So, if the land's stolen...?
[Editor's note: This story is related to the story about the Land Back movement that is online here.]
Ethnic cleansing? Genocide?
Robert Miller, a former Lewis & Clark College law professor who has long been a Northwestern tribal judge, uses the words whenever he talks about the history of his ancestors and the European colonization of what is now known as North America.
But theft? That's where it gets complicated, he said
The increasing public acknowledgement that Americans live on "stolen lands" prompts questions — so much that you might wonder what a legal expert thinks.
The Portland Tribune asked several law professors to delve into the issues.
When elected leaders acknowledge, as they often do, that Oregonians live on "stolen lands," what exactly does that mean?
And if Oregonians are walking around on stolen property, why can't the United States legal system lead to its return?
It's not a wild question. Last year, the U.S. Supreme Court ruled that a large portion of eastern Oklahoma, spanning millions of acres, had been unlawfully taken from the tribes that owned them.
So could that happen in Oregon? And if not, why not?
"It really depends on how the land was lost," said Stephen Dow Beckham, a top expert on native American law in Oregon and professor emeritus at Lewis & Clark, including its law school.
Theft: Not quite right
The term stolen lands is frequently used. But the term is a bit off, thanks to a series of treaties signed in the 1850s in Oregon.
"The term probably isn't legally correct," Miller said. "But you and I well know, how did the United States get these tribes to sign off on these treaties? And that's where the coercion, starvation, the threats, a tribe dying off from disease (come in). All of a sudden, there's not enough of you to even occupy too many areas of your territory; you're starving, you're willing to sell. So that very much is a coercion, and I suppose to the average person that looks like theft."
Some European colonists brought diseases like smallpox with them that decimated indigenous peoples who lived on the land the colonists sought. And disease was a recognized part of the effort to colonize.
Miller points out that in the 1620 Charter of New England, King James 1 wrote that a "wonderful plague" had killed off the inhabitants, causing them to "desert" their lands, meaning no legal claims existed up on it.
Purchases and treaties
Miller also likes to note that President George Washington, in one 1783 letter, said simply moving into native lands and later buying them, would be more effective than waging war. He likened indigenous "savages" to animals or wolves, "both being beasts of prey."
Later court rulings provided for what's called "aboriginal title" over land.
But Washington's approaching of buying the land continued. A series of treaties led to vast swathes of land in Oregon appropriated to the federal government, often under questionable circumstances.
That's why theft isn't quite right, Beckham said.
"Technically, a lot of it was stolen legally. Because it was done by ratified treaty."
The treaties were negotiated in treaty councils between U.S. emissaries and tribal leaders.
But the word negotiation doesn't capture what happened in Oregon.
"If you look at the treaty councils, they were grossly unfair," Beckham said. "They were negotiated mostly in the Chinook jargon, not in the language of the tribes. Concepts of reserved land and reserved rights were very difficult if not impossible to interpret in the Chinook jargon, or the trade language of the fur trade. The treaties were primarily dictated by the Office of Indian Affairs to the tribes, and they were enticed into signing the treaties by a barbecue — they usually drove a herd of beef cattle, and distributed flour and clothing and needles and pins and stockings and pantaloons and hatchets and axes and brass kettles at these treaty councils. And they said, there'll be more to come, you're going to get 20 years' worth of annuities from this treaty."
"But at the end of 20 years, there was no more payment, there was nothing else there," Beckham said. "The treaty annuities all been paid out."
Improper negotiations or other actions by the government after the treaty was signed could create a claim against the United States, said Howard Arnett, who teaches American Indian Law at the University of Oregon.
But, Miller notes, proving illegal or underhanded treaty negotiations is extremely difficult. That's because every aspect of the treaty negotiation tended to be documented by representatives of the United States.
And testimony of indigenous leaders to support tribal claims was outright dismissed by some judges.
In 1946, several Oregon tribes took advantage of an Indian Claims Commission set up by Congress to claim damages, only to receive what Beckham calls "token payment, no interest was allowed."
But by filing their claims and accepting payment, "they waived any future claims against the United States," Beckham said.
Beckham was an expert witness in the 1980s when the Grande Ronde tribe sued the federal government for the unlawful taking of more than 700,000 acres. Because no interest was allowed on the century-old illegality, the subsequent settlement ended up paying the tribe $1.2 million in all — a little more than a dollar an acre.
So, does the admission that the United States rests on stolen lands bear weight today? When the head of the Metro regional government, which owns thousands of acres of land, says its lands are "Indian land," noting its rightful residents were forcefully removed, could that statement show up in a court of law?
"Well, that's intriguing," said Miller about the stolen-land acknowledgement. "What you're now getting into a rule of evidence: Is that an admission of guilt? We call that an admission against interest. It's a hearsay exception."
Arnett is skeptical. "If it was stolen, the act of stealing the land was almost certainly a federal action, not a local government action. So the restitution and the liability for the value, the loss of the land, that's going to be on the United States, not that the local governments."
Beckham says it's possible that new tribal claims could have some success in Oregon, but the outcome would be complicated by the history of past settlements.
"It is a tale of injustice and inequity that has persisted since the 1850s," he said. "It is a blot on American history, just like slavery is. To reconcile it would be very difficult."
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