Should We Give the US. Back to the Indians?

Of the nation's 216 million people, nearly 1 million are descended from the Indian tribes that were sprinkled about the continent when the Europeans first came settling. The Indians, since the confrontation at Wounded Knee in 1890 that marked the end of their serious resistance to the white newcomers, have lived in relative peace amid the prevalent society. They are among the poorest of all national minorities, the most prone to illness, the least educated, the most resistant to assimilation into the mainstream of American life. They have been, as well, the least conspicuous and most docile of minorities--until recently. Now they are on a warpath of sorts again, armed this time with old treaties and new court writs and led by sharpshooting lawyers whose allies include, to the chagrin of many non-Indians, the U.S. Government. Their stated aim: to recover huge swatches of land and some of the rights they yielded during the inexorable sweep of expanding American civilization. Their campaign seems to raise the improbable but not frivolous question: Should the country--or sizable parts of it--be given back to the Indians?

The Indians' declared objectives strike many Americans as naive or quixotic at best, and at worst mischievous. By laying legal claim to some areas that are heavily populated or commercially valuable or both, they have irritated and angered innumerable citizens--many of whom know that whatever the Indian grievance, it cannot be pinned on their late-arriving forefathers. Some Indian claims have created uneasiness and even turmoil in entire towns, paralyzing the real estate business, delaying bond issues, thwarting commercial and housing construction and beclouding future planning. At first the claims aroused amusement; now they are taken seriously. This was dramatized last week when the White House was the site for a conference called to introduce the President's own mediator, Georgia Supreme Court Justice William Gunter, to parties in the big Maine land case.

Spokesmen for the plaintiff Passamaquoddy and Penobscot tribes, their lawyers, and representatives of the Interior and Justice departments attended the largely ceremonial session.

Inevitably, the wave of claims has stirred up anti-Indian hostility. "We are bitter," says George Benway, chairman of the selectmen of Mashpee, Mass., one besieged town on Cape Cod. In a combative spirit sardonically known as "whitelash," the Town of Mashpee has filed a countersuit against the Wampanoag tribe --demanding $200 million as the cost of all accrued improvements'if the Wampanoags should win their claim to much of the town's property.

After so many quiet years, what got into the Indians? Some scholars believe they never did fully abandon their hopes of regaining lost land and privileges. In Land Grab (1972), John Upton Terrell argues that from the very first coming of the white man the Indians' primary urge has been "defense, a ceaseless struggle to save their homes, their resources, their lives." This view may exaggerate the constancy of the Indians' will during an era when they were displaced by a relentlessly expanding society. Yet that will has plainly stiffened. In Apologies to the Iroquois (1959), Edmund Wilson noted the emergence of a sort of Indian "nationalism" that he likened to that of the Israelis. Clearly, some new assertiveness began crystallizing among the Indians in the 1960s, when they came under the sway of the same influences that had aroused many other minorities into bristling self-awareness. Suddenly, Indians demanded attention in a sequence of media dramatics--the occupation of Alcatraz (1969), the trashing of the Bureau of Indian Affairs headquarters (1972), the new confrontation at Wounded Knee (1973). As it turned out, these episodes proved to be mere diversions compared with a fundamental new strategy that was taking shape unnoticed. That strategy is the ongoing legal offensive--part of a spirit that is now called by its backers the Indian Renaissance.

The size of the offensive is striking. More than half of the 266 federally recognized tribes are litigating claims and contentions. The U.S. Bureau of Indian Affairs, a party to 30 such cases four years ago, was coping with 80 by the end of 1976. The Native American Rights Fund, the largest organization specializing in Indian law, opened headquarters in Boulder, Colo., six years ago with ten cases; today it handles almost 400 cases in 40 states.

The big land-claim cases are all in the East. The million or so non-Indian inhabitants of Maine seemed challenged at first by the land claims of the Passamaquoddy and Penobscot tribes, whose target area embraced 12.5 million acres. The claim remains the largest of those pending, even though the Indians have reduced their target to some 8 million sparsely settled acres. Fully as disturbing as the claim, as some down-Easters see it, is the fact that the Indians have the active backing of the U.S. Justice Department. Actually, Justice has no choice. In a 1974 case brought by the Maine Indians, the courts affirmed that the Indian is a legal ward for whom the Federal Government is obliged to act as guardian, a relationship still little known to the public. Thus if the efforts to settle the Maine case by mediation fail, it is the Justice Department that will file suit against property owners on behalf of the Indians--a prospect that can only salt the bloodless wounds already incurred.

