independent city state. >> we have discussed this over fondue. let's close the formal session. people can come up. if you want to ask the question -- [applause] >> you are watching american history tv. to join the conversation, like us on facebook. >> each week, american history tv sits in on a lecture. you can watch the classes that 8:00 p.m. and midnight, eastern. established under the indian claims act by the united states congress, the indian claims commission was a judicial panel meant to resolve many long-standing claims between the u.s. government and native american tribes. next, the university of utah

professor, gregory smoak, talks about the founding of the commission and the modern repercussions of some decisions. his class is about one hour, 15 minutes. mr. smoak: i guess we should go ahead and get started. announcement, just so you are aware of where we are at, tuesday next week we will have the final quiz. i am sure you are happy about that. so please be ready for that at the beginning of class. today what i want to do is talk about the indian claims

commission as a means of continuing our discussion, the mid-20th century, the indian claims commission is something that is often not -- people don't spend a lot of time on. i think it is important. it certainly points out the link between the resources and land, the control of resources and land and tribal sovereignty. it also illustrates very clearly the limitations on tribal sovereignty that the federal government puts in place, legislation that might seem to empower indian people, but also has real limitations on. and then we will spend time today talking about one particular claim, the most controversial one, it lasted half a century. that claim in particular illustrates how native conceptions of political power and control of territory, ownership of property, are fundamentally different from european and euro american legal conceptions and that poses

obstacles to tribal sovereignty, certainly in the land. we will start with background information, talk about the indian claims commission in general and claims process and how that worked and move into an in-depth look at a particular claim. let's go ahead. now the indian claims commission is going to be signed into law in 1946 -- come of it was not the first time that claims were made against the united states. they were first heard in 1831 by the supreme court. other mechanisms existed in the u.s. for claims against the government, tribes are not the

only groups seeking redress. individual citizens did. before 1855, claims followed a particular process, individual acts of congress. before we start talking about those private bills, one thing to keep in mind, the idea of sovereign immunity. the united states and others subscribe to this doctrine, boiling it down, you do not get to sue the sovereign unless the sovereign says you do. you cannot sue the united states unless the united states gives you permission. that is the basis. before 1855, individuals who had a claim against the government over a contract, over whatever, could seek regress, but they had to do it directly through congress, getting them to propose a bill.

and you see them filling the congressional record. and it is for that reason in 1855 that congress created the court of claims. it was envisioned to deal with all of these and to relieve that burden from congress. at first, they are simply an advisory board, they can only tell congress what should happen. but in 1863, a second piece of legislation gave the court of claims the power to make final determinations and decisions. for much of history, the court of claims sat in that building across from the white house, today it is the smithsonian gallery. you might have seen it. ok, now native access to the court, native tribes might have

thought this was an avenue to pursue the government further wrongs. and they tried. but in 1863, that these of legislation gave the court -- said that foreign nations and indian tribes were excluded. it remains like that for some time. the shift starts to occur during the reason malaysian era, one of the most important times, a case that we looked at -- and they were hoping to remain in their homeland, a celebrity cause among reformers. the test case of crook was also

important in claims, because this case, even though it decides that indians are not citizens, they are persons of a particular protection under the law. at the same time, these reformers are arguing that indians need to be made subject to united states law, we need to set aside traditional norms of government and replace them with civilized forms. so it did not make sense for reformers that indians should be barred. so in 1881, congress for the first time granted a tribe, the choctaws, a right to bring a claim before the court. that is the way it would remain for the next 65 years, up until 1946. each individual suits brought

before the court by natives had to have a special piece of enabling legislation to make that happen. once you got there, your chances of winning are not good. of the 134 cases heard by the court in this time, native people only won 28. choctaws did win that first claim. they are often dismissed on very near a technical grounds, mostly grounds that relate to the enabling legislation itself. an example from a 1942 case, northwestern shoshones, it was thrown out because they said that the enabling legislation said that they could be compensated for land that was held by treaty, but they did not hold them by treaty, they had them before that, therefore the case is gone.

