http://www.cnn.com/2010/US/06/01/oil.spill.native.americans/index.html?hpt=C1
Glad CNN covered this.
Archive for the ‘Property’ Category
Tribal Law Conference in conjunction with Native Nations Law Symposium, Feb 11-12th, 2010
Tuesday, January 12th, 2010The Annual Tribal Law Conference at the KU School of Law will be held this year in conjunction with the Four Tribes in Kansas’ Native Nations Law Symposium. Day one (Feb 11th) at KU Law. Day two (Feb. 12th) at Prairie Band Casino and Resort. Agenda and on-line registration here. Among the topics are tribal economic development, gaming, tribal court jurisdiction, probate reform and ethics in tribal government. Cherokee Nation tribal citizens Stacy Leeds, Mark Dodd, and Melody McCoy are among the speakers.
Primary Documents
Tuesday, July 15th, 2008I have had several requests for legal documents relating to the allotment of Cherokee lands. The full text of the Curtis Act and the 1902 Cherokee Agreement have now been added to the Cherokee Documents page of this blog. The Curtis Act is the federal legislation paving the way for the allotment of the Five Tribes’ lands. The 1902 Agreement is the Cherokee-specific allotment process adopted by vote of the Cherokee citizens at that time.
New Federal Indian Lands Case
Monday, March 31st, 2008The Eastern District of Wisconsin issued a decision in Oneida v. Village of Hobart, WI upholding state eminent domain powers over fee lands within a reservation border. More specifically, these were reservation lands re-aquired by the tribe. Looks like the only safe bet for tribes, to ensure tribal jurisdiction and to shield tribes (and tribal citizens) against state taxation and eminent domain powers, is to have the lands placed in trust by the BIA. This is even more troubling in the following scenario inside the modern Cherokee Nation: Presume there’s an allotment deed, granting land from the Cherokee Nation fee patent (tribe as grantor) to a Cherokee citizen (individual as grantee). The lands are held by successive generations of Cherokee citizens, never to pass out of Cherokee hands. The tribe re-acquires the land by purchase (individual as grantor, tribe as grantee). Although the land has never passed out of Cherokee hands, the Cherokee Nation is essentially forced to have that land put into trust, and the legal title is then held by the United State, in order to preserve tribal autonomy. Forced dependency, forced BIA bureacracy, and forced land conveyance away from the tribe, as the only means to protect tribal sovereignty? Sad state of affairs.
Freedmen Land Ownership
Tuesday, February 19th, 2008The Atlantic makes reference to a new study by a University of Michigan economist examining "the fortunes of slaves freed after the Civil War by the Cherokee Nation." It’s an empirical study looking at farm data in 1880, suggesting that "black freedman in a Cherokee community [were] five times as likely to be a landowner as the typical African American in the former Confederacy."
What’s interesting about this work is that it appears to demonstrate that freedmen, like other demographic groups, were active landowners in the Cherokee Nation prior to allotment. I posted a link last week discussing how the federal rationale for allotment of Indian lands was largely a myth, given that a flourishing system of private property ownership already existing in the Cherokee Nation. This study suggests that freedmen held property within the Cherokee system just like any other individual might.
I’ll delay any other comment about this story until I read the full text, but I thought it was an interesting new study others might want to read too. Wado to my colleague Professor Matthew Fletcher of Michigan State Law School for letting me know about the report. You can check out Professor Fletcher’s blog here.
UPDATED to add: The title of the study is "The Righteous and Reasonable Ambition to Become a Landholder: What Would have Happened if Former Slaves had Received Land after the Civil War?" by Melinda Miller, University of Michigan.
More on Fort Gibson
Thursday, February 7th, 2008"Historybuff" correctly informed us that the Fort was abandoned by the feds in 1857 and reverted to the Cherokee Nation. After that, however, it was once again used as a military base during the Civil War, for a short period occupied by the Confederacy and then re-occupied by Union Troops. The Fort was abandoned again in 1872, then re-occupied by the 10th Calvary, and not ultimately abandoned by troops until 1890 when it reverted a second time back to the Cherokee Nation. Check out the application to have the Fort placed on the National Historic Record here.
I am finding that the Oklahoma Historical Society acquired the land in 1936 and that they got WPA monies for restoration, but can’t find the deed in which OHS acquired the property. (Might have to go to the land records office in Muskogee to satisfy my curiosity).
At any rate, I wondered if we specifically reserved the Fort from allotment in the 1902 Agreement and the answer is no. But, even if we didn’t expressly reserve it, any transfer of land would still have to be in the form of a Cherokee Nation deed executed by the Principal Chief in order to pass fee title.
Here’s a list of properties that the Cherokee Nation specifically reserved from allotment:
- cemeteries & churches and railroads (as Sean mentioned)
- Cherokee schools and colleges
- mission schools (including baptist, Presbyterian, and Lutheran)
- Cherokee Capital Building
- National Jail
- Cherokee Advocate printing office
- Male and Female Seminary
- Cherokee Orphan Asylum and Cherokee Insane Asylum
- Colored High School in Tahlequah District
- School for "blind, deaf and dumb" children near Fort Gibson
Takings Claims
Wednesday, February 6th, 2008I came across some language of interest from the Treaty of 1835, Art. 4. The first point I am familiar with, the other I hadn’t noticed.
1. When issuing the patent to the Cherokee Nation, the US reserved possession of Ft. Gibson with the understanding that, when no longer used as a military base, the land would revert to the Cherokee Nation. Lots of treaties had similar language.
"It is . . . understood and agreed that . . . the Military Reservation at Fort Gibson shall be held by the United States. But should the United States abandon said post, and have no further use for the same, it shall revert to the Cherokee Nation."
Ft. Gibson ceased to be used for military purposes in the 1890s. Anyone know how it came to be owned by the state? If the United States purported to convey the interest to a third party, the conveyance would be invalid. If it reverted back to the Cherokee Nation in the 1890s, the only way it could have passed to a third party is by deed from the Cherokee Nation.
2. The same treaty provided for US to take more lands for military purposes, with compensation to private property owners.
"The United States shall always have the right to make and establish such post and military roads and forts . . . provided, that if the private rights of individuals are interfered with, a just compensation therefor shall be made."
This passage is evidence that they US knew full well that private Cherokee citizens would exercise private property rights even though the land base was held by Cherokee Nation. Another problem in the "myth" of allotment. Why would it be necessary to allot tribal lands to individual Indians who already had a means of becoming property owners as a matter of tribal law?
When I lived in North Dakota, there were several news stories about farmers who got their lands back when the US ceased to use the land for muclear missile silos.
Cobell v. Kempthorne
Wednesday, February 6th, 2008I’m in Lawrence today and the university is closed due to snow. I finally found time to read the entire recent Cobell decision from the DC District Court. An except from the judge follows.
"My conclusion that Interior is unable to perform an adequate accounting of the IIM trust does not mean that a just resolution of this dispute is hopeless. It does mean that a remedy must be found for the Department’s unrepaired, and irreparable, breach of its fiduciary duty over the last century."
Not an earth shattering revelation to Indians, but it begs the question of the day: Knowing there’s no way the US can ever account for (much less repay) ever mismanaged dollar, what is a just remedy for this breach of trust?
Kudos to Cherokee attorney Keith Harper his hard work on this case over the years.