Such suits are conceivable, if not probable, in other land claims, of which half a dozen are pending on the Eastern seaboard alone. A total of 350,000 acres has been claimed by the Wampanoags in Massachusetts, the Pequots and Schaghticokes in Connecticut, the Narragansetts in Rhode Island, the Oneidas in New York. The Catawbas of South Carolina contend they are entitled to 144,000 acres that embrace the cities of Rock Hill and Fort Mill. The roll call of litigant tribes is like a Whitmanesque iteration: Miccosukee, Sioux, Cheyenne, Chippewa. Seven Oklahoma tribes--Kaw, Ponca, Tonkawa, Pawnee, Otoe, Osage, Creek--are shaping up a suit to assert a collective claim to the bed--and attendant water rights--of the Arkansas River. Of hundreds of controversies, however, most turn not on claims to land but on issues of land use, of rights to minerals and water, of fishing and hunting rights, of tribal sovereignty. Some involve prickly political questions that stem from the unique legal status that is supposed to exempt Indians from control or taxation by state and local governments. The Mescalero Apaches of New Mexico have won their claim to immunity from ordinary state licensing procedures in the sale of liquor on their reservations. In Minnesota, the Chippewas (one of whose honorary chiefs is Vice President Walter Mondale) have won the right to issue tribal auto license plates.

In the land cases, of course, the Indian Renaissance is rattling one of the uglier skeletons in the open closet of American history. That much land occupied by the Indians was taken by force or fraud is an old, richly documented story. The tale, if sad, is not surprising, given the way of civilization wherever it has encroached on simpler societies. It may be, as many historians argue, that American settlers were driven by an unusual hunger for land. To pioneering Americans, in fact, the right to property was rarely distinguished from the right to liberty. It was the irresistible pursuit of both--of land as the embodiment of liberty--that put the U.S. astride the continent and dispossessed the Indians from coast to coast. When justification was needed along the way, it was taken alternately from a claim to divine approval and from John Locke's argument that civilization obtained its right to the land by the investment of its toil, the promise of its superiority.

True, the immigrant civilization sometimes obtained land honorably, by treaty or purchase. But even in many of these cases it often appeared that the Indians did not fully understand the game. Basically, says Wilbur Jacobs in Dispossessing the American Indian (1972), "the Indian saw the land as supernaturally provided for man's use and not subject to sale or individual ownership." Some Indian leaders would attest too late that they had no power to "sell" land, not as the white man understood the word. In exchange for lands conveyed by treaty, the Indians often got little more than unenduring "protection."

It was to protect the Indians against usurpations that Congress in 1790 adopted the so-called Nonintercourse Act. This law provided that no Indian land could change hands without congressional approval. In fact, the act mainly reserved to the Federal Government those further immense acquisitions of Indian territory that would be made in the 19th century. The leader who set the pace and policy for the relentless official land-grabbing that accompanied western expansion was Andrew Jackson. The Tennessean vaulted to the White House on the reputation he had won partly by clearing the Southern states of Indians as a major general of the militia. As President, he continued the work with a determination suggested by his celebrated defiance of a landmark decision of the Supreme Court. In the ruling, Chief Justice John Marshall sought to protect the Cherokee tribe in Georgia against illegal encroachments and abuses by the whites. More broadly, Marshall also established the relationship of Federal Government and Indian as guardian and ward. But this particular law of the land Jackson scorned with his much remembered crack, "John Marshall has made his decision; let him enforce it." Later, Jackson used bribery and troops to acquire the Cherokee lands for the white man, and to drive the Indians across the Mississippi.

In most of the current cases, the Indians do not contend that the property they claim was taken by force or fraud. Instead, they argue that certain voluntary transfers of their land after 1790 never received the congressional ratification required by the old Non-intercourse Act. Because congressional approval is definitely required, and the lack of it is easily proved, the Justice Department has concluded that the Indians have a solid case in law.

Even so, it is impossible to imagine either the courts or Congress actually returning long-populated lands to the Indians. This would entail the dispossession of thousands of innocent owners and the unthinkable unraveling of large segments of ongoing society. At the same time, it is likely that the Indians will receive money for damages, and fair enough. It might even be feasible to award them some symbolic parcels of unpopulated lands.

It is clear, after all, that the Indians have some valid claim on the national conscience. They deserve above all else a chance to reclaim the identity, dignity, pride and esteem that have too often been taken away from them. Indeed, the mood of the Indians suggests that the recovery of such intangibles is not a small item in their renaissance goals. In the land cases, the Indians' willingness to settle out of court, even with the law on their side, forces one to wonder whether the stunning size of the claims has not been intended mainly to arrest the attention of the nation, to prick its conscience, to arouse a more thoughtful response to the larger Indian awakening. If so, the campaign has won a measure of success already. The proof: intervention by President Carter, at Justice's suggestion, in efforts to achieve settlement of the Maine case.

Probably no other country would take quite so seriously land claims that propose, in effect, the impossible rolling back of history. The inherent absurdity of such a proposition might be clearer, say, in a suggestion that Australia be handed back to the aborigines. Even the angry blacks of South Africa are not openly challenging the right of possession held by descendants of the whites who invaded that land long ago. Surely one of the oldest realities of the earth is that the dispersal of all population has been by conquest, dispossession and conquest again. And if history could be unwritten, the world simply would not be the world. England would be bereft of the English and France of the French.

Whatever settlements are reached in the U.S. must, of course, be weighed by Congress. Congress should be able to be fair without suffering the delusion that the country can really be given back to the Indians. The time for that passed forever with the vanishing of the pioneers who took it from them. Frank Trippett

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