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SEM 217
Interviewer: Harry Kersey
Interviewee: Bobo Dean
K: Today is October 30, 1998. I am Dr. Harry Kersey of Florida Atlantic University.
I am interviewing Mr. Bobo Dean in Washington, D. C. Over the last thirty
years, Mr. Dean has been closely associated with Buffalo Tiger as an attorney
for the Miccosukee Tribe of Florida. Mr. Dean, I would like to know some
general background on how you became associated with Buffalo Tiger. How did
you get involved with the Miccosukee's efforts to protect their lands?
D: Well, back in the late 1960s, I was working as an associate with the law firm--
which was then known as Strausser, Spiegelberg, Creed, Frank, and
Kempleman. [I was working] with the Washington office of that firm. The office
is part of the firm in New York. The firm was founded by Felix Cohen, who is the
acknowledged authority and, in some respects, almost the creator of federal
Indian law through writing his treaties on federal Indian law. Mr. Cohen was an
expert in Indian law and immigration and had started the office of that firm here
in Washington. His first two associates were Richard Shifter and Arthur
Lazarus, who have been leading authorities in Indian law. I came to work for
the firm in 1965 and, at that time, the firm was council to a nonprofit organization
called the Association on American Indian Affairs. This organization has been
very prominent in the history of Indian affairs and is still a leading nonprofit
organization. The firm did not represent the Miccosukee Tribe directly, but it had
provided assistance to the Tribe in organizing its Tribal government in the early
1960s through the efforts of the Association The director of the Association,
Laverne Mattican, whom I did not know because, I believe, she had passed
away. When I came on board, Bill Biler was the director, and Bill had worked
very closely with Buffalo in the period when the Association assisted in their
organization of a tribal government under the Federal Indian Reorganization Act.
You may know the background and Buffalo's involvement in that, but it is a
dramatic story which I was not personally involved in. My understanding is that,
having refused to have any real dealings with the federal government, the
Miccosukees along the Tamiami Trail decided in the early 1960s that it was time
to make clear that they were not part of the larger Seminole Tribe, which had
been organized already under federal law, and to take the step of adopting a
constitution. While that was not unanimous--and there are still, I believe,
Indians of Miccosukee descent who do not join the Tribe because of political
reasons--that step was taken. The Association asked the firm, from time to time,
to do work for the Miccosukees. As a young associate who came to the firm
mainly to work on Indian matters, was assigned, usually by Arthur Lazarus, to
assist Miccosukees on various matters that came up, most of which I cannot now
remember the substance of them. In 1970, you have seen the file on this, and
there are some key papers in there that I want to make sure you have focused
on, in general, what happened was that we had a call from Bill Biler. [He told
us] that Buffalo and the Tribal Business Council had decided that the school and
other Bureau of Indian Affairs programs, which had been started by the Bureau
after the Tribe organized or at the same time that the Tribe organized in the
early 1960s, could be run better if the Tribe were running them, rather than
having the BIA superintendent in charge. I forget the name of the
superintendent, but he was a Creek from Oklahoma. I know that one of the
concerns was that he chose to live in Homestead, which was a long way from
the Miccosukee community. The Association asked Strausser-Spiegelberg, and
I was assigned the job of assisting the Tribe in determining whether or not it
would be able to contract for the entire BIA program at Miccosukee. I knew and
had done some work for other tribal clients related to so-called BIA Indian
contracts, which, under the ordinary procurement laws, the BIA was enabled
because they could give a preference to tribes under BIA Indian to contract
various aspects of their program. In general, that had been like laundry
services, but also law enforcement. The Bureau had, not infrequently,
contracted with the tribe to hire policemen and so forth. As of 1970, there was
no situation in which an Indian tribe had entered into a contract to run all of the
federal programs provided through BIA. There were two instances I can recall
that were supposed to reflect the new policy of allowing tribes to run those
programs that the BIA typically do.
K: The so-called Indian Self-determination.
D: That is right. That term was not yet in a statute. There had been in the statute
since the nineteenth century a provision allowing the BIA employees to work
under tribal direction. It was an old statute almost never used. In two instances,
at the pueblo of Zuni and the Tlingit and Haida, by 1970, that had been utilized.
From the Bureau's point of view, that was their great breakthrough, that they
were allowing the Tribal Chairman to give direction to the BIA superintendent,
but all the employees remained federal. That was one option to achieve what
the Tribe wanted. In looking into that, I discovered that there were many who felt
that this was a phony, that it is was not real self-determination. I do not know
that in terms of my own personal knowledge, but I heard that. We decided, in
consultation with Mr. Tiger and the Business Council, simply to submit a
proposal to contract for everything that could be contracted, which would be
primarily the school but, also, there was some other resource management and
some other small programs. We also proposed to contract for the salary they
were paying the superintendent and pay Buffalo to administer the programs.
