Oops! Missed the links you posted earlier, SK. I’ll take a look.
After reading the posts, I changed my mind and now advocate
payment to tribes to distribute or use as they wish. It would be a tribe by tribe process, as broken treaties and deceptions leading to the loss of land rights are investigated.
Sofa King wrote:
Is that right? Do you have a Supreme Court case on that? You may be right, but such a rule of law would be in tension with traditional legal notions of adverse possession and the rights of the “bona fide purchaser for value” (one who pays to purchase property without knowledge of any prior fraud).
spoke-
Let’s see… I’ll have to dig into Felix Cohen’s Handbook of Federal Indian Law, which is sort of like the New Testament around these parts…
Specifically regarding tribal claims to alienated land, Cohen (and others) see the case law as originating in Johnson v. McIntosh, 21 U.S. 543 (1823), which decided that a tribe’s right of possession is guaranteed unless specifically extinguished by act of Congress. This has been consistently reaffirmed in United States v. Santa Fe Pacific Railroad Company, 314 US 339 (1941) and recently, County of Oneida v. Oneida Indian Nation*, 470 U.S. 226 (1985). In addition to the case law, we also have the 1790 Indian Non-Intercourse Act (whose title is a wonderful bit of double entendre), which renders conveyances of Indian land void if not conducted with the Federal government, and establishes the first “no statute of limitations” clause. Case after case has established that Indian title is immune to statute of limitations, collateral estoppel, and fairness doctrines.
The concept of “Indian title” is pretty complicated, but in a nutshell, it works like this: when Europeans claimed the land that became the U.S., what they were claiming was the right of their Sovereigns to purchase the land from its rightful Indian owners.
Or, they could conquer the tribes, and take their land via right of conquest, which is considered to be perfectly legitimate, too. But this is where the Big Lie rears its ugly head. Public perception is that we came, we conquered, Indians lost, so long and thanks for playing. It didn’t work that way. Even in cases where a tribe lost a war with the United States, the U.S. generally purchased the land that they took away from tribes. Purchased in name, but in many cases they did not actually pay.
I’m rattling on about land so much because that’s where most of the trouble stems from today. However, there is another series of Supreme Court decisions which state that in unequitable situations where both parties stand to be penalized roughly equally, the decision must defer in favor of the tribe. I’m gonna have to do a lot of work to find the cases and the rationale behind them.
And spoke-, I’m totally with you and your stance toward reparations, on a personal level. This is just a guess, but I’m willing to bet that most of my clients wouldn’t want to touch the issue either.
This is complicated, but I don’t see how anyone could really be against it morally. The government said it would do x, y, z and hasn’t. Doing x, y, and z now, while a pain in the butt, is the RIGHT thing to do. Its a contract. The US gov owes the government of 550+ tribes. That blood has mixed, or other actions taken place has no place in it.
GM buys a bunch of stuff from Microsoft. And doesn’t pay. 47 generations later GM still owes Microsoft, regardless of how many of the stockholder’s kids have married each other.
This isn’t a “oh, we feel bad about mistreating your people” reparations deal. The arguements against racial reparation to Afican Americans don’t apply. The US government made a deal. A pretty tight deal they have ignored for a long time. The debt is going to sit there until its paid.
Unless I’m missing something, being against this is just weaseling.
Medea’s Child wrote:
Actually, GM would not still owe Microsoft in your scenario. If GM breached the contract, but Microsoft waited “47 generations” to try to enforce the claim in court, Microsoft would lose. The claim would be barred by the applicable statute of limitations. Depending on the which state you are in, and the drafting of the contract, the statute of limitations could be anywhere from 4 years to 20 years. If you wait too long to enforce your claim, the claim is lost.
The reason for having statutes of limitations is that parties should not have to preserve evidence indefinitely. There should be a cutoff. Furthermore, evidence gets lost over time. Witnesses forget what happened, or die, documents get misplaced.
So you see, the difficulty (or impossibility) of sorting out old claims is the very reason for havibg statutes of limitations. (Or if there is no statute of limitations, applying the legal doctrine of “laches” which translated loosely means “Too bad, you waited too long to say something.”)
