Keeping Indian Claims Commission Decisions in Their Place: Assessing the Preclusive Effect of ICC Decisions in Litigation Over Off-Reservation Treaty Fishing Rights
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Keeping Indian Claims Commission
Decisions in Their Place: Assessing the
Preclusive Effect of ICC Decisions in
Litigation Over Off-Reservation Treaty
Fishing Rights
Michelle Smith* and Janet C. Neuman**
I. INTRODUCTION: INDIAN CLAIMS COMMISSION DECISIONS AND
PRECLUSION OF FUTURE CLAIMS
Congress established the Indian Claims Commission (ICC) in 1946 as a
forum to adjudicate claims by Native American tribes against the United
States.' Between 1946 and its termination in 1978, the Commission decided
610 tribal claims and awarded over 800 million dollars in compensation to 170
tribes.2 Although the ICC's remedial authority was limited to monetary relief
for claims arising prior to 1946,3 recently, tribes seeking to establish or enforce
treaty rights have been confronted with arguments that their current claims are
precluded by those earlier ICC findings and settlements.4
Indeed, the evidence used by the ICC to quantify monetary compensation
due to tribes, and the settlements actually received by tribes, do often implicate
treaty claims that tribes have asserted in subsequent litigation; this is because
* J.D., 2008, Lewis and Clark Law School.
Professor of Law, Lewis and Clark Law School. Professor Neuman thanks Sarah Liljefelt
for research assistance.
1 Indian Claims Commission Act of 1946, Pub. L. No. 79-726, 60 Stat. 1049 (1946)
(originally codified at 25 U.S.C. § 70 and 28 U.S.C. § 1505) (omitted from 25 U.S.C. § 70 on
termination of Commission on Sept. 30, 1978) [hereinafter ICCA or the Act].
2 LINDA S. PARKER, NATIVE AMERICAN ESTATE: Tm STRUGGLE OVER INDIAN AND
HAWAIIAN LANDS 133 (1989).
3 ICCA, supra note 1, § 2 (limiting claims to those accruing before the Act's date; directing
the Commission to make proper deductions and offsets from the quantum of relief); id. § 19
(directing the Commission to submit the amount thereof' with its final determination); id. § 22
(providing authority to Congress to appropriate such sums as are necessary to pay the final
determination); see also United States v. Dann, 470 U.S. 39,45 (1985) (inferring that the ICC
was limited to providing monetary compensation); State ex rel. Martinez v. Kerr-McGee Corp.,
898 P.2d 1256, 1258 (N.M. Ct. App. 1995) (The ICC's jurisdiction was limited to monetary
compensation for loss; it could not vindicate or establish Indian title by declaratory or injunctive
relief.).
4 See, e.g., Arizona v. California, 530 U.S. 392 (2000) (state parties raised preclusion
argument against tribe).](ViewImageLocal?handle=hein.journals/uhawlr31&div=19&collection=&method=preview&ext=.png&size=3)
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