Indian Claims Commission Act at 75: A Look Back and a Look Forward
April 15, 2021
On April 13 the D.C. Bar Environment, Energy and Natural Resources Community hosted a panel discussion marking the 75th anniversary of the Indian Claims Commission Act and Native Americans’ redress for damages by the United States.
Moderated by Kenneth Dalton, administrative judge of the Interior Board of Indian Appeals, the event was co-sponsored by the Environmental Law Institute; the ABA’s sections on Environment, Energy, and Resources as well as Civil Rights and Social Justice; the Native American Bar Association of D.C.; and the Energy and Environmental Law Forum of the Women’s Bar Association of the District of Columbia.
Sam Hirsch of Jenner & Block started off by depicting the creative lawyering behind the Indian Reorganization Act of 1934 (called the “Indian New Deal”) by Felix Cohen, who worked in the Department of the Interior’s Office of the Solicitor. The act intended to protect tribal lands, reestablish tribal governments, and spur economic development among Indigenous nations. Cohen also helped draft a plan to provide a new mechanism for resolving ancient tribal claims after Congress struggled with the issue for years. Eventually passed in 1946, the Indian Claims Commission Act established the Indian Claims Commission (ICC), which was to accept claims between 1946 and 1951. The commission operated until 1978.
“In some ways, World War II and the amazing effort that Native Americans put into defending their country spurred Congress to turn back to these bills they were looking at in the ’30s and finally move them,” Hirsch said.
Hirsch highlighted two key provisions of the Indian Claims Commission Act that reflect Cohen’s creative progressiveness. One supported Native American claims involving the treaties, contracts, and agreements that were revised on grounds of fraud, duress, or mutual or unilateral mistakes or unconscionable consideration. The second supported claims “based upon fair and honorable dealings that are not recognized by any existing law or equity.”
Notwithstanding the act’s progressive nature, Hirsch noted that significant congressional support came from the “termination” camp that wanted to take away American Indians’ sovereignty and assimilate them. This group hoped to eliminate a final hurdle by closing out these remunerative claims.
“So, you have this schism between the drafters of the legislation at the Interior and some of the enactors in Congress, who clearly had different philosophies of Indian rights and Indian affairs,” Hirsch said.
Decades-Long Case Exhibits ICC Limitations
Reid Chambers, partner at Sonosky, Chambers, Sachse, Endreson & Perry, LLC, described his experience as counsel in a 1977 case the Shoshone people brought before the ICC. The dispute concerned the 1863 Treaty of Ruby Valley, in which the United States agreed that the Western Shoshone held title to roughly 15 million acres in central Nevada; the Shoshone agreed that towns, mines, ranches, and agricultural settlements as well as railroads, telegraph lines, and roads could be established in that territory.
In the mid-20th century, the Western Shoshone sought compensation from the ICC for loss of a large part of their lands. In 1962 the ICC held that the Western Shoshone were “deprived of their lands” in the 19th century by “gradual encroachment of whites, settlers and others.” However, a number of “traditional” Western Shoshone members protested that they still owned a large portion of their territory and that accepting compensation would amount to selling the land.
Chambers represented the Temoak Bands Council in its request for a stay from the U.S. Court of Claims. He said the commission saw its jurisdiction as limited to money damages, “not for any kind of broader land claims, not to recovery of damages for failure to protect water rights, for failure to provide education, for all the sorts of things that a fair and honorable dealings clause could have and should have encompassed.”
Chambers said that although the ICC may have originally been conceived as more than an adjudicatory body, “it did not operate that way . . . [it] was a noble concept that was not, in my judgment, nobly implemented and administered.”
He also pointed out that Congress and the federal government could have done more in advancing the research and fact-determining scope of the ICC. In 1979 the Court of Claims awarded more than $26 million to the Western Shoshone, but arguments continue over its distribution and trust management.
Melody L. McCoy, staff attorney at the Native American Rights Fund, discussed the financial legacy of the ICC decisions and how they tie in with other situations in which the federal government holds Native American assets in trust. McCoy described the preclusive effect of the Indian Claims Commission Act’s directive for filing claims during the 1946–1951 time frame and Native communities’ confusion over where to submit them. McCoy also talked about ongoing concerns stemming from ICC settlements and other situations where the federal government has mismanaged Native Americans’ assets, leading to well-noted legal disputes.
Hilary Tompkins, partner at Hogan Lovells and former solicitor of the Interior Department during the Obama administration, said it was clear that the commission’s work “did not resolve by any stretch of the imagination all of the claims that tribes were seeking relief from, in terms of their relationship with the United States.”
Early on, the Obama administration prioritized the $3.4 billion settlement of the noted Cobell v. Salazar dispute that involved around 500,000 individuals in action against the United States for breach of trust. More than 100 tribes settled with the Obama administration for a total of $3.3 billion, Tompkins said.
For the near future, Tompkins underscored three fronts for Native American claims. First is infrastructure, especially water services. Tompkins said that in her own Navajo community, 30 percent to 40 percent of households does not have a drinking water supply. Second is trust responsibility, perhaps with better money mandating statutes, which are part and parcel with distribution of damages settlements. And, finally, Tompkins offered a vision of affirmative litigation, where the United States is co-plaintiff with tribes to protect their interests and rights, including those related to environmental enforcement.
Richard Blaustein, a freelance journalist covering science, the environment, and legal issues, has a background in environmental law.
