Lewis 2008, Termination of the Grand Ronde Tribe, Chapter 5

Lewis, David, Termination of the Confederated tribes of the Grand Ronde Community of Oregon, Department of Anthropology, University of Oregon, Dissertation, 2008. (Pre-final Draft 2007)

*note- This chapter was significantly different in the final dissertation.

Chapter 5

Treaty Rights and the Indian Claims Cases in Oregon

 

I believe treaty commitments are paramount law.

-Senator Barack Obama, News From Indian Country, 11/3/08

 

Chapter Outline

This chapter will discuss the history of the Indian claims cases of western Oregon Tribes. The Indian claims cases relate to the history of Federal Indian affairs and the various policy issues that made them a factor in the termination of the Tribes. Analyzed is how the settlement of Indian Claims through the termination policy would contribute to a cessation of future Indian claims against the federal government.

Introduction

The issues involved with termination were shaped by the Indian Claims Cases of the first half of the 20th century. Termination or liquidation of the Indian reservations was associated with the fact that Indian Tribes never received a fair and just settlement for their lands, and the Federal Government failed to perform its responsibilities with the treaty Tribes. This problem, part of an overarching group of “Indian Problems”, was made much more complicated with the fact that the Government had failed to follow through with the ratification of many Indian treaties, yet the Indians had honored these unratified treaties, and the American people had settled lands not yet legally ceded to the United States.[1]  Therefore, in the 20th century there remained many land ownership issues between Tribal Nations and the Federal government that needed settlement in the 20th century.

In Oregon, as across “Indian Country”, Tribes continued to live in a state of poverty and the Bureau of Indian Affairs was viewed as a failed manager of the Government’s responsibilities, by Indian Tribes and Congress. During the 1930s and 1940s Congress and the BIA worked to study the “Indian Problems” and find equitable solutions for the United States and the Tribes. Tribes worked continuously through the Court of Claims to rectify their situations, and settled in for a long political battle with the United States Government. During this period the BIA was placed in the middle through having fiduciary responsibilities towards the Tribes, while being a Federal government bureau.

In the first half of the 20th century Congress passed special jurisdiction legislative acts granting the western Oregon Tribes the right to sue the Federal government for fair compensation for the rights to their aboriginal homelands. These aboriginal homelands were negotiated between 1851 and 1855, and the Tribal nations were afterwards removed to the permanent Coast Reservation. For the next 50 years, several sections of the Coast Reservation were removed and sold to white settlers so that by 1900 there remained two reservations with small land bases, Siletz and Grand Ronde reservations. The tribes of western Oregon were never compensated to the portions of the Coast Reservation that were removed, nor for the original coastal homelands covered by the unratified Coast Treaty (1855). In addition, other tribes in the Willamette Valley and from along the southern Oregon rivers, like the Rogue, Illinois and Umpqua did not receive fair compensation for their aboriginal homelands.  The resultant lawsuits became the Indian Claims cases for the western Oregon tribes.

Nationally, when the tribes began suing the Federal government, the initial suits failed or had very small settlements. Tribes across the United States were increasingly successful with their lawsuits, after attorneys had learned to manipulate the laws and began exploiting them. Thereafter case law became established, and settlements began reaching into the millions of dollars.  An example of this process in Oregon is presented in, Proposed Withdrawal of Federal Responsibilities Over the Property and Affairs of the Indians of Western Oregon (Pryse 1952a).:

These Indians (Coos et. al.)  are fearful lest their claim may be denied by the Indian Claims Commission on the basis of the doctrine of res adjudicate. They feel that their claim is identical to the claim of the Alcea, et. al. Indians, so recently adjudicated in favor of the Alceas, et. al. Evidently there was faulty presentation of the Coos, et. al. Indians case, it preceding the presentation of the Alcea Case by several years. It is very evident that counsel for the Alcea and Rogue River Tribes, in trying those cases, profited from mistakes made by counsel in the Coos et. al. case, and avoided such mistakes. It is believed that if the Coos et. al. case had been presented by using the type of evidence submitted in the Alcea Case, the Court would have rendered favorable judgment (Pryse 1952a:15).

 

At this time, in the 1940s, there became was a backlog of hundreds of cases which the in which the federal government had fiduciary responsibility to represent the tribes. This became an expensive and time consuming undertaking for the federal government as each case needed a special jurisdictional act to be passed by Congress and the government needed to represent itself as well as the client tribes. Therefore Congress established the Indian Claims Commission to expeditiously settle the Indian claims so that the government could “get out of the Indian business” as soon as possible (Senese 1991:7).

Looking back at the context of Indian claims in comparison with the federal government’s desire for termination of the tribes, it is understandable if the federal government wanted to reduce the potential of future lawsuits by the tribes. Termination appeared to be an answer to the problem of Indian claims as the elimination of federally recognized tribes would limit future Indian claims. The Indian claims cases from the tribes were dependant on the aid of the federal government to represent them, an aid that would not be accessible once the tribes were terminated. A contradictory perspective of this theory is that the federal government could simply disallow the granting of special jurisdiction and therefore eliminate Indian claims. However, special jurisdiction to file a claim against the federal government is granted because the current Congress is sympathetic to the cause of the tribes. In an era with a sympathetic Congress, special jurisdictions would be granted and Indian Claims would be filed.

