The most tangible evidence of this fundamental shift in policy occurred in 1953 with the enactment of two measures—a House Concurrent Resolution and a federal law. HCR 108, passed on August 1, declared it to be the new policy of the federal government to abolish federal supervision over the tribes as soon as practical, and to then subject the terminated Indians “to the same privileges and responsibilities as are applicable to other citizens of the United States, to end their status as wards of the United States, and to grant them all the rights and prerogatives pertaining to American citizenship.”182 Assimilation was one of the driving forces, although certainly not the lone force, behind this policy. There was a renewed sense that Indians should be allowed to “assume their full responsibilities as American citizens,” a status that many in Washington, D.C., and elsewhere felt that Indians had been deprived of because of the Bureau of Indian Affairs’ heavy-handed paternalism and the Indians’ own unwillingness to “let go” of their tribal rights.183
Public Law 280,184 the second measure, was enacted two weeks later. This act brought Indian lands and their tribal residents in California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), and Wisconsin (except the Menominee Reservation) under the criminal and, to a lesser extent, the civil jurisdiction of state governments, and authorized any other state to pursue such a jurisdictional coup. This omnibus act was “in principle” a unilateral repudiation of treaties between tribes and the United States and severely reduced the tribal governments’ inherent powers over civil and criminal issues.185
Public Law 280 was enacted in part to relieve the Bureau of Indian Affairs of costly law enforcement duties and to continue narrowing the scope of federal responsibilities to tribes. President Eisenhower signed the bill into law, although he had “grave doubts” about some provisions of the measure and declared it “unfortunate” that the bill contained two sections which “permit other states to impose on Indian tribes within their borders,” the same level of jurisdiction “while removing Indians from Federal jurisdiction, and, in some instances, effective self-government.”186
The devastation of tribal treaty rights and property rights and the abrogation of the constitutional rights of tribal members unleashed with the enactment of these two pieces of legislation were combined with the already established threat to individual Indians under the government’s policy of physical relocation of Indians into urban areas where their absorption into American society would be quickened. These enterprises were to be financially supported, in part, by the Indian Claims Commission (ICC) settlements; that is, the government would appropriate money won in court by the Indians to finance its ultimate goal of gradually severing all remaining federal trust and treaty obligations to tribes. Tribes, in effect, were to pay for their own termination. The legal liquidation of tribes, the enforcement of state jurisdiction over reservations, and the relocation of Indians to urban areas “were thought by the Federal Government and by many of the public concerned with these issues to be programs that could be managed with minimal new state and federal resources, all because of the potential of the Indian Claims Commission’s anticipated allocations.”187 (The presumption that tribes would be “successful” in pursuit of claims settlements, as we have seen, was not always realized.)
The 1946 Indian Claims Commission Act (ICC) was supposed to settle tribal grievances against the United States with finality. The act initially stated that Indian tribes had five years to file their claims. The ICC was to conclude its work within ten years from the time of its first meeting. Because of the enormous number of cases filed, however, over 850, the act was extended in 1956 for another five years, until April 10, 1962.188 Several additional time extensions became necessary. Finally, Congress, weary of the process, terminated the Commission’s life in 1978 and sent the more than 100 pending cases to the Court of Claims. Many of these claims remain unsettled. “Indian people,” said Charles Wilkinson, “complain that the long delays in settling their claims are another injustice. There is no other area in the judicial system, even antitrust, where you have delays of that magnitude.”189
The role of the ICC has a strong connection with the Tee-Hit-Ton case. Although the Tee-Hit-Ton had filed their case in the Court of Claims and not in the ICC forum, it was clear that whatever the Supreme Court decided would have broad implications for all Indian claims against federal takings of aboriginal lands. This was an interesting case for several reasons. First, it arose in Alaska, that territorial giant with largely untapped economic potential. Second, it involved Alaskan natives, Inuit and Aleut, who held virtually all their land under aboriginal title since no treaties were ever negotiated directly with any Alaskan indigenous group. And finally, there was the likelihood that the decision would establish a precedent reaching throughout the territory of Alaska (statehood was not gained until 1959) and the lower forty-eight states.
HISTORICAL BACKGROUND
The Tee-Hit-Ton were, at the time of the decision, a small clan numbering about seventy, living in southeastern Alaska near present-day Wrangell. They identified themselves as the Sti-Kine-Quon (or Stikine) people. They spoke the Tlingit language and had customs, laws, and traditions similar to other Tlingit peoples.190 The area claimed by the Tee-Hit-Ton entailed approximately 357,802 acres of land and 150 square miles of water. They had inhabited the region for thousands of years, and the area in question was recognized as theirs by neighboring tribes. The Tee-Hit-Ton maintained that although they had never signed a treaty with either Russia (which had occupied portions of Alaska from 1741 to 1867) or the United States, their aboriginal rights to the land had been confirmed and recognized in section 8 of the 1884 organic law which created the Alaskan territory,191 in section 14 of the Act of 1891,192 and in section 27 of the Act of June 6, 1900,193 establishing a civil government for Alaska. Furthermore, as an identifiable tribe, band, or clan, they also stressed that even if the federal government refused to recognize their full proprietary ownership of the area, the government under the trust principle, “still held title to the land, water, and natural resources of the Tee-Hit-Ton in trust for the Tee-Hit-Ton Indians.”194
In the early 1900s several reservations were established for Alaskan native groups by presidential executive orders. With a general act, Congress stopped the executive order reservation process in 1919; however, when the Indian Reorganization Act of 1934 was extended to Alaskan peoples in 1936, the Department of the Interior was specifically authorized again to establish executive order reservations for Alaskan natives.195 Six small reservations were set aside in the 1940s, while others were under consideration. An intensive campaign, however, “was launched by local interest to frighten the natives into rejecting them.”196 The Alaskan native groups were misled into thinking that they would be “confined” and would lose the valued American citizenship they had acquired under the 1924 law.
