Oregon State Bar Bulletin — JUNE 2009

Walk a mile under my skies
Try to see it once the way I do
If you look out through my eyes
You’ll find a different point of view.
Everything changes,
Every fact wears some disguise…

— Canadian singer and songwriter James Keelaghan

I’m writing this at the cabin my husband built on our property between the Winema National Forest and the Klamath Marsh National Wildlife Refuge, all of which once belonged to the Klamath Indian Tribe.

I’ve never given this previous ownership much thought, having been told that the tribe sold this property, previously part of its “reservation,” in the early 1950s, around the time I was born. 

But what if the original purchasers had unclean hands?

What if Indians actually were using this and other land on the North American continent when it was “discovered” by white, Christian Europeans? What if they even perceived themselves as owning parts of it, vis-a-vis other tribes, for economic, religious and cultural purposes?

What if the treaties they signed aren’t just an unfortunate part of history but living legal documents?

What if the 200th anniversary of Lewis and Clark’s expedition and the sesquicentennial of Oregon’s statehood, both observed in this decade, weren’t unequivocal causes for celebration?

What if your job, as a lawyer, was to represent the Native Americans for whom all of this history still affects daily life?

Gabriel “Gabe” Galanda knows all about that.

“It’s called historical trauma: communities living with the consequences of several hundred years of genocide or attempted genocide,” says Galanda, a Washington Indian-law lawyer and California tribal member. “It’s certainly part of the practice of Indian law and imbedded in conversations you have with tribal leaders. It’s so far removed from sitting in a corporate boardroom arguing about derivative claims or stock options. It adds a very emotional dynamic.”

Of Kings and Conquistadores
To find the antecedents of Indian law as it is practiced today in the Pacific Northwest and elsewhere, you have to go back to another place and time: Europe in the 1400s.

To Bend lawyer Howard “Howie” Arnett, who represents the Warm Springs Tribe, this history is one of the things that attracted him to Indian law.

“Indian law was very different from almost every other subject in law school,” says Arnett, “a fascinating combination of law, history and anthropology. Some of its legal theories go back to the Middle Ages. It’s not often, in law school, that you’re reading what legal scholars said in Spain in the 1400s.”

What those scholars said, according to Lewis & Clark Law School professor Robert James Miller, is this:

When European explorers “discovered” new land, they claimed to have “immediately and automatically” acquired property, governmental, political and commercial rights over its inhabitants — without those inhabitants’ knowledge or consent.

This acquisition typically began with planting a flag.

“Do you have a flag?” Miller says in the accent of British comedian Eddie Izzard at a February Continuing Legal Education (CLE) discussion based on his 2006 book, Native America, Discovered and Conquered: Thomas Jefferson, Lewis and Clark, and Manifest Destiny. “You must have a flag.”

“Why do you think the U.S. flag is on the moon?” Miller asks. The answer: because planting symbols like flags signaled to other Europeans — who recognized these symbols — that the land already had been “discovered.”

“…if lands were…occupied by non-Europeans but not being used in a fashion that European legal systems approved, the lands were considered to be empty and waste and available for Discovery claims,” says Miller.

This “Doctrine of Discovery” was dependent on the belief that indigenous people did not already have ownership interests in those lands. But Miller says that belief was untrue.

“The vast majority of tribes knew exactly where their boundaries were and fought to defend them,” says Miller, an Eastern Shawnee tribal member and chief justice of the Court of Appeals of the Confederated Tribes of the Grand Ronde Community of Oregon. “This was not a communist society. Indians owned fishing rocks. No one else could use that rock without that family’s permission. They owned names, songs and totems: today we call that intellectual property.”

“The first English settlers were told that they’d have to teach the Indians to farm,” Miller continues. “They wrote back (to England), ‘They (the Indians) have farms laid out. What are we supposed to teach them?’ Things could be inherited; i.e., a pinion tree. Even tribes that were hunters and gatherers went to the same places every year. The idea that American Indian tribes didn’t have agriculture, that they bounded through the forest living off the land, is a ridiculous myth.”

Miller says that the belief that indigenous people weren’t religious, which also was a “significant” aspect of the Doctrine of Discovery, likewise was false.

“This legal principle was created and justified by religious and ethnocentric ideas of European and Caucasian superiority over other cultures, religions and races of the world,” he says. “Under Discovery, non-Christian people were not deemed to have the same rights to land, sovereignty and self-determination as Christians because their rights could be trumped upon their discovery by Christians. (But) Cahokia, the site of an ancient Native American city in Illinois, contains the largest manmade earthen mound in North America, which the Travel Channel has called the world’s largest pyramid. We learned about the pyramids: why not Cahokia? (Because) we don’t want to think we took this land from a great people.”

