for the new president and congress to address in 2017? our competition is open for grades 6 through 12 with $100,000 awarded in cash prizes. students can work alone or in a group of up to three, to produce a documentary. include some c-span programming that often explore opposing opinions. the prizes will be awarded and shared with 150 students and the grand prize of $5,000 will go to the student or the team with the best overall entry. this year's deadline is january 20, 2017. so mark your calendars and help us spread the word. for more information, go to our website, studentcam.org. indian claims commission, a panel created in 1946 for relations between the u.s. government and native american tribes. the commission was established

by congress to hear claims of indian tribes against the united states. and was meant to resolve many long-standing issues. held at the university of utah, this is an hour and 20 minutes. >> all right. so i guess we should go ahead and get started. it's a quarter of. quick announcement, just so you're aware of where we're at in the schedule. tuesday of next week, we will have the final quiz, i'm sure you're happy about that for this class. so please be ready for that at the beginning of class. now, today what i want to do is talk about the indian claims commission as a means of continuing our discussion of tribal sovereignty in the 20th century. the indian claims commission is something that is often not --

people don't spend a whole lot of time on it, but it's very important for a couple of reasons. it certainly points out the link between resources and land, control of resources and land and tribal sovereignty. sovereignty that the federal government puts in place. legislation that might seem to empower indian people at times also has real limitations on it. and then we're going to spend the day talking about one particular claim, the western shoshone claim that lasted over a half century. that claim illustrates how native conceptions of political power and control of territory, ownership of property are fundamentally different from american legal conceptions. and that poses real obstacles to

tribal sovereignty, certainly in regard to the land claims process. so what i want to do at first is start with some background information, talk about the indian claims commission in general and the claims process and give you an idea how that worked. and then move into a much more in depth look at the one particular claim for the western shoshone people. so let's go ahead. the indian claims commission is signed into law in 1946, but it is not the first time indian peoples have made claims against the united states. indian claims were first heard way back in 1831 by the united states supreme court. and other mechanisms existed in the united states for claims against government. tribes are not the only groups seeking redress from the government.

individual citizens did. and for individual citizens before 1855, claims followed a particular process. individual acts of congress. now before we talk about those private bills, keep in mind this idea of sovereignty immunity. the united states and other sovereigns subscribed to this doctrine and just to boil it down to a simple phrase, you don't get to sue the sovereign unless the sovereign says you do, right? you cannot sue the united states unless the united states gives you permission to sue it, right? so that's the basis for all of this, the doctrine of sovereign immunity. before 1855, individual citizens who had a claim against the government over a contract, over a perceived wrong, whatever, could seek redress, but they did it directly through congress.

they got a congressman to introduce a private bill, and you see these things filling the congressional record. there's a lot of them out there. and it's for that reason in 1855 that congress created the court of claims. the court of claims was envisioned to deal with all of these claims and to relieve that burden from congress. at first, the court is simply an advisory board, in a sense. it can only tell congress what should happen. but in 1863, second piece of legislation gave the court of claims the power to make final determinations, final decisions. and for much of its history, the court of claims sat in that building across from the white house and is today the smithsonian's brenwick gallery. okay. native access to the court, you

might imagine immediately native tribes might say this is the avenue to pursue the government for loss of our land, and some tried. but that piece of legislation i mentioned in 1863 that gave the court the power to make final determinations also barred tribes. it stated that the court could hear no claims "growing out of or dependent upon any treaty stipulation entered into with foreign nations or with indian tribes." so indians were excluded just like that. and that's the way it remains for some time. the shift starts to occur during the assimilation era that we spend so much time talking about. we talked about standing bear before. his case and the case of his people and their hope to remain in their homeland becomes a celebrity cause among the performers.