The campaign to prevent the establishment of Indian reservations was led by the burgeoning fishing, timber, mineral, and oil interests which had been streaming into Alaska since the end of World War II. Their rationale, supported by some in Congress and by the Department of the Interior, in preventing the establishment of more Indian reservations was self-evident. Reservations have a recognized status in law and are subject to federal trust protection. Nonreservation Indian communities lack any such safeguards and have little in the way of effective weaponry to fend off corporate or governmental interests intent on exploiting the resource base of tribes. Alaskan native communities, including the Tee-Hit-Ton band, as a result of this disinformation campaign, voted against continued reservation establishment.197 By the early 1950s, some 90 Alaskan villages reconsidered their position and decided to petition to have their lands reserved. The Interior Department, however, was already well into its termination phase and refused their request.
The first dramatic signal that the Tee-Hit-Ton were in a precarious position regarding their land title came when the House issued a report on
July 10, 1947, “authorizing the Secretary of Agriculture to sell timber within the Tongass National Forest.” The Tongass National Forest encompassed an important segment of the Tee-Hit-Ton’s land claim. The Committee on Agriculture, which submitted the report, recommended that the Tongass resolution pass with only minor amendments. The legislation was supported by Secretary of the Interior J. A. Krug for reasons of national interest, though he was well aware of the unresolved nature of the Indian claims. Krug said that “the question of native land titles in the Territory of Alaska has remained, in the large, unresolved throughout the history of that territory.” He noted, “It is not yet authoritatively settled whether the Alaskan Cession Treaty of 1867 (15 Stat. 539) preserved or extinguished the native or aboriginal title to lands. If not extinguished, and if not subsequently abandoned, these rights exist in some form as a valid type of land ownership.”198
Krug, however, despite this legal uncertainty, showed where his political loyalties lay when he stated, “For almost 25 years it has been the very strong desire of all persons concerned with the development of Alaska to put the rich timber resources of southeastern Alaska to use, upon a sustained yield basis, for the production of newsprint and other paper products. This potential development is now of a great general interest because of the acute shortage of paper pulp.”199 There remained, however, one small stumbling block. “Only the cloud,” said Krug, “on the Forest Service title which is cast by the native claims remains as a formidable obstacle.200
Krug’s arguments, and his concern that litigation to determine title “would take a considerable number of years to settle,” were enough to persuade the committee to support the measure. Sacrificing the property rights of the Tee-Hit-Ton band would meet the needs of the “hard pressed consumers of wood pulp,” the Alaska territory, and would add to the “national security of Alaska.” The national security argument is interesting, for this case arose during the height of America’s unbridled crusade against communism. As the committee concluded in its report, the development of this timber stand would be good for business enterprises, would raise employment, and would create “sorely needed products.” Even more important, it would be pivotal “from the standpoint of promoting the national defense through increasing the population and industrial capacity of Alaska as our northern rampart.”201
With such a wide-ranging set of economic, cultural, and ideological arguments, the Tee-Hit-Ton stood little chance of protecting their property rights. Less than three weeks later, Congress, by joint resolution, enacted a law authorizing the secretary of agriculture to sell the timber of the Tongass National Forest. The secretary, in section 2, was authorized to sell any timber “notwithstanding any claim of possessory rights” claimed by Alaskan natives.202 In short, the property rights of the Tee-Hit-Ton and other native groups or individuals, whether based on aboriginal possession or title, were disregarded. Felix S. Cohen, former solicitor general and author of the classic treatise on federal Indian law, once again came to the defense of indigenous peoples. In an article appropriately titled “Alaska’s Nuremberg laws: Congress Sanctions Racial Discrimination,”203 Cohen argued that “for the first time in our history, it has been decreed by Congress that a government bureau may seize the possessions of Americans solely because they belong to a minority race. That is the meaning of the Tongass Act, which deprives Alaskans of their land and timber if two or more of their grandparents were Indian, and which quietly became law on August 8, 1947.”204
The only consolation insofar as the Tee-Hit-Ton were concerned was section 3a of the resolution. While the Tee-Hit-Ton could not prevent the sale of land or timber, section 3a declared that all receipts from the timber or land sold were to be kept in a special account in the Treasury Department “until the rights to the land and the timber are finally determined.”205 Even this concession, however, would be negated by the Supreme Court’s decision.