Later, I will show the documents that I regard as being key. The person I was
referred to in the Bureau was Bill King. I want to mention three individuals who
I regard as being key in this, what really was an, epic-making new initiative. Bill
King, Ernie Stevens, Sr., and Sandy McNab were, among a few others,
described as the young Turks in the BIA, under Louie Bruce.
K: Bruce was later commissioner?
D: Yes, he was commissioner. They were looking for ways to turn a new leaf and
really allow tribal governments to function as governments. I called Bill King and
described what the Miccosukees wanted to do, and he told me, this is just what
the Nixon administration is thinking of, we are about to send a message. That
was Nixon's message to Congress in 1970. It was just about to be signed off.
They were going to propose to Congress that any tribe that wishes to can give
us a notice, and then the tribe can take over and operate the programs within, I
think, 90 or 120 days, some specified time period. They were delighted that a
tribe is interested in doing this, and [he said that they would] work with us. With
the help of Bill King, McNab and Stevens, all of whom got involved at some
point. Tony Lincoln who also deserves credit and who later was the Navaho
area director--who, on one day, was the acting commissioner. Mr. Bruce was
out of town. We presented the tribe's plan, and Mr. Lincoln signed a letter--this
was in early 1971, after the message had gone to Congress--that this year, we
will contract with you, and the budget will be based on the unexpended amount.
It was a definite commitment that the Bureau would do this, and Mr. Lincoln
signed it for Mr. Bruce. Then, we sat down and began to negotiate terms and,
as we got towards the spring, in that period, there was one obstacle after
another. I think the letter from Lincoln is a key document. Also, the question
was raised by the associate solicitor, for procurement of patents and this
associate solicitor for Indian affairs, as to whether there is legal authority. After
all, we have asked Congress for this legislation and, until we get the legislation,
we cannot do this. The position that we took is, well, you have got procurement
contracts with the tribes to run police departments; why can they not do
everything? There is an area of things that cannot be contracted, so-called
inherent federal functions, and we knew that at the time, but most things that are
done at the agency level are not. So, why can you not contract everything in the
agency. Those things that cannot be contracted can be pulled back, and the
area office can do that. The associate solicitor took the position that there was
no authority to do this with a tribe but that if we relied upon the authority of the
Johnson O'Malley Act, which had been passed in the 1930s, and authorized
contracts by the Bureau with private corporations to provide educational and
social welfare services to tribes. It really was not a self-determination act. It
was to let the Bureau go out and contract with some, maybe, non-Indian private
entity to provide those services. If we did that, if we had a nonprofit corporation,
then the contract would be legal. So, we recommended to Mr. Tiger that, rather
than fighting this point, we simply form a corporation. There was authority that
tribes have the inherent authority to charter corporations that are distinct legal
entities from the tribe. The solicitor had already ruled in favor of that position.
So, we drafted a charter for the Miccosukee Corporation, and it was
incorporated, or chartered, by the Business Council under its inherent authority
as a tribal government. We brought that charter back, and so the associate
solicitor said that was fine. I believe there is a letter in here which was an
opinion by the associate solicitor for procurement and patents who said there is
no legal authority to do this. There was discussion with him, and he was turned
around. A few days later, he withdrew his objections. Then, there were
problems with the department. Harrison Lesh was at that time, I believe, the
under-secretary above the commissioner. In the office of Survey and Review,
they questioned whether there was legal authority to do this. So, each time
these obstacles or problems came up, I would either communicate with Mr. Tiger
or he would come up here, and we would have meetings. I became increasingly
irritated. Mr. Tiger, having been faced with this sort of thing from the
government all of his life, was very patient. I will make one possible side. I keep
referring to him as Mr. Tiger. That arose out of my concern that when we met
with government officials, they would always call him either Buffalo or Buff, as
though they were great personal buddies. That struck me as inappropriate, so I
felt, as his attorney, I would always call him Mr. Tiger. The unfortunate result of
that is that he took up the practice of calling me Mr. Dean. I think we still are on
that, although I feel that I know him well enough now to call him Buffalo.
K: If it is any consolation, it took me ten years to get away from Mr. Tiger.
