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Hollow JusticeA History of Indigenous Claims in the United States$

David E. Wilkins

Print publication date: 2013

Print ISBN-13: 9780300119268

Published to Yale Scholarship Online: January 2014

DOI: 10.12987/yale/9780300119268.001.0001

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. The Indian Claims Commission: From Hope to Reality

. The Indian Claims Commission: From Hope to Reality

(p.71) 4. The Indian Claims Commission: From Hope to Reality
Hollow Justice

David E. Wilkins

Yale University Press

Abstract and Keywords

The Indian Claims Commission (ICC) was not the perfect solution but it gave hope. The chapter looks at the ICC and analyses its effectiveness. Native peoples no longer had to fight individually to have bills introduced that would, if successful, allow them to file claim suits against the federal government. And no longer could single lawmakers block a tribe's right to present its claim before a court. All natives now had an opportunity to have their claims heard by a commission empowered to hear them. The chapter looks at the extent to which the ICC met up to expectations.

Keywords:   Indian Claims Commission, ICC, Native peoples, federal government, lawmakers, tribe, claims

THE INDIAN CLAIMS Commission (ICC) was not an ideal mechanism that some had expected. But to others its creation was viewed as a godsend that at long last provided some promise of hope. Native peoples no longer had to fight individually to have bills introduced that would, if successful, allow them to file claim suits against the federal government. And no longer could single lawmakers block a tribe's right to present its claim before a court. All natives would now have an opportunity to have their claims heard by a commission empowered to hear their claims.1 These hopeful prospects were somewhat tempered by the fact that the newly created commission was a federal agency, conceived of and staffed largely by non-natives whose ancestors had violated the rights of the now-petitioning Native groups. Would the commission actually benefit aggrieved Native peoples or, as had been the general rule so often in the past, would it be yet another instrument that fostered the interests of non-natives over aboriginal interests? There was much to be cautious about.

The ICC was initially composed of three members, who were appointed by the president with the advice and consent of the Senate. Early drafts of the act had called for one commissioner to be native, “but this requirement was bleached out of the final legislation.”2 At least two of the commissioners had to be attorneys, and no more than two could be members of the same political party. Though the act was passed on August 13, 1946, the first commissioners were not appointed until April 10, 1947. Edgar E. Will, a former lieutenant governor of Texas, became the first chief commissioner. He was joined by Louis J. O'Marr and William Holt. Interestingly, none of (p.72) these men had any background in federal Indian law or policy. Their ignorance of this specialized area of law would presumably enable them to be unbiased in their decisions. This gross unfamiliarity was a common characteristic of virtually all commissioners until the late 1960s when the newly burgeoning principle of indigenous self-determination changed the paradigm and demanded that newly appointed commissioners have some grounding in the complex area of Native law, policy, and history.

The offices of the ICC were in Washington, D.C., but its members were free to travel for field hearings and to conduct on-site inspections. The commission first began to function in July of 1947. It had a staff of twelve, hardly a sufficient number to undertake the tasks before it. Twenty-three staff positions had been authorized initially, but not all received funding during the first year. In addition to this administrative staff, the commissioners were authorized to establish and staff an Investigation Division to assist them in discovering the pertinent facts about each claim brought before them. Much to the detriment of the commission and Native nations, the Investigation Division existed for years only on paper, largely because the litigating attorneys were reluctant to turn over the investigative functions to an independent body. The lawyers were determined to control this function themselves.3 Nancy Lurie, a prominent anthropologist, who studied the ICC closely over a long period of time and served as an expert witness for several tribes, declared in 1985, “The greatest error of implementation of the 1946 act was the first commissioners' failure to establish the Investigation Division provided for in the act.”4

Section 10 of the ICCA stipulated that claims could be brought before the commission “by any member of an Indian tribe, band, or other identifiable group of Indians as the representative of all its members.” This controversial provision limited claims to those brought by or on behalf of Indian groups or organizations; it precluded claims by individual Indians. Congress feared that permitting individual claims would crowd the ICC's docket to such an extent that it would be impossible for the commission to function.5 The restriction (p.73) against individual claims had a profound effect upon many natives who were seeking redress, particularly those whose grievances related to abuses under the 1887 General Allotment Act. Since allotments involved individual ownership of property as opposed to tribal ownership, this type of claim was effectively foreclosed from any consideration.

The prohibition against individual claims was not the only problem emanating from Section 10. Difficulties often arose in an attempt to determine precisely what constituted “an identifiable group” of indigenous people. Unfortunately, the ICC was not consistent in its handling of this issue. Sometimes it would interpret the phrase broadly; at other times it would place a narrow constriction upon it. For instance, several tribes in the Pacific Northwest had been joined together by the Treaty of Medicine Creek and became known simply as the Medicine Creek nation. Yet when this unified group of Native peoples attempted to bring their grievances before the ICC, the commissioners required each of the groups that had formed the Medicine Creek nation to file individual tribal complaints. Similarly, the commission required the Chippewa, Ottawa, and Potawatomi tribes, who had merged into the United Chippewa, Ottawa, and Potawatomi nation, to individually file claims. In contrast, the Indians of California, a loose-knit coalition of many separate communities, were required to file claims collectively as one unit.6

Section 15 declared that each Native community or organization that brought a claim before the commission was entitled to retain the services of an attorney of its own choosing, hardly an earth-shaking proposition since within the Anglo-America system of law individuals have always been guaranteed the right to retain their own counsel. However, Section 15 went on to stipulate that the employment of attorneys would be subject to Sections 2103 to 2106 of the Revised Statutes, which required that all attorneys hired by Indian tribes be approved by the secretary of the Interior and the commissioner of Indian Affairs.7 This was a practice that Congress insisted be satisfied. The alleged rationale behind this approval requirement was that it (p.74) would protect Native peoples from potential abuses that might be foisted upon them by incompetent or otherwise unscrupulous attorneys.