the test case standing be v crook is also important, because even though this case decides indians are not citizens, they are deemed with certain protections under the law. at the same time, these reformers are all arguing that indians need to be made subject to the united states law. we need to set aside traditional forms of government and justice and replace them with these civilized forms. it made very little sense that they should be barred from using a legal system. and so in 1881, congress, for the first time, granted a tribe, in this case, the choctaws, the right to bring a case before the court of claims. and that's the way it would remain for the next 65 years, up until 1946. each individual suit or claim brought before the court by native peoples had to have a

special piece of enabling legislation to make that happen. once you got there, it's tough to get there. and once you get there, your chances of winning are not good at all. of the 134 cases heard by the court of claims during this period, native peoples only won 28. the choctaws didn't win that first claim. the cases are often dismissed by the court on very narrow, technical grounds. mostly grounds that relate to the enabling legislation itself. to give you an example, from the 1942 case, northwestern banned shoshones case, the court of claims threw that out because it said that they could be compensated for lands held by treaty, but they had them before that. so it was by aboriginal title, so therefore the case is gone.

once you win a case, if you're one of those 28 groups that does win a case, what you get from the government is severely reduced, and what that means is it is an expense that the government made on behalf of these people on an individual group that is not stipulated in the treaty. what are some of those costs? if you were removed from your homeland and forced to go somewhere else, that could be a gratuity. so you end up paying the cost of your own removal, right? so of these cases, the cash awards are reduced by an average of 60%. in some cases, it's really egregious. the black feet case was a reduction of 90%. from $6 million to $622,000, the

offsets reduced the actual cash that the black feet get, right? and so this is the situation native peoples are in. the number of cases increases radically in the 1920s. this is in part related to native service in world war i and good feeling about native people in america. in 1924, the indian citizenship act makes all indians citizens of the united states. and there are a flurry of enabling acts in congress. between 1924 and 1937, there's a flurry of claims. what this leads to are calls for a special commission. a special indian claims commission to handle these claims.

the idea goes back to 1910, but it's in the 1920s that more and more people call for this and it's also part of the marion report, which we talked about last time, the special report on indian administration that the government commissioned in the late 1920s. okay. so that's the background of indian claims before the commission. where does the commission come from? any questions on that before i move on? okay. where does the commission come from? well, the immediate origin of the commission should be understood in this previous claims history. but also into the fluctuations -- the 1930s sees a major shift in policy, the indian new deal. the end of the assimilation policy. the end of allotment. this is when congress willhold

numerous hearings on indian claims and on the idea of an independent commission. four times between 1930 and 1940, congress holds special hearings on annan claims commission. now, the claims commission was something that john collier considered, but he rejected it, because he thought it would overburden the act, and claims were somewhat controversial. one of the key sponsors for the indian reorganization act was burton kay wheeler. vocally, it was his belief that it was the claims attorneys driving this process, seeking their cut, essentially. so collier -- the shift comes

post world war ii, and post collier. in 1945 and 1946, congress holds a final set of hearings on the indian claims commission idea. one of the key witnesses is this man, earnest wilkinson. a claims attorney who was born in ogdon, but he was the chief partner in a very powerful washington, d.c. based law firm that dealt mostly in indian law and specifically in indian claims. he testified in 1945 before these hearings, we railed against the narrow decisions of the court of claims, specifically that of the northwestern banned shoshones. which he was one of the attorneys on that case. he testified he had spent seven years and $12,000 of his own

money, that he had lost basically. so he's going to argue for a claims commission that is going to make final decisions. he also suggests that lawyer's fees should be bumped up from 10% to 15%. that's not going to happen. it remains at a maximum of 10%. and the final act, the indian claims commission act, will come out of that set of hearings. and in 1946, august of 1946, it will be past by congress and signed into law by harry truman. okay. so what is in the act you might ask? at the indian claims commission act, it allowed tribes or any identifiable group of american

indians residing within territorial limits of the united states or alaska to bring a claim before this commission. it created a three-person commission. in practice, that commission accuseded more like a court. what i mean by that is it had adversarial proceedings. so tribes hired counsels. no tribe pursued a claim on its own. they also hired experts. the act set up a very tight time frame, which didn't work out the way they thought it would. the filing part did. tribes had five years to nile claims. so the deadline for filing a claim was august 13th, 1951. then theoretically, all of these claims classes would be decided in the next five years. so the indian claims commission is only supposed to last from

