Struggle to the South
Native bands in the U.S. are waging some tough legal battles of their own, but not on the Canadian scale
BY CRAIG OFFMAN

Superficially at least, native people in the U.S. face a different situation from their Canadian counterparts'. Most Indian land is held in trust by the U.S. government for Indian use. But historically that trust has been abused many times over. Even though Congress ratified 371 land treaties between 1778 and 1871, they were often ignored. Indian's rights were abused and their property was invaded by migrants and speculators. Indians were often pressured to give up their land or sell it for a pittance. From the 1880s to the 1930s, they lost more than 36.5 million hectares, nearly two-thirds of their land base, in land-for-money swaps.

But the Indians have been fighting back long and successfully through the courts. Since 1946, when Congress set up the Indian Claims Commission to hear cases filed for land losses, tribes have won settlements worth hundreds of millions of dollars, which are often marked for education and land purchases. But very seldom have tribes tried to reclaim land outright. "I can count those kinds of cases on my fingers and toes," says Don Miller, a lawyer with the Native American Rights Fund in Boulder, Colo. In the past 25 years, the Federal Government has settled 11 Indian land claims, mostly on the East Coast, where about a dozen more are outstanding. Some of the high-profile cases across the U.S.:

--The Oneida tribe of New York has battled with the state government since the 1970s. The Oneidas claim that state and local governments took away much of their ancestral lands in the late 1700s and early 1880s. In 1985 the Supreme Court ruled that the Oneidas were entitled to compensation. The Federal Government has sided with the Oneidas, arguing that New York broke the 1790 Federal Trade and Intercourse Act, which prohibits any non-federal party from taking Indian land without Congress's permission.

The tribe cannot sue the state government on its own because the state has constitutional immunity against tribal land claims. And Washington has interceded to prevent the state from leaving individual landowners and local counties to defend the case alone. The Oneidas and the Department of Justice have taken New York to federal district court in Syracuse, suing it and 20,000 property owners in the area. A judgment is expected by the end of the year.

--Some members of the Western Shoshoni of Nevada have a dispute directly with Washington. The Shoshoni signed an 1863 treaty that allowed safe passage for settlers so long as the Indians could retain title to 97,000 sq km of arid rangeland. Even so, they lost much of the territory to the settlers. The Shoshoni never accepted an award by the Indian Claims Commission that is now worth $105 million. Many continued to graze cattle and horses on land that is now public space.

In 1973 the U.S. Bureau of Land Management cited two Shoshoni sisters, Mary and Carrie Dann, for trespassing because they grazed cattle and horses on federal lands without a permit. The two sides squared off until 1985, when the U.S. Supreme Court ruled against the sisters. Nonetheless, the Danns continued their civil disobedience. To date, the Danns and the Western Shoshoni have racked up $500,000 in trespassing penalties. Last March the Danns took their case to the Inter-American Commission on Human Rights, which is still considering whether to hear the case. The Danns contend that by ignoring their aboriginal land rights, the Federal Government has violated the Danns' human rights. Last May, however, a Western Shoshoni majority voted by secret ballot to accept the $105 million in federal compensation. Legislation is on its way to Congress that will authorize payment.

--The Sioux Indians of South Dakota want nothing less than the return of their sacred Black Hills, a 7,100-sq-km area that contains Mount Rushmore. Though the Sioux signed a peace treaty with Congress in 1868, General George Custer and his men overran the area, to spectacular ill effect. Nine years later, the U.S. government abrogated the treaty. Speculators and militias scattered the Sioux, forcing them either to sell out for very little or to vacate--what is unofficially called the "sell or starve act."

The Sioux, one of the poorest tribes in the country, won a $106 million claim in the Supreme Court in 1980. But to this day, the Sioux will not touch the money--now accrued to $560 million--because they want the land. The case remains a standoff.

The native-claims issue promises to be even more contentious in the next century. In 20 years, the number of native lawyers has multiplied tenfold in the U.S. Temporarily, though, other issues are absorbing the energy of native communities, such as the establishment of gambling casinos and other forms of gaming on native land. Says an Interior Department official: "As tribes become more sophisticated about their legal rights, we are likely to see more claims. But for the next 10 to 15 years there will be few." So, for the time being, land claims can hardly be considered the growth industry they have become in Canada.

--WITH REPORTING BY ANN BLACKMAN/WASHINGTON, PAT DAWSON/BILLINGS AND NANCY HARBERT/ALBUQUERQUE