Land Ordinance of 1785

[Fred Gedicks]

It's clear from Ed's post that he knows a great deal more about this issue than I do.  I will add that Ernest Wilkinson's representation of native American tribes is now controversial, if it wasn't at the time.  For example, some of his legal work involved decertification of the tribes, which apparently was thought to be in the tribes' best interest under some theory plausible at the time.  Things look different now.  Last year's order of the Coif lecture, published in a recent BYU Law Review issue, provides a critical look a some of Wilkinson's work and the influence that Mormon theology might have played.  Wilkinson did indeed make a great deal of money off of the representation, and was reported to have served his nearly 30 years as president of BYU for $1 a year.  Wilkinson was an extreme conservative whose effort to protect BYU from "liberal influences" sometimes took extreme form; on the plus side, it was Wilkinson who convinced the LDS church to dramatically expand the physical plant and student body at BYU.  There remain those on campus who believe that he was  overpaid.

Again, this seems off topic for this list, if the monitor wants to cut it off.

Fred Gedicks

>>> Ed Darrell <EDarr1776 at AOL.COM> 08/23 11:48 PM >>>
In a message dated 97-08-23 19:34:18 EDT, gedicksf at LAWGATE.BYU.EDU (Fred
Gedicks) writes:

<< I'm not certain, but I don't believe so.   I'm not well-informed on this
issue, but my impression is that although Brigham Young was relatively
enlightened for his time in the treatment of native Americans, the state of
Utah since admission to the Union has not distinguished itself in this
regard.

 Fred Gedicks

 >>> "Craig B. Mousin" <cmousin at CONDOR.DEPAUL.EDU> 08/20 9:15 AM >>>
 Fred:

         Just one quick question, but have any of those folks who have lost
 trust with the federal government and the promises to trade land united
 with Native Americans to seek ways to ensure that the federal government
 lives up to its promises?

 Craig Mousin  >>

The issues are somewhat different, in most cases, I think.

Side note:  I understood that the late president of BYU, Ernest Wilkinson,
made his fortune as a lawyer representing an American Indian tribe against
the federal government in a land case.  His fees for winning the unwinnable
suit allowed him to serve as president of the university for $1 a year.  We
never talked about that part of his life, so I can't vouch for it.  Can you,
Fred, shed light on what the issue was?

Factual differences:  Many of the tracts that Utah now wishes to exchange or
develop were thought to be worthless by Utahns from statehood in 1896 until
the oil boom of the late 1970s.  There was no great pressure from inside the
state to make exchanges of one tract of "worthless" land for another.  In
1932 the federal government offered to turn over all public lands in the
state to the state government, but the governor (Maw?) refused on the basis
that the costs would be greater than the value.  By 1932 most of the lands
had been grossly overgrazed and were in sore need of repair.

Indian lands and rights in dispute usually involve traditional uses assured
by treaty but ignored or made impossible in fact.  Some of the later treaties
assuring buffalo hunting  are impossible.  Regardless, these are uses the
tribes would have valued through the entire time since the treaty.

Perhaps the sharp differences can be seen in places like Black Mesa -- where
the traditional Native American view was the sacred mountains should not be
mined; the school land controversy assumes the states want to develop the
land.

Legal differences:  Treaties originally were regarded as agreements between
the U.S. and essentially foreign governments.  Consequently, the U.S. could
meet the demands of the Kaskaskia tribe that a Catholic chapel be built in
return for the Kaskaskia's deeding Illinois to the U.S., without running
afoul of the establishment clause -- it was a deal with a foreign government
affecting domestic religion not at all (the tribe had been converted to
Catholicism at least a hundred years earlier by LaSalle).  Statehood assumed
a much different relationship.  Can tools useful for enforcing treaties be
used to make the federal government trade lands with a state?  How solid are
the states' claims that the federal government must trade value for value for
parcels now surrounded by protected federal lands?  How can that be
analogized to the tribes' situations?

Despite some lands being locked away from productive use, Utah was able to
achieve status as "most educated" for a period through the 1980s with a mean
educational achievement of 12.8 years of schooling.  It appears that
alternative sources of funding were found.

In sum, the issues with tribal treaties and state school lands probably are
not related closely enough to allow a union of interests.  In fact, I recall
that some state school lands are surrounded by reservation lands in Colorado,
New Mexico, Arizona and Utah.  States and tribes might just as easily be
opposed to each other as united.

NPR's reporting on the anniversary of statehood for Hawaii included  a
lengthy piece on education carried out from funds set aside by the will of
the last Hawaiian queen, who ordered income from some lands be used to
educate Hawaiian natives.  With the news from many states posted on this list
that lands were set aside for education in areas outside the original 13
colonies, I thought it interesting that the practice was carried on in some
form for the last state to win admission, 170 years after ratification of the
Constitution.  Education was important even in 1959.

Ed Darrell
Duncanville, Texas