To Indians, this provision smacked of paternalism and represented a continuation of federal domination over their personal and collective rights. A number of additional stipulations written into the law were designed ostensibly to protect the litigating Native communities, but they actually created an inherent conflict of interest between the plaintiffs' attorneys and their clients. Attorney fees, unless stated in an approved contract, were to be fixed by the commission and could not exceed 10 percent of the amount recovered in any case. Attorneys were permitted reimbursement of out-of-pocket expenses incurred in the litigation as long as those expenses were deemed reasonable. Furthermore, fees were to be handled on a contingency basis; that is, attorneys would be paid their money only if their client tribes won. This payment system was imposed to ensure that lawyers had an incentive to proceed with vigor and diligence. Attorney fees and expenses, therefore, were not to be paid until after a case had been concluded. But since most tribal nations lacked funds to pay for attorneys and Congress was reluctant to appropriate public funds, that “the only way to pay the attorneys was out of awards by the Commission for claims that assumed a ‘taking’ of Indian lands.” “Contingent fee financing,” in other words, “created a powerful incentive to prove the loss of as much Indian property as possible.”8

The controversy over the role of attorneys and their fees entailed continuing problems that had periodically surfaced during the congressional hearings preceding adoption of the ICC. Another provision of the act, one that did not even mention attorneys, played an important role in this debate. Section 11 precluded the transfer of any case presently before the Court of Claims to the ICC. It has been argued that this provision was inserted because cases that were being argued before the Court of Claims permitted attorney fees that ranged upward of 25 percent of the amount the tribal nation would be awarded. Had these same claims been transferred to the ICC, attorney (p.75) fees would have been restricted to the 10 percent limitation specified in the 1946 act. Vine Deloria has suggested that attorneys were instrumental in limiting the jurisdiction of the ICC to cases that arose prior to 1946 when the act was enacted. Cases arising after 1946 had to be presented to the Court of Claims, where once again the 10 percent fee limitation did not apply. “The high moral purpose of settling Indian claims,” Deloria wrote, “boiled down in the end to a lucrative bonanza for a select group of attorneys possessing the special skills to practice Indian law and the career employees of the United States who saw the complicated Indian cases as a lifetime career in a specialized field.”9

Beyond their fees, ICC attorneys, because of the manner in which they were hired, also typically operated from a mind-set that benefited the federal government as much as their indigenous client. Since “the attorneys must be approved by the United States before they can sue the United States on behalf of their Indian clients, they are a remarkably congenial group,” Deloria observed. “One need only check the number of stipulations in the course of an Indian case to see that the tribal attorneys are most cooperative with the United States so that in many instances one could hardly say that an adversarial system of litigation exists.”10

While the problem of legal representation as spelled out in the ICCA caused Native claimants real concern, it paled in comparison to the profound dissatisfaction they voiced over the types of remedies available to them. The ICCA appeared to provide a forum for a diversity of claims, but the vast majority of claims processed were claims for compensation related to land. Interestingly, “the underlying assumption—that the land itself would never be returned to its indigenous owners—is not discussed in the reported Commission and court decisions, the legislative history of the ICCA (‘ICC Act’) or the various amendments to extend the life of the Commission. The lack of commentary on this point masks its great significance.”11 It is significant, of course, because land is the foundation of indigenous identity and life ways. As Thomas Leubben points out, “The fact that the (p.76) ICC act did not empower the Commission to order the return of any land under any circumstances, and may even had foreclosed otherwise viable quiet title actions, predetermined that the ‘justice’ provided to Native Americans would be far from satisfactory.”12

Although the decision not to return land to successful tribes was nowhere spelled out in explicit terms, several clauses in the act allude to monetary compensation as remedy. Section 19, for instance, reads that the “final determination of the Commission shall … include … a statement (a) whether there are any just grounds for relief of the claimant and, if so, the amount thereof” (emphasis added). Section 22 states, “There is hereby authorized to be appropriated such sums as are necessary to pay the final determination of the Commission” (emphasis added). From these clauses the commission inferred that the congressional intent underlying the act was to limit awards to those of a monetary nature.13 Some Native peoples may have been satisfied with just monetary relief, but many other tribal nations expressed real dismay because their attachment to the land was intense and deep and they realized that in accepting money they were losing that which defined who they were. Money was viewed as an entirely inadequate remedy for such a fundamental depredation—the permanent loss of aboriginal homelands. Moreover, Section 2, clause 4 of the act empowered the commission with jurisdiction to adjudicate claims for “takings” of tribal lands. But at least 100 million acres of land for which Native nations received compensation by the ICC were never formally “taken” in any legal sense.14

The ICC was never intended to become a permanent fixture in the politico-legal arena. It was envisioned that the commission would hear those claims that arose prior to 1946, decide the cases expeditiously, and then shutter its doors and go out of business. Under the act, Congress had arbitrarily determined that all outstanding cases could be resolved within a ten-year period from the date of the commission's first meeting (Section 23). Realizing that the intricacies involved in preparing a claims case were terribly complex, tribal nations were given a five-year period in which to present their (p.77) grievances before the commission (Section 5). After the expiration of five years, no further suits could be entertained by the commission.

The first problem that confronted a number of Native nations was that many of them never received any formal notice that the commission had actually come into existence, to say nothing of an explanation of the myriad procedures to follow in initiating a claim. The commission was charged with sending out a written explanation of the law to the recognized heads of every Indian tribe and band or to any other identifiable group of Indians existing as “distinct entities” (Section 13a). Notification was also to be sent to the superintendents of all Indian agencies. who, in turn, were to provide detailed explanations of the act and its procedures to the Native communities within their regions. In fact, this provision of the act was only partially met. According to one commentator, only seventeen tribes failed to initiate claims, either because they had none or because the timeline for submission would not be met.15 This had a particular impact on those Indians living in non-recognized indigenous communities east of the Mississippi. With the exception of the Creek and Miami nations, who previously had brought suits before the Court of Claims, the unrecognized tribes of the eastern United States were virtually excluded from taking advantage of the act due to a lack of notification.16 This failure to inform the Native peoples of the commission and its role was hardly an auspicious beginning for the commission.