In hindsight is makes sense that Congress favored termination because it would eliminate future Indian claims cases. However, it may also be the case that the cessation of Indian Claims was an inadvertent consequence of termination. Regardless there are several places where Indian claims cases and awards become an issue in termination of the western Oregon Indians.

It cannot be said that Indian claims cases alone caused termination, but at the very least they became one of a number of culminating issues, or “Indian problems” that needed managing. Once this problem was managed, then it would save the federal government millions in future lawsuits.

In 1947 Congress decided that termination of even a few Tribes would significantly improve the Government’s economic situation and finally settle any disputes between the tribes and the Government. “These provisions for the graduated relinquishment of Government supervision would tend certainly to reduce those claims and ultimately to eliminate them” (Committee on Civil Service 1947:124).

The Treaties

In the midst of the changing picture of Indian legislation, in the early part of the 20th century began the Indian Claims cases. Tribes across the United States sought ways of rectifying long term wrongs committed by the federal government of not honoring the original treaties and provisions they had been granted. The Tribes had ceded aboriginal claims to millions of acres of land and in exchange had gained security, social services, education, and a permanent piece of land for themselves.

For western Oregon Tribes this process began with the first round of treaty negotiations, from 1851-1852, all of which went unratified by Congress. The Tribes had negotiated these treaties in good faith with representatives of the federal government yet these treaties were never ratified by Congress.

In 1853-1856 a second round of treaties were negotiated which were all ratified except for one, the Oregon Coast treaty. These second round treaties did not give the Tribes as many rights and did not involve as many Tribes as the first round. As such some Tribes in western Oregon have never had a ratified treaty.

Below is presented a representative portion of the Oregon Coast Tribes Treaty of 1855 that was not ratified, showing how ceded lands were stipulated in such treaties:The above named confederated bands of Indians cede to the United States all their right, title, and interest to all and every part of the country claimed by them included in the following boundaries to wit: Commencing in the middle of the channel of the Columbia River, at the northwestern extremity of the purchase made of the Calapooia and Mollala Bands of Indians; thence running southerly with that boundary to the southwestern point of that purchase, and thence along the summit of the Coast Range of mountains with the western boundaries of the purchase made of the Umpquas and Mollalas of the Umpqua Valley, and of the Scotons, Chastes, and Grave Creeks of the Rogue River Valley, to the southern boundary of Oregon Territory; thence west to the Pacific Ocean, thence northerly along said ocean to the middle of the northern channel of the Columbia River; thence following the middle of said channel to the place of beginning.[2]

 

For hundreds of Tribes the permanent lands, usually on military reservations, had been continually reduced by Congressional Acts and Executive Orders until the tribal members collectively owned a small fraction of the original reservation they had been given. This is exactly the situation of the western Oregon Tribes, who were originally granted the huge Coast Reservation, but through Congressional acts in 1865 and 1875, and the Dawes Severalty act of 1887, this reservation was whittled down to two small fractional reservations. Below is a representation of how treaties normally stipulated permanent lands:

The President may, from time to time, at his discretion, cause the whole, or such portion as he may think proper, of the tract that may now or hereafter be set apart as a permanent home for these Indians, to be surveyed into lots and assigned to such Indians of the confederated bands as may wish to enjoy the privilege and located thereon permanently; to a single person over twenty one years of age, forty acres; to a family of two persons, sixty acres; to a family of three and not exceeding five persons, eighty acres; to a family of six persons and not exceeding ten, one hundred and twenty acres; and to each family over ten in number, twenty acres for each additional three members. And the President may provide such rules and regulations as will secure to the family, in case of the death of the head thereof, the possession and enjoyment of such permanent home and improvements thereon; and he may at any time, at his discretion, after such person or family has made location on the land assigned as a permanent home, issue a patent to such person or family for such assigned land, conditioned that the tract shall not be aliened or leased for a term longer than two years, and shall be exempt from levy, sale, or forfeiture, which condition shall continue in force until a State constitution, embracing such lands within it’s limits, shall have been formed, and the legislature of the State shall remove the restriction: Provided, however, That no State shall remove the restriction herein provided for without the consent of Congress.[3]

 

To tribal members this constituted a permanent agreement between the Tribe and the Federal Government. Many Tribes accepted even the unratified treaties as a binding agreement and took action to satisfy their part of the treaty, usually assuming that they no longer owned certain traditional lands, an understanding that was gladly accepted by the settlers who lost no time claiming large allotments. Tribes would move onto reservation lands before Congress ratified the treaty, because of their trust in the words of the Indian agents. This is the case on the south and central Oregon coast were the Tututnis, Alseas, Siuslaws, Coos, Coquille and Umpqua Indians moved to the Siletz Agency and to the Alsea sub-agency in 1855 and 1856 without a ratified treaty (Brauner, et al. 1994). On the north Oregon coast, the Nehalem Tillamook people moved to the Salmon River sub-agency without a ratified treaty. All of the coastal tribes were party to the Oregon Coast treaty and word did not reach the tribes until early 1860s that the treaty would not be ratified.