Lewis and Clark and the Corps of Discovery
In 1803, two things happened that changed the course of
Indian history on the North American continent forever.

First, the new United States purchased the Louisiana Territory, acquiring Discovery rights over the Mississippi River’s western drainage.

Second, President Thomas Jefferson dispatched Lewis and Clark’s expedition through that territory towards the drainage system of the Columbia River — the Oregon Country.

In Miller’s view, “Jefferson used Lewis and Clark to begin to exercise America’s political and commercial control of the Louisiana Territory and to dominate the fur trade and political interactions with the tribal nations in the territory.”

But he also wanted them to explore the Oregon Territory to further establish an American presence, begun in 1792 when Robert Gray sailed into and named the Columbia River, for Discovery purposes as well.

“Jefferson had a significant amount of experience with Indian people, cultures and governments,” says Miller. “Most of his public writings on these topics sound very enlightened for his time, and they seem positive and hopeful for the future of Indians in America. …(But) Jefferson’s actions regarding Indian people and governments contradicted his gentle and enlightened words. He greedily pursued his goal of acquiring all the Indian lands he could for the United States, and as fast as he could. He developed and pushed programs for removing Indians west of the Mississippi to get them out of the way of the advancing American state and society and in violation of his own stated goals to civilize, educate and assimilate Indians into white society.”

“The only thing Thomas Jefferson really wanted from Indian people,” Miller concludes bluntly, “was their land.”

Buy U.S.
In 1823, the U.S. Supreme Court upheld the assumption under which Jefferson had been operating: that the Doctrine of Discovery, the established legal principle of European and colonial-American law, also was the law of the United States and its individual states.

The case was Johnson v. McIntosh, which Miller calls “the first case in the Indian law book,” and the facts were these:

In 1773 and 1775, the plaintiff Johnson’s grandfather went through the woods of what is now Indiana and Illinois, buying hundreds of thousands of acres from Indian tribes.

In 1815, McIntosh bought some of the same land from the U.S. government, which had bought it from the same tribes that previously had sold it to Johnson’s grandfather.

Johnson, who had inherited his grandfather’s property, brought an action to eject McIntosh. But Chief Justice John Marshall held that under the Doctrine of Discovery only the government could buy formerly Indian lands and that their purchase by private individuals, like Johnson’s grandfather, from Indians did not transfer title “which can be sustained in the Courts of the United States.”

“It’s a pretty interesting opinion to read,” says Miller, noting that “Marshall held land warrants to 4,000 acres in this area and shouldn’t have even handled this case.”

“What did Jefferson think of this case?” muses Miller. On the one hand, he says, Jefferson “hated Marshall’s guts.” But on the other, Jefferson had devoted almost half of his law practice to cases involving quieting title to land, in many cases formerly Indian land. And as president he had, in Miller’s view, behaved as though the Doctrine of Discovery was the law of the land, even before Marshall actually held that it was.

Manifest Destiny
Even though the phrase “Manifest Destiny” wasn’t coined until two decades after Jefferson’s death in 1826, Miller says that the president believed in that as well.

Manifest Destiny, which Miller believes “grew naturally” out of the Doctrine of Discovery, was the idea that Americans and their institutions had special virtues and that God had destined them to cross and remake the continent, including its indigenous inhabitants, in their image.

The problem with this idea, says Ecotrust attorney Craig Jacobson, is that it — like the Doctrine of Discovery’s beliefs
about Indian property ownership and spirituality — wasn’t founded in fact.

“Before the treaties (between the U.S. government and Indian tribes), the Pacific Northwest’s indigenous people were the wealthiest indigenous people in North America, if not the world,” says Jacobson, who co-presented with Miller at the CLE held in February. (See sidebar.) “So the concept of our coming in and ‘helping’ people who did not need our help is ludicrous.”

“Spanish, English and Russian explorers made their way to what was truly Salmon Nation,” continues Jacobson, whose non-profit organization works with Western Native American and First Nations (Canadian) peoples. “The U.S. wanted the wealth of Salmon Nation for its own.”

Reverse Course
The treaties to which Jacobson is referring were executed in Oregon during the 1850s.

In 1848, when Congress created the Oregon Territory, the same legislation also directed that Indian lands were not to be taken from them without their consent.

