by BLAKE CLARK
Mr. Clark is a roving editor of The Reader’s Digest.
The Indians are on the warpath — not for scalps but for money, and using law books in the place of tomahawks. The white man took their lands without just compensation, they say; now they intend to get paid for it. Indians are laying legal claim to reimbursement for 1,320,000,000 of the 1,900,000,000 acres of land that constitute the United States. Though many of these claims overlap, with two or more groups asking money for the same acres, the net is staggering.
If you live in West Tennessee or Arkansas, chances are that the Chickasaw or the Quapaw have claimed money for the land you occupy; if your home is in Nebraska or Minnesota, the Oto-Missouri or the Chippewa are probably after pay for your property. In the West, Midwest, and South, various tribes have their bows drawn on title to entire states.
Why this avalanche of claims? Almost every year since 1881, when the Choctaw were allowed to bring a land claim suit against the government in the U. S. Court of Claims, some Indian tribe has persuaded Congress to pass at least one special bill permitting them also to sue. The political pressure behind these requests was tremendous, particularly on senators from the Western states. In 1946, hoping to end a perennial nuisance, Congress set up a three-man Indian Claims Commission to get the facts and see that justice was done. President Truman named as chief commissioner Edgar E. Witt, former Lieutenant Governor of Texas, and as his associates, Louis O’Marr, former Attorney General of Wyoming, and William M. Holt, a prominent Nebraska lawyer. All of them are still serving.
The Indians had five years, from August 13, 1946, to August 13, 1951, to file claims. Accepting this wide-open invitation, various groups who never before had made a claim of any kind discovered that they, too, were owed something by the government. Some tribes, aided and abetted by their lawyers, made fantastic representations. The Sioux asked 15 million dollars’ recompense for the hides of all buffalo, elk and deer slain on their land by the white man between 1865 and 1880. The Quapaw, who never exceeded 600 in number, soberly demanded $54,397,110.34, plus interest since 1818, for 43 million acres extending into Oklahoma and Texas. The Miami laid claim to seven million acres in Indiana, with the city of Indianapolis as its hub. The Scaticook or Kent Indians have filed a petition stating that their forebears did not sell Manhattan Island to Peter Minuit for $24.00 — they leased it for 99 years — the lease has expired! They claim also that Westchester, Putnam, and Dutchess Counties in New York were taken by the Dutch without payment. The Ottawa claim money for Chicago, the Creek for Atlanta and Birmingham, the Arapaho for Denver, and the Apache for Phoenix.
By 1951 fewer than 500,000 Indians of the United States had demanded settlement for three-fourths of the continent in 852 different claims which may well total 10 billion dollars — an average of about $25,000 for every Indian man, woman, child, and papoose.
Ridiculous — they’ll never get it, you think? That’s what Assistant Attorney General Perry Morton thought when he took over the Department of Justice’s Lands Division in 1953. Morton was shocked to find a staff of 17 Department lawyers — now 25 — with as many clerical helpers spending full time on the apparently endless task of preparing to defend the government against these preposterous claims. Their work, with that of anthropologists and other experts, was costing the taxpayer over $500,000 a year. "Let’s clear the docket of these cases right away," Morton said, "and settle the matter once and for all."
A typical case was coming up. His plan was to win it and use the decision as a precedent that would quickly dispose of all others like it. This was the suit of the Oto and Missouri tribes demanding compensation for Kansas and Nebraska lands ceded to the government and paid for in 1833 and 1854 to the tune of $502,833. Ralph A. Barney, Chief of the Indian Claims Section, showed in court that the United States had long ago paid in full the sums then agreed upon. The Supreme Court had ruled that, after the coming of the white man, the Indians never really owned any land. All the land the Indians inhabited, according to the court, belonged to the Sovereign, the federal government, by "virtue of discovery." The Indians, therefore, had only squatters’ rights — not ownership. Any payment, Barney reasoned, was simply a gratuity, and it is impossible, he argued, for a gratuity to be unfair. He felt he had an airtight case.
Barney was scalped. The Oto and Missouri got a net judgment of $1,156,033.25 from the Commission. It was later upheld by the Court of Claims, and the Supreme Court declined to review the case. The precedent was established, but in favor of the Indians.
How had it happened? Had a white man presented a similar case in an ordinary court of law, he would not even be heard. Yet Congress, in its eagerness to do right by the Indians in accordance with the Indian Claims Act, had given them unique rights and privileges. Other Americans who wait more than six years to file a case against the government are too late — the statute of limitations applies to them. But Congress waived this statute for all past Indian claims, some of which go back to 1795. Again, if your property is condemned and taken over at the going real estate rates, you cannot later sue the government even though you foresaw a sharp rise in values and would not willingly have parted with it for twice the sum paid. The Oto-Missouri, however, sued and recovered for their ancestors’ property.
