“I never asked for a patent fee. I never wanted a patent fee. I do not now want a patent fee.”
— Neda Laura Parker, Comanche
The principal goal of US government American Indian policy has been the transfer of land from American Indian ownership to non-Indian ownership. This has been achieved through a variety of means—treaties, for example. But beginning in 1887 with the passage of the Dawes Allotment Act a new era began. Policymakers designed the Allotment Act for several purposes: to break up Indian reservations to make land more available to white farmers, ranchers and settlers; to turn Native people into private property owners; and to “detribalize” Native people (via private property ownership). Allotment had both material goals: acquire more land for settlement, and cultural goals: destroy Indian identity and assimilate Native people into the American mainstream. One of the architects of the allotment plan, John Wesley Powell, argued that because American Indians’ land held “everything most sacred to them” taking that land away from them would destroy their tribal identity, thus making it easier for them to assimilate. Allotment reduced American Indian tribal land holdings from 148 million to 38 million acres.
But when allotment was thought to be taking too long, the next phase of land loss began: the sale of individual Indian allotments.
The sale of individual Indian land happened on a large scale all across Indian country wherever allotment had occurred. Much of this was illegal. Especially egregious was the practice whereby the US government issued, without consent, fee patents to individual Indian people to replace their trust patents. Indian agents gave out fee patent land titles to anyone they deemed “competent” to manage their own affairs. The process, though diffuse and scattered across multiple sources, is well documented in the archival record. A Coeur D’Alene woman was described as “fairly well educated, healthy, speaks English and should be given her patent although she does not want it.” And one young man was “fully capable of caring for himself and should be forced to do so.”
Having a fee patent opened land to sale and subjected it to taxes. Millions of acres were lost. The economic and cultural hardship this wrought was incalculable. The large-scale conversion of trust patents to fee patents was also an affront to many Native people. The trust relationship between tribes and the US government was a mark of tribal sovereignty; a trust patent was also a hard-earned property right gained during the process of allotment. In 1930, the Nez Perce business council put it this way: the trust patent is “one of our tangible property-rights acquired in the transaction. For this and other considerations, we exchanged our lands, our independence, and our whole method of living, our economic system, and our national (tribal) identity.” Having their land held in trust was thus deeply important.
Many Native people, such as Neda Laura Parker, a Comanche and the granddaughter of Quanah Parker, did not want fee simple titles. People like Parker took their claims to court and successfully sued many local counties for illegal taxation. One sympathetic Department of Justice noted when working on one of these cases that “counties have enriched themselves at the expense of the Indians.”
Individuals sued counties and in many cases received refunds for taxes collected, but in most cases the land was lost. A tax refund was a measure of justice but it was not a solution. Counties were certainly liable for refunding money on land that they had unlawfully taxed. But the US government was ultimately responsible for issuing fee patents in the first place.
There has never been a reckoning. As the Kiowa, Comanche, and Apache tribal council put it in 1934: “We know of no other way the Government could reimburse [those who had lost land] except by making a survey to ascertain the loss the Indian actually suffered, and appropriate from Government funds such amounts as would be necessary to pay them for all losses sustained.”
The sale of individual Indian land took off again in the years after World War II when the US government again tried to assimilate Indian people by taking away land.
Like before, Native people fought back. In early 1960, after spending years working to stem the sale of his tribe’s land, John Woodenlegs, the president of the Northern Cheyenne tribal council, could relax. But just a little. The Northern Cheyenne’s land purchase program—what they called “unallotment” in a pointed reference to the US government’s disastrous program of breaking up tribal land—was having some success. Woodenlegs understood that some individual Northern Cheyenne wanted to sell their land; they needed money or the land was no longer of use to them. But he also knew that with every sale to a non-Northern Cheyenne the reservation would slowly disappear. Now, he had convinced many to sell their land to the tribe. He knew that selling land was, as he put it, the “first step toward termination.”
Woodenlegs’ comment regarding termination was apt. Over the previous decade the US government had been trying—again—to get out of the Indian business, to terminate tribes’ sovereignty and end the trust relationship between Native nations and the US government. Once again, US Indian policy turned toward assimilation. Taking land away was a tried and true method.
Was the US government liable? Why did the US never take responsibility? To answer those questions, tribes, with the help of legal aid organizations like the Native American Rights Fund and Evergreen Legal Services, and in some cases the Bureau of Indian Affairs, began to compile evidence in the 1970s to file forced fee claims. While the claims process went more or less nowhere, more than 10,000 potential forced fee claim cases came to light. There are likely many, many more.
My work with IATH will revolve around the digitization of historic, publicly available government data heretofore only available in analog form, in combination with General Land Office patent data. I will digitize a large cache of quantitative data that now only exists in paper in an unwieldy and difficult to use format. Once digitized I will use the data to understand, among other things, where and under what conditions land sales were more or less prevalent. The digitized materials will allow me to map land loss and retention. Once the dataset has been created I will make the quantitative data, now locked away in paper (and in PDF)—and thus largely inaccessible and of little value—accessible and useable to others. I would like to develop a methodology that would allow for other data sets, of which there are untold numbers in archives and government documents, related to American Indians, to be similarly unlocked and made available for research.