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, Fried, Frank, and Kampelman.
[I was working] with the Washington office of that firm. The office is part of the
firm in New York. The Washington office was founded by Felix Cohen, who is
the acknowledged authority and, in some respects, almost the creator of federal
Indian law through writing his treatise 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 counsel 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 director of the Association, Laverne Mattegan,
whom I did not know because, I believe, she had passed away. When I came on
board, Bill Byler 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, I
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.
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 Byler. 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 Strasser,
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 Buy Indian contracts. Under the ordinary procurement laws, the BIA
was enabled (because they could give a preference to tribes under the Buy
Indian Act) 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 McNabb 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 they would work with us. With the help of Bill
King, McNabb 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. 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 the 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 we could rely 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, 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 aside. 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 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. He 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 the BIA 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 1971, 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
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
pioneering 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. (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 Ramah school board, Mike Gross--the Ramah school board was a
contracting school--proposed in his testimony that, where the bill said, the
Bureau of Indian Affairs is authorized to contract, they should change 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 would go up to the Board of Indian Appeals or ultimately
to a court. There is also a declination on the ground that trust resources 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?
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
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 to not
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 too 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 of 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.
Crow, 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 Crow, 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 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 Everglades National 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
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 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 as 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, by
the 1970s, included 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 a 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.
D: The so-called Billy Bowlegs outbreak, and that resulted from folks going in and
surveying in his farm and caused him to fight. 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 Maine 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 Tee-Hit-Ton 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 v. Mclntosh decision, where he talked about
inherent rights and inherent sovereignty, it seemed like it was sort of a halfway
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
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 had to deal with the Indians--and that was based upon the
practice of George III. 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 the white man
needed to respect and said that in their minority opinions in Cherokee Nation.
That is clear. Then, Marshall, in Woucester 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
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.
D: I can just briefly address that because that is in the background of what the Tribe
has recently achieved, which I am not directly involved with. Although we were in
the early stages, Mr. Lehtinen 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
beneficiary 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 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
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 Jetport 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
D: I was not directly involved on the fight against the Jetport, 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 there were Miccosukee villages within what has
now become the Big Cypress Preserve and the Green Corn Dance had been
held there. My understanding [was] 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 recognized, but there was no question that there had
been, and continued, Aboriginal occupancy. I guess you know that in 1982 I left
the Fried, Frank firm, and I might fill this in. After doing the work for the
Association, the Miccosukee Tribe then hired us as its counsel, hired Strasser-
Spiegelberg (Fried, Frank) as its council. Then, when I left that firm in 1982 and
we founded Hobbs, Straus, Dean, and Wilder, for some years, the tribe used
both firms. Arthur Lazarus continued to give them advice, and I gave them
advice primarily on the BIA and IHS contracting area. So, it may be that some of
this, the Jetport was maybe what Arthur was more involved with. I do not
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--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, of what Miccosukees are 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 Suagee, in our office. He is now of counsel 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 the list of things we have talked
about, starting with the Jetport 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, 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, 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 Billie 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 them, 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 and 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.