D: [Laughs.] But, in the context of negotiations by the Tribal Chairman of the
Sovereign Indian Tribal Government, I felt the way that they behaved towards
him was inappropriate, and I tried to make that clear. There is, again, in this file
a long letter in which I recited--and this is probably in March or April of 1971--to
Mr. Tiger the latest obstacle, and it tells all of the things that we went through. I
will not repeat that, but I think your taking a copy of that letter would be useful
because that tells the story up to that point. What we had done, finally, was to
negotiate an agreement with the Bureau, and we were then told that unless this
was approved by the authorizing and appropriations committees of the
Congress, the Bureau would not honor the commitment that had been made in
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the letter signed by Mr. Lincoln. They would conclude that the Congress did not
want them to do this. We did a substantial amount of lobbying with the Florida
delegation. We had correspondence from Senator Gurney, which is in the file,
and I think a key was Haley, the congressman from Fort Myers [James Henry
Haley, Dem. Congressman, 7th District]. He was the Ringling Brothers manager
and had been an acrobat, I believe, a fascinating person--met with us, was
convinced it was a good idea, and wrote a really sharp letter to the department
that they ought to get on with this.
K: Was he still, do you recall, chairman of the committee at that time?
D: He was chairman of the committee that was responsible for Indian affairs, so he
was a key player. Ultimately, there was a lot of Congressional pressure, and the
committees approved it, but they did require this approval. Now, in all of this
negotiation, basically, the main program was the school. That is where most of
the money went. We had started in the summer of 1970, before the school year
started. We negotiated up until May and when the contract was finally signed
and put in effect, I believe, it was like three or four days of the school year were
left. But, they did go through with it. They turned over the programs to the
Tribe, and the Tribe has operated all the Bureau services from 1971 to the
present.
What I would like to add is that, basically, the philosophy of the Miccosukee
contract, as distinct from the Zuni and Tlingit and Haida, was the view that if the
Tribe was paying the employees, then they would have a handle on what was
going on. As long as the employees were federal, they would be worried about
what is the federal position. If the Tribe could hire and fire, they would really
control the programs. A number of people, some of them with definite hearts in
the right place said, why did the Bureau pick a tribe like the Miccosukee?
Maybe they picked them, and I want to say--and how you deal with this is up to
you--that at that time, the average educational level in the Miccosukee Tribe was
the second grade. People thought they were not going to be able to handle it.
What happened was--and it was due to the wisdom of Mr. Tiger and the
business council--that the Tribe did not try to employ tribal members who may
not have had the skills at that time. They brought in some non-Indians. They
have continued to not be reluctant to employ non-Indians where they felt that
they did not have, within the Tribe, the necessary skills. The handle they had on
the non-Indians, however, is that they could hire and fire them, and they have
fired people when they did not do what the Tribe wanted. Then, from 1971-
1975, the Miccosukee Tribe, together with a number of contract schools, were
the pioneering of doing self-determination through a contract. On the Navaho
Reservation, a number of local school boards contracted their schools at Pine
Ridge, and around the country, there were other schools. Again, that was a
situation where the money went to the tribe or tribal organization. They would
hire the employees, sometimes using Intergovernmental Personnel Act
assignments, so that people would stay federal, but often hiring them.
Meanwhile, the administration's request languished in the Congress and partly
because of the tribal feeling that the proposal in the Nixon Administration was
too revolutionary. It did not allow the Bureau to refuse to contract even if it was
convinced that the tribe was totally incapable of administering the program. It
was entirely up to the tribe. That was the young Turk approach to this. What
ultimately happened is at the Bureau, Louie Bruce said, look, we are not getting
anywhere with this. Let us try something more modest. Brice Lay, a former
superintendent with whom I met with several times, drafted a bill which would
eliminate contracting problems and the concerns in the department that this was
beyond what they had authority to do. That bill was sent as a compromise. That
would have basically authorized, expressly, what we were doing at Miccosukee.
The key to the Indian Self-determination Legislation, as it was finally adopted,
and I cannot take credit for this. I reviewed and made suggestions and
consulted with Mr. Tiger about how we should get this legislation done. Another
attorney for the Rayma school board, Mike Gross--the Rayma school board was
a contracting school--proposed in his testimony that, where the bill said, the
Bureau of Indian Affairs was authorized to contract, they changed it to
authorized and directed to contract. With that direction came a provision
allowing the Bureau to decline to contract based on specific standards. To me,
that has been the key to the success of 638, as it became known, public law 93-
638. The Bureau and the Indian Health Service, which was also included, gets a
tribal proposal. They look at it, and there are certain things that they can ask for.