1946 to 1956. of course, that's not the way it works out. it lasts until 1978. by that time, it heard 370 dockets, divided into 617 subdockets. and decided 550 of them. at that point, what was left over went back to the court of claims. now, this bill is going to receive bipartisan support in congress. it is -- it can be conceived of by those who are pro indian and pro sovereignty, paying off a debt long owed. but it's viewed by more conservative forces, people that want to see a return to an assimilation policy, they view

it as thinking the same way, we finally paid them off. now we can end the federal government's relationship with tribes. so for some, this premises the termination policy that follows very, very closely after it. it's not explicitly part of the determination, but certainly plays into it. the idea of paying off a debt so now we can move on. make sense? so it gets support from both sides in these debates. okay. i know this is pretty technical stuff. >> so who served on the commission? >> individuals who were appointed by the president of the united states, by the executive branch. and various people over the years. so it's not a stable commission. there's a long roster, probably 20 or 30 different people over the course of the commission. but three at a time. and they often are government officials.

let's talk about the general process here. a couple of very important ways ant -- for some native people, they welcomed the claims process. it's an inflow of cash. for others, though, it seems, again, to be a violation of their way of life. every claim is going to go through three phases. title. value liability. and then the offsets. i'm not going to spend any time talking about the offsets here. the offsets were not completely defined, but much better defined than the earlier claims cases. a whole range of expenses by the

government were excluded. you couldn't count the cost of moving somebody. so the offsets are far, far lower. on average. only about 2%. so we're not going to spend too much time talking about that. what i want to focus on is title and value liability. and always bring it back to this point. this is not one of the phases. this is one of the crucial factors for the operation of the commission. no land would be returned. this is about acknowledging native title or returning land to native people. this is a about a monetary settlement, and that's going to shape the entire process. the first phase that any tribe is going to have to enter into is the title phase. so once the claim is filed. the docket or the case goes to the title phase. in this phase, the tribe is

burdened with proving what's called exclusive use and occupancy from time in memorial to a defineable area. now, this is not a new concept. many people did have distinct ideas about property, about the land and about who could possess the land as a group. but the idea of exclusive use and occupancy was not a common idea. this is a european and euro-american legal idea. it really related to abstract property ownership. so they have to prove this. now at times, the commission did recognize native definitions, but in general, it's going to come down to exclusive use and occupancy. this --ethno is a combination of

anthropology and history, using culture, using an understanding of other people's culture to interpret historical documents emerges from the indian claims commission as they work together to prove native claims. unfortunately, the problem is that there is a real conflict of interest here. the fact that it was a native term meant that claims attorneys had no incentive -- they saw that as a losing proposition. even more importantly, there is absolutely no incentive to claim that native titles still exist. because you can only collect the

fee when native title is proven, but then also when the claims exhibition accepts that it is gone. does that make sense? so there's a real conflict of interest here. now, indian lands, this is a famous map that comes directly from the final report of the indian claims commission in 1978. all of the areas not shaded are areas that no claim was certified. nobody got paid for that land. do native people live there? oh, yes. concrete example, this area around the boise valley, shoshone, northern piutes, they all used that area. again, the losing proposition of joint use would prevent a

settlement, and attorneys are not going to spend valuable time and money pursuing a claim that they don't think they'll win. does that make sense? okay. then we go into the value liability phase. this is where we determined how much money a tribe gets from the claims settlement. values are going to be determined at what is called fair market value, at the time of taking. not today, right? so if the claims commission is hear thing case in '56 or '57, it's not going to look for a value in 1956 or 1957 prices, but look at the point at which the land was taken. in some cases, in many cases, there's a very defineable moment. in the lakota case, 1877, the

