FARGO — A delegation that negotiated a treaty to obtain a large swath of the Red River Valley from the Ojibwe showed up with added persuasion: almost 300 soldiers and a Gatling gun.
Under the treaty negotiated at the “Old Crossing” of the Red Lake River in 1863, the Ojibwe would surrender 11 million acres in Minnesota and North Dakota. In return, they were to receive $20,000 annually for 20 years, while Native American traders who pushed for the treaty to open up the coveted Red River Valley would receive up to $100,000.
After the Senate significantly amended the treaty, some Ojibwe signers refused to endorse the revised agreement, forcing negotiation of a new treaty with somewhat more generous annual payments to the Natives the following year.
In spite of the revisions, Bishop Henry Whipple called the treaties “from beginning to end a fraud.” Those treaties, together with an agreement reached in 1892 that would compel the Ojibwe to sign away millions more acres in North Dakota, would lead to more than a century of legal challenges and appeals to Congress.
Those persistent efforts have resulted in what is called the Pembina class action settlement, an agreement that has preliminary court approval to award claimants or their heirs $59 million — the second-largest award for American Indian lands, trailing only the $200 million awarded by the U.S. Supreme Court to the Sioux in 1980 for treaty violations in taking the Black Hills.
“I commend the Pembinas for their patience and perseverance,” said Melody McCoy, a lawyer for the Native American Rights Fund who represents the Ojibwe tribes. “They were tough in the negotiations.”
The Pembina Band of Chippewa that signed the land agreements has evolved today to include North Dakota’s Turtle Mountain Band of Chippewa, Minnesota’s White Earth Band of Ojibwe, the Chippewa Cree Tribe of Rocky Boy Montana and lineal descendants who aren’t enrolled members of any of the tribes.
The settlement will be heard by a judge in U.S. District Court in the District of Columbia on June 10, when it could become final. Those eligible as class members in the settlement — an estimated 38,000 to 40,000 people, many in North Dakota, Minnesota and Montana — have until April 29 to opt out of the settlement class if they wish to do so.
The settlement stems from congressional acts passed in 1964 and 1980, with the awards held in trust for claimants since then by the U.S. Department of Interior.
“About a third of those people are deceased because the government took so long,” although direct heirs can be eligible, McCoy said. “The government never took it seriously.”
Getting to the verge of a payout for massive land grabs that took place more than a century ago, even after two congressional acts awarding but not distributing payments, has been an arduous battle.
* * *
The Turtle Mountain Chippewa reservation sprawled over 500,000 acres in North Dakota when it was created in 1882.
But it would quickly diminish. In 1884, without warning, it was whittled down to 476,000 acres. At the time, the Turtle Mountain Chippewa’s total land holdings encompassed 10 million acres — about a tenth of what became North Dakota.
As white settlers streamed into what first was Dakota Territory and then, in 1889, the state of North Dakota, the demand for land grew intense. By 1892, under what is called the McCumber Agreement, the Turtle Mountain reservation was slashed to 34,000 acres, or two townships, covering a six-by-12-mile area, making it one of the smallest reservations in the United States.
The McCumber Agreement has been called “The Ten Cent Treaty” because the tribe was paid about 10 cents per acre for land they surrendered over the objections of Little Shell, who was deposed as chief and excluded from the negotiations.
The Turtle Mountain Chippewa ceded 9 million acres under the agreement, approved by Congress in 1905.
“There weren’t good options for tribes,” McCoy said, explaining why they agreed to such lopsided agreements, signing away millions of acres of land. “Most tribes didn’t have the choice; ultimately, there were no other good options.”
Similarly egregious treaties and agreements had been made all over the country, and tribes began to press for additional compensation, leading to the creation of the Indian Claims Commission in 1946.
“Most tribes were of the view that they were cheated,” said McCoy, who has been involved in more than 60 land claims cases.
The Indian Claims Commission, which was authorized to award additional compensation, reviewed more than 600 cases and started making the first awards around 1949-50. The successors of the Pembina Band of Chippewa were awarded one of the first awards in 1964, but only a little less than $300,000 was left after attorney’s fees and other costs were subtracted, and the award was held in trust.
It took years for the Department of Interior to determine who was eligible to receive a share of the award, finally recognizing 21,268 people in 1984. That amounted to about $40 for each person.
Meanwhile, claims for additional compensation for land acquired under the 1892 McCumber Agreement were moving forward. In 1980, the Indian Claims Commission awarded Pembina descendants $53 million.
“That’s how badly they were cheated,” McCoy said.
Now, 57 years after the 1964 award and 42 years after the 1980 award, the class-action settlement is nearing the time for distribution.
“The Pembinas have always been on the back burner,” McCoy said.
* * *
Significant problems remained even after the Indian Claims Commission made the awards. Tribes all over the country started pressing the government for an accounting of the funds held in trust, as well as their investment returns.
The Department of Interior was unable to provide an accounting and hired the Arthur Andersen accounting firm, which took five years at a cost of $23 million and said in the early 1990s that the records were so incomplete and in such a shambles that they couldn’t account for the money.
The Native American Rights Fund sued in 1992, arguing the awards for the Pembina parties had been mismanaged.
“It’s really because the Turtle Mountain leaders were very concerned and couldn’t get answers from the United States,” McCoy said.
After the Arthur Andersen report was made available to tribes in 1996, they demanded a “full and accurate” accounting to determine any losses — a process that, years later, was ultimately settled through negotiations.
The Pembina claims negotiations were complex, McCoy said, because they involved four groups and two awards
After Barack Obama became president in 2009, talks moved ahead. But they weren’t resolved and, finally, in the last days of the Trump administration, the settlement was reached with the Pembina parties.
The resolution is coming more than a century after Little Shell hired a lawyer named Jean Baptiste Bottineau, son of the explorer and merchant for whom Bottineau, N.D., is named, to press land claims for the Turtle Mountain Band of Chippewa and other successors of the Pembina Band.
Bottineau, who first became involved with the tangled land dispute during the time of the 1892 McCumber Agreement, moved to Washington where he established the Turtle Mountain Defense Fund and spent the rest of his life.
He died in 1931, 90 years before the class-action settlement would come to a resolution.
More information, including court documents, notices and claim forms concerning the Pembina settlement, is available at www.pembinasettlement.com/pembina/. More information also is available by calling an automated help line at 1-833-999-9915.