They can decline but, initially, only on three grounds, the main one being that
the services would not be satisfactory. Then, they have the burden of
establishing that in an appeal, which now would go up to the board of Indian
appeals or ultimately to a court. There is also a declination on trust resources
which would not be protected. Then, if the project could not be properly
completed or maintained. Later, legislation has added a couple of other
declinations. There are five. It is very difficult for the Bureau to exercise its right
to decline. It really has to show some real inadequacy, which probably means
that the tribe should not be contracting. Normally, the Bureau will follow, of
course, the least resistance and not decline. That has been the experience.
That legislation was passed in 1975 and became the Indian self-determination
act. I think of the contracts that took place prior to 1975, the Miccosukee tribe's
contract and the various school contracts were the precedent and led the way in
that. That makes Buffalo's role in self-determination very important.
K: Was he an active participant?
D: Absolutely.
K: The question is always raised. Here is this mountain of correspondence,
obviously not written by a man who has limited formal education, so the question
is always raised, just like it is raised with historians. Are you really presenting
their point of view, or have you tidied it up? What is your feeling of that? You
were so close to him.
D: What I can say is that I meticulously, I think he would agree with this, followed
his direction. I, of course, cannot speak Miccosukee. The client, although more
Miccosukee speak English today, in the 1960s and early 1970s, many older
Miccosukees were not fluent in English, and Buffalo was the person who
communicated their wishes. The contracting was, in fact, a political issue. It
was Buffalo who led the Tribe and persuaded the Tribe. In an election, I think in
the early 1970s, there was an opposition, and the vote came out for Buffalo,
which was a sanction from the Tribe for going forward. So, I would have to say
that Buffalo is far wiser and far more effective than many people that I have
worked with in Indian Affairs, many of whom are federal and some tribal officials,
or folks, and who are far more fluent in English than he is. I worked closely
enough with him to be absolutely convinced of that.
K: So, the fact that the letters were drafted by you, it still reflected his point of view
totally.
D: His direction, exactly. That is correct. The point is that I did for the Tribe and
Mr. Tiger what lawyers typically do. Notwithstanding the great prejudice against
lawyers, lawyers have certain skills. You do not have to be a Miccosukee not to
have those skills. The average person on the street cannot write a will that will
work. Therefore, I have always felt that our profession did provide a useful
service. Sometimes, it charges to much. I would like to recite one incident
which I have always remembered. It was a meeting that the Bureau had, and I
believe it was after the enactment of the legislation. It was the process of
developing regulations. It was one of the first meetings on that. Two tribal
chairmen spoke after the Bureau explained how they were going to go about to
develop regulations and guidelines and so on. One of those was the chairman
of the Mississippi Band Choctaw Indians, Chief Martin, who is still their
chairman. Chief Martin was an outspoken supporter of self-determination, and
he basically blasted the Bureau. He put on quite a show and blasted the Bureau
for trying to cut back on rights which, of course, the Bureau has always tried to
do. On the other hand, the chief of the eastern band of Cherokees, who was
then a Mr. Crowe, spoke and denounced the act and said that this is just like the
termination legislation and that no consultation had taken place. He called it the
Indian Self-termination Act and did not want to have anything to do with it; the
federal government should forget about this and so forth. So, you had these two
significant tribal leaders taking opposite positions. It was actually a meeting, a
briefing, for eastern area tribes. Then, I remember Mr. Tiger getting up and
saying, now, I have great respect for my good friend, Chief Martin. [Then he
continued], I really think that everything that he said was very good, for his tribe,
and I have a lot of respect for my good friend, Chief Crowe, and I think
everything he said was really good for his tribe. The thing that we need to be
clear on is that each tribe has the right to follow its own way. His speech, which
was longer than what I have reported, but that was the gist of it, calmed down
that consultation meeting. The point gradually emerged that you did not have to
contract if you did not want to. This was not something being forced on tribes,
but it would give tribes an option to contract. I have watched him, in many
instances, play that kind of role which, to me, was impressive in terms of his
understanding of the people that he was dealing with, in what I would describe
as wisdom, which has very little to do with formal education. I think of the old
expression about educated fools. People can have many degrees but not really
have a perception about the people they are dealing with or not be able to
communicate effectively. The tribe has gone on. It has always been in the
forefront of self-determination; played a role in amendments to the act to
strengthen it; submitted testimony; played roles in the development of better
regulations; and continues to do that.
K: That is a wonderful summary of the self-determination. Maybe we could move
on. There are other items that I listed for you to look at. Of course, the
mammoth one here, other than what had transpired in 1970 and 1971, has to be
the act of 1982, in terms of finally establishing an agreement. Would you agree
with me that these are ?
