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4 NARF Legal Rev. 1 (1977)

handle is hein.journals/narf4 and id is 1 raw text is: Eastern Indians Assert Legal Claims to Land: Based On 1790 Act The assertions of tribal claims to the lands in the Eastern United States have commanded the greatest attention and least understanding of any Indian-re- lated issue to arise since the takeover of Wounded Knee in 1973. During that year, politicians decried extra-legal activities, often reacting violently to the image of M-16-toting Indians, and challenged In- dians to take their collective case to the courts to test the validity of their historic claims. At that time, the Indian people in Maine had been pursuing tribal claims to their original homelands for nearly a year in the federal courts. Their case, which has become the cause celebre of the Eastern Indian land claims, was gener- ally ignored by officialdom and unknown to the public, whose interest is rarely aroused by the quiet pursuit of remedies through legal channels. In the post-termination era and for the first time in the history of the Fed- eral-Indian relationship, Indian gov- ernments and individuals have access to the courts through their own attorneys' vigorous advocacy and through the fed- eral government's recognition that, as a matter of law, not practice of policy, cer- tain cases must be brought. Indian people throughout the country, following the advise and example of the increasingly litigious non-Indian society, have taken a collage of cases into the courts at an ac- celerative rate in recent years. Legal as- sertions of longstanding tribal claims to land, water and other res oirce have re- sulted in numerous affirmations of In- dian rights and equall5 numerous at- tempts to disiiiantle decisions favorable to the Indian interest. Indian advances in the court have pro\ ,ded a national -oap- box for demionstrat ions of demogogic skills by o ie politicians who, in 1977. raie the -pectre (dan arnipotent Indian people brandishing weapons fashioned of legal technicalities and documents of an- tiquity and taking aim at the heart of private and corporate holdings. While this reaction has accompanied most re- cent assertions and confirmations of tri- bal rights, it is particularly prominent in the areas of Indian fishing rights in the Northwest, Indian water rights in the Southwest and Indian land rights in the East. Court victories of the tribes in the East have evoked a flurry of political acts and rhetoric, the substance and timing of which indicate both the range of ignor- ance of the facts surrounding the cases and the lack of allegiance to the process defined by the American system of jus- tice. In the Congress, the potential for legal return of tribal lands has been cal- led the controversy of the decade. Bills have been proposed to retroactively ratify the illegal transactions through which the tribal lands were taken-thus, by the rewriting of history, the bills' sponsors suggest that the legislative branch should deny the Indians their voice before the judicial branch. Woven into and throughout the fabric of the land claims controversy is the thread of a policy articulated in another era-might makes right. In the name of practicality, more than one public rep- resentative has measured the value of justice against the cost of property, opted for the latter and recommended unilat- eral extinguishment of the rights of In- dians. Those endorsing this approach may threaten more than the rights of In- dian people by their view that the Ameri- can judicial system cannot withstand the test of large and difficult cases. Eastern Indian Land Claims The Historical and Legal Basis for the Claims ................. 3 Case Law Development Regarding Applicability of Such Defenses as Adverse Possession .......................... 4 NEW YORK: Cayuga, Mohawk and Oneida Claims ............ 5 MAINE: Passamaquoddy and Penobscot Claims ............... 9 SOUTH CAROLINA: Catawba Claim ........................ 16 CONNECTICUT, MASSACHUSETTS and RHODE ISLAND ................................... 19 Conclusion ................................................. 21

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