The Coast Reservation mentioned in several treaties was meant for the Oregon Coast and southern Oregon and Willamette Valley Tribes and was established through a Presidential Executive Order in 1855. The Grand Ronde Agency in the Yamhill River Valley was added to the Coast Reservation in the final months before the tribes were removed from southern Oregon, and the Grand Ronde Reservation was created by a second executive order in 1857. Most of the seven western Oregon treaties were ratified within 8 months after they were negotiated although the treaty with the Molala took four years to ratify. By 1857 most tribes in western Oregon had removed to the Grand Ronde Reservation. BIA records up to the 1950s showed that the Indians at the Grand Ronde Reservation could claim the seven ratified treaties of western Oregon, while the Indians at Siletz Reservation could not claim a ratified treaty (Pryse 1950). Throughout the 19th and 20th centuries Grand Ronde Reservation was known by Indians as the reservation for the inland Willamette Valley and southern Oregon Indians, while Siletz Reservation is known as the reservation for coastal Indians.

When these treaties were negotiated, it was usually through translators. Therefore it is doubtful that every stipulation of the treaty was clearly translated to the Indians, and if so, whether they were communicated to the tribal membership. Therefore if a treaty went unratified and Indians had actually moved to a reservation, then they went there without rights, having appeared to freely given up their lands and as such leaving them open for settlement by whites.

Social services on reservations amounted to health care, blankets, clothing, food allowances, housing, water, education and some job and farming assistance. These services were severely impoverished through lack of adequate funding by the BIA or Congress and through outright thievery by the United States Indian Agents assigned to manage the agencies (Lewis 2002). After each Indian Agent left their position, the Indian Office conducted an investigation of their tenure because of the numerous reports of agents mistreating the Indians and stealing from the reservation’s resources (Lewis 2002). Many Tribes literally starved through the lean months waiting for approval to come from the Commissioner of Indian Affairs to approve food rations, while some Indian Agents purchased food rations of the worst quality in order to save funds (Lewis 2002). In the 20th century, when Indians continued to be taught farming or ranching trades in Indian boarding schools, the farm lifestyle for many Americans was quickly becoming unsustainable as millions moved into the cities to earn a wage income (Strickland in: Wilkinson 2005).

Health care or “Sanitation” was likewise nearly useless on many reservations. Many of the medicines on reservations were well out of date, having arrived during the initial establishment of the reservation, medical treatments available to Indians were mediocre, and clearly not “state of the art” treatments available to rural and remote regions of Oregon for people who were poor and subject to the government’s unwillingness to pay (Lewis 2002). Many reservations had visits from doctors perhaps once a month or less, and even less frequency of visits from dentists, well into the 20th century.[4]

Other social services like housing or water were services that needed approval from the BIA. Many Indians lived in houses that did not have running water or toiletry facilities, much less electricity, well into the 20th century (Lewis 2006).  Below is a representation of such treaty stipulations:

In addition to the consideration specified, the United States agree to erect at suitable points on the reservation; two sawmills, two flouring mills, four school houses, and two blacksmith shops, to one of which shall be attached a tin shop; and for two sawyers, two millers, on superintendent of farming operations, three farmers, one physician, four school-teachers, and two blacksmiths, a dwelling house and necessary outbuildings for each; and to purchase and keep in repair, for the time specified for furnishing employees, all necessary mill fixtures, mechanical tools, medicines, books, and stationary for schools, and furniture for employees.

The United States further engage to secure and pay for the services and subsistence, for the term of fifteen years, of three farmers, two blacksmiths, two sawyers, two millers; and for the term of twenty years, of one physician, one superintendent of farming operations, and four school teachers.[5]

 

It is important to understand that even though some of the services to Indians ended in fifteen or twenty years, the treaty itself never ended, it was perpetual, unless Congress decided to terminate them. These are important understandings of treaties that inform as to the intent of the treaty when it was signed. The intent of the treaties is based, in part, on what the Commissioner of Indian Affairs directed the Indian Agents to specify and the results of the negotiations that occurred between the Indian Agents and the Tribes. The treaties were negotiated in good faith but what the Indian Agents told the Indians usually was different from what the final ratified treaty was. In oral historical accounts, Natives assumed that they would have their new reservation lands, forever, but this was not the case with nearly all treaties. Reductions were made to reservations in western Oregon in 1865, 1875, and after the Dawes Severalty Act was passed in 1887.

Despite whether Tribes had a ratified treaty or not, many Tribes assumed that they did and honored those treaties with their removal to reservations. Subsequently, of the Joel Palmer treaties, only the Oregon Coast treaty went unratified in western Oregon. Until the 20th century, because the Oregon Coast treaty was unratified, the coastal tribes were never fairly compensated for the lands they ceded to the United States. In addition, the interior and southern Oregon tribes of western Oregon were never fairly compensated for other lands related to the temporary reservations, those reservations created to hold the tribes until they could be removed to the Coast Reservation. For western Oregon, the Indian Claims cases of the 20th century were directly related to the uncompensated aboriginal lands of western Oregon.

Beginning of Indian Claims

 

Beginning in the 1880s and continuing into the 21st century, Tribal Nations within the United States filed hundreds of lawsuits again the Federal government. The reasons for the lawsuits were primarily in regards to the treaty rights of Tribes.

Tribal sovereignty and power within the United States is culminated under the legal understanding that “Treaties are constitutionally privileged as the supreme law of the land and are legally binding statements of federal and tribal intention” (Wilkins 2001:251). Thus treaties are constitutionally protected for Tribes and their very existence establishes proof that Tribes are separate sovereign entities deserving of all of the rights of sovereign nationalities. However, treaties also grant special rights to Tribes and take away other rights and the observance and honoring of these rights is the responsibility of the United States government.