D: Yes. Yes, the land situation.
K: That took a long time in coming to, as I recall, because there was a lease in
1960, or they thought they had a lease. Then, the Attorney General's position in
1975 that said that there were some problems in how that lease had been
granted and threw the whole thing back up for negotiations, I recall.
D: It was a license, basically. It was revocable license. One thing I recall, and you
may have come across this, is that Governor Collins was involved in meeting
with them. The idea was that this land which was north of the Tamiami Trail--
you are familiar with the establishment of the park and how the Miccosukees
were basically living in what became the park. The legislation establishing the
park had a proviso that this would not affect Indian rights. Then the park service
was prepared to move them out anyway and ultimately agreed that they would
have this little 500-foot strip on the northern edge, which is where the community
is. Then, across the Tamiami Trail was this undeveloped area which the
Miccosukees wanted to have some rights to. They also had rights in the so-
called State Reservation, which is now called the Alligator Alley Reservation
because Alligator Alley runs through it. That had been a State Reservation
provided to all the Florida Indians, and that ultimately was interpreted as
meaning the Seminole Tribe and the Miccosukee Tribe as the two organized
tribes.
K: I think the legislature finally officially divided them.
D: That is right. It was ultimately partitioned. I believe, at the time it was
partitioned, the state authorized the transfer, if they wanted to, to transfer it to
the federal government so it would become a Federal Reservation. The problem
with that reservation is that the Miccosukees did not live up there. The area they
were more interested in was the area right across the road. The revocable
license was something that was issued before I had any contact with the
Miccosukees, but that was one of their problems. Their rights in it were very
limited, and it was revocable. So, there was an effort to negotiate a perpetual
lease agreement. Ultimately, we advised the Tribe to file a suit.
K: That was the 1979 suit.
D: That is right. The negotiations were not getting anywhere. The Tribe really did
not want to sue. It had a policy. It did not want to sue the state, but basically
decided to do it because we were not getting any place in talking with the state.
I think what is interesting is a key to the leverage was a legal issue which we
uncovered and described to Mr. Tiger and the Tribe that we felt should be
raised. That involved the so-called 1839 Reservation which was, in a sense, the
Treaty which ended the Seminole War. It was in 1839 and then later reaffirmed,
I believe, in 1842 by the military, signed off on by the military commanders. It
had never been approved as a treaty by the Senate, but it was an agreement.
K: This was Macomb?
D: The Macomb Settlement. The effect of that was that, basically, the war would
be ended with the boundary for the Miccosukees behind which they would
withdraw. There was also a buffer zone. It was essentially southwestern Florida
with a line going through the middle of Lake Okeechobee, I believe, following the
Kissimmee River for a while and maybe the Caloosahatchee.
K: Then the Peace Creek over to Charlotte Harbor.
D: The Peace Creek, that is right. That whole area. Now, that area, of course,
included, by the 1970s, Fort Myers and Marco Island and a whole bunch of
places of very valuable real estate. We discovered a wrinkle, that pursuant to
that agreement while it had not been approved by the Senate, the lands had
been withdrawn from the public domain and set apart for the Indians by, I think it
was, President Tyler. Anyway, it was presidential order that withdrew the lands
from the public domain so that folks would not go in and stake out claims and
disturb the Indians. The last Seminole War was in the 1850s.
K: 1855-1858.
D: The so-called Billy Bowlegs outbreak, and that resulted from folks going in and
surveying in his farm and caused him to fight. Then, he and some other Indians
were then removed. But, at the time that surveying took place, the land had not
been restored to the public domain. There is no evidence that the lands were
ever restored to the public domain. So, our suit claimed that these lands were
not in the public domain. Therefore, although the Indian Right of Occupancy
could be terminated, it had never been terminated. We actually were able to get
in the Miami Herald and other papers maps that showed this area. That did
have an impact. This was after the main case had come up, and title companies
were very upset about Indian claims. While the Miccosukees and Buffalo had
explained to me, their policy of not wanting to be confrontational in dealings with
the state, they did go along with applying this pressure. And, it worked, and we
began to negotiate toward a settlement. Ultimately, there was what is called the
Florida Indian Land Claims Settlement Act of 1982 in which the tribal rights
under that executive order of 1839 were relinquished, except with respect to
certain areas. The areas that the Tribe got confirmation to was its part of the
State Reservation that was federalized as a result of the settlement. Also, a
perpetual leasehold in the so-called license area. What was not resolved was
the status of the lands within the Everglades National Park, the permit which,
initially, had been issued to the BIA and then later issued to the Tribe. Very
recently, Congress has enacted legislation that does change that status and
resolves the rights of the Miccosukees to remain within the park. That was just
this year. That was something that was still pending. The 1982 legislation was
a major step in achieving what the Tribe had wanted in terms of having some
permanent land they could regard as their homeland.
