I will not dwell on the on the Oregon takeover, insofar as the occupiers are concerned. But, unwittingly, what they have done could be of benefit to the Indian Treaty movement. This is because of the treaties that have remained unratified by the U.S. government. (This article does not delve into other paramount issues such as: treaty enforcement, treaty protection, expansion of treaty sovereignty, renegotiation of treaties, the making of new treaties and the violations of the agreements already in existence, by the federal government. Of the 371 treaties made between the U.S. and Native nations, all have been violated by the feds.)
For years now the Burns Paiute Nation has engaged in herculean efforts to recover their lands wrongly taken, beginning with the valiant struggle of tribal activist Sarah Winnemuca in the 19th century.
The present reservation land was confirmed in 1908. For the next 50 years the Burns Paiutes filed lawsuits to recover the land, including the present-day Malheur Wildlife Refuge. After these attempts failed, in the late 1960's they received for the lost land the grand sum of $743.20 for each tribal member, which amounted to pennies on the dollar for their loss.
Notwithstanding their loss in court, the Burns Paiute are still the rightful owners of the Malheur Wildlife Refuge.
To reach this conclusion it is necessary to go back to the legislation that the created the Oregon territorial government of 1848. This legislation reads in pertinent part: "Provided, that nothing in this act contained shall be construed to impair the rights or property now pertaining to the Indians in said territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians."
There was never a valid treaty between the Burns Paiutes and the federal government. This is because the Northern Paiutes, the historical antecedents of the present-day tribe, never had an agreement that was ratified by the U.S. Senate as required by law. Therefore, the Burns Paiute Nation is still the legal owner of lands that were theirs at the time they entered into negotiations with the federal treaty commissioners.
This legal principle applies to all unratified treaties with American Indian nations. This presents an incomparable opportunity for the recovery of lands by American Indian nations in the 21st Century. I say this also as an attorney, well versed in Indian law, who has held various legal positions on a number of reservations.
The need for land recovery under treaty law is of paramount importance to all affected tribes. One can see when looking at any U.S. map of reservations how little land is held by the tribes. For the most part reservations look like specks of pepper in the grand scale of national geography. This is a disgrace!
There at least 150 unratified treaties, which means that millions of acres are just waiting to be reclaimed by the tribes. Action should be taken, both legal and otherwise.
To further emphasize the meaning of unratified treaties, take, for example, California. In 1851-52 the U.S. sent a treaty commission to negotiate with the tribes of that state to legally clear the way for white settlement. The genocidal slaughter of California Indians began in 1848 and was roaring forward with a pace that can only be compared to the horrific, blood-soaked Spanish invasion of the Indies.
The U.S. commissioners signed 18 treaties with over 500 representatives of various California-based nations, setting aside 8.5 million acres. This may sound like a lot, but it is not: it is divided into small parcels, the largest being no more than 25,000 acres of the least desirable land, far away from the coast with its abundant fishing resources. The 18 treaties were negotiated in order for the U.S. to secure title to lands that the tribes were giving up in exchange for guaranteed reserved lands (reservations) in perpetuity, where they would be secure from slaughter by the invading whites. Incredibly, these treaties gathered dust for decades until 1905. The Senate never ratified the treaties that meant no land was reserved for these California tribes. But, on the other hand, this also meant that these nations legally ceded no land to the United States, no land was given up, which means that the land in question still belongs to the tribes to the present day.
The federal government thought that by not ratifying the treaties this would work to the legal detriment of the tribes. But this created a loophole that works to the legal advantage of the tribes and to the legal disadvantage of the U.S. government, invalidating its claim to the Native land that was the subject of the abortive treaties. The U.S. shot itself in the foot by failing to ratify the treaties. This is of immense import.
At the time the treaties were written, it was apparent that the federal government did not think the tribes would survive as they were being slaughtered in the worst genocide campaign recorded in U.S. history. In 1848 the California Indian population numbered over 150,000; by 1856-a span of just eight years-it had plummeted to a mere 25,000. It may be that, in the view of the government, the matter of treaty ratification would be rendered moot by the physical elimination of the Native land claimants.
Much to the surprise of the government, the Indians survived, although with huge losses ("There was never any intention by the U.S. government for Indian people to survive," said one tribal elder).
By the Treaty of Guadalupe Hidalgo of 1848, California Indians were citizens under Spanish and Mexican law with absolute title to their lands in the state. In other words, with no treaty ratification, the Native peoples of California still have absolute title to the land they possessed at the time and under the Guadalupe Hidalgo Treaty.
Today, in response to any such legal challenge, the feds will march out their usual army of mercenary attorneys (in the Cobell case of 1996 -- the largest class action lawsuit against the United States in U.S. history -- the government had 35 attorneys fighting the Indian claims compared to Cobell's five, outnumbering him seven to one). The answer to this legal wagon-circling and the feds flypaper defense (file enough paperwork and something is bound to stick) is political activism: the "power of the people."
The much revered elder statesman, the late Standing Rock Sioux author, Vine Deloria, Jr. (I had the honor of meeting him at a venue where he spoke some years ago) said in the 1970s: "Indians had come to realize, by 1973, that political activism was their only hope. Even assuming the best intentions of Congress, they could not achieve even a modicum of justice."
His statement is even more pertinent in 2016. But an opportunity beyond description is provided by what happened at the Malheur Refuge. Without political activism this opportunity to reclaim our lands will slip through Indian hands. If there is no follow-up, a matchless chance will be missed.
The attitude of the U.S. government is that the passage of time and the change of conditions, economic, political and otherwise, are sufficient to invalidate the sacred agreements. Legally, nothing could be further from the truth. A litany of cases establishes that the treaties are still the "supreme law of the land."
The issue of unceded land because of the non-ratification of treaties provides opportunities for the recovery of huge swathes of Indian land illegally taken in the era of western expansion. However, this can only be realized with the political activism of "moccasins on the ground." Only political action can ensure victory.
The Indian Treaty movement should develop powerful momentum before Obama leaves office because with a new president, Native concerns will be relegated to the sidelines. It will be much more difficult to raise them to the level of official attention.
As to whether the recovery of these lands is possible, here is another far-sighted quote from Deloria: "Who is to say that Indians cannot regain their independence some time in the future? Can one view the recreation of the state of Israel after two thousand years of exile and seriously maintain that the Oglala Sioux will never again ride their beloved plains as rulers of everything they see? Or that the might of the Iroquois will not once again dominate the eastern forests?"
In conclusion, I pose this question which the Bundys and their militia have prompted with their actions: What would happen if there was an Indian takeover of unceded land by tribal citizens-land that legally still belongs to the tribe?