“However,” as history professor Stephen Dow Beckham points out in The First Oregonians, “within the next two years, more than 10,000 European Americans were living in western Oregon. Thousands of these people had staked lands and filed provisional land claims, anticipating that Congress would soon pass a law to make those claims their legal property.”

As a result, Congress — only two years after declaring that land was not to be taken from Indians without their consent — completely reversed course and passed what is commonly known as the Oregon Donation Land Act.

Under that act, the government was authorized to give away thousands of acres of Indian land to settlers.

“What followed the passage of the Donation Land Act was tragic,” writes Beckham, who — ironically — teaches history at the Portland college named for Lewis and Clark.

That tragic aftermath included the negotiation of treaties through which Indian tribes ceded to the federal government much of western and south-central Oregon and parts of the Columbia River’s southern plateau.

Lisa Bluelake traces what happened to the tribes that now make up the Confederated Tribes of the Grand Ronde Community of Oregon, for which she is a staff attorney.

“Between 1853 and 1855, these tribes entered into seven treaties with the U.S. government,” says Bluelake, who also is chair of the bar’s Indian Law Section. “One of the biggest covered the whole Willamette Valley. They ceded that land and got promises, like for health care and protection, in exchange.”

The treaties also promised a reservation, which was established, at 61,440 acres, by executive order in 1857.

Then, in 1887, Congress passed what is commonly known as the General Allotment Act, which gave the federal government the authority to survey Native-American tribal areas and divide their arable land into sections. Each Native American family, regardless of whether it was living on its tribe’s reservation or elsewhere, was “allotted” between 40 and 160 acres, with the largest amount available only for the purpose of farming.

“As part of assimilation (into white society), Congress was trying to turn Indians into farmers,” says Bluelake. “The
Grand Ronde lost a great deal of its reservation through the Allotment Act.”

The Grand Ronde’s remaining lands were taken in 1954 when Congress passed the Western Oregon Indian Termination Act, which terminated most of Western Oregon’s tribes.

“The Termination Act (also) was part of assimilation,” says Bluelake. “The Grand Ronde lost all of its land except 2.5 acres of tribal cemetery.”

For the next three decades, says Bluelake, “The Grand Ronde Indians were just trying to survive.”

Then three things happened that significantly changed life for the tribe. In 1983, Congress restored recognition of its government, which had been terminated by the 1954 legislation. In 1987, the U.S. Supreme Court held that the states don’t have authority to regulate gaming on Indian reservations (California v. Cabazon). And in 1988, Congress enacted the Indian Gaming Regulatory Act .

“Games have been played throughout the history of the Northwest tribes, so that’s not new,” says Bluelake, whose main job, as one of the Grand Ronde’s five staff attorneys, is representing the Grand Ronde Gaming Commission. “Of course, they didn’t have slot machines 100 years ago.”

Bluelake describes the regulatory act as “trying to satisfy the states’ interest in having some role in gaming on Indian reservations” by requiring tribes that offer “Vegas-style” gambling to enter into compacts with the states. (Traditional games remain completely under the tribes’ control, while bingo, poker and their electronic versions are regulated by the tribes and a national Indian gaming commission.)

“All of the tribes in Oregon have compacts with the state of Oregon,” says Bluelake, whose client’s casino and hotel — Spirit Mountain — opened in 1995 and now reportedly is Oregon’s top tourist destination.

How important operations like Spirit Mountain are to tribes in Oregon and elsewhere was spelled out by the National Indian Gaming Association, a non-profit organization of entities engaged in tribal gaming, in 2006.

“Through Indian gaming, Indian tribes have created more than 550,000 jobs, fund essential government services … and museums and cultural centers,” the association wrote in a resolution concerning proposed amendments to the Indian Gaming Regulatory Act. “Indian gaming is the Native American success story.”

Casinos Fuel Growth
The growth of Indian gaming has fueled the growth of the Indian-law bar as well.

“Indian-law programs are popping up all over the place,” says Galanda, who was raised and practices in Washington but attended law school at the University of Arizona because it had an Indian-law program in the 1990s. “They’ve increased as tribes have become more economically and politically prominent and so more relevant to the bar. Beginning in 2007, the Washington bar tests on Indian law; so do New Mexico and North Dakota.”

Although Galanda and his fellow Indian-law practitioners so far have been unsuccessful in their attempt to get Indian law added to Oregon’s bar exam, the practice area has grown here.