K: The Macomb Treaty Claim was also part of the Seminole Tribe's action, but the
Indian Claims Commission dismissed that.
D: That is right, and the distinction there was the nature of the claim. In the Indian
Claims Commission, it was a claim that this land had been taken and, therefore,
the Tribes are entitled to compensation. That was decided by the claims
commission; they were not entitled to compensation which is probably, under the
law, unfortunately, a correct interpretation. The principle was that the rights
accorded by that treaty, or that alleged treaty, did not provide compensable
rights. It provided a right of occupancy, but the federal government can take it
back, as they can take Aboriginal Title without compensation, but Congress does
not provide especially for compensation. That was a tragic failure of Felix
Cohen in, I think it is, the Teton Case in the early 1950s in which the court held
the rights of Indians to occupy lands because they have occupied them from
time immemorial is not good against the United States as the sovereign. That
was a horrendously embittered, really sad point in his career. Of course, those
of us who are sympathetic to Indian Rights would think it was wrong, but it is now
the law. If the government has entered into a treaty or deeded land or, in some
way, recognized the Indian ownership as the 1982 Act did, then it is protected by
the Fifth Amendment, against taking without just compensation. The Aboriginal
title is not so-protected. That is embedded in the racist background of our
dealings with the Indians. We did not regard their ownership, under their laws,
as being good in what Justice Marshall called the courts of the conqueror.
K: You bring up Justice Marshall. I am not an attorney, but I know a little bit about
Marshall. Even in his, Johnson D. Mclntyre's decision, where he talked about
inherent rights and inherent sovereignty, it seemed like it was sort of a halfway
recognition.
D: It is halfway.
K: He said we have it but now, if you want to sell your land, you have to sell it to the
government.
D: That is right.
K: It seemed like it had been
D: The protection is that the Aboriginal rights are good against a private party, a
private trespasser, or a private land company. What Marshall did establish was
that the sovereign--and that was based upon the practice of George II. This is
digressing, but my own feeling is that Marshall, in his approach to Indian law
matters, gets mixed credit. But, his approach was far better than that which was
taken by some of the justices on the court at the time, who basically took the
position that the Indians had no rights and needed to respect the white man and
said that in their minority opinions in Cherokee Nation. That is clear. Then,
Marshall, in the Wooster vs. Georgia, really laid the ground work for such Indian
Tribal rights as we have. It makes them clearly subject to federal law almost
completely, but in land, if they really do own it, then it is protected by the Fifth
Amendment just as your land or my land would be. The idea was that Aboriginal
title is really not ownership; it does not rise to the dignity of being protected.
K: So, they are really in much better shape, as you say.
D: If the land is held by the United States in trust for the Tribe, and the Tribe is the
beneficial owner, its ownership is as good as anybody's. The trust title is useful
because it helps to alleviate state control, protects the Tribe some from state
control, and gives the United States a trust relationship. There are some Indian
lands like the Pueblos in New Mexico, which have basically been treated, finally,
by American law in the same way as trust land, but there, the Pueblos hold their
land as grants from the king of Spain. The title is in the Pueblo, but the courts
held that the title was restricted, that the United States has the same role with
respect to those tribes and their lands as if it held the title. Essentially, that
enabled those Pueblos to have the benefit of Indian programs, rather than being
treated, essentially, as non-Indians. So, although it sounds like it is a
curtailment of Indian rights, it really was not. The curtailment would have worked
the other way because anybody could go in, then, and buy lands and ultimately
take the land away from the Indians. It has happened.
K: To bring us back to 1982 then, actually the act is a great advancement for the
Miccosukee rights?
D: That is right. That is my view. It did not solve everything. It was not perfect. It
was a negotiated settlement, so it did leave things but basically, the Tribe has
continued to work on that. I am wondering, one of the points in your question
here relates to the Alligator Alley issue.
K: Yes.