so there are these technicalities, cases get thrown out. once you win a case, if you are one of those 28 groups, then your cash that you get from the government is severely reduced by offsets. offsets are gratuitous expenditures of the government and what that means is it is an expense the government made on behalf of these people, on a group, that is not stipulated in the treaty. what are those costs? if you were removed from your homeland and forced to go somewhere else, that could be a gratuity. you pay the cost of your own removal. of these cases, the cash awards are reduced by an average of 2%. -- 60%. in some cases, it was 90%.

over $6 million to $622,000. it reduced the actual cash. and so, this is the situation that they are in. the number of cases increases radically in the 1920's, this is in part related to the native service in world war i and good feelings about native people, 1920's, native veterans become citizens, and later a citizenship act makes them all citizens of the u.s. and there is a flurry of enabling acts in congress. between 1924-1927, 38 claims are filed, that is about the same number that had been filed since 1881. so a flurry of claims. what it leads to is a call for a special commission, a special indian claims commission to handle these.

the idea actually goes back to 1910, the commission of indian affairs, but it is in the 1920's that more people call for it and it is also time of the report we talked about last time, miriam -- meriam report. so that is the background. where does the commission come from? any questions? ok, where does the commission come from? the origins should be understood in this previous claims history, but also in the fluctuations in federal policy in the 20th century. the 1930's saw a major shift in policy, the new deal, the end of the assimilation policy, the allotment. this is why congress will hold numerous hearings on indian

claims and the idea of an independent commission. four times between 1930-1940, they hold special hearings on indian claims commission. now the claims commission was something that john callier considered for the reorganization act, but it was rejected, because he thought it would overburden the act which was already complicated. and claims were controversial, one of the key sponsors of the indian reorganization act was wheeler, it is called the wheeler howard act. burden k wheeler was very suspicious of attorneys and he expressed his belief that it was claims attorneys driving this process, trying to take their cut. so callier is not going to include in the reorganization act.

the shift comes after world war ii and post callier. in 1945, 1946 they hold their final hearings on the indian claims commission idea. a key witness, this man. ernest wilkinson, a claims attorney who was the chief partner and a very powerful washington based law firm that tells mostly with indian law and specifically with indian claims. he testified in 1945 before these hearings. he railed against the narrow decision of the court of claims, specifically that of the northwestern band shoshone's, an attorney on that case. he testified he had lost, he had spent seven years and $12,000 of

his own money, that he lost. so he is going to argue for a claims commission that is empowered to make final decisions. he also suggests that lawyers'fees should be bumped up, but that does not happen, he remains at a maximum of 10%. and the final act, the indian claims commission act will come out of the set of hearings and in 1946, in august, it will be passed by congress and signed into law by harry truman. ok, so what is in the act? the indian claims commission act empowered -- allowed tribes or any identifiable group, residing within the territorial limits of

the united states or alaska to bring a claim before the commission. it created a three-person commission. in practice, the commission acted like a court. what i mean, it had adversarial proceedings. a tribe hired councils, who hired attorneys, no tribe pursued a claim on its own. they also hired expert witnesses. the act set up a very tight time frame, which did not work out the way they thought it would. the filing part did, they had five years to file claims. the deadline for filing was august 13, 1951. then theoretically, the claims would it be decided in the next five years. so the commission is only

supposed to last from 1946 until 1956. that is not the way it works out. it lasts until 1978. that is a long time, 1978. by that time it has heard 370 dockets, divided into sub dockets and decided 550 of them. what was left over when back to -- went back to the court of claims. this bill receives bipartisan support in congress. it can be conceived of by those who are pro-indian and pro-sovereignty as justice, paying off a debt. this is also viewed by conservative forces as people who want to get a return on an assimilation policy, that they view it as, well we finally paid

them, now we can end the federal government relationship with tribes. it is not listed as part of termination, but it plays into it. paying off debt, now we can move on. support from both sides. i know this is technical stuff. student: who served on the commission? mr. smoak: individuals appointed over the years, it was not able -- stable commission. probably 20-30 different people. three at a time. and they are often attorneys or government officials. ok.