A year after the Tongass Resolution, President Truman, in a special message to Congress on May 21, 1948, warned that “a special legal problem is at present hampering the development of Alaska. This is the question of whether or not Alaska natives have claims to the ownership of certain lands.”206 Three years later, on August 20, 1951, the U.S. Forest Service, acting under authority prescribed by the joint resolution, sold to Ketchikan Pulp and Paper Company, a Washington state–based corporation, the right to all harvestable timber in the Tongass National Forest, estimated at 1,500,000 cubic feet. The agreement gave the corporation exclusive rights to the timber until June 30, 2004.207
Within two months, the Tee-Hit-Ton had retained James C. Peacock and the law firm of William, Myers, and Quiggle, who promptly filed suit in the Court of Claims. They argued that the Tee-Hit-Ton were the sole owners of the land and water in dispute; that they had never sold or conveyed the land to any other party; and they asked for a judgment for the losses and damages from the Tongass taking, plus interest. The United States responded that the Tee-Hit-Ton were not even a recognized tribe, band, or group, and were, therefore, not even authorized to sue the United States. Furthermore, the government maintained that even conceding that the Tee-Hit-Ton were a tribe, they lacked collective rights to the lands or water in dispute and were therefore not entitled to any compensable interest in the land or resources involved. In other words, the United States denied that the Tee-Hit-Ton “owned anything.”208
The Court of Claims ruled on April 6, 1954, that the Tee-Hit-Ton were indeed an “identifiable group of American Indians” and were in fact asserting “ownership” of the land in question. However, the Court refused to say that the tribe did own the land in question and hinted that they had serious “doubt” whether they had any claim that survived the United States’ assumption of jurisdiction in Alaska in 1867. The Court would only say that if the Tee-Hit-Ton’s rights in the lands survived the federal government’s 1867 treaty with Russia, their only legal share would be rights of occupancy “with its weaknesses and imperfections.”209 Finally, the Court denied that the pieces of legislation relied upon by the tribe to assert recognized title—the acts of 1884, 1891, 1900, and 1947—provided any unqualified rights to the territory involved.
The tribe then appealed to the Supreme Court. This case had broadranging implications for (1) the tribe’s potentially extensive claims to the Tongass lands; (2) the hundreds of pending ICC claims in Alaska and the “lower forty-eight” states based on aboriginal title; (3) the Alaska territory—especially the potential cost of developing the vast resources of that massive land mass; and (4) the field of federal Indian law.
The tribe’s lead attorney, James C. Peacock, recognized as much when he stated that “the instant case has been shaped from the very outset to serve as a test case. . . .”210 Peacock noted how in several other pending cases the United States had sought and been granted an extension of time until after the Tee-Hit-Ton case was to be decided. Furthermore, the Yakutat clan, which Peacock also represented, had recently received 30,000 dollars in commitments from two oil companies in exchange for the groups’ pledge “not to sue those companies operating under leases granted by the United States.”211 The Yakutat had made a substantial cash contribution in support of the Tee-Hit-Ton band’s expenses in bringing this suit to the Supreme Court.
Congress was likewise concerned, evidenced by the introduction of HR 192 which would have established a sort of declaratory judgment for the settlement of possessory land claims in the territory. This move unnerved the Ketchikan Pulp Company. In a letter to the Forest Service, the company’s chief executives expressed deep trepidation that under the bill as drawn, the tribe would succeed to the rights of the government and the company would have to deal directly with the tribe and not the Forest Service, if, that is, aboriginal rights to the Tongass lands were affirmed. “This,” said the company, “would create an intolerable situation . . . it would, in our opinion, amount to a breech of good faith on the part of the United States if the title to the lands covered by the company’s contract would in the
course of time vest in third parties. . . .”212
The United States, in its brief arguing the correctness of the Court of Claims’ decision, asserted that the potential impact of the case was such that it warranted a Supreme Court ruling. “There are,” said Solicitor General Simon E. Sobeloff, “now pending before the Indian Claims Commission approximately 400 cases, involving some 800 separate claims or causes of actions by Indians in the continental United States. Of these 800 claims, about half involve in some form or other the question of the compensability of ‘original Indian title.’ With specific reference to Alaskan Indians, there is one case pending in the Court of Claims and twelve others in the Indian Claims Commission. Moreover, so long as it is contended that the questions remain unsettled, there may be a cloud upon the title to much of the land in Alaska and its further development may be thereby impeded.”213 The federal government hoped for a final resolution denying any aboriginal title to clear the way for unimpeded economic development.
Amicus curiae briefs were filed by the attorneys general of Idaho, New Mexico, and Utah. All three feared that a decision adverse to the Tee-Hit-Ton would have devastating consequences for their state’s resident tribes, each of whom had filed claims with the ICC. It may be that the attorneys general were less concerned with the justness of the tribes’ legal and moral claims against the United States than they were worried that the tribes, having lost their chance for compensatory settlement with the United States and facing federal liquidation, would then become a major financial burden upon the state.
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