Some of the early mistakes committed by the ICC might well be attributed to the fact that it was not only a new governmental body but also an experimental one. Still, its failure to notify all Native groups as to their rights under the 1946 act could hardly be excused. It was a stunning oversight and resulted in profound dissatisfaction within many Native communities. But as a new bureaucratic creation, the commission had few mechanisms in place and even fewer precedents on which to rely. Thus the commission was given the authority to chart its own course, and it did so by drafting its own regulations. Unfortunately, the commissioners chose to adopt a set of rules that had been used by the Court of Claims. It appears that the commission (p.78) was heavily influenced by people who had had prominent roles in prosecuting Indian claims in the past. These connections, to attorneys and other who were active in the field of Indian claims, helped to “perpetuate an adjudicative environment in the Commission” in large part because there was a “carryover of personnel associated with such cases, i.e., the lawyers for the plaintiffs and those from the Department of Justice as defendants.”17 All of this meant that the commission functioned much more like a court than as a commission. As the commission itself once acknowledged: “[The] Commission was a court in fact and its method was adjudicatory. It functioned largely as did the Court of Claims but dealt only with Indian claims. Its expanded grounds of Government liability gave the Indian a wider scope of claims presentation and the potential for greater success in award recovery.”18

The fact that the commission took on all the trappings and functions of a court is one of the principal reasons it failed to live up to expectations. Indeed, many believed that the establishment of the commission to be one of the more disheartening aspects of the entire indigenous claims controversy. All of this seemed in direct contrast to what Congress originally had intended. There had been earlier attempts to establish an Indian Court of Claims, but these efforts met with failure. Instead, Congress opted to create a commission to focus on both investigatory and adjudicatory functions. The desire for an investigatory component is one reason the 1946 act contained a provision calling for the establishment of an Investigation Division. A commission, lawmakers had concluded, could be more flexible than a court in dealing with the highly specialized and extremely complex subject of aboriginal claims against the federal government. Congress did not want the process to become burdened with the vast network of rules and technicalities that had so hampered the Court of Claims in its attempts to deal with similar grievances.

But this was not to be—and for several reasons. First, Section 20 of the act provided for both interlocutory (provisional) review and review on appeal by the Court of Claims and the Supreme Court. (p.79) Because of this, the commission had to compile an evidentiary record for each case and prepare findings of fact and conclusions of law. Second, in 1947 the commission adopted procedures that required it to function, essentially, as a court. Third, the first three commissioners were attorneys trained in regular judicial proceedings. Finally, the tribal attorneys also preferred a judicial setting that would enhance the need for their skills.19

As former commissioner John Vance noted, the “Commission has chosen to sit as a court, and, as a result, the Congressional mandate has been utterly frustrated.”20 This was clearly detrimental to Native interests. The adversarial system that the ICC adopted worked to the advantage of federal officials but severely disadvantaged Native claimants.21 The system put into place was an alien system, not unlike the old Court of Claims, which couched everything in the language of Western law and relied on legal technicalities, doctrines, and ideas that in the past had proved so frustrating to indigenous claimants.

Within a short period of time Native peoples realized that the technical difficulties they had confronted in the Court of Claims were going to be continued at the new ICC. Indeed, the very first case decided by the commission—The Western (Old Settler) Cherokee case—provided a crystal clear example.22 The Western Cherokee had alleged that a mistake had been made in the writing of their treaty, and they claimed damages under the “fair and honorable dealing” clause of the ICCA. The commission concluded, however, that the Court of Claims had decided this same fact situation involving the same parties at an earlier date; hence, it invoked the doctrine of res judicata. This concept stipulates that a fact once legally determined is conclusively binding between the disputing parties and may not be relitigated at a later date. Thus the historical record of the ICC, an entity created in an attempt to rectify past Indian grievances, began by denying the Western Cherokees access to the commission. Interestingly, the Court of Claims later reversed the commission's ruling, concluding that the Cherokee claim had been predicated upon a new cause of action set forth in the 1946 act, one that had not been considered in any prior Court of Claims case.23 Thus, according to Harvey Rosenthal, the Court of Claims had moved powerfully to expand the very narrow determination of the ICC.24

(p.80) The Struggle to Stay Alive

Few cases were filed with the ICC during its first years of operation. This was somewhat surprising given the vigor of the struggle that Native nations had waged in their attempts to get the 1946 act passed. The paucity of cases during these early years may be attributed, in part, to three reasons. First, tribal attorneys were cautious, wanting to see how the commission's early cases would be decided.25 After observing the initial operations and attitude of the commission, lawyers would presumably be in a better position to formulate a successful litigation strategy for their clients. Second, many tribes struggled to find adequate legal representation. Finally, the commission learned that the work would be tedious and time consuming.

Since Indian complainants had only a five-year period in which to file their petitions, there was a barrage of filings just prior to the expiration date. The filing rush became so great that the number of cases submitted in the last six months was double the number filed during the preceding four and one-half years.26 An attempt was made to extend the filing period for an additional year, but this proved unsuccessful. Ultimately, some 170 Native groups had filed 370 petitions, and these were divided eventually into more than 617 dockets during the life of the commission.

Congress felt that the commission, as originally conceived, would be able to complete its work within a ten-year period; thus the life of the commission was to terminate after a decade. As is the case with so many governmental programs, these congressional notions were far too optimistic. Administrative delay became the general rule that characterized much of the commission's operations. In drafting the 1946 law, Congress contemplated that the commission would make extensive use of its Investigation Division so that cases would not (p.81) become bogged down in fact-gathering as had been the case with the old Court of Claims litigation.

Unfortunately, the commission failed to make use of the Investigation Division, and this contributed significantly to the slow pace of case consideration.27 The records of the BIA, a major source of evidence, were also a major problem as they were in a chaotic state of organization. In addition, the General Accounting Office, which had assisted in searching records, suffered from inadequate staffing. The government was simply overwhelmed in preparing its defenses. In one eighteen-month period, it requested and received 6,451 days of delay in litigation.28 Cases were further delayed because under the rules as promulgated by the ICC, either the Native claimants or the government could appeal to the Court of Claims and then to the Supreme Court on any part of a commission decision. This provided a field day for appeals since the commission broke down its hearing procedure into several major phases. Each of these could be appealed before proceeding to the next phase. These factors extended the amount of time it would take before the commission made a final decision.