the process, let's talk about the general process and how it is, in a couple important ways, it is important to native understandings and property ownership. for some native people, they welcomed the claims process. it was in flow of cash, but for others it seems a violation of their way of life. every claim will go through three phases. title, value liability, and then the offsets. i am not going to say much time on the offsets. under the act, the offsets were not completely defined, but much better defined than other claims cases. there are a range where some were excluded, you could not count the cost of removing

somebody in these offsets. so they are far lower, on average, maybe 2%. in some cases more. we will not spend much time talking about that. i want to focus on these first two. title and thought you liability. and this is one of the crucial factors of the operation of the commission. no land would be returned. this is not about acknowledging title or returning land, it is about a monetary settlement. that is going to shape the process. the first phase any tribe will have to enter into is the title phase. once the claim is filed, it goes to the title phase. in this phase, the tribe isn't

-- is burdened with proving a definable area. now, this is not a native concept. native people did have ideas about property, about land, about who could possess the land as a group, but the idea of elusive use or occupancy was not a common idea. this is a european idea. this is really the idea that is related to abstract ownership. at times the commission did recognize that views very, but in general it will come down to exclusive use and occupancy.

this is an obstacle to tribes. employees -- attorneys will employ expert witnesses. i have a journal of history there. this society emerges. this is a combination of anthropology and history, using culture and the understanding of another people's culture to interpret historical documents, this idea emerges directly from the work of the indian claims commission. anthropologists and historians working together to prove claims. unfortunately, the problem with titles is that there is a conflict of interest. the fact that these were not need of terms, it is meant claims attorneys cannot go after claims were multiple groups used that area, they saw that as a losing proposition. even more importantly, there is absolutely no incentive to claim that those native titles exist,

-- because he can only collect the fee when it is accepted that it is gone. does that make sense? there is a conflict of interest. so this comes from the final report of the claims commission, this map, in 1978. all areas not shaded are places where there is no claim certified, nobody got paid. did people live there, yes. concrete example, this area around the boise valley. tribes used that area, but those involved are steered away from making a claim their, because it was maybe a losing proposition of joint use. it would prevent settlement and attorneys are not going to spend

time and money pursuing claims they don't think will win. ok, then we go into the value liability phase. this is where we determine how much money a tribe get from the claim settlement. values are going to be determined on fair market value at the time of taking. not today. these settlements -- is the commission is hearing this in 1957, they are not going to look for value at 1957 prices, they will look at which the point the land was taken. in many cases there is a definable moment. in the case i will talk about in a moment, 1877, the treaty that follows the civil war when it is

a definable point, that land will be valued. what happens after title phase is that attorneys hire expert appraisers and go out and use resources and they make what the supreme court in another case called an informed guess. that is on how much it was worth. there is no adjustment for lost profits or inflation and no interest. we will talk about ballooning settlement and that interest comes after the final determination from the claims commission. so we will get a very straightforward payment. the emphasis is cash only, no returnable land. that is the big rub, that is the sticking point for so many tribes.

they want the land back. one of the most famous cases was is still an ongoing case, the lakotas, the black hills, and -- these were sacred, these were made part of the great sioux reservation. that created great sioux reservation made up of essentially all of south dakota and some north dakota, including the black hills. in the wake of 1876 and 1877, an agreement is forced on the lakota people and the black hills are gone. this is something that was traumatic for the lakota people. in 1972, the indian claims commission decided the

government owed that tribe or the taking of land. that land had the most productive gold mines, but that is not playing into it. in 1979, the court of claims upheld a ruling and added interest, that brought the award to $106 million. the lakota tribes refused to take the money, -- even today, they refuse to take the money coming even though there are people who say the land is not coming back, we need to take the settlement. due to interest as this is untouched in the treasury, the settlement is now $1 billion that the combined tribes have not taken. as you can imagine, that is a

lot of money and that can eat away at people's resolve, it can change lives, tribal existence. there seems to be, who knows, how long this could last or whether they will continue to resist taking the settlement. for now, that is where you stand -- stands. the general operations of the indian claims commission, any questions? what i want to do for the remainder of our time, for the next 55 minutes, focus on one claim in particular, i think that in doing this we can really get at those differences between political understanding and property ownership and the way in which the system was set up that disadvantages certain segments of the community and

puts control in the hands of others. the western shoshone land claims among one of the longest fought battles, one of the most famous. it becomes a celebrity cause, documentary films are made about it in the 1970's and most recently in 2006, focusing on it. robert redford narrated a couple of them. the basis of this is the treaty of ruby valley. we will talk about the shoshone homeland. this is how the native people would say it, newe sogobia. they had a word in other language that sounds similar, it

sounds like the people. for our purpose, what i want to focus on are these intertwined concepts in the native political order, about authority and land ownership. who talks to the people and for whom and how do you possess a land? there is this -- you often hear native people have no concept of have her property, that is not true. in terms of land as property, ownership of the land really is inherent in the people, in the group. all shoshone people shared a sense of a larger homeland. right? this concept of western shoshone homeland.