Other Indians’ legal counsel lost no time following the Oto-Missouri decision. The Kaw, whose ancestors were paid in 1846 for land in Kansas, now said the compensation received was not enough. So the United States bought it again, paying the descendants of the tribe $2,493,688.75. So far the government has been ordered to pay extra for 36,900,000 acres after trial on only a few cases involving aboriginal title and the total number of other cases waiting in line is 249.
With astronomical sums at stake, the Indians command impressive legal talent which includes a former Assistant Secretary of Interior in charge of Indian Affairs, a one-time Assistant Attorney General of the Justice Department’s Lands Division, a former senator and a university president. Some 20 law firms, from New York to San Francisco, contributed $21,000 each to a war chest from which expenses are paid to researchers, anthropologists, and other specialists. Indian cases are the lawyers’ uranium —speculative but fabulously profitable. The average barrister does not in a lifetime have a suit involving a million dollars and few Indian claims are for less. The legal fee is usually 10 per cent, plus expenses. Legendary in the profession is the $2,800,000 which a Washington counselor, Ernest Wilkinson, and his colleagues received for a $31,938,473.43 settlement reached on behalf of the Ute.
Counsel for a number of tribes, unable to determine exactly what areas these groups had long ago inhabited, cleverly introduced the 163-year-old Treaty of Greenville. This was negotiated in 1795 by General "Mad" Anthony Wayne, after the Battle of Fallen Timbers in Lucas County, Ohio, where he decisively defeated the Wyandot, Delaware, Shawnee, Ottawa, Chippewa, Potawatomi, Miami, Eel River, Wea, Kickapoo, Piankashaw, and Kaskaskia. All of these tribes had sided with the Britishduring the Revolutionary War and had continued their hostilities against Americans after the Treaty of Peace with Great Britain in 1783. They signed the treaty agreeing to stay within an area north and west of the so-called “Greenville line," which ran for 325 miles from near Cleveland south and west to Indiana, and cease their hostilities.
Title by Treaty
The Commission has now held that this treaty gave them "recognized Indian title" to 136 million acres. Thus when any of these tribes subsequently made another treaty waiving any part of the 136 million acres, the Commission has said that the waiver itself is enough to prove the boundaries of their ownership without any proof of actual use and occupation. The decision means that no tribe whose "title" was "recognized" by treaty will be required to establish as a fact that the sweeping areas involved were actually theirs.
This is another legal concession to Indians. The Supreme Court once clearly stated that to establish "title" by original occupancy, Indians had to prove that they actually used and occupied the land — had mastery over it to the exclusion of others.
Indians’ lawyers promptly pressed this advantage and obtained from the Commission a ruling that the Treaty of Prairie du Chien of August 19, 1825 was also a "recognition of Indian title" to 55 million acres in Illinois, Iowa, and Wisconsin; that the 1851 Treaty of Fort Laramie gives title to 161 million acres in Montana and Wyoming to Indians who will not be asked to prove their ancestors occupied it. Favorable decisions already rendered in the realm of recognized Indian title involve more than 342 million acres whose value is yet to be determined. The significance to taxpayers is tremendous. Potential liability is enormous. Whether the government will be any luckier in its appeal to higher courts than it was in the Oto-Missouri case remains to be seen.
Back for More
An unexpected expense to the taxpayer arose when claims Congress considered completely settled came up again. A group of Creeks who had remained loyal to the federal government during the Civil War lost much of their property when forced to seek refuge behind Northern lines. In 1901, after decades of agitation for reimbursement, Congress gave them $600,000 which they accepted in full satisfaction of their claim.
With the new opportunity to sue the government, the Loyal Creeks and their counsel came back to the Capitol. "We originally requested twice the amount received," they explained. "Now we would like the rest."
The Indian Claims Commission denied the request, but, on appeal to the Court of Claims, the Creeks succeeded in doubling their money.
The Whole of California
Easily the largest case is that presented by the Indians of California, claiming every acre of the state, together with all the inland waters. The land when taken was worth $1.25 an acre, they allege, and there are 100 million acres. Anthopologists say that more different tribes — probably 500 — lived there than in any other area the same size. Their tribal identity was disrupted so they are now suing on behalf of all, as if they were a single group. U. S. liability has already been tacitly established; the issue pending before the Commission is merely the extent to which Indians occupied the state. A corps of anthropologists have testified that they used only areas near their permanent dwellings; the Indians’ lawyers contend that their clients’ ancestors inhabited much of the state and are justified in recovering for all California. Either way, the Indians can hardly lose.
The time, trouble, and expense of defending these cases is tremendous. The government must hire anthropologists, historians, ethnologists, archeologists, linguists, and appraisers. In nearly every case, a general accounting has to be supplied of all government dealings with the tribe throughout history. At present, some 87 claim examiners, titlists, and file clerks at the General Accounting Office spend full time trying to keep up with these requests. The detail required is incredible, and each job takes months. In the Sioux case before the Court of Claims, the accounting went back 127 years to 1831 and took nine years to complete. GAO had 200 cases on hand in October 1957; 128 were being worked; 72 were still untouched.
