I can see that there are other folks here who are equally versed in Indian Affairs, but I happen to have an entire law office at my disposal. That’s all we do–Indian Affairs. I think I can pretty briefly and accurately explain the some of the land claim end of what we owe the American Indians and why. I’m going to keep this simple and I’m not going to give a lot of citation (unless you really want it, then I can start digging around).
As stated previously, American Indian tribes are unique sovereign entities. Felix Cohen likens them to “defeated nations,” somewhat similar to Germany and Japan after WWII. Canadian and New Zealand tribes have similar, but not identical legal status. American Indian sovereignty is unique. There is no analogy that can precisely describe their status. People who want to give cogent argument in debates about Indian tribes need to get comfortable with the concept of Indian sovereignty. It is the very center of the debate. Here is some real basic stuff on American Indians, courtesy of the BIA.
This sovereignty has often been questioned and attacked, but it has never been completely destroyed.
When the United States adopted the Constitution, it continued the English premise that Indian tribes were sovereign nations. Early American policy toward Indians not only recognized limited Indian independence and their government-to-government relationship with the federal government, it made it official with the gravest, most far-reaching laws that could be enacted.
One of our nation’s earliest laws was the 1790 Indian Non-Intercourse Act. It was re-enacted in 1793, 1796, 1799, 1802, 1822, and 1834. It’s purpose is exactly as the name implies: don’t f**k the Indians. Indian land could only be conveyed by a tribal government to the United States, and nobody else. To make the law stick, and to make certain that those who would steal Indian land would not get away with it, the United States made this point abundantly clear:
There is no statute of limitations on stolen Indian land.
This premise has been upheld by the Supreme Court at least three times a decade since 1834. It is not negotiable. It is not an arguable point. If people want to change the law, it will probably take a Constitutional Amendment to do it. But right now, it’s the law, and we owe American Indians for millions of acres of alienated land. End of story.
Take for example the Oneida Nation. When the state of New York impersonated the United States 150 years ago and forced the Oneida to sign a “treaty” giving up large swathes of their reservation, the state was knowingly acting illegally, and they should have known that there is no time limit for the Oneidas to recover that land. In a perfect world this would be known, accepted, and atoned for by New York. Instead, they continue to delay and disseminate, and ignorant, borderline racist organizations such as Upstate Citizens for Equality garner press time complaining that giving the Oneida back their reservation is “not fair.” Here is some of UCE’s argument against the Oneida. Some of my more charitable lawyer friends would call this argument “emotive.” Most of them would call it “bullshit.”
Perhaps it’s not fair that the Oneida deserve their land back (according to the Supreme Court), but laches, the fairness doctrine in law, is barred as a defense in illegal Indian land conveyances, along with estoppel, waivers, adverse possession, executive orders, decisions of the Secretary of Interior, and just about anything else. It is some of the most rock-solid law on our books, and that’s the way it is. If you don’t like it, you need to change the law–almost four hundred years of it if you include colonial law.
A quick note about Indian casinos. The profits from Indian casinos are required by federal law to fund the tribal government. Most Indian casinos are not what any sane individual would call “very profitable.” Instead, they pay their own expenses, provide jobs for tribal members where there previously were none, and allow for a small improvement in the services tribal governments provide. Most Indian tribes do not have casinos. Of the minority that do, only a small number of those are hugely successful. I know of no Indian casino that was constructed with American taxpayers’ money, but if one were, it would only be in the form a loan that would be paid back.
I’ll be more than happy to try to answer any questions anyone has, time permitting. That’s part of my job: politely informing people that American Indians are not extinct, are not powerless, do not siphon huge sums of money from government coffers, and are deserving of far more respect and understanding than they currently enjoy.