treaty that follows the war when the lakotas lose the black hills. that's when that land is going to be valued. what happens is that the attorneys will hire expert appraisers who go out into the field and use a range of historical sources and make what the supreme court in another case makes called an informed guess on how much something is worth. there is no adjustment for lost profits or inflation and no interest. talk about ballooning settlements and that interest comes after the actual final determination of the claims commission, not from the time you take it. so we're going to get a very straightforward payment. again, the emphasis is cash only. no return of land. that is the big rub, for so many

tribes, that is going to be the sticking point. they want the land back. one of the most famous cases of this, which is still an ongoing case, is that of the lakota, the western sioux people. they were made part of the great sioux reservation. made up of essentially all of western south dakota, and a chunk of north dakota, as well. including the black hills. in the wake of the great sioux war in 1876, an agreement is forced really upon the lakota people and the black hills are gone. this is something that is very traumatic for the lakota people. in 1972, the indian claims

commission decided the government owed them $17.5 million for the taking of the land. now, of course, that land for some of the most productive gold mines in american history in south dakota. but that doesn't play into it, all right? in 1979, the court of claims upheld this ruling and added 5% in simple interest. that brought the final awards to the lakotas to $106 million. so the tribes in unison refused to take the money. and up to today, they still refuse to take the money, although there are moves and there are people who say, you know, the land is not coming back. we need to take the settlement. due to interest as it sits untouched in the treasury, the lakota settlement is now over $1 billion that they have not

taken. as you can imagine, that's a lot of money, and that can eat away at people's resolves. it can change a lot of lives and change tribal existence. so there seems to be, who knows how long this might last? or whether they will continue resist taking this settlement. for now, that's where it sits. so wes about the general operations for the indian claims commission? okay. so what i whereabout to do for the remainder of our time, for the next 55 minutes or so, is focus on one claim in particular. and i think that in doing this, we can really get at those differences between political understandings and property ownership, and the way in which this system is set up that disadvantages certain segments of a native community.

and puts control in the hands of others. the western shoshone land claim, one of the longest fought battles of all. also one of the more famous becomes a celebrity cause, as well. documentary films are read about it in the 1970s, the 1990s and in 2006 that focus on it. robert redford narrated the first two of them. so it does become a well known case. now, the basis of this is the treaty of ruby valley. >> all shoshones, utes, all have

a language that sounds somewhat similar, which means the people. what i want to focus in on, are the entwined concepts in the native political order about political authority and land ownership. who talks for the people and for who? and how do you possess land? now, you often hear oh, native people have no concept of private property. that's not really true. however, in terms of land as property, ownership of the land really -- you get a sense of a larger homeland. this concept of this western shoshone homeland.

now, not all of them lived in -- or traveled throughout the whole area. they traveled from long distances, but not everywhere. and so in each case, you have smaller groups that have their own smaller homeland. places where they generally range. right? and for those people, the right to the resources of the land were unfettered. they could use anything that was there. but if they didn't use it at the exclusion of other shoshone people. they recognized shoshone people as kin. their political leaders, who were known as talkers, what they basically do is negotiate access. because the great basin is a pretty harsh place, people move around seasonally. sometimes hardness of pipe nuts or other resources are not uniform year to year.

so mobility and sharing are part of the survival strategy. and so native leaders negotiated access. other people came in and so you negotiate that sharing. you need to go to their land at times, as well. so there's a sense of this larger shared homeland, but also the sense of smaller groups, right? and their own homeland. there is absolutely, positively no head chief. this is what the americans desperately want and try to create. but shoshone leaders throughout this period, not just in nevada but idaho and wyoming and other places, say i don't speak for everyone. i can't speak for everyone. this is not hidden from the

treaty negotiators. so that gets us to the treaty of ruby valley. i mention eed this treaty befor. we're sitting here in salt lake city, utah. in the wake of the bear river massacre, he negotiated a series of five treaties with shoshone people. in his letter to the president, the secretary of interior, he described all shoshone people as sharing one big chunk of land. he also understood he had to make these treaties with all these groups. this is the map he sent to the indian bureau in washington that