The difficulties that confronted the ICC during its embryonic years, particularly the administrative delays, made it impossible for the commission to complete its work within the ten-year period allocated by the 1946 act. Given the complexity of many of the cases, it was probably folly to think the commission could resolve them within such a short time span. Nevertheless, the act specifically called for the commission to be terminated after ten years. Since the work of the commission was far from over at the end of ten years, it was necessary to return to Congress to seek an extension of the commission's life.

In 1955 the Senate considered a proposal to grant a five-year extension to the commission, but this measure died in committee. The same issue was raised, more successfully, in 1956, but it was a contentious battle. Much of the controversy revolved around a 1953 ICC ruling, Otoe and Missouria Tribes of Indians v. United States,29 that permitted tribal nations to be compensated for the taking by the (p.82) government of so-called Indian title (often referred to as unrecognized or aboriginal title). Before this decision, Native communities could assert claims only when the taking of Native land had been formally recognized by the federal government via treaty, statute, or court decision. There were vast Indian holdings that had never been formally recognized as belonging to Indian, but Native nations were precluded from prosecuting claims to these lands. The Otoe and Missouria decision, which was affirmed on appeal by the Court of Claims on May 3, 1955,30 changed all of this and considerably expanded the territorial claims that Native communities could pursue. Strangely, less than three months earlier, through the Court of Claims ruling in 1955, the Supreme Court had issued a major decision involving Alaskan natives and their lands, Tee-Hit-Ton v. United States,31 in which the High Court adopted a formal distinction between types of Indian property that dramatically reduced the amount of money awarded by the ICC.32 This case allowed for the taking of a great deal of Alaskan native land. The Tee-Hit-Ton band was a small band of Tlingit Indians, and it had claimed that the United States had taken timber from its lands without compensation. But because the taking had occurred before August 13, 1946, the band could not sue under the ICCA “fair and honorable dealings” clause. In ruling against the Tee-Hit-Ton, the court made a sharp distinction between aboriginal land—which was land owned by the indigenous community since time immemorial—and recognized land—which was land conveyed to a Native community by an official act of Congress, treaty provision, or some other formal federal acknowledgment. Since the Tee-Hit-Ton had never signed a treaty with the United States and had no statutory or judicial recognition that their lands had been acknowledged by the federal government as belonging to them, the court held that they were not entitled to any compensation whatsoever. “Our conclusion,” wrote Associate Justice Stanley Reed, “does not uphold harshness as against tenderness toward the Indians, but it leaves with Congress, where it belongs, the policy of Indian gratuities for the termination of Indian occupancy of (p.83) government-owned land rather than making compensation for its value a rigid constitutional principle.”33

This case sent shockwaves throughout Indian Country, particularly to the many tribes with claims pending before the ICC, many of them based on aboriginal title. Implicitly, Reed had said that all cases involving non-recognized Indian title would first have to be recognized by Congress before they could be submitted to the judicial process. More specifically, if the Tee-Hit-Ton precedent were strictly applied to the claims pending before the ICC, it was questioned “whether or not the decision might lead to exclusion of all cases of Indian title from the general jurisdiction of the commission.”34

But when the Court of Claims upheld Otoe and Missouria in May 1955, it held that Indians could indeed pursue claims in the ICC using aboriginal or Indian title. Congress in enacting the ICC had fulfilled provisions apparently lacking in the Tee-Hit-Ton case. For example, Tee-Hit-Ton had not been decided under the ICCA. And the Court of Claims concluded that Congress expected the commission to resolve Native claims, including those based on their aboriginal Indian title. The Supreme Court subsequently declined to review the case. This was an important victory, if narrow and constrained; tribes basing their claims on aboriginal title still had to meet a number of court-defined criteria.35

When the debate on the extending the life of the ICC began in 1956, the Justice Department, fearing the potential consequences that might arise from the Otoe and Missouria decision, argued against extension. It advised Congress that the potentiality of awards from Indian claims might reach well into the billions of dollars even though by this date only $10 million had been awarded on a total of $800 million claimed.36 Edgar Witt, who led the commission at that time, challenged the accuracy of the department's estimate, though he did admit that awards could easily rise given the vast acreage involved. As Witt noted in testimony before the House Subcommittee on Appropriations, “We have tried to keep in mind the interests of the taxpayers but also what is right for the Indians…. We [the U.S.] owed (p.84) them a moral duty and some compensation for taking away from them the lands where we found them, from which they were then making their livelihood.”37

When it appeared that the Department of Justice's attempt to sway Congress by manipulating the financial figures would not prevail, Assistant Attorney General Perry Morton sought to amend the bill so that the commission could not consider aboriginal claims based on or arising out of aboriginal Indian title except under certain specific conditions.38 Otoe attorney Luther Bohanon used the commission's own statistics to show that the Department of Justice's efforts were wrongheaded and would “only be the basis of new claims to be filed before Congress in the future” if it were adopted.39

The Morton amendment alarmed Indian peoples around the country, and they mustered a determined campaign to defeat it. The Association of American Indian Affairs (AAIA), headed by Oliver La Farge, accused the DOJ of attempting to deprive “Indians of their rightful claims against the United States.”40 He noted that the DOJ had been “lobbying for weeks to frighten members of the Congress” and that the agency was so adamantly opposed to Indian claims that it fought vigorously against every claim “regardless of its merits.”41

In an attempt to rebut the argument that future awards might run to billions of dollars, La Farge pointed out to the lawmakers that Indians so far had received less than 2 percent of the sums they had initially sought. To complement La Farge's testimony, the Inter-Tribal Council, representing a number of tribes in the nation, passed a resolution asking Congress to extend the life of the ICC as then constituted.42 The Department of Interior also came out in opposition to Morton's amendment. Finally, on July 24, 1956, Congress passed H.R. 5565, extending the commission's life for an additional five years—minus the Morton amendment.43