D: I can just briefly address that because that is in the background of the new, what
the Tribe has achieved, which I am not directly involved with. Although we were
in the early stages, Mr. Layton has handled the more recent negotiations
because there has been a new agreement with the state. When the decision
was made to build Alligator Alley, which would cross the Miccosukee
Reservation--that is the former state federalized reservation--the state came to
the Tribe and obtained what was called a drainage easement. They obtained
the right, the Tribe approved, for them to build a highway and to have a drainage
easement along the edge of the highway. The Tribe received certain benefits. It
was a negotiated arrangement. As a result of the work that we were doing, it
became our view that the state was using that drainage easement as a borrow
canal. The distinction is that the drainage easement is for drainage. The borrow
canal is to use the dirt for a productive purpose and, in fact, they used the dirt to
build the highway. The compensation provided to the Tribe was not nearly
enough to compensate them fairly for the borrow canal. So, back years ago, we
began to have discussions--and this was while Mr. Tiger was still the chairman--
with the state about reopening that issue. There are two anecdotes about that,
that struck me as interesting. One was sitting across from the state people at
the Department of Transportation and, I think also, the Water District, South
Florida Water Management, they were all kind of involved in this because the
easements passed back and forth. The Department of Transportation was an
ultimate officiary of it. One thing that I remember, sitting across from the state
officials and their saying to me, well, you just made a bad deal with us and, now,
you are trying to reopen it. You are just mad because you did not bargain hard
enough. That really was an admission to me that they knew that the
compensation that they had offered was not adequate. The other thing, when I
pressed them about borrow canal, one of the officials, and I cannot remember
which agency, looked at me with a very lofty face and said, well, borrow canal is
not a technical term that we use in our work. I have never heard anyone confirm
that, that statement made any sense whatsoever. He, in fact, said borrow canal,
what is a borrow canal? Well, the Tribe did pursue that and, as a result of filing
litigation with respect to additional compensation, after lengthy negotiations, a
settlement agreement was reached in which the state, I believe without admitting
any wrongdoing, has provided substantial additional land rights and
compensation to the Tribe.
K: Around $2.1 million, something around $2.1 million plus other rights.
D: That is right, plus other rights. It is unfortunate that it is necessary for tribes to
be litigious. The Miccosukee did have this policy and approach that they really
did not want to have to go to court, but it is not their fault that they had to go to
court in this case. I think that it was important that number one, there were
specific benefits and advantages that the Tribe wanted, and this was a way of
obtaining those. It is also important that the state recognize that when it deals
with Indian tribes, it has to deal not as though it is dealing with children but with
governments that have significant rights that need to be respected.
K: Two other points, briefly, that we might just talk about, and I know they go way
back, the items up at the top there, on the Jet Port and the Big Cypress
Preserve. I know you were involved in that, maybe not as much as you were in
the items we have been talking about. But, it seems like the Miccosukees
always seem to be in the line of fire on something like this. Do you have any
recollections of that?
D: I was not directly involved on the fight against the Jet Port, but I know generally--
and you would probably get better information from Mr. Tiger--but I do know that
when they built the preliminary runway, training site, they apparently built it right
over a sacred Miccosukee ground. There is no question that, notwithstanding
whatever boundaries the feds draw or the state draws, the area was an area
used by Miccosukees from time immemorial. They did not pay that much
attention to the boundaries, and their were Miccosukee villages within what has
now become the Big Cypress Preserve and the Green Corn Dance had been
held there. My understanding that the Green Corn Dance is not always held in
the same place, and that also the villages traditionally have moved. But, the
whole Big Cypress area was an area of Aboriginal occupancy and raises this
issue, that the title was not recognize. But, there was no question that there had
been, and continued, Aboriginal occupancy. I guess you know that in 1982, I left
the Creed-Frank firm, and I might fill this in. After doing the work for the
Association, the Miccosukee Tribe then hired us as its council, hired Strausser-
Spiegelberg as its council. Then, when I left that firm in 1982 and we founded
and Walker, for some years, the tribe used both firms. Arthur
Lazarus continued to give them advise, and I gave them advise primarily on the
BIA and contracting area. So, it may be that some of this, the Jet Port
was maybe that Arthur was more involved with. I do not remember that.
K: Some of your correspondence that I saw was, I will not say a superficial level
but, a minimal level of involvement.
D: That is right. What I was involved with is when the Big Cypress Preserve Act
was enacted, which ended the notion of building an airport out there and set it
apart as a wilderness kind of preserve. We represented the Tribe in obtaining
some specific language to protect existing tribal rights, including economic
rights. Then, there were regulations that were developed, and we represented
the Tribe.
K: That seemed to be a struggle to get that language. Senator Jackson seemed to
go back and forth on this a good bit. What was the problem?