The lawsuits became known as “Indian Claims” cases, and from 1881-1946 over 200 were filed with combined claims of $1.4 billion from 68 Tribes (Philp 1999; Prucha 1994:377).  The claims were only possible because of the passage of special jurisdictional acts allowing the Court of Claims to accept Indian cases on behalf of the tribes, called the Indian Claims Commission.[6] The primary attention of the lawsuits were questions about whether the federal government had lived up to their trust responsibilities and whether they had fulfilled their treaty obligations (Prucha 1994), the major treaty subjects being land, fishing, hunting, and water rights.  Many of the lawsuits were successful and this fact and the possibility of further successes alarmed the Department of the Interior, prompting them to take steps to provide more vigorous defense (Philp 1999).

Additionally, in the 1940s the Indian Claims Cases were aided through investigations by the House of Representatives Committee on Indian Affairs. Through their own investigations, the Commiuttee concluded that the Indian Bureau had impoverished the tribes, had failed to educate and assimilate them, and had created an environment which had many tribes living without running water, electricity and most of the other modern conveniences that had become common for all Americans (Affairs and Representatives 1945). The Indian Bureau received the blame for this situation as they have been the administrators of Indian affair for almost a century. Congress failed to admit their own culpability for these “Indian problems” as they were the legislative organization responsible for securing funds for all of the needs of the tribes. However, the realization that these claims were legitimate was enough to spur Congress to create the Indian Claims Commission.  By 1945, the House and the Senate called for a final settlement of all Indian Claims (Affairs and Representatives 1945; Philp 1999).

Indian Claims Commission

Congress created a special Indian Claims Commission (ICC) in 1946, which was intended to expeditiously hear all possible claims against the United States by Tribal Nations. In the initial ten-year period, 1946-1956, the ICC heard 370 petitions within 670 dockets. As Indian Claims continued to pour in Congress elected to extend the commission such that by 1977, when the commission was closed; they had awarded $818 million to tribal petitioners (Prucha 1994).

The Indian Claims cases extended for several decades for most Tribes. From the time of original filing, to an eventual court decision took many cases 20 years, and if the Tribe won the case, Congress had to then pass legislation to appropriate the award. The final award settlement may take 10 years by itself to finish. In the late 1950’s Oregon Senators Morse and Neuberger were receiving dozens of correspondences related to the final payment for the Indian Claims cases of the Tootootney, the Klamath, and the Tillamook Tribes, some filed decades earlier and only settled in the past decade.[7] Much of the correspondence concerned the enrollment of individuals and families into Tribes that had won cases, however many others simply asked when they would be paid their portion of the award.

Oregon Tribal Court Cases

 

The western Oregon Indian Claims Cases were based on the set of ratified and unratified treaties from 1851-1855, examined previously. Many of the western Oregon Tribes had undergone civil litigation against the United States over treaty rights. By the mid-century million of dollars had been won by tribes across the United States. In Oregon, many of the western Oregon tribes filed a succession of Indian claims, most being decided in favor of the tribes.

In 1947, William Zimmerman created a list of ten “fully acculturated Tribes” who were eligible for termination (Peroff 1982). Many of the Tribes on Zimmerman’s list are those who had successfully pursued lawsuits against the federal government. In particular, the Menominee and the Klamath Tribes pursued multiple and extensive Indian Claims cases to protect their land, and hunting and fishing rights. The lawsuits served to call attention to the Tribes as possessing extensive valuable natural resources and being willing to defend themselves from the government’s mismanagement of their resources, funds, and interest earning derived from these resources.

The Alcea Case

The Alcea case began in 1940 and was permitted by the Act of August 26, 1938, on behalf of 32 named parties. The case was intended to recover the “value of lands appropriated by the Government without benefit of any treaty ratified by Congress” (Pryse 1952a:11-12). The non-ratification of the Coast treaty, negotiated with the coastal Tribes in 1855, caused the Tribes to sue the Federal government to recover their losses.  As such over thirty Tribes moved onto the Coast Reservation without a ratified treaty. The case was decided on April 2, 1945, and was affirmed on November 25, 1946 in favor of the Tillamook, Coquille, Too-too-to-ney and Chetco nations, some 25 Tribes and bands. The Umpqua, Chinook, Clatsop, Ne-ha-lum, Confederated Tribe of the Grand Ronde Community, Willamette Valley Confederated Tribes of Indians, Siletz Confederated Tribes of Indians, and all Portions and Descendants of such Tribes and bands, were denied settlement in this case. Collectively the settlement was $2,259,986.90, with interest accruing on this amount from January 3, 1950” (Pryse 1952a:11-12).