In the late 1950s and early 1960s, the commission was not as productive or as efficient as many had hoped. Changes in its makeup slowed the pace of the commission considerably. In 1959 Arthur V. (p.85) former member of the Senate Committee on Indian Affairs, was appointed to the commission. For Native peoples this was an extremely disappointing appointment as Watkins, a confirmed assimilationist and therefore an avid supporter of termination policy, had never shown much support for indigenous peoples. During his term Watkins instituted a number of administrative changes—for example, set hearings by mutual agreement that expedited the commission's work and protected natives from being pressured into settlements.44 But in general he supported the government's position whenever he could and even assaulted the ICC for its allegedly “extremely liberal and favorable attitude … toward Indian tribal clients.”45 Although the number of ICC decisions reached a nadir in 1962, things were dramatically reversed the following year when the number of cases resolved tripled in number.46

At the end of the five-year extension period, it was clear that more time was needed to clear up the commission's lengthy docket. By 1961, 471 of the 596 dockets remained unresolved. A brief legislative hearing was held in May of that year to determine if the commission should be granted a further extension, and everyone familiar with the process expected that this would happen. Congress's rationale in extending the commission an additional five years was clear. As indicated in a Senate report: “It cannot be stressed too strongly that the Claims Commission Act was passed by Congress to give the Indians their day in court to present their claims of every kind, shape, and variety. Until all these claims are heard and settled, we may expect the Indians to resist any effort to terminate federal supervision and control over them.”47 This statement was pregnant with multiple meanings and met the broad concerns of nearly everyone associated with the claims proceedings. The Indians, of course, were pleased with the additional time, and the congressional officials who were intent on Native assimilation acknowledged the need to satisfy Indian claims before they could make substantial progress on terminating the trust relationship and the reservation system. And so with little opposition, the commission received a second five-year extension.

(p.86) Although the commission's case load was reduced during the second extension period, there was still insufficient time to bring the era of Indian claims to an end. Indeed, the commission would receive three more extensions. In 1967, during the debate on the third extension, the discussion did not revolve around the question of whether or not there should be an extension, but rather on just how long a period of time was needed for the commission to complete its work. Two-, five-, and seven-year periods were suggested as appropriate, but since the five-year term had become institutionalized, this time frame was agreed upon. The new law incorporated a trial calendar to make sure that the claimants presented their causes in a timely fashion. To help expedite the commission's work, since there were still 347 dockets pending, two additional commissioners were added, bringing the total to five members. The measure was enacted into law on April 10, 1967.48 Interestingly, one of the new commissioners, appointed in 1969 by President Richard Nixon, was a Native person, Brantley Blue. Blue, an attorney and former judge, besides being the first indigenous commissioner, belonged to the Lumbee people of North Carolina, a non-federally recognized (though recognized by the state) tribal nation.49

By 1972, the ICC had forty-two employees and a budget of $1,045,000. Of its caseload, 164 claims had been dismissed, and 182 awards totaling $410 million had been issued. There were 264 pending cases.50 This was the year the commission was supposed to bring its work to a conclusion, but once again it had to request an additional five-year extension from Congress. In 1968 the commission had embarked upon an expedited program in an effort to conclude its work by 1972, but staff shortages and unaccountable delays made it impossible. Chairman Jerome Kuykendall told Congress that if a fourth extension were not forthcoming, about fifty tribes “would not get their day in court.”51 Since the commission's productivity rate had increased significantly, with it accomplishing in five years 63 percent of the work accumulated in the previous two decades, Congress consented to yet another extension. The lawmakers insisted, however, that there would be no more extensions. Thus, the fourth renewal act (p.87) became law on March 17, 1972.52 Despite Congress's emphatic assertions, this extension would not be the last one granted.

The commission's work went rather smoothly during the fourth renewal period, but as it drew to a close, the commission once again sought an extension from Congress, this one for three years. The commission was joined in its lobbying efforts by a number of tribal nations and by the U.S. Court of Claims. Several reasons were given to justify a fifth extension. First, about 120 cases remained on the commission's docket. If no extension were granted, these would have to be transferred to the Court of Claims; this was viewed as an unmanageable number for the claims court to absorb. Second, the claims court's judges, unlike the commissioner's, lacked the expertise to handle complicated legal and historical cases. Third, it would be an injustice to the tribes with undecided cases if their cases were heard by a different body. Finally, the transference process would mean a further delay in concluding the cases.53

The debate over the fifth renewal continued for nearly eighteen months until a compromise was struck. The forces pressuring for an extension failed to secure the hoped-for three-year extension, but Congress did consent to extending the commission's life for a year and a half. Under the act that passed, the ICC was required to certify to the Court of Claims by December 31, 1976, those claims that could not be completed by September 30, 1978. This was the date the commission was to finally cease operations. When the ICC expired it left 68 dockets uncompleted, and these cases were automatically transferred to the Court of Claims. The ICC, conceived in 1946 to function for ten years, had its life renewed on five separate occasions and operated for thirty-two years.

The Commission: Jurisdiction and Powers

Throughout the years during which Native peoples and others pressured Congress to pass the ICCA, many feared that the legislature would create a largely symbolic body that would do little to address (p.88) tribal grievances. Instead the lawmakers created an adjudicatory agency that possessed an impressive amount of power, even if its rulings barely addressed the many past depredations perpetrated against Native nations.

The jurisdictional powers of the commission were spelled out in Section 2 of the act, which authorized the commission to hear and determine five classifications of Indian claims:

  1. Clause 1: Claims in law and equity arising under the Constitution, laws, treaties of the United States, and Executive Orders of the President.

  2. Clause 2: All other claims in law or equity, including those sounding in tort, with respect to which the claimant would have been entitled to sue in a court of the United States if the United States was subject to suit.

  3. Clause 3: Claims which would result, if the treaties, contracts, and agreements between the claimant and the United States were revised on the grounds of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity.

  4. Clause 4: Claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant.

  5. Clause 5: Claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity.

No claim accruing after the date of approval of the act (August 13, 1946) could be considered by the commission. The majority of cases that arose under Section 2 dealt with land problems. This may be why many people have referred to the commission as the Indian Land Claims Commission.

