FAQ. Chickasaw and Choctaw Timber, Mineral Rights and Tribal Lands. Q. What is the case currently before the Federal Court?

Transcription

1 FAQ Chickasaw and Choctaw Timber, Mineral Rights and Tribal Lands Q. What is the case currently before the Federal Court? In 2005, the Chickasaw and Choctaw Nations brought suit against the U.S. Government for mismanagement of their Trust in United States District Court for the Western District of Oklahoma. In the case, Chickasaw Nation and Choctaw Nation v. U.S. Department of the Interior, the Chickasaw and Choctaw Nations have sued the Secretary of the U.S. Department of the Interior, the Secretary of the U.S. Department of the Treasury and other federal officials who, the tribes allege, have mismanaged the trusts and improperly dissipated the properties of the Nations over the past century. The Nations have asked the court to order the U.S. Government to provide a full accounting of the trust properties it managed for the benefit of the tribes. The Chickasaw and Choctaw Nations are seeking the detailed accounting to determine the extent to which the U.S. Government financially mismanaged and exploited these trusts, illegally sold the tribes timber, land and other valuable assets and subjected the tribes to other financial losses. Based on these accountings, the Choctaws and Chickasaws will then ask that the U.S. Government fully restore the trust. Q. Why have the Chickasaw and Choctaw Nations sued the U.S. Government? The two Nations allege that beginning in 1906 the U.S. Government illegally dissolved the tribes own constitutional and democratically elected tribal governments, which had been in effect for a half a century, and installed federally appointed surrogate tribal governors and chiefs. The U.S. Government used these surrogates illegally to sell tribal timber, mineral rights and properties without justly compensating the tribes and in violation of the trust arrangement under which the U.S. Government was required to hold and manage these properties for the benefit of the tribes. Q. Where is the case today? The two Nations brought suit in In 2013, the Nations received some favorable rulings from the honorable Judge West in the U.S. District Court for the Western District of Oklahoma. Judge West has ordered mediation and appointed as Special Master Judge Robertson, the same judge who presided over the Cobell v Salazar suit, a landmark case on Native American trust management issues. The deadline for mediation was December 15, 1

2 2014, and no settlement has yet been reached. The case is currently scheduled for a July 2015 trial. Discovery is scheduled to be completed 2/15/15. Q. What is the Obama administration s attitude toward tribal trust cases? President Obama has publicly stated that this is the moment in history to both right the wrongs of the past as it relates to Native Americans and to establish a more honest and respectful path for these relations in the future. Secretary of Interior Sally Jewell has issued an order reaffirming the government s trust obligation as one of its highest duties. Despite this public stance the Department of Justice has fought for almost nine years to avoid providing an accounting on this case. Q. How were the Chickasaw and Choctaw Nations deprived of their original timber, mineral rights and lands in southern Oklahoma? Respected American historian Angie Debo poignantly described the seizure of the Indian lands in her seminal work, And Still the Waters Run: [Around 1900,] about 70,000 Indians owned the eastern half of the area that now constitutes the state of Oklahoma, a territory immensely wealthy in farmland and forests and coal mines, and with untapped oil pools of incalculable wealth. They ruled themselves and controlled this tribal property under constitutional governments of their own choosing Their political and economic tenure was guaranteed by treaties and patents from the Federal Government But white people began to settle among them, and by 1890 these immigrants were overwhelmingly in the majority. Congress therefore abrogated the treaties, and the Indians received their land under individual tenure and became citizens of Oklahoma when it was admitted to the Union in The orgy of exploitation that resulted is almost beyond belief. Within a generation these Indians, who had owned and governed a region greater in area and potential wealth than many an American state, were almost stripped of their holdings, and rescued from starvation only through public charity. (Angie Debo, And Still the Waters Run, Preface at IX and X, Univ. of Oklahoma Press, 1 st Ed., 4 th Printing, 1989). Ms. Debo s account tells of the U.S. Government s mismanagement of its trust responsibility for the Nations property around the time the Government was illegally disbanding the tribes own constitutional governments. 2

3 Q. How much timber, mineral rights and lands are involved? Where are these properties, and what are the tribes seeking? The timber, mineral rights and properties are in the southeastern portion of Oklahoma. The Chickasaws and Choctaws received title to the lands in what would be become the state of Oklahoma in exchange for the lands they ceded east of the Mississippi. The U.S. Government has failed to provide detailed records of its transactions involving the Nations property over the past century. Today, the tribes seek full restoration of the trust related to approximately 1.3 million acres the government illegally sold in violation of the Five Tribes Act of Q. What is the historical and legal background? The history dates back to the early treaties negotiated between the colonial settlers and the tribes before the establishment of the U.S. Government. Some key events include: Before the settlement of North America by Europeans, the peoples of the Chickasaw and Choctaw Nations lived in the southeastern part of what is now the United States areas of present- day Mississippi, Alabama, Kentucky and Tennessee. In 1831 and 1837, the U.S. Government forcibly removed the Choctaws and Chickasaws, respectively, from their ancestral lands and drove them over the Trail of Tears to Indian Territory in what is now southeastern Oklahoma. Later treaties presented the tribes title to their new lands and established that they would hold these new lands jointly, with the Choctaw Nation owning 75% and the Chickasaw Nation, 25%. After they arrived, both tribes followed the framework of the U.S. Constitution and created modern, democratically elected tribal governments with executive, legislative and judicial branches. The Nations constitutions recognized the power of tribal governments to initiate legal and equitable claims to protect the Nations rights. These tribal governments functioned effectively until their illegal dissolution in Before the Curtis Act of 1898, the tribes had sole authority to determine the requirements for tribal membership. In preparation for the creation of the state of Oklahoma, the Curtis Act empowered the Dawes Commission to create rolls of tribal 3

