American Indian Heritage Month: Commemoration vs. Exploitation
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Indian Claims Commission

The Indian Claims Commission (ICC) was a federal commission created in the 1940s to resolve the issue of awarding monetary compensation to Native Americans for the loss of their ancestral lands. More than six hundred claims were filed during its first five years. By the commission's expiration in 1978, over five hundred claims had been resolved, with over $800 million awarded to Native Americans.

The expanding United States had long acquired native lands through the treaty process. By 1868 Indian tribes had ceded to the United States over 2 billion acres of land through almost four hundred treaties, leaving Native Americans only 140 million acres. In 1855, some tribes began to file claims against the federal government for treaty violations in the newly established Court of Claims. The government restricted this practice in 1863, and, after 1881, a jurisdictional act of Congress was required before tribes could petition the Court of Claims. By World War I, only thirty-one claims had been filed, with fourteen positive verdicts for the tribes. In the 1920s, however, with a change in public sentiment toward American Indians, tribes had greater success using the Court of Claims to redress their grievances. By 1946, almost 200 native claims were on the dockets of the Court of Claims, a surge that prompted a new procedure to deal with the immense volume of cases.

The ICC was first proposed in 1910 by Commissioner of Indian Affairs Francis E. Leupp. The 1928 Meriam Report also suggested a special commission be created to examine existing claims without the passage of individual jurisdictional acts. After World War II, additional hearings on this topic continued, until finally H.R. 4497 passed through Congress on October 25, 1945, to create the ICC. Concurrent with the passage of the ICC Act, the federal government was in the process of altering its policy toward Native Americans. Termination—the attempt to "desegregate Indian communities, and to integrate Indians into the rest of society" (Fixco, 1986)—was gaining momentum. Historian Donald Fixco, in Termination and Relocation, further says that termination was also intended as "the ultimate destruction of tribal cultures and native life-styles." President Harry S. Truman ignored the issue that the federal government had a long history of unilateral appropriation of native lands. The ICC Act was passed to "absolve" the federal government from any obligation to honor treaties or to compensate Indians for these unilateral landgrabs in return for monetary compensation alone. The ICC Act did not mention the restoration of native lands to their original owners.

The ICC was officially created on August 13. The first cases came in gradually over the first few years, with only 200 claims filed by 1951. A remarkable increase in the quantity of cases occurred in that year, because Indian attorneys had previously refrained from filing until the earlier decisions had been determined. By the end of 1951 over 600 claims had been filed, primarily concerning western lands. To develop a feasible system to accomplish their enormous charge, ICC commissioners decided to transform their organization into an official court. Since the majority of claims were land cases, they were heard in three stages: title, value-liability, and offsets. The long beginning of the ICC's early work troubled Congress, which desired a quick and speedy resolution of Indian claims. In addition to evidence that the petitioners supplied, outside expert witnesses, consisting of anthropologists, historians and land specialists, were required to present major portions of the testimony for these cases. These experts defined vital information concerning tribal boundaries, duration of tribal possession, and assessment of the land. This immense amount of data was presented at the ICC hearings. From the outset, the commission's work was full of unexpected complications. This was evident as the time involved in each step of the claims process lengthened. The challenge of presenting the historical, anthropological, and legal resources in the medium of a courtroom setting made progress sluggish in the early years of the ICC.

The legislation that enacted the ICC was based on the premise that the Indians would have "their day in court." The original conception of a court to hear these claims evolved into a commission format. Five broad categories of claims were permitted under the ICC Act: 

(1) claims in law or equity arising under the Constitution, laws, treaties of the United States, and Executive orders of the President; (2) all other claims in law or equity, including those sounding in tort . . . ; (3) claims which would result if the treaties, contracts, and agreements between the claimant and the United States were revised on the ground of fraud; (4) claims arising from the taking by the United States . . . of lands owned or occupied by the claimant without the payment for such lands of compensation . . . ; and (5) claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity (60 Stat. 1049).

The ICC sent out a notice to all eligible Native claimants, with an explanation of its function and procedure. The tribes could obtain any legal representative they desired, subject to the approval of the secretary of the Interior. The Attorney General and his associates represented the United States' side of the case. When a claim was finally decided, a final report was forwarded to Congress, and tribal petitioners were forever barred from "any further claim or demand against the United States arising out of the matter involved in the controversy" (Indian Claims Commission Act of 1946, Section 22). All awards were transferred to the Treasury, and the Bureau of the Budget was to include the allocation in the next appropriations bill. The Act specifically precluded land restoration. Final payment remained in the Treasury until Congress directed its dispersal. Additional compensation was awarded if the ICC found a "grossly inadequate" difference between the adjudicated price and fair market value. Other types of claims involved government accountability; for instance, the government might be held responsible if the ICC determined that tribal funds had been misspent.

After granting the ICC several five-year extensions, Congress finally shut it down in 1978. Two main problems confronted the commission during their last active decade. The first was confusion over the denotation of "unconscionable consideration" for claims filed, since no established formula existed to measure disparity between the payments made to tribes and land value. For example, if the ICC decided that less then 50 percent of the land value had been offered to the tribes by the government, then a disparity was deemed to have existed. A second problem was the lack of progress in compromise settlements, since only the claims attorneys could promote this avenue of settlement. New commissioners joined the ICC during the 1960s, for a total of five by 1968, and their addition expedited the resolving of claims; by 1971 over half the cases had been settled. By 1978 the ICC had only sixty-eight remaining dockets, which were remanded to the Court of Claims.

The ICC awarded over $800 million to Native groups. The claims took about two decades on average to reach their conclusion, The commission achieved other results as well. By hiring their own attorneys, Native people continued to guard their interests. The claims process also resulted in increased public awareness of Native land loss and the search for appropriate compensation. The ethno-historical research gathered for these cases allowed for further study of Native American societies. The claims process and its difficulties united several Native groups as they strove toward a similar goal. Historians still differ on whether the ICC achieved its goal of allowing Indian people to have "their day in court."

Susan Sánchez-Barnett

Further Reading
Carrillo, Jo, ed. 1998. Readings on American Indian Law: Recalling the Rhythm of Survival. Philadelphia, PA: Temple University Press.; Fixico, Donald. 1986. Termination and Relocation: Federal Indian Policy, 1945–1960. Albuquerque: University of Mexico Press.; Indian Claims Commission Act of 1946. Pub. L. No.726, ch. 959, § 12, 60 Stat. 1049, 1052.; Indian Claims Commission Records, RG 279. No date. Washington, DC: National Archives.; Kuykendall, Jerome K. 1979. United States Indian Claims Commission: Final Report. Washington, DC: Government Printing Office.; Rosenthal, Harvey D. "Indian Claims and the American Conscience." In Irredeemable America: The Indians' Estate and Land Claims. Edited by Imre Sutton. Albuquerque, NM: University of New Mexico Press.1985.

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