now, but not all of them lived in one or traveled throughout the area, they were not everywhere. so in each case you have smaller groups that have their own smaller homeland, places where they generally range. for those people, the right to the resources of the land were unfettered. they could use anything that was there, but if they do not use it -- the political leaders, also known as talkers, they basically negotiate access. because the basin is a harsh place, people move around seasonably. sometimes they will harvest nuts, but these are not uniform

year-to-year, so sharing and mobility are part of the survival strategy. this is not just apply to shoshone, it applies to other peoples as well. so other people came in and they negotiated sharing, so you need to go to their land at times. so there is a sense of a larger shared homeland, but also a sense of smaller groups. so there is absolutely no head chief. that is what americans want and if they try to create it, they try to recognize individuals, they think they can work with head chiefs, but leaders tell the negotiators, i do not speak for everyone. i cannot speak for everyone. this is not hidden from the

treaty negotiators. so that gives us the treaty, ruby valley. i mentioned this before, certainly in the context of the dodie treaties. this relates to utah territory. and in the wake of a massacre, dodie negotiated treaties with shoshone people. in his letter to the president, he described shoshone people as sharing land and he also understood he needed to make different treaties for the different groups. five different treaties. this is the map that was sent to washington that showed this huge

swath, stretching from nevada into wyoming. pretty well known map. and for the western shoshone, they have a leader called timoke. he is the principal shoshone spokesman and he is acting as a traditional leader. now, with the treaty does is it provides access to shoshone country, it is not feed any land. and it provides $5,000 a year for 20 years for the loss, an annuity payment.

there is no land session specified. so let's look at two provisions, the critical ones. first of all, article five -- it spells out territory. and it basically stretches from the shoshone river valley, the snake river valley, and south to the area of death valley and southern california. and from the west, today what is the desatoya range to the -- a wide territory. a huge area of territory. this is 22 million acres are so of land. now, again it is not seated.

article four of the treaty is the one that made provisions for white settlement, or use of the land. it says it is further agreed by the parties, that the shoshone country may be explored and protected for gold and silver and when mines are discovered, they may be worked, and mining and agricultural settlements formed, and ranges established whenever they may be required. think about that. how a traditional shoshone leader would interpret that, if negotiating resources, this strategy of sharing for survival is traditional, would you interpret that as giving your land away, or would it be traditional for you? the shoshone's do not see this as a treaty of secession, nowhere in it is shoshone

territory ceded. despite allowing white settlement, there is no session. from this point on, the western shoshones will not be at war with the united states. it means the two prince bull methods, from the colonial home time into the 20th century where indian title is extinguished, do not apply in this case. just war of conquest and a legal session, neither case do they lose their land for those reasons, which seem to be the only two. but the indian claims commission will claim another reason of losing their land. questions?

now, what i want to do is talk about the time between the treaty of ruby valley in 1863 and the claims commission in 1946. again, going back to what we talked about. the basin in california is a counterexample to most people's idea of how the conquest in america took place at the hands of the federal government. we know that the great basin in california, the conquest took place at the hands of local power. the federal government stepped out of the way and let it happen. whether it is the mormon church in utah, the policy tends to be local. so reservations are few and far between. reservations in the great basin

are few and far between, on the margins, there is the snake river plains. two larger reservations out here, pyramid lake emma walker river. those are established in 1859. right when there is a rush, they are flooded in. but then you do not get another reservation for the next 18 years, and that could be found for western shoshones, right up here, duck valley. federal officials would view this reservation, founded in 1877, as a place to concentrate all shoshone groups, regardless of where they were from. the idea of consolidation that was popular in the indian claims commission. most of all, it would be more economical, then having all of

