Indian tribes that want land in Illinois may have a problem: Members of the state's congressional delegation intend to kill any ownership rights they assert and send them packing to the federal Court of Claims.
In fact, under federal law. Congress has broad authority to abrogate treaties made with Indian tribes, so long as lawmakers show their "plain and unambiguous" intent to do so.
The move by Illinois' congressmen comes in response to a claim by the Miami Tribe of Oklahoma. The tribe sued last June for 2.6 million acres in east central Illinois under an 1805 treaty. The Indians named landowners in 15 counties as defendants and alleged they are trespassing on ancestral land.
The Miami may have a treaty that confirms their title to the land, but that might not be good enough to deliver it back to them.
The same is true for the Ottawa Tribe of Oklahoma and the Potawatomi Tribe of Kansas. Those tribes are claiming land in DeKalb County under similar treaties. They haven't gone to court, but indicate they might if the Miami are successful.
Legislation backed by U.S. Sens. Richard Durbin and Peter Fitzgerald, U.S. Rep. Timothy Johnson and U.S. House Speaker J. Dennis Hastert would shield landowners by extinguishing any title all three tribes claim to the land in Illinois. Durbin, a Springfield Democrat and the state's senior senator, is sponsoring the legislation in the upper chamber. Fitzgerald, an Inverness Republican, says he'll co-sponsor the bill. Johnson, a freshman Republican from Sidney, is sponsoring identical legislation in the House. And Hastert, a Republican from Yorkville, is backing him.
"We've all come to the consensus that our legislation, with respect to the Miami Indian claim, which eliminates the landowners from the mix [and] still provides an available avenue, is the best approach," says Johnson, who represents much of the area the Miami claim.
Under the legislation, all three tribes could seek monetary damages - and only monetary damages - in the Court of Claims, which hears suits against the federal government. The federal government would waive its sovereign immunity in the individual cases. To win compensation, the tribes would have the burden of showing they hold title to the land.
The nature of federal power over Indian tribes has been described by scholars David Getches and Charles Wilkinson as "at once a threat to, and a device to enhance, Indian rights." The two wrote what is considered the definitive book on federal Indian law.
On the one hand, the federal government owes Indians what's called it's trust responsibility - the obligation to protect tribal interests - and, on the other hand, Congress has sweeping authority over Indian rights. Once a tribe is federally recognized, it becomes a "beneficiary" of the trust relationship. But while much of that relationship is built on statute, "trust" is largely dependent on the discretion of Congress.
"The nature and scope of the relationship between the United States and Indian tribes is, under the Constitution, defined by Congress," says Jim Clear, retired chief of the Indian Resources Section at the U.S. Department of Justice. "So, however Congress wishes to define that responsibility, they have the power to do so."
Chief Justice John Marshall may have put it best in 1831 when he wrote one of three opinions that established outlines for the federal/tribal relationship. He termed the tribes "denominated domestic dependent nations."
"They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases," he wrote. "Meanwhile, they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian."
Congressional aides say the Illinois lawmakers are not taking a position on the merits of the tribes' claims.
Rather, they want to protect the landowners named in the Miami case, which has garnered the most attention.
State officials already have taken action to help the landowners. Gov. George Ryan in February signed legislation to authorize payment of $100,000 in state funds toward their legal fees. And Attorney General Jim Ryan's office has asked to intervene as a defendant in the case, which was filed in federal court, so the state can assert its sovereign immunity and move to have the suit dismissed.
The bulk of the territory claimed by the Miami tribe is farmland - some of the state's richest - and the farms, in some cases, have been held in families for generations.
The federal legislation would put the onus of the tribe's claim on the federal government, which, according to the Miami, forced them off the disputed land after guaranteeing it to the tribe.
"The pendency of the lawsuit and the potential for additional lawsuits may result in severe economic hardships for residents of Illinois who have in good faith relied upon the land patents [used to convey land into the private domain] issued by the United States," the legislation says. "The Congress shares with the state of Illinois and the party defendants to the lawsuits a desire to remove all clouds on titles resulting from such Indian land claims, while allowing the tribes to resolve any outstanding issues with the United States over compensation for the federal acquisition of the property."
If the federal legislation passes and withstands a potential court challenge, the Indians could walk away with cash but no land. And that would underscore questions about the tribe's motive in seeking return of the land in the first place. They would need that land, for instance, if their intent is to establish tribal gaming in Illinois.
The Miami maintain they have a legitimate claim for lost ancestral land and have been tight-lipped about interest in gaming, but the conventional wisdom is that gambling is their end goal. The tribe's suit, in fact, was underwritten by Thomas Wilmot Sr., a New York developer who has branched into Indian casino consulting. He told The Associated Press in January that he invested in the Miami claim because of the potential to develop a casino.
Tribal groups complain there's been too much negative publicity given to Indian gaming. But tribes do enjoy certain advantages over non-Indians in developing and operating casinos: Tribal casinos are not governed by state law but by federal law and special agreements negotiated between tribes and states.
The Indian Gaming Regulatory Act, passed in 1988, generally permits tribal casinos to offer games that are allowed under state laws. Tribes can conduct such traditional casino games as roulette and slot machines under the law, so long as the state in which the tribe is located permits such gaming and the tribe adopts a gaming ordinance that is approved by the National Indian Gaming Commission, which regulates Indian gaming. The tribe also must negotiate a compact with the state outlining the scope of the gaming operation.
If the Illinois delegation's legislation is successful, the three tribes likely would lose any gaming aspirations they might have for Illinois. The legislation would extinguish any recognized title they claim under specific treaties and, for that matter, any aboriginal title they claim as original possessors of the land.
Making this distinction in Indian land claims can be important when determining whether tribes should be compensated for lost land. Recognized title, which all three tribes claim to have, typically derives from treaties or agreements between the federal government and tribes. Aboriginal, or "original Indian," title refers to the tribe's right of possession.
Congress can extinguish both types of title. But whereas the government is required to pay compensation when it takes recognized title, the U.S. Supreme Court has held it is not required to pay in the case of "Indian title."
"No case in this court has ever held that taking of Indian title or use by Congress required compensation," the court wrote in 1955. "The American people have compassion for the descendants of those Indians who were deprived of their homes and hunting grounds by the drive of civilization. They seek to have the Indians share the benefits of our society as citizens of this nation. Generous provision has been willingly made to allow tribes to recover for wrongs, as a matter of grace, not because of legal liability."
Recognized title, on the other hand, refers to legal evidence of a party's ownership rights to property. Under the Fifth Amendment, the government is required to pay "just compensation" when it seizes private property.
The legislation, after extinguishing the tribes' claimed title, would expressly permit them to state separate claims for compensation for lost recognized and aboriginal title. Compensation would be paid by the federal government.
There is precedent for compensating tribes for land in this way. Congress has on several occasions in the past given special authority to individual tribes to seek damages in the Court of Claims. And in 1946, Congress created a special tribunal, the Indian Claims Commission, to allow Indians to prosecute claims against the United States. The creation of the commission, which could award monetary damages, removed from Congress the burden of enacting legislation for each Indian claim. The act applied only to claims against the United States and did not cover claims against states based on violations of federal law. The commission was dissolved in 1978.
Moving the Illinois legislation through Congress will take some time. And if it passes, and is signed into law by President George W. Bush, don't expect the tribes to take any such action lying down.
"The bill is introduced as very much a skeletal bill and doesn't go into a lot of details," says Larry Levanthal, an attorney for the Miami tribe. "I really wouldn't want to analyze something that doesn't have substance to it."