(p.89) The first two clauses in Section 2 did not forge any new ground for Indian recovery. Under the first clause, natives were permitted to initiate claims “arising under the Constitution, laws, treaties of the United States, and executive orders.” These were basically the same types of claims that Native communities had pursued under special jurisdictional statutes before passage of the ICCA. Now, however, the Indians could go straight to the commission seeking satisfaction. The Lakota Indians, for instance, brought suit under this clause to recover some $5,307,656 from the proceeds of 9,261,593 acres of land taken by the federal government pursuant to a treaty—but for which they had never paid for. While the Lakota initially prevailed in this litigation, they were unable to obtain a recovery because the Court of Claims in Sioux Tribe of Indians v. United States,54 decided that the offsets involved in the case were greater than the monies initially awarded to the tribe. Clause 1 therefore provided no new ground for recovery; still, it was important in that it automatically invoked the jurisdiction of the ICC such that tribal nations no longer had to secure a special jurisdictional statute from Congress.

The second clause in Section 2 was similar to the first except that it defined the commission's jurisdiction so as to include claims “sounding in tort.” Tortious injuries are private, civil wrongs inflicted upon a person. Negligence, for instance, would constitute an injury “sounding in tort.” The second clause in the ICCA stripped away the immunity of the government in such suits so that Native nations, like whites, could bring suits sounding in tort against the federal government. The Creek nation, for instance, brought a suit against the federal government for a breach of its fiduciary duty in permitting a railroad to obtain a right-of-way across Creek lands without providing just compensation. The Creeks alleged that this constituted a tortious taking of their land. The Court of Claims, however, narrowly interpreted the Creek treaty in such a manner that it completely absolved the government from liability.55 While the Creek Nation case actually arose prior to the passage of the 1946 act, it illustrates the type of tortious cases Native peoples sought to have redressed.

(p.90) Unlike the first two, the last three clauses of Section 2 opened new opportunities for Native nations to sue the federal government. Clause 3 enabled indigenous communities to bring suits that would result “if the treaties, contracts, and agreements between the claimant and the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity.” This is quite a startling measure. It gave the ICC the power to affect the meaning of ratified treaties. Under normal circumstances this would be an impossibility. Constitutionally, not even the federal courts have the power to directly change or nullify a treaty. This can be done only through a subsequent treaty negotiated by the president or through unequivocal language in a federal statute. Yet in the 1946 act Congress vested the ICC with the power to remedy problems brought about in a treaty based on fraud or misrepresentation. It is important to note that the commission was not given the authority to revise a treaty per se. The act only provided the commissioners with the ability to grant relief by interpreting the circumstances “as if” the treaty would have been revised. As Ralph Barney, chief of the Indian Claims Section of the Department of Justice, pointed out, treaties have “always been considered a political matter completely outside the scope of judicial inquiry. And technically this separation of powers has been preserved [in the act] for you will notice that the Commission and the courts are not given authority to actually revise the treaty but only to grant relief ‘as if’ the treaty were revised.”56

This major addition to the 1946 act provided Indian claimants with a ground for recovery that had never before existed. Treaties could no longer be interpreted with a mechanical rigidity that often prevented Indians from prevailing regardless of the fraud that had been perpetrated against them. It is interesting to note that claims based on “unconscionable consideration,” a jurisdictional ground urged upon the commission by attorney Glen Wilkinson, found their way into the final act. Ultimately this meant that even in the absence of fraud or mistake, natives could recover as long as they could prove (p.91) that there was a “very gross” discrepancy between the value of the land conveyed and the amount of money the tribe received for that land. Such activity constituted a transaction based on unconscionable consideration, and clause 3 afforded Native nations a new remedy to deal with this type of problem.

The fourth clause inserted into the jurisdictional powers section dealt exclusively with the problem of aboriginal lands. It provided a remedy for claims “arising from the taking by the United States, whether as a result of treaty of cession or otherwise, of lands owned or occupied by [Indians] without the payment for such lands of compensation agreed to by the claimant.” Since most tribal claims were predicated upon land transactions, this became a very important provision. Indeed, the Department of Justice opposed this clause with such vigor that it fought to have it excluded from the act when it was being considered for extension in 1957.57 What at first sight appeared to be a rather straightforward and simple provision ultimately became mired because of two controversial phrases—“from time immemorial” and “Indian title”—with which the commission and the Court of Claims had to wrestle. Interestingly, neither of these two legal phrases is found in the wording of the 1946 act.

The phrase “from time immemorial” at times has caused significant interpretive problems in indigenous claims litigation. Historically the relationship of Native nations to the federal government was conditioned largely by precedents established by the Spanish, French, and, of course, the English prior to the founding of the United States. Since each of these international states only sporadically recognized the territorial rights of indigenous peoples as the original occupants of the land,58 it was held that petitioning Native communities should have to prove possession of their aboriginal land right by resting that title on “actual, exclusive, and continuous use and occupancy ‘for a long time’ prior to the loss of the property.”59 Defining Indian territory together with problems of proving continuous “use and occupancy” of those lands clouded a good many legal proceedings. Fortunately, the commission ultimately began to focus its investigations less on the (p.92) notion of “from time immemorial” and more on those periods of time when Native lands were lost or ceded to the federal government.

More important than the phrase “from time immemorial” was the concept of “Indian title” or “aboriginal title,” as defined by the ICC and the Court of Claims. In determining whether a Native nation could be compensated for the unlawful taking of land by the federal government prior to the passage of the ICCA, the Court of Claims concluded that only those Indian lands that had been formally recognized as such by the federal government would qualify for compensation. The court distinguished between “recognized title,” that is, Indian ownership of land formally acknowledged as such in a treaty or statute, and “unrecognized title,” frequently called “Indian title” or “aboriginal title.” As noted earlier, in 1954, the Court of Claims in Tee-Hit-Ton v. United States concluded that Congress was liable to compensate Indians only for the loss of federally recognized lands; there was no legal obligation to reimburse Native communities for the loss of “Indian title” lands since the tribal rights in these cases were only the rights to “use and occupy” territory and not to the property value of the land.60 Additionally, Congress was determined to be the institution to determine whether or not Native nations should be compensated for their losses—not the courts. Recovery by Indians thus became a matter of political grace and not one of law.