“When I started practicing Indian law, there were only five or six full-time Indian law lawyers in the state,” says Lea Ann Easton, a 1988 law-school graduate and Portland lawyer who represents the Siletz Tribe, among others. “Bob Miller (the author of Native America, Discovered and Conquered) graduated from law school after I did. All the major law firms now have someone who does Indian law. There’s probably two other firms in Portland that do Indian law, and one in Bend, and all the tribes have in-house counsel. I’ll bet there are 50-60 fulltime Indian lawyers in Oregon now. So it’s changed pretty dramatically.”

The reason, says Easton, is “Casinos, mainly casinos.”

“When the Gaming Act was passed, tribes started getting into the gaming business,” she explains. “Gaming has provided an economic engine for tribes to generate wealth, and they need lawyers to assist them. All the tribes in Oregon have some casino operation. Look at where they are now versus 20 years ago. Their economies are really different. The Grand Ronde Tribal Council met in an old hotel when that tribe was developing Spirit Mountain. Now it has a huge administrative complex with health, dental, education, etc.”

The number of recognized tribes also is growing.

“The Western Oregon Indian Termination Act severely impacted Oregon,” says Easton. “Oregon went from a large number of recognized tribes to three: Umatilla, Warm Springs and Burns. Now Oregon has nine federally recognized tribes, and some others are still seeking restoration.”

And yet, history lingers.

“One of the Grand Ronde’s main objectives is to reacquire lands within its original reservation boundaries, lands that were lost due to allotment and termination,” says Bluelake. “With the acquisition of these lands, the Grand Ronde’s goal has been to develop on-reservation housing and provide on-reservation jobs.”

Arnett says that his client, the Warm Springs Tribe, also continues to cope with issues relating to the status of its land and its economy.

“The economy at Warm Springs was historically based on natural resources: timber,” he says. “That’s an industry in distress right now.”

“The tribe is always trying to develop economically,” he continues, noting that it has a casino at Kahneeta and is trying to expand its gaming operations into Cascade Locks on the Columbia River, where it lived prior to 1855.

“They had territory all the way to Bend and to the Blue Mountains east of John Day,” says Arnett.

Then, in 1855, they and other Middle Oregon tribes signed a treaty under which they ceded title to 10 million acres in
exchange for reserved hunting, fishing and other rights and exclusive use of a newly established, 640,000-acre Warm Springs Reservation.

Not only is the reservation much smaller than the tribes’ original domain, but it also has historic economic strings.

“There’s no tax base because land on an Indian reservation is technically held by the U.S. in trust for the tribe or its individual members,” explains Arnett.” You can’t assess property taxes on trust land.”

According to Miller, “Indians, individually and in tribes, own millions of acres of land in the United States with the U.S. government. They can’t sell their land without the government’s permission. No other American person, unless they are a beneficiary, owns their property in such a situation.”

“History is a constant part of the decision-making process of Warm Springs tribal leaders,” says Arnett, “especially the history involving the 1855 treaty. But this treaty is viewed in a very positive light, not as a negative thing but as a living document that guarantees federal protection for the tribe’s off-reservation fishing, hunting and other rights and secures the Warm Springs Reservation, and the tribe’s other off-reservation land, as a permanent homeland. The tribal leadership doesn’t dwell on what has been lost but focuses on the present and the future.”

But other tribes are finding that harder to do.

For example, as Easton’s partner, Craig Dorsay, points out, “A U.S. Supreme Court decision in February (Carcieri v. Salazar) created a distinction between historical and non-historical Indian tribes.”

“Indian tribes lost almost all of their land from various federal policies,” says Dorsay, noting that the nearly 1.5-million acre Oregon coastal reservation that his client, the Siletz Tribe, received as part of an 1855 treaty was “taken away in a series of actions, mostly illegally and without any compensation.”

“In 1934,” continues Dorsay, “a law was passed that allowed the tribes to get less than one percent (of their land) back. But this new (Carcieri) decision says that only tribes that can prove they were in existence prior to 1934 are eligible. Other tribes, hundreds of tribes that acquired land in the last 70 years, are subject to challenge. So this historical underpinning is alive and well and vibrant.”

“The Siletz tribe is still struggling to overcome the effects of its history,” Dorsay says. “Tribes are affected by history, on a day-to-day basis, much more than the average citizen. Indian law is tied inextricably to history.”

Janine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the Bulletin.

Statements in this article by Robert J. Miller are from his book, Native America, Discovered and Conquered: Thomas Jefferson, Lewis and Clark, and Manifest Destiny and a CLE seminar in February 2009 based on his book..

© 2009 Janine Robben

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