That Guilty Feeling
Why is this allowed to continue? Behind it all is a sense of guilt for supposed ancient wrongs. We have the shameful feeling that the white man, by deceit and brute force, drove the Indians from their homes without compensation. Some of this guilt feeling is justified. Much of it is not.
It is true that many individual white settlers dealt with the Indians pretty much as they pleased. And Massachusetts Puritans disregarded Indian claims to unimproved lands, giving rise to Mark Twain’s crack that our Pilgrim fathers "fell first upon their own knees; and then upon the aborigines."
But the historic fact is that, after the Declaration of Independence, practically all land obtained by the United States from the Indians was bought and paid for in probably the greatest series of real estate transactions in history. The late Felix S. Cohen, Assistant Solicitor for the Department of the Interior and compiler of the authoritative Handbook of Federal Indian Law, stated before the House Subcommittee on Indian Affairs that, except for a region including Death Valley in California and an area in Louisiana and Texas where Indian rights were wiped out before we took possession, there was federal dealing for every square mile added to the United States.
Even after we paid Napoleon 15 million dollars for the huge areas embraced by the Louisiana Purchase, we sought out Indian tribes and paid them more than 20 times that amount for the same territory. These Indians, far from being "taken" by the whites, drove a better bargain than the French and reserved to themselves sufficient land to bring them an income that annually exceeds the lump sum we paid the Emperor.
Did the Indians receive a fair price for all their lands? Except in a few instances when soldiers helped force a treaty, the sums satisfied the Indians at the time. These amounts were not niggardly. One tract obtained from the Cherokee in 1835 cost five million dollars, a substantial percentage of the annual budget then. In all, we paid the Indians nearly a billion dollars.
Some Indians have legitimate grievances against the U. S. government, and the Indian Claims Commission is an excellent place to settle them. The Potawatomi tribe showed, for example, that the government provided for the sale of surplus reservation lands at a price far below fair market value, and in 1862 took without adequate payment 1,454 acres of tribal land for a railroad right-of-way. The Commission has assured present-day descendants fair compensation with interest for 9.4 years —a total of $359,460.61. Andrew Jackson was so eager to protect the Union by a buffer area against the Spaniards in Florida that in 1814 he forced the Creek to surrender 25 million acres without payment. The Commission has held the United States liable. In some other cases the United States has been proved negligent in handling Indian affairs turned over to us in trust. The Commission is correcting these mistakes.
A Confusion of Objectives
On the whole, our government’s high standard of dealing with native peoples is unequaled by any other nation. As Mr. Cohen said, "No one who looks at the record can say that we have willfully ignored Indian property rights in any part of our public domain."
We pay from $70 to $100 million a year to build Indian schools, roads, and irrigation systems, protect Indian resources of land, forests, and ranges, and help Indians find jobs. Indian spokesmen have long said that the Indian is a good soldier, an excellent citizen, and needs only to be helped to independence and equality with his white brother. Stirring up hopes of a fortune to be gained through suing the government is no way to reach this worthy goal.
The trouble arises from the fact that, in parts of the Indian Claims Act, Congress confused a social problem — how best to help the Indians — with a legal one. According to the Justice Department, most of the absurdity could be taken out of the situation by a revision of the Act. The Indian today needs sympathetic understanding of his problem, whether he is on a reservation or finding a place in our industrial society. If money is needed, Congress should appropriate it, but this endless and expensive legal farce should be examined with a most critical eye.
Did Congress really intend us to repurchase most of the continent? If not, Congress should take a good look at the legal precedents they have forced on the Commission and see if, after eleven years of operation, the Act is accomplishing what was intended. Until this is done, the Indians and their lawyers will continue to collect big wampum from the American taxpayer.
Ideas On Liberty
Wards of the Government
The reservation Indian is becoming less self-sufficient and more dependent upon what he calls "the Great White Father in Washington." Instead of freedom, the Indian has government-guaranteed "security." Instead of individual responsibility, he has a government bureau to handle his personal affairs. There are special laws governing his right to own land and to spend tribal money. Under that system of bondage it should surprise no one to find that many thousands of Indians have remained uneducated, hungry, diseased, and mismanaged.
Ideas On Liberty
Life on the Reservation
Whatever the pre-reservation Indian was, and his faults were real, he was able to take care of himself and had a character becoming to his culture and religion. He was a responsible person. Today he is far from that. The wretched security he has had, beginning with the food and clothing dole of early years, designed to enforce the reservation system and destroy Indian resistance, has sapped him of character. The average Indian knows that he can gamble and drink away his earnings and still be sure that his house and land will remain his own, and, with his hunting rights, he can always eke out some kind of existence.
Government men too often hamper and impede the man with initiative and character. This is because their program inevitably must be formulated in terms of the lowest common denominator, the weakest Indian. In addition, the provisions of the government for the "welfare" and "security" of the Indians remove the consequences from their sinning and irresponsibility. The result is a license to irresponsibility which all the touted government projects cannot counteract.
The Reverend R. J. Rushdoony