Aboriginal Title, Indigenous Proprietary Title, and Nde' Inherent Right to Self-Governance

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.

16. Conclusion.

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)

All We Need ... A Few Sparks...

Texas landowners win small victory on border fence
By CHRISTOPHER SHERMAN Associated Press Writer © 2008 The Associated Press
Dec. 18, 2008, 6:24PM

McALLEN, Texas — Dozens of South Texas landowners whose land is being condemned for the border fence scored a victory when a federal judge ordered that juries will decide the value of their property rather than an appointed land commission as the government had requested.
U.S. District Judge Andrew Hanen set the stage for a series of trials to begin in March with his order signed Wednesday. While the trials will be restricted to determining how much the government pays landowners for the property, it gives Texas landowners their first opportunity to take an issue related to the border fence before a jury.
"I'm proud of him, he's doing his job," Eloisa Tamez, a landowner facing condemnation near Brownsville, said Thursday. "To have this kind of news before the holidays is like a Christmas gift for me."
The federal government has filed more than 300 condemnation lawsuits against South Texas landowners to make way for portions of the 670 miles of fencing it is building along the U.S.-Mexico border. So far about 500 miles is up, but it has been slow going in the Rio Grande Valley, where opposition is widespread.
Federal prosecutors had argued that the number of jury trials would swamp the courts, result in uneven payments and be extremely complex. A panel of land experts appointed by the court would be a more efficient option and more fair since it would be difficult to find enough unbiased jurors in an area where the fence has been a hot-button issue for months, the government said.
But Hanen, based in Brownsville, sided with landowners, 28 of whom are set for trial next year and all requested juries. The U.S. Attorney's Office did not immediately return a call for comment.
"This court is a firm believer in the jury system and the ability of everyday citizens to set aside their personal beliefs, biases and prejudcies to decide cases solely on the evidence presented within the context of a court's instructions," Hanen wrote in his order.
Hanen also cast doubt on the government's claim that about 80 cases will eventually need juries to determine land values. He suggested that even among the 28 cases scheduled for trial so far, similar parcels could be clustered in groups of three to be heard by the same jury. Most property owners settled with the government out of court.
The condemnations range from a quarter acre to more than 12 acres, but in many cases those are just slivers taken from tracts covering hundreds of acres north of the Rio Grande. Land commissions are generally believed to award lower compensation than juries, eminent domain attorneys say.
Each case will offer its own complexities, from calculating the impact on hunting leases to the value of the land left in the no-man's land between the fence and the river.
Kimberli Loessin, an attorney representing some of the landowners, wrote in an e-mail, "Landowners are pleased and believe that Judge Hanen did the right thing."

More Soldiers (Troops) On the Ground Is a Threat to Nde' Way of Life

(Photo: PBS)

(Film still: Kieren Fitzgerald)

(Photo: Margo Tamez)

(Photo: Austin American Statesman)

Yuma, Arizona News Reveals Suspicion, Napolitano Could Send More Troops to Border

Indigneous Nde' people of the Lower Rio Grande Valley are threatened by increased militarization of our home communities, rancherias, farmlands, stock areas, water, riparian wetlands, and sacred sites.

Nde' and other indigenous communities of the rancherias along the Rio Grande, who uphold traditional indigneous teachings of sacred lifeways which respect and honor Life, stand firm on denouncing further hostile encroachments upon our traditional ways of life and cultures.

Nde' teachings come from our foreparents and our contemporary elders who are leading the resistance against a Berlin-style steel-concrete wall through indigenous traditional sacred lands. We ask all Nde' people and our friends and allies throughout the region to stand firm against further militarization of our region. Peace cannot come through armed force and aggression. Local Nde' elders, children, women and men, indigenous workers, and our communities will be first impacted by increased armed uniformed soldiering in our communities.

The elders and families of the Lower Rio Grande Valley currently endure one of the harshest, violating and lawbreaking militarized operations in North America, as evidenced in the numerous layers of armed guards policing the unarmed, noncombatant civilian population. These layers of soldiering are comprised of the U.S. Customs Border Patrol, U.S. Army National Guard, U.S. Coast Guard, U.S. D.H.S., local police, Texas Highway Patrol, Texas Rangers, paramilitaries, and private security personnel, among others. The U.S. Department of Defense, North Command (NorthCom) Task Force directs the training of all armed units in the region, as part of the tripartite U.S. global military campaigns: 'war on terror', 'war on drugs', and 'war on illegal immigration.'

NEWS KSWT, YUMA, ARIZONA reports early warnings that Janet Napolitano, if confirmed as Secretary of the United States Department of Homeland Security, may initiate a secondary "Operation Jump Start."

The following is excerpted from a news report from Yuma, Arizona

"Would Napolitano Send Troops Back to the Border?

Governor Janet Napolitano is gearing up for confirmation to the post of Homeland Security Chief. If approved, would she send troops back to the U.S.- Mexico border? A job with the Obama administration would come six months after the Bush adminstration denied Napolitano's request for further help at the border.

The governor's office refused to comment on any decisions that may come after Napolitano's confirmation, but in a June 12th interview, Napolitano expressed concerns over the National Guard's departure from the border.

"We've made progress at the border," she said in that interview. "But things that were supposed to happen while the National Guard was here: the completion of some of the fencing, the staffing up of the Border Patrol, the virtual fence, the technology, you know, has been slower than you said."

The Yuma Sector Border Patrol says the Guard was very helpful. During the deployment, the agency nearly doubled its staff, adding about 400 agents.

"Our recruitment team has been very active holding job fairs throughout our area of operation which includes eastern Arizona, parts of Nevada and Kansas. So we've gone out there and attended colleges. We've gone to job fairs," says Agent Laura Boston. "We now have fencing covering almost all 125 linear miles of Yuma Sector. It's not always fencing but some type of tactical infrastructure."

The proposed virtual fence remains at a stand-still as officials struggle to optimize the technology. It's hard to tell right now whether Arizona could see a second Operation Jump Start."