Land rights: American Indians v. the U.S. government

Land rights
American Indians v. the U.S. government
By GAVIN CLARKSON
HOUSTON CHRONICLE
02 Jan 2010


In a nation where a trillion dollars can be earmarked for Iraq and Afghanistan, and hundreds of billions of dollars can be quickly approved for bank bailouts, it's easy to miss a federal settlement involving “only” $3.4 billion. But last month's landmark settlement of the Cobell v. Salazar case is significant for two reasons. First, it represents the largest class-action award to American Indians and helps correct what a federal judge declared was “fiscal and governmental irresponsibility in its purest form.” And second, it may prompt Congress to do the right thing and end seven years of stonewalling that has hurt a tribe with legitimate claim to land that was developed into The Woodlands, Conroe and other Texas communities.

The Cobell case centered on claims that the U.S. government had deprived Indians throughout the United States of royalties for mineral and grazing leases on land held in trust for members of various tribes. When Interior Secretary Ken Salazar announced the case had settled, leaders of the Alabama-Coushatta tribe in Texas had reason to smile — but not because the tribe with the largest reservation in Texas will share in any proceeds from the case. (The tribe was not party to the suit.) Instead, tribal leaders in Texas saw the Cobell decision as a hopeful sign that Congress may finally act on a federal court's recommendation and write a long-delayed check for $270.6 million to the Alabama-Coushatta for oil and natural gas production, timber harvesting and trespassing on ancestral lands by non-Indian settlers.

A few weeks ago, when I took my law students to the Alabama-Coushatta reservation near Livingston, I had difficulty explaining to them why Congress over the past seven years had chosen to disregard the decision of the Court of Claims — something that almost never happens — and continue to ignore the Alabama-Coushatta. To recap: In 2002, a federal court ruled that the Texas tribe should receive $270.6 million for the value of the oil, gas and timber that had been extracted from its lands. As 2009 came to a close, the tribe had yet to see a single buffalo nickel of that judicial award.

The seven-year delay bewilders not only the tribe but also some members of the Texas congressional delegation. Last month, the office of Sen. John Cornyn, R-Texas, reported that he stands by his statement that court judgments ought to be respected and not ignored. But there are other members of the Texas delegation who scoff at Indian claims by likening them to “reparations” for slavery.

The comparison makes for a nice sound bite — but it is fundamentally flawed and disparages the findings of a federal court. In the first place, these Indian claims involve money owed to a tribal government that exists today — not to any long-dead victims of a sordid chapter of American history. And secondly, the money owed to the Texas tribe can be tracked, traced and quantified. Rather than compensating Indians for “pain and suffering” at the hands of the government, the $270.6 million owed to the Texas tribe has been fairly calculated based on demonstrable facts, including the accrued value of key parcels of land that are now home to thriving Texas communities such as Conroe and The Woodlands. The tribe still holds aboriginal title to these parcels, and the federal court endorsed this claim in its 2002 decision. In light of the $3.4 billion settlement in Cobell, the $270.6 million owed to the Alabama-Coushatta looks like a relative bargain.

When I took Texas history in the seventh grade, I learned about Sam Houston and his honorable defense of Indian rights. In 1839, the views of Houston and others were reinforced in a proclamation ordering officials of the Republic of Texas to protect the Alabama-Coushatta from hostilities from non-Indian settlers.

Are the words and spirit of this proclamation lost on our modern-day Texas congressional delegation? I find it remarkable that a state with a proud history of comity and fairness continues to turn its back on a valid claim approved by a federal court. If Houston were still in Congress, there is little doubt he would lead the legislative charge to do the right thing and settle these long-delayed claims of the Alabama-Coushatta tribe. In the wake of the Cobell settlement, perhaps the time has arrived for our Texas delegation to live up to the legacy of Sam Houston — and promote the fair treatment of the largest tribe in their home state.

Clarkson is an associate professor at the University of Houston Law Center and is the nation's leading scholar on tribal finance. He has worked with all three Texas tribes on economic development, including the Alabama-Coushatta.