these scattered reservations. the groups that lived closest to the area and some that were displaced, did go there. most were from the western shoshone bands, from northern nevada. that is where they go. most shoshones refused to go, they would not go. they do not go to duck valley. they remained on their homeland, hundreds of miles away. as a result, around the turn of the 20th century, a dozen or so more were created in the great basin. this parallels the rancherias, small groups of people that refused to leave where they had always lived and the federal government coming very late

establishing reservations. this includes fort mcdermid, fallon, both are shared. within the western shoshone territory, another territory, duck water, south fork, 1941. so those are within the western shoshone territory. there are other types of land ownership for land tenure that the western shoshone people top four at this time. one of the most important, the indian colonies, kind of ironic. indians colonized. this is a product of colonization. the indians are establishing these colonies. they are established in many towns in nevada, the idea of an

indian colony that phrase is specific to nevada, just like rancheria is specific to california. people do not want to leave homelands, they were seeking jobs, often congregating on the outskirts of these towns, and they were creating colonies. some of them were interethnic. there is a colony that is multiethnic with shoshones and washoe people. now many of these will gain federal recognition in the early 20th century. fallon, reno sparks, they got federally recognized in 1917.

elco in 1918. another in 1931. the last one was at the well shoshone calling in eastern nevada, in 1977. then, during the reorganization act time, several of these forms governments. that is what we want to get to. the most important of those was the temoke bands. they were headquartered in nevada and they become the only political entity in powered desk in powered by the indian claims commission to speak for all western shoshone. so, the temoke band emerged from an older set of confederations. there was a treaty council that

existed, up until 1890, but that was revised in 1912. that treaty council, which was often led by members of the temoke family, most of those are usually in the opposition of claims. in any case, they hire an attorney as early as 1932 to pursue a claim. this is an eight-member council. not to claim that the land was lost but to go after the government for unkempt promises. later, this shoney's were forced to form an umbrella government. that is where the temokes come

from. at various times, some groups joined, some fall out. the battle mountain colony joined, but then left in 1940. during this claims period, those represented are only those on at the south fork reservation, so not all inclusive. now, that brings us to the actual claim. the te-moak bands are going to be the political entity that is recognized and they will speak for the western shoshone identifiable group. that is what is called. this is the largest shoshone claim. that is what we'll focus on.

docket 326. this involves the identifiable group, the western shoshone's. now who represents them? it will be wilkinson, cragin, and barker. we already talked about wilkinson, a claims attorney in washington who was instrumental in the indian claims commission. in 1945, the attorney that had been hired by the traditional treaty council of the western shoshones, he became a judge, so he turned all of his business over to his partner, wilson. wilson decided to bring in wilkinson, he agrees to partner with him. in planning for this claim, wilkinson stakes out the

position that the title has been completely lost. he does this in a letter to wilson, saying, "if we prosecute this case, it should be on the loss of possession." remember, there is no advantage for saying that the title exists. they will pursue this idea. the first time this is explained to the western shoshone was in june, 1947, and he told him that the land was already gone, the best they could hope for was a monetary settlement. it was at that time that the bands signed a contract with barker, who will be the lead attorney through most of this. by 1950, wilkinson has convened

a meeting of all shoshones, to pursue a larger claim. the majority of the people who vote at this meeting vote for the claim, to pursue it. here is the problem, many of the shoshones their walk out and refuse to vote. remember that problem we talked about that they face in these traditional elections, the the rejection, is to not participate. just as in the passage of the act we talked about last time, in this case it hurts them because they refuse to participate. the few who remain, they vote in favor and you get an election that says -- this is a large number, including the te-moak family, they refuse to vote.

and so, wilkinson files the case on august 10, 1951. three days before the deadline. he files the case and leaves. does anybody know where he ends up? he becomes the president of brigham young university until 1971. so, the case then falls to his partner, barker. he becomes the lead on the case and deals directly with the western shoshone case in particular. it is there where we see this division between what shoshone people call the land people and the money people. again, i do not want you to vilify one side, you need to think about the hard choices people make.

the people deemed the money people often are those who are involved in government or those who feel disempowered. they see the system and if say, we will never get this land back, the best we can do is get this money. the land people, the traditionals, they always assert the treaty was in force, the land was theirs and they will effectively sell the land. they say that will happen if they take the settlement. so they summarize it this way, you will find out that you are actually selling indian rights, it there is no mention of selling land, it will always take care of you. nobody will ever find my indian rights, they are sacred.

