Kirke Kickingbird and Karen Ducheneaux
[Reprinted from The People's Land, A Reader on
Land Reform in the United States, edited by Peter Barnes for the
National Coalition for Land Reform, printed by Rodale Press, 1975]
The Indian land problem is not confined to a
single region. Rather, it stems from a long and tragic history
of conquest and destruction that began on the Atlantic shores
and still goes on - albeit with less bloodshed - today. The
latest rush for Indian lands and water rights is occurring in
places like Arizona and Montana, where energy companies are
eager to develop coal that lies beneath Indian reservations.
White people have never understood the Indian concept of the
sacredness and non-divisibility of land; just compare our
stewardship of the North American continent during the past 200
years with the Indian stewardship over the preceeding 1,000
years! Of course, it is too late to get white men out of North
America, but there is at least a chance for a more enlightened
policy toward Indians, Here Kirke Kickingbird and Karen
Ducheneaux survey the origins of U.S. policy toward native
Americans and recommend a new policy based on establishing an
inviolable Indian land base.
Kickingbird, a Kiowa, [at the time of this writing was] an
attorney with the Institute for Development of Indian Law in
Washington. Ducheneaux, a Cheyenne River Sioux, [was] a staff
writer for the American Indian Press Association. The following
excerpt is taken from their book, One Hundred Million Acres
The major source of all Indian-white conflict and confrontation has
When Indians fought for their land, their struggles were called
uprisings, their victories recorded as massacres. Because whites could
not understand the Indians' concept of land tenure, they derided the
communal use of land as inefficient or, worse, thought that the
Indians were trying to "get away with something." This
attitude developed in the remote past and has characterized the
relationship between Indians and whites to this day.
The world of the European prior to the discovery of the New World was
relatively simple. It was flat, finite and Christian. The discovery of
the Western Hemisphere was a shock to most Europeans. No one had
expected to find two immense continents sitting out there where the
edge of the flat earth should have been.
In order to encourage exploration, the doctrine was developed that
the European nation that discovered a land had exclusive rights to
trade with it. This doctrine encouraged a dramatic race between
exploring expeditions to "claim" lands on behalf of their
respective sovereigns. It was not long before Europeans decided that
their nations should not claim only trading privileges in an area but
the land itself.
There was a major flaw in the doctrine of discovery: no provision was
ever made for the natives of the "newly discovered" lands to
obtain a final decision on their titles. Once the riches of the New
World began to pour into the coffers of Europe, any consideration of
native land tenure was conveniently put to rest in favor of absolute
rule by the conquering power.
After the Revolution, American political theorists contended that the
United States had stepped into the shoes of England with respect to
the doctrine of discovery.
The United States claimed the right to extinguish all Indian titles
to lands on the continent within its domestic borders, and the Indian
tribes were deprived of any right of appeal. It became merely a matter
of when, not if, the United States would take the lands. The
assumption upon which this policy was based was that land title could
only be acquired from the federal government. Indian titles were
The earliest policy on Indian lands envisioned the gradual removal of
the eastern tribes to the stark plains of the West, where it was
thought that no white man could exist. The policy was a step above
genocide. The savagery of the Indian, his obvious inability to use the
land according to Christian principles of commerce, and his
persistence in his pagan religions were used to justify his banishment
to the great American desert, as the Great Plains were then called.
Indian land policy was thus shifted from one of original ownership to
allocation by relative levels of civilization, a wholly cultural
conception lacking any legal basis whatsoever.
With the adoption of the Constitution, the colonies became a federal
government in which functions were allocated to the various branches
of government. The President, with the advice and consent of the
Senate, could make treaties with the Indians that had the same legal
status as those made with foreign nations. But treaties never gave the
tribes a totally sovereign and independent status in the eyes of the
United States because the doctrine of discovery lurked in the
The interstate commerce clause authorized Congress to make laws with
respect to trading with Indian tribes and with foreign nations. The
first laws passed by Congress concerning the Indians primarily
involved trade. With constant pressure from Western settlers, Congress
began to alter its duties from mere trade regulation to total control
over every aspect of Indian programs and policies. The courts have
accepted the presumption that Congress always acts with wisdom and in
good faith when dealing with Indians. It is a fanciful notion rather
than a fact of life.
As the role of the federal government in Indian affairs has grown,
various agencies have come into being that deal with Indian lands.
When the Bureau of Indian Affairs was transferred to the Department of
the Interior in 1849, it was placed in competition with a number of
the department's other agencies, all addressing themselves to the task
of supervising national physical resources. For the most part these
agencies have been devoted to the confiscation of Indian lands rather
than to safeguarding them for their Indian owners. The 20th century
has seen a rapid growth of policies devoted to the exploitation of
Indian lands by government agencies, with the Interior Department
supervising the rape of Indian legal rights in a most interesting
Within the Interior Department, the Bureau of Reclamation and the
Wildlife Service from their very inception have coveted Indian lands.
These agencies, supported on the outside by powerful groups of
citizens and commercial interests, have generally determined what
position would be officially taken by the parent Interior Department
as protector of Indian reservation lands and waters.
It would be fair to say that if a private trustee were discovered
acting in the same manner as the Interior Department does toward the
Indians, he would immediately be indicted for gross violation of his
trust. In all but a few cases, bureaucrats in the department have
deliberately thwarted attempts by the Indian tribes to keep their
lands under tribal ownership.