Judgment in favor of Molalla and Calapooias of Umpqua Valley

 

Commonly referred to as the Rogue River case, was filed under authority of an Act of Congress of August 26, 1935. The case included 31 plaintiff Tribes and bands.  The Tribes sought the recovery for the government failing to discharge its treaty obligations from seven ratified treaties from 1853, 1854 and 1855. The Court did not consider the value of the ceded lands, and only granted recovery for value of the lands that had been reserved for them by treaty yet had been taken from them without recompense (Pryse 1952a:11-12). On February 4, 1946, the following Tribes were decreed entitled to recover losses, the Rogue River Tribes, Chasta, Scoton, Grave Creek bands of Umpqua, Cow Creek band of Umpqua, Confederated Tribes residing in the Willamette Valley, Molalla or Molel Tribe, and Confederated Tribes of Siletz Indians.  On April 3, 1950 the United States Court of Claims decided in favor of the Molalla and the Umpqua Band and Calapooia Bands of Umpqua Valley for $34,996.85 and $342,450.74 respectively. The judgment was affirmed by Congress and an appropriation was made on November 1, 1951 (Pryse 1952a:13-14).

The results of the claims cases were a windfall for the Tribes. Judgment rolls were created and final payments were made, usually many years later. Judgments for the successful cases took an additional congressional act to appropriate awards.  An explanation of the process is in this letter from E. Morgan Pryse:

Receipt is acknowledged of your letter of December 19 inquiring about settlement of the claims of the Tillamook and Rogue River Indians.

These claims have been settled by the Government and money therefore is in the U.S. Treasury. It will, however, be necessary to get an Appropriation Act through Congress before we can disburse the money to the Indian people entitled thereto. It will also be necessary that tribal enrollment of the Indians be made and approved before the money can be paid to the Indians. This we are working on… (Pryse 1952b).

 

Unsuccessful Cases

The first Indian Claims case in Oregon involved the Coos, Lower Umpqua and Siuslaw Indians. The case was led by George Bundy Wasson and began with a petition to Congress in 1919. The three tribes filed for a recovery of the land taken from them when the Coast Treaty was never ratified by Congress. These tribes had originally inhabited the Coos, Coquille, Umpqua and Siuslaw rivers watersheds on the Oregon coast.

Congress passed acts in 1929 and 1932 allowing the tribes to file suit against the United States. A judgment was entered on May 2, 1938 denying the plaintiff Indian tribes a recovery.  In 1939 a petition was filed before the Supreme Court and the tribes lost in that court as well. In 1951 the three tribes again filed to have their case heard in the Indian Claims Commission and were approved (Pryse 1950:14-15).

In the judgment entered in 1938, the essential issue was that the Indians had biased opinions and did not have the essential documentation of their traditional land claims:

Plaintiffs rest their case in the essential particular to sustain it upon the oral testimony of twenty-one witnesses. If this testimony is to prevail in every way over documentary and historical evidence it is sufficient to observe that it does prove by hearsay that plaintiffs did occupy the lands claimed from time immemorial. The oral testimony of numerous Indian witnesses, some of whom were aged and others younger, details facts and traditions. In this case, at least seventeen of the twenty-one witnesses produced have a direct interest in the outcome of this case (Claims 1939:Emphasis added).

 

Interesting in this judgment is the fact that the Court does not admit to the obvious bias of the United States that it is in their interest to not grant an award to the plaintiff as this would erode to the sovereign right of the United States to claim the Oregon Coast.

Implications of Indian Claims

As mentioned previously, due to the successes enjoyed by many Tribes in their Indian Claims cases, it is likely that the Federal government took this into account in their planning for the termination of the Indian reservations. If Tribes, and by direct extension, tribal members, were no longer federally recognized, then it would be more difficult to file lawsuits against the United States for its abrogation of their treaty rights. In the first half of the 20th century tribes relied heavily on the federal government for many services, including legal representation. During this period there were few educated Indians who had the resources to pursue such a case, much less hundred of such cases.

There are many reasons to eliminate the possibility for the Tribes to continue suing the federal government. The potential of the western Oregon tribes to file continued lawsuits was large as there were approximately 58 distinct tribal entities, and two reservations, all of whom are named in the Western Oregon Indian Termination Act, P.L. 588.  The possibility of a Tribe winning a large sum of money is initially a good reason; however all such litigation is expensive for the government to continue to have to represent defend against. To add further to this indignity, the Federal government had fiduciary responsibility to aid the Tribes in all such suits against itself.

Additionally, the successful lawsuits creating more complex layers of protection for Tribal sovereignty, and as such made it increasingly difficult to take land and resources from the Tribes. Since earliest day of the United States, lawsuits filed on behalf of tribes had begun to define the undefined area of Indian law. The best example is the fact that Indian sovereignty is defined in Chief Justice John Marshall’s opinion in Cherokee Nation v. Georgia, that tribes are “domestic dependent nations” and “They occupy a territory to which we assert a title independent of their will, . . . meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”[8] From this bedrock opinion in 1831 is derived all of the legal protections to tribal sovereign and self-determination.

Finally, the federal government found that they had to eliminate the possibility of future lawsuits over water and other resource rights as these were to be keystone issues to the future generations of Americans hoping to find the resources of the west to successfully resettle and find success. As elsewhere noted, the Tribes owned water rights, and some of the last remaining unexploited mineral deposits. These rights were to become increasingly problematic to the federal government in the coming decades as the population expanded, and heavy industrialization occurred. Water rights and its associated issues were already contentious as there had been several Indian water rights cases, and the United States Congress was concerned with its many irrigation projects meant to revive the agricultural economy of the mid-west and west. And increasingly power issues and multi-state irrigation projects like dams were coming to the foreground as the next major issue related to water access.

