Can historians use knowledge of the past to right present wrongs?

Recently, Ta-Nehisi Coates has argued for reparations for African Americans.1 But what might such a process look like in America? From 1946 until 1978, a separate judicial body authorized by Congress, deliberated over the wrongs done to Indian Country by the United States government and awarded over $600 million dollars (approximately $4.8 billion in today’s dollars).2

The Indian Claims Commission

The Indian Claims Commission was a legal body that adjudicated hundreds of claims that Indian Tribes had against the United States for past wrongs. It produced 43 volumes of decisions over more than 30 years of work. Though the ICC tried cases to legal standards, it was of its time and reflected changing attitudes towards Native Americans. This work attempts to examine its place in Federal-Indian policy and analyze how the Commission used historical knowledge to arrive at legal decisions. I initially wanted to determine how historical knowledge contributed to these cases. Unlike most court systems or cases, evidence for the ICC was almost entirely historical. One scholar noted, “virtually no evidence presented in these cases can properly be called ‘primary evidence,’ ‘first-hand knowledge,’ or ‘an eyewitness account.’”3 While this was my initial question, my research methodology sent me in different directions. This work is also a case study in using text mining to explore a large, complete corpus of legal documents computationally. I had hoped the macroanalysis would provide a prototypical ICC case and evidence, or perhaps describe the similarities between “winning” cases. Instead, it provided additional questions for me to ask the documents. In parsing the incredibly complex legal corpus, I learned which documents might deserve a closer look among the thousands of legal decisions.

A National Issue

The following map shows the year that a tribe ceded each area to the United States. The gradual settlement of the west and assumption of huge swaths of land formerly occupied by tribal nations marked the Reservation Era of Federal-Indian relations.

Lands ceded by tribes to the United States and the date of cession. GIS polygons taken from the original Royce maps.

Nature of the ICC

The first aspect of the ICC that is immediately apparent is its complexity. Over 2,700 decisions or orders in 25,000+ pages and 852 claims placed in 610 dockets. The decisions cover a variety of different legal claims- lands sold for unconscionably low prices, timber or other resources removed without proper payment, and accounting for the tribes monies. The cases also covered a huge swath of territory, almost the entire United States.

Despite the high-minded rhetoric, the Indian Claims Commission was not created with purely just intentions. It was the intention of some conservative Congressional members that the Federal government would save funds if it ended the trust relationship it had with tribes.

In order to reach this point, all outstanding claims with the Federal Government needed to be extinguished. In the early 1950s, several tribes “terminated” their trust relationship with the government, most notably the Klamath Tribe who later experienced extreme poverty.4

However, the Indian claims cases were so complex and contentious that the Commission had no hope of finishing in their allotted five years. By the end of the Commission’s lifespan in the 1970s, the Federal Government’s policy of termination had been flipped 180 degrees. With the failure of Termination and protest by the American Indian Movement, the government now sought to treat tribes as independent nations and promote their improvement through a policy of self-determination. It was through a major shift in policy during which the Commission went about its work.

Notes

1. Ta-Nihisi Coates, “The Case for Reparations” http://www.theatlantic.com/features/archive/2014/05/the-case-forreparations/361631/. 6/1/2014. Accessed 2/12/2014.

2. Harvey Rosenthal, Their Day In Court: A History of the Indian Claims Commission, PhD Dissertation, Kent State University, 1976. Rosenthal has also published a now out-of-print monograph by Garland Press.

3. Jerome Kuykendall, Final Report of the Indian Claims Commission, Washington, Government Printing Office, 1979, 6.

4. Wilcombe Washburn, Red Man's Land/White Man's Law: A Study of the Past and Present Status of the American Indian, New York, Charles Scribner and Son's, 1971.