Can historians use knowledge of the past to right present wrongs? There is a long standing tradition of using historical discovery to correct past wrongs in the present or heal generational wounds. The South African Truth and Reconciliation Commission and the International Military Tribunal at Nuremberg are prime examples of this transitional justice. Recently, Ta-Nehisi Coates has argued for reparations for African Americans. But what could such a thing 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 $600 million dollars ($4.8 billion in today’s dollars).1)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 on the topic and the official Final Report of the ICC.
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. It is also a case study in using text mining to explore a large, complete corpus of legal documents computationally.
The first aspect of the ICC that is immediately apparent is its complexity. Over 2700 decisions and orders in 25,000+ pages and 852 claims placed in 610 dockets. The decisions cover a gamut 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 used in my introduction, 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 “terminated” the trust relationship it had with tribes.2)Theda Purdue, “Presidential Address: The Legacy of Indian Removal”, Journal of Southern History, Vol. 78:1, Feb 2012 p 32 In order to reach this point, all outstanding claims with the Federal Government needed to be extinguished. In the early 1950s, several tribes did “terminate” their trust relationship with the government, notably the Klamath Tribe who later experienced extreme poverty.
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, 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 in which the Commission went about its work.
Mining the ICC
My basic process to mine the Decisions involved scraping them, OCRing them, then running them through Latent Dirichlet Allocation processing/MALLET in R and visualizing the results. Topic modeling requires much trial and error in creating stoplists, determining the right number of topics removing tribes, and other place names. More methodological detail is here. All of my code is on my github page.
The topics were pretty good at capturing some of the primary themes. For example, Rosenthal describes the rise of expert witnesses, mostly historians and anthropologists occurring in the early 1950’s to make sense of the complex land transactions surrounding each case.3)Rosenthal, p. 161-164 Topic 23 describes this situation well.
The frequency with which lawyers got paid also increased throughout the proceedings (unsurprisingly).
The range of topics litigated also echoed the existing historiography. Rosenthal describes a typical lands claim process. In the first phase, the tribe would have to prove title to their land. In the second phase, the government and tribe would determine valuation and liability for the land. In the final phase, the Commission would calculate allowable offsets (money that the US had provided to the tribe beyond their treaty obligations), interest rates, and attorney fees (normally capped at 10%).
But, as Ben Schmidt has noted, topics that stand on their own, analyzed over time should be given additional scrutiny. A cluster dendrogram is an excellent way to review the topics as they work interact together. The algorithm determines which topics are most like each other. To employ the oft-used puzzle analogy- those topics represent the decisons like puzzle pieces represent a whole picture. If I’d sliced them into twice as many topics, they would look very different than now, but would line up to form the same whole. If I reduced the number of topics, aspects of each would fold into the others, but they would likely folk in where the dendrogram indicates.
So “lands approximately early found purchase” should fold into “treaty lands land ceded consideration” (lower-right of the dendrogram). This certainly makes intuitive sense, but do all the topics fit together logically?
They more or less do. However, there’s a few odd connections. The nearest neighbor to the previously mentioned “expert witness” topic is “proposed settlement” (left third of dendrogram). Both are legally driven topics, but usually would come at different phases of a case. If these topics were correlated that might imply some interesting legal strategies- use an expert witness, then offer to settle. Or it could be that cases which relied on expert witnesses were more likely to settle because the underlying facts were clearly established.
Another interesting connection is the natural resources cases. Many near topics shared words- “land” or “boundary” in land topics, “map” or “royce” in geographical topics. The natural resources are similar cases, but they have very few overlapping terms since mining gold is a much different process than raising cattle. They don’t map together in time at all, which makes them all the more curious.
The dendrogram proved useful for exploring possible connections that my reading, and the prevailing historiography haven’t picked up on. There is still work to be done to further analyze the decisions that will work in conversation with but not be solely topic modeling-based. In reviewing the initial question: what are the benefits of this project for transitive justice? Besides the $600 million dollars- which was certainly a large sum of money to the impoverished tribes, but not in comparison to Royce’s map of adjudicated lands. It did provide a measure of confidence for tribal members. The Creek Nation received $4 million from an ICC Judgement, but for such a large Nation, each Creek member only received $111.13. Despite the relatively small amount of money, one tribal member commented: “I’ll always say it was that Indian Money that freed us from bondage… because so many of those who had been so down on the Indians had to face up to us over that money.”4)Theda Purdue, “Legacy of Indian Removal”
Based on the macroanalysis of the decisions, what would a court-based historical claims reconciliation look like? Complex and rooted in legally driven argument, certainly. But slightly disconnected from reality as well.
In 1972 the American Indian Movement forcefully takes over the BIA. In 1973, AIM violently holds the monument at Wounded Knee. In 1975, President Nixon announces his Self-Determination doctrine for tribes. While Native Americans are literally taking back their land by force, the ICC is focused on money ad accounting claims.
For a process of transitive justice to be successful, it must be connected to reality and not insulated from it.
References [ + ]
|1.||↑||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 on the topic and the official Final Report of the ICC.|
|2.||↑||Theda Purdue, “Presidential Address: The Legacy of Indian Removal”, Journal of Southern History, Vol. 78:1, Feb 2012 p 32|
|3.||↑||Rosenthal, p. 161-164|
|4.||↑||Theda Purdue, “Legacy of Indian Removal”|