It is obvious to even the casual observer that if the Tribes no longer possessed treaty rights then the cycle of lawsuits would end, forever. Evidence of the intent of termination and its relation to the cycle of Indian Claims is in the 1944 Ten-Year Programs initiated by the Bureau of Indian Affairs under John Collier (Affairs and Agency 1944). In the Ten-Year Programs steps in their program includes:

(3) Adoption of the policy that Indians absorbed into a white community socially and economically cease to be a responsibility of the Government and eliminated as a ward. (4) Definition of elimination as to wardship, assistance from the government, ownership of trust lands, and its future administration by the Government (Affairs and Agency 1944).

 

The combination of the Ten-Year Program steps three and four appears to be equivalent to a final settlement of land claims and the elimination of future prospects for Indian land claims. Additionally, in December 1944, the Subcommittee to the Committee on Indian Affairs of the House of Representatives pointed out in their report that the government needed “…to give final settlement to prevailing Indian claims cases” (Affairs and Representatives 1944:335-336). These reports became the official goals of the United States Congress and set the stage for termination in the 1950s.

Indian Perspectives on Treaty Rights

This unethical historical situation is one of the phenomena that drove Natives in the 20th century to seek redress for the lands they were never compensated for. Naomi Rainville Riebe an Umpqua Indian expressed this feeling in the hearings for Task Force Ten in 1975; “I believe they should do as they promised to do and the promises were the written agreements that they had with the government of the people that worked in them” (Ten and Commission 1976).  The continuance of this story speaks to the power of Indian oral histories. Mrs. Riebe did not personally experience the negotiations for the Coast Lands, nor the signing of the Coast Treaty in 1855. But the powerful story of this arrangement had been passed down through many generations and contributed to the galvanizing of the tribal community to seek redress for their uncompensated agreement with the United States.

Likewise, Merle Holmes from Grand Ronde expressed his own frustration at the effect of the termination of the tribe and the longer history of the breach of the tribal treaties:

we feel that ever since the first treaty was signed there’s been one breach upon the other as far as the government is concerned…People here in Grand Ronde—even if you go there right today, you can see that they’re way below poverty level and there is certainly no way they will ever get above it unless we get some recognition (Ten and Commission 1976:26, 111-112).[9]

 

These statements were echoes of the position that Howard Barrett Sr., A tribal community leader from Florence, one of the small southwestern Oregon communities, had in 1953 in answer to the initial draft of the termination bill:

For all these things promised should be paid for first. Those things that are law now have no bearing on our treaty or agreement made with all of the Coast Indians, whom was given the right of recovery by the Supreme Court of the U.S.A. (Barrett Sr. 1953).

 

This sentiment made enough of an impression that it was communicated during a November 1st 1953 meeting  at Siletz a few months before the termination bill was to go to Congress, and reported on November 3, 1953 by E. Morgan Pryse in a letter to the Commissioner of Indian Affairs, “Other Indian members raised the usual objection that many Tribes do, to wit: “no withdrawal until all claims against the Government are settled”” (Pryse 1952a:Emphasis added). Apparently, Pryse was accustomed to hearing this statement with regards to termination the western Oregon tribes.

The issue for the tribes relates to the native concept of balance. It tribal people are not fairly compensated in a business arrangement; the story will remain in the community for years until fair compensation is made. Treaties are such a business arrangement, in a sense an agreement between the tribes and the United States. The treaties are of a greater importance that a normal agreement and as such the stories of the agreement with carry on forever until a balance is achieved. By the United States reneging on the original agreement, they caused the continuation of this story of the need for a final settlement. In 1953, months before termination, the tribes were fearful that they would never be able to settle their accounts if their were terminated before the awards were made. For the Coos tribes, who had pursued an unsuccessful Indian Claim case, their agreement with the United States was never settled. The tribal members knew that settlement would never occur until they were restored and were able to pull together the resources to revisit the Indian claims against the United States. Therefore, the lack of settlement helped to unite the community to seek restoration.[10]

This issue is important enough that a version has been passed down to the present day. Bud Lane, Tribal Council member at Siletz Reservation, told a story about some of the meetings at Siletz, that the Indian claims awards were held up by BIA officials in order to get the Indians to approve the termination bill (Lane 2006). Both Bud Lane and Esther Stutzman, an elder and storyteller enrolled at Siletz, stated that some Tribes were not allowed to attend the meeting, in fact they were locked out of the meeting and made to stay in a shed outside of the governance hall, because they did not reside on either Grand Ronde or Siletz reservations (Lane 2006; Stutzman 2006). These tribal members had been labeled as troublemakers as they did not agree with termination and their tribal members were known detractors of the proposed bill and as such were singled out to prevent more dissension in the meetings (Lane 2006; Stutzman 2006). For the southwestern Oregon tribes, centered at Empire, Oregon, approvals from the general councils for termination were not necessary as they did not have a reservation and there were fewer resources to settle. The southwestern Oregon tribes were not required to create a termination roll either.

Indian Claims Cases: Awards

The Indian Claims Case awards, for many tribal elders today, remain a historical anomaly, as there is disagreement over how much they received. Some people at Grand Ronde received over $1000, while others received $35. Nstayka Ikanum, the Grand Ronde cultural website has an image of a Department of the Interior check in the amount of $29.50 labeled as a termination check. The Indian claims awards are confused with the payments that tribal members received for the termination of the Tribe and sale of the lands. Portland Area Office records state that each member received $35 for the sale of lands at termination (Office 1956). Some tribal members do not remember getting an award and are confused as to what their awards were payment for. Some of these tribal members were minors at the time of the awards and their awards were either deposited in a trust account or given to their parents.

