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Native American rights attorney lays out 1955 Tlingit land-rights loss

Walter Echo-Hawk is, essentially, a walking law library. It makes sense, given that he’s been practicing law since 1973.

He rattles off cases from memory — from the WWII-era Korematsu case that was used to uphold internment of Americans of Japanese descent, to the Dred Scott decision from 1857, when the U.S. Supreme Court held that the Constitution didn’t include citizenship for black people.

Echo-Hawk’s lecture was peppered with legal cases that laid out a framework for his argument that legal system has — at times — prioritized justice, and at other times has been subject to bias and racism.

“Most Americans, in our free and democratic society, tend to equate our legal system with justice. But what is justice? We think we know it when we see it,” Echo-Hawk said. “But by justice, what I mean here is that condition when the law fairly protects widely-held needs and values of all segments of the population.”

But it was the 1955 Supreme Court decision against the Tee-Hit-Ton Tlingit people that he centered his lecture on while speaking to about 60 people in the Shuká Hít clan house at the Sealaska Heritage Institute.

Echo-Hawk spent a lot of time talking about justice — what it means and who has access to it. And as an example, he used the Tee-Hit-Ton case that he calls one of the greatest miscarriages of justice in Indian Law.

Essentially, Tlingit land was taken to create the Tongass National Forest. Then, in 1951 the Forest Service offered up 350,000 acres of that land for a timber sale, near Wrangell. That land is home to the Tee-Hit-Ton Tlingit, and they sued.

Echo-Hawk calls it a test case. One that was designed to determine the extent of Tlingit land rights in Alaska at the time.

In this case, the Tlingit said they had aboriginal title to the land.

“They said it’s just as valid as any white man’s ordinary real estate title is,” he said. “In the case, the Tlingits contended that the timber sale was unconstitutional because their property in that vast area could not be taken by the government without their consent, without just compensation as required by the Fifth Amendment.”

But that case didn’t end well for them. In 1955, the Supreme Court ruled that Congress gave them permission to occupy their homelands but not title to it — so they had no basis for a claim that the government owed them money.

Echo-Hawk laid out a few reasons why this happened, including racism and ignorance found in several legal opinions in federal Indian law cases.

“The idea that Indians are racially inferior, that we have inherently inferior characters, that our cultures are inferior and that even our religions are inferior,” he said.

He also said that the 1950s was not a good time in the country to be bringing up these cases for Native American and Alaska Native people.

“This was when the cowboy-and-Indian movies reigned supreme. All Americans thought they were cowpokes riding in the Wild West,” he said.

And federal policy at the time revolved around erasing Alaska Native and American Indian culture.

“Given all of these factors, the Supreme Court can hardly be expected to come down with a favorable decision in this case for the Tlingit,” he said.

Katherine Eldemar has some thoughts on that last point. She’s a lawyer and a judge, and she’s on the board of directors of the Juneau-based Native corporation Goldbelt, Inc. She’s also Tlingit, from Juneau.

She talked to Echo-Hawk after his presentation. She told him that she likes to focus on solutions to systemic problems, especially as it pertains to laws affecting indigenous people in the U.S.

“How do you get the Supreme Court of the United States to rule and administer justice in their ruling? As tribal judges, we saw some pretty challenging Supreme Court cases that really did harm in Indian country,” Eldemar said.

One thing she suggested? Get the judges out of their chambers.

“They need to see where their decisions are being implemented and the outcomes. See the poverty. See the challenges and see how it does not work,” she said.

Echo-Hawk agreed with her. He said the lack of education among the judges and policymakers is probably the biggest single issue facing Indian country today.

But he also said that there’s a different mindset now than there was in 1955 — that this is the dawn of a brand new era, a human rights era.

He points to the United Nations Declaration on the Rights of Indigenous Peoples. It was ratified in the U.S. about a decade ago. And he said that U.N. framework could be used as the basis for legal arguments framing indigenous rights as human rights.

That was an argument that Rosita Worl took to heart. Worl, who is Tlingit, is the president of the Sealaska Heritage Institute. She said Southeast Alaska Native people have appealed to the U.N. before — during a fight for their subsistence rights. And she didn’t really see a legal mechanism for the U.N. to help them at the time.

But now?

“We have this proclamation, and it sets out a framework for justice for Native, indigenous people. And I hadn’t thought about, you know, bringing it to the next step of having our states, having our government — the national government and the state-level government — implement those recommendations. So I’m going to go back and take another look at them,” she said.

Still, she sees echoes of the same arguments used to justify keeping Tlingit people from owning their land in that 1955 Supreme Court case being used in cases facing Southeast Alaska Native people today.

She points to Alaska Native Vietnam Veterans who are newly eligible for land claims. But they can’t select land near their homes in the Tongass National Forest — which she said in an injustice.

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