shows this huge swath of shoshone territory, stretching from nevada all the way across northern utah into wyoming. now, he is the utah superintendent of indian affairs. the governor of nevada is also involved. and the principal signatory is a leader named timoke. later he'll be called old timoke. so he's the responsible shoshone spokesman. and is acting as a traditional shoshone leader. now, this provides access to shoshone country. it does not cede any land, and it provides $5,000 a year for 20 years for the loss of game, an annuity payment. again, there's no land session

specified in this treaty. so let's look at two provisions of it in particular, the critical ones. first of all, article five. it fells out western shoshone territory. and it basically stretches from the shoshone river valley or the snake river valley, south to the area today which would be death valley and southern california. and from the west, out near fallon, nevada to the great salt lake valley. the indian claims commission will consider this the 22 million acres or so of land, a huge swath of territory. now, again, it's not ceded,

though. this article is critical. article four of the treaty is the one that made the provisions for white settlement or use of this land. and i'll read it to you -- >> think about that provision and how a traditional shoshone leader would interpret that. if negotiating access to resources and this strategy of sharing for survival is your traditional mindset, would you interpret that as giving your land away or interpret that in a very traditional concept? so the shoshones do not see this as a treaty session.

in fact, it's not. nowhere in it is the shoshone territory ceded. and so despite allowing white mining and settlement, there's no session. and from this point on, the western shoshones will not be at war with the united states. so that means the two principal methods from the colonial period where indian title is extinguished, do not apply in this case. the just war conquest, how do you determine what's just, right? and a legal session. in either case do the shoshones lose their land for those reasons, which seemed to be the only two. so the indian claims commission is going to come up with a very different idea of how and when the western shoshones lose their land. questions so far?

now, what i want to do is talk about the period between the treaty of ruby valley in 1863, and the indian's claim commission in 1946. again, go back to what we talked about. the great basin in california, as well offer a very important counterexample of how the conquest of native america took place, at the hands of the federal government with soldiers and troops. in california, conquest took place at the hands of local power interests. the federal government stepped out of the way and let it happen. whether it's the mormon church in utah, mining interests or ranching interests in nevada, its policy tends to be local. and so reservations are few and far between. reservations in the great basin

are few and far between. on the margins of the great basin, you have the ft. hall reservation, which is not in the basin itself. you have the two larger reservations out here, pyramid lake and walker river, established in 1859, right at the time of the comstock silver rush. but then you don't get another reservation for the next 18 years. and the reservation that's going to be founded for western shoshones is up here. it's called duck valley. federal officials would view this reservation, founded in 1877, as a place to concentrate all western shoshone groups, regardless of where they were from. this idea of consolidation was really popular in the bureau of indian affairs. the idea is it would people

assimilation and cut costs. the groups that live closest to the area did go there. most were from the western shoshone band called the white knife. so that's their homeland, that's where they go. most western shoshones refuse to go. most western shoshones would not go to duck valley. and they remained on their homeland, often hundreds of miles away. and as a result, around the turn of the 20th century, over a dozen more small, executive order reservations were created in the great basin. small groups of native people who refused to live. and the federal government coming very late to the game

will establish these reservations. the reservations include ft. mcdermott in 1892, fallon in 1902. both are shared with indians are establishing these colonies, right? they are established in many towns in nevada. the idea of annan colony, that phrase is specific to nevada,

and they take on many of the same characteristics. western shoshone people did not want to leave their homelands who were seeking labor, jobs, often congregate on the outskirts of these towns and create what were known as colonies. you see here the logo of the reno sparks colony. that is a multiethnic colony and sits in south reno, south of the truckee river between downtown and the airport. now, many of these will dwayne federal recognition in the early 20th century. fallon, battle mountain, all became federally recognized indian communities in 1917.