Indian Claims Cases awards depended on an individual’s tribal descendancy not on whether they were enrolled at a reservation. The actual award amounts are listed on the table below:

 

 

 

 

 

 

 

 

 

 

 

 

Table 1- Western Oregon Tribal Awards*

tribes Approx. number on roll Number of minors Amount per tribe Approx. amount per person
Umpqua and Calappoia** 410 232 395,926 965.67
Tillamook 183 98 1,109,475 6,062.70
Coquille 271 122 724,142 2,672.11
Chetco 675 352 409,880 607.22
Tootootoney** 476 230 371,051 779.51

*Award with interest as of June 30, 1959.

**actual spelling

(Office 1959)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Tribes were tasked with adding their names on judgment rolls for ancestral determination by the BIA. By the 1950’s, several of the Indian Claims Commission (ICC) cases were settled, yet the final award payments needed to be appropriated by Congress. Before the tribes could receive their payments as a result of the cases, they had to create a judgment roll of eligible recipients. This became the responsibility of the BIA’s Portland Area Office. Most of the awards, except for minors awards, where completed by 1959.

Many of the more than 2,000 petitions for addition to the rolls, mentioned previously, were in relation to adding additional names to the judgment rolls. From the petitions, the petitioners may have confused the issue of whether they wanted to join the termination roll or the judgment rolls. The judgment rolls were created immediately following the ICC’s judgments on each case. Most of the ICC’s judgments were made several years before the termination acts were passed.  The more than 2000 petitions for addition to the rolls were received between 1957 and the 1959, well after the final rolls for the ICC cases and for termination were published or finalized. As such, all petitions to be added to the rolls were denied.

Conclusion

The Indian claims cases caused the federal government a great deal of “Indian problems” in the 20th century. The fact that the government did not uphold its responsibilities toward the Indian Nations and allowed Indian reservations to remain in poverty conditions presented an untenable situation. Indian peoples were fed up with “broken promises” of the United States and filed hundreds of Indian claims suits against the government. Indian people maintained this fight through many generations by keeping alive stories of how they had never gotten their due from the signing of the Treaties. The power of these stories and the mismanagement by the BIA of treaty rights resulted in millions of dollars in awards to the Tribes for these lawsuits.

Midway through the Indian Claims process, the government found a strategy that would result finally settle the Indian Claims cases. While the original plan was to open the claims window for only ten years, sympathy for the tribes resulted in continuous extensions of the process to 1977. The strategy of termination, which would result in an elimination of Indians, and a settlement of all accounts found supporters in Congress.

The original reduction policies of the government, that of assimilation did not work fast enough. Tribes found ways to survive and continue on despite the poverty on the reservations. Confronted by needs to eliminate federal overhead following World War II, the government devised a quicker method of eliminating Indians in the liquidation of reservations. During the 1940s, parallel needs to eliminate Indian services, eliminate government overhead, eliminate continuous Indian claims, to gain access to reservation resources, and Congressional arguments to “free Indians,” culminated in the termination policy.

This strategy worked with Congressmen, the American public, and many tribal members, because despite the fact that Tribes were winning in the courts, and despite the fact that they were by law American citizens since 1924, and they had volunteered for military service in WWII in greater proportions than any other ethnic group; they still did not enjoy complete and unfettered access to American society. Some states did not allow reservation Indians to claim Social Security (Arizona), and in Oregon, Indians were not allowed to marry whites legally until 1952 (Affairs and Representatives 1944; McKay 1950). Many states maintained racial exclusion laws that were based on the fact that Indians lived primarily in reservations and enjoyed a few Federal benefits based on their Indian status.

It is as yet undetermined how much the government held the Indian Claims awards from being expeditiously awarded. Many tribal members maintain that the awards where held pending approval by the Indians of tribal termination. This would have been an important consideration for Tribes that were poor and long suffering from ill management by the BIA.

However, the central point is that while the original intention of the government may not have been to relate the two issues, those of Indian Claims awards and termination, the outcome of the termination of Indian reservations would be an eventual cessation of claims against the government. This is indeed the case for many Tribes restored today, as many, like Grand Ronde, have not revisited those older issues to rectify what occurred as they have been dealing with the myriad issues in the restoration of their sovereign government.

Bibliography

Affairs, Committee on Indian, and House of Representatives

1944    H. Res. 166, A Bill to Authorize and Direct and Conduct an Investigation to Determine Whether the Changed Status of the Indian Requires a Revision of the Laws and Regulations Affecting the American Indian. In Hearings before the Committee of Indian Affairs, House of Representatives. Washington, D.C.: GPO.

1945    H. Rept. No. 2091, 78th Cong., 2nd sess. Majority Report by James F. Connor, Chairman, Karl E. Mundt, Vice-Chairman, Antonio Fernandez, John R. Murdock. In H. Res. 166, Hearing Before a Subcommittee of the Committee on Indian Affairs House of Representatives, 78th Congress, 2nd sess. Part 4, Washington, D.C. December 4, 5, 6, 7, 8, and 13, 1944 Washington, D.C.: GPO.