This grave injustice toward Indian nations was corrected by clause 4 of the ICCA. The narrow rule of recovery as spelled out in Tee-Hit-Ton was jettisoned by the Court of Claims in view of the new grounds for recovery found in clause 4. Focusing on the notion that natives could bring claims against the government “as a result of treaty of cession or otherwise,” the Court of Claims in 1955 found that this was sufficient to permit recovery even when the land in question was based upon non-recognized title.61 The presence of clause 4 in the 1946 act therefore provided Indian nations with a firm basis for relief that had not existed prior to the passage of the act.

The final jurisdictional clause in Section 2 permitted Indian tribes to base their claims against the federal government on a lack of (p.93) “fair and honorable dealings not recognized by any existing rule of law or equity.” This provision had the potential to encompass a large number of violations from treaty abrogations to virtually any transaction where the federal government, as trustee, might have dealt unfairly with their Indian trust beneficiaries. The Department of Justice vigorously opposed including this section in the law, asserting that liability should be limited to legal violations and not based upon moral claims. During the congressional hearings, however, John Collier argued that a considerable “number of claims and grievances do not grow out of the legal facts but essentially out of the moral parts of the record. There are a great many valid claims, valid humanely and morally, but as such have no basis in law.”62 Nancy Lurie reinforced this thinking in commenting on the failure of the Geronimo's Apaches to secure a claim award despite all that they had endured as prisoners-of-war during their years of confinement: “It is possible that faced with hundreds of claims, the Commission simply panicked at the prospect of trying to put a price on mental anguish and similar intangibles and beat an expeditious retreat to high, legalistic ground to avoid the quagmire of moral questions.”63

Native peoples were not hesitant to use clause 5 as a basis for rectifying some of the past governmental depredations, but their efforts proved to be largely fruitless. The massacres of natives at Sand Creek in 1876 and Wounded Knee in 1890 were thought to be valid grievances that could be pursued under clause 5, but the commission viewed these complaints as “individual claims,” not national claims, and as therefore not compensable under the 1946 act. The injuries, in the commissioners' view, had been incurred by individual Indians and not tribal entities. It mattered little that the government may have dealt with the Indians on less than fair and honorable terms. As long as the claims were viewed as individually based, they fell outside the purview of the ICCA.

Although the potential was there, few claims were filed under this controversial clause. The constrained interpretation that the commission gave to the “fair and honorable dealings” provision moved tribal (p.94) attorneys to concentrate their efforts more on the first four clauses in the act. Every creative effort brought under clause 5 seemed to end in failure. In 1968, for instance, the Gila River Pima–Maricopa Indian Community brought a cause of action before the commission for damage allegedly incurred as a result of government failure to provide adequate education and medical services. The tribe's leadership claimed that this qualified as a claim based upon a lack of “fair and honorable dealings” not recognized by any existing rule of law or equity.64

The Gila River people lost this case. The Court of Claims, in hearing the appeal from the ICC decision, argued that there was nothing in the history of the 1946 act to suggest that “claims this broad were intended to come within the broad grant of jurisdiction to the Commission.”65 The thrust of the ICCA was not to remedy all of the damages to Native peoples that had flowed from the history of United States Indian policy. As Judge Philip Nichols, Jr., put it in his concurring opinion, the ICC was not meant “to be the arbiter of every possible dispute that might have arisen between the United States and the Indians in 170 years of history, or that it was to settle every grievance.”66 The government, the court held, had not, in fact, assumed any obligation as a “guardian” to the members of this tribal nation. And since the Indians had not been able to prove that the government had failed to fulfill “whatever it was required to do” in meeting its obligations to the Indians, it had not violated the fair and honorable dealings section of the ICCA. Thus, the kinds of complaints the natives were alleging needed to be channeled through the political processes, not through the ICC or the Court of Claims.67

There was great disappointment among Native nations that more could not be accomplished under clause 5. This was only part of the story. There were other categories of claims that also fell outside the scope of coverage under Section 2. All grievances where a state government possessed jurisdiction over a subject matter were excluded from consideration. This, by the way, is why few eastern Indian land claims were filed with the commission.68 Claims arising out of (p.95) the 1887 General Allotment Act were also excluded as these were viewed as being individually based claims and not “tribal” in nature. And finally, claims arising after the year 1946 fell beyond the jurisdiction of the ICC. These post-1946 claims, however, could go before the Court of Claims without first obtaining a special jurisdictional statute from Congress.

The powers that Congress had bestowed upon the ICC initially seemed most impressive. In addition to the general authority that the commission assumed in clauses 1 and 2, new and vibrant powers found their way into the 1946 act in clauses 3, 4, and 5 of Section 2. But the actual amount of power wielded by the commission proved to be much less than envisioned after a series of self-assumed subtle and restrictive interpretations that the commission arrived at during its early years of operations. As Thomas Leubben poignantly observed, many of the commission's decisions were tortuous efforts on the part of the commissioners that gave the appearance of justice but actually perpetuated substantial injustices. “Given the underlying assumptions and objections that informed the ICC process,” Leubben continued, “political termination and cultural assimilation—and the complete failure of that judicial process and its associated political process to address the injustice of unlawful appropriation of Native American ancestral lands, it is no surprise that many tribal plaintiffs were dissatisfied with their ICC ‘victories.’”69

The hope that many Native nations initially saw in the impressive array of jurisdictional powers that Congress had bestowed on the commission began to diminish as soon as that body began to function. If Justice Oliver Wendell Holmes was correct when he said that the life of the law is not logic but experience, then Native nations, rather than feeling hopeful, should instead have been extremely skeptical, given what their relationships with the federal government had been like in the previous century and a half.


(1) . Lieder and Page, Wild Justice, 64.

(2) . P. G. McHugh, Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination (New York: Oxford University Press, 2004), 553.

(3) . Sandra Danforth, “Repaying Historical Debts, the Indian Claims Commission,” North Dakota Law Review 49 (Winter 1973): 373–75.

(4) . Nancy O. Lurie, “Epilogue,” in Imre Sutton, ed., Irredeemable America: The Indians' Estate and Land Claims (Albuquerque: Native American Studies), 369.

(5) . Rosenthal, Their Day in Court, 144.

(6) . Ibid., 144–46.

(7) . 25 U.S. Code, Sections 81–84.

