Picking up where I left off earlier,
Consider this view, excerpted from Gordon I. Bennett, 27 Buff. L. Rev. 617 (1977-1978)
Aboriginal Title in the Common Law: A Stony Path through Feudal Doctrine, Bennett, Gordon I.
[ 20 pages, 617 to 636 ]
"In Johnson v. McIntosh ° and Worcester v. Georgia," two landmark
decisions that still constitute the locus classicus on the subject,
Chief Justice Marshall referred to the principle evolved by the European
powers in their settlement of America that "discovery gave title
to the government by whose subjects, or by whose authority, it was
made, against all other European governments, which title might be
consummated by possession."'' The Chief Justice added the vital
caveat, however, that this principle could not
annul the previous rights of those who had not agreed to it. It regulated
the right given by discovery among the European discoverers;
but could not affect the rights of those already in possession,'either
as aboriginal occupants, or as occupants by virtue of a discovery
made before the memory of man. It gave the exclusive right to purchase,
but did not found that right on a denial of the possessor to
sell.' 3 [The original inhabitants] were admitted to be the rightful occupants
of the soil, with a legal as well as a just claim to retain possession
of it, and to use it according to their own discretion.14
Central to Marshall's analysis was the assertion that aboriginal rights
stem from ancient occupation per se, and are not dependent on a public
grant or official acknowledgment."
"Nor is it true, as respondent urges, that a tribal claim to any
particular lands must be based upon a treaty, statute, or other formal
"This view is confirmed by a whole cluster of Supreme Court decisions
and, most recently, by the Court of Claims in Lipan Apache
Tribe v. United States,'8 where Judge Davis dispelled any lingering
Indian title based on aboriginal possession does not depend on sovereign
recognition or affirmative acceptance for its survival. Once
established in fact, it endures until extinguished or abandoned..."
"The correct enquiry is, not whether the Republic of Texas accorded
or granted the Indians any rights, but whether that sovereign extinguished
their pre-existing occupancy rights."
Time to rest, until tomorrow...
(to be continued)
Thursday, September 29, 2011
A Underlying Issue Still Contested from Indigenous Perspectives: Neither the U.S. nor Texas Had Rights to Extinguish Aboriginal Title of Southern Lipan Apaches of South Texas & LRGV
While many indigenous peoples have contested the final decisions of the infamous Indian Claims Commission, few if any have ever set forth an analysis ourselves of the decisions, nor critiqued how these decisions effected the ongoing self-determination, survival and existence of Nde', or Southern Lipan Apaches in South Texas and in the Lower Rio Grande Valley.
Why? How and why did other indigenous peoples ('Mescaleros', et. al) ever become recognized as the sole proprietary owners of the traditional territories of Nde' of what is today South Texas, Lower Rio Grande Valley & River, and our territories in Mexico?
This is a grave harm, still to be resolved for Nde' self-determination. It is clear that our peoples, under great threat of genocidal destruction before and during the time of the Indian Claims Commission, were a vulnerable indigenous people without means to counter-act or to defend against this level of deceit and injustice.
Today, it is time to convene, and to re-assess the outcomes of the ICC, several decades later, and the work that will be entailed in launching an Aboriginal Title landmark case to prove Nde' Aboriginal Title and traditional territorial rights to Konitsaii Gokiyaa, Lipan country.
For now, here is something to absorb...
I believe it is time for a critical gathering of leadership to deconstruct the assumptions built withing the conclusions of the Indian Claims Commission, and the United States and Texas as beneficiaries, which effectively left unrecognized and peripheral all Nde' families, communities, and organizations.
Here is an excerpt of the final decision, and the full document is here: http://digital.library.okstate.edu/icc/v36/iccv36p023.pdf
Excerpt, 36 Ind. Cl. Comm. 7, Docket #22-C
"The Commission found the detailed reports submitted by the above experts to be informative. However, the Commission has rejected as conjectural, speculative, and not supported by the preponderance of the evidence t h e conclusions of p l a i n t i f f s ' expert witnesses as to the extent of Lipan and Mescalero aboriginal ownership of the lands claimed herein for the time periods in question. The Commission also r e j e c t s the p l a i n t i f f ' s
experts' conclusions as of the date of taking.