Medea’s Child also wrote:
You may be right. I don’t think it’s something that should be taken for granted, though. All I’m saying is that if Indian tribes have claims for treaty violations, let’s sort those out in court, one claim at a time. I’m all in favor of the tribes bringing to the courthouse any claims they may have, and we can sort them out there.
For my part, though, I would argue that there should be some limit on how long you can wait to assert a claim for violating a treaty. (For the same reasons as those given for having statutes of limitation: loss of evidence, death of witnesses, etc.) Sofa King says there is no such limit, so maybe the Supreme Court doesn’t agree with me on that point.
Paying up for treaty violations is a different critter from the notion of “reparations,” which I think is unworkable and unjustifiable for the reasons set forth in my earlier post.
The condition to consider is if Microsoft goes out of business and there’s no coherent entity collect the debt. Do we pay everyone who claims they owned a share once?
They do in regards to the OP.
Well, that’s what politicians do…
[continue hijack]
sqweels wrote:
Bookworm replied:
I’m guessing sqweels read something like the Britannica entry on the Pyramids of Giza that says they were built sometime between 2575 BC and 2465 BC. The Exodus is supposed to have happened in the 14th century BC, about 1,000 years later.
According to this entry, Abraham lived any time between the 19th and 17th centuries BC. And the Hebrews were made slaves in Egypt after he died, right?
So what did the Hebrew slaves build, if not the pyramids? Britannica says they built the cities of Pithom and Rameses.
[discontinue hijack]
Just because I’m in a very pissy mood and feeling arbitrary anyway, I shall simply reply to the OP while largely ignoring Sofa’s arguments which have far more merit (by the way Sof, it’s getting tougher and tougher to call a tribe a tribe as many - the Lenape or Delaware f’rinstance - have NO full blooded members on their rolls anymore. But yeah, I’d like to know where the money went too.)
Generalized reperations for hostoric events is incredibly stupid. EVERYONE has an ancestor from a race or culture that was subjugated/trodden on/oppressed/
enslaved/killed/or otherwise made miserable by another race or culture. It was not just in the US that people were cheated and or conquered and or enslaved. The present residents of the UK are not the native population and at one time in the distant past they conquered and enslaved members of their native population too. The Romans conquered and or enslaved just about everyone else. The whole idea of general reperations for history is ridiculous.
Well, you’re right, Yank. In fact a great many tribes don’t have any full-blooded members left, and those that do are often full-blooded Indian, but not fully from their own tribe.
The simple explanation for this (and there are no simple explanations in Indian Country, so you can bet this following statement is partially incorrect) is because for purposes of sovereignty, the Federal government is concerned only with the continued existence of the political entity of the tribe. Tribes are free (within limits–they’re not that silly) to determine their own membership criteria. I can go into a lot more detail on that if you care to know.
(Before anyone flies off the handle, let it be said that you must be of Indian descent to be a member of an Indian tribe, and it must be documented. There are no Lions Clubs or Masonic chapters that are recognized as Indians–unless they’re all partly Indian and also are members of the same recognized tribe.)
That’s all delegated by Congress to the Bureau of Indian Affairs, a subsidiary of the Department of Interior. The Indian Health Service, a part of Health and Human Services, is a wholly different entity, but they approach the problem in a similar way. There are some good reasons for this, because Indians have shown a propensity for certain ailments, notably alcoholism and diabetes (and impoverishment), that go way off the charts when compared to the population as a whole. But since the IHS often bases eligibility on tribal membership, some folks who could stand to benefit from IHS services are denied.
I only mention that so I can float this bittersweet anecdote. Last year, Senator Ben Nighthorse Campbell mentioned in passing that he knew of one fellow who had diabetes and was a perfect candidate for an IHS test program because he was a full-blooded Indian. Unfortunately, he descended from eight different tribes and could not meet the blood quantum requirements for membership in any one of them. Therefore, the IHS denied his application.
What do I think of that? Shit, I don’t know. I’m stickin’ to the political side of the argument, where things are complicated enough.
Lest the fog of my previous post confuse the issue, yes, I think reparations are bullshit, too.