Steven Newcomb: Indian Claims Commission wasn't legitimate

In 1974, Ralph A. Barney, Chief of the Indian Claims Section, Lands Division, in the U.S. Department of Justice, explained the concept of title that the Indian Claims Commission (ICC) had used in its work from 1946-1978. He began by mentioning “different concepts inherent in the nature of” different cultures. “The culture of the Europeans who discovered and later settled this continent was basically legalistic,” he said, particularly where land was concerned.”

In Barney’s view, from the European perspective: “Land was the subject of ‘ownership’ either by the monarch or his subjects, and ‘titles’ were the capstone of such ownership.” Barney then made the unequivocal statement that “‘[o]wnership’ in the sense of a legal right [to land] was unknown to the Indian.” (emphasis added) To support this assertion, Barney quoted Justice Hugo Black in the U.S. Supreme Court ruling Shoshone Indians v. United States: "Ownership meant no more to them [the Shoshone Indians] than to roam the land as a great common, and possess and enjoy it in the same way that they possessed and enjoyed sunlight and the west wind and the feel of spring in the air. Acquisitiveness, which develops a law of real property, is an accomplishment only of the 'civilized.'"

The idea of “acquisitiveness” is “an intense desire to obtain or possess something” which one does not already possess. Justice Hugo Black’s statement rested on the impossibility of Indian nations having an intense desire to obtain lands they already possessed and were living in cultural and spiritual relationship with for countless generations. It was therefore on an impossible basis that Justice Black, for the Court, framed the Shoshone as being disqualified from a true ‘ownership’ of their lands.