Lead Up To The Indian Claims Commission Act Of 1946

Shoshone Indians at Ft. Washakie, Wyoming Indian reservation .. . Chief Washakie (at left) extends his right arm.

NRS | Native Americans | History of Indian Claims Litigation

Special Jurisdiction Acts

Ancient or historical tribal claims for money damages have been brought under special jurisdictional acts waiving the United States' sovereign immunity and allowing a particular tribe to bring a suit in the United States Court of Claims for:
  • money damages for a Fifth Amendment taking of recognized (or reservation) title to particular lands or;
  • for the cession of land to the Federal Government for supposedly inadequate compensation.

See P. L. No. 237, ch. 222, Act of June 3, 1920, 41 Stat. 738 (authorizing the Sioux Nation to bring suit for the alleged Fifth Amendment taking of the Black Hills and authorizing the Cheyenne-Arapaho Tribes of Oklahoma to bring suit for the allegedly inadequate amount of compensation paid by the United States for the 1891 cession of the Tribes' 1869 Executive Order Reservation).

By 1946, nearly 200 claims had been filed under special jurisdictional acts, but the Court of Claims had awarded damages on only 29 of these claims. (See Final Report of the United States Indian Claims Commission, August 13, 1946 [to] September 30, 1978 at 3.) The fact that the "bulk of the rest" of the nearly 200 claims had been "dismissed on technicalities" led to demands for "revised jurisdictional acts." Id.

The tribes, in general, the federal government and observers concluded that the special jurisdictional act approach had not resolved the great bulk of Indian claims and that a new mechanism had to be created to handle these ancient or historical claims. Id.  Hence, the impetus for passage of the Indian Claims Commission Act of 1946, Pub. L. No. 79-726, ch. 959, Act of August 13, 1946, 60 Stat. 1049.  [hereinafter “the ICCA”].

Passage of the Indian Claims Commission Act

The ICCA was the culmination of 16 years of effort by Congress to create a new mechanism to resolve ancient tribal claims against the United States.  Final Report of the Indian Claims Commission at 5.  The Act was essentially remedial in nature and constituted a broad waiver of the United States’ sovereign immunity.  

The United States Supreme Court, quoting from the legislative history of the ICCA, has stated: "The 'chief purpose of the [Act was] to dispose of the Indian claims problem with finality.' " United States v. Dann, 470 U.S. 39, 45 (1985) (held that the "payment of any claim" within the meaning of Section 22(a) of the Act occurs when the monies appropriated by Congress to pay a final judgment in favor of a plaintiff tribe are deposited in a special account in the Treasury to the credit of the tribe).  60 Stat. at 1055.1

The Supreme Court declared that "[t]his purpose [the purpose of finality] was effected by the language of § 22(a) . . . . " But, Section 12 of the Act also evidenced the goal of finality.  Section 12 (the statute of limitations provision) provided:

The commission shall receive claims for a period of five years after the date of approval of this Act and no claim existing before such date but not presented within such  period may thereafter be submitted to any court or administrative agency for consideration, nor will such claim thereafter be entertained by the Congress.  

Section 2 of the Act established five types of claims two of which had not existed before:

  • claims for "unconscionable consideration,” the government's payment of an amount of money for the cession of Indian land significantly below the fair market value of this land at the time of cession (Clause (3) of Section 2);
  • claims for breach of "fair and honorable  dealings that are not recognized by any existing rule of law or equity." (Clause (5) of Section 2);
  • Clauses (3) and (5) created new causes of action. Red Lake Band of Chippewa Indians v. United States, 227 Ct. Cl. 534 (1981).   The '"fair and honorable dealings" clause has been held to encompass "moral" claims.  Otoe and Missouria Tribe of Indians v. United States, 131 Ct. Cl. 593, 621, 131 F. Supp. 265, 283 (1955). 

The total number of petitions/complaints filed under the ICCA was 370; these were separated into 617 dockets. (Final Report of the Indian Claims Commission at 7-8.)   The Commission issued a total of 43 volumes of opinions and orders.

In March 1976, Congress extended the life of the Commission, but provided for its termination effective September 30, 1978.  Congress also provided for the transfer of any unresolved ICCA claims to the United States Court of Federal Claims.  However, not until October 2006 was the last case filed under the ICCA – Pueblo of San Ildefenso v. United States, No. 354 –  finally resolved.


1 The second paragraph of Section 22(a) states, as follows: "The payment of any claim, after its determination in accordance with this Act, shall be a full discharge of the United States of all claims and demands touching any of the matters in the controversy." 


Updated December 22, 2020

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