D: Right. Well, with the statute, we did not have that much of a problem, but once
we got to the point of dealing with the Park Service, my recollection is--and I
have not reviewed the file on this but--the real bottom line issue was what were
the existing rights. In other words, are you going to take a narrow view and take
a picture as of the date of the enactment, what are Miccosukees doing right
now? Or, are you going to recognize that this is a process? One of the areas
which we did fight for, and I believe successfully, although I am not current on
exactly how it is working now, is that there were Miccosukee families who had
traditionally taken cypress poles because they had a business of building
chickees for the non-Indian market. Our position was that this was a traditional
use, that certain Miccosukee families were making. Another problem is that if
there is an existing village, if traditionally the villages have moved, or the
campsites have moved, then our position was that they can continue to move, in
other words, the pattern of use be maintained. A lot of the work on that was
done by Dean Swagey, in our office. He is now a council to our firm, but he is
an environmental law specialist. He was involved in commenting on and working
with the Tribe in that area. There have always been--and I am not sure if they
are all resolved--issues between the Tribe and Park Service in terms of the
administration of the Big Cypress. At least, there was recognition of the rights of
the Indians, both Miccosukees and Seminoles and unaffiliated. There are also
Indians there who are not members of either Miccosukee or Seminole.
K: Would it be fair to say, just looking back over these list of things we have talked
about, starting with the Jet Port and the Big Cypress and, certainly, the
contracting and leading on to 1982, that all of these were sort of a cumulative
build-up of sovereignty, in terms of reinforcing tribal sovereignty. It seemed so
to me and, from a legal perspective, you have pointed out a few flaws here and
there, but the cumulative effect is to enhance the sovereignty of the Tribe.
D: Let me make one comment, and then I am going to have to do this interview.
But one comment which I suspect is a continuing issue, and I see it raised from
time to time in questions that I get asked. In a sense, you can say that the
sovereign rights of the Miccosukee Tribe and their land rights are far more
embedded in the laws of the United States and of the state of Florida today than
they have ever been before, certainly in comparison, say, with the late
nineteenth century. On the other hand, in comparison with the late nineteenth
century, the Miccosukees are far more embedded in the American society. For
Miccosukees with a long memory, and my guess is that many of the older
people, particularly, do and some of the younger people, if they look back to the
pre-1960s period, that may be viewed as a kind of golden age. In particular, I
believe you have written about the period when they were really quite
prosperous because of the trade.
K: Hunting and trapping.
D: Hunting and trapping--and they were let alone. I remember back in the 1950s,
before I had any direct contact, I think, it was Ingraham Billy who was quoted in
the paper as saying, "Give us land nobody wants and leave us alone." Now, that
has not happened. The Miccosukees have not been let alone. I think a decision
made in the 1960s by the tribal leadership, more than just Mr. Tiger, but he
played an instrumental role in that, was that they recognized that they were not
going to be let alone. It was essential, if they were going to survive, to get
involved in, what the Indians like to call, the dominant society. That has led
them now to having a very successful gaming enterprise. It has led to an
economic base which is far advanced over what they had before, but at the
same time, requires a degree of acculturation which nobody was imposing on
the Miccosukees in the 1890s, or even down to the 1950s.
K: It is evolutionary.
D: That is right, and it is still going on. As always, the future is uncertain. I guess I
would like to leave you with one comment I always make when people have
asked me over the years. Something that I became aware of with the
Miccosukees is that they were determined to remain as a distinct community,
notwithstanding the relatively small size. One thing I have not mentioned that I
did is that I helped them develop a criminal and civil code, and a court structure
which functions. I wrote it up, a lot of it. But, I met with a law enforcement
committee---this would have been in the 1970s--most of whom were non-English
speaking. The present chairman, Mr. Cypress, interpreted. The decisions were
made by that committee, and we went through each and every provision, and
they would decide whether they wanted this or that. That was a really
enlightening experience for me. Some tribes have simply adopted codes without
even knowing what was in it, told the lawyer, well, give us a good white man's
code. The Miccosukees did not do that. I have been asked, what do you see in
the future of Indians 100 years from now? Will they not be assimilated? And,
basically, my answer has been no. I also say, when you ask that, you are
thinking about assimilation to American society as it is today. I have not the
foggiest idea what American society will look like 50 or 100 years from now. We
might all be speaking Spanish. It is a continually changing thing, but there is no
doubt in my mind that 100 years from now, there is going to be a community that
still identifies itself as Miccosukee, as there will be a Navajo community and as
there will be Sioux, Lakota, communities, and they will fit in to whatever kind of
society we have at that time. That is my parting shot.
K: Thank you very much. It was a wonderful interview, and I will have it all typed up
and send it to you for your review.
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