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6. The Indian Claims Commission
- University of Arizona Press
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105 chapter six The Indian Claims Commission Felix Cohen saw the Indian New Deal in three parts: the Indian Reorganization Act restoring Indian land and creating limited self-government through tribal constitutions; the Handbook of Federal Indian Law arguing for Indian Country and its sovereignties; and the Claims Commission to adjudicate tribes’ claims against the federal government. As a scholar committed to social democratic principles of “revolution through the ballot box” and the rule of just laws, he believed these three efforts should free the tribes from onerous restrictions, allowing them to retain their cultures while rising out of poverty. Two of his three efforts missed the mark. The IRA, even in its initial lengthy draft by Cohen, continued the federal government’s unwarranted paternalism, and Felix’s youthful faith in constitutions imposed a foreign instrument of governance upon the tribes.1 By the time he came to write the Handbook, with five years’ experience dealing with Indian people, including visits to reservations, Felix realized he had acquiesced in John Collier’s limited goal of reforming the Office of Indian Affairs. Radically liberating Indians from federal control—control by the bureau he now headed—was not Collier’s aim. In the Handbook, Felix and his team worked to establish inherent sovereignty and the primacy of treaties over Congress’s plenary power, including its power to delegate Indian affairs to one of its agencies. Now Felix wanted to level the playing field by restoring to tribes what had been unjustly and illegally (if one accepts the Handbook ) seized from them by the federal government. Tribes had been making claims against the government for more than a century, for example 106 • Chapter Six Taos Pueblo’s repeated efforts to regain its holy Blue Lake from US Forest Service control, hampered by an 1863 congressional statute denying US Court of Claims jurisdiction in Indian claims stemming from treaties. (The Court of Claims itself had been established only in 1855.) Only specific legislation from Congress could exempt a tribe’s claim from this prohibition . Interior’s team—Ickes, Margold, Collier, and Cohen—favored a congressional Indian Claims Commission empowered to hear and resolve tribes’ claims. Note that this would be a commission, not a court of claims. Most Americans saw this move as just and fair. Indians perceived an irredeemable flaw in the commission’s authority: it could only order monetary compensation, not restoration of land. Framers of the commission assumed Indian tribes would simply use the money gained through successful claims to buy whatever land they wanted. Two considerations made this untenable. First, a great deal of disputed property was not for sale, such as Taos’s Blue Lake. Second, many Indian people were antagonized by the idea that a dollar value could be put on land significant to them as holy or a homeland. Offering dollars for the Lakotas’ Black Hills appeared to be the grossest misunderstanding of the value of the hills, ignoring the locales immortalized in legendary events, ignoring its soul-refreshing beauty, ignoring its valuable hunting unavailable on the Plains. For all the Cohens’ and Margold’s socialism, they still believed land is property. Morris Raphael Cohen, Felix’s father and Margold’s professor, in 1927 published a classic article stating that “property and sovereignty, as every student knows, belong to entirely different branches of the law. Sovereignty is a concept of political or public law and property belongs to civil or private law” (Cohen 1927:8). Cohen père’s essay goes on to clarify the harm done to the body politic by rejection of a minimum wage law in favor of an employer’s absolute power (sovereignty) over employees’ wages and their ability to join trade unions. Perhaps this seems a far cry from the Lakotas’ Black Hills claim, but the point Morris Cohen makes is that under Western law, “property as sovereign power compelling service and obedience may be obscured for us in a commercial economy” (1927:12). American Indians understood this. Lakota do not want dollars to buy land somewhere, or to buy parcels in the Black Hills, they want the valuable and holy Black Hills to be acknowledged as their property under their sovereign power secured in their 1868 treaty. Nathan Margold had been hired in 1929 by the Institute for Government Research to draft a bill that could resolve the many outstanding claims by Indians and tribes against the federal government, an obstacle to [3.84.7.255] Project MUSE (2024-03-28...