The defendant's expert witness was D r . Kenneth F. Neighbours, a
historian who has written extensively about the history of Texas and about i(afg Robert Neighbors, the famous Indian agent of the Texas tribehwho served in that capacity under both the Republic of Texas and the United States governments. His report, an ethnohistory of the Lipan and Mescalero Indians, and his testimony related chiefly to the land and Indian policies of the respective sovereignties that ruled Texas through the 19th century. Be
36 Ind. C l . C m . 7 65 concluded t h a t , as a r e s u l t of such p o l i c i e s , the Indians of Texas, and p a r t i c u l a r l y the Lipan and Mescalero Indians, did not have aboriginal t i t l e to any lands within the State of Texas, although a t various times these and other Indian t r i b e s had h i s t o r i c a l l y been located a t d i f f e r e n t places within t h e area. The Commission has rejected Dr. ~ e i g h b o u r s ' legal conclusions r e l a t i v e t o Indian t i t l e in the State of Texas as contrary to the law of the case.
Based upon the foregoing findings of f a c t and a l l the evidence of
record, the Commission has concluded as follows:
(a) From time immemorial, through the periods of Spanish and Mexican sovereignty, and the Republic of Texas, and, u n t i l November 1, 1856, when, as a r e s u l t of the actions of the United States army in carrying out federal policy, it was compelled to vacate its ancestral home, the aboriginal Lipan Apache Tribe held Indian t i t l e to the following described land situated within that area i n Texas claimed by principal p l a i n t i f f herein :
Beginning a t that point on the Rio Grande River which is the
northwest corner of Zapata County; thence e a s t e r l y along the
common boundary of Zapata and Webb counties to t h e southeast corner of Webb County; thence northeasterly on a l i n e , crossing the Nueces River, to the town of Pawnee i n Bee County; thence
northwesterly on a l i n e to the northwest corner of Bandwa County; thence northwesterly on a l i n e to the northwest corner of Edwards County; thence south along the western boundary of Edwards County and adjoining Kinney County to the southwest corner of Kinney County on the Rio Grande River; thence southeasterly along the east bank of the Rio Grande River to the place of beginning.
(b) From time immemorial, through the periods of Spanish and Mexican and occupied exclusively i n Indian fashion a l a r g e a r e a i n eouth c e n t r a l 36 Ind. C1. Comm. 7 New Mexico and west Texas between the Rio Grande River and the Pecos
River. By v i r t u e of the Executive Order of May 29, 1873, e s t a b l i s h i n g the Mescalero Apache Indian Reservation i n New Mexico, the Mescalero Apache Tribe relinquished to the United S t a t e s without the payment of compensation, Indian t i t l e t o a l l lands outside of the reservation. See Mescalero Apache Tribe v. United S t a t e s , 17 Ind. C1. Comm. 100 (1966).
Accordingly, May 29, 1873, is the e f f e c t i v e date of the extinguishment of a l l Mescalero aboriginal land claims including Mescalero Indian t i t l e t o the following described area in Texas.
Beginning a t t h e southeast corner of the S t a t e of New
Mexico; thence south-southwest on a l i n e across the Pecos
River t o the southeast corner of Reeves County Texas; thence
southwest on a l i n e to Ft. Davis i n J e f f Davis County; thence
northwest on a l i n e to the town of Van Horn in Culberson County; thence northwest on a l i n e to the northeast corner El Paso County, Texas, said corner being on the southern boundary of the S t a t e of New Mexico; thence e a s t e r l y along the southern boundary of the S t a t e of New Mexico to t h e p o i n t of beginning.
(c) The evidence of record does not support Lipan and Mescalero
aboriginal t i t l e claims to lands outside of the areas awarded above.
(d) The Tonkawa Tribe of Indians, second intervenors, herein has
f a i l e d t o prove by the preponderance of the evidence t h a t s a i d t r i b e is the successor in i n t e r e s t t o the a b o r i g i n a l Lipan Apache Tribe.""
Here is another view:
from, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights, by Paul G. McHugh, (Oxford University Press, 2011), 178-179.
"In Calder, Justice Hall drew upon the American cases on extinguishment when he indicated that aboriginal title 'could not therefore be extinguished except by surrender to the Crown or by competent legislative authority, and then only be specific legislation.' His inspiration was the opinion of Davis J in Lipan Apache (1967) where it was said that in 'the absence of a "clear and plain intention" in the public records that the sovereign "intended to extinguishe all of the claimants' rights" to their property' the Indian title continued at law. That approach towards the interpretation of statutes affecting Indian title had been used in a sequence of cases from at least the early twentieth century. Ultimately, it went back to a canon for the interpretation of Indian treaties given by Chief Justice Marshall who said (1832) that treaties to 'be construed, not according to the technical meaning of their words, but in the sense in which they would naturally be understood by Indians'. As the doctrine of aboriginal title became articulated in the courts, judges routinely invoked this 'clear and plain intention' rule for the interpretation of statutes."
(to be continued)