Affairs, Office of Indian, and Grand Ronde-Siletz Agency

1944    Ten-Year Program, 1946-1955, Siletz, Southwestern Oregon, Grand Ronde. O.o.I. Affairs, ed. Salem, Oregon: GPO.

Barrett Sr., Howard

1953    Correspondence of Howard Barrett Sr. to E. Morgan Pryse, October 26, 1953. In RG 75, Bureau of Indian Affairs, Portland Area Office Records Seattle: National Archives Records Administration, Northwest Region.

Brauner, David R., Nancy A. Stricker, and Benton County Development Department

1994    Cultural Resources Overview and Preliminary Interpretive Themes for Fort Hoskins County Park. Benton County, Oregon.

Claims, United States Court of

1939    COOS (OR KOWES) BAY, LOWER UMPQUA (OR KALAWATSET), AND SIUSLAW INDIAN TRIBES v. THE UNITED STATES. In United States, Court of Claims, Cases Decided in the Court of Claims of the United States vol. 87,143-53, Vol. 2008. Washington: GPO.

Committee on Civil Service, United States Senate

1947    S. Res. 41, A Resolution to Investigate Certain Matters Relating to Officers and Employees of the Federal Government. In Hearings before the Committee on Civil Service, United States Senate, 80th Congress, 1st session, part 1. Washington, D.C.: GPO.

Lane, Bud

2006    Personal Communication. D. Lewis, ed. Eugene.

Lewis, David G.

2002    Native Experiences and Perspectives as Revealed in the Indian Correspondence in the SWORP Archival Collection In Changing Landscapes. R. Losie, ed, Vol. 3. North Bend, OR: Coquille Indian Tribe.

Lewis, Norma

2006    Interview about Termination. D. Lewis, ed. Salem, Oregon.

McKay, Office of Governor Douglas

1950    Transcript of the Conference on Indian Affairs, July 14, 1950. Conference on Indian Affairs, Salem, Oregon, 1950. State of Oregon.

Office, Portland Area

1956    Western Oregon Termination (Public Law 588-83d Congress-2d Session (68 Stat. 724)) Final Accomplishment Report. In Bureau of Indian Affairs, Portland Area Office. Portland: National Archives Records Administration, Northwest Regional.

1959    Report on Termination of the Western Oregon Indians. In RG 75, Portland Area Office, Bureau of Indian Affairs. Seattle: National Archives Records Administration, Northwest Regional.

Peroff, Nicholas C.

1982    Menominee Drums : Tribal Termination and Restoration, 1954-1974. Norman: University of Oklahoma Press.

Philp, Kenneth R.

1999    Termination Revisited : American Indians on the Trail to Self-determination, 1933-1953. Lincoln: University of Nebraska Press.

Prucha, Francis Paul

1994    American Indian Treaties : the History of a Political Anomaly. Berkeley: University of California Press.

Pryse, E. Morgan

1950    Program for the Early Withdrawal of Selected Activities and Withdrawing Federal Supervision over Indian at Grand Ronde-Siletz and Southwestern Oregon. In RG 75, Bureau of Indian Affairs, Portland Area Office Records. B.o.I. Affairs, ed. Seattle: National Archives Records Administration, Northwest Regional Repository.

1952a  Unknown. In RG 75, Bureau of Indian Affairs, Portland Area Office Records. Seattle: National Archives Records Administration, Northwest Regional Repository.

Pryse, E. Morgan

1952b  Correspondence of E. Morgan Pryse to Mrs. Elsie Pearl Ellington. In RG 75, Portland Area Office Records, Bureau of Indian Affairs, Vol. Portland Area Office Records Series 1. Seattle: National Archives Records Administration, Northwest Regional Repository.

Senese, Guy B.

1991    Self-Determination and the Social Education of Native Americans. New York: Praeger.

Stutzman, Esther

2006    Interview with Esther Stutzman. D. Lewis, ed. Eugene.

Ten, Task Force, and American Indian Policy Review Commission

1976    Transcript of Proceedings, Task Force on Terminated and Nonfederally Recognized Indian Tribes, Salem, Oregon. Seattle: National Archives Records Administration, Pacific Northwest Region.

Wilkins, David E. & K. Tsianina Lomawaima

2001    Uneven Ground: American Indian Sovereignty and Federal Law. Norman: University of Oklahoma Press.

Wilkinson, Charles F.

2005    Blood Struggle : the Rise of Modern Indian Nations. New York: Norton.

 

 

[1] See appendix for list of unratified treaties

 

[2] Oregon Coast Tribes Treaty of 1855, Unratified

 

[3] Oregon Coast Tribes Treaty of 1855, Unratified

 

[4] From Donald Dexter, Dentist. Who mentioned that he used to have a regular route which took him around to the Oregon reservations about once a month. 2000.

 

[5] Oregon Coast Tribes Treaty of 1855, Unratified

 

[6] Act of August 13, 1946 (25 U.S.C. 70).

 

[7] See Senators Morse and Neuberger Collections, Special Collections Division, University of Oregon.

 

[8] Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 15 (1831).

 

[9] This is clearly the case with tribal peoples across the United States and may be the driving issue behind the constant feelings on the part of Native peoples that the government owes them something.

 

[10] My own theory of the situation, of how the continuation of a lack of settlement of this issue brought the community together to seek restoration.

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