Research Note on Barriers to Indian Land Claims

I’ve posted a short paper called “‘Now What the Hell You Gonna Do in Those Days?’ A Research Note on Practical Barriers to Indian Land Claims” on SSRN. Here is the abstract:

There are extra-legal barriers that American Indian people faced when confronted with the illegal theft of their lands, or with any dispossession of their lands. Indian tribes and Indian people faced numerous practical barriers to bringing land and treaty claims prior to the modern era, including without limitation: (1) lack of financial resources; (2) lack of knowledge and sophistication about the American legal system; (3) demoralization; (4) lack of a clear and authorized tribal governmental plaintiff; and (5) government interference and control over tribal affairs.

For Indian tribes pursuing a remedy for these claims, there is a significant defense raised – why didn’t the tribes or the Indians bring these claims before? Since the Supreme Court decided Sherrill v. Oneida Indian Tribe, the equitable defense of laches has been raised by states, local units of government, and property owners against the tribal claims with frightening success rates. The defense is superficially compelling in large part because the practical reasons for failing to bring suit decades sooner might not be considered excusable.

In a pending case, Oneida Indian Nation v. County of Oneida, the National Congress of American Indians attempted to flesh out the practical barriers to tribal land claims in an amicus brief. This short Essay attempts to add to that research. But the ultimate purpose of this Essay is to call for serious empirical research on this difficult question – why didn’t Indians and tribes file suit to vindicate their rights to land?

One thought on “Research Note on Barriers to Indian Land Claims

  1. Samuel Poe May 7, 2008 / 3:52 am

    About Indian land claims all that we have to understand is “the whites are snakes” and they “the whites”, will definitely admit that. Indian Nations are better off not going to “white courts” to battle their land claims cases. In reality there is no sense in Indian Nations actually going to “white courts” to combat land disputes because the decision will end up in the hands of non Indians. Indian leaders do not want that to develope. In the case of the Little Shell Tribe of Chippewa Indians or, the Pembina Chippewa’s under Little Shell’s leadship, the “legitimate Little Shell Leadership”, ogima Little Shell, and the United States, were unable to reach an agreement over the 1892 land dispute. Since no agreement was not properly conducted, that 63 million acres of Pembina land the United States wanted to purchase, is still rightfully Anishinabe land. The same can be said for the Oneida Nation and all other Indian Nations who currently have an land dispute with the United States. Is the disputed Oneida land in New York, Oklahoma or Wisconsin? The disputed Little Shell Pembina land is in South Dakota, North Dakota and Montana. Until recently i believed that the Chippewa Pembina’s were late arrivals (after the United States settled Montana) to Montana, but after doing extensive research on the internet about the Little Shell Chippewa’s, i have come to the conclusion that the Pembina Chippewa’s were living in Montana before the United States actually started to settle Montana. They arrived to Montana soon after their Blackfoot, Cheyenne and Gros Ventre kin did. Since the Little Shell lands in North Dakota and South Dakota covered around 50,000 or so square miles, the remainder of their land the Americans wanted to purchase (the United States wanted to purchase over 63 million acres or over 98,000 square miles of Little Shell’s Kingdom) was obviously located in Montana. Unfortunately, the Montana Anishinabek have been educated by the United States that they were not native to Montana or, came to Montana after the United States settled Montana, which is wrong of course. The Anishinabek land in Montana may have reached to the Rocky Mountains just west of Great Falls (about 50 miles of Great Falls) where most of the Little Shell Anishinabek live.

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