but many western shoshone will feel powerless. and attorneys will work through the money people, the people in charge of tribal governments, these small governments for the colonies, to keep the claims process moving. the leadership of the bands, not including the family itself, often support the claims process, but at crucial times it will also reject the claims process. later, an attorney wrote, "although the shoshone intact may be in the majority, it may be those seeking damages who are

accomdated by the structure of the indian claims commission act." what did he mean? you might get a little steamed on how this case actually worked out. so the cases filed, wilkinson stepped aside, barker is the lead attorney. until 1962, that case went through the title phrase. there is never a move to assert that the tree was still in effect. that would mean no settlement. the expert witness called is elmer stewart, who is a longtime professor at the university of colorado and worked with many great basin tribes. he testified in it was his testimony that proved the exclusive use of the shoshone nation more broadly. and ultimately the claims commission will issue its initial decision of title and

docket 326-k in october of 1962. its decision will not be explained to most western shoshones until a meeting in 1963. so you might ask yourself, there was no land secession, how did they lose the land? they lost it -- the indian claims commission decided that they lost it through gradual encroachment. the commission writes, by gradual encroachment by settlers and others, the acquisition, disposition and taking of their lands by the u.s. for its own use and benefit, or the use and benefit of citizens, the way of life of western shoshone were forfeited and they were deprived of land.

any legal precedents for this? it sounds like to me, like an idea from real estate, adverse possession. if you allow someone to use property for an extended amount of time, they established property rights on your property. so you have to cross their backyard to get to your property, they established that. but that is in the case that you do not say anything. obviously, the western shoshone has said a lot for a long time. the treaty still exists, they say it is their land. it has been going on for 30 years at that point. now, again, this meeting takes place in 1953, barker explains the case.

this will alienate many shoshone, even those who were involved up to that point, including blossom who was a leader at battle mountain. but also other important figures at the meeting. ok, so questions on that? you should have questions. gradual encroachment, the land has been lost. here is the problem. you enter into, as you enter into the value liability, we will come back to this, this is a map of federal land in nevada. much of it is owned by the military. once you have established the title and it has been lost, what is the next step?

what is it worth? and how do you determine that? a date of taking, right? how do you determine the gradual date of taking? how? not even experts -- a joint stipulation, robert w barker and the indian claims commission got together and they agreed, jointly agreed, that the western shoshones had lost their land on july 1, 1872. this is an arbitrary date, nothing happened. you ever see something in the desert, signs, on this date, nothing happened. it is a gag.

that is the case here, it does not relate to an event. but the indian claims commission accepts the date of taking. the western shoshone are not consulted. this happens in washington. now, the californians, remember the shoshone claim 2 million acres of this, but that does have a specific date related to california law, 1852, that dictated indians had to make claims to the property they own. indians never heard of this law. it went into effect and that was on march 3, 1853. so california land will be valued earlier, that smaller portion in california.

so now, how do you get -- how do you value this land? barker needs to get money to hire professional appraisers. he explains this to the people, there is a great deal of unrest, unhappiness with this idea. and he presses ahead with the claim. in 1965, he asks them to take out a loan on the final settlement. he says, then we can hire appraisers and they will say what is worth. they say no, they reject it. so barker calls a meeting, the western shoshone get-together and the same thing happens, those opposed walkout. they do not like the process, they are upset, they walkout and don't vote.

those who remain vote to approve the loan. right? so in order to handle the claims process, since the te-moak band did not take out a loan, the indian affairs establishes a western shoshone claims committee. these are those who will make decisions, they will operate from 1955-1980. one of the original members was raymond yao, he becomes a proponent for the claim, but he is one of the original members. so it is with that $145,000 loan that the appraisers go out and they come up with a figure. it will be accepted by the indian claims commission in 1972.

the claims commission will accept the appraisal for 22 million acres at 21,350,000. remember, this is definitely. no interest. there is however going to be an additional $4 million added for mining profits that were lost before the date of taking. so about $1.07 an acre, it is a pretty good deal if you can get it. so this is where it fits in 1972. the claim has gone through.

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