the last one to get federal recognition was wells in eastern nevada in 1977. and then during the indian reorganization act period, several of these, a number of these colonies formed i.r.a. governments. that's what we want to get to. the most important of those was the te-moak bands. it becomes the only political entity empowered by the indian claims commission and the b.i.a. to speak for all western shoshones, for the western shoshone identifiable group. the te-moak bands emerge from an older set of considerations.

there was a treaty council that existed up until 1890, the time of te-moak's death. that was revived in 1912. that treaty -- that treaty council, which was often led by members of the te-moak family, who is usually in opposition to the bands. but they hire an attorney to pursue a claim. not to claim the land was lost but to go after the government for unkept promises. they were very clear about that. during the indian reorganization act period, during the indian new deal, the bureau of indian affairs pushed the western shoshones to form an umbrella government that would roughly cover the area of the treaty. that's where the te-moak bands

come from. when it's initially chartered, the te-moak bands only include the elko colony. at various times throughout its history, some groups joined, some groups fall out. the battle mountain colony joined, but then left after 1940. during much of this claims period, the te-moak bands will only represent people living south of elko, nevada. so not an all inclusive group, right? now, that brings us to the actual claim, because the te-moak bands are going to be the political entity recognized by the indian claims commission and the bureau of indian affairs to speak for the western shoshone identifiable group.

this is what we're going to focus on. and it involves the so-called western shoshone identifiable group. in 1945, that 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, a man named oroville wilson. wilson decided to partner with more powerful attorneys, so he brings in wilkinson, he agrees to partner with wilkinson. in planning for this claim,

wilkinson stakes out very clearly the position that aboriginal title has been completely lost. he doesn't do this consulting with the concern shoshones, but in a letter to wilson, he says if we prosecute the western shoshone case, we should do it in memorial possession. no financial incentive for saying title still exists. now, the first time this idea is explained to the person shoshones is at a meeting in june of 1947. wilson told the assembled shoshones that the land was already gone, and the best they could hope for was a monetary settlement. it was at that home that the te-moak bands sign a contract with wilson and robert w. bark. bark is going to be the lead attorney through most of this period. by 1950, wilkinson had a meeting with all shoshones here in utah.

shoshones from utah, nevada, idaho, to pursue a larger shoshone plan. the majority of the people who vote in the -- at this meeting vote for the claim, to pursue it. but here's the problem, many of the shoshones there walk out or refuse to vote. remember, we talked about the problem that native people faced in these kind of competitive elections, the traditional way which native people show displeasure or rejection of an idea is to not participate. but just as in the initial passage of the indian reorganization act, in this case it hurts them because they refuse to participate. the few who remain vote in favor of it. so you get an election that says yes, let's go forward with it, when a large number of them, including the te-moak family, they refuse to vote.

and so wilkinson files the case on august 10th, 1951. three days before the deadline, right? august 13th, '51 was the deadline. so he files this case, and then he leaves. where does he end up, anybody? he becomes the president of brigham young university for the next 20 years from 1951 to 1971. so the case then falls to his partner, robert w. barker. and he becomes the lead on the shoshone case and deals directly with the western shoshone case in particular. and it's there that we see this really emerging division between what the shoshone people, the land people and the money people. again, i don't want you to vilify one side or idealize one

side. you have to think about the hard choice people make. the people deemed the money people often are those who have been involved in tribal governments, or who feel disempowered. they see the system and they say, we're never going to get the land back. the best we can do is get that money. that money is going to make a real difference in our life. the land people who are known as the traditionals, they always said the treaty remains in force. the land was still theirs and accepting a settlement will effectively sell the land. edward mcdade summarized his position this way. under this treaty, there isn't any mention of selling our lands. the land will always take care of you. for myself, my indian rights are

sacred. but again, many shoshones, western shoshones will feel powerless here, and claims attorneys like barker and the b.i.a. are going to work through the so-called money people, the people in charge of tribal governments.