A case in point: an effort to take away the water rights of a number
of tribes on the Colorado River in Arizona and the Rio Grande in New
Mexico was made in the courts in 1971. Indian tribes had been aware
that they might lose their water rights, rights that were essential to
their existence in the southwestern deserts.
A number of tribes made official appeals to the Justice and Interior
Departments. In a letter to Minerva Jenkins, tribal chairwoman of the
Fort Mojave Tribal Council, at Needles, California, Solicitor General
Erwin N. Griswold promised that the Justice Department would fully
defend the rights of the tribe to water on the Colorado River. "Please
be assured," he wrote in November 1970, "that the government
intends to make the Supreme Court fully aware of its obligation as
trustee of Indian water rights in this matter (the Eagle River
case), and of any bearing that the decision may have on those rights."
When, however, the Justice Department filed its brief in the case in
which it was to assert the Indian water rights before the Supreme
Court, it said in an obscure footnote, "To the best of our
knowledge, none of the reserved water rights claimed by the United
States in Water Division No. 5 relate to Indian lands."
The result of the Eagle River decision was to place all
Indian water rights at the mercy of the court systems of the various
states, courts that are notoriously anti-Indian. The tribes issued
loud protests and finally a subcommittee of the Senate, headed by
Senator Edward Kennedy, looked into the deprivation of water rights,
concentrating on conflicts of interest within the Interior Department.
Questioned by the committee, Harrison Loesch, assistant secretary of
the Interior for land management, who oversees the administration of
Indian programs, lamely related that he did not "know" that
Indians placed a high priority on water.
The situation is far beyond the point of simple scandal. It is so
blatant that even the President has been forced to concede the total
abdication by federal officials of their responsibilities for the
protection of Indian rights. In a special message on Indians sent to
Congress in July 1970, President Nixon outlined new legislation of
major proportions. He called for the creation of an Indian Trust
Counsel Authority, a special agency independent of both the Justice
and Interior Departments, to defend Indian rights. Indians have been
urging this sort of thing for a long time.
Today, out of the vast continent once "owned" by American
Indian people, slightly less than 100 million acres remain. Of this
amount some 40 million acres only recently came into Indian hands
through the Alaska land settlement, and groups of whites are now
appealing that legislation in an attempt to reduce the Indian
landholdings still further.
But the type of ownership that American Indians enjoy today is only
theoretical. The federal government still holds Indian lands through
the administrative structure of the assistant secretary of land
management in the Department of the Interior. It is still accepted in
the halls of Congress that Indians do not really own their lands but
live on them at the pleasure of Congress. This anti-Indian sentiment
is well understood everywhere in Indian country and is the major
inhibiting force in developing Indian reservations.
We propose that the United States enter a new phase in its
relationship with the American Indian by creating a new doctrine of
Indian legal rights with respect to land titles and ownership. We
propose a new category of legal status for Indian lands and a policy
to stabilize the Indian land base at 100 million acres by restoring
lands illegally taken during the last century. We believe this program
should naturally be the first step in solving the problems of Indians
created by the accidents and incidents of American history.
All lands in the new legal category called Indian lands would be
held, as are all lands of Indians at present, in a legal status that
makes them immune from state and federal taxation. Tribal governments
would have complete control of zoning, hunting and fishing, gathering
of berries, wild ricing, cutting of timber and mining of minerals.
They could never be subjected to condemnation by state or local
governments or by federal agencies for any purpose whatsoever. They
would also have first-priority water rights on all streams arising on
or passing through the lands, as they do now, but in any proposed use
of water on any river or drainage system that would affect Indian
rights to water, the full potential use of the Indian tribe would be
determined prior to the determination of any other rights to the
Indian lands would not be subjected to the control of the Bureau of
Indian Affairs or the Department of the Interior. They would be under
the control of the tribe to which the lands belonged. Such lands could
be sold by the tribe only after any plan to sell lands was presented
to the whole membership of the tribe meeting in a general council and
was discussed for a period of three consecutive years.
The termination of the Klamath Indians of Oregon, the Siletz and
Grande Ronde Indians of Oregon, the Affiliated Utes of Utah and the
bands of Paiutes of southern Utah would be ended. These tribes would
be restored to full federal status, with their lands placed in the new
category of Indian lands.
To facilitate the establishment of a permanent Indian land base, we
recommend that two special funds be created for use by tribal
governments. One fund of low-interest loans would be made available to
Indian tribes to purchase allotments of individual Indians, the lands
thus purchased to be added to the existing tribal estates. The other
would be a no-interest fund for small tribes to purchase lands not now
under Indian ownership for expansion of their existing tribal land
base consistent with their needs.
We additionally recommend that the General Services Administration
convene a general meeting and inform the Indian tribes about land
currently surplus or soon to be surplus. We advocate priority be given
to those Indian tribes or groups that present adequate use-plans for
lands that are or may become surplus to federal needs.
All previous proposals for improving the condition of American Indian
people have revolved around the confiscation of their lands and pious
admonitions for them to stop being Indians. In the name of justice,
mercy, sanity, common sense, fiscal responsibility and rationality we
present this program to place Indian communities on a solid legal and
economic basis once and for all. We appeal to the American people to
demand of their Senators and Congressmen a new day for American Indian
people, without any hidden agendas or any shifting of concepts and
programs to confiscate Indian lands in the name of progress,
patriotism or religion.