What role is history playing in settling contemporary lawsuits regarding Native Americans?
In 2009, the U.S. Department of the Interior settled a 13-year lawsuit with Native American tribes who had accused the government of cheating tribes of royalties they were owed on leases for timber, mining, and energy reources. The settlement, amounting to $3.4 billion, was used in part to buy back lands that were formerly owned by tribes. The origins of the case go back to 1887, when the Dawes Severalty Act was passed, dividing tribal lands and allotting them to individual Native Americans to farm. The Department of the Interior had been tasked with collecting royalties on mining, gas, timber, and other land uses and paying them to tribes, but the lawsuit alleged that the Department of the Interior had not been doing so. Therefore, history, including agreements going back to the 1800s, played a role in this lawsuit.
In September of 2016, the government settled another similar lawsuit and dispersed $492 million to 17 tribes. At the time, there were over 100 lawsuits by Native American tribes suing the federal government for mismanaging tribal lands. These lawsuits also date back to the 1800s, when the government was made the trustee of tribal lands and was supposed to compensate the tribes for the use of these lands. As many Native Americans face poverty, these settlements have been of vital importance to tribes.
History actually forms a significant basis for Native American Claims in their present lawsuits. Congress passed a number of acts in the eighteenth and nineteenth centuries collectively known as the Indian Intercourse Acts, or more commonly the Indian non-Intercourse Acts. Although the first of these statutes contained expiration dates, the last two, passed in 1802 and 1834 did not contain an expiration date. The last such act, passed in 1834 and later preserved as a federal statute (25 U.S. Code, Section 177 reads:
[N]o purchase, grant, lease, or other conveyance of land, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant the constitution.
Present day lawsuits have alleged that the states and other entities have taken property from the Indians in violation of the act cited above. The defendants in such actions have raised a series of defenses, including the expiration of the applicable Statute of Limitations. At least one such case, South Carolina vs. Catawba indian Tribe was settled by a cash settlement to the tribe.
Many of the current lawsuits involving Native American communities are grounded in historical claims. Thus historical scholarship takes a significant role in their adjudication.
For example, the Native American Graves Protection and Repatriation Act of 1990 requires return of cultural items to descendants. Where history comes into play is identifying who might be legitimately considered a descendant, especially in cases of older remains. For example, the Navajo and Apache tribes are Athabascan in origin, moving from Canada into the United States circa 1400 CE. What this means is that it takes careful historical and archaeological analysis to determine whether bones or other items from approximately 1300-1600 belong to the Navajo, Hopi, Zuni, or other tribes.
Larger territorial claims as well (as discussed by Larrygates) are often grounded in treaties signed many centuries ago, and the precise wording of the treaties is important for adjudicating claims not only about land ownership but also about water and mineral rights.