4 members, even without tribal consent; to allot some of the lands owned by the Nations to these enrolled members; and to sell un- allotted land. The act assumed, however, that the tribes would continue to operate their own functioning governments, as it reserved from allotment the tribes capitol buildings, court houses, jails and other public buildings. Major swindles and significant corruption in these enrollment and allotment processes have been well documented by historians. See Debo, And Still the Waters Run, supra, at Q. What is the 1906 Five Tribes Act, and why is it relevant? The Five Tribes Act paved the way for the creation of the state of Oklahoma in The act dissolved the tribes as separate nations, distributed some tribal lands to individual tribal members and placed other Indian lands in trust held by the U.S. Government for the expressed benefit of the tribes. Although the Department of Interior lobbied for the elimination of tribal governments, Congress officially authorized the continued existence of the Chickasaw and Choctaw governments, stating in the act: The tribal existence and present tribal governments of the Choctaw, Chickasaw, Cherokee, Creek and Seminole tribes or nations are hereby continued in full force and effect. The act authorized the U.S. president to appoint the Nations chiefs and governors only under limited circumstances (e.g., if they refused or neglected to perform their duties or became permanently disabled). As the U.S. Government now admits, however, the Department of the Interior and its Bureau of Indian Affairs ignored the will of Congress, illegally dissolved the five tribal governments, eliminated tribal elections and directly appointed the Choctaw chiefs and Chickasaw governors, making these appointees the sole embodiment of the Nations governments. As a result, the government stripped the Nations of their control over the disposition of their timber, lands, minerals and assets. A federal district court in the Harjo case characterized these actions as bureaucratic imperialism, [which] manifested itself in deliberate attempts to frustrate, debilitate, and generally prevent from functioning the tribal governments expressly preserved by Sec. 28 of the Act. Q. Did the 1906 Five Tribes Act authorize the government to sell all tribal lands, including land devoted to timber? 4

5 No. Section 16 of the Five Tribes Act expressly prohibited the sale of unallotted lands valued principally for timber. Regardless of this prohibition, the United States sold approximately 1,347,900 acres of prime timber lands, out of 3,071,153 acres total in unallotted lands. Q. Did the 1906 Act require the U.S. Government to collect and account for revenues from the sale of Chickasaw and Choctaw property and to hold the remaining lands in trust for the Nations? Yes. Section 11 of the act provided that all revenues of whatever character accruing to the Choctaw [and] Chickasaw tribes shall be collected by an officer appointed by the Secretary of the Interior. Section 27 provided that the lands belonging to the Choctaw [and] Chickasaw tribes shall not become the public lands nor property of the United States, but shall be held in trust by the United States for the use and benefit of the Indians respectively comprising each of said tribes, and their heirs. The U.S. Government failed to present evidence of ever having brought any claims to recover the Nations timber lands or to account for the management of the Nations trust assets, including timber and mineral lands. Q. Did the government illegally disband the Nations governments and appoint unelected chiefs and governors to rule in their place? Yes. In the leading Harjo case, the court found that U.S. Government officials illegally appointed surrogate tribal chiefs and governors to preempt the constitutional processes of the tribe, deprive the tribal legislatures of authority and to ensure that tribal government was subservient to Bureau of Indian Affairs. The subsequent timber sales and other actions taken by these government- appointed chiefs and governors in disbursing tribal lands are, therefore, unlawful and not binding on the Nations. Q. When were constitutional governments restored to the Nations? The U.S. Government did not permit the Nations to restore their constitutional governments until This restoration was a difficult task. The Nations had been denied the experience of operating and living in a democracy for more than 75 years. Their newly reorganized governments were short on resources. The resources they did have remained controlled by the United States. The U.S. Government seized all the records of both Nations in The U.S. Government never returned most of these records. The U.S. 5

6 Government gave the tribes minimal records only showing the actions taken in their names during the long federal usurpation. Q. Has the U.S. Government given the tribes an adequate accounting of its transactions involving tribal property? No. In 1906, the U.S. Government disbanded and controlled the Nations governments. Without elected executives and legislatures, the Chickasaw and Choctaw Nations were powerless to protect their interests, hire their own attorneys and demand adequate accounting. ### 6