Treaties Present

By the late 19th century, Indian political life focused on efforts to get the United States to fulfill treaty promises. Tribes petitioned Congress and the President for investigations of mismanagement of Indian resources and for redress for other treaty violations. Tribes sent delegations of leaders year after year to negotiate and lobby. And, as a last resort, tribes began to bring suit in federal court.

The U. S. Court of Claims was established in 1855 for citizens to sue the United States. Tribes also sought redress here, but Congress passed legislation in 1863 barring them from this court, even though non-Indians could sue tribes. In 1881 Congress permitted individual tribes to obtain legislation that authorized the filing of a lawsuit. Obtaining an attorney required the permission of the secretary of the interior. This was a difficult process for tribes, and from 1881-1946 the court dismissed most Indian claims on legal technicalities. Practically every tribe filed one or more claims against the federal government.

For example, after many years of petition and protest, in 1930 the Menominee obtained permission to hire an attorney, and in 1935 Congress passed legislation to allow them to sue in the Court of Claims for the mismanagement of their forest resources. They won their case in 1951, proving that the federal government failed to exercise fiduciary responsibility. Congress passed legislation in 1951 to award the Menominee about eight million dollars, but in 1954 tied that award to the termination of the Menominee’s trust relationship with the federal government.


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Congress responded to pressure for reform in federal Indian policy by creating the Indian Claims Commission in 1946. This judicial tribunal was authorized to hear and determine Indian claims against the United States. Congress expected that in a short time, the Commission could dispense with Indian claims and relieve Congress of its responsibilities. Claims could be filed for failure to fulfill treaty provisions, obtain consent for land cessions, pay a fair price for land ceded, manage Indian resources and assets in a responsible manner, and, in general, failure to behave in a “fair and honorable” manner in dealings with Indians. Redress could come only in the form of a monetary judgment. Congress had to pass legislation to enable a tribe to collect an award. Claims averaged about 20 years between filing and settlement. A decision could be appealed to the Court of Claims and the Supreme Court. By 1951, 25 cases had been decided, only 2 in tribes’ favor.


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By the 1960s, Congress, influenced by public opinion, which in turn was shaped by Indian activism, was less hostile to the claims process, and the Indian Claims Commission decided cases in favor of the tribes more often than in early years. Tribal plantiffs won 57 percent of the cases filed. Although the Indian Claims Commission suspended activity in 1978, remaining cases were transferred to the Court of Claims and heard into the 1990s. Congress began making judgment awards in the 1960s, but tribes first had to obtain approval of a plan to use these funds, which delayed the awards for years. Per capita payments from these awards generally were small, about $1,000.

Some Potawatomi communities filed a claim for unconscionable consideration, that is, they argued that the money they received for their several land cessions was below market value. The Pokagons and other Potawatomis in Michigan successfully petitioned the court to join the other plaintiffs. The Commission ruled in the Potawatomi Tribe’s favor in 1972 and 1973, and a monetary award of over $2,000,000 was made in 1974. It took several years for Congress to provide this money. The Pokagons received their share in 1983.


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In 1966, Congress passed legislation to allow tribes to bring suit in federal court, so tribes could file a wider variety of cases. For example, the Menominees sued the state of Wisconsin in 1962 after the state arrested tribal members for hunting on land assigned to the Menominee by the treaty of 1854. The state claimed that the termination of the Menominee abrogated the hunting and fishing rights guaranteed by treaty. The case went to the Supreme Court, and in 1968 the Court ruled that Menominee hunting and fishing rights survived termination, that is, tribes have an existence independent of any recognition by Congress and hunting and fishing rights are tribal rights. In other cases, Ojibwa communities filed suit to recover their off-reservation hunting and fishing rights.

Listen to the Ojibwas’ Attorney Marc Slonim Discuss the Mille Lacs v. Minnesota Case Help

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The land claim cases and the associated frustrations spurred Indian activism. Indian organizations, such as the National Congress of American Indians, lobbied for treaty rights, and treaty rights became the rallying cry for the American Indian Movement. A “treaty rights movement” spread throughout Indian country, helping to shape a general cultural renaissance among Indians and bolstering tribal governments’ demand for sovereignty.


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Listen to Patty Loew, an Ojibwa Journalist and Activist, Discuss the Effects of the Treaty Rights Movement Help

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