(8) . Leubben, “United States Indian Claims Commission,” 166.

(9) . Vine Deloria, Jr., Behind the Trail of Broken Treaties: An Indian Declaration of Independence, reprint ed. (Austin: University of Texas Press, 1985), 226.

(10) . Vine Deloria, Jr., “Reflections on the Black Hills Claim,” Wicazo Sa Review 4, no. 1 (Spring 1988): 35.

(11) . Leubben, “United States Indian Claims Commission,” 152.

(12) . Ibid.

(13) . Sandra Danforth, “Repaying Historical Debts, the Indian Claims Commission,” North Dakota Law Review 49 (Winter 1973): 390–391.

(14) . Leubben, “United States Indian Claims Commission,” 164.

(15) . David Wishart, as quoted in P. G. McHugh, Aboriginal Societies and the Common Law, 554.

(16) . Deloria, Behind the Trail of Broken Treaties, 224.

(17) . Danforth, “Repaying Historical Debts,” 373.

(18) . Indian Claims Commission, Final Report (1978), 7.

(19) . Leubben, “The United States Indian Claims Commission,” 162–63, and see Petra T. Shattuck and Jill Norgren, Partial Justice: Federal Indian Law in a Liberal Constitutional System (Providence, RI: Berg Publishers, 1993), 146–48.

(20) . As quoted in Danforth, “Repaying Historical Debts,” 374.

(21) . Michael Coyle, “ADR Processes and Indigenous Rights: A Comparative Analysis of Australia, Canada, and New Zealand,” in Benjamin J. Richardson, Shin Imo, and Kent McNeil, eds., Indigenous Rights and the Law: Comparative and Cultural Perspectives (Portland, OR: Hart Publishers, 2009), 380.

(22) . Western (Old Settler) Cherokee Indians v. U.S., 1 Ind. Cl. Comm. 20 (1948).

(23) . Western (Old Settler) Cherokee Indians v. U.S., 116 Ct. Cl. 665 (1950).

(24) . Rosenthal, Their Day in Court, 143–44.

(25) . Ibid., 115.

(26) . Indian Claims Commission, Final Report, 5.

(27) . Shattuck and Norgren, Partial Justice, 147.

(28) . Barsh, “Indian Land Claims,” 16.

(29) . 2 Ind. Cl. Comm. 355 (1953).

(30) . 131 Ct. Cl. 593 (1955).

(31) . 348 U.S. 272 (1955).

(32) . Nell Jessup Newton has written the most articulate analysis of this important case, “At the Whim of the Sovereign: Aboriginal Title Reconsidered,” Hastings Law Journal 31 (1980): 1215–85.

(33) . 348 U.S. 272, 290–91.

(34) . Lurie, “Indian Claims Commission” (1957), 64–65.

(35) . David E. Wilkins, American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice (Austin: University of Texas Press, 1997), 185.

(36) . Rosenthal, Their Day in Court, 123.

(37) . Indian Claims Commission, Final Report, 12.

(38) . Rosenthal, Their Day in Court, 150–51.

(39) . Ibid., 151.

(40) . Berlin B. Chapman, Otoe and Missouria: A Study of Indian Removal and the Legal Aftermath (New York: Times Journal Publishers, 1965), 261.

(41) . Ibid.

(42) . Ibid., 263.

(43) . 70 Stat. 624.

(44) . Indian Claims Commission, Final Report, 13.

(45) . Lieder and Page, Wild Justice, 160.

(46) . Ibid., 14.

(47) . Ibid.

(48) . 81 Stat. 11.

(49) . It is interesting that Blue, a member of a non-federally recognized tribal nation, was the one native appointed to the commission. State-recognized and nonfederally-recognized Native peoples were denied the right to file claims before the ICC. See the following studies to learn more about the interesting history of the Lumbee people: Adolph Dial and David Eliades, The Only Land I Know: A History of the Lumbee Indians (San Francisco: Indian Historian Press, 1975); Gerald Sider, Lumbee Indian Histories: Lumbee and Tuscarora People in North Carolina (Chapel Hill: University of North Carolina Press, 2003); and Malinda Maynor Lowery, Lumbee Indians in the Jim Crow South: Race, Identity, and the Making of a Nation (Chapel Hill: University of North Carolina Press, 2010).

(50) . Rosenthal, Their Day in Court, 222.

(51) . Indian Claims Commission, Final Report, 18.

(52) . 86 Stat. 114.

(53) . Rosenthal, Their Day in Court, 233.

(54) . 105 Ct. Cl. 658 (1946).

(55) . The Creek Nation v. United States, 97 Ct. Cl. 591.

(56) . Ralph A. Barney, “Legal Problems Peculiar to Indian Claims Litigation,” Ethnohistory 2 (Fall 1955): 316.

(57) . Nancy O. Lurie, “The Indian Claims Commission,” Annals of the American Academy of Political and Social Science 311 (May 1957): 63.

(58) . Saliha Belmessous, ed., Native Claims: Indigenous Law against Empire, 1500–1920 (New York, Oxford University Press, 2012):12.

(59) . Sac and Fox Tribes v. United States, 161 Ct. Cl. 189, 201 (1963).

(60) . Tee Hit Ton Indians v. United States, 128 Ct. Cl. 82 (1954). This ruling, as discussed earlier in the chapter, was affirmed by the Supreme Court the following year.

(61) . Otoe and Missouria Tribe v. United States, 131 Ct. Cl. 593 (1955).

(62) . U.S. House Committee on Indian Affairs, To Create an Indian Claims Commission, Hearings on H.R. 7837, 74th Cong., 1st Sess. (1935), 6.

(63) . Nancy O. Lurie, “The Indian Claims Commission,” Annals of the American Academy of Political and Social Science 436 (May 1978): 107.

(64) . Gila River Pima-Maricopa Indian Community v. United States, 20 Ind. Cl. Comm. 131 (1968).

(65) . Ibid., 427 F.2d 1194, 1196 (1970).

(66) . Ibid., 1201.

(67) . Ibid., 1200.

(68) . Danforth, “Repaying Historical Debts,” 390.

(69) . Leubben, “U.S. Indian Claims Commission,” 176.