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?